Hoile v Network Personnel Pty Ltd
[2012] VCC 1299
•12 September 2012 (revised 21 September 2012)
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00408
| PAULINE HOILE | Plaintiff |
| v. | |
| NETWORK PERSONNEL PTY LTD | Defendant |
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JUDGE: | His Honour Judge Anderson | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 5 & 6 September 2012 | |
DATE OF JUDGMENT: | 12 September 2012 (revised 21 September 2012) | |
CASE MAY BE CITED AS: | Hoile v Network Personnel Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1299 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury – Injury to lower back in workplace accident – Extent of ongoing disabling pain – Whether consequences to the plaintiff at least “very considerable” – s.134AB Accident Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W.R. Middleton SC with Ms R. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Pauline Hoile was injured in a workplace accident on 19 September 2006. She was working as a meat processor in the offal room at the Yarrawonga Abattoir. As she lifted a heavy box of meat, she later said, "I felt a crack and immediate severe pain in my lower back”.
2 Mrs Hoile sought medical attention and after some days off work returned to lighter duties in the laundry at the abattoir. She remained working in the laundry until January 2009 when she was transferred back to the offal room. She could not cope and was certified unfit for work. Two months later the abattoir closed.
3 In about August 2009 Mrs Hoile obtained work as a kitchen hand at Wangaratta Hospital. She continues in that employment working two days a week. Until about three months ago she was working approximately 30 hours each week.
4 Mrs Hoile says that the disabling symptoms in her low back have not improved and she is unable to perform many of the activities of daily living that she undertook before she injured her back. She seeks leave pursuant to s.134AB of the Accident Compensation Act 1986 to issue proceedings limited to pain and suffering damages in respect of the workplace injury.
5 The issues for determination in the application are:
a. whether for the period from April 2007 to April 2011 the back injury did not require attendance upon a medical practitioner or medication;
b. whether Mrs Hoile ceased work in January 2009 as a consequence of her back injury or as a result of unrelated psychological matters;
c. whether between about August 2009 and July 2010 she was disabled by an arthritic left knee which required regular pain relief medication and for which reconstructive surgery was performed on 11 February 2010;
d. whether her present symptoms arose from the workplace injury or there was a separate incident which required her to attend the Benalla Hospital on 18 April 2011;
e. the present nature and extent of her low back injury and its effect on the activities of daily living.
Treatment at the Yarrawonga Medical Clinic
6 After the accident, Mrs Hoile saw "the company doctor at Yarrawonga Medical Clinic”. Dr Anwer Saeed noted, "Severe back pain, specially on right side”. He certified her as unfit for work for four days. He prescribed Brufen and Tramal.
7 Mrs Hoile continued to attend the Yarrawonga Medical Clinic. Radiological examinations were conducted and she was referred for physiotherapy. From 24 October 2006, she was seen by Dr Irena Kyte. A CT of the lumbar spine on 25 October 2006 showed at the L4-5 level, "There is a diffuse annular disc bulge but no critical stenosis of the theca. There is no evidence of disc prolapse and the L4 nerves exit freely bilaterally. Marked osteoarthritic changes involve the facet joints with hypertrophy”. Dr Kyte sought to refer Mrs Hoile to an orthopaedic surgeon, Mr Michael Falkenberg. He examined the CT results and advised Dr Kyte that he "probably cannot help her in any event because her CT shows no evidence of nerve root compression”. He thought "facet joint arthritis [was] probably the cause of her pain”.
8 On 20 November 2006, Dr Kyte added a prescription for Celebrex in addition to the Tramal for pain relief. Voltaren was later added. On 3 January 2007, Dr Kyte recorded in the clinical notes that Mrs Hoile could "return to normal duties with restriction. No repetitive bending or lifting more than ten kilograms. No twisting, frequent rotation of job task. Review in three months”. On 3 April 2007, Dr Kyte in the clinical notes recorded, "Pain still there but manageable with the Celebrex. Still on modified duty”. Dr Kyte issued prescriptions for Celebrex, Tramal and Brufen, and noted that Mrs Hoile was "still on modified duty”.
9 On 16 April 2007, Mrs Hoile ceased physiotherapy after having completed 22 treatments. On the next examination on 3 October 2007, Dr Kyte noted, "Full range of movement”. She completed a medical practitioner questionnaire, recording:
a. as the diagnosis, "Osteoarthritis of the facet joints of the lumbar spine";
b. that Celebrex was prescribed "to assist with pain management";
c. that Mrs Hoile's "current work status" was "full-time pre-injury" and she was "now able to work full-time";
d. that Mrs Hoile had commenced a "self-management program" of "physiotherapy exercises".
