Hipworth v VWA
[2024] VCC 2054
•19 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-01505
| Rosemary Constance Hipworth | Plaintiff |
| v | |
| Victorian Workcover Authority | Defendant |
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JUDGE: | CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2024 | |
DATE OF JUDGMENT: | 19 December 2024 | |
CASE MAY BE CITED AS: | Hipworth v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2054 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine injury – pain and suffering – pecuniary loss –– surveillance footage – inconsistency in presentation in Court and to doctors with presentation on surveillance footage – credibility of plaintiff - reliability of evidence – impact on medical opinion of unreliable evidence – whether objective evidence of consequences for plaintiff can overcome unreliable evidence - whether plaintiff has established no work capacity given discrepancy in presentation on surveillance footage – whether work capacity can be assessed where evidence is unreliable
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:Sejranovic v Berkeley [2009] VSCA 108
Transport Accident Commission v Zepic [2013] VSCA 232
Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199
Judgment: The plaintiff is granted leave to bring common law proceedings for pain and suffering damages. The application for leave to pursue a claim for pecuniary loss damages is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor with Ms C Shambrook | Maurice Blackburn |
| For the Defendant | Ms S Manova | TG Legal and Technology |
HER HONOUR:
1Ms Hipworth seeks leave to bring a claim for common law damages for pain and suffering and pecuniary loss pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“The Act”).
2She says she suffered a back injury during the course of her employment at the Nepean School in March 2015.
3At the hearing of this application, counsel informed the Court that, pursuant to subparagraph (a) of the definition of serious injury at section 325 of the Act, Ms Hipworth relied on impairment to the spine to establish a permanent serious impairment or loss of a body function. She no longer pursued a claim under subparagraph (c), for a permanent severe mental or permanent severe behavioural disturbance or disorder.
4The law is not in dispute. Ms Hipworth must establish that she has a permanent impairment, or loss of a body function, the consequences of which, when judged by comparison with other cases in the range of possible impairments, or losses of body functions, can be fairly described as at least very considerable and certainly more than significant or marked.
5To pursue a claim for pecuniary loss she must establish that she has a loss of earning capacity of 40% or more when comparing the gross income from personal exertion she is currently capable of earning, with the gross income she was capable of earning from personal exertion prior to the claimed injury.
Decision
6For the reasons that follow, Ms Hipworth is granted leave to pursue a claim for common law damages for pain and suffering. Her application for leave to pursue a claim for pecuniary loss damages is dismissed.
Background
7Ms Hipworth was born in 1975. She went to school until year 11 and then completed a Certificate 3 in aged care and community services.
8From 2003 to 2005 she worked as a care coordinator and personal care assistant at Domain Gardens. In 2006, she commenced employment with the Nepean School, a school that caters for children with disabilities, as a classroom assistant and education support worker.
9Her duties involved transitioning students in and out of wheelchairs and commodes and getting students of varying body masses on and off the toilet. She said she first experienced back pain in August 2009 whilst lifting a student out of a wheelchair.
10In March 2010 she commenced physiotherapy and consulted Dr Warren Boling, Neurosurgeon. Dr Boling noted the following:
“she describes being hit from behind by a wheelchair as well as an injury while lifting an individual out of the wheelchair….
severe and debilitating back pain that radiates into the left leg..
imaging does not reveal a clear nerve root compression. She does have degenerative disc disease that may well be etiology for her back pain”.[1]
[1] Plaintiff’s Court Book (“PCB”) 27
11She had two epidural injunctions to the lumbar spine which gave her relief for about two months and she returned to work. In September 2010 she returned to Dr Boling who said her pain was typical for radiculopathy and nerve root compression but there was no convincing radiology to establish such a diagnosis.[2]
[2] PCB 28
12She says in her affidavit that she was put on light duties in mid-2010 because of pain.
13In November 2010 she saw Mr Rondhir Jithoo, Neurosurgeon, who recommended left sided L4/5 nerve sheath injection which she underwent on 24 November 2010. Mr Jithoo said MRI confirmed his suspicion of left-sided L4/5 lateral recess stenosis.[3]
[3] PCB 29
14On 6 September 2011 she saw Professor Peter Teddy, Neurosurgeon, who noted that she had difficulties mopping the floor, getting out of bed and showering. She was on Tramadol and started taking Panadeine Forte.[4]
[4] PCB 31
15MRI and CT scans from September 2011 showed degenerative changes maximal at L4/5 with lesser changes at L3/4 and L5/S1 and some narrowing of the nerve root canal on the left at the L4/5 level.[5] She was referred to Dr Victor Wilk, Pain Management Physician and had injections to the lower back and calf.
[5] PCB 31
16She says her back pain deteriorated in mid-2011 although she was still working full work duties. She says she had pain on and off over the next three years.
17In 2014 her work duties became significantly heavier when she was moved to full time toileting duties. She says this heavier work caused her back pain to worsen. She says her back pain deteriorated by February 2015 to such an extent that she was struggling to walk.
18On or around 4 March 2015, she lifted a patient from a commode to a wheelchair and felt an immediate flare-up of back pain. She went off work on that day and has been unable to return since. It is this aggravation of her underlying degenerative spine condition that is the basis for her application.
19The defendant accepts that Ms Hipworth suffered an aggravation or exacerbation of a pre-existing spinal degenerative disc disease in the course of her employment in March 2015.
20However, the defendant submits there is an absence of objective evidence of spinal injury to explain the claimed severe and permanent impairment consequences of Ms Hipworth’s injury.
21The defendant squarely attacks Ms Hipworth’s credibility and says if I accept that her evidence is unreliable, as it submits, then the medical evidence in support of her application is also unreliable.
22The defendant also says that, given recent findings that Ms Hipworth’s condition has improved and is capable of further improvement, I cannot be satisfied that her condition is permanent.
Issues
23The issues in this case are:
(a) Whether the plaintiff’s evidence is reliable;
(b) Whether I can be satisfied that the ongoing pain and suffering consequences of her aggravation injury meet the test; and
(c) Whether Ms Hipworth has sustained pecuniary loss consequences that meet the test.
