Hoystead v Melbourne Cricket Club
[2011] VCC 1179
•5 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-01278
| CHERYL HOYSTEAD | Plaintiff |
| v | |
| MELBOURNE CRICKET CLUB | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 June 2011 |
| DATE OF JUDGMENT: | 5 August 2011 |
| CASE MAY BE CITED AS: | Hoystead v Melbourne Cricket Club |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1179 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with | Vincent Verduci & Associates |
| Mr M Walsh | ||
| For the Defendant | Mr N Chamings | Thomsons Lawyers |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 20 August 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
12 The plaintiff relied upon two affidavits and she was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
13 The plaintiff is presently aged fifty nine, having been born on 16 September 1951. She has been in receipt of a carer’s pension since 2005 to look after her twenty-two year old daughter who suffers from bipolar disorder.
14 In cross-examination, the plaintiff agreed that because of her daughter’s medical condition, her daughter is in need of fairly constant care. Further, the plaintiff’s daughter had a baby in November 2011 for whom the plaintiff also cares.
15 The plaintiff is permitted to earn $162 per fortnight and she receives $692 per fortnight on the pension.
16 The plaintiff presently works for the defendant on a part time basis, six hours per week on the pass-out gate at the Melbourne Cricket Ground (“the MCG”).
17 The plaintiff left school at the age of fifteen after completing Year 9. In her early years she did a hairdressing apprenticeship and married in 1968. She then worked in retail for a few months when she became ill with rheumatic fever and her family moved to Queensland. The plaintiff ultimately returned to Melbourne in December 1969 pregnant with her first child.
18 The plaintiff then worked at various factories as a labourer/process worker, in sandwich bars on and off for several years. She always worked except for time off for her pregnancies, until 1990, when she ceased full time employment.
19 The plaintiff later did casual work on the gate at the Royal Melbourne Show, Flemington Racecourse, the Geelong Show and the MCG. Since 2006, she has worked on modified duties at the MCG.
20 Prior to the said date, the only injury the plaintiff had suffered at work was a muscle tear in the soft tissues of her right shoulder whilst working as an operator for Silver Top Taxis during the 1970s. She had six weeks off work at that time and did very well thereafter and was only ever aware of some weakness in the shoulder joint from time to time but it did not interfere with any of her activities.
The Incident
21 On the said date, the plaintiff suffered injury to her back whilst at work at the MCG carrying a heavy lost child (“the child”) from the area in which she was working to the management office (“the incident”).
22 Whilst carrying the child, the plaintiff felt a severe pain in her lower back and she knew immediately she had sustained some damage. She was aware also of pain to a lesser extent in her neck. When the plaintiff reached the management office she collapsed on a chair.
23 Later that day, the plaintiff returned to her work station but was unable to continue working due to persisting pain, particularly in her lower back, and she went home.
24 As the pain continued the following day, the plaintiff attended her general practitioner, Dr Gunther, who examined her and prescribed medication and referred her for a CT scan, which was carried out on 29 August 2006. Dr Gunther also referred the plaintiff for physiotherapy which she underwent for the following year.
25 The plaintiff remained under active treatment and on 4 January 2007, she was referred by Dr Gunther for x-rays.
26 In March 2009, the plaintiff was referred to the Pain Management Clinic at the Geelong Hospital. She underwent an MRI scan of her lumbar spine later that month.
27 Dr Weaver performed medial branch nerve blocks on 15 July 2009. The plaintiff derived some benefit from those procedures. Dr Weaver also carried out ablation of medial branch nerves on 26 August 2009. This second procedure was of even greater assistance to the plaintiff than the earlier procedure.
28 The plaintiff continues to take Tramal, which is prescribed at 450 milligrams through the course of each which provides some relief from the level of symptoms. She also takes Panadol on a number of occasions each day and takes the anti-inflammatory, Celebrex, as well as anti-depressant medication.
29 The plaintiff takes slow-release Tramal when she gets up in the morning which lasts for about six hours. She then takes a shorter acting form of Tramal and always takes this medication before leaving the house. Her daily dosage of Tramal is 450 milligrams. It dulls the pain, making it a bit more bearable, making it a bit easier for her to move and function.
Current Condition
30 The plaintiff has continued to suffer ongoing spinal symptoms on a constant but variable basis. If she over-exerts herself she also finds she suffers symptoms extending down her right leg as far as the ankle and these would come on two to three times a week, depending on the range of activities undertaken.
31 By and large the plaintiff finds it easier to try and control the level of symptoms by avoiding placing too much strain on her lower back.
Work since the Incident
32 The plaintiff had about four months off work, returning to her duties on Boxing Day 2006. She continued to struggle at work and found it difficult because she was susceptible to being knocked and jolted whilst working in close proximity to other people.
33 Since December 2006, the plaintiff has worked on pass-out duties only and continues to do so to the present time as she is scared to return to the turnstile duties for fear of aggravating her injury.
34 In cross-examination, the plaintiff agreed that in the financial year ending 30 June 2006 she worked 313 hours. The following financial year she worked 272 hours (86 per cent of her previous year’s hours). In the year ending 2008, the plaintiff worked 381 hours. In 2009, she worked 295 hours.
SUMMARY OF EARNINGS
Financial Year Gross Amount 2005 $5,740
2006 $6,852
2007 $9,248
2008 $9,414
35 If the plaintiff had her choice, she would not be working and work is becoming more and more difficult. Whilst her duties are light, the plaintiff nonetheless finds even when she does those duties she suffers increased symptoms of lower back pain.
Activities
36 As a result of her back injury, the plaintiff is regularly in pain. She has difficulty doing her household chores and has to take care when doing so. She has great difficulty doing the washing and hanging out her clothes. If hanging out the washing, she brings the line down to below shoulder height to avoid straining herself. If vacuuming, she tends to vacuum one part of the house at a time and then she rests.
37 When doing any cleaning up work in the garden, the plaintiff has to take care not to over-exert herself or she pays for it later. By and large, gardening which she undertakes has been significantly restricted compared to what she used to do prior to the incident.
38 The plaintiff’s sleep is affected by reason of the pain and disability and she frequently wakes during the night. Her pain and her irregular sleeping patterns leave her feeling tired and lethargic throughout the course of the day.
39 The plaintiff also has trouble showering as well as dressing and undressing and doing her shoes up.
40 The plaintiff has eleven grandchildren and takes care not to get involved in physical activities with them.
Other Health Problems
41 In cross-examination, the plaintiff agreed that she had had a problem with her right foot/toes and also with the circulation in her right leg, both conditions which required surgery.