10 After final submissions, defendant's senior counsel, Mr Middleton SC, sought to tender two bundles of WorkCover "certificates of capacity". I accepted the tender although there was no evidence that the certificates were complete. The last certificate in the first bundle was issued by Dr Kyte on 3 January 2007 clearing Mrs Hoile as "fit for normal duties" with the restrictions listed in the entry in the clinical notes that day.
11 Mrs Hoile's usual general practice was the Carrier Street Clinic in Benalla. She first attended the practice in March 2000. Mrs Hoile did not initially attend that practice in respect of the work place injury she suffered on 19 September 2006. Dr Bruce Buckley in a letter to the plaintiff's solicitors on 27 June 2012 stated, "There is no record on file here of her having been seen either by myself, nor any of my colleagues at the clinic in respect of such an injury”.
Treatment at the Carrier Street Clinic
12 On 4 April 2011, Dr Sarah Hancock from the Carrier Street Clinic attended the Benalla Hospital. Mrs Hoile had been brought to the hospital with "back pain". Dr Hancock took a history from Mrs Hoile, "Heard click in back when stood up from sitting on couch last night. No pain at that time. This morning at 0400 got up from bed to go to toilet - severe lower back pain … no leg symptoms”. The hospital "progress notes", in which Dr Hancock is described as the "medical officer", record a "history of chronic back pain with disc problems". Mrs Hoile had apparently been given morphine in the ambulance and Panadeine Forte and OxyContin at the hospital. Over the following days, Dr Hancock prescribed Panadol Osteo, Tramal and Panadeine Forte.
13 Since April 2011, the Carrier Street clinic has continued to treat Mrs Hoile for her back condition. There does not, however, seem to be a connection in the minds of the various doctors Mrs Hoile saw at the clinic between this condition and the injury she suffered at work in September 2006. The doctors were apparently unaware of the original injury, although the hospital records on 18 April 2011 (which were not prepared by Dr Hancock) noted "a history of chronic back pain”.
14 Mrs Hoile attended the Carrier Street Clinic shortly before her work place accident on 1 September 2006. She next attended on 9 January 2007 with what is described as "fibrocystic breast disease". Over the following months this matter was investigated and Mrs Hoile presented to the clinic with other seemingly serious issues, including an appendectomy in October 2007 which, in the aftermath, required prescriptions for Tramadol and Endone, and re-admission to hospital in late December 2007.
15 In January 2008, Mrs Hoile attended the clinic requesting support for a disabled permit application. The matters relied upon were pain from her arthritic left knee and "back pain". It was noted in relation to the knee that a surgeon had "advised reconstruction ten years ago". Under the heading "Management" it is noted, "Pain relief (taking Celebrex and Panadeine), referral to surgeon - X-ray of left knee”. The note about the medications is unclear. It suggests that Mrs Hoile had been "taking" Celebrex and Panadeine, although Dr Hossain "added" a prescription for Celebrex that day. The notes suggest that one week later Dr Hossain received a "lumbar spine CT", although the report of the scan does not appear to be in evidence.
16 In February 2008, Mrs Hoile had an operation at the Benalla Hospital. In the clinical notes it was described as a "Lap chole". For the pain, which was described as "persisting", Dr Buckley prescribed Endone. Over the following months prescriptions were issued for both Celebrex and Endone.
17 On 14 August 2008, after leaving work, Mrs Hoile struck a cow wandering on the road. The cow was owned by the defendant and the incident was treated as a work place accident. In the incident, Mrs Hoile struck her head. She was taken by her employer to the Yarrawonga Clinic, although she attended the Carrier Street Clinic in Benalla the following day because of a persisting headache and nausea. At the Carrier Street Clinic Dr Lee, diagnosed "concussion" and "whiplash" and requested an X-ray of the cervical spine. Mrs Hoile was off work for some time. She said she "was able to make a full recovery and return to my laundry position before the end of 2008”. A further prescription of Celebrex was issued on 26 November 2008.
18 Mrs Hoile said that she "continued to receive certificates in relation to my back injury which specified that I should not do heavy or repetitive lifting. Despite these certificates the employer transferred me back to the offal room on 5 January 2009. I was given the task of cutting and pulling the skin off meat and bending and lifting. Shortly after I commenced that day I had severe back pain and I was unable to continue. I attended my general practitioner who put me off work and about two months later the plant closed”.