Medical treatment from 2015 onwards
24On 19 March 2015 Ms Hipworth attended the emergency department at Peninsula Health. The discharge summary noted she had had a “twisting injury when lifting 1 week ago, work with increased pain in lower back, radiating down left leg”.[6]
[6] PCB 152
25CT scan of lumbar spine showed:
“Small annular disc bulge at L3-4, mild endplate degenerative changes and mild facet arthropathy. At L4-5, the changes are similar to those at L3-4. At L5-S1 there is a very shallow disc bulge. No neural compression”.[7]
[7] PCB 111
26MRI showed:
“Loss of lumbar lordosis. Multi-level degenerative changes.. Probable small annular tear at the right posterolateral aspect of the L3/4 intervertebral disc”.[8]
[8] PCB 112
27In April 2015, she returned to the emergency department for low back and bilateral hip pain. She had Ketamine infusion, epidural and anaesthesia injection and was recommended to undergo outpatient rehabilitation.[9]
[9] PCB 32-34
28On 16 September 2015 Ms Hipworth attended Dr Helen Hewitt at the chronic pain clinic. She said her pain was still severe and limiting all functional activity such that she required assistance with personal activities of daily living. Dr Hewitt reported a “young woman barely able to walk in extremis who was unable to maintain any position for longer than a few minutes.”[10] She was started on Tapentadol. Dr Hewitt discussed the potential of a spinal cord stimulator if there was no improvement.
[10] PCB 35
29In October 2015 she had epidural injection. She consulted Dr Parsons, General Practitioner, and was prescribed Lyrica, OxyCodone, Valium and Palexia.
30In May 2017 she saw Dr Heide Feberwee, Pain Medicine Consultant. Dr Feberwee diagnosed chronic low back pain with indication of bilateral sacroiliac joint dysfunction, bilateral superior cluneal nerve entrapment syndrome and bilateral L4/5, L5/S1 facet joint arthropathy.[11] She prescribed Valdoxan for sleep and mood and Norflex for pain. She also recommended a pain management program.
[11] PCB 41
31In July 2017 Ms Hipworth consulted Dr Laurence McEntee who confirmed disc degeneration at L3/4, L4/5 and L5/S1.[12] He noted that “nothing has really helped her symptoms” and said her forward flexion and extension were “very, very limited due to pain and stiffness.”[13]
[12] PCB 44
[13] PCB 46
32MRI on 2 July 2017 showed prominent disc degeneration in the lower three discs.
33In November 2017 she underwent discography which confirmed three internal discs were disrupted with “reproduction of her back pain at all levels”.[14] Dr McEntee recommended a three level lumbar disc replacement.
[14] PCB 45
34In October 2018, funding for the disc replacement surgery was refused by WorkCover. The matter was referred to the Medical Panel in January 2019 who diagnosed chronic musculoskeletal lower back pain on a background of multi-level lumbosacral spine degeneration, with referred symptoms to the legs but no current evidence of radiculopathy.[15] The Panel found that neither disc replacement surgery nor physiotherapy were appropriate.
[15] PCB 122
35In February 2020 Ms Hipworth consulted Dr Ventzi Bonev, Neurologist, who noted that neurophysiological findings were normal and suspected Ms Hipworth’s symptoms were related to her “known chronic lumbar spondyloradiculopathy.”[16]
[16] PCB 61
36She returned to Dr McEntee in October 2020 who again recommended a three-level lumbar disc replacement.[17] This was again refused by WorkCover and again denied by the Medical Panel.
[17] PCB 59
37In March 2020 she was referred to the pain management program at Gold Coast Hospital and started using a wheelie walker to assist her when walking. She continues to use this device.
38She returned to the pain management program in March 2024 and was recorded as having “significant improvements in her ability to cope with her pain and sitting endurance” as well as “increased independence with her activities of daily living”.[18]
[18] PCB 63
Consequences
39Ms Hipworth describes pain that radiates from her low back down into her legs. She says the pain in her left leg is worse than the right. She says the pain in her back and legs is a constant pain of at least 7 out of 10 on a daily basis.[19] She says the pain in her legs is so severe that it can cause them to collapse, and this renders her unstable when she walks, hence she uses a wheelie walker when she has to walk outside of the home.
[19] Transcript (“T”) 34 Line (“L”)12-24
40She said in her affidavit that her pain has progressively worsened since 2015 however in cross-examination she did not agree with this proposition.[20] She said her back condition deteriorated in 2019, but was unable to identify any particular catalyst for that deterioration.
[20] T14 L17-18
41She agreed that, as at October of 2023, she was staying in bed for periods during the day due to flareups.[21] She said there are days when her pain is 10 out of 10 and she is unable to get out of bed other than to go to the toilet. When she is home she says she needs to spend most of the time lying down due to her back pain.[22]
[21] T15
[22] T19
42She is reliant on her partner or his family for cooking, cleaning, dressing and showering because her pain prevents her from bending forward. If she doesn’t have assistance she cannot cook for herself and she will not shower.[23] She said she needs help washing certain areas, getting dried and dressed and setting up a shower chair.
[23] T15-17
43She tends to stay home unless she goes to the doctor, chemist or to get essentials from the shop. She said her partner mostly assists her with shopping because she needs help to reach things from the shelf, load the conveyer belt and pack the shopping into the car. She said she could manage a light shop for a few items by herself at an IGA where she could park very close to the door and would not have to walk far.