42 The plaintiff attended Geelong Hospital on 12 September 2007 seeking treatment regarding shooting pains into her third and fourth toes of her right foot and her second toe had pushed into the shoe and was crossed over the first. She also had some left foot problems.
43 On 16 January 2008, the plaintiff saw Dr Gunther with right leg circulation problems. On 20 February 2008, Dr Gunther noted the plaintiff was still having right leg symptoms.
44 On 3 September 2008, the plaintiff saw Dr Thompson, orthopaedic surgeon, at the Geelong Hospital, complaining of gradually worsening pain in her right forefoot and he noticed she had an over-riding clawing toe. The plaintiff’s foot pain was described as fairly constant, worsened with walking and caused her to limp somewhat. The plaintiff explained she was limping due to her back condition before this problem with her foot.
45 The plaintiff has not completely recovered from the recent foot surgery undertaken on 12 April 2011. Her foot is still somewhat sore but on the whole it has healed. She has used a walking stick because of this problem as well as because of her incident injury.
46 The plaintiff had surgery with the insertion of stents for a vascular problem in 2008. The vascular problem was extremely painful. Initially the plaintiff thought the additional leg pain was coming from her back until she was sent for tests.
47 In re-examination, the plaintiff said her right foot problems do not really have a bearing on her back. She was limping from the time of the incident because all her weight landed on her right foot. Her right leg was a problem before her foot was a problem.
48 Prior to the incident, the plaintiff did not have any problem with her feet, legs or back. She used to walk very quickly everywhere. Since the incident, her limping problem never totally went away. It worsened when she developed the other two conditions but it still remains after surgery.
49 The plaintiff was cross-examined about a number of histories as to the course of her symptoms given to doctors on medico-legal examinations.
50 The plaintiff agreed that she had also complained of neck pain at the time of the incident but it did improve.
51 The plaintiff confirmed that, whilst in September 2006 she could not sit or stand for long periods, she can now do so for longer times but still has difficulty and pain doing so.
52 The plaintiff told the rehabilitation provider in 2006 she could sit for ten minutes and then had to alter her position and could stand for five to ten minutes. Her problem is not as limited now. She can sit for about fifteen minutes or so before having to get up and move. She still has problems walking. She also has pain lifting her shopping basket and with activities of self-care.
53 The plaintiff agreed that in October 2006 there had been some improvement in her condition with physiotherapy, with her back not feeling as severely “squished”.
54 The plaintiff agreed that when she saw Dr Wyatt in February 2007, she was not having any improvement and she got sore with activity. The plaintiff explained that this is still the situation.
55 The plaintiff agreed that she told Dr Wyatt in October 2007 that her right leg was worse because she had worked the football season. The plaintiff said she no longer gets the numb feeling after walking for ten minutes that she described to Dr Wyatt on that occasion.
56 The plaintiff confirmed she told Dr Barton in June 2007 that she did not have a severe pain in the mid back; however, she described severe low back pain extending to both legs.
57 The plaintiff agreed she told Dr Bloom in May 2008 she had constant low back pain and pain into both hips, the intensity of which fluctuated between two to seven out of ten. In March 2009, she told him of constant pain in the middle of her back radiating to the low back with the intensity varying from two to eight out of ten.
58 The plaintiff confirmed she told Mr Simm in 2011 she had had pain every day since the incident. She agreed that the pain was worse in the low back, radiating to the right side and around the right buttock but there was no longer radiation of pain down the right leg. Occasionally she had some numbness and “pins and needles” in the toes and ball of her right foot.
59 The plaintiff confirmed that when she saw Dr Stockman in 2011 her pain varied from four to nine out of ten. That is still the case and her pain is constant.
Video Surveillance
60 Seven DVDs taken of the plaintiff’s activities from February 2009 to the present were shown. There was 116 minutes of film taken over twenty five different days. There were also a number of still photographs from the film taken of the plaintiff in August last year.
61 Exhibit 1, taken on 25 and 26 February 2009, was of nearly six minutes’ duration.
62 It showed the plaintiff on two mornings wheeling her shopping trolley in the local area. On the second date, the plaintiff was shown playing the poker machines between 9.55 and 10.11 am.
63 In cross-examination, the plaintiff did not agree she was apparently walking without a limp. She agreed she lifted a shopping trolley but it was empty.
64 Exhibit 2 was video surveillance of eleven and a half minutes taken on 27, 28, 29 and 30 April 2010.
65 On the first date, the plaintiff was shown carrying a small container of rubbish on four occasions and putting it in the wheelie bin on her nature strip. At one stage, the plaintiff bent to the ground to pick up a loose piece of rubbish.
66 On the second date, the plaintiff was shown taking a pram from her hatch back vehicle, folding it up and putting it in the boot lifting the hatch. She also bent inside the driver’s door to do something.
67 The plaintiff was filmed very briefly outside her home on 29 and 30 April not involved in any particular activity.
68 In cross-examination, the plaintiff agreed she was able to empty her rubbish bins, take the rubbish to the bins and bend to pick up rubbish. She could bend to get into her car. She could walk without her walking stick but not without pain. She could pull the bonnet of her car up with her left hand and possibly move in a normal fashion but not without pain. She loaded the stroller into the car with pain and was shown rubbing her back.
69 Exhibit 3 was twelve minutes of video taken of the plaintiff on 10, 11, 12 and 13 May 2010.
70 On the first three dates the plaintiff was shown standing around on the footpath outside her house not doing anything in particular.
71 On 13 May 2010, the plaintiff was again shown standing outside her house whilst a man mowed the nature strip. At times the plaintiff was shown holding her back. She moved her vehicle at one stage and when she got out she walked slowly and held her back.
72 Exhibit 4 was seventeen minutes of footage of the plaintiff taken on 23, 24 and 30 June 2010.
73 On the first two dates, the plaintiff was shown for a brief period on the footpath outside her house.
74 On 30 June 2010, the plaintiff was shown filling her hatchback vehicle at a petrol station. Whilst she bent to open the petrol cap, she put the petrol in whilst standing in an upright position.
75 On her return home, the plaintiff was shown getting a small child from the back seat of the vehicle. The plaintiff also took two garbage bags, which she explained contained pillows, and carried them whilst wheeling the stroller.
76 The plaintiff was then shown standing in the front of a laundromat, smoking and moving around slowly. She then carried the two garbage bags and wheeled the stroller back to the car and put the child and the stroller in the car. On her return home, she carried the child inside. The plaintiff was also shown bending down to pick up something from the gutter.
