Huntley v VWA
[2018] VCC 97
•19 February 2018
aw
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01462
| ITALIA IDA CIRIACA HUNTLEY |
| v |
| VICTORIAN WORKCOVER AUTHORITY |
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JUDGE: | DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 & 10 October 2017 | |
DATE OF JUDGMENT: | 19 February 2018 | |
CASE MAY BE CITED AS: | Huntley v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 97 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; pain and suffering; neck injury; extent of
consequences
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Dwyer v Calco Timbers (No 2) [2008] VSCA 260;
Haden Engineering v McKinnon [2010] VSCA 69
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Smith with Ms B. Hutchins | Zaparas Law |
| For the Defendant | Mr J. Gorton QC with Ms S. McNaught | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Ms Italia Huntley was employed as a disability worker with Blairlogie Living and Learning Inc in 2009. She suffered injury to her neck and right shoulder when assisting to manoeuvre wheelchair-bound patients on 29 April 2015. Following some initial conservative treatment she ceased work in late May 2015 as her employer was unable to provide light work for her.
2 She is now 63 years of age and seeks leave of the court to claim damages on the basis that the injury sustained by her is a “serious injury” within the meaning of section 134AB(37) of the Accident Compensation Act 1985 (“the Act”).
3 Ms Huntley relies upon paragraph (a) of the definition of serious injury. The cervical spine is identified as the body function said to be relevantly lost or impaired. Her application is limited to pain and suffering only.
4 The defendant opposes the leave sought and raised the an issue of causation as one requiring determination. However Mr Gorton QC, who appeared with Ms McNaught on behalf of the defendant, identified the extent of consequences as the main issue between the parties.[1]
[1]Causation was later admitted during the hearing
5 Ms Huntley was the only witness required for cross-examination. Medical and other reports relied upon by the parties were tendered from their respective court books.
The lay evidence
6 Ms Huntley affirmed three affidavits in support of her application dated 4 November 2016, 11 September 2017 and 4 October 2017.[2]
[2]Exhibit A, p10-20.4
7 A further affidavit in support was sworn by her neighbour, Hugh Currin.[3] Mr Currin was not required for cross-examination.
[3]Exhibit A, p20.5-20.7
8 The defendant relied on an affidavit from its solicitor, Anna Plunkett, affirmed on 21 September 2017. This affidavit exhibited material from Ms Huntley’s Facebook account which formed the basis for much of the cross-examination.
9 In the plaintiff’s initial affidavit she described her past history and the circumstances of her employment as a disability support worker. She described her work as conducting “a variety of programs including pottery, cooking, budgeting and rock and roll, which was a form of exercise class.”[4]
[4]Exhibit A, p11[3]
10 She went on to describe the awkward bending and twisting involved in manouvering clients in wheelchairs and described feeling pain between her shoulder blades on 29 April 2015 after returning to the centre following a rock and roll class. She also made reference to having earlier neck and back pain which required treatment from a chiropractor.
11 Ms Huntley went on to describe essentially conservative treatment following the incident, and then described her ongoing pain and other symptoms.
12 The first affidavit made reference to constant neck pain and a variety of activities that were impacted. In particular, as became relevant during cross‑examination, she made reference to her love of dancing stating:
“I only go dancing once or twice a week now whereas I used to go dancing before my injury 4 or 5 times a week. I have to be careful with my movements and therefore can only have select dance partners. I cannot where high heels as I used to. I do not wear a heel more than about an inch.”[5]
[5]Exhibit A, p16[21]
13 There was further detail of the impact of her neck injury on both the dancing and other recreational and domestic activities.
14 The second affidavit described the extent of ongoing treatment being received. There was reference to physiotherapy and pilates and also the plaintiff walking for exercise. She was not at that time taking any prescription medication and stated:
“I only take over the counter medication when it is required. I currently take Panamax approximately two or three times per week.”[6]
[6]Exhibit A, p19[7]
15 Ms Huntley described the symptoms as having improved a little, stating:
“My pain really goes up and down. When it is up, I feel aching pain a lot around my thoracic shoulders and neck. Sometimes I get cramps in these areas as well.”[7]
[7]Exhibit A, p19[9]
16 The affidavit described various other treatment modalities adopted by Ms Huntley and various modifications to her activities of daily living. She was not looking for any work and stated:
“I am concerned that if I went to work that the stress on my body would be too much. I believe if I did not put so much effort into my rehabilitation my condition would deteriorate significantly.”[8]
[8]Exhibit A, p20[16]
17 The final affidavit affirmed by Ms Huntley was on 4 October 2017, very shortly prior to the hearing of her application. This was essentially a response to material contained in affidavits sworn on behalf of the defendant, which had annexed in particular a number of extracts from Ms Huntley’s personal Facebook account.
18 Central to the most recent affidavit was the plaintiff’s assertion in relation to her rock and roll dancing:
“Before I was injured I would do rock and roll dancing around for or five times per week. It is my passion. Previously I would go to dance events at the Monash Hotel on Saturday night, Beaches in Mornington on Thursday night, on Sundays I would go to a local place like The Pier or Davies… .