44She has used a wheelie walker since early 2020 and continues to rely on it. In oral evidence she had difficulty identifying the circumstances when she uses the walker. She was asked “what approximate distance would be involved for you when you describe needing the walker for sustained walking”. She said “I would not go by distance”.[24] When asked if she would “go by time” she agreed she would but said how long she was able to walk for would “depend on what I was doing”.[25] When pressed to describe the circumstances where she would need the walker in her day to day activities she said “if I was going to be gone for a long period of time” and gave the example of going to an appointment.[26] Eventually she said she “can walk mainly 15 minutes probably without the walker but it is not safe to do so at some times” because of the pain.[27] When asked what rendered walking unsafe she said it was unsafe if she had a flareup and was unstable and unsteady on her feet because the back pain will cause her legs to shake. She said although she could, on occasion, walk 15 minutes without the walker, she would not do so by herself. She said she very rarely goes out on her own and when she does so the “walker is always available”.[28] She said the physiotherapists she has seen have asked her to do “ongoing exercise” so this might involve taking her dog for a walk “up and down the street” for 15 minutes. She would use a walker depending on her back pain.
[24] T20
[25] T21
[26] T20
[27] T21
[28] T22
45She explained that the wheelie walker provided her with stability and assisted with the pain because when the back pain “does flare up really bad I literally cannot move” so she can sit on the walker and wait until it subsides.[29]
[29] T22
46When it was put to her that her rehabilitation specialist had noted she needs the walker for anything more than 10 metres she said “I don’t know where he got that from, I wouldn’t even know how far 10 metres is”.[30] In her affidavit she said she needed to use the walker when she was “walking at a distance”.[31]
[30] T24-25
[31] PCB 21
47She agreed that she would need the walker to walk for more than 10 metres if she was in severe pain. When asked whether “that’s not an everyday proposition, it’s only when you’re in severe pain” she replied “well I don’t go out every day”.[32] On further questioning she said that on most days she would not be able to walk 15 minutes without a wheelie walker.
[32] T24
48She says she uses the walls and benches to support herself to walk at home and that it would be rare for her to walk around without holding onto things because her pain is so severe. She says the pain radiates “right down through” her leg and this causes her to be unstable.[33] She says when she is in the house “I will use whatever to help because it helps lessen” the pain, and that she needs to use “stuff inside the house” to get around “nearly all the time”.[34]
[33] T26
[34] T27
49She agreed that she had undergone a “timed up and go” test at the start and end of a physiotherapy program. The time to complete the test which involved standing up from an armchair, walking a few metres and then sitting back down, had improved from 26 seconds to 18 seconds by the end of the program. She said the test was done using a wheelie walker and agreed that, even with improvement to 18 seconds, she was slow in performing this test and that the slow speed of her movements was caused by pain.
50She agreed that, in 2017 she was unable to bend forward at all when asked to do so on examination by Dr Bruce Low and that she had presented to a number of doctors over the years with minimal forward flexion.[35] She agreed that in 2022 when she attended the Medical Panel she was unable to bend forward because of pain.[36]
[35] Plaintiff’s Supplementary Court Book 8
[36] T30
51She agreed that in August of 2024 when she presented to Dr Robyn Horsley for medico-legal assessment, her “forward flexion” was “barely 10 degrees”.[37]
[37] T31
Credit Issues
Presentation in Court
52Ms Hipworth walked into the witness box without the aid of a wheelie walker but with obvious difficulty. She moved slowly, with a noticeable altered gait.
53When asked whether, when she walked to the witness box in Court, she walked at a slow pace she said “it depends on what your version of slow is”.[38] She agreed she could not walk as fast as a healthy person and said it was not her limp, but the pain, that prevented her from moving more quickly.
[38] T28
54She agreed that in Court she was gripping the edge of the chair to take pressure off her spine. She said her “usual” degree of pain when she is not having a day when she cannot get out of bed, would be about 7 out of 10, that she would have at least 7 out of 10 pain on a daily basis and would never fall so far below 7 as to enable her to move confidently and normally “like a healthy person”.[39]
[39] T29
55She agreed that at times in the witness box she was holding her lower back with her right arm and she said that was because of pain. She had her hand on the left side of the witness box to take the weight off her spine.[40]
[40] T31
56Ms Hipworth was asked to demonstrate forward flexion in Court. Counsel agreed that she was able to show a “very very slight flexion forward that was barely 10 degrees”.[41] It is fair to say Ms Hipworth expressed great discomfort when demonstrating this movement and made a noise of pain as she attempted to bend forward. Much of the forward movement, which was in any event minimal, was, to my observation, simply Ms Hipworth moving her head forward, without actually moving her spine.
[41] T32
57She said that the minimal movement in her spine was because her spine is very stiff. If she tries to move her spine beyond a particular point it becomes so painful that she is not able to move any further. She said that her level of pain at the time she was in Court was at 7 out of 10, and that was the level of her daily pain when she is not “stuck in bed” with 10 out of 10 pain, that stops her from moving her spine.
58She said the degree of stiffness in her spine demonstrated in Court by her attempt at forward flexion, her movements within the Court and her manner of sitting in the witness box, was caused by the 7 out of 10 pain which was constant.
59She said the severity of her limp depended on the degree of pain, but that her leg pain was less severe than her back pain. She said the limp is caused by a cramp in her calf caused by back pain. She said she occasionally had a better gait and this was something that she was working on, but she could not ever walk “like a normal person”.
60She said the limp she presented with in Court was about typical and was not a pronounced limp for her.
Surveillance Footage
61The defendant relies on surveillance footage of 29 and 30 January 2024, 26 and 28 September 2024, 3 August 2024 and 19 July 2024. The total surveillance period was 55 hours, of which the defendant obtained approximately 16 minutes of footage.
62On 29 January 2024, the footage shows Ms Hipworth walking into an IGA store at around 7:46:50 and returning carrying two drinks and a packet of mints at 7:49:11. Her gait appears normal and she is walking at a normal pace. Upon return from the IGA, she steps down from the curb into the carpark, places the drinks on the top of her sedan car, opens the car door, picks up the drinks and gets into the driver’s seat with no observable difficulty. This sequence takes approximately 4 minutes.
63At 8:14:20 on the same day she is seen arriving at an undercover carpark and standing at the right side passenger door of her car. She puts on a T-shirt over her head, reaching her arms up in a normal fashion without any obvious restriction in movement. At 8:14:49, she retrieves something from the back car seat. She is shown bending down to almost a 90 degree angle such that the top of her head is shown through the car window.