77 In cross-examination, when it was suggested to the plaintiff that she was not limping, she said she was shown how she normally walked and she did not consider that she was not limping. She agreed she was able to load the vehicle, put the stroller in the boot, load the child into the vehicle and get the child out, put the child into the pusher and take the child out.
78 In re-examination, the plaintiff explained that when she was shown bending she squatted with her knees.
79 Exhibit 5 was four minutes of surveillance taken on 5, 6 and 7 August 2010.
80 On the first two dates, the plaintiff was shown briefly on the footpath outside her home.
81 On 7 August 2010, the plaintiff was shown walking slowly in the supermarket carrying a shopping basket in her left arm. On leaving the shop she was shown limping and carrying a bag of shopping in her hand.
82 Exhibit 6 was eleven minutes of film taken on 9, 10 and 11 November 2010.
83 On the first date, the plaintiff was shown bringing in an empty wheelie bin from the nature strip and bending to pick a paper from the ground. She then returned to another bin on the footpath holding a child and put an item in the bin.
84 The following day, the plaintiff was shown wheeling a stroller from her home to the shops and back.
85 On 11 November 2010, the plaintiff was shown at the petrol station filling her car. She was then shown briefly at the supermarket and waiting at the checkout. She walked slowly out of the shopping centre.
86 In cross-examination, when it was suggested to the plaintiff that she was walking in a seemingly normal fashion, she said she had her good days and her bad days.
87 Exhibit 7 was thirty one minutes of film taken on 26, 27 and 28 December 2010. Over that time the plaintiff was shown travelling to work at the MCG and then shown working at the pass-out gate. On the three days, she arrived at South Geelong station at about 7.00 am. She got out of her vehicle and walked to the train using a walking stick in her right hand.
88 On 26 December 2010, the plaintiff was shown standing working at the pass- out gate at the MCG. The following day there was footage of the plaintiff walking from Jolimont station up a ramp and across the railway bridge and down the road to the gate at which she worked at the MCG, a journey which took about ten minutes, during which time she used a walking stick. At 12.38 pm, the plaintiff was shown standing working at the pass-out gate.
89 On 28 December 2010, the plaintiff was shown at 9.25 am sitting at her work station. She was later shown at 11.51 am and 1.27 pm standing performing her duties.
90 In cross-examination, the plaintiff agreed that she did not spend most of the working day seated. She always took a stick with her to work at the MCG.
91 Exhibit 8 was twenty one minutes of film taken on 11, 12 and 13 May 2011. There was only brief footage of the plaintiff driving on the first date. On 12 May 2011, the plaintiff was bent over doing something in the back of her hatchback vehicle for about a minute and she then took a baby seat inside for the vehicle. At 9.22 am, the plaintiff was shown walking quite briskly for about
92 On 13 May 2011, the plaintiff was shown at about 10.30 am bent into the rear of her hatchback vehicle for a couple of minutes. She then attended Uniting Care at Geelong for a short time. The plaintiff then drove to Geelong Food Relief. She left that premises walking slowly with a toddler whom she then put in the vehicle. The plaintiff then stood outside her vehicle having a smoke. She leaned in the door and at times lifted her leg whilst standing. At one stage a man put a box of what appeared to be groceries in the boot of the plaintiff’s vehicle. The plaintiff then picked up the car keys from the ground and drove off.
93 In re-examination, the plaintiff said she cannot bend from the waist as it is too painful and that when she was shown bending and picking up the child, she did so with her knees bent. She has been told by her physiotherapist to bend from the knees to save her back.
94 There was a still of film taken of the plaintiff’s activities on 5, 6 and 7 of August last year. She was shown going to the mailbox at home. She carried a plastic basket at the supermarket and was then shown carrying two plastic bags. The plaintiff said she would not usually carry things in two hands, but if it she was shown doing so, she would have.
95 On re-examination, the plaintiff explained that her problems breathing in the witness box were asthma related.
Compensation Documents
96 The plaintiff lodged a Claim for Compensation on 5 March 2009 for impairment benefits relating to the back, neck and anxiety state. By letter dated 20 May 2009, the insurer advised the plaintiff’s claim pursuant to s.98C of the Act was accepted in relation to the spinal injury.
The Plaintiff’s Medical Evidence
97 Dr Gunther initially reported on 9 December 2009, confirming the plaintiff saw him on 23 August 2006 with regard to back pain relating to the incident. He noted there was a return to work on modified duties after November 2006 and that the plaintiff was seeing IPAR Rehabilitation.
98 When seen on 2 January 2007, the plaintiff stated her back soreness had increased, having been elbowed in the back by a customer at work on 28 December. The plaintiff had further x-rays and returned to work on modified duties. There was a similar aggravation, after which the plaintiff was seen on 26 April 2007, and she was cleared to work on modified alternative duties.
99 On 1 August 2007, the plaintiff attended Dr Gunther complaining of an aggravation of her injury the previous week due to a chair moving backwards at work.
100 Dr Gunther reported that in 2008, investigations revealed the plaintiff had decreased circulation in her arteries supplying her leg. The plaintiff’s pain continued and she was referred to Geelong Hospital Pain Clinic where she had undergone operative procedures.
101 In his first report, Dr Gunther thought the plaintiff had sustained a chronic injury to her back and neck muscles from the incident. He thought she also had a chronic pain type syndrome which had developed as a result of her repeated injuries at work.
102 Dr Gunther commented that the plaintiff had cooperated fully with all treatment and rehabilitation. Her fear of further injury to her back was reasonable in Dr Gunther’s view.
103 In his first report, Dr Gunther noted she had residual pain and disability and would require ongoing treatment and was permanently unfit to return to her pre-injury duties or work involving repeated back movement or work in any workplace where there was a possibility of blows or trauma to her back.
104 Dr Gunther most recently reported in April 2011. He confirmed his previous diagnosis and the fact the plaintiff continued to complain of pain and was cooperative with all treatment and rehabilitation. He thought she was permanently unfit to return to her pre-injury duties and those described in his earlier report.
105 Dr Gunther’s notes from 5 March 2010 until 29 March 2011 were tendered.
106 On 3 June 2010, he noted that the plaintiff’s pain in her back persisted and she had difficulty getting out of bed or a chair and sometimes walked crooked. She was still working but had missed work because of pain and pain from train travel.
107 On 13 December 2010, it was noted back pain persisted.
108 On 22 February 2011, the plaintiff complained of soreness in her back, “+++”, stating the pain was constant and aggravated by bending; mopping floors; having a shower. There was generalised tenderness down the spine on examination. On 19 March 2011, Dr Gunther reported the plaintiff’s back was sore.