Now, because of my injury, I usually go only to an event on average once per week. The only dance night I attend regularly is on Wednesday nights. This is more of a get together with people that I know, I have been to this night for over 20 years so for me it is likely a family community.”[9]
[9]Exhibit A, p20.2[7] to [8]
19 Prior to being cross-examined the plaintiff gave brief further evidence indicating that her neck pain had escalated in the weeks leading up to the trial. She was currently taking medications including Tramadol twice daily and Salone which had replaced Celebrex as an anti-inflammatory.[10]
[10]Transcript (“T”) 13, Line (“L”) 3-23
20 When cross-examined the following matters emerged as being relevant to my determination:
· The pain originally started after taking patients in wheelchairs on an outing. It got progressively worse over the next couple of days.[11]
[11]T 20, L 1-8
· She denied telling her immediate boss, Andrew Drew, that her problem was not caused by work but had occurred some time ago.[12]
[12]T 21, L 2-13
· Ms Huntley agreed she had seen a general practitioner, Dr Tescher, in December 2014 complaining of low and mid-back pain followed by a shock-like sensation going up and down her right arm. She stated, “it was like a pinched nerve at that time.”[13]
[13]T 22, L 5-23
· The pain in the shoulder blades had come on after working on 29 May 2015, “lifting wheelchairs and strapping them into buses.”[14]
[14]T 23, L 22-29
· After the initial symptoms occurring on a Wednesday she had worked on the Thursday and Friday, “although I was in pain both days.”[15]
[15]T 24, L 24-30
· Ms Huntley again denied telling Mr Drew that she did not believe it had anything to do with her work and stated:
“I’d never had an injury like this previously, so I wouldn’t have – I would not have said that.”[16]
[16]T 25, L 2-7
· She could not recall saying it was not work-related, although she agreed she may have said:
“Not exact words, but I do remember not - trying not to make him feel bad.”[17]
[17]T 25, L 8-18
· The pains in December the previous year only lasted for a couple of weeks and then went.[18]
[18]T 25, L 24-30
· Ms Huntley recalled seeing a specialist, Dr Aw, on 13 July 2015 but could not recall telling him that her symptoms had improved immensely.[19]
[19]T 26, L 16 to T 27, L 4
· Apart from seeing Dr Aw, Ms Huntley had never asked for a referral to an orthopaedic or other specialist.[20]
[20]T 28, L 2-18
· She subsequently agreed that she had told Dr Aw that her symptoms were improving immensely, “at that stage, yes.”[21]
· She agreed she had told Dr Baynes in March 2017 that she was improving, but could not recall exactly what she had said. She was working on improving at the time she saw him. She denied telling him that her shoulder movements were good.[22]
· Ms Huntley denied a suggestion of overall improvement since 2015 stating:
“Well, it’s constantly there. It’s never going to go away because it’s just there, but I work on making it better by managing it.”[23]
· She had been told to discuss a pain management program with her physiotherapist but had not done anything formally about it.[24]
· Ms Huntley agreed she had done nothing further regarding a formal pain management program.[25]
[21]T 29, L 11-16
[22]T 30, L 2-20
[23]T 32, L 24-28
[24]T 33, L 14 to T 34, L 6
[25]T 356, L 11-18
21 There was further extensive cross-examination regarding Ms Huntley’s social activities. I regarded the following evidence of particular relevance to my determination:
· Her regular dancing night is a Wednesday; “It’s a social outing.”[26]
[26]T 36, L 19-25
· She attended a Melbourne Cup Day barbeque in November 2015.[27]
[27]T 37, L 22-23
· She went to the cinema in Frankston on 7 November and went out to dinner with friends on 12 November 2015.[28]
[28]T 38, L 6-12
· She explained a Facebook post by a friend stating, “She cured my feet, nine hours of dancing,” by explaining that she had been at a function from 1 o’clock until about 8.00 or 9.00, “but in between that there is eating, talking to people and socialising.”[29]
[29]T 40, L 12-24
· Ms Huntley agreed she had attended a christening on 29 November, then had a barbeque lunch and went out dancing until about 9.45.[30]
[30]T 41, L 1-31
· On 9 December 2015 Ms Huntley went to Carlton Gardens in the afternoon, attended a live band playing and stayed in town that night. She agreed she would have danced “a little bit.”[31]
[31]T 42, L 14-29
· She agreed she had gone out dancing on 12 December in Dandenong and 13 December in Moorabbin.[32]
[32]T 44, L 10-21
· Ms Huntley agreed that she had hosted Christmas dinner with her boys and their wives in 2015.[33]
[33]T 45, L 3-18
· She agreed she had gone out on New Years’ Eve in Rosebud and went out again on 8 January dancing to bands in San Remo.[34]
[34]T 46, L 4-29
· Ms Huntley agreed that on the following day she would have gone out to another function as it was a festival. She stated:
“… I would have participated both days and rested in the afternoon.”[35]
[35]T 48, L 1-20
· She agreed she had travelled to see a band in St Kilda on 15 January agreeing that she had posted, “A top night out with friends.”[36]
[36]T 48, L 30 to T 49, L 12
· On 16 January she agreed she had gone to a waterfront festival with fireworks, but disagreed that it was a dance festival.[37]
· She agreed she had attended the Ballarat Beat Festival over two days on 13 and 14 February 2016.[38]
· On 17 February 2016 she agreed she had attended another band playing in St Kilda.[39]
· She disagreed with the proposition that she was only engaged in rock and roll dancing three nights a week prior to her injury stating that she had probably done it four to five nights a week at that time.[40]
· Ms Huntley agreed that she had been to a music venue in St Kilda on 26 February and one in Ringwood two days later.[41]
· She further agreed she had attended a street music festival at Queen Victoria Market on 6 March 2016.[42]
· Ms Huntley accepted that she had gone to another venue in the Abbotsford or Collingwood area on the same day and agreed she had attended three venues and posted “big day dancing”. She stated:
“Well, that’s what I would write. It doesn’t mean I danced non-stop for four hours.”[43]
[37]T 49, L 20-27
[38]T 52, L 15 to T 53, L 2
[39]T 53, L 20-29
[40]T 55, L 11-19
[41]T 56, L 2-10
[42]T 56, L 19-28
[43]T 57, L 17-27
22 Ms Huntley agreed that she had stopped making many posts about dance activities after 9 March 2016 and agreed she had put her Facebook page on restricted access at some stage, which she agreed could have been about a year ago, prior to the hearing date.
