Hobbs v R and P Boland Nominees Pty Ltd
[2011] VCC 1436
•14 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-02651
| GAYLENE JOY HOBBS | Plaintiff |
| v | |
| R & P BOLAND NOMINEES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 3, 4 and 5 October 2011 |
| DATE OF JUDGMENT: | 14 December 2011 |
| CASE MAY BE CITED AS: | Hobbs v R & P Boland Nominees Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1436 |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Damages
CATCHWORDS – Serious injury – low-back injury – paragraph (a) of definition of “serious
injury”– whether there is an “organic injury” – whether the injury is a “serious injury”
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v
Echuca Regional Health (2008) 20 VR 566; Advanced Wire & Cable Pty Ltd v Abdulle
[2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd; Sabo v George Weston Foods
[2009] VSCA 242; Acir v Frosster Pty Ltd [2009] VSC 454; Jayatilake v Toyota Motor Corp
Australia Limited [2008] VSCA 167.
JUDGMENT – Leave granted for pain and suffering only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with | Ryan Carlisle Thomas |
| Mr A E A MacNab | ||
| For the Defendant | Mr R K Meldrum QC with | Wisewould Mahony |
| Ms A M Magee | ||
| HIS HONOUR: |
1 By way of Originating Motion, Mrs Gaylene Joy Hobbs (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury to her lumbar spine involving referred right buttock pain (“the injury”) suffered on or about 19 March 2003 during the course of her employment with R & P Boland Nominees Pty Ltd (“the defendant”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The application was heard over three days and the plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1] See Annexure A
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[2]
[2] See S.134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act, which reads:
“(a) permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purpose of paragraph (a) is lumbar spine.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities,
that:
(a)
“the injury” suffered by her arose out of, or in the course of or due to the nature of her employment with the defendant on or after 20 October 1999;[3]
(b)
“the injury”, with its resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)
“the consequences” to the plaintiff of her low-back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”.[5]
[3] See S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4] See Barwon Spinners (op. cit.) at paragraph [33]
[5] See S.134AB(38)(b) and (c) of the Act.
8 In addition, in relation to “loss of earning capacity”, the plaintiff has a specific burden[6] to establish:
[6] See S.134AB(19)(b) and (38)(e) of the Act
[7] See S.134AB(38)(e)(i) of the Act
[8] See S.134AB(38)(e)(ii) of the Act
(a) that as at the date of hearing she has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[7] and (b) that after the date of hearing she will continue permanently to have a loss of earning capacity that will be productive of a financial loss of 40 per cent or more.[8] 9 In determining the application, the Court:
(a)
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[9]
(b)
must make the assessment of “serious injury” at the time the application is heard;[10]
(c)
must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[11]
(d)
notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.
[9] See S.134AB(38)(h) of the Act
[10] See S.134AB(38)(j) of the Act
[11] See S.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paragraphs [89]-[92]
In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”;[12]
(e)
notes that it has been observed that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[13]
[12] See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 and in particular at paragraphs [60]-[64]
[13] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issues
10 When queried as to what were the issues in the application, Senior Counsel for the defendant stated:
“The defences are there is no organic basis. We are entirely dependent
upon the plaintiff’s accuracy and truthfulness as an historian. … .”[14]
[14] See Transcript (“T”) 6, L22-24
The Background of the Plaintiff, her Injury and Medical Treatment
11 The plaintiff gave evidence that she is an invalid pensioner and that two weeks prior to the hearing, had perused her affidavits, sworn 1 September 2006 (“her first affidavit”), 7 April 2009 (“her second affidavit”) and on 19 September 2011 (“her third affidavit”)[15] and that the contents of such affidavits were “true and correct”.[16]
[15] See Exhibit 2
[16] See generally T 7, L7-23
12 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
• She is a fifty-eight-year-old (born 9 September 1953) married woman with two married daughters; • In or about September or October 2002, she commenced employment with the defendant, which ran a shop in Lara known as “Two Dollar Plus”, as a shop assistant. Her normal hours of work were from 9.00 am to 5.30 pm five days per week and on some occasions she would work a Saturday or a Sunday and then would have two days off during the week to make up for the lost days. • On 19 March 2003, she was performing a lot of lifting work which was necessary to get stock initially moved into storage then broken down and moved into the shop before another employee went on leave. She was carrying a sealed box with both hands from the shop into a rear warehouse which necessitated her stepping down from the shop into the warehouse. In particular, she deposes: “I attempted to step down and as I did so in an awkward way sort of partly turned sideways with the box in front of me that I was carrying, I stepped down awkwardly twisting my lower back. I was met with a stabbing pain my lower back.”[17]
[17] See paragraph 5 of the first affidavit at page 8 PCB
•
She reported the incident, took something like a Panadol, and was informed by her superior to work at the front counter and not engage in any more manual handling of boxes;
•
She had a planned session with her chiropractor for her left neck on that day and during that attendance, the chiropractor gave her some general massage and manipulation of the low-back;
•
The next morning her low-back was very stiff and sore and she found it difficult to get out of bed;
•
When she did get out of bed, she was met with a lot more pain and “pain in my right buttock and down my right leg to my knee”;[18]
•
She attended her general practitioner, Dr Stekelenberg, on 21 March 2003 and he referred her to physiotherapy, which she had once a week, and massage, which she had every alternative week;
•
On her return to work she was given light duties and then returned to her full duties without any lifting or carrying as much as she could avoid it;
•
Dr Stekelenberg arranged for her to undergo a CT scan on 10 April 2003 and she changed to a different type of physiotherapy with Mr Adam Walters on referral from Dr Stekelenberg. Her employment was terminated summarily on 8 April 2003, after which she made a wrongful dismissal claim which was settled on confidential terms;
•
Dr Stekelenberg referred her to the psychologist, Mr Mackey, for some counselling in July 2003;
•
In Christmas 2003, she took an overdose of insulin and tablets but fortunately they had no effect on her;
•
Dr Stekelenberg referred her for an MRI scan on 19 December 2003, after which she was referred to the orthopaedic physician, Dr Jensen, who initially saw her on 24 February 2004;
•
Dr Jensen prescribed OxyContin and Endone, which she took every day, and which did take the edge off her pain;
• Dr Jensen referred her to Dr Verrills, who she first saw in May 2005; •
Dr Verrills arranged for her to undergo a discogram at the Glenferrie Private Hospital on 17 June 2005, together with an epidural injection;
•
Towards the end of 2005, Dr Verrills gave her a series of four injections then two more after Christmas 2005, and one on 5 June 2006. Such injections gave some temporary relief, after which she returned to the same degree of pain in her low-back and leg;
•
Since her termination with the defendant, she has not performed any work;
•
She has undergone some rehabilitation and through the rehabilitation providers has looked for jobs and made applications at their suggestion. However, she states:
[18] See Exhibit 2 at page 8 PCB
“… I don’t think I would have any chance of being able to do those jobs because they are all full time and involved the sorts of tasks that are presently beyond me.”[19]
[19] See Exhibit 2 at page 11 PCB
•
At the time of her first affidavit, she had “constant” pain in her low-back and “intermittent” pain in her right buttock and leg, although not as severe as initially;
•
She estimates that she would get the right back and leg pain probably every day but not all day every day;
•
Her capacity to move freely is badly affected and she cannot sit or stand for very long;
•
Sometimes she can sit and stand for five to ten minutes only but on other occasions can persevere for longer;
•
Her capacity to walk is also limited and she has to be careful about bending and twisting and turning;
•
Although she does not encounter stairs or uneven ground often, she finds that unless she is walking on even ground, such activity can aggravate the condition of her low-back;
•
Movements involving getting in and out of cars and getting out of bed in the morning are enough “to cause a bad flare-up of pain in my lower back”;[20]
•
She finds it difficult to get off to sleep and remain asleep and, accordingly, has purchased a recliner chair which is fairly high and is far more comfortable to sit in than a normal chair or lying in bed;
•
She did a course in hairdressing quite a while ago and used to do haircuts for family and friends but cannot do that any more –
[20] See Exhibit 2 at page 11 PCB
“… because of the constant standing and stooping are the sorts of
postures I can’t adopt anymore comfortably.”[21]
[21] See Exhibit 2 at page 12 PCB
•
She is limited in what she can do in the garden and around her house and tends to rely on her husband and children to help her;
•
When she goes shopping she has to be careful about lifting and carrying shopping;
•
She and her husband do not go out socially much now as she does not find such occasions “attractive anymore”;
•
She was born in Geelong and went to school at West Tech, after which she did a hairdressing course;
•
Almost all the work she has done over her working life has either been in hairdressing or in work involving a requirement to stand, walk and handle stock.