109 James Nelson, physiotherapist, reported on 23 August 2007. The plaintiff attended him on 5 October 2006 for management of her incident injuries.
110 The plaintiff reported experiencing ongoing lower back pain and also bilateral posterior thigh pain which was stronger on the right. Cervical spine pain was noted on subsequent review on 12 October 2006.
111 Mr Nelson noted that the CT scan and the x-ray showed some generalised degenerative changes of little real significance. Taking into consideration the ongoing nature and duration of the incident’s marked effect on function, he suspected that some chronic pain tendencies had become prevalent in the plaintiff’s condition. He had little doubt however that that stemmed from the incident.
112 On examination on 16 August 2007, the plaintiff had moderate disability in the performance of various activities of daily living. Bearing that in mind, Mr Nelson thought she would be precluded from performing her pre-injury duties and that her current modified duties were still appropriate, allowing her to change her position when desired and not involving strenuous physical work.
113 Mr Nelson commented that the plaintiff experienced symptomatic relief in the day of and following physiotherapy treatment. He encouraged independent exercise programs to aid her general conditioning.
114 On 26 August 2008, Dr Weaver from Geelong Pain Management performed an RF ablation medial branch nerve procedure.
115 On 24 June 2009, Dr Weaver wrote to the WorkCover agent advising that the MRI scan showed L4 disc compression, a prolapse just abutting the left L4 nerve, but not compressing it, and that the scan also showed mild to moderate low facet arthropathy with the central canal being capacious.
116 Dr Weaver advised the WorkCover agent that he had had a long discussion with the plaintiff about self-management and that he wanted to carry out branch blocks with local anesthetic as a diagnostic test to see if the facet joints were the generators of the plaintiff’s pain. He suggested to her that a pain management program would be beneficial, but noted there appeared to be issues around the plaintiff managing to do a full time course and still be a carer.
117 Dr Weaver therefore requested permission to undertake some diagnostic medial branch blocks as a possible preliminary to radio-frequency denervation as that procedure reduced the plaintiff’s pain and improved her ability to exercise and function better. The blocks were performed by Dr Weaver on 15 July 2009.
118 Dr Alex Stockman, rheumatologist, examined the plaintiff for medico-legal purposes in January 2011.
119 The plaintiff told him of the incident and her subsequent back pain and treatment. The plaintiff told him that the nerve blocks had a good result.
120 Dr Stockman also noted that the plaintiff had had an angioplasty and stenting for peripheral vascular disease in her legs in 2008.
121 On examination, the plaintiff continued to complain of constant pain across the lower lumbar region with radiation to the right buttock and down the outside of the right leg to the calf. This pain commenced shortly after the incident described. The plaintiff also complained of constant numbness in the big toes and pains in the toes.
122 The plaintiff described to Dr Stockman that the pain varied in severity from four to nine out of ten. She also continued to complain of central low cervical pain and shoulder pain which had occurred because she used a walking stick since injuring her back.
123 In Dr Stockman’s view, the plaintiff could not work at the turnstiles because incidental collision with patrons aggravated her back pain. He noted the plaintiff’s problems at home with the housework and lifting up her granddaughter.
124 On examination, movement of the lumbar spine was painful and limited in all directions, especially extension and lateral flexion which caused pain. There was normal straight leg raising and no neurological abnormalities in the lower limbs. There was a limitation of right hip movement associated with slight pain. There was also tenderness over the low lumbar spine and paravertebral muscles, as well as the ilio lumbar ligaments in both buttocks.
125 Dr Stockman noted the results of the MRI scan and the fact the plaintiff had diagnosed clawing of the right foot and possibly Morton’s neuroma.
126 Dr Stockman thought the plaintiff’s presentation was consistent with degenerative changes – disc prolapse in the cervical and lumbar spine. He thought it unlikely her condition would improve in the foreseeable future. He thought she had a significant disability in both areas and that she should continue with analgesia. He recommended repeat of the radio-frequency ablations in the lumbar regions every two to three years because the treatment had eased the plaintiff’s pain.
127 Dr Stockman concluded the pain in the plaintiff’s right leg was due to osteoarthritis of the right hip and the numbness could be related to the neuroma, neither of which were likely to be related to the incident.
128 Mr Kevin King, orthopaedic surgeon, examined the plaintiff in February 2011. He had available to him a number of medical reports and also the x-ray and MRI scan reports.
129 In addition to the incident injury of a nagging low back and bilateral buttock and thigh pain, Mr King noted the plaintiff’s problems were compounded in August 2007 when she suddenly developed severe generalised lower limb pains due to arterial obstructions in the arteries on both sides requiring surgery. Thereafter, there was marked improvement in the pain in the legs.
130 Mr King noted the quite separate symptoms of sciatic pain in both the lower limbs; however, remained unchanged both before and after the ischaemic episodes.
131 Having noted the plaintiff continued working on lighter duties at the MCG and her onerous home duties, Mr King’s overall impression was that she was a strongly motivated woman with a high pain threshold but that she was finding it difficult to manage.
132 Mr King reported that the plaintiff’s main worry was constant aching in the lower back and buttock region radiating into the backs of both thighs and intermittently over the calves. The pain was always present and of a moderate degree. To a lesser extent there was constant aching pain in the neck.
133 Mr King thought the plaintiff was a pleasant, formidable, articulate, very straightforward, middle aged woman with a rather worn appearance. He could detect no element of exaggeration and his overall impression was that she had a high pain threshold.
134 On examination of the cervical spine, there was mild to moderate limitation of movement by spasm and discomfort with approximately two thirds of the normal range of movement.
135 In the thoracolumbar spine there was moderate to quite marked limitation of low back movements by pain and spasm with approximately one third of the normal range of all movements. There was minor thoracolumbar scoliotic curve. There was no neurological abnormality of the lower limbs.
136 Mr King thought the plaintiff continued to be chronically disabled ever since the incident to a moderately severe degree by persisting low back pain radiating to both buttocks and thighs and to a lesser extent chronic neck pain. He thought she appeared to be strongly motivated with a high pain threshold.
137 Mr King noted the artery stents had an excellent result and the plaintiff had been left with low back and bilateral thigh pain which seemed to be arising entirely from the injuries to the lumbar spine and associated ligamentous structures form the incident.