64At 08:15:01, she bends down to lift her bag from the ground and carries it around to the left side passenger car door. When walking from one side of the car to the other she has an observable limp.
65At 08:15:16 she opens the left side rear passenger car door and retrieves the wheelie walker from the back seat. Without significant forward flexion, she lifts the wheelie walker out from the seat, closes the car door, opens the wheelie walker, places her bag on the handle and locks her car.
66She then heads away from the car using the wheelier walker. She is shown leaning on the wheelie walker, with a more far more pronounced limp and at a significantly slower pace when compared to the footage of 07:46 that morning.
67At 09:50:16 she returns to her car and goes to the right passenger door. She opens the door and places her bag in the front seat. She appears to move something from the back seat, bending to almost 90 degrees at the seat level. She then bends down to carry the wheelie walker to the door and lifts it onto the back seat. She gets into the driver’s seat in an ordinary way and reverses out of the park, looking over her left shoulder without any observable difficulty.
68On 30 January 2024, 08:29:04, footage shows Ms Hipworth walking from her car into the IGA store. The surveillance view is obstructed by other cars such that I cannot observe her walking pace or gait. She returns to the car at 08:31:00, walking freely with no visible limp and gets into her driver’s seat in the usual way, without any obvious difficulty.
69The footage from 19 July 2024 shows Ms Hipworth and her partner entering Bunnings at 09:04:37. She is walking with a slight limp and rubbing her lower back as she walks. She is shown throughout Bunnings including at the checkout and returning to the car walking at normal pace with a slight limp while carrying bubble wrap. She gets into the passenger side door without any obvious difficulty.
70At 09:17:18 Ms Hipworth is shown walking into the IGA store with her partner and exiting carrying some small items in her hands. Her partner is not carrying anything.
71The footage of 3 August 2024 shows Ms Hipworth standing at a petrol station filling her car from around 9:59:11 until 9:59:45. She walks into the petrol station to pay at normal pace with a slight limp. At 10:06:46 she exits an IGA store with a bag and walks into a Cignall store. She is walking at normal pace with a slight limp. At 10:07:01 she walks back to her car at normal pace and returns home at 10:11:06. She gets out of her car and walks toward the door at normal pace.
72On 26 September 2024 around 09:30:39, the footage shows Ms Hipworth walking to her car with her partner. She is seen carrying a bag which she places on the back seat. She then opens the passenger door and steps into the car. At around 10:46:33, Ms Hipworth and her partner enter a building, Ms Hipworth is using the wheelie walker. They return from the building at 11:38:29. Ms Hipworth appears to be walking slowly with a pronounced limp on the left side, pushing the wheelie walker. Her partner is walking alongside her carrying what appears to be a large white card. The couple continue to walk until out of view at around 11:52:40.
73At 13:03:47, the footage shows the car arriving back at a residence. At 13:04:08 Ms Hipworth opens the passenger car door and gets out of the car. She places a drink on top of the car. Her partner walks toward the door and then waits and watches whilst Ms Hipworth opens the passenger side door and reaches in the car, bending almost completely 90 degrees, to retrieve a bag and another item. She is in that position, leaning into the back seat of the car, for around 15 seconds. Her partner provides no assistance and attends to checking the bins whilst she is doing this. She then retrieves the can of drink from the car and heads toward the house, carrying her bag and other item in one hand and the drink in the other.
74The footage from 28 September 2024 shows Ms Hipworth walking toward her car at 09:36:02 carrying a drink and getting into the car. There is no obvious limp nor does she appear to have any observable difficulty with these movements. At 09:40:18 Ms Hipworth returns home. She opens the car door and gets out of the driver’s seat without obvious difficulty. She walks from the car slowly with a slight limp.
Submissions on credit
Defendant
75The defendant says Ms Hipworth was an entirely unreliable witness because of the stark difference between her evidence and presentation in Court, and the surveillance footage. Further, she was evasive in the witness box, hesitant to answer questions, and her answers were so vague that they provided little assistance to me in determining the consequences of her injury.
76The defendant says Ms Hipworth has presented to treaters as somebody who is heavily reliant on a four-wheel walker, has extremely limited forward flexion and is in constant severe pain. It is therefore unsurprising that her doctors have deemed her unfit for work.
77It says her evidence as to mobility, including her limp, ability to walk at normal pace and movement of the spine is completely inconsistent with her behaviour in the surveillance footage. In particular, the defendant points to:
(a) Her demonstration in the witness box of limited forward flexion compared with the footage which showed her forward flexion of about 90 degrees when getting items out of the car. In cross-examination Ms Hipworth denied bending from the waist to put the wheelie walker into the car and says she was “using her legs as well to go down”;[42]
(b) Her evidence that due to her inability to move her spine, her partner would typically accompany her to the shops to get things off the high shelves and low shelves;[43]
(c) Her presentation to treaters of having very limited or no movement in the lumbar spine which is at odds with instances on the surveillance where, in the defendants submission, she demonstrates considerable flexion of the spine when getting in and out of the car;
(d) Her evidence that she “uses the wheelie walker most times when I leave the house” when she is shown a number of times not using the wheelie walker;
(e) The footage which shows her walking around Bunnings, putting petrol in her car and going to IGA without any aid and at times, with little or no evident walking restrictions. The only times she is seen using the wheelie walker with a slow, antalgic gait is when she is attending medical appointments.
[42] T44
[43] T36, 37
78The defendant says these inconsistencies should cause me to doubt the true extent of the plaintiff’s disability.
79The defendant says there is no evidence of a consistent organic injury to explain the plaintiff’s severe disabling presentation and her application is heavily reliant on her subjective complaints of pain and her presentation on examination to treaters.