13 By way of her second affidavit, the plaintiff gave the following pertinent evidence:
•
She continues to experience constant low-back pain and “at times” pain radiating down her right leg to her knee;
•
When she does have leg pain, she has numbness in the front of her right leg;
•
There are also times when the pain radiates up her back and she suffers muscular spasms in her back from time to time;
•
Her symptoms are made worse by bending, lifting, twisting, stooping or sudden movements and she finds it difficult to sit or stand for lengthy periods;
•
She tends to sit on her left buttock and if she stands in one position for lengthy periods it feels like “something is stabbing into my low-back”;
•
Her sleep continues to be disturbed, although it has improved “a bit” since she has commenced taking Topomax and Lyrica;
•
She cannot remember having a full night’s sleep since she suffered her injuries;
•
She currently attends Dr Muir, a pain specialist, once every month and he has prescribed Lyrica, 150 milligrams twice daily, and Topomax, 25 milligrams three times daily;
•
She also attends her general practitioner, Dr Trainor, on a monthly basis who prescribes Norspan patches, 20 milligrams, which she wears for a week on end;
•
She also takes Endone when her pain is very bad but finds that such medication has an effect on her memory and concentration. Further, she feels very drowsy and fatigued;
•
Beyond the medication she takes for her low-back condition, she also takes medication for blood pressure and diabetes;
•
Prior to the injury she was fit and active and enjoyed gardening, swimming, dancing, socialising, hairdressing and had a “very enjoyable and active social life”. As a result of her injury, her activities “remain very restricted and I have withdrawn socially”;[22]
•
She continues to have difficulty attending to household work and has a friend who helps her out, and sometimes her mother also assists her;
•
Her husband is unwell with cancer and is unable to assist as much as he did;
•
She has considerable difficulty driving and only now drives for short distances;
•
She is currently receiving the Disability Support Pension and doubts that she will ever have a capacity to return to the workforce.
[22] See Exhibit 2 at page 17 PCB
14 By way of her third affidavit, the plaintiff gave the following pertinent evidence:
•
She continues to suffer from symptoms as outlined in her second affidavit;
•
Her current medication involves using Norspan patches, 20 milligrams, and Endone, 5 milligrams as required. She no longer takes Lyrica or Topomax as these medications made her feel drowsy during the day;
•
She underwent a pain management program between January and April 2009, nerve root sleeve injections in about October 2010 and sacroiliac injections in August 2011 – none of which have assisted in relation to the constant pain and discomfort in her low-back and sometimes the right leg;
•
After the nerve root sleeve injection she considered that her leg pain had improved for a period of about two or three months and after the recent sacroiliac injection her leg symptoms improved but she is uncertain how long this improvement will last;
•
The sacroiliac injection also “moderated” her back pain but she has been told by Dr Muir that the injections will not “cure” her problem and such relief is likely to be temporary;
•
She continues to attend her general practitioner, Dr Trainor, on a monthly basis;
•
She continues to obtain assistance in relation to her housework from her mother and from her friend, Maja Neagle;
•
Her husband returned to work in or about late 2009 as his cancer condition is in remission;
•
Between about 1996 and 2000, she and her husband ran the Queen of the West Hotel in Geelong, during which time she was working very long hours to keep the business afloat;
•
Until she found work with the defendant she had trouble finding full-time work and she did some part-time work as a waitress and kitchen hand.
15 The plaintiff relies on an affidavit in support from Ms Maja Neagle, sworn on 12 July 2011.[23] In that affidavit, Ms Neagle describes herself as being a long- term friend of the plaintiff and prior to the plaintiff suffering her injury, visited her two or three times a week.
[23] See Exhibit 2 at page 18A PCB
16 Furthermore, she gives evidence that prior to her injuries, the plaintiff was a very fit and active woman, was house proud, and was a very keen gardener. Since suffering her injuries in 2003, Ms Neagle describes the plaintiff as not being “the same person” and Ms Neagle has assisted her with vacuuming, cleaning, general housework, and also helped out in the garden. She sees the plaintiff on a weekly basis – sometimes several times a week – and she observes the plaintiff having difficulty sitting, walking or standing for lengthy periods. When visiting, the plaintiff generally sits in a recliner chair.
17 They used to play cards regularly but due to the plaintiff’s inability to sit for lengthy periods that no longer occurs and they no longer enjoy a social life outside the house.
18 She has observed the plaintiff to be in tears due to pain and at times she is “cranky and short-temperered” with her family.
19 Since suffering the injury, the plaintiff has undergone the following investigations:
(a)
A CT lumbar spine scan on 10 April 2003.[24] The conclusion of that scan was:
[24] See Exhibit 6 at page 63A PCB
“No abnormality of significance is shown.”
(b) An MRI scan of the lumbar spine on 19 December 2003.[25] That scan concluded: [25] See Exhibit 6 at page 63B PCB
“There are some minor age-related degenerative changes in the lumbar discs particularly L4-5 but there is no evidence of any disc protrusion or focal abnormality.”
(c)
On 17 June 2005, the plaintiff underwent a provocative discogram (by Dr Paul Verrills).[26] The L3-4, L4-5 and L5-S1 discs were normal and pain- free, save that at the L4-5 disc there was a small left posterolateral fissure;
(d)
An MRI scan of the lumbar spine on 19 January 2007.[27] The findings of such scan were reported as:
[26] See Exhibit C at page 5 DCB
[27] See Exhibit 6 at page 64 PCB
“Comparison is made with the prior MRI lumbar spine of 20/12/03. There is normal lumbosacral spinal alignment, vertebral body height and … signal. Incidental haemangioma is noted at the L4 vertebral body.
Conus lies at T12. There is no intra-medullary signal abnormality. The cauda equine is normal. The spinal canal is developmentally capacious.
There is disc desiccation at L4-5 associated with partial osteophytic lipping, and mild posterior disc contour abnormality. No significant disc bulge is identified.
Throughout the lumbar spine, there is no evidence of disc bulging or focal disc protrusion. No spinal canal stenosis, subarticular recess stenosis, foraminal stenosis, or neural compression.
Moderate bilateral L5-S1 facet joint degeneration is present.
Conclusion:
Stable appearances of the lumbar spine since 20/12/03. Very mild disc degeneration at L4-5 and bilateral L5-S1 facet joint arthropathy.”
20 Before the injury, the plaintiff had been attending a physiotherapist, Ms L Treston, and a chiropractor, Mr R Teasdale. She last saw the chiropractor on 24 March 2003 when she complained of acute pain in the lumbosacral area.[28]
[28] See Exhibit 7 at page 72 PCB
21 The plaintiff consulted Dr John Stekelenburg on 21 March 2003 complaining of low-back pain which he said had occurred a couple of days before when lifting several heavy boxes at work. Her chiropractor had seen her the day before and suggested she attend a doctor. Dr Stekelenburg gave her a certificate for one week of light duties (no bending or lifting) and referred her for massage and physiotherapy.
22 At that time, examination revealed the plaintiff to be subjectively in “quite a degree of pain” who had marked limitations of all movements of the lumbar spine and in particular straight leg raising. Neurological examination was normal and there was some local tenderness around the L4-5 area.
23 Dr Stekelenburg made a provisional diagnosis of an L4-5 lumbar disc strain or, alternatively, a muscular strain, and because her pain was not resolving, arranged for a CT scan to be undertaken which was reported as being “normal”. Because the plaintiff was becoming depressed and having a negative effect, she was referred to a clinical psychologist.
24 In his report dated 23 October 2003, Dr Stekelenburg ultimately diagnosed a low lumbar back strain and although she was not fit for pre-injury duties, he considered her to have a capacity to do four to five hours per day with no repetitive bending or lifting.[29]
[29] See Exhibit 8 at page 118-119 PCB
25 Dr Stekelenburg referred the plaintiff for clinical psychology at Chris Mackey & Associates, where she was initially seen on 21 July 2003 by Ms Tania Hermann-Doig, clinical psychologist. Ms Hermann-Doig continued to consult with the plaintiff until December 2003 and then the plaintiff resumed therapy in 2004 with Ms Liz Barson, clinical psychologist, who had seen the plaintiff on some twenty two separate occasions up to the date of a report from Mr Chris Mackey dated 11 June 2004.[30]
[30] See Exhibit 8 at page 120 PCB
26 In particular, I refer to the report from Dr Clare Heaney dated 10 November 2006[31] wherein she gives a summary of the various treatments undergone by the plaintiff at Chris Mackey& Associates. In particular, she confirms that the plaintiff has been receiving treatment for anxiety and depressive symptoms since 14 July 2003 and in June 2004, joined a weekly Coping Skills Group Therapy Program and has been involved in that Group since that time. Ms Heaney states, in part:
“Gaylene currently describes symptoms consistent with a Chronic Pain Disorder, Associated with both Psychological Factors and a General Medical Condition. The impact of Gaylene’s injury and subsequent pain on her mobility and limited capacity to engage in usual life and occupational activities has impacted significantly on her psychological functioning. She currently describes symptoms consistent with a diagnosis of a Major Depressive Disorder, in addition to clinically significant anxiety symptoms.”[32]
[31] See Exhibit 7 at page 73 PCB
[32] See Exhibit 7 at pages 77-78 PCB
27 As at 2006, Ms Heaney considered that the prognosis was difficult to predict with certainty although she considered it likely that the plaintiff would experience continued variability in her psychological stress, dependent on her pain levels and other situational factors, including medico-legal stressors. In particular, Ms Heaney thought her psychological recovery would improve if the plaintiff was able to return to some form of employment even on a voluntary basis.