138 Mr King’s overall impression was that at the age of fifty nine, the plaintiff was chronically and quite severely disabled by the combined effects of low back and bilateral leg pain and of neck pain. He could find no evidence of any psychological overlay and no evidence of any Chronic Pain Syndrome. He thought the plaintiff’s condition had stabilised.
Investigations
139 Dr Gunther organised a CT scan of the plaintiff’s spine on 29 August 2006. It was reported there was facet arthropathy, particularly at lower lumbar and lumbosacral levels. There was no pars defect or spondylolisthesis. There was minor disc space narrowing at L4-5 with no focal disc protrusion or neurological compromise identified. It was noted there was evidence of degenerative change involving the left L4 5 facet and right L5-S1 facet joints.
140 An x-ray of the thoracic and lumbar spine was carried out on 4 January 2007. In the thoracic spine there was a broad based mid to lower thoracic scoliosis convex to the left. In the lumbar spine there was compensatory scoliosis convex to the right with a slight rotatory component. L4-5 and L5-S1 facet joint degenerative changes were seen as previously demonstrated on the CT scan.
141 An MRI scan of the plaintiff’s lumbar spine was organised by Dr Weaver on 26 May 2009.
142 It was reported there was a small left foraminal disc protrusion seen at L4-5 with disc material lying adjacent to the exiting L4 nerve root. There was definite high grade neural compression. There was no central canal stenosis. There was mild facet joint degenerative change at L4-5 and L5-S1.
143 It was reported that at L5-S1, disc height signal and contour were quite well preserved. There was no disc protrusion, central canal or neural foraminal stenosis. There was mild facet joint degenerative change more prominent on the right.
The Defendant’s Medical Evidence
144 The plaintiff was first seen by occupational physician, Dr Wyatt, on 31 October 2006. Dr Wyatt was provided with the report of the CT scan.
145 The plaintiff, who was then off work, advised that she was sore in the low back and right hip, with some ongoing soreness in the neck that was less bothersome.
146 On examination, the plaintiff had a shuffle on walking and breathed heavily with movement, sighing when describing her pain.
147 There was restriction of movement of the thoracolumbar spine demonstrated in all directions. Dr Wyatt was not sure if full movements were being demonstrated. Straight leg raising was normal in the seated position. There was no muscle wasting or loss of power, and reflexes in the lower limbs were normal. There was generalised tenderness over the lumbar spine extending from the mid-thoracic area down to the lower lumbar spine.
148 Dr Wyatt thought the plaintiff had no signs of serious or worrying pathology. Pain was non-specific, present in the neck and back, and predominantly in the low back.
149 Dr Wyatt thought at that stage the work contribution was ongoing, although not expected to continue beyond another two to three months.
150 Dr Wyatt noted the physical demands in the plaintiff’s jobs were not substantial, and the substantive issue was travel and the need to walk and catch public transport.
151 Dr Wyatt thought the plaintiff presented to be fit for her pre-injury duties at that stage, and that she could alternate her positions. She noted the plaintiff should be fit to return to normal duties when required for the cricket season. She advised that if return to work duties were then available, the plaintiff should be provided with a taxi to and from the station. Dr Wyatt was not left with the impression of a strong focus on return to work at that stage, and recommended a proactive return. She thought the plaintiff was then fit for modified duties basically doing her normal job and minimising travel time.
152 Dr Wyatt thought simple analgesics could help and anti-inflammatory tablets could be worthwhile together with education about home tasks.
153 On re-examination on 13 February 2007, the plaintiff told Dr Wyatt there had been no improvement in her condition. The plaintiff had returned to work on modified duties doing pass-out work, giving her a greater degree of flexibility and the ability to sit intermittently. She was getting the bus to the train station, or someone drove her.
154 On examination, there was a reasonable range of thoracolumbar spine movement, although the plaintiff indicated some soreness on forward bending and extension. Neck movements were mildly limited in extension and associated with reports of discomfort. The plaintiff advised of tenderness, and had a withdraw reaction to palpation over her trapezius muscle area, the mid back, and to a lesser extent the low back. She indicated tenderness extended out into the paraspinal regions and up into the upper cervical spine.
155 Dr Wyatt noted the plaintiff advised x-rays had not shown any significant pathology other than a scoliosis.
156 Dr Wyatt confirmed her earlier view that examination findings did not suggest any serious or worrying problem, and that the plaintiff’s soreness was best described as neck and back pain. She noted the plaintiff had returned to increasing her activity and returned to work, and the prognosis from the incident was excellent and a long term disability was not expected.
157 Dr Wyatt thought it surprising that the plaintiff’s pain was widespread following the incident, and that one would expect simultaneous development of neck, mid and low back pain. Dr Wyatt thought the work contribution was diminishing with time, and would not be expected to continue beyond another three to four months.
158 On final examination on 23 October 2007, the plaintiff reported her right leg and hip felt worse, and after ten minutes she had a cold numbing feeling into the right foot. She continued to have mid-back shoulder-blade pain, and continued ache in the neck and shoulder area.
159 The plaintiff reported her pain averaged 7 to 8 out of 10 most of the time, and at worst 10, and best 3. She could do some household chores, but was sore afterwards when she finished the tasks.
160 The plaintiff advised two gym programs had been approved but she had not been able to attend them for various reasons. In terms of work, the plaintiff was thinking of resigning as she was not confident she would be able to return to her normal job.
161 On examination, the plaintiff walked without a limp. Back movement was restricted in all directions, and she indicated pain with most movements and cramp in her right chest wall. Thoracolumbar spine movements were shown to be half of normal, and cervical spine close to normal.
162 The plaintiff indicated generalised tenderness over her back whilst lying in a face-down position. This tenderness was not localised to any particular area, and was noted to fairly light touch. There was normal movement of the right hip area, although some soreness with movement and general tenderness. Reflexes in the lower limbs were normal, as was straight leg raising.
163 No investigations were brought to the examination.
164 Noting the reported increase in symptoms, Dr Wyatt thought it would be sensible to obtain a CT or MRI scan. She considered there was no particularly worrying problem in the low back causing right leg pain. Dr Wyatt thought the plaintiff most likely had a non-specific problem which was compounded by psychosocial factors or beliefs and attitudes.
165 Dr Wyatt thought the plaintiff’s problems would generally improve with time, noting that the symptoms were said to be more widespread than a simple localised strain.
166 Dr Wyatt considered that the plaintiff’s employment was an ongoing contributing factor and continued to materially contribute to an incapacity for work, although she considered the physical incapacity was minor, noting the plaintiff’s usual duties were not physically taxing. She thought the plaintiff remained fit for modified duties, with the ability to change posture intermittently, and avoid significant manual handling.
