Huzony v Patterson Cheney Pty Ltd
[2016] VCC 1880
•8 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00184
| GEORGINA HUZONY | Plaintiff |
| v | |
| PATTERSON CHENEY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 July 2016 | |
DATE OF JUDGMENT: | 8 December 2016 | |
CASE MAY BE CITED AS: | Huzony v Patterson Cheney Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1880 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury, low-back injury – paragraph (a) – leave sought for pain and suffering and pecuniary loss damages – whether worker suffered a relevant compensable injury – whether any back injury a cause of pain and suffering consequences and/or pecuniary loss consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Mobilio v Balliotis [1998] 3 VR 833; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Woolworths Ltd v Warfe [2013] VSCA 22; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Petkovski v Galletti [1994] 1 VR 436; Dressing v Porter [2006] VSCA 215
Judgment: Judgment for the plaintiff. The plaintiff is granted leave to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect of a back injury suffered during the course of her employment from 20 October 1999 to the cessation of her employment in 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC with Ms J Zhu | Adviceline Injury Lawyers |
| For the Defendant | Mr R H Stanley | Russell Kennedy |
HIS HONOUR:
Introduction
1 By way of Originating Motion, Ms Georgina Huzony (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings for a low-back injury said to have occurred during the course of her employment from October 1999 to her cessation of employment with the defendant in January 2011 (“the injury”) with Patterson Cheney Pty Ltd (“the defendant”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”, within the meaning of s134AB(37) of the Act.
3 The plaintiff and her daughter were the only witnesses to give evidence and be cross-examined. Both parties tendered a large number of documents.[1]
[1]Refer to exhibit “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the act. That paragraph reads:
“‘serious injury’ means—
(a) permanent serious impairment or loss of a body function; or … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low back of the plaintiff.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the injury suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999;[3]
(b)the injury and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)the “consequences” to the plaintiff of the back injury in relation to “pain and suffering” and “pecuniary loss” must be serious – that is, “when judged by comparison with other cases in the range of possible impairments as the case may be … [can be] … fairly described as being more than significant or marked, and as being at least very considerable”.[5]
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors Podolak [2005] 14 VR 622 at paragraph [11]
[4]See Barwon Spinners (op cit) at paragraph [33]
[5]See s134AB(38)(b) and ss(c) of the Act
8 Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s1324AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[6]
[6]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60] – [64]; Acir v Frosster Pty Ltd [2009] VSC 454
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[7] to establish:
(a)that as at the date of hearing, she has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[8]
(b)that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[9]
[7]See s134AB(19)(b) and s(38)(e) of the Act
[8]See s134AB(38)(e)(i) of the Act
[9]See s134AB(38)(e)(ii) of the Act
10 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken or counted for the purposes of the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[10]
(b)must make the assessment of “serious injury” at the time the application is heard;[11]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[12]
[10]See s134AB(38)(h) of the Act
[11]See s134AB(38)(i) of the Act
[12]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23] – [36]
The issues
11 Counsel for the defendant informed the Court that the issues were:
(a)Whether the plaintiff suffered any compensable injury with the defendant on or after 20 October 1999. In this respect, I was informed that the position of the defendant was that if the plaintiff did suffer any compensable injury, it was suffered during the so-called “black hole” – that is to say, during the period from 12 November 1997 to 20 October 1999;
(b)I was also informed by the defendant that the opinions expressed by all doctors were not helpful to the Court, because such opinions were based on a “misstatement of the facts” by the plaintiff;
(c)I was also informed by counsel for the defendant that if there be a relevant compensable back injury, such back injury is not causative of any reduced working capacity. I was informed that the submission would be that the evidence would establish that there are a “myriad of reasons why she was not working”.[13]
[13]Transcript (“T”) 15, Line (“L”) 5 – 6
The evidence of the Plaintiff and her medical treatment
12 The plaintiff gave evidence that she had recently read her affidavits sworn 4 September 2015 and 10 June 2016[14] and that the contents of such affidavits were true and correct.[15]
[14]See exhibit 1 at pages 1 – 14 PCB
[15]T20, L17 – 19
13 By way of her first affidavit, the plaintiff gave the following evidence:
·She is sixty years of age, having been born in Croatia on 23 April 1956;
·In 1964, when eight years old, her family migrated to Australia, where she attended primary and secondary school to about 1971, completing Year 10 at Prahran Technical School;
·She married in 1975, and was divorced in 1990. That relationship produced a son born in January 1978 and, later, a daughter born in September 1980. During the period from 1978 to 1982, the plaintiff remained at home and looked after her family;
·Since leaving school, the plaintiff has been employed in the following capacities:
(a)In a take-away shop/delicatessen, performing customer service work, for about six weeks;
(b)A Coles variety store in Prahran, performing customer service work for a few months;
(c)From about 1972 to 1974, she worked in a teenage clothing retail shop, performing customer service work, for about two years;
(e)In about 1974, she worked as a housemaid at the Octagon Motor Inn in South Yarra;
(f)From 1975 to 1978, she worked as a housemaid at the Prince of Wales Motor Inn in Prahran;
(g)From 1982 to 1989, she worked at Armstrong Audio, performing quality control work;
(h)From 1989 to 1990, when she ran her then husband’s motor mechanical business called Motafit.