28 Dr John Stekelenburg also referred the plaintiff to the expert in musculoskeletal pain medicine, Dr Steven Jensen.[33]
[33] See reports of Dr Jensen dated 5 March, 5 July 2004, 19 September 2005 and 24 October 2006 contained in Exhibit 8 running from pages 123 to 129 of the PCB and reports dated 26 July 2005 and 10 May 2006 contained in Exhibit 7 at pages 79 to 90 of the PCB
29 Dr Jensen initially consulted with the plaintiff on 24 February 2004 with an initial follow up visit on 2 March 2004. At that time, he had available the CT scan of the lumbar spine dated 10 April 2003 and the MRI scan of the lumbar spine dated 19 December 2003. He considered the only abnormality was some mild degradation involving the L4-5 and L5-S1 intervertebral disc of questionable clinical significance. He considered there was no evidence of neurological encroachment. At that time, he considered the plaintiff was genuine in her presentation without evidence of abnormal illness behaviour and diagnosed her to be suffering lumbosacral pain of undetermined origin.
30 Over several years, Dr Jensen performed various diagnostic testing, including diagnostic injections to the plaintiff’s lower lumbar facet joints, her sacroiliac joints and also her lower three lumbar intervertebral discs (“the discogram”) and none of these investigations identified her primary pain generator.
31 Dr Jensen seemingly last examined the plaintiff on 11 April 2006, wherein he concludes that she had suffered a musculoligamentous lumbosacral spine injury, that is to say a lumbosacral pain of undetermined origin. In particular, Dr Jensen states:
“However, I was of the opinion that she did suffer from genuine somatic lumbosacral pain The term somatic implies that the pain is coming from one or more of the physical structures related to the spinal column It further implies that the pain is not from one of the internal organs nor is the pain psychological in origin.”[34]
[34] See Exhibit 7 at page 82 PCB
32 Dr Jensen also notes that the plaintiff has developed secondary Depression.
33 Dr Jensen also considered that the plaintiff did not have a capacity for suitable employment taking into account the nature of the medical condition as it pertains to the lumbosacral spine and the incapacity this pathology causes.
34 Dr Jenson also referred to the pain management specialist, Dr Paul Verrills. Seemingly Dr Verrills examined the plaintiff on a number of occasions.[35] Dr Verrills also noted that the three major specific diagnoses of sacroiliac joint, facet joint and discogenic pain have been “ruled out” through various testing. Notwithstanding, Dr Verrills considered that the plaintiff suffered “significant lumbar somatic pain” of uncertain aetiology. He considered her effectively incapable of any employment.
[35] See report dated 2 July 2007 contained in Exhibit 7 at page 113 PCB
35 Dr Stekelenburg also referred the plaintiff to the orthopaedic surgeons, Mr David de la Harpe and Mr Roy Carey.[36] Mr de la Harpe examined the plaintiff on 22 June 2005 and found that she had a normal gait, a reasonable range of movement of her lumbar spine and no neurological abnormality in the lower limbs at that time. He was of the opinion that her back pain is “mechanical in nature” and that no surgery would be of assistance. He recommended a continuation of conservative management and an escalation in her exercise program.
[36] See Exhibit 9, consisting of a report from Mr David de la Harpe dated 27 June 2005 and reports form Mr Roy Carey dated 20 February 2008 and 2 June 2008.
36 Mr Carey initially examined the plaintiff on 20 February 2008 and had available to him the MRI scans undertaken on 19 December 2003 and 19 January 2007. After examination, he was unable to provide a diagnosis although he did note that it was worrying that she was on OxyContin and Endone with no diagnosis other than chronic pain. When later seen on 2 June 2008 (on referral from the plaintiff’s later general practitioner, Dr Susan Trainor), he noted that she has chronic non-specific back pain, the cause of which has not been identified through various testing and MRI studies. Mr Carey was also concerned at that stage about her use of opiate analgesia with non-specific pain with no specific pathology.
37 Dr Susan Trainor commenced to be the general practitioner of the plaintiff in March 2008.[37] When first seen, the plaintiff was suffering chronic right sacroiliac and leg pain and was taking OxyContin, 20-milligram tablets twice daily and Endone in between. Because of concerns raised by Mr Carey, she arranged for the plaintiff to be referred to the pain management specialist, Dr Andrew Muir. Furthermore, she commenced the plaintiff on Norspan patches and was able to slowly reduce her oral medication.
[37] See the reports of Dr Trainor dated 13 February 2009, 27 August 2009, 8 July 2010 and 29 September 2011 contained in Exhibit 7 at pages 65-67H PCB
38 Dr Trainor has continued to be the general practitioner of the plaintiff and notes that the plaintiff continues to suffer from chronic low-back pain which radiates into her right leg to her toes and has various exacerbations. She is currently on Endone, one to two a day, and Norspan, 20-milligram patches weekly.
39 Dr Trainor diagnosis the plaintiff with chronic lumbosacral pain which has been contributed to “significantly” by her work injury. Furthermore, over the years she had suffered Depression intermittently and had been on medication, although not in 2010.
40 In particular, Dr Trainor is of the opinion that the physical low-back injury impairment suffered by the plaintiff is likely to preclude her or restrict her in relation to activities involving “lifting, bending, twisting, stooping and sitting, standing or walking for lengthy periods”. Furthermore, Dr Trainor considered that the plaintiff could not resume her pre-injury duties or is unlikely to be able to undertake suitable employment. Dr Trainor did note that her current medications are unlikely to preclude or restrict her working capacity whereas two of her fast medications, Lyrica and Topamax, made her feel too sedated.
41 In September 2011, Dr Trainor reported that the plaintiff was only able to sit at a desk for a maximum of fifteen minutes a day, unable to walk for more than half an hour at a time, and is able to do fifteen minutes vacuuming twice a week, mop once a week and cook. Dr Trainor states:
“I do not think there is any employment that would be suitable for her.”[38]
[38] See Exhibit 7 at page 67H PCB
42 Dr Muir initially saw the plaintiff in September 2008. Since then until June 2010, she made complaints of back pain but also of pain affecting the left buttock and the back of the right and left knee as a different pain that affects the calf and dorsum of the right foot. Dr Muir treated the plaintiff with a variety of different medications and noted in June 2010 that the plaintiff reported a decrease in the overall amount of medication used and as at that time was using patches and perhaps one Endone daily.
43 Since June 2010, the plaintiff has undergone epidural nerve root sleeve injections which has greatly improved her leg pain but left her with significant pain at the base of the spine.
44 When reviewed in November 2011, the plaintiff continued to report that her leg pain had been reduced but her back pain was still poor.
45 In his report dated 3 June 2011, Dr Muir considers “on balance” that the plaintiff is suffering from mechanical low-back pain, which may be discogenic, with some evidence of some radicular features. He considers such symptoms as a consequence of her work injury. Furthermore, Dr Muir, as at June 2011, considered that the plaintiff had no capacity to perform her pre-injury duties and furthermore, has “no current work capacity” which he considers will remain indefinitely.