167 Dr Wyatt did not consider continued passive treatment was appropriate. She thought it was sensible to provide the plaintiff with ten to fifteen physiotherapy treatments over the next twelve months, which could deal with flare-ups.
168 Dr Wyatt noted the plaintiff lived in psychosocially challenging circumstances. She recommended a coordinated approach to transferring the plaintiff to independent self-management and a return to work. She concurred that the plaintiff did not have a major back problem, and the challenge was moving the plaintiff to self-management and having an understanding that she is the person that has the best chance of resolving the problem, and that hands on or other treatment is not likely to solve it. Dr Wyatt noted continued symptoms of back pain were common, and there needed to be a focus on a realistic outcome.
169 Dr Barton, consultant occupational physician, examined the plaintiff in June 2007. On examination, the plaintiff’s gait was slightly unsteady and she had difficulty walking on her heels and toes. There was no observed swelling, deformity or wasting of the lower limbs.
170 Specific examination of the back showed widespread areas of moderate tenderness throughout the lumbosacral spine bilaterally. Forward flexion was limited to reaching just above the ankles, while other back movements were reduced with complaints of pain. There was much gasping and grimacing as these limited movements were demonstrated. Axial loading produced a marked increase in the plaintiff’s back pain.
171 The plaintiff’s straight leg raising was limited to about 15 degrees bilaterally, with no increase with passive assistance. She was later able to sit upright on the couch. Sensation and reflexes were normal in the lower limbs, and muscle power was generally reduced in both legs, more in the right.
172 Having examined the plaintiff and seen the x-ray report, Dr Barton thought the plaintiff had developed a chronic pain type syndrome with strong illness beliefs supported by various health practitioners.
173 From a physical point of view, he could see no reason why the plaintiff could not undertake her normal work on the turnstile, but her strong illness belief and symptom focus made such a return to work unlikely to occur for some time yet. He did not believe work continued to be an aggravating factor, and did not consider her incapacity had a physical basis. Physically, he believed any “injury” that resulted from the incident had long since resolved.
174 Dr Bloom, occupational physician, examined the plaintiff on 6 May 2008 to determine her capacity for employment and other related matters.
175 The plaintiff then complained of constant low back pain and pain into both hips, the intensity of which fluctuated between 2 and 7 out of 10. Morning stiffness was very significant, and the plaintiff’s symptoms tended to be aggravated with all physical activity as well as travelling and walking.
176 The plaintiff walked into and out of the examination with a stick in her right hand. There was no particular limp or abnormal gait noted.
177 There was a restricted range of cervical movement by about 30 per cent globally. Examination of the dorsal and lumbar spine revealed a restricted range of movement. Extension and flexion bilaterally were achieved to no more than 10 degrees. However, forward flexion was achieved to 90 degrees, while simulated rotation was somewhat restricted.
178 The plaintiff was able to climb on and off the couch unaided. Straight leg raising was restricted to 45 degrees bilaterally, but she was able to sit to 90 degrees with straight legs. Very gentle palpation of the skin overlying the whole of the lower back revealed quite exquisite tenderness, pain and withdrawal response.
179 Neurological examination failed to reveal evidence of radiculopathy. Deep tendon reflexes were brisk and equal, and there was no evidence of muscle wasting. There was, however, some collapsing weakness in the various muscles of the right leg, as well as sensory changes in the non-anatomic distribution of the right leg.
180 Dr Bloom noted, as expected with chronic back pain, there were a significant number of positive Waddell’s signs, indicating a major psychosocial component to the plaintiff’s presentation.
181 Dr Bloom noted the CT scan and the plain x-rays. He concluded that all of the plaintiff’s imaging investigations confirmed the presence of some degenerative changes in the lower back and hips consistent with a woman in her age group with a family history of osteoarthritis.
182 Clinical examination revealed a woman who demonstrated a significant amount of abnormal illness behaviour by the use of a stick and also by a significant number of positive Waddell’s signs.
183 Based on the type of pre-injury duties, and based on the fact the plaintiff managed to carry out all normal household duties without help, Dr Bloom thought she was probably was fit to resume pre-injury duties. One of her difficulties in resuming was the fact that she now had to travel all the way from Geelong on public transport. He believed the plaintiff could change her posture frequently and avoid frequent bending and twisting, particularly whilst under load, and avoid handling items in excess of approximately six kilograms. He suggested a worksite assessment was appropriate.
184 At that stage Dr Bloom diagnosed a Chronic Pain Syndrome. He noted the plaintiff had radiological evidence of degenerative changes in the facet joints of the lower back, as well as some early arthritis in both hips. He thought there was ample evidence of abnormal illness behaviour. At that stage he thought the plaintiff had not fully rehabilitated to her pre-injury duties, and had lost confidence, developed a Chronic Pain Syndrome with strong belief symptoms, and therefore rehabilitation to pre-injury duties may prove to be very challenging.
185 A worksite assessment took place on 24 May 2008 at which Dr Bloom inspected the duties of a turnstile operator at the MCC. Dr Bloom thought they were very well within the plaintiff’s safe physical capacity and were well within her appropriate physical constraints. He considered the position would not represent a significant risk of aggravation or exacerbation of her condition, or new or further injury. He recommended at that stage, in the short to medium term while she regained some confidence at the turnstile, the plaintiff should work at gates where there was no potential for patrons to get behind her.
186 Dr Bloom re-examined the plaintiff in March 2009.
187 The plaintiff complained of constant pain in the middle of her back, radiating to the low back, of intensity from 2 to 8 out of 10. There was no radiation of pain below the low back, and no history of pins and needles or numbness into the arms or legs. The plaintiff told of problems with an aggravation of her back if she had to catch her nineteen year old daughter when she fell over.
188 Dr Bloom noted the plaintiff was working at pass-outs only, for five hour shifts, and she had no intention of returning to turnstile work.
189 On examination of the low back, there was restriction in the range of extension, lateral flexion, and simulated rotation. Flexion was to 90 degrees. Straight leg raising was to about 70 degrees bilaterally, but the plaintiff sat to 90 degrees with straight legs without discomfort.
190 Neurological examination of the low back and limbs was normal. Specifically there was no evidence of muscle wasting or weakness in any specific muscle group, and there were no sensory changes. The deep tendon reflexes were brisk and equal. There was some collapsing weakness globally in the right leg. There were other behavioural signs present, and examination of the hips revealed a significant pain response.
191 In terms of her fitness for pre-injury duties, Dr Bloom noted the plaintiff’s return to work was no more taxing than pass-outs, save that she processed fewer people.
