Hennes v Hobsons Bay City Council
[2015] VCC 21
•28 January 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00412
| SUZAN HENNES | Plaintiff |
| v | |
| HOBSONS BAY CITY COUNCIL | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 January 2015 | |
DATE OF JUDGMENT: | 28 January 2015 | |
CASE MAY BE CITED AS: | Hennes v Hobsons Bay City Council | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 21 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd (2005); Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr G Worth | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | Mr N Dunstan | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant on 26 February 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 An application was also brought pursuant to clause (c) for a severe mental impairment in the form of a Chronic Pain Syndrome.[1]
[1]Transcript “T” 1, T2
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[2][1998] 3 VR 833
[3](1995) 21 MVR 314
10 Winneke P, in Mobilio,[4] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[4]Mobilio v Balliotis (supra)
11 A Chronic Pain Syndrome can result in an impairment under sub-paragraph (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[5]
[5][2005] VSCA 227
12 The plaintiff relied upon five affidavits and gave viva voce evidence. She also relied on three affidavits sworn by her daughter, Silvana. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged forty-five, having been born in Egypt in 1969. There, she was educated to age eighteen and learned only a smattering of English. When aged twenty-three, the plaintiff migrated to Australia, where she completed an English language course. She has reasonable spoken English but difficulty reading and writing.
14 Although she could not recall having any back symptoms in 1998, the plaintiff is aware her general practitioner, Dr Tardros, noted she complained of backache that year and in May 1998, x-rays disclosed some scoliosis without other abnormality.[6]
[6]T15
15 In 1999, the plaintiff completed a Certificate III in Children’s Services at Victoria University. The following year, she was employed by the defendant as a childcare worker at Altona Meadows Childcare Centre (“the premises”).
16 On the said date, the plaintiff was working in the babies’ room at the premises. She was responsible for assisting five babies up to eight months in age during a practice fire drill. Whilst she moved an emergency cot in which the babies had been placed, the plaintiff stepped backwards through a door when moving the cot with a co-worker. The cot struck the doorframe and stopped suddenly. The plaintiff then heard her back crack (“the incident”).
17 Following the incident, the plaintiff experienced referred lower back pain which increased during the day and she had difficulty moving her right leg. At one stage, when she tried to get a baby out of a cot, the plaintiff could not straighten up properly. She had difficulty walking. She was sent home and later saw Dr Lumbes, her general practitioner at Wyndham Health Care.
18 A CT scan was carried out on 27 February 2008, which the plaintiff understood demonstrated a slight disc bulge at L3-4-5 and mild broadbased disc bulge at L4-5 and a broadbased disc protrusion at L5-S1.
19 Dr Lumbes put the plaintiff off work and prescribed Voltaren and Panadeine Forte. The plaintiff was later prescribed Mobic, as well as Tramal and Lyrica for pain relief. Those medications however affected her stomach and in the longer term, the plaintiff commenced using Voltaren Gel and up to eight Panadeine Forte for partial pain relief.
20 The plaintiff initially had physiotherapy, almost daily, and as of September 2009, she was having treatment weekly from Darren Rose.
21 In April 2008, Dr Lumbes referred the plaintiff to an orthopaedic surgeon, Mr Williamson. The plaintiff was then suffering persisting lower back pain and symptoms into her right thigh. Mr Williamson referred her for an MRI scan in April 2008 which she understood demonstrated an irregular bulge at L4-5, as well as an irregularity in L5-S1 disc without herniation.
22 Mr Williamson advised the plaintiff the MRI scan did not indicate any need for surgery and he suggested she do pain management and rehabilitation under Dr Thomas’ supervision.
23 At that stage, Dr Lumbes advised the plaintiff he would not make that referral until receiving the opinion of medico-legal examiners who were to see the plaintiff on the defendant’s behalf. One such examiner, Dr Ho, told the plaintiff he did not think she needed a referral to Dr Thomas and she should continue to rest and take medication.
24 Because of her persisting symptoms, the plaintiff was sent back to Mr Williamson later in 2008 and he suggested a second MRI scan which was carried out in October. The plaintiff understood that scan disclosed mild facet hypertrophy at L4-5 and L5-S1 but without any disc protrusion or interference with the nerve.
25 Mr Williamson then advised against surgery and suggested pain management and continued use of Voltaren Gel and Panadeine Forte.
26 The plaintiff tried to return to work with the defendant on two occasions. The first time was about a month after the incident but she lasted only one day on light duties. She tried a second time a couple of months later but by the end of the second day at work, she found her symptoms were considerably aggravated. She has not returned to work with the defendant since that time.
27 The plaintiff was in receipt of weekly payments of compensation until 8 August 2010.
28 The plaintiff last underwent physiotherapy at Wyndham on 3 September 2010. She was referred by Dr Lumbes to Ms Dunlop, a psychologist, whom she saw a few times in 2010, because she was depressed things were getting on top of her. She did not really find that treatment helpful.[7]
[7]T17
29 In October 2010, the plaintiff commenced a nine-week rehabilitation course at the Dorset Rehabilitation Centre, attending two days a week. There was some improvement with the plaintiff’s comfort level but her back pain remained and there was no change in her condition emotionally.[8]
[8]T22
30 After completing the Dorset rehabilitation program, the plaintiff was referred to Rayna Mavrias, whom she attended about half a dozen times.
31 During 2010 to 2011, the plaintiff continued to see her general practitioner monthly, complaining of constant variable back pain. She was then taking four to eight Panadeine Forte tablets a day and Voltaren Gel, and taking Endep.