80However, if the medical opinions are based on exaggerated accounts of pain and her exaggerated presentation, they are not a reliable foundation upon which to base any assessment of Ms Hipworth’s consequences.[44]
[44]Sejranovic v Berkeley [2009] VSCA 108 at 145; Transport Accident Commission v Zepic [2013] VSCA 232
81The defendant says the surveillance footage supports an inference that Ms Hipworth displays an exaggerated presentation of her injury to doctors and in Court. I ought not accept that the difference between her presentation in Court and the surveillance footage can be accounted for by the effects of medication or Ms Hipworth experiencing “good days and bad days”, given her evidence that her presentation in court represented about a 7 out of 10 level of pain and that this was as good as she got.
82Although only 16 minutes of footage was obtained over a much longer period of surveillance, the footage provides a “snapshot” of the plaintiff’s activities over multiple days.
83The defendant says I also cannot be satisfied on the evidence that Ms Hipworth has a psychiatric injury that explains her presentation. Professor Doherty and Doctor Schultz said she presented with no signs of abnormal illness behaviour and there was insufficient evidence of pain disorder.[45]
[45] DCB 13, PCB 81
84It is not open to the Court to make a finding of a psychiatrically-based pain disorder in the absence of psychiatric evidence of such a diagnosis.[46]
[46] Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199 [66]-[67]
Plaintiff
85The plaintiff says that the surveillance footage is not an accurate reflection of the entirety of her patterns of behaviour and pain and that she admitted she could engage in activities such as shopping, driving and attending appointments.
86The plaintiff admits there is some level of inconsistency between her presentation in Court and to doctors and in the footage,
87The plaintiff says the difference in her presentation shows symptoms of abnormal illness behaviour, functional or psychological overlay and does not impact the reliability of her evidence of her symptoms and consequences. They are genuine psychological symptoms which require disentanglement.
88The plaintiff also says that some of the footage shows her clearly limping. Further, given the totality of the surveillance footage it is clear that there are days when she is not observed leaving the house, consistent with her evidence. She says there is clearly an organic injury as accepted by her treaters and the Medical Panels and that surgery was a possibility flagged by her treating surgeon. Her treaters and the experts are well attuned to identifying illness behaviour, and have not observed it in Ms Hipworth, or have only commented on its possible presence in the past two years. I ought to accept that, at least prior to that time, there was no illness behaviour and the cause of Ms Hipworth’s pain and restrictions was all organically based, even if there is some encroaching illness behaviour now.
89It is understandable that a plaintiff who is involved in the medico-legal system over an extended period might unconsciously adopt a more exaggerated presentation in order to ensure that medical experts, treaters and the Court, take her complaints seriously and understand the debilitating impact of her injury on her life. This is particularly understandable where there is a lack of clinical findings to support the level of pain she experiences and where the recommendations of her treating surgeon have not been supported by the Victorian Workcover Authority or Medical Panels.
90Any exaggeration in her presentation should be considered in this context, and ought not be seen as a matter of credit, or as an attempt by Ms Hipworth to mislead the Court.
Findings on reliability
91Ms Hipworth presented to her treaters with a severely limited range of movement in her spine causing a slow gait and limp, and complaining of very significant pain. This is consistent with her presentation in Court and her evidence. This is also consistent with part of the surveillance footage of 29 January 2024 when she begins to use her wheelie walker.
92It is not consistent with her presentation in the earlier part of the surveillance footage of 29 January 2024, nor consistent with the other surveillance footage shown.
93It is not unusual for a person with an injury, particularly an injury where the primary symptom is pain, to present differently according to the pain at different times. This is often described by plaintiffs as having “good days and bad days”.
94Ms Hipworth gave evidence that she also had variable, albeit constant, pain. She said it ranged from days where it was 10 out of 10 and she could not get out of bed, to 7 out of 10 when she was able to undertake limited activities, such as short walks with her dog, or small amounts of shopping.
95On her evidence, on her best days, she presents as she did in Court. That is, with an extremely limited range of forward flexion, a very slow gait and a stiff posture and an inability to either sit or stand for any extended period. That necessarily means that on her bad days, she is far worse than her presentation in Court. Indeed she said that on her bad days she cannot get out of bed or leave the house.
96When confronted with the surveillance footage in Court and questioned about her different presentation in that footage to her presentation in Court and to doctors, she was not able to give any satisfactory account of those differences.
97Ms Hipworth agreed that she was walking normally or quite briskly when attending the IGA. When asked if she thought she showed obvious signs of walking difficulties she said “I don’t know, hard to say.”[47] She agreed that the footage did not show someone walking slowly with a pronounced limp or with mobility difficulties.
[47] T40 L5
98She agreed that the way she was walking in the footage was very different to her Court room presentation. When asked why, she said “I would have literally been two minutes down the street so I hadn’t been sitting for a long time, so the pain in my leg worsens the longer I sit or stand”.[48]
[48] T41 L20
99This is not a satisfactory explanation given that on her evidence, her presentation in Court was about as good as she gets.
100It was put to her that she looked like a completely different person when comparing her moving freely around the IGA carpark with her arriving at her appointment 25 minutes later. She said “yes, because sitting and driving can be painful”.[49] When pressed as to what else would cause the change in appearance and limp she said “pain”. However the 25 minute drive does not explain why, when she got out of the carpark to attend her medical appointment, she moved freely, was able to bend down with no apparent difficulty, put on her tee-shirt, and lean into the car to extract her wheelie walker with relatively fluid movements. However, when she started using the wheelie walker, she immediately walked with a pronounced limp and very slow gait as she walked into her medical appointment. It is difficult to accept that such an extreme alteration in her gait from one minute to the next could be entirely unconscious.
[49] T43
101When asked how she bent down at the waist to retrieve items from the car she said she was in pain when doing so. She said her car is “not that high” and the wheelie walker was on the back seat, so she could lift this but would not be able to bend down to a bottom shelf of the supermarket.[50] Again this did not explain how she was able to bend forward approximately 90 degrees, well more than the 10 degrees the doctors recorded and the minimal movement demonstrated in Court.