46 The solicitors for the plaintiff arranged for her to be medico-legally examined by the following:
(a) the orthopaedic surgeon, Mr R Westh, on 7 March 2006;[39] 12 May 2009[40] and on 3 May 2011;[41] (b) the occupational physician, Dr Robyn Horsley, on 17 August 2006;[42] 15 June 2009;[43] and on 28 November 2011;[44] (c) the psychiatrist, Dr M Epstein, on 8 May 2009;[45] and on 25 May 2010;[46] (d) the psychiatrist, Dr J Honey, on 31 January 2006.[47] [39] See report dated 22 March 2006 contained in Exhibit 7 at page 97 PCB
[40] See report dated 20 May 2009 contained in Exhibit 7 at page 99A PCB
[41] See report dated 16 May 2011 contained in Exhibit 7 at page 99F PCB
[42] See report dated 21 August 2006 contained in Exhibit 7 at page 100 PCB
[43] See report of same date contained in Exhibit 7 at page 107A PCB
[44] See report of same date contained in Exhibit 7 at page 107H PCB
[45] See report of same date contained in Exhibit 7 at page 116A PCB
[46] See report dated 28 May 2010 contained in Exhibit 7 at page 116J.1 PCB
[47] See report of same date contained in Exhibit 7 at page 91 PCB
47 When first examined by Mr Westh on 7 March 2006, he noted that the plaintiff had a restricted range of movement although he did note that she was able to flex to 50 degrees but also was able to sit up on the examination couch with her legs extended. At that time, he noted that she presented with chronic lumbar back pain, the precise cause was not clear and he considered that the pain was most likely to be discogenic.
48 When seen on the second occasion on 12 May 2009, Mr Westh confirmed his tentative earlier diagnosis that the plaintiff had suffered a lumbar disc injury at work, and he considered that she had deteriorated between the two examinations and also had a significant accompanying psychological stress reaction.
49 When last seen on 3 May 2011, Mr Westh was of the opinion that it is:
“Likely that she sustained a lumbar disc injury with resultant back pain and some associated leg pain. Presentation now is one of chronic mechanical low back pain. As stated in my previous report, there is a significant accompanying psychological stress reaction. … .”[48]
[48] See Exhibit 7 at page 99FA PCB
50 Furthermore, Mr Westh was of the opinion that such injury prevented the plaintiff from undertaking her pre-injury duties and indeed performing suitable employment.
51 When seen by Dr Horsley on 17 August 2006, Dr Horsley diagnosed the plaintiff as suffering ongoing mechanical back pain, together with a psychological sequelae with an Adjustment Disorder with Mixed Depression and Anxiety.
52 When seen on a second occasion on 15 June 2009, Dr Horsley again diagnosed mechanical back pain with referred right leg pain with no objective radicular features. In particular, Dr Horsley was of the opinion that the work incident exacerbated underlying pre-existing degenerative changes in the lumbar spine and also considered that the L4-5 annular fissure noted on the discogram by Mr Paul Verrills was probably “the primary pain generator”.
53 When last seen by Dr Horsley on 28 April 2011, she was of the same opinion in relation to diagnosis. She considered that the plaintiff was subject to work restrictions and that her functional tolerances were reduced. In particular, she states:
“I believe that Ms Hobbs in theory, has physical capacity for part time work of up to 15 to 20 hours. However, the reality is, that she has now been out of the workforce for 8 years and is now 58 years of age. She was granted a Disability Support Pension in 2007. Despite her physical program, she remains deconditioned with poor functional tolerances. She has had an extensive physical program through various musculoskeletal physicians and pain specialists and a comprehensive counselling program through Chris Mackay and Associates.
I believe that she has reached maximal medical improvement and that her employability in reality, in an open and competitive market place is poor. With her level of deconditioning, her disability focus and her limited physical tolerances, her attendance at work is likely to be unreliable, if suitable duties were to be found.
… .”[49]
[49] See Exhibit 7 at page 107M PCB
54 When examined by Dr Epstein on 8 May 2009, he diagnosed a “very mild Chronic Adjustment Disorder with Depressed Mood” which had arisen as a consequence of her work injury. Dr Epstein was of the opinion that such psychiatric state did not preclude her from performing pre-injury duties or undertaking alternative suitable employment.
55 When seen on 25 May 2010, Dr Epstein was of the opinion that the plaintiff continued to suffer some mild symptoms of depression as a result of chronic pain, discomfort and disability and a sense of grief at the loss of employment prospects and economic security. In particular, Dr Epstein was of the view that her psychiatric state would improve if she was able to return to work and that such condition does not restrict her work capacity in any way. Furthermore, he considered the low-back symptoms are predominantly a consequence of the organic injury and not due to a mental or behavioural condition.
56 When see by Dr Honey on 31 January 2006, a diagnosis was made of Chronic Adjustment Disorder with Anxious and Depressed Mood which is seen to be due to the effects of her physical injury. Dr Honey was of the opinion that the plaintiff’s psychiatric condition did not cause her an incapacity for work and she was capable of performing pre-injury duties or indeed suitable employment.
57 The plaintiff also seeks to rely on the following medico-legal examinations arranged by the defendant:
[50] See report dated 13 July 2004 contained in Exhibit 8 at page 130 PCB
[51] See report of same dated contained in Exhibit 8 at page 133 PCB
(a) by the sports and musculoskeletal physician, Dr T Wood, on 13 July 2004;[50] and (b) the general surgeon, Mr P Scott, on 23 August 2006.[51] 58 When seen by Dr Wood, his only comment essentially was that the diagnosis can be no more specific than one of non-specific somatic low-back pain and he recommended various diagnostic testing to test for discogenic pain, sacroiliac pain or facet joint pain (which were all done later).
59 Mr Scott considered that the plaintiff had suffered an acute soft-tissue injury to her lumbosacral spine as a result of the work incident but there was no convincing evidence of any clinical or radiological ongoing work-related organic disability, although she did have some symptoms suggestive of a discogenic problem producing intermittent right-sided lumbosacral nerve root irritation. Mr Scott did note that there was a grossly abnormal response with the development of a Chronic Pain Syndrome in association with anxiety, depression, frustration and suicidal tendency requiring ongoing psychotherapy.
60 Mr Scott did comment that the plaintiff was genuine and well motivated but severely disabled as a result of her ongoing “psychosomatic symptoms”.
61 It is convenient to refer to the medical reports relied on by the defendant. The solicitors for the defendant (or its agent) arranged for the plaintiff to be medico-legally examined by the following:
(a) The orthopaedic surgeon, Mr Clive Jones, on 24 April 2003;[52] (b)
The occupational physician, Dr Gary Davison, on 16 June 2003,[53] 21 October 2003,[54] 15 March 2010[55] and 20 September 2010.[56] He supplied a supplementary report dated 24 November 2010,[57] together with letter from the defendant’s solicitors dated 1 November 2010;
(c)
The psychiatrist, Dr C Newlands, on 3 March 2004,[58] 13 January 2005,[59] 20 September 2006,[60] 5 November 2007[61] and on 4 March 2010;[62]
(d) Sports and musculoskeletal physician, Dr T Wood, on 6 October 2004;[63] (e) The psychiatrist, Dr S Stern, on 25 January 2006;[64] (f) The occupational physician, Dr David Fish, on 25 January 2006;[65] (g) The general surgeon, Mr Peter Scott, on 6 September 2007;[66] (h)
The orthopaedic surgeon, Mr Ian Jones, on 23 June 2011,[67] together with supplementary report dated 15 August 2011 and letter from the defendant’s solicitors dated 9 August 2011.[68]
[52] See report dated 29 April 2003 contained in Exhibit C at page 7 DCB
[53] See report dated 4 July 2003 contained in Exhibit C at page 10 DCB
[54] See report dated 5 November 2003 contained in Exhibit C at page 15 DCB
[55] See report dated 23 March 2010 contained in Exhibit C at page 18a DCB
[56] See report dated 26 September 2010 contained in Exhibit C at page 18g DCB
[57] See Exhibit C at page 18x DCB
[58] See report dated 5 March 2004 contained in Exhibit C at page 19 DCB
[59] See report dated 17 January 2005 contained in Exhibit C at page 26 DCB
[60] See report dated 2 October 2006 contained in Exhibit C at page 31 DCB
[61] See report dated 12 November 2007 contained in Exhibit C at page 40 DCB
[62] See report dated 14 March 2010 contained in Exhibit C at page 53a DCB
[63] See report of same date contained in Exhibit C at page 54 DCB
[64] See report of same date contained in Exhibit C at page 65 DCB
[65] See report of same date contained in Exhibit C at page 71 DCB
[66] See report dated 10 September 2007 contained in Exhibit C at page 76 DCB
[67] See report dated 25 June 2010 contained in Exhibit D at page 88a DCB
[68] Found respectively at 88o and 88q DCB
62 The solicitors for the defendant also rely on reports from Dr Liz Barson dated 30 August 2004 (one of the treating psychologists of the plaintiff)[69] and reports from Dr Clare Heaney dated 10 July 2007, 9 October 2007 and 13 December 2007 (a treating psychologist of the plaintiff).[70]
[69] See Exhibit C at page 58 DCB
[70] See Exhibit C at pages 84-88 DCB
63 Mr Clive Jones examined the plaintiff about five weeks after the injury and he noted that at such time the physical signs were “somewhat contradictory”. He considered that some of the restrictions in her back movements were deliberate rather than real and her straight leg raising was resisted but she was able to sit up with her hips flexed and knees extended and clasp her ankles without any problem. He considered at that time there was no indication of a lumbar disc injury and considered that she had suffered a soft- tissue strain of the back with a good long-term prognosis.