23 Ms Huntley agreed that she had sworn in her most recent affidavit that she would usually go to an event on average once per week and only dance on one night, and further agreed that her Facebook material suggested that in the period in late 2015 and late 2016 she had attended events with much greater frequency but stated:
“Back then probably in February, January, it’s holiday time, that’s when everything is happening, so if I can get to them, I will, yeah.”[44]
[44]T 60, L 3-11
24 Ms Huntley was cross-examined in relation to her rehabilitation and attempts to obtain employment. She agreed that she had not looked for a job in the last few years and stated that she regarded her social events, such as dancing, as part of her healing.[45]
[45]T 61, L 4-19
25 She rejected the proposition that she was not working because she did not want to compromise her social activity:
“No, not necessarily. I did – I used to dance four, five nights a week, so to me, dancing is – when I used to work 45, 50 hours a week I still danced four, five nights a week it didn’t stop me dancing.”[46]
[46]T 61, L 24-29
26 Ms Huntley agreed that before she stopped working with her injury she was working four days a week. She agreed that she was paid approximately $26,000 in the 2011 financial year and $28,000 in the 2012 financial year, but stated:
“There’s always been salary sacrifice right through with working with that company.”[47]
[47]T 63, L 2-10
27 She disagreed with the proposition that she was able to drive without difficulty stating that she had trouble with turning and it was very difficult for her to keep stretching her neck.[48]
[48]T 64, L 15-29
28 Ms Huntley disagreed to some extent with a history which had been recorded by Dr Ingram in relation to her level of activity and her ability to sleep:
“… he’s written down, ‘Her sleep had occasionally been disturbed because of the pain’”?---Maybe that week I was having a good week.”[49]
[49]T 66, L 1-21
29 She agreed that with her ability to cope with the pain she had been able to remain positive, outgoing and a friendly person. She disagreed with Dr Ingram’s history that she was “cruising along”.[50]
[50]T 67, L 13-26
30 She stated:
“I’ve got an injury which I’ve got to constantly work on daily … And I’m working on it daily. A lot of hours are spent on that and I’ve got the ability to do that, because I’m not working.”[51]
[51]T 68, L 13-18
31 Ms Huntley was cross-examined about a history given to Dr Dush Shan in March 2016. She agreed that she did the household chores and the lawn mowing:
“Most of the time, yeah. I break it up over a few days or do a little bit one day and then do another bit another day.”[52]
[52]T 69, L 22-30
32 She explained that she had sworn in an affidavit that her sons mowed the lawn, but her son had recently gone to America.[53]
[53]T 70, L 10-25
33 When re-examined the following matters emerged which were relevant to my determination:
· The pain Ms Huntley had experienced in her arm and neck in 2014 was:
“… more like a pinched nerve. It was affecting my arm, and I just felt a tingle through my fingers.”[54]
[54]T 73, L 28-30
· After 2015:
“… it started off with just a gradual pain and then in the next two days it just became a very sharp stabbing pain, like a – like a knife was being stuck in my back. In the upper shoulder, right-hand side, about the middle, over the right side.”[55]
[55]T 73, L 19-30
· In relation to the symptoms since March 2017:
“They’ll get better and then they’ll just suddenly come up in a different spot and I won’t be able to even lift anything with my right hand. It just seems weak, coming from the neck. … it’s very inconsistent. It could just come on suddenly.”[56]
[56]T 74, L 19-27
· The variation in her symptoms affect her dancing in that she would have to pick partners that dance very gently and have more breaks:
“Definitely have more breaks in between, whereas once I used to just be able to go solid for about three hours.”[57]
[57]T 75, L 1-9
· In recent months she would probably go dancing once a week in addition to the Wednesday:
“Often I’ll go maybe a Saturday or Sunday.”[58]
· On a good week she might go dancing three times, but she had totally changed the way she dances and definitely has to rest.[59]
[58]T 76, L 6-16
[59]T 77, L 2-27
34 There was further re-examination directed towards other aspects of the plaintiff’s daily activities that it is unnecessary to repeat. Her evidence generally was consistent with being aware of the restrictions in her right arm and avoiding over-exertion of that limb.
35 Finally the plaintiff gave evidence about her employment, her previous work activities and the close relationship she developed with the clients.