192 The primary constraints, in Dr Bloom’s view, were related to the plaintiff’s age and underlying degenerative condition. He believed she should work avoiding prolonged static postures, frequent bending and twisting whilst under load, and handling in excess of five kilograms.
193 Dr Bloom thought the plaintiff had a chronic pain condition rather than a current injury. He considered her claimed level of disability was disproportional to the physical activities that she achieved at home, and also to her current presentation. He believed the plaintiff was under a great deal of stress in relation to her personal life, and that these factors were adversely impacting on her ability to successfully rehabilitate.
194 From a physical point of view, Dr Bloom considered there was no good evidence of any ongoing injury, and that any soft tissue injury that would have occurred two and a half years ago in the incident would have resolved well before now. Therefore, on the balance of probabilities, he believed the plaintiff’s current condition was no longer related to her work injury. He thought her presentation was one of Chronic Pain Syndrome demonstrated in a woman who was depressed and under a great deal of personal stress with a significant psychosocial component to a physical presentation of a perceived level of disability. He thought the plaintiff appeared to be well entrenched in illness behaviour related to that syndrome.
195 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 16 May 2011. He had available to him the details of the CT and x-ray but not the MRI scan.
196 The plaintiff told him that every day since the incident she had pain. Some time after developing that pain she got a walking stick which she used in her right hand when outdoors. The pain occurred in the lumbar region of the lower back and radiated to the right side and around the right buttock. The plaintiff told him there was no longer radiation of pain down the right leg, but she occasionally had some numbness and pins and needles in the toes and ball of the right foot.
197 On examination, the plaintiff presented in a straightforward manner. Mr Simm noted she displayed overt pain signs when examined. She had a walking stick in her right hand. She had a wire protruding from the right second toe.
198 Movements of the cervical spine were undertaken cautiously, and there was restricted movement in all directions, with complaint of pain on movement and sensitivity to light touch.
199 Movements of the thoracolumbar spine were moderately restricted in all directions, and there was complaint of pain on movement. The plaintiff was very sensitive to light palpation in multiple areas in the lower back, and withdrew when lightly touched. Waddell’s tests were positive for non-organic spinal pain. Neurological examination of the lower limbs revealed non-organic clinical signs. There was absent pinprick sensation throughout the entire right lower limb, and there was a mild tendency to collapsing weakness in all muscle groups. Reflexes were brisk and symmetrical.
200 Mr Simm thought the plaintiff’s clinical presentation was consistent with the diagnosis of a chronic spinal pain syndrome (“the syndrome”), noting the use of a walking stick and the positive Waddell’s signs. He noted he was unable to review the investigations, but the reports noted degenerative changes, which would be extremely common in the general population of the plaintiff’s age and not necessarily predictive of pain. Mr Simm thought the syndrome was triggered by the incident. He noted the subsequent clinical course was not consistent with the physical injury and the relatively mild non-specific underlying degenerative pathology. He thought the plaintiff had subsequently run the course of the syndrome, which included gradual extension of the symptom complex to involve the neck, shoulders and left upper limb.
201 Mr Simm thought the incident may have been responsible for initiating symptoms from underlying degenerative change in the lumbar spine but noted one would normally expect these symptoms to improve or fluctuate if persistent but in the course of the syndrome they tended to persist without change, and with a tendency to deteriorate and involve other regions of the body.
202 Mr Simm considered that the plaintiff may have residual low back pain and referred pain to the right lumbar region and buttocks with underlying degenerative change. Mr Simm thought, considering the nature of the work injury, one would not expect any permanent damage from this mechanism of injury which would influence the clinical course of any underlying degenerative pathology. He viewed the incident as an initiating event in the clinical course of chronic musculoskeletal symptoms.
203 Mr Simm thought the plaintiff’s prognosis was for the plaintiff’s condition to persist, with no prospect of improvement in the foreseeable future, and that treatment should be confined to current symptomatic conservative measures.
204 Mr Simm then went on to say that the original low back pain as a result of the incident may have related to a symptomatic exacerbation of underlying change in the lumbar spine. He noted, considering the nature of the back strain, one would expect the exacerbation to be temporary. In this case however, the plaintiff had reported persistent symptoms without any sustained period of recovery. On the basis of that history, he thought it may be accepted that there had been an unresolved aggravation of underlying degenerative change in the lumbar spine. He noted, however, there was no history of injury to the neck or shoulders, and the subsequent development of symptoms in those areas was not related to physical injury.
205 Mr Simm thought the plaintiff had a current work capacity for pre-injury employment at the MCG. He noted the plaintiff had apparently been exempted from working at the entry gate, and was now working on pass-outs, where she was less likely to be jolted or jostled. Suitable employment was currently working her pre-injury hours on the gate. He noted the plaintiff’s duties as a carer would presumably limit her availability to undertake additional hours of employment.
206 Mr Simm indicated the plaintiff would have difficulty with employment that involved bending, lifting, or physical stress on her back, and also difficulty with work that did not allow her some flexibility with sitting and standing.
207 Dr Newlands, consultant forensic psychiatrist, examined the plaintiff on 6 November 2007.
208 The plaintiff told her that she continued to experience ongoing pain which was fairly constant, though to varying degrees, and she was never pain free. After walking a distance the plaintiff noticed her right leg would drag and she had problems going to Melbourne on the train.
209 The plaintiff told Dr Newlands she felt very frustrated at her limitations, and rather depressed. She described now being rather hesitant when walking around, particularly getting on and off public transport, as she had occasional falls.
210 The plaintiff described an altered sleep pattern, stating that she tended to wake up because she could not get comfortable, and experienced cramping in her back and legs, and she was not refreshed on rising. She noted a reduction in energy and motivation and also appetite. She acknowledged being very irritable at times.
211 On mental state examination, the plaintiff was pleasant and cooperative, and her demeanour was unremarkable. Her affect was appropriate, and her recall of information for events appeared good. There was no evidence of any abnormality of stream of thought or thinking. She described no hallucinations or illusions, and she seemed fully orientated to time, place and person.
212 Dr Newlands considered whether the plaintiff had developed an Adjustment Disorder secondary to her ongoing pain and limitations, and concluded on balance, the plaintiff demonstrated symptoms which would not fulfil these criteria. She did not believe the plaintiff was suffering from a diagnosable psychiatric condition resultant upon her injury, as her symptoms did not appear to be in excess of what would be expected from the various life stresses she was exposed to, nor indeed did there appear to be a psychological reason resulting in the plaintiff having altered occupational or social functioning.