19 When Mrs Hoile went to her general practice in Benalla, the history taken was, "Not coping with work, claims they are victimising her by giving her worst jobs and generally make life difficult for her and have not paid for damage to her car. Not sleeping”.
20 Dr Knight diagnosed "Depression/reactive", and prescribed Avanza. Dr Knight issued a WorkCover certificate of capacity noting that Mrs Hoile was, "Unfit for any duties" due to "work-related stress”. The bundles of certificates tendered by the defendant included a run of certificates through to 3 July 2009. This certificate noted that Mrs Hoile remained unfit for any duties until 3 August 2009, which was noted as the "next review date”.
21 Mrs Hoile attended the general practice for regular review of her stress-related condition. In addition she continued to be prescribed Celebrex with prescriptions issued on 27 February 2009 and 3 July 2009. These prescriptions were issued on occasions when Mrs Hoile attended for other matters not requiring pain relief. No note appears to have been made of the reason for the continued issue of the prescription.
22 On 3 August 2009, Mrs Hoile attended at the Carrier Street Clinic complaining, "Left knee really sore, perhaps needs total knee reconstruction. No X-ray for years”. The issue of the left knee did not appear to have been raised since the disabled parking application visit on 8 January 2008. It is not clear what medications if any were prescribed for the knee after January 2008 or after the visit on 3 August 2009.
23 On 23 September 2009, Dr Bast noted that she was in "pain" from the knee and that there was, "No relief from Celebrex. Afraid to take Endone, as it sedates her”. Dr Bast gave Mrs Hoile a Depo Medrol injection (containing Lignocaine). On 18 January 2009, Mrs Hoile received a second Depo Medrol injection. She was also prescribed Celebrex. At the next visit on 31 December 2009 Dr Buckley noted, "Good result left knee post Depo Medrol last visit”.
24 The knee reconstruction was carried out on 11 February 2010. On 2 February 2010 Dr Buckley had prescribed Panadol Osteo. On 11 March 2011 the knee was tender, inflamed and swollen. There was no specific mention of pain although Endone was prescribed together with the resumption of Celebrex.
25 Mrs Hoile continued to attend the clinic over her knee. Endone continued to be prescribed on 31 March 2010 and Celebrex on 15 July 2010. On the latter date it was noted in respect of the knee, "Pain settled" and that Mrs Hoile would "return to work from Monday week”.
26 On 29 September 2010, Dr Buckley noted, "Some problems developing with the other leg”. On 27 October, Dr Bast noted in relation to a "tender right forefoot", that Mrs Hoile "had taken Celebrex to no avail so far”. The prescription of Celebrex "ceased" and Fenac was added.
27 After the incident on 19 April 2011, which required Mrs Hoile to attend Benalla Hospital with severe back pain, Mrs Hoile continued to receive prescriptions for pain relief. On 5 July 2011, this Dr Knight recorded, "Complains of right lumbar pain, at night refers to right L4-5 distribution, her son gave her an OxyContin 40mg the other night with great relief”. Dr Knight prescribed Tramal. On 6 October 2011 Dr Buckley noted that Tramal was "ceased" as "they made her sick", "finds her son's OxyContin effective". Dr Buckley noted, "Discussion and counselling on pain control ladder … resume regular Panadol Osteo as baseline with Fenac and trial low dose Mirtazepine for starters", with a review in two weeks.
28 On 2 November 2011, it was noted that "back pain not improved" despite the medication and that a "surgical referral declined for the present". There were further attendances on 23 November 2011, 20 December 2011 and 5 January 2012, with complaints of continuing back pain and interrupted sleep with Kapanol prescribed on the last occasion. In February 2012, the Kapanol dosage was increased. In March, Dr Buckley noted, "Still waking up a few times at night, no work time lost”.
29 Generally the reason for the consultations was described as "chronic pain", although the initial presenting problem was "back pain" or "back ache" and Dr Buckley noted upon examination "obvious stiffness and restriction in movements and ambulation". At consultations in April, May and June 2012, he referred to Mrs Hoile as "moving better". The last attendance referred to in the clinical notes was on 9 August 2012. Mrs Hoile had slipped on the floor at home and "jarred her back again a bit, sorer since".