64 Dr Gary Davison first saw the plaintiff approximately fourteen weeks after the occurrence of the injury. At that time, she complained of pain in the right buttock which initially extended down the right leg but had continued as intermittent right buttock pain. She also complained of low-back pain which was present most days and aggravated by bending, prolonged sitting and excessive walking. On examination, Dr Davison noted that she was able to heel, walk and toe-walk, with no complaint of pain on apparent spinal movement or with light axial pressure. There was some tenderness across the lower back. In particular, he noted straight leg raising was possible to about 30 degrees bilaterally – however, she was able to sit on the examination couch with her legs fully extended and reach down her lower legs.
65 He considered the diagnosis to be soft-tissue injury strain to her lower back with the possibility that it may be discogenic or originating in a facet joint.
66 The plaintiff was again seen on 21 October 2003 and thereafter there was a gap of about six-and-a-half years until again seen on 15 March 2010. On that date, Dr Davison found the plaintiff a “disability focussed individual” with her gait on entering the examination room being slow and shuffling. He believed that the plaintiff displayed moderate pain behaviours as evidenced by vocalisation, grimacing and clutching of the affected area. Movement of the lumbar spine was globally restricted to less than one-third of the expected normal range and Waddell’s sign was positive for light touch on the lower back region, as well as for apparent spinal movement.
67 At that time, Dr Davison was of the opinion that the plaintiff had developed a “Chronic Pain Syndrome as pain is the predominant symptom; however there is no objective medical evidence to determine the cause of that pain”. He considered there was a “functional component” to the plaintiff’s presentation.
68 When last examined on 20 September 2010, Dr Davison again noted that the plaintiff had a slow gait and pain behaviours were observed. Waddell’s signs were positive for light touch and spinal movement. Although the plaintiff presented with a seven-year history of pain and stiffness in the low-back, with some radiation of pain towards the right buttock and posterior thigh, Dr Davison could not determine on clinical examination the cause of such pain. On that date, the plaintiff did identify various sensory disturbances co-relating to the right L5 dermatome which may suggest an element of radiculopathy but Dr Davison noted that such symptoms have fluctuated in severity over time.
69 In particular, Dr Davison was of the opinion that the plaintiff had a capacity for suitable duties of a part-time sedentary nature subject to the following physical restrictions:
(a) avoid frequent and/or repetitive bending or twisting; (b) vary posture regularly and at will; (c) avoid manual handling greater than 4.5 kilograms at bench height; (d) four hours’ work per day, five days per week. Accordingly, he considered that she was capable of working as a general sales assistant, studio assistant, shop assistant in a toy shop, shop assistant baby products store, products examiner and administrative assistant.
70 After her initial examination on 3 March 2004, psychiatrist, Dr C Newlands, diagnosed the plaintiff to be suffering an Adjustment Disorder with Depression secondary to her physical injury. Dr Newlands considered that from a psychiatric point of view, the plaintiff would be capable of performing the role of a sales assistant, such as her pre-injury employment, and that any limiting factor would be as a result of her physical condition.
71 Over the subsequent examinations, the psychological condition of the plaintiff fluctuated to some minor degree, partly as a result of current stressors such as her husband’s illness. When last seen on 4 March 2010, Dr Newlands was of the opinion that the plaintiff suffered a mild Chronic Adjustment Disorder with depressive features which in itself would not prevent her from undertaking any form of employment.
72 Dr Timothy Wood re-examined the plaintiff on 6 October 2004 (having reported earlier on 13 July 2004, to which reference has already been made) and confirmed his earlier opinion that the plaintiff was suffering from “non- specific somatic low-back pain”. At the time of that examination, he considered her unfit for her pre-injury employment but fit for part-time work of a light nature which did not include repetitive bending or lifting. In particular, he notes that part-time work as a medical receptionist, if she can obtain the necessary computer skills, would appear to be the most suitable.
73 After his examination, on 25 January 2006, Dr Stern was of the opinion that the plaintiff was suffering from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood but such condition did not affect her capacity for work from a psychiatric aspect alone.
74 Dr David Fish examined the plaintiff in order to carry out an impairment assessment pursuant to s.91 of the Act, and in relation to the back, considered that she had suffered from an aggravation of the L4-5 disc degeneration with referred pain into the right leg but without clinical evidence of radiculopathy. In particular, he noted some minor sensory abnormalities which he considered to be symptoms from an internal disc derangement.
75 Mr Scott re-examined the plaintiff on 6 September 2007.[71] On examination, Mr Scott found that movements of the lumbosacral spine were “grossly restricted in all directions”. He was of the opinion that the plaintiff was suffering a “Chronic Pain Syndrome in association with work aggravated early discogenic disease in the lumbosacral spine”. He did not consider there was any evidence of intervertebral disc prolapse or compromise of existing nerve roots. Mr Scott noted that the major impairment appears to be related to an associated anxious, nervous or depressive response which may have been brought about by her husband’s recurrent cancer.
[71] Reference has already been made to his earlier report dated 26 August 2006, relied on by the plaintiff
76 Mr Scott considered the plaintiff fit for light work if “one is considering her organic disability alone” but taking account of her associated psychological symptoms he considered her totally unfit for all forms of work.
77 When examined by the orthopaedic surgeon, Mr Ian Jones, on 23 June 2011, the plaintiff complained of “constant lower back and right buttock pain”. In particular, she found sitting a problem and tended to put the weight through her left buttock. She also reported that she sleeps “poorly” and is only able to stay in bed for approximately two hours, after which she rests in a reclined chair before going back to bed.
78 On examination, Mr Jones noted that the plaintiff was unable to lie flat on the couch and thus spare her right buttock from any pressure. The movement of the lumbar spine was vastly reduced and she was subjectively tender over the right sacroiliac joint. Sensation, power and reflexes of both lower limbs were normal and straight leg raising was possible to 70 degrees bilaterally and such action appeared to aggravate her back and buttock pain.
79 Mr Jones had available all the radiological material.
80 Mr Jones considered that the presentation of the plaintiff was one of mild degenerative lumbar disc and joint disease and he considered that subsequent radiological investigation has shown there to be some basis to the plaintiff’s symptoms and signs. Mr Jones also considered that there was a functional component to the plaintiff’s symptoms with evidence of a Chronic Pain Syndrome.
81 Mr Jones was also of the opinion that the plaintiff had only “extremely limited capacity for work” and though, at best, the plaintiff may be capable of undertaking a position of product examination, at least on a part-time basis. In this respect, he states:
“I believe that the position of product examiner on a part-time basis would be appropriate for this patient and opportunities for such employment could be explored.
I do not believe there is likely to be any benefit from re-training for work in another discipline due to the length of time since she has been out of the workforce and the nature of back and right buttock complaints. I cannot envisage any work other than possibly part-time product examining being suitable for this patient’s complaints.”[72]
[72] See Exhibit D at page 88g DCB
82 In her report dated 30 August 2004, Dr Liz Barson (clinical psychologist with Chris Mackie & Associates) was of the opinion that in 2003 to 2004, the plaintiff was suffering from clinical significant levels of anxiety and depression in response to the pain and discomfort caused by her chronic back pain and the limitations that placed on her life. In her series of reports, Dr Clare Heaney (a further psychologist with Chris Mackie & Associates) describes how the plaintiff has been involved with a Coping Skills Group Therapy Program since June 2004 which has been of benefit to her.
Vocational Assessment Reports
83 The plaintiff relies on vocational assessments prepared by an occupational therapist, Ms Judith Long of Evidex Pty Ltd. Ms Long initially interviewed the plaintiff on 18 January 2006, and in a report dated 10 February 2006,[73] she considered the plaintiff capable of suitable employment as an enquiry clerk working part-time for about twelve hours per week. She also considered that the plaintiff may be suitable for receptionist duties.
[73] See Exhibit 4 at page 34 PCB
84 When she later interviewed the plaintiff on 7 May 2009,[74] she formed the opinion that the plaintiff no longer had a capacity for any suitable employment. Such opinion seemingly was brought about by the increased age of the plaintiff and that she has not worked in the open job market for some six years, was deconditioned, had limited physical tolerances and it was extremely doubtful that she could maintain the routine required to go to work.