[50] T45
102It was ultimately very difficult to get a clear sense from the plaintiff of her capacity to walk without a wheelie walker. She said “I hate using the walker, but yes, it is necessary at times”.[51] She was asked whether “on most days” she would be able to go further than 10 metres without her wheelie walker. She said “most days I wouldn’t be able to”.[52]
[51] T53
[52] T25
103I asked “And so if you were walking outside the home without your wheelie walker, what sort of distance might that be, like really just to the letterbox and back, or …“ she responded “yes”.[53] However it is clear from the surveillance footage that there are days when she can walk significantly more than to the letterbox and back without a wheelie walker, for example, she can walk around a large Bunnings store.
[53] T25
104I note here that she also caught the train from Frankston to Flagstaff to attend Court, and walked from Flagstaff Station to the Court building. She said her father dropped her off at the front entrance to the station and she could manage the walk from the station to the Court building with the assistance of her wheelie walker.
105To my observation, the manner in which she walked into Court, and into the witness box, would make walking from the car to the station platform, onto the strain, off the train, along the platform and up the escalators or lifts at Flagstaff station, across the large forecourt at the station, through the turnstiles, up the elevator or lift onto William Street, across little Lonsdale Street, and into the Court building through the Lonsdale Street entrance, a mammoth undertaking. Even with the use of the wheelie walker, it is difficult to accept that she could perform this task if she was in the degree of pain and suffering the movement restrictions she attested to.
106Ms Hipworth’s presentation in Court compared with the video footage was as stark a contrast as I have seen in video footage presented in Court. I simply could not reconcile the person in the footage with the person in the witness box. Although the plaintiff had said that she can drive, do some shopping and attend appointments, and counsel correctly submitted that the footage did not show her undertaking activities that she had said she could not do, it was the manner in which she undertook those activities that causes me to have very significant doubts about the reliability of her evidence.
107In particular, the pace at which she walked and moved, the manner in which she bent over and the fact that she bent into the back seat for quite a substantial period to retrieve items, in the presence of her partner, was entirely at odds with her presentation at Court. This was not a situation in which she had no choice but to put up with very significant pain in order to perform a necessary task. The fact that her partner got out of the car and attended to other things without concerning himself with the plaintiff raises an inference that he expected she could perform the task of getting out of the car and retrieving the items in the back seat without difficulty. In turn, this suggests that this is the sort of activity she can routinely undertake, contrary to her evidence and presentation to doctors.
108It was not just her presentation in Court that caused me to consider her evidence as unreliable. It was also the contrast between her evidence on affidavit and in Court and the surveillance.
109The cause of her physical restrictions is, she says, pain. It is pain that makes her legs shaky and causes her to lose balance, and to therefore need the wheelie walker. It is pain that restricts her forward flexion and makes walking, shopping, driving and other activities of daily living difficult or impossible. However, because of the stark discrepancy between her presentation and the surveillance footage, I cannot accept Ms Hipworth’s evidence about her pain, nor the consequent impairments.
110I am unable to conclude that Ms Hipworth has a psychiatric impairment that explains her differing presentations. I do not understand her submission to be that she has a pain disorder or pain syndrome, but rather that there is some unspecified component of her presentation that may be psychologically derived and which therefore ought not count against her in terms of credibility. In any event, a pain syndrome would not explain the discrepancy.
111The fact that numerous doctors over a number of years have not observed illness behaviour does not assist me with the assessment I have to make of the consequences for her as at the present time. It appears she has consistently presented to doctors in more or less the same degree of extreme pain and physical impairment for many years, a presentation which is inconsistent with how she presents on surveillance footage in 2024.
112Even if I accept counsel’s submission that any unreliability in Ms Hipworth’s evidence is not a matter that goes to her credit, but arises from an understandable reaction to having to prove time and again that she has pain and impairment to doctors, medical panels and Courts which causes her to unconsciously exaggerate those symptoms, I am still unable to assess the actual consequences she experiences, or to determine her actual level of pain. Whatever her motivation for presenting in the way she presented, the evidence remains unreliable.
113This does not mean that I do not accept that Ms Hipworth has an impairment, or is in pain. However Ms Hipworth must satisfy me of the extent of that pain and impairment.
Is there other evidence upon which I can rely to determine the consequences for Ms Hipworth of her injury?
114I turn to consider whether there is other evidence upon which I can rely to consider whether she meets the test for serious injury.
115Prior to her 2015 injury, CT scan of the lumbar spine in 2009 showed:
(a) Moderate posterior disc bulging at the L3-4 and L4-5 disc spaces.
(b) Disc space reduction and mild posterior osteophyte formation and mild posterior disc bulging at the lumbrosacral junction.
(c) Degenerative change shown at the L5-S1 facet joints bilaterally.[54]
[54] PCB 102
116MRI of her lumbar spine in 2009 showed:
(a) Three level (L3/4 to L5/S1) disc degeneration with generalised disc bulge resulting in borderline central canal stenosis at L3/4.
(b) No focal disc protrusion.
(c) Prominent degenerate endplate oedema demonstrated at L4/5.[55]
[55] PCB 103
117In 2010 CT Lumbar Myelogram suggested minor bulges at L3-4, L4-5 and L5-S1 with mild compression of the anterior theca at the L3-4 and L4-5 levels and minimal compression of the traversing nerve roots. There was also a small disc protrusion at L5-S1.[56]
[56] PCB 109
118MRI and CT scans from September 2011 showed degenerative changes, maximal at L4/5 with lesser changes at L3/4 and L5/S1 and some narrowing of the nerve root canal on the left at the L4/5 level.[57]
[57] PCB 31
119Following the injury, MRI on 5 March 2015 showed:
(a) Small annular disc bulge at L3-4, mild endplate degenerative changes and mild facet arthropathy.
(b) At L4-5, the changes are similar to those at L3-4.
(c) At L5-S1 there is a very shallow and small disc bulge.[58]
[58] PCB 111
120MRI showed:
(a) Loss of lumbar lordosis.