Defendant’s submissions
30 Defendant's senior counsel, Mr Middleton SC, submitted that between early 2007, when Dr Kyte considered that Mrs Hoile was fit to return to normal duties with restrictions, and April 2011 when she was taken to the Benalla Hospital after hearing a click in her back as she stood up from sitting on a couch, Mrs Hoile was not disabled by her back injury.
31 During that period of at least four years she had not sought medical treatment or obtained prescription medication, and no medical certificates were issued indicating that she was incapacitated. In the circumstances, Mr Middleton submitted the experience of back pain after April 2011 was too remote from the workplace accident in September 2006, and any continuing consequences of the injury she suffered at that time were not sufficient to satisfy the statutory test.
32 In order to consider this submission it is necessary to have regard to a number of other matters:
a. the fitness for work certification issued in early 2007 and subsequently;
b. the circumstances in which Mrs Hoile was returned to the offal room to work on 5 January 2009;
c. later complaints of back pain including to Dr Chris Grant on 28 January 2009 and Mr Steven Leitl in March 2010;
d. Mrs Hoile's assertion that between 2007 and 2011 she continued to be prescribed Celebrex for her back pain;
e. whether Celebrex was prescribed for Mrs Hoile's left knee problem rather than for her back pain.
Fitness for work certification
33 The last certificate issued by Dr Kyte in the first bundle exhibited is dated 3 January 2007. It notes that Mrs Hoile was "expected to be fit for normal duties" on the following day, subject to certain work restrictions. In the clinical notes of the examination on 3 April 2007 Dr Kyte noted, “Pain still there but manageable with Celebrex. Still on modified duty".
34 The use of the words "modified duty" contrast with the words "normal duties with restrictions" used in January. It is however in line with the references to "modified duties" or "modified duties certificate" used in the clinical notes for earlier consultations.
35 On 3 January 2007, Dr Kyte recorded, "Return to normal duties with restriction", setting out the restrictions listed on the certificate. The clinical note for 3 April 2007 suggested Mrs Hoile was at that date only fit for "modified duties" and her pain was only "manageable" because she was taking the prescription drug Celebrex. The issue of prescriptions for Celebrex and Tramal was noted.
36 The "medical practitioner questionnaire" completed by Dr Kyte on 3 October 2007 noted in response to the question "What medications are you currently prescribing?", "Celebrex 200 mg [to] assist with pain management" with the "plan" being to "try to decrease to 100 mg daily or 200 mg every second day". The questionnaire noted that Mrs Hoile was working "full-time pre-injury".
37 Although Dr Kyte did not use either of the suggested descriptions "normal duties" or "modified duties" in her answers, the answers read as though what was intended was a reference to "normal duties". The clinical notes for 5 October 2007 record, "Letter created - re Victorian WorkCover certificate". It is not clear whether this refers to the questionnaire or whether Dr Kyte in fact issued a certificate of capacity similar to those in the exhibited bundle, and whether, if she did issue such a certificate, it cleared Mrs Hoile as "fit for normal duties".
38 Following the incident on 14 August 2008 when Mrs Hoile struck a cow whilst driving home from work, Dr Kyte noted that a medical certificate was issued. That document was not produced in evidence. On 5 January 2009, Mrs Hoile was transferred back to the offal room apparently to resume her pre-injury or normal duties, although prior to the Christmas break in 2008 she had apparently returned to the modified duties in the laundry.
39 Dr Knight from the Carrier Street Clinic reported in February 2009 that after the car accident on 14 August 2008 Mrs Hoile was "off work seven weeks. Returned to work approximately October 2008". If Mrs Hoile was specifically cleared to return to her pre-injury work at that time, no certificate has been produced in evidence or is referred to in the clinical notes of the Yarrawonga Medical Clinic.
40 Mrs Hoile's evidence was that prior to January 2009 "I continued to receive certificates in relation to my back injury which specified that I should not do heavy or repetitive lifting", and that she was transferred to the offal room "despite those certificates". This evidence was not challenged, although there is no specific reference to the issue of certificates in the medical records.
Return to work in the offal room
41 The circumstances of Mrs Hoile's return to the offal room in January 2009 are not clear. Dr Knight saw Mrs Hoile on 6 January 2009. He recorded in the clinical notes, "Not coping with work. Claims they are victimising her by giving her worse jobs and generally making life difficult for her".
42 In a report to the worker's compensation insurer dated 25 February 2009, Dr Knight wrote, "In December [2008] she was made to return to the offal room despite the previous work restrictions ruling this out. She lasted one day and has not worked since due to back pain. Then became very stressed".