36 The affidavit sworn by Mr Hugh Currin, the plaintiff’s next door neighbour, on 5 October 2017 was tendered into evidence.[60] This evidence is generally supportive of the allegations made by the plaintiff as to the impact of her injury on her activities of daily living at her home, although there are certain inconsistencies such as the reference to the plaintiff’s back injury, which warrant a somewhat guarded approach being taken to the matters referred to by Mr Currin.
[60]Exhibit A, p20.5 – 20.7
37 The defendant relied upon an affidavit of its solicitor, Ms Anna Plunkett, affirmed on 21 September 2017.[61] The evidence set out in that affidavit related to online searches of Facebook effectively from November 2015. Extracts from that Facebook material, including entries on Ms Huntley’s Facebook page and comments relevant to her posted by other persons, and her own comments to those other persons, formed a very substantial basis of the material upon which she was cross-examined. The period relevant for the purposes of the present application included Facebook posts between 2 November 2015 and 31 December 2016. Ultimately there was no issue taken by the plaintiff as to the actual postings, but rather comments concerning the circumstances in which the postings or comments should be viewed. I should point out that the material itself did not paint a picture which was consistent with the activities of a seriously injured person during that period. Ultimately this evidence needed to be considered in light of both the plaintiff’s explanations and the totality of the evidence in the case.
[61]Exhibit 1, p180-270
The medical evidence
38 There was no dispute that the plaintiff suffers from degenerative disc disease principally affecting the lower levels of the cervical spine. There was however some disagreement between the medical practitioners as to the extent to which Ms Huntley’s employment in April 2015 remained a contributing factor to the symptoms produced from her degenerative condition.
39 The principle area of disagreement from the various medical practitioners was the extent to which the plaintiff’s neck injury impacted upon her activities of daily living. Although the medical evidence on this issue is of assistance, ultimately the assessment of the extent of consequences must be determined on the whole of the evidence and not simply upon medical opinion.
40 The plaintiff relied upon the opinion of her general practitioner, Dr Gankin, who provided four reports between 1 September 2015 and 30 August 2017.[62] Dr Gankin’s initial diagnosis was:
“… neck pain secondary to C5/C6 disc prolapse, most likely sustained at work on or about 29th to 30th April 2015.”[63]
[62]Exhibit A, p36-42
[63]Exhibit A, p.36
41 In more recent reports he described her suffering a twisting injury to her neck and right shoulder while pushing a wheelchair, and diagnosed:
“Right foraminal stenosis at level C5/C6
Right shoulder bursitis
Anxiety and depression.”[64]
[64]Exhibit A, p38 & 40
42 Ms Huntley was referred to a rheumatologist, Dr Juan Aw, who saw her on one occasion on 13 July 2015. On that occasion he had reviewed an MRI of her cervical spine taken on 2 June 2015 and noted the commencement of symptoms as follows:
“In May of 2015, she reported having a succession of stressful days, leading up to the onset of her symptoms developing. She reported that there were multiple day trips that she had to take her clients out on the bus. It was physically demanding having to assist her clients in and out of the bus. It was over this period of time that she first experienced her symptoms.
… The symptoms were severe, with features of a burning and numb sensation in the above-mentioned region. These symptoms are suggestive of nerve impingement pain.”[65]
[65]Exhibit A, p47
43 He noted that her symptoms had improved immensely by the time he assessed her in July 2015, but there remained:
“… mild and dull ache in her Right Scapula region, and some intermittent tingling in her Right Hand.”[66]
[66]Exhibit A, p47
44 Dr Aw diagnosed an aggravation of:
“… a Right Lower Cervical Radiculopathy, possibly at the Right C5/6 level. This occurred on a background of pre‑existing degenerative disease in her spine. She is also likely to have been experiencing muscle tightness in her upper back.”[67]
[67]Exhibit A, p48
45 Dr Aw was guarded about expressing an opinion concerning the relationship between Ms Huntley’s employment and the degenerative changes now present in her neck. He did state:
“… the temporal relationship between the physical nature of her job, and the onset of the symptoms would suggest that it may have contributed to aggravating the Cervical Radiculopathy.”[68]
[68]Exhibit A, p48
46 The only other material from any treating practitioner which is of real assistance is a report from Ms Chantelle Morrissey, a physiotherapist. This report is dated 26 September 2016.[69] At that time Ms Morrissey had been treating Ms Huntley for her cervical condition which was described as:
“Stabbing pain between shoulder blades and frequent associated headaches, with pain radiating down arm at times.”[70]
[69]Exhibit A, p43
[70]Exhibit A, p43
47 Ms Morrissey noted a whiplash disability questionnaire at 32 per cent on the date of her report and a neck disability index at 50 per cent on the same date. There was no real explanation as to what these assessments actually represented. Nevertheless it was strongly suggestive of ongoing symptomatology requiring some treatment at that time.
48 An earlier chiropractic report from Drs Botros and Mikhael dated 25 June 2015 was consistent with the plaintiff’s original injury. Prudently the report written by the chiropractors suggested discontinuing chiropractic treatment, “until neurological speciality examination was undertaken.”[71]
[71]Exhibit A, p52
49 A report from an osteopath, Mr Brad Waddell, dated 2 October 2015 was also tendered in evidence.[72] This report confirmed the plaintiff presenting with right lumbo-sacral pain with symptoms extending to the right low thoracic region in 2010. The report confirmed that Ms Huntley had not seen Mr Waddell for treatment since 12 October 2010.