·She lives with her daughter and her daughter’s two children, aged three and seven weeks, but has no contact with her son or his family.
·She describes that in the past she has suffered from Depression and drinking alcohol to excess. She says that from 1991 to 2006, she was sober and abstained from drinking.
·On 5 March 1996, she commenced working for the defendant at its Dandenong warehouse as a casual store person and on 16 November 1998, became a full-time employee of the defendant as a picker/packer in the spare parts/despatch department in Dandenong.
·She describes her duties as “mainly [involving] repetitive heavy manual handling”.[16] In particular, she described her duties as follows:
[16]See paragraph [17] of the first affidavit – exhibit 1 at page 3 PCB
“… Initially, in 1996, I was unpacking car parts which were stored in large metal cages (which measured about 2.5 metres by 2.5 metres and 0.6 metres deep) at different locations throughout the warehouse. These cages were transported by a forklift. I collected the car parts from the cages. To do so, I braced my knees against the cages, leaned over into the cages, reached for the car parts and picked up the parts. I then sorted and stacked the car parts to be transported by a forklift.”[17]
[17]See paragraph [17] of the first affidavit – exhibit 1 at page 3 PCB
I shall refer to this work as the “cage work”.
·In November 1998, her duties changed from unpacking car parts to that of picker/packer or “parts runner”. She describes those duties to involve:
“… picking the requested car part(s) by hand; delivering the car part(s) to the person requesting the car part(s) either by carrying the car parts on foot or by driving a motorised buggy to various workshops of the Patterson Cheney Group. The car parts varied in different sizes and weights including 20 litre drums of coolant/car fluid weighing about 25 kilograms each and car/truck batteries weighing about 30 to 35 kilograms each. During one shift and on an average, I picked about three (3) to four (4) drums of coolant fluid and about four (4) to six (6) car/truck batteries from the Spare parts/Despatch Department and delivered [them] throughout the Patterson Cheney Group. I was required to work at a constant fast speed when doing parts picking. I was constantly on my feet from the time I started my shift to the end of my shift.”[18]
[18]See paragraph [18] of the first affidavit – exhibit 1 at pages 3 – 4 PCB
I shall refer to this work as the “picker/packer work”.
· Such “heavy work” continued until October 2005 and caused back pain, for which she received medical, physiotherapy and other chiropractic treatment on and off to maintain her “spinal health”. She tried to keep working “despite of the pain”.
· In October 2005, she describes the occurrence of certain events:
(a) In early October 2005, she was instructed to mop the floor of the warehouse and after completing that task, she experienced back pain. Such pain was not reported, as she considered it temporary;
(b) On 6 October 2005, she bent over to close a drawer at work and after straightening up, felt immediate pain in her left lower back, down the back of her right and left thigh. She attended a chiropractor in her own time, hoping it was only a muscle strain;
(c) On 11 October 2005, she bent, twisted and placed her bag into a cabinet at work. She experienced a sudden severe pain in her lower back and could not straighten up from her bent position. She was taken to the Dandenong Hospital, where she was admitted and discharged on 12 October 2005;
(d) On 13 October 2005, she consulted Dr Vijay of Bialylew & Associates at the North Dandenong Medical Clinic, at which time the doctor prescribed Panadeine Forte tablets (500 milligram) and referred her for a CT scan of her back, together with physiotherapy;
(e) On 14 October 2005, she had a CT scan of the lumbar spine which she believed showed evidence of disc bulges at the levels L4-5 and L5-S1 with nerve compression;
(f) She was off work for about nine days until 24 October 2005, when she returned to work for two hours a day performing modified duties which involved standing at a carousel which was rotating carrying car parts. She collected the parts, placed stickers with barcodes on the parts and entered the barcodes into the computer system and placed the barcoded parts into tubs.