32 The plaintiff ceased prescription medication, particularly Panadeine Forte, from early 2013. As of August that year, she was having increasing problems with constipation, aches in her stomach and dizziness. She altered her medication to Nurofen, six to eight tablets a day, depending on her pain level. That medication was of some benefit without the side effects of Panadeine Forte. She also used Voltaren Gel daily. Because she no longer needed prescription medication, the plaintiff’s need for ongoing attendances at her general practitioner decreased.[9]
[9]T22
33 Following rehabilitation, the plaintiff re-entered the workforce in July 2011, resuming childcare work with Giant Leaps Child Care in Point Cook. The job was similar to that performed with the defendant. The plaintiff advised her new employer of her back injury. The job was light and she tried to avoid lifting.[10]
[10]T18
34 The plaintiff initially worked 38.5 hours a week but her back simply could not cope with that level of work, which caused her to suffer from constant and severe pain. She therefore lowered her work commitments to 24.7 hours a week over five days and since then has worked Monday to Wednesday, 7.15am to 10.30am and Thursday to Friday, 7.15am to 3.15pm.
35 The plaintiff finds this work is hard and very tiring and it strains her spine but she enjoys it and it gives her an interest which she previously lacked when forced out of the workforce.
36 The plaintiff has continued to find her household activities are severely limited by her back pain. Prior to her injury, the plaintiff did all the domestic tasks. Her children now help her with daily tasks and her husband does the heavier work at home. The plaintiff is able to do only light cleaning. If she does too much, she has to lie down in bed as she cannot move.[11]
[11]T30
37 Since the incident, the plaintiff’s sleep has frequently been interrupted by spinal pain and her intimate relations with her husband have been disrupted.
38 Prolonged sitting or standing causes the plaintiff increased levels of pain, as does bending, twisting or turning. Thus, she has limited her activities accordingly.
39 In her most recent affidavit sworn November 2014, the plaintiff deposed little has changed. She continues to suffer constant spinal pain, varying day to day.
40 On bad days, the plaintiff continues to suffer sharp stabbing pain in the middle of her lower back to the extent, on occasions, she is barely able to move. At those times, she tends to spend the day resting in bed and coping with the pain as best she can. These flare ups happen perhaps once a month, not with any particular regularity. On those days, the plaintiff takes a day off work.[12]
[12]T26
41 Even on better days, the plaintiff is not free of pain but has a duller sensation of that stabbing pain. She also has lower limb pain, particularly down her right leg as far as her right foot.
42 The plaintiff rarely attends general practitioners at the Super Clinic and she continues to take Nurofen and uses Voltaren Gel daily.
43 The plaintiff generally works 24.7 hours a week, although from time to time, not frequently, she has an additional one to two hours of work.[13] Working her usual hours, the plaintiff tends to suffer increased levels of pain. Her pain is greater when working extra hours. Despite her pain, the plaintiff continues to work because it gives her an interest and takes her mind off the pain to a certain extent.
[13]T20
44 The plaintiff’s social, recreational and domestic activities have been affected since the said date. Prior to her injury, the plaintiff frequently went walking. It was her hobby. She now sometimes walks for 15 to 20 minutes but then her pain increases and she cannot move her leg.[14]
[14]T29
45 The plaintiff previously enjoyed cooking and doing all the work in the kitchen but she can no longer do other than light tasks. Her activities with her children are also limited.[15]
[15]T27
46 The plaintiff has gradually learned to limit her lifestyle to avoid as much pain as she can. She does not feel anxious or depressed in terms of her outlook.[16]
Lay evidence
[16]T28
47 The plaintiff’s daughter, Silvana Eskander, swore affidavits on 10 May 2011, 13 August 2013 and 5 November 2014.
48 Silvana moved out of home in late 2013 when she married but she still has regular contact with the plaintiff.
49 Silvana described her observations of the plaintiff’s chronic back pain over many years since the incident and its significant impact on the plaintiff’s lifestyle and activities, particularly in the home.
50 Silvana is aware of the plaintiff’s medication regime and her ongoing pain. She confirmed the plaintiff’s injuries continue to impact on her social, recreational and domestic activities.
The Plaintiff’s medical evidence
Investigations
51 It was reported following an MRI scan in February 2008 that there was significant pathology demonstrated at the L5-S1 level where there was a moderate spinal stenosis caused by a broad-based disc protrusion and ligamentum flavum hypertrophy indenting and compressing the theca.
52 Following an MRI scan of the lumbar spine in April 2008, it was reported at L4-5 that there was a shallow slightly irregular circumferential disc bulge. Overall canal dimensions remained normal. Note was made of symmetric flaval hypertrophy. At L5-S1, there was an irregularity of the posterior disc margin without herniation. Facet joint hypertrophy was worse on the left, with accompanying flaval overgrowth noted. Otherwise, the neural foramina and subarticular lateral recesses were normal.
53 Following a further MRI scan on 13 October 2008, it was reported there was mild facet hypertrophy at L4-5 and L5-S1 with no disc protrusion or compromise to the foramina or central canal.
Treaters
54 When Dr Lumbes, the plaintiff’s general practitioner, first reported in March 2009, he noted that the plaintiff’s signs and symptoms included persistent low back pain, right-sided sciatica to the anterolateral thigh, tenderness of the lumbar sacral spine and paravertebral areas and a positive straight leg raising test in the right leg which indicated sciatic nerve irritation and quite limited range of lower back movement. The plaintiff complained of increased discomfort with prolonged postures and walking more than 10 minutes.