213 Dr Jager, forensic psychiatrist, examined the plaintiff on 11 May 2009. The plaintiff told him she felt angry and depressed and had reduced sleep and energy.
214 On mental state examination, the plaintiff’s speech and thought stream were fluent and coherent, and she swore at times. She repeatedly returned to themes of anger about what she saw as negative medical appraisals. She described no bizarre beliefs or abnormal sensory perceptions, was alert, and attended well to interview.
215 Dr Jager thought the plaintiff had a Chronic Pain Disorder associated with psychological factors and a likely Personality Disorder not otherwise specified. He reached this conclusion, having been told of a history of depression at twenty, and extremely difficult domestic circumstances.
Overview
216 I accept the plaintiff suffered a compensable injury to her back in the incident at work. Prior thereto, she had not had any problems with her back so there is no question of any pre-existing injury.
217 I accept that as a result of the incident, the plaintiff has suffered an aggravation of pre existing asymptomatic degenerative changes in her lumbar spine at L4-5 and L5-S1- a diagnosis made by Dr Stockman and Mr King, who had the 2009 MRI scan available to them.
218 Mr King, who found spasm on examination, considered the plaintiff’s complaints to be organically-based and genuine and he could find no evidence of Chronic Pain Syndrome.
219 Whilst at first glance Mr Simm appears of the view that the plaintiff’s condition is essentially non-organic, describing it as a chronic spinal pain syndrome, noting the plaintiff’s persistent symptoms, he thought it may be accepted that there had been an unresolved aggravation of underlying degenerative change in the lumbar spine.
220 Mr Simm had not seen the MRI scan or the report thereof. Earlier examiners Dr Wyatt, Dr Barton and Dr Bloom were in a similar position.
221 Dr Wyatt, who last saw the plaintiff in October 2007 and found the plaintiff most likely had a non-specific back problem compounded by psychosocial factors, thought the plaintiff’s employment was an ongoing contributing factor to her condition at that time. Dr Wyatt then thought it would be sensible for an MRI or CT scan to be undertaken.
222 I do not accept the view of Dr Barton, who saw the plaintiff in 2007; and Dr Bloom, who most recently saw her in 2009, that any work-related aggravation of degenerative changes resulting from the incident has ceased.
223 Further, I accept the genuineness of the plaintiff’s complaints and the views of most medical examiners that the plaintiff’s ongoing condition is organically- based and does not result from a Chronic Pain Syndrome.
224 Whilst Dr Gunther thought the plaintiff had a chronic pain type syndrome, he also thought she had sustained a chronic injury to her back muscles from the incident.
225 The radiology which the defendant’s medico-legal examiners have not seen does show some pathology in the lumbar spine with findings of a disc protrusion at L4-5 to the left and facet joint degenerative change more prominent on the right at L5-S1.
226 Of significance is that medial branch blocks carried out by Dr Weaver following receipt of the 2009 MRI results, gave the plaintiff some relief.
227 Ignoring any psychological factors as I am required to do under sub-section (h), I accept that the plaintiff has an ongoing work-related lumbar spine condition which is organically based.
Credit 228
I found the plaintiff to be a credible, genuine witness. I did not believe that she exaggerated the level of her pain or restrictions and, in my view, she gave a credible account of her condition to the various medical examiners.
229
There was nothing in the lengthy surveillance film of nearly two hours total duration taken over twenty five days which was inconsistent with the plaintiff’s viva voce or affidavit evidence. The plaintiff was simply shown over that extended period engaged in a range of routine daily domestic activities and caring for her granddaughter without any assistance from others.
230
It has never been the plaintiff’s case that she is unable to do these activities. She has maintained that she gets on with her life and daily tasks but with difficulty and pain due to her back condition and with the assistance of significant amounts of painkilling medication.
231
The plaintiff was not shown involved in any particularly vigorous activity and at times appeared to be in some distress and pain, walking with a limp, holding her back and using a walking stick.
Consequences
232 The issue is whether the consequences of the plaintiff’s impairment are serious and long term.
233 The plaintiff is a woman whose life, in recent years in particular, has involved some hardship because of her domestic situation and responsibilities.
234 Since the incident however, the plaintiff has experienced constant but variable lower back pain with pain particularly in her right leg. In an attempt to deal with this pain she requires on an ongoing basis strong painkilling medication in the form of daily Tramal and also Celebrex and Panadol.
235 The plaintiff has undergone various forms of treatment, including medial branch blocks, which have provided some relief but her problems continue.
236 Due to her back condition, the plaintiff has difficulty with prolonged sitting and standing. She also has problems walking as a result of her right leg pain and at times requires the assistance of a walking stick – particularly getting to and from work on public transport.
237 The plaintiff has difficulty sleeping due to her back pain and is tired the following day because of her disturbed sleep. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 45:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
238 Whilst the plaintiff has been able to continue working with the defendant, she has done so with difficulty. Her already relatively light duties have been modified since late December 2006 to reduce her exposure to being knocked by patrons at the gate and suffering further injury as occurred in the early days of her return to work.
239 The plaintiff continues to work out of financial necessity and would prefer not to work if she did not have to. Even working six hours a day on football and cricket days increases her back pain, as does travelling to and from work from Geelong on public transport and the walking involved in her attending work.
240 In my view, the plaintiff is a stoic. As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4, that he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
241 As Buchanan JA noted in Haden Engineering at para 47, stoicism cannot hide the fact that pain is a major component in the plaintiff’s life.
242 Due to her back condition, the plaintiff is restricted in her ability to do housework tasks such as vacuuming and hanging washing on the line. I accept that she battles on with these tasks without assistance but experiences pain whilst doing so and on the completion thereof, getting no assistance from anyone at home.
243 The plaintiff cannot drive for long distances and has difficulty doing heavy shopping. The plaintiff is restricted in the amount of gardening she can do and someone else mows her lawns.
244 I accept that whilst the plaintiff has had a problem with her right foot/ toes and also the circulation in her right leg, her continuing back-related leg problems predated these conditions which have been successfully surgically treated.
245 As Mr King noted on examination in February 2011, the quite separate symptoms of sciatic pain both in the lower limbs; however, remained unchanged both before and after the ischaemic episodes.
246 Given the duration of the plaintiff’s symptoms, I am satisfied that her back condition is likely to last into the foreseeable future.
247 Taking into account all the evidence, I am satisfied that the plaintiff has a serious and permanent impairment of her lumbar spine.
248 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering in relation to the impairment to her lumbar spine.
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