· Following the acceptance of her WorkCover claim, she commenced physiotherapy treatment with Mr Brendan Dax, and continued to receive physiotherapy until about March 2007, when the insurer closed her WorkCover claim.
· In November 2005, her work hours increased to six hours a day, five days a week, and she was referred to the rheumatologist, Dr Mark Patrick, regarding her persistent lower-back pain. She attended Dr Patrick on 12 December 2005.
· On 10 January 2006, she returned to work performing pre-injury duties but was unable to cope – her back pain was aggravated and she also experienced pain down her left leg. She returned to the carousel work.
· In January 2006, Dr Vijay referred her for an MRI scan of her lower back which was conducted on 16 April 2006 and which she believes showed “disc bulges”.
· Over the period from May to December 2006, her duties “increased” to include lifting up to 10 kilograms but sometimes she was lifting more than that – furthermore, in or about September 2006, she was given extra tasks of a co-worker who took time off work, which caused her back pain to get “worse”.
· In September 2006, Dr Vijay reduced her lifting capacity to a maximum of 5 kilograms and she said he also spoke to a Mr Allan Carey of the defendant to discuss her work restrictions. By the end of 2006, she was not coping with pain in her lower back and she commenced to use alcohol to deal with the pain.
· As at January 2007, she was performing her pre-injury hours with restrictions but had no funds to have ongoing physiotherapy.
· During this period, she consulted her family doctor, Dr Daniel Kelly, at the North Dandenong Medical Clinic.
· In May 2008, she was admitted to Dandenong Hospital for an alcohol detoxification program. She drank to “excess” to cope with her back pain, which now was not subject to any physiotherapy.
· In 2010, she received a pay rise from the defendant and her workload increased, causing her to again commence drinking.
· In July 2010, she was busy at work and was doing heavy lifting of pre-ordered parts such as truck batteries and 20-litre coolants, when her back pain was aggravated, causing her again to deal with back pain and stress from work.
· In November 2010 to December 2010, she underwent a further alcohol detoxification program.
· In January 2011, she voluntarily ceased work with the defendant due to her deteriorating back condition and general health. She continues to consult Dr Kelly to deal with her Alcoholism.
· As a consequence of her “work-related back injury”, she continues to experience pain, stiffness, limited range of movement and lack of strength in her back. She also experiences right leg pain and pins and needles from her right hip to her right knee and the pain is worsened by sitting for moderate periods of time, walking for moderate periods of time and prolonged standing.
· As a result of her back pain, she struggles to perform self-grooming activities such as bending down to wash her feet, cut her toenails, put on pants, socks-stockings and footwear.
· Whereas she used to do all the shopping, cooking and cleaning at home, she is now limited in her ability to perform the household cleaning and vacuuming and her daughter helps her out with these chores. When she does go shopping it takes much longer and she experiences lower-back pain if she carries heavy weights. She has to make trips back and forth to carry things to her car from the shops.
· She finds it difficult to mow her lawns and garden – her daughter now assists her.
· She was able to go for long walks but since her back injury, has to be careful how far she walks and feels that her freedom is restricted.
· She has to be careful in everything she does for fear of aggravating her back injury.
· She finds it hard to get a good night’s sleep due to persistent back pain and then it takes her a long time to get comfortable in bed. Because of her disturbed sleep she is constantly tired and irritable.
· Travelling long distances in the car is difficult as she finds her back pain increases with prolonged sitting and she has to take frequent rests and medication to gain relief.
· Whereas she used to go out socially to theatres, restaurants and movies with family and friends, she tends to turn down some of these outings because of her inability to sit or stand for prolonged periods of time without increased back pain.
· Whereas she used to participate in ten-pin bowling socially, she has not been able to do such activity since her back injury.
· She tries to help her daughter with her two young children as much as possible and is frustrated that she is unable to play freely with them for fear of aggravating her back condition.
· Prior to sustaining her back injury, she was working 38 hours a week and earning approximately $730.00 gross per week. She is unable to return to full-time work and is currently not working and is on a Disability Pension benefit.