43 Certificates of capacity issued by Dr Knight on 6 January 2009, by Dr Bast on 16 January 2009, and Dr Buckley on 29 January and 27 February 2009, all described the injury making Mrs Hoile "unfit for any duties", as "reactive depression" or "work-related stress".
44 As previously mentioned, the clinical notes for this period do not refer to a previous injury preventing Mrs Hoile working in the offal room, ongoing certification for modified duties with restrictions and subsequent ongoing back pain after working for one day in the offal room on 5 January. Dr Knight was aware of these matters when he wrote the letter dated 25 February 2009. It is most likely they were communicated by Mrs Hoile to Dr Knight at the consultation on 6 January 2009.
45 In the letter dated 25 February 2009, Dr Knight was asked to "list your patient's presenting symptoms and indicate when each symptom was first noticed”. Dr Knight responded, "See consultation printouts as in Question 2”. Unfortunately the printouts, if they were attached to the letter, were not included in the court book. In the letter, Dr Knight noted that: "Pre injury" (which must be a reference to the stress related claim following the return to the offal room on 5 January 2009) Mrs Hoile's medications were Celebrex, Nexium and Progynova, to which were added "post injury", the anti-depressant Avanza.
Later complaints of back pain
46 On 28 January 2009, the WorkCover insurer had Mrs Hoile examined by a consultant psychiatrist Dr Chris Grant. He took a history that at the time she went off work in January 2007, "She had been on modified duties for over two years because of a pre-existing back injury at work. Her modified duties consisted of working in a laundry and cleaning which she enjoyed and felt able to manage”. She had "ongoing treatment" with physiotherapy and medication. Over time the back was "not too bad.... occasionally locks up, occasionally pain down the right leg... On 27 December 'they came and said I had to change' to the old duties where she hurt her back, without apparent discussion or consultation. The factory closed on the 19th and re-opened on 5 January. She was dismayed to find the supervisor's wife had been put into the laundry. She spent the day 'upset all day, nobody spoke to me, I cried all day’ . She attended her doctor on the 6th and has not returned”.
47 Mrs Hoile apparently told Dr Grant, "The back is 'okay and relatively stable”. Dr Grant recorded, "She takes Premarin, a non steroidal anti inflammatory, and Panadeine PRN”. There was no mention of Celebrex. Dr Grant considered that Mrs Hoile had "developed an adjustment disorder with depressed and anxious mood”. He said, "Her condition was further aggravated by a decision apparently taken by the employer to shift her from her duties in the laundry/cleaning back to a heavier job where she had sustained a previous back injury and which she thought she was not fit to resume”.
48 On 15 March 2010, orthopaedic surgeon Mr Steven Leitl examined Mrs Hoile at the request of the worker's compensation insurer. The purpose of the examination was for an "assessment of permanent impairment" in respect of what was described as "her accepted injury". Mrs Hoile gave a history to Mr Leitl of the injury to her lower back on 19 September 2006. She said that after a period off work, "She then returned to light duties in the laundry, and continued on full hours until the factory closed, although she said that at one stage she was put back in the offal room but only lasted a day because of increased back pain. Since the factory closed down she had not returned to any work but said that she was looking for cleaning jobs. During the early stages of her injury she underwent physiotherapy for three months and was then transferred to the self-management program. She was given Celebrex 200mg and Panadeine with which she has continued to the present time. She said that she had never had referral to a specialist”.
49 Under the heading "Present Symptoms" Mr Leitl recorded, "She said she was [in] constant pain in the lower back that was worsened by any bending activity such as vacuum cleaning, gardening and also when attempting to hang the washing. She continued to experience pain in the right leg that travelled from the right buttock to the right heel, and was frequently associated with pins and needles affecting the right second and third toes. She could not currently undertake any home-based exercises, partly because she was still in pain with her left total knee replacement. For pain she took an anti-inflammatory, Celebrex 200mg per day, and also took Panadeine tablets, usually two to three per day but sometimes up to six per day. She was currently using a walking stick because of ongoing left knee soreness following the left total knee replacement performed five weeks ago”.
50 Upon examination, Mr Leitl noted, "Examination of the lumbar spine showed a normal posture. There was mild sacroiliac area tenderness. There was no paravertebral muscle spasm. Her range of flexion was half normal, extension was very painful and not demonstrated at all, and lateral flexion was limited with pain particular to the right”. He described Mrs Hoile's condition as "non specific right lower back pain associated with degenerative changes in the lower lumbar spine … but without evidence of radiculopathy”.