[74] See report dated 8 May 2009 contained in Exhibit 4 at page 49c PCB
85 Ms Long further interviewed the plaintiff by telephone and prepared a supplementary report dated 20 June 2011.[75] In her last report, Ms Long comments on various jobs suggested by others in vocational assessments relied on by the defendant. Such jobs included hairdresser, receptionist (hairdresser/beauty salon), kitchen-hand and cook. Furthermore, Ms Long considered jobs of sales assistant, product examiner and administrative assistant. Ms Long was of the opinion that all such jobs were unsuitable for the plaintiff.
[75] See Exhibit 4 at page 49I PCB
The Cross-Examination of the Plaintiff
86 Before cross-examination, the plaintiff gave some further very brief viva voce evidence, wherein she identified a document from the Quality Pharmacy which apparently recorded the medications that she had been prescribed over the last twelve months. The plaintiff explained that that is the only pharmacy that she attends.[76]
[76] See Exhibit 1, patient history in relation to Quality Pharmacy running from 7 September 2010 to 9 September 2011
87 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
She believed that the defendant had said things which were untrue at the time of her dismissal and she had sued the defendant for unfair dismissal.
•
Prior to the injury, the plaintiff had had a “fairly tumultuous period”, during which her husband had become a bankrupt as a result of a failed venture in a hotel and also he had been diagnosed with lung and bowel cancer, which required her to care for him as required.
•
Her husband is now in remission and he is now back working full-time in the casino.
•
She has two married daughters and four grandchildren aged between seven months and seven years. Both daughters and the grandchildren live in Geelong.
•
She walks some of her grandchildren to and from a child-minding facility. Sometimes she will care for the children by going to her daughter’s house when her daughter and son-in-law go out.
•
She used to love gardening but accepted that it still remains part of her life.
•
She can handle train travel reasonably well, having commuted to and from Melbourne.
•
Her employment with the defendant is the first time she had worked for somebody else since she had been an apprentice hairdresser.
•
Prior to the injury, she had suffered a left shoulder injury when she slipped on a box, striking the shoulder on a doorway.
•
She walks down to a shopping centre about half-a-kilometre away, taking about half-an-hour to get there. She sometimes uses a shopping bag or shopping trolley. Sometimes she will drive to the shopping centre.
• Her husband does the major shopping and her daughter assists her. •
She and her husband have been in their present unit for nearly two years and he helps with the housework – in particular, changing and making the bed, and vacuuming, although she does some vacuuming in stages.
•
She does the cleaning of the floors in stages and the cleaning of the bathroom, and performs the washing and hanging out of clothes.
•
Although she and her husband share a bedroom, she tends to sleep in the other room or the reclining chair. She finds the recliner chair more comfortable, because she can lay on her left side and avoids lying on her right side, which causes pain.
•
She experiences stabbing pain in her right buttock and also constant pain in her low-back.
•
Prior to the injury she had been seeing a physiotherapist and chiropractor for her left shoulder injury.
•
After the injury, when receiving Newstart payments from Centrelink, she applied for a job as a senior hairdresser for about two-and-a-half days a week. She looked for work for about twelve months and only was looking for part-time hairdressing because:
“A: I just felt that I had other things to do, and still had a life to
live.”Q: So it was a lifestyle choice …?--- A: Yes.”[77] [77] See T 40, L28-30
• During this period, her doctor was certifying her fit for alternative duties. •
Although she was applying for jobs during this period of time, she does not believe that she could have performed such work. She applied for work at Barwon Health, at a ladies fashion shop and as a sales assistant at Ray’s Outdoors. She believed she did not get the job with Barwon Health – which involved collecting monies from patients who had hired televisions – because of her WorkCover and injury history.
•
From the early days, she has difficulty lifting a 2-litre container of milk, which causes her to get a sharp pain in her lower back.
•
About six or seven months after the injury, the plaintiff had a “trial” of performing some hairdressing. She lasted “four hours” and in particular, states:
“… while I was in agony, I – I had painkillers. I was in agony by the time I got to the car to try to drive home, and when I got home I couldn’t get out of the car, I had to ring my husband upstairs.”[78]
[78] See T 63, L19-22
•
Since the weekly payments stopped in about 2004/2005, she has asked around for jobs but has not applied for any work. In particular, it would probably be a year or more so since she has asked around about different jobs.
•
During her schooling, she suffered Attention Deficit Disorder (ADD) and had problems with reading.
•
She has lifted her grandchildren with “great difficulty” and has put her grandchildren into prams and changed nappies.
•
She changed to Dr Trainor from her earlier general practitioner because she had a falling out with her earlier general practitioner in relation to treatment for diabetes.
• Over the last year or so she has been coping “much better mentally”.[79] •
Over the last three or four years the pain has been the same and constant.
• She continues to cut the hair of her mother and her husband. •
In 2009, the health of her husband required her to be caring for him most of the time.
• She considers that she walks with a limp on the right-hand-side. •
She sleeps in the recliner chair “every night” and that has been so for some years.
•
When asked about caring for the grandchildren, the following evidence was given:
[79] See T 84, L7
Q: “This child is presently, or these two children are presently
how old?---A: Two years old and twelve months. Q: For how long have you been doing that?--- A: For the last probably – I think she’s been working – probably
the last eight months, six months.HIS HONOUR:
Q: What day is that?--- A: Thursday and Friday, and one child goes to day care. Q: On those days?--- A: No. Just on one day and that’s when my Mum and my
girlfriend come out and they stay with me.Q: Just so I get this clear – Thursday you go around there at 9
and you have both children on that day?---A: No, just one. Q: That’s the baby is it?--- A: That’s the baby. Q: And the other child goes to day care?--- A: Yes. Q: Then that’s for the four odd hours or whatever you told me?--- A: Yes. Q: Then on Friday you have both kids?--- A: Yes, at home … . Q: At your home or … ?--- A: No, their home. Q: Their home?--- A: Yes. Q: And again that’s for the four hours or whatever it is while
you’re daughter’s working?---A: Yes, yes. Q: The other three days of the week your daughter is at home
with the children?---A: Yes. And I go around to her place every day. Q: For what, just … ?--- A:
Between – and I’ll walk to school with my grandson. I can go – I can go around – I can go around there at half-past eight in the morning but I’ll walk to school with my daughter and my grandson at half-past eight, quarter to nine in the morning, walk to school and that’s my exercise.
Q:
I see, so you’ll walk to their house and then accompany either grandson with your daughter or your grandson around to school?---
A: Down to the school, yes.”[80] [80] See T 110, L21 – T 11, L21
•
When another grandchild was five, she was caring for him (assisted by her husband) four days a week.
•
If she washes her hair and uses her hands she experiences pain in the same spot in her low-back.
•
When walking she feels as though she drops her right leg which causes her to limp.
88 Under cross-examination, the plaintiff was shown various video films consisting of:
(a)
film taken on 15 August 2008 which ran for about four minutes and showed the plaintiff walking, dragging a neighbour’s empty wheelie-bin over a short distance, driving a blue Laser and bending some way to check for mail in her letterbox;
(b)
film taken on 30 April 2009 and on 13 May 2009, which showed the plaintiff assisting one of her grandchildren out of the car (by opening the door and holding his hand), chatting with someone outside a kindergarten for about twelve minutes, driving and attaching her seatbelt, carrying a bag in her right hand, and walking at a fast pace on 13 May 2009 with her grandson to the kindergarten;
(c)
film taken on 26 March 2010 for approximately half-a-minute, during which time the plaintiff was shown lifting up the wheelie-bin from the ground and wheeling it back into the property;
(d)
film taken on 26 May 2010 for sixteen minutes showing the plaintiff and a grandson moving at a fast pace towards the kindergarten and wheeling a pram with her second grandchild heading towards the local shopping centre;
(e)
film taken on 23 June 2011, the day on which she had an appointment with Dr Ian Jones, revealing her (and her husband) moving around at a tram stop, revealing her limp on her way to the doctor, and walking at the North Geelong railway station.
89 When queried about various aspects of the video films, the plaintiff gave evidence that she considered that she, on occasion, felt as though she was limping, although the film may not clearly depict it. Furthermore, on several occasions she had taken painkillers which permitted her to stride out and walk in a way which appeared normal. When queried, she considered there was no difference between the time when she was walking to the premises of Mr Ian Jones and that depicted when she had returned to Geelong in the afternoon. She also gave evidence that she believed that pushing the pram allowed her to rest on it to some degree which permitted her to walk at greater ease.
90 Under re-examination, the plaintiff gave the following pertinent evidence:
•
The difficulty about performing hairdressing work is having her arms up above the basin, which is quite high, and by doing such activity, causes pain in her low-back.