(b) Multilevel degenerative changes.
(c) Probable small annular tear at the right postcrolateral aspect of the L3/4 intervertebral disc.[59]
[59] PCB 112
121In October 2015, Professor Peter Teddy noted significant degenerative disc disease.[60]
[60] PCB 114-115
122MRI of the lumbar spine in July 2017 showed L5/S1 disc degeneration with small medial disc protrusion resulting in mild compression of the emerging left S1 nerve root. Prominent disc degeneration L4/L5 with marked endplate oedema.[61] Xray of lumbrosacral spine in 2017 showed mild disc degeneration and L5/S1 facet joint arthropathy.
[61] PCB 117
123Discography in November 2017 showed degenerative change in L3/4, L4/5 and L5/S1 discs.
124MRI in September 2020 showed lower lumbar intervertebral degenerative change most advanced at L4/5 and L5/S1. Mild multi-level facet joint change elsewhere. Bone scan of the same date showed active degenerative arthropathy affecting the L4/L5 disco vertebral joints.[62]
[62] PCB 119
125In 2017, Dr Parsons, Ms Hipworth’s treating General Practitioner noted that radiology confirms disc degeneration at L3-4, L4-5 and L5-S1.[63]
[63] PCB 44
126In May 2017 Dr Feberwee considered that Ms Hipworth had chronic lower back pain with indication of bilateral sacroiliac joint dysfunction, bilateral superior cluneal nerve entrapment syndrome and bilateral L4/5, L5/S1 facet joint arthropathy.[64]
[64] PCB 41
127In September 2018 Dr Parsons diagnosed L3-4, L4-5 and L5-S1 disc degeneration. He said:
“I have found her to be reliable, honest, and steadfast in trying to cope with chronic pain, difficulty walking, and the psychological stress of not being able to work and to live without resolution of her pain. I do believe that Rosemary has tried every possible avenue to resolve the situation and return to work, but has suffered from some setbacks in relation to diagnosis and treatment.”[65]
[65] PCB 42
128The opinion of the Medical Panel in both 2019 and in 2022 was that Ms Hipworth suffers from chronic musculoskeletal lower back pain on a background of multilevel lumbosacral spine disc degeneration, with referred symptoms to her legs but no current clinical evidence of radiculopathy.[66]
[66] PCB 122, DCB 87
129Dr Bruce Low diagnosed “highly symptomatic degenerative disc disease in the lower lumbar spine with significant workplace aggravation on 04.03.2015 which has not settled”.
130Doing the best I can in interpreting the various scans and medical reports, it is clear that Ms Hipworth has degenerative disease in her spine that pre-dated the 2015 injury. The radiology suggests some progression of the degenerative disease, but no evidence of any frank additional injury caused by the 2015 incident that would provide an explanation for the extreme increase in her level of pain and dysfunction.
131The medical opinion is perhaps best summed up by Dr Hazeem Akil who noted the following:
“Ms Hipworth came to my room utilising a wheelie walker with marked stooped and antalgic gait. She was alternating between sitting and standing while talking to me today in my room. She has severe restriction in the range of motion of her lumbar spine in all directions. I noted that she also has significant reluctance in moving her legs, particularly her hips, knees and ankles. The muscle tone appears to be normal bilaterally, however there is a significant reduction of the motor strength due to pain primarily. The deep tendon reflexes however were present and normal”.[67]
[67] PCB 72
132This description is typical of that reported by various doctors.
133Dr Akil goes through her medical records and diagnoses a “quite severe form of aggravation of lumbar spondylosis”. He opines that she has no work capacity because she is in “constant significant pain” and has a “high requirement for analgesia”.[68]
[68] PCB 73
134He opines that because of her very severe level of pain she cannot socialise, is unable to do any of the activities in her household like cooking or cleaning, and her ability to do any kind of self-care activities is reduced.
135However Dr Akil’s opinion, which is reflective of the other medical and medico-legal opinions, is based on a combination of a review of the medical records and Ms Hipworth’s clinical presentation and reports of pain.
136These opinions are of little assistance if the clinical presentation and reports of pain are not reliable.
Findings on pain and suffering consequences
137It appears that Ms Hipworth has sustained an aggravation of an underlying pre-existing injury which became more symptomatic after 2015 and which has generally not responded to treatment, albeit that she had some improvement after pain management and physiotherapy.
138As far as I can tell, the recommendation for surgery was based less on any particular finding on radiology and more on clinical findings related to Ms Hipworth’s presentation and complaints of pain. The surgical option appears to have been an attempt to provide pain relief, rather than to rectify an underlying condition such as radiculopathy.
139It is clear that her presentation to doctors mirrored her presentation in Court.
140The medical reports and radiology findings do not provide any alternative explanation as to the considerable difference between Ms Hipworth’s pre-2015 presentation and her post-2015 presentation, and the diagnoses reached by the medical professionals involved in Ms Hipworth’s care rely substantially on her complaints of pain and her presentation to doctors. Therefore, the reports and clinical findings do not overcome the obstacle created by my findings in relation to Ms Hipworth’s reliability.
141I note, however, that in some of the surveillance footage she is walking with a distinct limp or altered gait. Even when unaware of being observed, this satisfies me that there are occasions when Ms Hipworth has sufficient pain and restriction of movement in her spine that cause her to walk with a limp.
142Over the course of 55 hours of surveillance, the amount of footage obtained is relatively small. This supports Ms Hipworth’s claim that there are days when her pain is more severe and she does not leave the house. This tends to support her claim that, at least sometimes, her pain restricts her activities of daily living.
143I note as well that Ms Hipworth is a person who had a good work record prior to her injury. She started as a personal care assistant in 2003 and worked as a care coordinator for two years before moving to the Nepean School, working in educational support in 2006. She worked in the nursing department doing toileting transitions and then as a classroom assistant in an education support worker role for some years. She describes this as physically demanding work which required her to bend and lift repetitively. She worked with children who were difficult to manage because of behavioural issues and with varying body mass. She experienced back pain during her time at Nepean School and required time off work.