[72]Exhibit A, p44-45
50 Ms Huntley relied on medico-legal opinions from Dr Joseph Slesenger, specialist occupational physician, and Mr Mohammed Awad, neurosurgeon. Dr Slesenger examined the plaintiff on 18 July 2017 and provided a detailed report dated 20 July 2017. He subsequently provided two supplementary reports dated 11 August 2017 and 18 September 2017. All reports were tendered into evidence.[73]
[73]Exhibit A, p67-79.6
51 He concluded that Ms Huntley had suffered a soft tissue injury to the cervico thoracic region of the spine involving an aggravation of degenerative disease and the development of a chronic pain disorder. He did not regard the right shoulder as having suffered any particular injury”
“… but rather there is evidence of a soft tissue injury to the upper thoracic spine with associated right paraspinal impairment due to soft tissue injury of the thoracic spine and aggravation of the degenerative disease of the thoracic spine.”[74]
[74]Exhibit A, p75
52 Dr Slesenger expressed an opinion that he was:
“… satisfied that the occupational exposures are a plausible causes of Ms Huntley’s impairment with regard to the cervical and the thoracic spine.”[75]
[75]Exhibit A, p75
53 For completeness I should note that his supplementary opinions both related to questions of employment capacity which are not relevant for the present application.
54 Mr Awad initially examined Ms Huntley on 11 March 2016 and reported to the plaintiff’s solicitors on the same date. He reviewed her on 25 August 2017 and once again reported to the plaintiff’s solicitors. Both his reports were tendered in evidence.[76]
[76]Exhibit A, p80-87
55 Mr Awad diagnosed Ms Huntley in 2016 as suffering from an aggravation and acceleration of cervical spondylosis. He also supported a relationship between her employment and the development of her medical condition noting the heavy and repetitive workplace activities and specifically those performed on 29 April 2015.[77] At that stage Mr Awad regarded her prognosis as poor, but could improve with a formal pain management program.
[77]Exhibit A, p82
56 When Mr Awad re-examined Ms Huntley in August 2017 he noted her symptomatology as follows:
“1. Constant neck pain. On a good day, she describes this as a 4/10 and on a bad day it can be as bad as 8/10. It does intermittently affect her sleep and subsequently affects her daily function in multiple ways.
2. Ongoing upper thoracic back pain. This is usually associated with a flare-up of the neck pain and comes on with any form of manual activities. Again on a good day it is 4/10 and on a bad day it can be as bad as 8/10.[78]
[78]Exhibit A, p85
57 He also noted her treatment as involving “social dancing twice a week to improve mental state and physical state.”[79]
[79]Exhibit A, p85
58 His diagnosis and prognosis was expressed in similar opinions to that in his earlier report.
59 The defendant relied upon medical opinions from Mr Clive Jones and Mr Michael Dooley, orthopaedic surgeons, Dr Dush Shan, psychiatrist, and Dr Michael Baynes, occupational physician. The various medical reports were all tender in evidence.[80]
[80]Exhibit A, p1-29
60 Mr Jones examined Ms Huntley on 16 July 2015 and reported to the insurer on the following day. He diagnosed symptomatic cervical spondylosis, but questioned the relationship between Ms Huntley’s employment and the onset of symptoms. He stated:
“I understand there is a claim for a posttraumatic whiplash type injury of the neck and ribs as a result of performing normal duties and ‘stressful’ events. No particular injury likely to cause a problem of this nature was recorded. The employer is disputing the claim that stress can cause an aggravation of her physical condition.”[81]
[81]Exhibit 1, p3
61 I note that the history recorded by him did not make any reference to Ms Huntley manouvering patients in wheelchairs as was the evidence in the application before me. Mr Jones noted the following history:
“Ms Huntley did not recall any direct physical injury such as a fall or assault, but said she became aware of a sharp pain between the shoulder blades around mid April this year, following what was described as a number of ‘stressful events’ at the centre.”[82]
[82]Exhibit 1, p2
62 I should comment that Mr Jones had only examined the plaintiff within a few months of complaining of her symptoms and he anticipated her to improve and be able to return to employment in the near future.
63 Dr Shan’s report dated 1 March 2016 was relevant mainly in terms of the history recorded. He did record a detailed history noting:
“… a lot of awkward bending and twisting as she strapped several wheelchairs into place and then fastened their seatbelts. There was the loading and unloading process that occurred when they got to the destination.”[83]
[83]Exhibit 1, p7
64 He also noted her then activities as follows:
“She also kept up her own exercises. She still goes Rock n Roll dancing, but I understood it is not to the same extent as before. In the daytime she goes walking, as she finds that if she is inactive she feels worse.”[84]
[84]Exhibit 1, p7
65 Dr Shan also noted that Ms Huntley was seeing a psychologist, apparently as a result of being disappointed and stressed after the employer had told her to go home.