55 Dr Lumbes diagnosed back pain secondary to L3-4, L4-5 disc bulges, L5-S1 disc protrusion and ligamentum flavum hypertrophy causing moderate spinal stenosis and indenting and compressing the theca. He noted those objective injuries were shown on the February 2008 scan.
56 Dr Lumbes then believed the plaintiff’s injuries had stabilised and objective findings on imaging procedures had in fact improved. He noted the most recent MRI scan of October 2008 showed some mild facet hypertrophy with no disc protrusion or compromise, but he thought that objective improvement had not been matched clinically by subjective improvement in the plaintiff’s symptomatology.
57 Dr Lumbes thought, aside from the distress caused by chronic pain, the plaintiff had not presented to date with features suggestive of secondary injuries such as anxiety, depression or sexual problems. He considered she was totally disabled from the date of the incident, noting her failed attempts to return to work.
58 Dr Lumbes then thought the plaintiff’s capacity to do household chores involving lifting, bending or prolonged standing or sitting had been significantly affected by her injury.
59 Dr Lumbes reported in August 2010 that the plaintiff’s injuries had stabilised and that the objective pathologies on the imaging had in fact improved or resolved. He also noted on 4 February 2010, the plaintiff had, however, complained of feeling low and irritable and she was referred to Cate Dunlop, a psychologist, for psychotherapy. He then suggested an intensive multidisciplinary functional rehabilitation program at the Dorset Rehabilitation Centre.
60 Dr Lumbes noted the possibility of Chronic Pain Syndrome had been raised as a feasible explanation for the disparity in the plaintiff’s objective findings on imaging and clinical presentation. If this had indeed developed, he noted that foreboded a poor outcome. He thought the plaintiff’s prognosis would be more accurately determined following the completion of her pain management program.
61 Dr Lumbes considered the plaintiff was currently unable to do her old job or any other job requiring repetitive bending, lifting or other strenuous activities.
62 In April 2011, Dr Lumbes reported that the plaintiff’s psychological and physical symptoms had slightly improved following the completion of the pain management program and that she had already reached a relative medical end point. He then thought the only logical management from thereon was for her to pursue a gym exercise regime, as suggested by Dr Thomas, and have physiotherapy on a pain contingent basis.
63 Dr Lumbes considered the plaintiff’s injury had rendered her incapable of performing pre-injury duties in the foreseeable future but she had a limited capacity for a suitable job.
64 After late 2011, Dr Lumbes next saw the plaintiff on November 2014. She then still complained of a lingering low back pain, graded as 4 to 5 out of 10, and still had exacerbations after physical work. She still experienced occasional radicular pain to her right buttock and posterior aspect of the right thigh and toes of the right foot.
65 The plaintiff reported she could do light housework but still had a limited standing and walking tolerance of 15 to 20 minutes and could sit for 30 minutes.
66 Physical examination then revealed tenderness over the L5-S1 spine and adjacent paravertebral areas. There was restricted lumbar movement and a positive straight leg test.
67 Dr Lumbes confirmed the plaintiff’s injuries had stabilised. He did not believe there was any non-organic or functional component, noting that most of the specialists who had examined the plaintiff in the past had diagnosed her condition secondary to degenerative changes, discogenic injury, mechanical back strain, all of which are organic in nature.
68 Dr Lumbes concluded the plaintiff’s capability to perform activities of daily living such as household chores which require heavy lifting, bending or prolonged standing, as well as her ability to partake in recreational and social activities, continued to be affected by the incident.
69 Mr Rose at Wyndham Physiotherapy treated the plaintiff between 3 March 2008 and 3 September 2010. He thought she had suffered injuries to the discs at L3-4, L4-5 and L5-S1 and at the lowest level, combined with facet joint hypertrophy, it caused moderate spinal stenosis and at right S1 nerve root radiculopathy.
70 Mr Rose believed the plaintiff’s injury had stabilised and that she was unable to return to her previous work duties.
71 Mr Rose did not think any further physiotherapy would give the plaintiff any lasting benefits, as he believed her future prognosis depended most heavily on the outcome of her pain management course.
72 Mr Rose considered the plaintiff had some capacity for alternative employment that would avoid lifting or sustained postures such as sitting or standing, but noted, however, it may be impossible for the plaintiff to find any meaningful employment that allowed her to manage her pain.
73 The plaintiff was first referred to Mr Williamson, orthopaedic surgeon and pain management specialist, in April 2008. He then reassured her there was no urgent indication for surgery but arranged for an MRI scan, after which he confirmed this advice.
74 Mr Williamson felt early intervention by a multidisciplinary pain management and rehabilitation unit was indicated and recommended a referral to Dr Thomas.
75 Mr Williamson re-examined the plaintiff in October 2008, when she continued to describe low back pain and right lower limb pain, particularly in the calf. He arranged a further MRI scan and recommended symptomatic treatment and attempt to resume normal activities as comfort permitted.
76 Mr Williamson last saw the plaintiff on 10 November 2008, when her predominant complaint was low back pain. There was then a markedly restricted range of movement and some tenderness but no muscle spasm or restriction of straight leg raising.
77 Mr Williamson noted the October 2008 MRI scan revealed no obvious cause for the plaintiff’s pain. He, accordingly, reassured her there was no indication for further investigations with a view to surgery and he recommended her local doctor refer her to pain management.
78 Mr Williamson thought the plaintiff’s employment was a significant contributing factor to her injury. He noted the plaintiff did not describe any anxiety, depression or sexual problems. He was not aware of any psychiatric or psychological conditions suffered by the plaintiff.