Celebrex prescription
51 Mrs Hoile was adamant in cross-examination that she had continued to be prescribed Celebrex for her lower back until, following the flare-up in April 2011, other medication was prescribed, including OxyContin, Panadol Osteo, Tramal, Panadeine Forte and, from January 2012, Kapanol. In the Yarrawonga Medical Clinic medical records, the last date upon which it is noted that a prescription for Celebrex was issued was 3 April 2007. In the medical practitioner questionnaire dated 3 October 2007, Dr Kyte recorded that she was "currently prescribing" Celebrex 200mg and the "current plan" was to "try to decrease to 100mg daily or 200mg every second day".
52 From the Carrier Street Clinic medical records it is noted on 8 January 2008 that Mrs Hoile wanted support for her disabled parking application on the basis of pain for her arthritic left knee and "back pain", and that for "pain relief" she was taking Celebrex and Panadeine. A prescription for Celebrex was added that day.
53 It is likely in my view that prescriptions before this time had been supplied by Dr Kyte at the Yarrawonga Medical Clinic, as is confirmed by her note in October 2007. From 8 January 2008, prescriptions of Celebrex were issued by doctors at the Carrier Street Clinic.
The left knee problem
54 It is not clear whether the pain relief medication was necessary for Mrs Hoile's left knee or for her back problems. Following the consultation on 8 January, Dr Hossain ordered an X-ray of the left knee. Apparently Dr Hossain also ordered a CT of the lumbar spine which was supplied the following week although no X-ray report has been produced. Dr Hossain also referred Mrs Hoile to an orthopaedic surgeon, Mr Ian Critchley, in relation to the left knee. The referral does not appear to have been taken up at that time.
55 Prescriptions for Celebrex were issued on 13 March 2008, 18 July 2008, 26 November 2008, 27 February 2009, 3 July 2009, 10 November 2009 and 15 July 2010. On 27 October 2010 it was noted that Celebrex prescription were ceased and Fenac was added. After Mrs Hoile’s admission to hospital in April 2011, other pain relief medication was prescribed.
56 Confirmation that Mrs Hoile was being prescribed Celebrex for her back pain gains some support from:
a. Dr Knight’s listing of “pre-injury” medication (i.e. what she was taking before she went off work with “stress” and “reactive depression” in January 2009.) In his report to the insurer dated 26 February 2009, the medication included Celebrex;
b. Mr Leitl’s history taken on 15 March 2010 that following her back injury in September 2006, “She was given Celebrex 200mg and Panadeine with which she has continued to the present time”.
57 Mrs Hoile apparently first notified the Carrier Street Clinic of her left knee problem on 8 January 2008 in relation to her disabled parking application. The knee was next mentioned on 3 August 2009 (“left knee really sore”) when Mrs Hoile was seeking a “clearance so she can start another job”. A referral was made to an orthopaedic surgeon, Mr Warren Seeger, later in August 2009 and on 23 September 2009 it was recorded that she was on a waiting list for a total knee reconstruction. There was “no relief from Celebrex” and a Depo-Nisolone injection was administered and repeated on 18 November 2009. Celebrex was again issued on that day. The knee surgery was carried on 11 February 2010.
58 Mrs Hoile was apparently cleared to return to work on about 25 July 2010. It seems clear that at some time prior to August 2009, Mrs Hoile became concerned about pain from arthritis in her left knee problem, in respect of which a surgeon had advised reconstructive surgery over 10 years previously. It took almost 12 months before Mrs Hoile recovered sufficiently from the operation in order to return to work.
59 It is difficult to say categorically whether the Celebrex (first prescribed by Dr Hossain on 8 January 2008) was prescribed for the knee, the back or for general pain relief for both conditions. I am satisfied, however, that Mrs Hoile was being prescribed Celebrex virtually continuously from November 2006 to October 2010 and that it is therefore most probable that Mrs Hoile believed she was taking the medication for the back pain resulting from the workplace accident in September 2006. Mrs Hoile was prescribed alternative pain medication in October 2010 and after the admission to the Benalla Hospital in April 2011, different medication regimes.
60 I have examined these matters in some detail because they were the matters primarily covered by Mr Middleton SC in cross-examination and final submissions. It was both an issue which related to Mrs Hoile’s credibility and to the critical issue of the effect her pain had or was likely to have had upon her ongoing capacity to perform the activities of day to day living.