66 For completeness I should note that Dr Shan did not believe Ms Huntley needed to see a psychologist for any identifiable psychiatric diagnosis. He did not believe that she was suffering from any psychological injury relating to work.[85]
[85]Exhibit 1, p10-11
67 Mr Dooley examined Ms Huntley on 29 March 2016 and reported to the defendant’s solicitors on 12 April 2016.
68 Mr Dooley noted a history which involved loading of patients in wheelchairs when being transported in a bus. He also recorded the following:
“Mrs Huntley said that at times she found this work stressful. She felt that on the trips they were having to manage too many patients. She said that while carrying out this sort of work on April 29, 2015 she noted what she described as a ‘niggle’ in the right scapula region.”[86]
[86]Exhibit 1, p12
69 Mr Dooley noted the present complaints as involving ongoing neck pain and pain in the right shoulder girdle. He also noted headaches and stiffness and tightness in the neck.
70 Mr Dooley diagnosed Ms Huntley as suffering from “naturally occurring and age related degenerative disc disease of the cervical spine.” He stated further:
“Based on Mrs Huntley’s history, I believe that during the course of this work, she sustained a soft tissue injury to the cervical spine area that has involved some aggravation of her underlying degenerative disc disease.”[87]
[87]Exhibit 1, p14
71 He believed the condition was one that could be essentially soft managed with exercise, analgesia and self-inflammatory medication as required. He did not see any indication for surgery.[88]
[88]Exhibit 1, p14
72 Mr Dooley re-examined Ms Huntley on 14 February 2017 and reported again to the defendant’s solicitors on 2 March 2017. At that stage he noticed a continuance of pain and tightness in the neck and ongoing occipital headaches. He also recorded that she could have pain in her right forearm with activity and at times pain in the left forearm. He again formed the opinion that she had sustained a soft tissue injury to her cervical spine that involved some aggravation of underlying degenerative disc disease.[89]
[89]Exhibit 1, p17
73 He also expressed the view that she had a psychological reaction to her situation which was influencing her ongoing symptoms.
74 Mr Dooley regarded it as important that Ms Huntley “remains generally active and undertakes low impact exercise.”[90]
[90]Exhibit 1, p17
75 I should point out for completeness that Mr Dooley had provided a short handwritten addendum to his April 2016 report on 17 May 2016.[91] At that time he expressed the following opinion as to causation:
“Based on the history that Mrs Huntley presented her work was a significant contributing factor to the onset of organic symptoms. I remain of the view that there has been a psychological reaction to the situation that contributes to ongoing symptoms. I believe that the work-related episode of 29/4/15 contributes to her current symptoms but on balance I would not say that the contribution was significant.”
[91]Exhibit 1, p19
76 The final medical opinion relied upon by the defendant was that from Dr Michael Baynes. He examined Ms Huntley on 9 March 2017 and reported to the defendant’s solicitors on the same date. He saw her once again four months later on 12 July 2017, on this occasion in relation to a suitable employment report dated 16 May 2017. He again reported to the defendant’s solicitors on the date of his examination. Both Dr Baynes’ reports are tendered in evidence.[92]
[92]Exhibit 1, p20-29
77 Dr Baynes noted a history which was consistent with Ms Huntley’s version in her affidavit, apart from the specific event involving the moving of patients in wheelchairs on 29 April 2015. He also noted:
“She advises a change in management, and the numbers in the programs increased which meant the programs were more difficult to run and to organise, increasing issues between the clients on the program and the supervisors. She advises that she was suffering increased stress, e.g. in mid-April 2015, she was locked in the kitchen by clients whilst she was running a cooking class for 30 clients who were quite distressed by the episode. She advises that she had spoken to the CEO regarding the issues.”[93]
[93]Exhibit 1, p21
78 Dr Baynes formed the opinion that Ms Huntley was suffering from:
“… a soft tissue injury associated with the general nature of the work handling disabled clients and aggravated pre-existing widespread degenerative change in the cervical spine.”[94]
[94]Exhibit 1, p23
79 At the time of his initial assessment he regarded her as fit to work in welfare and in education and teaching in terms of art, cooking and pottery. He did not believe she was fit for heavy manual work which would include the manual handling of patients.
80 At the time of his second examination he noted a history of increasing pain in the right forearm and pain radiating into the right shoulder as well as the axilla area. These symptoms had developed approximately four weeks prior to his examination. He recorded further restrictions relating to her activities:
“Certain activities increase her pain, particularly if she is working with her right arm in an outstretched position, e.g. when she is undertaking art drawing with friends. She advises that she continues with rock and roll dancing twice a week and finds this is good for movement and also relaxation. She continues to take occasional Panamax and Advil.
… she continues to pace herself and is careful with any heavy activities. She still finds opening lids difficult, again associated with a pincer grip and sweeping does tend to cause increased pain in the right arm more recently.”[95]
[95]Exhibit 1, p26
81 His opinion remained otherwise unchanged, save for noting that her symptoms continued to wax and wane.
82 Dr Baynes’ report was otherwise concerned with suitable employment options which are not relevant to the present application.
83 The final piece of medical evidence relied upon by the defendant was an extract from the notes of Dr Paul Tescher relating to his attendances on the plaintiff on 14 October 214 and 18 December 2014.[96]
[96]Exhibit 1, p271
84 At the consultation in December 2014 the following history was noted:
“symptoms started 5-6 weeks ago, improving
initially lower & mid back pain & muscle tension, followed by
shock-like sensation going up and down right arm.
previously frequent until 2 weeks ago
triggered by reaching/grabbing motion with right arm.
has been seeing chiro & massage therapist. Had X-rays done. Dx ‘pinched nerve’.”