79 Dr Thomas first saw the plaintiff on referral from Dr Lumbes in July 2010.
80 Dr Thomas then concluded that the plaintiff was suffering from a differentiating pain problem, predominantly focusing on her lower back. He thought there were a number of non-organic components to her presentation. In his view, it was not possible to determine whether the plaintiff’s condition was one of volitional over embellishment or simply abnormal illness behaviour, noting:
“Normally in the presence of the latter there was significant emotional distress something which was certainly not evidence during the first consultation.”
81 Dr Thomas then suggested that the plaintiff be assessed for consideration of a pain management program at the Dorset Rehabilitation Centre. He noted that situations like the plaintiff’s were always difficult to treat as they do tend to respond unpredictably, whether it be due to volitional over embellishment or abnormal illness behaviour. He thought that the trial of rehabilitation nonetheless was warranted in view of the plaintiff’s stated severe levels of pain and associated disability.
82 Dr Thomas considered that the plaintiff’s inability to work seemed to be based more on the non-organic components and not the organic components, but a review of this issue would be best determined after the rehabilitation program, thus the plaintiff was referred to the Dorset Rehabilitation Centre.
83 Dr Thomas noted that when assessed prior to that referral, the plaintiff exhibited a lot of pain-related behaviour when examined by a physiotherapist, and a psychologist had reported that the plaintiff was suffering from quite severe depression, financial difficulties and conflict with her husband.
84 After the first examination, diagnostically, Dr Thomas thought that the plaintiff was suffering from non-specific undifferentiated lower back pain. He thought there seemed to be both an organic and non-organic components, but then the non-organic aspect seemed to dominate. From an organic point of view, he thought that the plaintiff had a work capacity and the non-organic component caused her to be incapacitated.
85 Dr Thomas saw the plaintiff on 13 December 2010 after she had completed the program which she found very beneficial from both the physical and emotional point of view. She was then about to start a gym program.
86 The plaintiff then complained of constant lower back pain and episodic right leg pain. She had reduced the use of Panadeine Forte and was using Voltaren Gel.
87 On examination, the plaintiff was tender in the lower back and fairly diffuse in a non-specific manner. Spinal movements were about thirty per cent of normal. Neurologically the plaintiff was normal.
88 Dr Thomas then diagnosed persistent non-specific lower back pain. He thought the plaintiff was at a relative medical endpoint and there was nothing overly attractive that could be done from a medical point of view and that continuing at the gym was reasonable. Diagnostically he thought the plaintiff had non-specific low back pain to which employment was a significant contributing factor.
89 Dr Thomas thought the plaintiff was unable to return to her pre-injury work in childcare but nonetheless had a work capacity from an organic point of view. He accepted the nature of the plaintiff’s back condition had affected her ability to function domestically, recreationally and socially and he thought that she had a permanent impairment He considered that there was a non-organic dimension to her presentation which he thought contributed to a degree of disability to at least a moderate degree.
90 The plaintiff was re-examined by Dr Thomas for medico-legal purposes on 4 March 2013.
91 On examination, the plaintiff had normal mobility. There was lower back tenderness and mild to moderate limitation of movement. Neurologically the plaintiff was normal.
92 Dr Thomas concluded that diagnostically, the plaintiff was suffering from symptomatic spondylosis. He noted that his opinion had not changed substantially to any extent based on that assessment, as it had been in his previous report, confirming the non-specific low back pain diagnosis. He noted that there was an emotional content to the plaintiff’s presentation.
93 Dr Thomas considered that the plaintiff had a work capacity from a purely organic point of view, insomuch as her back function would allow her to perform appropriate work, but working, bending, lifting, twisting below waist height or above chest height would be problematic. He thought that the prognosis was for ongoing pain and disability.
94 When last seen on 27 October 2014, the plaintiff predominantly complained of low back pain centrally with, at times, right leg pain radiating to the foot with associated pins and needles. Back movements were about forty per cent of normal.
95 Dr Thomas thought that the incident continued to be a materially contributing factor to the plaintiff’s current condition and further treatment was conservative.
96 Dr Thomas accepted that the plaintiff’s overall work capacity had been compromised by her back injury. He noted that she had returned to pre-injury hours with time off during aggravations, but was undertaking lighter work. He accepted that she was working to her maximum capacity of 24 hours a week, which he noted were her pre-injury hours.
97 Dr Thomas thought the plaintiff presented herself well and she communicated well in English. He considered that she had sustained a level of impairment that was permanent. The nature of the impairment was an organic one. Although an emotional response had occurred, it appeared to be in proportion to the underlying physical problem and not the driver for the plaintiff’s pain per se.
98 Given the totality of the situation, Dr Thomas thought that 80 per cent of the plaintiff’s current complaint was organic and 20 per cent, non-organic.
99 Dr Thomas thought that the organic nature of her injury prevented the plaintiff from doing unrestricted physical work through all levels. She reported that she was not able to undertake the heavier household duties such as vacuuming and mopping, and reported that her driving was limited. He accepted that these problems were due to the organic nature of her back injury.
100 The plaintiff was referred to a psychologist, Ranya Mavris, in April 2011 following her attendance at the Dorset Rehabilitation Centre.
101 In her report of May 2011, Ms Mavris noted the plaintiff continued to experience persistent back and right leg pain, secondary to which she suffered from symptoms of depression which were severe and consistent with a Chronic Adjustment Disorder with Depressed Mood.