•
She would also have trouble operating the blow waver or hairdryer, which would require her to move that over the top of the head of a customer, and being on her feet for that period of time.
•
She commenced wearing the patches in 2008 (as prescribed by Dr Trainor) and continues to wear such patches. Furthermore, she takes between two and sometimes three or four Endone tablets a day, each tablet being 5 milligrams.
• Activity increases her pain level. •
She tries to go to bed, generally at around 11.00 pm, and remains in bed for about two-and-a-half hours, during which time she sleeps. After which the pain causes her to wake up. She then gets up and gets a heat pack and sits in a recliner chair until the pain starts to settle, and then she attempts to sleep in the recliner chair.
• She uses heat packs during the night to help relieve her pain. • She “arises” at any time between 5.00 am and 7.00 am. • She believes she may get five or six hours of “broken sleep”. •
When her husband’s “bag” leaked, it was necessary for her and her husband to change the bed at night.
•
Her husband, who is a croupier at Crown, has been back working full- time for about twelve months on rotating shifts.
•
When she commenced with the defendant, she would have preferred to have part-time work as a “life choice”, although the job she obtained with the defendant was thirty-eight hours per week.
•
But for the accident, she was going on to part-time work because she found the hours with the defendant long and she was required to lift lots of boxes.
•
Being a diabetic and being required to inject five times a day, it was more convenient working on a part-time basis.
•
Her preferred position was to work one day, have a day off and then work the next day et cetera.
•
At the time of hearing, she did not have any left shoulder pain nor pain in her neck.
•
When queried as to why she was standing up and sitting on one side in the seat when giving evidence, the plaintiff gave evidence that she was unable to sit normally as it caused an increase in her low-back pain.
Analysis of the Evidence
91 The plaintiff alleges that she suffered a compensable injury to her lumbar spine (involving referred right buttock pain) on or about 19 March 2003 during the course of her employment with the defendant. It is for the plaintiff to satisfy the Court as a matter of probability, that she suffered an organic injury to her lumbar spine which was a cause of the requisite consequences to satisfy the test for serious injury.
92 Distinct issues arise as to the existence, the nature and the extent of any organic back injury sustained as alleged by the plaintiff. In part, the position of the defendant is that there is no organic basis to substantiate the allegation of a low-back injury.
93 Unfortunately, the proceeding involved a wide range of what I may refer to as organic doctors which in turn gave rise to various opinions in relation to the above issues. The situation is made more difficult when one considers:
(a) the radiological examinations involving a CT scan of the lumbar spine on 10 April 2003, an MRI scan of the lumbar spine on 19 December 2003, a provocative discogram on 17 June 2005 and an MRI scan on 19 January 2007 do not demonstrate a clear cause of the pain said to be suffered by the plaintiff. However, even with such testing, some doctors consider the pain to be discogenic (for example, the orthopaedic surgeon, Mr Westh), one of mild degenerative lumbar disc and joint disease (the orthopaedic surgeon, Mr Ian Jones) or even the L4-5 annular fissure noted on the discogram by Dr Verrills (described by the occupational physician, Dr Horsley, as the primary pain generator); (b) testing of the lumbar facet joints and testing of the sacroiliac joints would suggest that these areas of her lumbar spine are not the pain generators (at least according to Dr Jensen). 94 After a consideration of all of the evidence, I find that the plaintiff did suffer a low-back injury arising out of the course of her employment with the defendant on or about 19 March 2003. I accept the opinion of one of the treating specialists, Dr Jensen, who is of the opinion that the plaintiff did suffer from “genuine somatic lumbosacral pain” coming from one or more of the physical structures related to the spinal column. Dr Verrills, another treating doctor, was of the same opinion. Reference has been made by various doctors to the plaintiff suffering “mechanical” low-back pain (for example, Mr de la Harpe, Dr Muir, Dr Horsley [in part] and Dr Wood), which would seemingly equate to a similar diagnosis as Dr Jenson.
95 Although appreciating that such a diagnosis is a general one rather than one specifying the cause of the low-back pain, I am satisfied that there is an organic basis for the production of pain in her low-back as complained of by the plaintiff.
96 Before setting out my reasons for forming such view, some comment should be made about the evidence of the plaintiff.
97 Senior Counsel for the defendant submitted with some force that the plaintiff was an “unreliable” witness and that in the absence of support from MRI scans and the like, one was very dependent on her allegations in determining the nature and extent of her low-back pain. Furthermore, Senior Counsel for the defendant submitted that the plaintiff was injury and pain focussed.
98 In my view, the plaintiff gave her evidence with a very flat affect and indeed was extremely injury and pain focussed. For reasons which I shall later expand on, I came to the view that the organic low-back injury was not of itself as severe as the plaintiff portrayed. Furthermore, I tended to the view that the plaintiff, probably unconsciously, wished to impress on the Court what she considered to be the severity of her condition. Again, for reasons which I will expand on shortly, I do not accept the plaintiff to be a totally reliable witness.
99 Notwithstanding, I have come to the view that there is a compensable organic low-back injury for the following reasons:
(a)
The plaintiff has been reasonably consistent as to the area of her symptoms in her lower back and the right buttock, with no evidence that she had any difficulties with her low-back of any significance prior to the subject injury;
(b)
There is no suggestion from any doctor that the plaintiff is “making it up” and setting out to wilfully deceive any examiner. Although appreciating doctors largely react on the assumption that the histories given to them are correct, I have gained the impression that the treating doctors in particular, accepted that she was suffering low-back pain for which, unfortunately, no clear source could be identified;
(c)
It is to be noted that the plaintiff has undergone a reasonably invasive procedure involving the discogram in an effort to diagnose the source of her pain. Furthermore, in more recent times she has undergone sheath injections which she accepts has caused some improvement in her right buttock and leg pain;
(d)
The lay evidence from Mrs Maja Neagle (contained in an affidavit sworn on 12 July 2011) paints a picture which is consistent (although not conclusive of course) of someone who is experiencing ongoing low-back pain.
100 Although I accept that the plaintiff has suffered a compensable low-back injury, I do have concerns as to the extent of such injury. Several doctors made reference to inconsistencies on examination involving straight leg raising and back movements generally. Furthermore, testing for non-organic symptoms (Waddell’s sign) suggested that there are non-organic factors playing a role in her presentation. I refer to the recent orthopaedic examinations which would all suggest a psychological stress reaction to her underlying condition (for example, see the orthopaedic surgeon, Mr Westh, who last examined the plaintiff on 3 May 2011; Dr Davison on 20 September 2010; and Mr Jones on 23 June 2011).
101 It is to be noted that none of the psychiatrists who examined the plaintiff[81] found her to be suffering any significant psychological condition. In particular, when seen by Dr Newlands on 4 March 2010 (on behalf of the defendant) and Dr Epstein on 25 May 2010 (on behalf of the plaintiff), both doctors considered her to be suffering mild symptoms which would not restrict her work capacity in any way. In particular, Dr Epstein considered that the low-back symptoms complained of by the plaintiff were predominantly a consequence of the organic injury and not due to a mental or behavioural condition. Again, after a consideration of all of the evidence, I am satisfied the plaintiff has suffered a physically-based impairment even though identification of the precise quantum of supervising psychological overlay has not been precisely quantified.[82]
[81] Dr J Honey on 31 January 2006; Dr M Epstein on 8 May 2009 and 28 May 2010; Dr C Newlands on 3 March 2004, 13 January 2005, 20 September 2006, 5 November 2007 and 4 March 2010; and Dr S Stern on 25 January 2006
[82] See Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167
102 Furthermore, after viewing all of the film material, I came to the view that there were discrepancies as to how the plaintiff presented at different times. In particular, I refer to the most recent film taken on 23 June 2011, the day on which the plaintiff attended the appointment with Mr Ian Jones. When going to the appointment on the morning, the plaintiff did move in a shuffling way and on occasions seemed to be limping. However, when filmed later that day after getting off the train in Geelong, the plaintiff walked in a normal manner with no apparent limp.
103 Other parts of the video revealed the plaintiff to be able to walk normally with no overt signs of a back disability.
104 It is convenient to consider whether the plaintiff satisfies the requisite test for establishing a serious injury entitling her to claim “pecuniary loss damages”. Section 134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of the hearing of the application she “has a loss of earning capacity …of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity as prescribed by paragraph (f) necessitates a comparison of two matters:
(a)
what the plaintiff is earning, whether in suitable employment or not or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b)
the income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).