· She has enjoyed working and misses working full time and was planning to work until retirement age.
14 By way of her second affidavit, the plaintiff gave the following evidence:
· About six weeks ago,[19] she resumed physiotherapy, which she attends fortnightly, and finds that it provides only temporary relief, usually just for the day.
[19]The affidavit was sworn on 10 June 2016
· She continues to attend her general practitioner, Dr Kelly, on an “ad hoc” basis when she needs medication or has a flare-up. She does not see him more frequently, because she does not think there is much else he can do for her with regards to treatment for her back condition.
· She takes one tablet of Mobic every day and if she did not take this medication, would find it difficult to function day-to-day. She also takes Seroquel, originally 400 milligrams but is now taking two 50 milligram tablets a day, and also takes one 50-milligram Pristiq tablet a day. All medication is prescribed by Dr Kelly.
· She still has issues with her sleep and constantly wakes up at night, finding it difficult to move around because her back will lock up and become very painful when she turns. She finds she is not getting enough sleep and will wake up tired and irritable. She now has a constant ache in her back, which is worse on the right side and aching down into her right buttock with numbness into her right leg.
· Her right leg is now always numb and it gets worse when she sits, stands or walks for too long.
· At around Christmas 2013, she went back into a detox program for alcohol addiction and this program was for about six months and she has been sober since that time.
15 She confirmed the restrictions set out in paragraphs 46 to 55 of her first affidavit and further asserted:
· She continues living with her daughter (which commenced around Christmas 2014) partly so that her daughter can assist her around the house. In this respect, her daughter does most of the chores around the house.
· Whereas she used to enjoy gardening and would do this about once a week, she has tried to perform such activity including sweeping, but after a short time she has to cease because her right leg becomes numb and her back pain worsens.
· She no longer travels to Queensland to visit her mother as such a trip would increase her back pain.
· She tried to go on a trip to Ballarat last year and on the way there and on the return trip, had to constantly move her posture in the car and stop a few times so she could get out and stretch her back.
· She has been having difficulties with her memory since the injury.
· Although she has previously experienced Depression, she has been able to function as a worker and as a mother and has spent her adult life largely working.
· She believes that she could not do office work as she has spent most of her working life performing manual work and that is all “I know how to do”. She would not be able to be seated for long periods of time.
· She is now sixty years old and does not believe she could be retrained to do any meaningful type of work. With her medication, lack of sleep and forgetful memory, she does not think she would be a reliable worker and could not sustain a job even if she could secure one.
· She does not believe she could go back to manual work because of the pain and her limited sitting, standing and walking tolerances, including other restrictions such as weight lifting.
· She has limited computer skills. She can use the internet, but is not familiar with Microsoft Word, Excel or PowerPoint. She can only type using one finger of each hand and, accordingly, is very slow.
· Before working for the defendant, she tried to do a TAFE course focussed on office work and at the same time gaining work experience at a freight company doing general office work. After only a short time the boss fired her because she was “useless and really could not keep up in the office environment”.
Radiological material
16 The plaintiff relies on the following radiological material:
(a) A CT scan of the lumbar spine undertaken on 14 October 2005 at the request of her then treating doctor, Dr Vijay.[20] The conclusion of such examination was:
[20]See exhibit 2 at page 18 PCB
“Posterior annular bulging of the L4/5 and L5/S1 intervertebral discs is present. This is more marked at the L4/5 level where slight compression of the adjacent thecal sac is evident.”
(b) An MRI scan of the lumbar spine undertaken on 16 April 2006, again at the request of Dr Vijay.[21] The conclusion of that examination was:
[21]See exhibit 2 at page 19 PCB
“Desiccation of the lower two lumbar discs associated with relatively minor bulging, most marked at the L4/5 level. This is more left sided than right producing minimal thecal and proximal L5 nerve root sheath encroachment. Associated minor foraminal narrowing.”
(c) CT scan of the lumbar spine arranged by Dr John Kelly, dated 31 January 2011.[22] The conclusion of that examination was:
[22]See exhibit 2 at page 20 PCB
“No significant lumbar disc protrusion. The central canal is capacious and all nerve roots exit freely.”
(d) CT scan of the lumbar spine dated 20 June 2012 arranged by Dr D Kelly.[23] The conclusion of that examination was:
“At the L4-5 level, there is a broadbased disc protrusion flattening the theca. No central canal stenosis. There is mild right foraminal stenosis, osteophyte projecting posteriorly into the right neural exit foramen from the inferior aspect of the L4 vertebral body as well as extension of disc into the inferior aspect of the neural exit foramen.”