102 Ms Mavris noted the plaintiff did not have a capacity to return to her previous work but was motivated to find suitable work. She was hindered by her pain, depression and also limited literacy. She thought there was further scope for the plaintiff’s mood to improve through individual psychology.
Medico-legal evidence
103 Mr Khan, orthopaedic surgeon, examined the plaintiff on 2 May 2011.
104 The plaintiff then complained of sleeping poorly due to lower back pain radiating to the right side of the midline and intermittently shooting down the back of her right buttock and thigh to calf with some numbness in the foot. She complained of pain on prolonged postures. She was then taking six to eight Panadeine Forte a day, and used Voltaren Gel.
105 Having seen the most recent MRI scan of October 2008, Mr Khan thought there were some residual after effects of the original discogenic pain. He noted some associated non-organic symptoms. He then thought the plaintiff remained unfit for pre-injury duties, as they tended to flare up the pain. In his view, she was fit for suitable work according to her tolerances.
106 Mr Khan then considered the plaintiff’s condition had substantially stabilised. She continued to require pain medication and a mobilisation program including gym. He thought the plaintiff would be left with a partial permanent impairment.
107 Whilst he could not accurately quantify her pain and suffering being contributed to by organic and non-organic aspects of her injury, as an estimate, Mr Khan would consider 75 per cent of her symptoms were emanating from the organic aspect of her injury and the remaining 25 per cent was from non-organic.
108 Dr Blombery, vascular physician, first examined the plaintiff in April 2011.
109 Dr Blombery thought the plaintiff’s current back and leg pain was caused by previously asymptomatic degenerative changes in the lumbosacral spine involving the facet joints and the discs having been rendered symptomatic by the incident.
110 In addition, Dr Blomberry thought there was a non-specific Pain Syndrome present, as well where there is sensitisation of pain nerve pathways both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. He considered such a Pain Syndrome was an organic disorder of pain nerve pathways.
111 Dr Blombery thought the prognosis was poor and that there was no capacity for the plaintiff’s previous job but she may be able to do light duties in a job without heavy lifting for a few hours a week.
112 After the first examination, Dr Blombery considered that 80 per cent of the plaintiff’s injury was organic in nature and 20 per cent was due to non-organic psychological factors.
113 On re-examination on 19 September 2013, Dr Blombery confirmed his diagnosis and other views earlier expressed.
114 Dr Blombery noted that the plaintiff was restricted with lumbar movement and straight leg raising. He thought she was genuine in her presentation and was not embellishing her symptoms at all. He noted she was able to work and do some domestic and leisure activities but was limited in both those areas to a significant extent because of ongoing pain.
115 Dr Blomberry thought that the plaintiff’s condition was organic because of the previously asymptomatic degenerative changes which had been rendered symptomatic, and a minor component of pain pathway sensitisation. He considered the plaintiff had developed some anxiety and depression but those were under quite good control at the present time.
116 Dr Horsley, occupational rehabilitation specialist, first saw the plaintiff in August 2010.
117 Dr Horsley thought the plaintiff presented with mechanical back pain with referred right leg pain with no significant radicular features clinically. She noted the plaintiff presented with considerable fear avoidance behaviour and objective assessment was difficult.
118 Dr Horsley believed the clinical presentation was consistent with the incident. She considered the plaintiff had suffered an injury to her lumbar spine, probably discogenic in origin. She noted the plaintiff presented, however, with significant fear avoidance behaviour on a background of mechanical back pain and she was quite deconditioned.
119 Dr Horsley considered a range of work restrictions were suitable given the plaintiff’s poor functional tolerances. In her view, the plaintiff would benefit from a structured physical program and through a multidisciplinary pain management program. She considered the plaintiff would then have difficulty returning to her old job with its physical demands.
120 On re-examination in May 2013, the plaintiff was working part time at Giant Leap.
121 Dr Horsley noted the plaintiff presented with ongoing mechanical back pain with right leg pain with no significant radicular features clinically. The level of fear avoidance behaviour exhibited was much less than on previous examination.
122 Dr Horsley noted the plaintiff was initially diagnosed with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood but more recently with assessment by Associate Professor George Mendelson, she had no diagnosable psychiatric condition.
123 Dr Horsley thought the plaintiff’s symptoms were likely to persist and functional tolerances remained limited and work restrictions were appropriate.
124 Dr Horsley concluded that the plaintiff’s injury had impacted upon her overall work capacity. She believed the plaintiff’s injury had stabilised and that the plaintiff would continue to experience impairment into the foreseeable future with restrictions not only in work capacity but also to social, domestic and recreational activities.
125 The plaintiff was examined by rheumatologist, Dr Stockman, in April 2011 for medico-legal purposes.
126 Having seen the first two MRI scans that he described as rather negative, Dr Stockman thought that the plaintiff’s pain was mechanical in nature and probably due to lower disc pathology and there appeared to be some functional overlay. He then thought that the plaintiff had a limited capacity for work. He considered that the level of impairment was likely to continue but might somewhat improve with the passage of time.
127 On review in October 2014, the plaintiff advised that her condition had remained essentially unchanged with constant pain involving the centre of the lower lumbar region and radiation to the right leg to the foot.
128 There was some increase in range of lumbar movement on this examination and also straight leg raising. Dr Stockman noted that the October 2008 MRI scan was reported to be normal, apart from facet joint height petrify at L4-5 and L5-S1.
129 Dr Stockman considered that the plaintiff’s back pain was due to disc pathology in the lower lumbar region. There were no secondary injuries. There did not appear to be significant anxiety, depression or digestive problems.