85 Again, for completeness I should record that Dr Tescher’s notes also made reference to lumps in the breast and a referral for an urgent mammogram and targeted ultrasound of the right breast. The remainder of Dr Tescher’s notes were canvassed in cross-examination of the plaintiff.
The competing submissions
86 The only issue to be determined in this matter was whether the consequences of the plaintiff’s aggravated neck injury satisfied the threshold test for leave to be granted. Although the defendant initially questioned the relationship between the plaintiff’s neck injury and her employment, ultimately Mr Gorton QC accepted that Ms Huntley had suffered from a work-related aggravation injury.[97] The defendant also admitted that video surveillance of the plaintiff had been conducted and obtained, although none was shown in the course of the application.
[97]T 87, L 26-29
87 Mr Gorton QC submitted that the plaintiff did not approach the threshold for a seriously injured person when a comparison was made in respect to other injuries. By way of example, Mr Gorton QC described Ms Huntley as being engaged in a full and active life, noting that her evidence showed, “I still go dancing but I have to be careful which partner I choose.”[98]
[98]T 94, L 4-7
88 The extent of the pathology said to produce consequences was described as being fairly minimal and there was no suggestion of future surgery in the present case.
89 The defendant also submitted that the clinical findings on examination were indicative only of minor restriction and there had been no referral for any specialist treatment for a period of over two years. There had been recommendations in relation to pain management programs, but the plaintiff had not availed herself of such treatment.
90 Mr Gorton QC submitted that I should be guarded in placing much reliance on the present prescription of Tramadol as he submitted that the symptoms had recently flared up and I should give little weight to the present symptomatology in determining whether or not the plaintiff had suffered permanent consequences which could fairly be described as satisfying the “serious injury test”.
91 Mr Gorton QC accepted that the plaintiff was not a fraudster or in any broad sense had set out to deceive, but stated:
“… that there was a tendency on occasions to put the best possible spin on events, in her favour, which causes Your Honour to not necessarily accept everything she says.”[99]
[99]T 100, L 5-9
92 This argument was evidenced by reference to the plaintiff’s evidence challenging medical histories recording improvement in her condition at various times.
93 Mr Gorton QC also submitted that care should be exercised in accepting the plaintiff’s evidence as to her involvement with rock and roll functions. I was urged not to accept that the plaintiff was restricted to any appreciable extent as to the number of events that she had been able to attend, although the defendant conceded that to some extent she may have modified the type of dancing in which she engages. I was referred to numerous postings recorded by the plaintiff in social media which had been the subject of cross‑examination. The defendant’s submission ultimately was that the plaintiff may have modified her behaviour to some extent, but still derived enjoyment from this activity.
94 Finally Mr Gorton QC referred me to the authority in Dwyer v Calco Timbers (No 2).[100] He submitted that the retention of social activities by Ms Huntley, albeit with some modification, was strong evidence that her application fell well short of the statutory threshold.
[100][2008] VSCA 260
95 Mr Smith, who appeared with Ms Hutchins on behalf of the plaintiff, initially referred me to the medical evidence supporting spondylotic disc disease which would be consistent with the plaintiff’s ongoing symptomatology. He referred me to the recent findings of medical examiners in relation to Ms Huntley’s neck submitting that those findings, together with the radiological material, supported the plaintiff’s claims of ongoing pain and restriction which had not been directly challenged in cross-examination.
96 Mr Smith also submitted that the recent exacerbation of pain requiring strong analgesia was indicative of the level of serious consequences that could be produced by the plaintiff’s neck injury. He did not submit that I should assess the plaintiff based on the current severe symptomatology as the present severe symptoms could not properly be viewed as permanent.
97 Mr Smith took issue with criticism of the plaintiff because she had not undergone a formal pain management program. He submitted that the plaintiff had in fact followed the advice of her physiotherapist, notwithstanding that there was no actual report tendered in evidence to support that proposition. Mr Smith urged me to accept that the evidence established that there was “no course of treatment that had been recommended for her by a medical practitioner that she hadn’t attended.”[101]
[101]T 121, L 15-26
98 Mr Smith submitted that the plaintiff’s social activity had been significantly restricted as a consequence of her injury.
“A more accurate description would be that she has very significantly moderated her lifestyle to enable her to continue in a restricted fashion, and in a much lower key the one activity that she primarily gets passion from, primarily gets enjoyment from being the dancing.”[102]
[102]T 128, L19-23
99 Mr Smith took the court through the plaintiff’s affidavits in some detail, stressing that her injury impacted not only on her dancing activity, but on numerous other aspects of her personal and recreational life. He further submitted that the fact that she had not sought alternative work should be regarded as supportive of the proposition that the consequences of her injury forced her to make significant alterations in her lifestyle. He submitted that all medical practitioners were in agreement that she was no longer fit to engage in her pre‑injury employment.[103]
[103]T 130, L 16-25
100 Mr Smith urged me to accept that the consequences of the plaintiff’s injury in terms of her lifestyle were such that she had effectively given up the enjoyment she had derived from working in order to concentrate on managing the ongoing impact of her injury on other aspects of her life. If this was the accepted position, then her levels of pain and the restrictions set out in her affidavit would justify the grant of leave.