144Notwithstanding her pain, in 2010 she returned to work on light duties for a period before resuming her normal duties. She describes pain in her back radiating into her hips. She had various attendances on specialists, was referred for pain management and had injections into her lower back because of pain.
145In October 2011 there was a period where she was unable to work because of back pain. Nevertheless she was able to return to her pre-injury work and duties by the end of 2011.
146She says she continued to experience back pain “on and off” over the years. Her work changed and she took on a “floater” role in the classroom, assisting with physio and occupational therapy sessions which required many more transitions in and out of wheelchairs. At the end of 2014 she was moved to full time toilet transition work which she describes as more strenuous and physically demanding as she had to bend and lift children out of wheelchairs. She required Panadol and Nurofen to manage the pain in her back.
147Ms Hipworth worked for more than ten years in an occupation which she describes as a job she loved, which gave her “so much satisfaction” and which she felt was her “calling”. She returned to work even after multiple debilitating episodes of back pain and multiple medical interventions, including spinal injections. This supports a finding that Ms Hipworth responded to treatment and was able to return to work and progress through light duties to return to normal duties, after experiencing symptoms from her underlying degenerative spine disease. The fact that she has been unable to do so since her March 2015 injury supports a conclusion that there was an aggravation to her underlying injury which is more than significant or marked.
148I find that a person who has pain that causes her to walk with a limp, at least on occasion, would not be able to return to the sort of full time, physically demanding and strenuous work Ms Hipworth was performing before her injury in March 2015.
149She would not be able to perform her former role of a care coordinator and personal care assistant that would require her to lift children in and out of wheelchairs and on and off the toilet.
150I accept that Ms Hipworth is incapacitated from her former employment, that this was employment that she loved and derived great satisfaction from, and that this is a real loss to her.
151I find that pain that causes her to walk with a limp on occasion, and that renders her unfit for her former employment is a consequence for Ms Hipworth that is more than significant or marked and is at least very considerable.
152Accordingly, notwithstanding my findings about the reliability of Ms Hipworth’s evidence, I am satisfied that there is other evidence upon which I can be satisfied that she ought to be granted leave to bring proceedings for pain and suffering damages.
Has Ms Hipworth established that she has a pecuniary loss that meets the test?
153Ms Hipworth says she has no capacity for work, or if she does it is for no more than 1 hour per week. She relies on a report of Dr Parsons who said, in October 2024:
“Rosemary feels and I agree that she can only cope with one hour per day in a suitable form of employment because of her lack of capacity to stand or sit”.[69]
[69] PCB 52
154In his report of June 2024, Dr Hazem Akil said:
“She does not have any work capacity at all. She is in constant significant pain. She has a high requirement for analgesia. I do not believe that she is able to return to any kind of meaningful employment in the foreseeable future”.[70]
[70] PCB 73
155The defendant says the plaintiff has not proved that she has no work capacity and, because the conclusions of her doctors are based on her account of profound disability, the weight I attach to them must depend on my findings as to Ms Hipworth’s credibility.[71]
[71] T63
156In 2015 Dr Jones, Orthopaedic Surgeon said:
“I suspect she has no future in the type of employment she is currently undertaking, and may have to seek lighter non-contact employment, probably of a clerical nature”.[72]
[72] DCB 33
157In 2017, Dr Johnson, Brain and Spinal Neurosurgeon said:
“I would predict that a movement training programme of 10 weeks duration with consistent attendance would allow Rosemary to increase her functional capacity to the point that she would be able to then return to work”.[73]
[73] DCB 33
158Dr Johnson did not indicate the type of work she could expect to return to.
159The plaintiff says, despite not viewing the surveillance footage, her treating doctors have seen enough of her to know that she has a very restricted capacity to work. She says any rehabilitation has been aimed at making her day-to-day life more liveable and not at getting her back to work because she does not have work capacity.
160The plaintiff submits that even if she could work as much as 18 hours per week in a suitable light job she would still meet the 40% test when compared to her pre injury earnings. She says that, on the evidence of her doctors and the medico-legal experts, I could not find that she could work 18 hours a week.[74]
[74] T87
161The defendant relies on the 130 Week Vocational Assessment Report of February 2017 which identified that Ms Hipworth has the capacity for a range of occupations based on her training, education, interests and transferable skills. These include an education aide, medical receptionist, administration officer or sales assistant. These are roles that would not necessarily require retraining.[75]
[75] DCB 45
162The defendants say that the plaintiff has not discharged her onus of proving she cannot perform these roles. She has not taken any steps to obtain other suitable employment, or made any attempt to work even one or two hours per week.[76]
[76] T71
Findings on pecuniary loss
163I accept the defendant’s submission that my findings as to Ms Hipworth’s capacity for work depend on whether I accept the evidence of her consequences.
164Because of my findings as to the unreliability of her evidence, I do not accept as reliable the medico-legal and treating doctor assessments of her work capacity. Ms Hipworth’s presentation in Court, which is largely the same as her presentation to doctors, would inevitably result in a conclusion that she has no work capacity. However, her presentation in the surveillance footage would not necessarily result in the same conclusion.
165An occasional antalgic gait caused by pain, and restrictions on her capacity to lift weights, and to perform certain types of movements would not preclude Ms Hipworth from all employment. An inability to lift children in and out of wheelchairs and on and off the toilet would not preclude her from performing the jobs identified by the defendant.
166I cannot speculate as to what the medico-legal and treating doctor opinions as to her work capacity would be if she presented to those doctors as she presented in the surveillance footage.
167The burden of establishing her incapacity for work rests with the plaintiff. She has not discharged that burden because I am unable to ascertain the true nature of her consequences and the likely impact of those consequences on her work capacity.
168I am not satisfied that Ms Hipworth has no work capacity, and I am not satisfied that she has established that any work capacity she has meets the test.
169Accordingly Ms Hipworth’s application for leave to bring proceedings for pecuniary loss damages is dismissed.
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