130 Dr Stockman thought that the plaintiff would not be fit for fulltime work and that she should avoid heavy lifting or repeated bending.
131 Dr Stockman considered the injury and level of impairment to be permanent. He thought that the plaintiff’s current presentation was more in keeping with mechanical problems with the back (organic injury), but there was an element of Pain Syndrome given the constant nature of the pain. He would estimate that 80 per cent of the plaintiff’s pain was organic and the balance non-organic Pain Syndrome, noting that he considered a Pain Syndrome as organic but not mechanical.
132 Dr Stockman thought that the plaintiff could not remain in one position for any length of time. She was not able to lift in excess of 10 kilograms or undertake repetitive bending and she could not drive for long periods. He agreed with Dr Horsley and Dr Blombery with regard to diagnosis and prognosis.
133 Dr Slesenger, specialist occupational physician, examined the plaintiff on 18 September 2014.
134 On examination, there was severe tenderness and restriction of lumbar movement. Neurologically, the examination was normal.
135 Dr Slesenger concluded, based on the history of the examination and review of the documents, there was evidence to support the development of a Chronic Pain Disorder, secondary to either a soft tissue injury or an aggravation of pre-existing degenerative changes of the lumbar spine.
136 With regard to prognosis, on the positive side, Dr Slesenger noted the plaintiff had been able to return to work doing part modified duties; however, that return was not complete. She required time off each month. Dr Slesenger thought there was a strong possibility the plaintiff’s symptoms would recur to the level that caused her to cease work in 2008 and he was therefore cautious with regard to her future impairment, disability and employment prospects.
137 Dr Slesenger thought the plaintiff was working beyond her current capacity.
138 Based on the history, examination and review of the documents, Dr Slesenger was satisfied the plaintiff’s ongoing impairment was organic in nature. He thought she had significant limitations in her capacity to perform duties both within the home and at work. That disability was consistent and she had limited capacity to twist, bend and to perform manual handling tasks.
139 Dr Edward Cole, psychiatrist, examined the plaintiff on 23 September 2010. He thought she was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered her condition was a response to a back injury and to the limitations imposed upon her by that injury. He noted that there was no suggestion of symptom exaggeration at either a conscious or unconscious level.
140 Dr Kaplan, psychiatrist, examined the plaintiff in April 2011. He considered that she had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. This condition was related to her injury and chronic pain and the physical limitations imposed upon her by her pain.
The Defendant’s medico-legal evidence
141 Dr Malcolm Brown, occupational physician, first saw the plaintiff in May 2010.
142 On examination, the plaintiff walked and moved slowly and stiffly throughout and she was wearing a back brace. She complained of tenderness on quite light palpation. There was very limited spinal movement and the plaintiff was unwilling to attempt certain movements, although straight leg raising and sitting was completely unrestricted.
143 Dr Brown thought the plaintiff had uncomplicated lower back pain. If there had been an initial disc injury, it had resolved. He thought the plaintiff’s symptoms were due primarily to poor compliance to the exercise regime, the use of the brace and the degenerative changes seen radiologically. He thought employment made a partial contribution to her current condition and that she did not have a capacity to return to pre-injury duties.
144 Dr Brown considered there appeared to be abnormal illness behaviour factors present and he thought the plaintiff was fit for a number of jobs that were suggested. He noted there were significant inconsistencies on the physical examination and positive Waddell’s signs, noting the improvement shown on later investigations.
145 Dr Brown re-examined the plaintiff in March 2013.
146 The plaintiff then walked normally with no limp and appeared to be in good health. There was a little tenderness to palpation. There was some restriction of lumbar movement. There was an inconsistency between straight leg raising, in sitting and on examination.
147 Dr Brown thought the plaintiff was fit for appropriate duties. Overall, he thought she continued to have mild chronic low back pain and would benefit from a more ambitious exercise program. He diagnosed chronic uncomplicated lower back pain.
148 In Dr Brown’s view, from a purely physical point of view, the plaintiff had a capacity to do work tasks which do not involve heavy lifting, frequent bending or standing still in one position throughout the work shift. He thought there were a wide range of duties being undertaken within appropriate restriction. He thought the plaintiff had the capacity to do her current job on full hours.
149 Having been provided with Dr Thomas and Dr Horsley’s 2013 reports, Dr Brown noted they provided clinical histories, investigation results and findings on physical examination reasonably consistent and similar to his findings. He confirmed the plaintiff has mild uncomplicated low back pain without evidence of a serious spinal injury but with an emotional component affecting her physical restrictions.
150 Dr Brown believed the plaintiff has capacity to work on suitable duties on full time hours. He did not alter any of his previous report.
151 Mr Simm, orthopaedic surgeon, examined the plaintiff initially in July 2010.
152 At that stage, Mr Simm noted the plaintiff presented with features of a Chronic Spinal Pain Syndrome, limping markedly on her right leg and holding her back with her hand. She displayed overt pain behaviour with facial grimacing and verbal complaints of pain. There was a marked restriction of thoracolumbar movement in all directions, with movements being carried out with the plaintiff holding her back with her right hand. There were no clinical signs of radiculopathy or muscle wasting.
153 Mr Simm had available all the MRI scans.
154 Mr Simm diagnosed a Chronic Spinal Pain Syndrome. He was not able to establish the diagnosis of any organic condition of the lower back which could explain the plaintiff’s severe pain and right lower limb symptoms. He thought she had an entrenched pattern of symptoms which would prove resistant to treatment but thought it would be reasonable to have an intensive pain management course under Dr Thomas.