105 In both cases, the income is limited to gross income from personal exertion and is to be annualised.
97 Section 134AB(38)(e)(ii) requires the plaintiff that she will, after the date of hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
106 In determining the “without injury” earnings, the plaintiff refers to the Claim Form completed by the plaintiff on 26 March 2003[83] wherein it is recorded that the pre-injury average weekly earnings of the plaintiff were $490.20 per week, being 38 hours at $12.90 per hour. Curiously, the Claim Form also refers to the plaintiff as being employed on a “permanent part-time” basis. The primary position of the plaintiff was that she had no retained capacity for work (and accordingly it became irrelevant to ascertain “without injury” earnings), but as a fallback position, did not “quibble” with a finding of a “without injury” earnings of around $25,000 to $26,000. Indeed, the sum of $490.20 annualised amounts to $25,490.
[83] See Exhibit 3 at page 19 PCB
107 The defendant submitted that such sum is generous, bearing in mind the evidence of the plaintiff that when she commenced with the defendant she wished to be employed on a part-time basis and but for the accident she was going to work on a part-time basis with the defendant as she found her then hours as too long and being a diabetic, it was more convenient working on a part-time basis.
108 I refer to Acir v Frosster Pty Ltd[84] wherein Forrest J, when considering “without injury” earnings, stated:
“The essence, then, of the inquiry is to fix a figure which ‘most fairly’ reflects the earning capacity of the injured worker, absent the subject injury. As I have said, usually the inquiry in determining the figure will be restricted to questions of promotion, increase in salary or loss of employment opportunity — all being said to be relevant to determining the figure that most fairly reflects the worker’s earning capacity without injury. … .”
[84] [2009] VSC 454, at paragraph 167
109 After consideration of all of the evidence, and allowing that within the requisite three years after the occurrence of the injury, it was probable that the plaintiff would perform part-time work, I consider that an appropriate “without injury” earnings to be in the order of $20,000 (that is, reducing what would otherwise be the “without injury” earnings by approximately 20 per cent to allow for the part-time work).
110 After a consideration of all of the evidence, and bearing in mind the matters which I have raised in relation to the reliability and presentation of the plaintiff, and also bearing in mind the activities undertaken with her grandchildren, I accept the evidence of the occupational physicians, Dr Horsley and Dr Davison, that the plaintiff is capable of performing lighter forms of work up to about 20 hours per week, if so motivated. When last examined by Dr Davison in 2010, he was of the opinion that the plaintiff had a capacity to work as a general sales assistant, studio assistant, shop assistant in a toy shop, shop assistant in a baby products store, product examiner and administrative assistant. Although Dr Horsley had concerns that the plaintiff had been out of the workforce for a large number of years, and the age of the plaintiff, she considered the plaintiff to have a physical capacity for part-time work of up to 15 to 20 hours per week.
111 I refer to the evidence from Ms Judith Long from Evidex, where in her report dated 20 June 2011, she sets out various wage information, including the average full-time gross weekly earnings for a fifty-seven-year-old working as a sales assistant to be $775.00 which would cover such work in a baby products store or a toy shop. Furthermore, again for a fifty-seven-year-old worker, the average full-time gross weekly earnings for a product examiner is $990.00.
112 Sixty per cent of the “without injury” earnings is $12,000 or, alternatively, approximately $230.00 gross per week. If one allowed the plaintiff capable of working 15 hours per week, such hours would generate approximately $306.00 per week if employed as a sales assistant and more if employed as a product examiner.
113 In all the circumstances, I am not satisfied that the plaintiff has discharged her onus in establishing a “serious injury” to be entitled to claim pecuniary loss damages.
114 On balance, and allowing for a certain degree of unreliability and inconsistency, which I have earlier referred to, I am satisfied that the pain and suffering consequences are such that “when judged by a comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”.
115 Although accepting that the plaintiff has some limited capacity for employment, I accept that the pain and limitations that she does suffer impacts on various aspects of her life and has done for many years and will continue to do so in the foreseeable future. There is no suggestion in any of the medical evidence, that the cessation of legal proceedings or indeed at some time in the future, the pain, to the extent that the plaintiff experiences it, will be relieved by any particular treatment (other than the sheath injections which seemingly have some impact on diminishing her buttock pain).
Conclusion
116 Accordingly, I grant leave to the plaintiff to bring Common Law proceedings for “pain and suffering damages” in respect to injuries suffered by her on or about 19 March 2003 during the course of her employment with the defendant.
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Annexure A
1 The plaintiff tendered the following material:
(a)
Exhibit 1 – Document headed “Patient History” in relation to the Quality Pharmacy Belpost Shopping Centre running from 7 September 2010 to 9 September 2011;
(b)
Exhibit 2 – Affidavits of the plaintiff sworn 1 September 2006, 7 April 2009 and 19 September 2011, together with the affidavit of Mya Neagle, sworn 12 July 2011, all found at pages 6-18C of the Plaintiff’s Court Book (“PCB”);
(c)
Exhibit 3 – The Claim Form of the plaintiff dated 26 March 2003 and the Employer Claim Report of the defendant dated 30 March 2003, found at pages 19-23 of the PCB;
(d)
Exhibit 4 – Reports from Ms J Long (Evidex) dated 12 May 2009, 20 May 2009 and 19 August 2011, found at pages 32-49S of the PCB;
(e) Exhibit 5 – Plaintiff’s wage summary found at page 57 of the PCB; (f)
Exhibit 6 – Radiological material consisting of a CT lumbar spine scan dated 10 April 2003; MRI of the lumbar spine dated 19 December 2003 and MRI of the lumbar spine dated 19 January 2007, found at pages 63A-64 of the PCB;
(g)
Exhibit 7 – Medical reports of the general practitioner, Dr S Trainor, dated 13 February 2009, 27 August 2009, 8 July 2010 and 29 September 2011; a report from Mr L Tristan dated 13 May 2002; a report from Mr A Walters dated 11 August 2003; a report from Mr R Teasdale dated 7 April 2006; a report from Ms C Heeney dated 10 November 2006; reports from the musculoskeletal physician, Dr S Jensen, dated 25 July 2005 and 10 May 2006; psychiatric report of Dr John Honey dated 31 January 2006; reports of the orthopaedic surgeon, Mr R Westh, dated 22 March 2006, 20 May 2009 and 16 May 2011, together with a letter to Mr Westh dated 6 January 2003; reports from the occupational physician, Dr Horsley, dated 21 August 2006; 15 June 2009 and 28 April 2011; report from Dr P Verrills dated 2 July 2007; psychiatric reports from Dr M Esptein, dated 8 May 2009 and 28 May 2010; medical reports from the pain specialist, Dr A Muir, dated 25 May 2009, 17 June 2010, 22 November 2010, 3 June 2011 and 1 August 2011 – such reports are to be found at pages 65-116V (save and except pages 108-112E) of the PCB;
(h)
Exhibit 8 – Medical reports of Mr J Stekelenberg, dated 23 October 2003; Mr C Mackey, dated 11 June 2004; Dr S Jensen, dated 5 March 2004, 5 July 2004, 19 September 2005 and 24 October 2006; Dr T Wood, dated 13 July 2004 and Dr P Scott, dated 26 August 2006, such reports are to be found at pages 117-139 of the PCB;
(i)
Exhibit 9 – Reports of the orthopaedic surgeon, Mr de la Harpe, dated 27 June 2005 and the reports of the orthopaedic surgeon, Mr Carey, dated 20 February 2008 and 2 June 2008.
2 The defendant tendered the following material:
(a) Exhibit A– Five separate “pain” drawings, dated 16 October 2003, 18 February 2004 and three undated; (b) Exhibit B – DVDs/films shown to the plaintiff dated 15 August 2008, 30 April 2009, 13 May 2009, 26 March 2010 and 23 June 2011; (c) Exhibit C – Operation report dated 17 June 2005; medical report from the orthopaedic surgeon, Mr C Jones, dated 29 April 2003; medical reports of the occupational physician, Dr G Davison, dated 4 July 2003, 5 November 2003, 23 March 2010, 26 September 2010 and 6 October 2010; further report dated 24 November 2010 from Dr Davison, together with letter of instruction dated 1 November 2010; psychiatric reports from Dr C Newlands, dated 5 March 2004, 17 January 2005, 2 October 2006, 12 November 2007 and 14 March 2010; report from T Wood, dated 6 October 2004; report from L Barton, dated 30 August 2004; psychiatric report from Dr S Stern, dated 25 January 2005; report from Dr D Fish dated 25 January 2006; report of Mr P Scott dated 10 September 2007, such reports are to be found at pages 5-83 of the Defendant’s Court Book (“DCB”); (d) Exhibit D – Reports from the orthopaedic surgeon, Mr I Jones, dated 25 June 2011 and 15 August 2011, together with letter of instruction dated 9 August 2011, such reports are to be found at pages 88a – 88q of the DCB.
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