Analysis
101 I accept the plaintiff has generally attempted to give an accurate account of the consequences of her injury in both her affidavit material and in evidence given in the application. Although it is true that the cross-examination of her focused on her Facebook postings in late 2015 and early 2016, I have concluded that the material put to her, and her responses, do not significantly alter the position deposed to by the plaintiff in her initial affidavit affirmed in November 2016. At that time the plaintiff deposed to dancing once or twice a week, whereas previously she had engaged in that activity four or five times a week. She also deposed to other modifications in that activity such as being careful in selecting her dance partners.
102 It was also clear from the defendant’s material, and particularly the affidavit affirmed by Ms Plunkett on 21 September 2017, that the defendant had access to the plaintiff’s Facebook material since January 2017, and further, there was an admission that the defendant had undertaken video surveillance of the plaintiff which was not put to the plaintiff in the course of this application.
103 I therefore conclude that I can more confidently rely on the material set out in the plaintiff’s affidavits and given in evidence by her as being supportive of the true nature and extent of the consequences flowing from her accepted neck injury.
104 Additionally, the affidavit of her neighbour, Mr Currin, despite its shortcomings, does provide some further corroboration of the plaintiff’s position. I accept that the plaintiff has ongoing neck pain which varies in intensity. I also accept that such pain impacts upon the plaintiff’s activities of daily living, and in particular her recreational activities and enjoyment of her principal leisure activity of rock and roll dancing. I further accept that the plaintiff is generally guarded about her day to day activities in the manner as deposed by her in her affidavit affirmed on 11 September 2017.[104] I note also that in that affidavit the plaintiff described her symptoms as having improved a little, “because of the amount of time and energy I put into my rehabilitation and managing my symptoms.”
[104]Exhibit A, p19[11] to [15]
105 The medical evidence is consistent in terms of the likely permanent nature and ongoing restriction resulting from the aggravation of the plaintiff’s underlying cervical degeneration. It is also conceded by the defendant that that aggravation is an accepted injury for the purposes of the Act. Notwithstanding the recorded complaint of back injury and a pinched nerve in November 2014, I am satisfied that the plaintiff’s previous ability to perform relatively heavy activities in her employment, and to engage in her recreational activity to the extent she desired, indicates a pre-injury position that was effectively unrestricted.
106 I am unable to agree with the submission carefully advanced by Mr Gorton QC that an analysis of the case would show that the plaintiff has retained capacities for her activities of daily living when an application of the principle in Dwyer[105] is undertaken. On the contrary, I am satisfied that the consequences of the neck injury to the plaintiff are such that she suffers ongoing pain and restriction of movement, probably in the order of 4/10 to 8/10 as described to Mr Awad at his examination in August 2017.[106]
[105]Dwyer v Calco Timbers (No 2) [2008] VSCA 260
[106]Exhibit A, p85
107 I also accept the restrictions noted by Dr Slesenger in his examination in July 2017 noting that Ms Huntley should avoid activities such as over shoulder reaching, sustained forward reaching, repetitive shoulder work, moving weights over five kilograms and driving longer than 30 minutes.[107]
[107]Exhibit A, p75
108 I do not accept the submission advanced by Mr Gorton QC that Ms Huntley tended to place her disability in its most favourable light either in her affidavits or in giving evidence before me. Indeed such a conclusion is reinforced by an analysis of the histories recorded by the various medical practitioners where the plaintiff acknowledged improvement or variability in the ongoing nature and extent of her condition.
109 I accept that the plaintiff’s consequences include relatively constant pain requiring some level of care to be exercised by the plaintiff in a wide range of her day to day activities. Although some assistance in the assessment of the plaintiff’s actual level of pain and suffering can be taken by an application of the principles set out in Haden Engineering Pty Ltd v McKinnon,[108] ultimately an objective analysis of the consequences suffered by the plaintiff must be made.
[108][2010] VSCA 69
110 Although I accept that the levels of medication, and the treatment being received by the plaintiff, are relatively modest, I accept that she has in fact been compliant with the advice given to her by her medical practitioners. Whilst the submission made by Mr Gorton QC that the absence of a formal pain management program could be used to infer that the plaintiff’s injury is not as serious as she would make out, I do not believe this is the only inference that can be drawn.
111 Conversely, it seems to me that on a proper analysis the plaintiff’s days are largely occupied with managing her condition and attempting to alleviate her ongoing symptoms. The pain, although variable, is relatively constant and there is certainly at least a significant impact on the manner and frequency in which she is able to engage in her principle recreational passion of rock and roll dancing. There is also considerable restriction on her other activities, including her ability to gain restful sleep and the time spent in even minor activities such as personal care where some movements or activity worsens her symptoms.
112 Thus when a comparison is made with a range of other possible impairments I am of the view that the pain and suffering consequences to the plaintiff can fairly be described as at least very considerable and more than significant or marked.
113 I propose to grant leave to the plaintiff to claim damages in respect of pain and suffering for injuries arising out of or in the course of her employment in or about April 2015.
114 I will hear the parties in relation to the formal orders sought and on the question of costs.
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