155 In Mr Simm’s view, the MRI scans had failed to demonstrate significant lumbar pathology. He thought the injury had triggered a somewhat overwhelming Chronic Spinal Pain Syndrome which was the cause of any incapacity for work, rather than any identifiable physical pathology.
156 In a supplementary report, Mr Simm commented, although he was unable to establish the presence of organic pathology, the plaintiff’s clinical presentation was such it was not possible to completely exclude the presence of an underlying physical condition of the back and for that reason, it was his advice that she did seem to be incapacitated for her pre-injury employment.
157 The plaintiff was re-examined by Mr Simm in late November 2012.
158 Mr Simm then noted the plaintiff had improved since the last examination, having obtained casual employment.
159 On examination, the plaintiff presented as a pleasant and co-operative person, displaying a normal affect and seemed cheerful. The previously noted features of a Chronic Spinal Pain Syndrome were now minimal.
160 The plaintiff’s gait was normal. She was able to stand on each leg. There was a moderate restriction of movement in all directions associated with some facial grimacing and verbal complaints of pain. She was tender to palpation in the lower back but there was no verbal withdrawal response. Neurological examination was normal.
161 On that occasion, the physical examination indicated mild to moderate residual lumbar dysfunction with some mild features of chronic pain which included some overt pain behaviour when undertaking thoracolumbar movement and a mildly positive Waddell’s vertex compression sign.
162 Mr Simm diagnosed mild to moderate residual lumbar dysfunction with no specific diagnosis having been established. He thought the plaintiff presented with features of non-specific mechanical low back pain with some mild residual signs of a resolving Chronic Spinal Pain Syndrome. He noted the work initiation and that there had been a substantial improvement and change in the plaintiff’s clinical presentation, now working full time albeit in the presence of chronic fluctuating lumbar pain.
163 Mr Simm thought the prognosis was for long-term symptoms. He noted the level of pain and the plaintiff’s functional capacity had both improved since last seen and he would expect her condition to persist largely as described. He noted treatment was now minimal and thought the plaintiff should continue with the current symptomatic regime.
164 Mr Simm noted the plaintiff has the capacity to work as a childcare worker and was currently working full time in this occupation.
165 Having read Dr Thomas’ report and Dr Horsley’s 2013 reports, Mr Simm noted they were largely in accord with the report he had provided and he did not alter his opinion, noting that Dr Thomas had mentioned in his report support for the diagnosis of non-specific low back pain with an emotional component and Dr Horsley thought there was a capacity for work.
166 Professor Mendelson, psychiatrist, examined the plaintiff in March 2013. In his opinion, the plaintiff did not have any diagnosable mental disorder and there was no history of a clinically significant depressive illness or any specific type of an anxiety disorder.
Overview
167 It is not disputed the plaintiff suffered a compensable injury to her lumbar spine in the incident on the said date.
168 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[17] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[17][2006] VSCA 171
169 No such explanation has been forthcoming in the present case.
170 The plaintiff’s lumbar condition has been described with a range of diagnoses including mechanical back injury, non-specific lower back pain, chronic uncomplicated lower back pain, symptomatic spondylosis/aggravation of previously asymptomatic degenerative changes and mild to moderate residual lumbar dysfunction with some mild features of chronic pain.
171 Two MRI scans of the plaintiff’s cervical spine in early 2008 showed significant findings involving L5-S1 and L4-L5; however, it is not disputed there was improvement shown on the October 2008 MRI, with there being no protrusion or compromise present at those levels.
172 Counsel for the defendant submitted however, the plaintiff’s present lumbar condition is not substantially organically based[18] and that it was not possible to disentangle the physical consequences from those which were psychologically based. In those circumstances, it was submitted the test in Meadows v Lichmore Pty Ltd[19] could not be satisfied.
[18]T34, T43
[19][2013] VSCA 201 at paragraphs [21] – [22]
173 In that case, Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
174 In this regard, reliance was placed on the opinions of Mr Simm and Dr Brown and comments made by Dr Thomas in early days when he was treating the plaintiff.
175 Whilst at times there has been an emotional component to the plaintiff’s presentation, I am satisfied that her current presentation has a substantial organic basis.
176 The plaintiff’s treating general practitioner, Dr Lumbes, from the time of injury through until late 2011, and more recently when he examined the plaintiff in November last year, did not believe there was any non-organic component to her presentation. This view was shared by treating orthopaedic surgeon, Mr Williamson, in 2008.
177 Whilst Dr Thomas thought in 2010 the plaintiff’s presentation was mainly non-organic, his view has changed on more recent examinations in 2013 and 2014. As of October 2014, he considered her impairment was an organic one with an emotional response in proportion to the underlying physical problem and not the driver of her pain per se.
178 Apportionments in similar terms were made by Mr Khan in 2011 of 75 per cent organic and 25 per cent non-organic; Dr Blombery in September 2013 of 80 per cent organic and 20 per cent non-organic, as did Dr Stockman in October 2014.
179 Dr Slesenger, in September 2014, simply commented that the plaintiff’s lumbar impairment was organic in nature, and Dr Horsley noted much less fear avoidance on re-examination in May 2013 than earlier noted on examination and diagnosed an injury probably discogenic in nature.
180 Whilst Dr Brown found significant non-organic features when he first examined the plaintiff, following his most recent examination in March 2013, he diagnosed mild chronic low back pain, noting the plaintiff presented with less inconsistencies than noted on previous examination. Mr Simm noted a similar improvement when he last saw the plaintiff in November 2012 (not having re-examined the plaintiff since that time) and then thought the previously noted features of a Chronic Spinal Pain Syndrome were minimal.