61 I consider for the reasons I have given in my analysis of the evidence that:
a. Mrs Hoile continued to be affected by disabling back pain in the period after Dr Kyte’s certificate of capacity dated 3 January 2007 to at least into 2011;
b. The incident which led to Mrs Hoile’s hospitalisation on 18 April 2011 was an exacerbation of the workplace injury to her back;
c. The treatment Mrs Hoile has received through the Carrier Street Clinic both after January 2008 and after April 2011 in relation to her back condition is directly referrable to the workplace accident in September 2006.
Effect on activities of daily living
62 In her affidavit material, Mrs Hoile deposes to the effect her back injury and the disabling pain she experiences has had upon her life. Mrs Hoile was cross-examined about these matters in only a very limited way. The evidence establishes that before the accident Mrs Hoile said she had no problem with her back. Her general practitioner, Dr Buckley, examined her on 16 June 2004 and assessed her as fit to be employed in the offal room at the abattoir.
63 Before that job, Mrs Hoile had spent eight years working as a machinist at the Cleckheaton Spinning Mill at Benalla, six years out of the workforce raising her children and a further eight years at Monsbent packing boards. She lived on a small farm running about a hundred sheep with her partner. She helped with the general tasks required for shearing, crutching and marking. She mowed the lawns, maintained “an extensive flower garden” and helped collect firewood. At work she performed physically demanding manual work. She socialised, went to pubs to listen to bands and dance, played squash and indoor cricket and sewed with a machine. She played with her grandchildren.
64 After the accident, Mrs Hoile worked in alternative duties in the laundry at the abattoir. The abattoir closed in February 2009. She found employment as a kitchen hand at the Wangaratta Hospital in about August 2009; this was much lighter work and included preparation of the meal trays and distribution of the meal trays to patients. Although she required time off work from February to July 2010 to recover from her knee operation, she remains in that job. At times at work, "As a result of being on my feet for prolonged periods of time I often sneak out and go and rest in the restroom”. She finds it "difficult enough" working "on reduced hours".
65 In terms of her other activities:
a. Mrs Hoile avoids "farm activities because they bring on more severe back pain";
b. she now longer helps collect wood;
c. she has curtailed her gardening activities, initially she did not do the heavier work, now she is not "able to do any work in the garden";
d. her intimate relations with her partner have diminished to "effectively nil", their "social lives have been greatly affected", she rarely feels "motivated to do anything";
e. her sleep is affected and she sleeps separately from her husband so as not to disturb him, she wakes in the morning "feeling tired as a result of a restless night";
f. domestic chores are a burden, she can no longer "do vacuuming or make the beds" and can rarely do ironing. Cooking, clothes washing, and cleaning tasks are now more limited;
g. "any repetitive or heavy lifting, bending or twisting aggravates the pain";
h. the pain often goes down her right leg;
i. the pain is "made much worse by the cold weather";
j. driving for more than one to one and a half hours "becomes particularly uncomfortable";
k. "sitting for prolonged periods aggravates my pain";
l. she is limited to "smaller shopping";
m. she does not play squash or indoor cricket;
n. she does not sew with her machine;
o. she is limited in her interaction with her nine grandchildren.
Specific issues
66 Mr Middleton challenged Mrs Hoile's assertion in her second affidavit sworn 28 August 2012 that, "Due to the relative inactivity because of my back injury I have gained weight. Before my injury I was wearing Size 16 pants, however now I am wearing Size 20 pants”. The Carrier Street Clinic records Mrs Hoile's weight over many years. In the following table measurements by other doctors are included:
4 August 2000 90kg 12 October 2001 85kg 6 September 2002 87kg 21 March 2003 82kg 20 June 2003 82kg 16 June 2004 94kg 6 August 2007 93kg 25 February 2008 81kg 30 March 2009 89kg 8 April 2009 91kg 2 February 2010 92kg 15 March 2010 88kg Mr Leitl 6 October 2011 96kg 2 November 2011 99kg 2 December 2011 96kg Mr Brearley 20 December 2011 99kg 5 January 2012 99kg 2 July 2012 96kg Mr Jones 12 July 2012 96kg Dr Yong
67 These records confirm that at the time Mrs Hoile commenced at the abattoir she was 94kg and, about ten or 11 months after the injury, she was 93kg. Six months later, she was recorded at 81kg. Her weight increased to 99kg in November 2011 and by July 2012 was still 96kg.