181 I accept that the plaintiff has a good control of her emotional state. Dr Mendelsohn did not consider her to be suffering from any psychiatric condition when he examined her in March 2013.
182 In my view, the slight improvement shown by the plaintiff on recent examinations and her preparedness to continue working despite ongoing pain contra indicate any ongoing non-organic features in her presentation.
183 Overall, I accept that there is sufficient evidence of an ongoing organic injury that meets the very considerable tests, thus the non-organic factors need not be separately assessed.
Credit
184 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[20]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[20](2010) 31 VR 1 at paragraph [12]
185 I found the plaintiff to be a credible witness who gave her evidence openly.
186 Whilst there was 90 hours of surveillance, there was only half an hour film, which the defendant chose not to show.[21]
[21] 15 hours surveillance in October-November 2009 – 1 minute of film; three days in March of 15 hours with 1.5 minutes of film and in April, May, August and September 2012, 60 hours of surveillance with 25 minutes of film
187 No medical examiner was of the view that the plaintiff was deliberately embellishing or exaggerating her symptoms on examination, with Dr Blombery describing the plaintiff as genuine in her presentation and Mr Simm noting the plaintiff presented as a pleasant and co-operative person.
188 The plaintiff’s daughter, Silvana, provided three affidavits confirming the plaintiff’s evidence as to her level of pain and disability. Silvana’s evidence was not challenged.
189 Whilst counsel for the defendant did not make a submission in relation to the plaintiff’s credit, it was submitted the plaintiff does exaggerate her level of disability. It was submitted there was a discrepancy between her claimed level of disability at home and her ability to work in her current childcare role.[22]
[22]T44
190 However, I do not accept this was the case. I found the plaintiff to be a motivated woman who continued to work and do her best despite ongoing pain. In any event, the plaintiff was not challenged in cross-examination as to her reported level of pain and restriction.[23]
[23]T46
Pain
191 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[24]
“The evidentiary basis of the pain assessment will ordinarily comprise inter alia, what the plaintiff says about the pain both in court and to doctors”.
[24](Supra) at paragraph [11]
192 I accept that since the incident date, the plaintiff has suffered ongoing lumbar pain and right leg pain of varying intensity, at times quite severe.
Treatment
193 The plaintiff was under the care of her general practitioner until the end of 2011 when he advised that no further treatment could be provided – a view shared by Dr Thomas and other medical practitioners after the completion of the Dorset rehabilitation program.
194 I accept that after she ceased taking prescription medication due to its side effects, there was little that could be offered to the plaintiff by her general practitioner.
195 The plaintiff had physiotherapy until 2010, when she was advised by her treater, Mr Rose, that she would obtain more benefit from a pain management program than ongoing physiotherapy.
196 The plaintiff has been referred to a number of orthopaedic surgeons who have advised conservative treatment.
197 The plaintiff underwent the pain management program at the Dorset Rehabilitation Centre with limited benefit. Although there was some improvement in her coping strategies, her pain levels were not reduced.
198 While the plaintiff has not taken prescription medication for some time, in earlier years post incident, she did so for a while to a significant extent; however, that medication caused side effects so she now just takes Nurofen and uses Voltaren Gel.
199 In Kelso v Tatiara Meat Company Pty Ltd,[25] Dodds-Streeton JA noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[25][2007] VSCA 267 at paragraph [199]
200 Whilst the plaintiff is not prescribed specific sleep medication, she has had continuing difficulty sleeping since the incident due to back and leg pain.
201 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[26] at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[26]Supra
202 As a result of her back pain, the plaintiff has had ongoing difficulties with intimate relations with her husband since the incident.
203 While there is not a claim for loss of earning capacity, the plaintiff’s capacity to do her pre jury work as a childcare worker has been affected by her back injury.
204 There was the initial lengthy period off work for some years with two very short attempts at returning to work which were unsuccessful.
205 In July 2011, the plaintiff returned to childcare work but was only able to cope with full-time work for a very short time because of back pain and now works 24.5 hours a week with supportive, sympathetic employer.
206 At times, the plaintiff needs to take a day off work, perhaps not as much as once a month, when she is just not able to get up and has to rest because of her level of pain.
207 The consensus of medical opinion is that the plaintiff is unfit for work involving lifting, bending and prolonged postures.
208 The plaintiff’s physical limitations also impact on a range of her other activities.[27]
[27]T86
209 The plaintiff’s back pain interferes with her domestic life, as her daughter confirmed. The plaintiff requires assistance from her children in most household tasks, and the heavier duties are carried out by her husband. The plaintiff is capable of doing only light cooking whereas prior to the incident, she undertook all cooking duties for the family.
210 There was no real challenge to the plaintiff’s evidence in this regard.
211 Further, a number of medical practitioners such as the plaintiff’s treating general practitioner, Dr Thomas, Dr Blombery and Dr Horsley, support the plaintiff’s evidence as to her difficulties with daily activities.
212 The plaintiff’s only hobby pre-injury was walking. Due to her back condition, she is now able to only walk for about 15 to 20 minutes before having to stop because of lower back and leg pain. Her ability to enjoy activities with her children is also limited.
213 As the plaintiff’s pain and restriction has continued for nearly seven years without any significant sustained improvement, I am satisfied her impairment is permanent.
214 Taking into account all the evidence, I am satisfied the plaintiff has a “serious injury” in relation to her lumbar spine. Accordingly, I am not required to consider the application in the alternative pursuant to clause (c)
215 Therefore, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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