68 I see no reason to doubt that Mrs Hoile genuinely believed in August 2012 that her weight had increased since her injury. It had increased after February 2008. Her weight had, however, probably decreased from what it was when she was injured. In my view this is not a matter that has any significant impact upon Mrs Hoile's credibility.
69 The physiotherapist, Mr Hart, "discharged" Mrs Hoile on 16 April 2010 after 22 treatments and after two appointments were cancelled. Mr Hart recorded her as saying at that time, "She was feeling pretty good and had nil complaints”. Mrs Hoile said in evidence she had not said that to Mr Hart.
70 Mr Middleton also challenged Mrs Hoile's statement about her intimate relations with her partner. He referred Mrs Hoile to a note recorded by Dr Bast on 24 August 2007 (about 11 months after the injury) noting that Mrs Hoile had "no intimacy" with her partner for "over last four years". Mrs Hoile said she could not remember saying this to Mr Bast and said in re-examination that up until her back injury she had intimate relations with her partner. They slept together and went out socially together.
71 There is a direct inconsistency between the medical record and Mrs Hoile's evidence. It is, however, the only matter which might cast any doubt upon her evidence. It concerns a delicate issue. There is the possibility of misunderstanding or mis-recording. I would not be prepared, in the absence of evidence of other matters, to doubt Mrs Hoile's descriptions of the disabling effect of her back pain.
Medico-legal opinions
72 The medico-legal examiners all approached their task on the basis that it was accepted that Mrs Hoile had injured her back in the work place accident, and that after the accident it became symptomatic.
73 There is general agreement as to the diagnosis and prognosis:
a. Mr David Brownbill, a consultant neurosurgeon, examined Mrs Hoile at the request of her solicitors on 9 November 2011. His diagnosis was, "Aggravation of pre-existing symptomatic lumbar spine degenerative changes [which gave] rise to ongoing pain but without signs of radiculopathy”. He thought that her impairment was "likely to restrict her in relation to social, domestic and recreational activities in a moderate to marked degree and I consider such incapacity will continue for the foreseeable future”. After re-examining Mrs Hoile on 21 August 2012, he confirmed his earlier advice and stated, "I consider that on probability pain will continue in a fluctuating manner indefinitely”;
b. Mr Kenneth Brearley, a consultant orthopaedic surgeon, examined Mrs Hoile at the request of her solicitors on 2 December 2011. His diagnosis was, "Mechanical lumbar back pain secondary to aggravation of pre-existing degenerative changes in the lower inter-vertebral discs and in the facet joints. She does have symptoms of nerve root irritation, but there is no frank evidence of radiculopathy”. As to his prognosis, he said, "This is poor. There is no likelihood of any improvement. Her condition is stabilized for practical purposes”;
c. Mr Ian Jones, an orthopaedic surgeon, examined Mrs Hoile at the request of the defendant's solicitors on 28 June 2012. He said, "This patient suffers from symptoms of back pain and stiffness secondary to degenerative changes in the facet joints in the lower three levels of her lumbar spine, particularly at L4-5 … I am unable to detect any functional symptoms or signs in this patient … This patient's condition would preclude her from engaging in heavy work requiring frequent bending or lifting. A lift limit of 3kg would be appropriate in light of her back condition and limits on her requirement to bend below waist level would be required. With appropriate restrictions as described above I believe this patient could work at her current casual job of two days a week on a full-time basis”;
d. Dr Dominic Yong, a specialist occupational physician, examined Mrs Hoile at the request of the defendant's solicitors on about 12 July 2012. His diagnosis was that Mrs Hoile had "aggravated a degenerative back condition". Dr Yong said, "There is no evidence of any functional component to the worker's condition”. He thought that she had a "current capacity for work" with appropriate restrictions.
Conclusions
74 I consider that the evidence establishes that for a period of about seven years, Mrs Hoile has suffered the consequences of the back injury she incurred at work. Pain has significantly affected her life, requiring constant medication and curtailment of many activities, including her work as well as domestic, social and recreational pursuits. In my view, the consequences to her of the impairment to her back should fairly be described as "very considerable".
75 The plaintiff will have leave to bring a proceeding limited to pain and suffering damages in respect of the injury to her back in the workplace accident on 19 September 2006.
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Certificate
I certify that these 18 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 12 September 2012 and revised on 21 September 2012.
Dated: 21 September 2012
Catherine Kusiak
Associate to His Honour Judge Anderson
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