[23]See exhibit 2 at page 21 PCB
The reports from treating doctors relied on by the Plaintiff
17 The plaintiff relies on two medical reports from her current general practitioner, Dr John Kelly – dated 25 September 2014 and 3 March 2016.[24]
[24]See exhibit 3 at pages 23 – 27 PCB. Also, various notes of Dr Kelly were tendered at the hearing and also see exhibit 7 and exhibit “D”
18 In his first report, Dr Kelly noted that the plaintiff first mentioned problems with her back to a doctor at the clinic (Chandler Road Medical Clinic) in January 2002 – the pain was at the thoracic level of the spine and there was no suggested cause for such pain. Furthermore, Dr Kelly notes that the plaintiff first mentioned back pain to him in April 2002 when he noted that she was seeing a chiropractor for back problems (although the site was not specified). Dr Kelly notes the situation becomes a “little clearer” in May 2002 when the file notes that she had persistent back and neck pain with stiffness, not responding to a chiropractor.
19 Again, on reference to her file, Dr Kelly notes that it was not until 2010 that the plaintiff mentioned problems that she was having at work. He noted that she was “very busy” and “run off her feet”, having to lift heavy truck batteries and 20-litre bottles of fluid regularly. At that time, she was feeling stressed and tired.
20 Dr Kelly also notes that in January 2011, she was suffering from some anterior thigh pain after standing for long periods at work – this was thought to be related to sciatica, and Mr Kelly recorded that had “known lumbar disc problems” and was struggling more and more at work.
21 Dr Kelly arranged for the plaintiff to undergo the CT scan on 31 January 2011, to which reference has already been made. After considering the scan results, Dr Kelly did not consider that there was a need for referral to a specialist and decided to send her for a lumbar epidural injection, which was not undertaken because of a lack of funds on the part of the plaintiff. Dr Kelly notes that she “continued to struggle a lot at work” but had other medical problems with which she had to deal. In particular, Dr Kelly states:
“The history of her back complaint is fragmented in our medical files due to other, more serious problems facing her. I remember that she was very fearful of losing her job and so just tried to battle along as best she could, just coping with her back pain and sciatica. She tried various mild analgesics and NSAID’s which gave some relief and enabled her to continue in her job. In May 2012 she stated that she was considering putting in a Workcover claim – she still had chronic lower back pain at this time, with intermittent sciatica in her right leg. She stated that she thought the years of heavy lifting in her workplace had contributed to or caused this problem. … .”[25]
[25]See exhibit 3 at page 24 PCB
22 Dr Kelly arranged for the plaintiff to undergo a further CT scan on 20 June 2012, to which reference has already been made. Dr Kelly considered that the reported changes on the CT scan were “in keeping with her symptoms of low back pain and right sciatica”.
23 Since stopping work in 2012, Dr Kelly notes that the plaintiff has continued to manage her back pain as best she can. She regularly takes NSAID’s and minor analgesics but the emphasis has been very much on other medical problems. In particular, Dr Kelly stated:
“I believe that at her age, and with the changes seen on her CT scan, that she will likely have chronic low back problems going on for the rest of her life. She cannot go back to the sort of work she used to do, and I think it very unlikely she will ever get back to work at all. She will struggle with household duties even - general cleaning, vacuuming and house management will be difficult for her. There are signs of degenerative change on her CT scan and I don’t believe that these changes will only worsen as she ages.”[26]
[26]See exhibit 3 at page 24 PCB
24 In his second report, Dr Kelly notes that the condition of the plaintiff “has not really changed” – and that she has ongoing intermittent pain with which she copes reasonably well. Dr Kelly notes that the plaintiff takes anti-inflammatory medication regularly and minor analgesics but has been unable to afford any physical therapy such as physiotherapy. It is to be noted that in her second affidavit, she deposes that about six weeks prior to swearing that affidavit on 10 June 2016, she resumed some physiotherapy.
25 In particular, Dr Kelly states:
“Her diagnosis is lumbar disc degeneration and bulging, associated with some degenerative changes related to her vertebrae (ie. osteophytes putting pressure on nerve roots). This problem is chronic, and one with which she will have to live for the rest of her life. Regular physical therapy such as physiotherapy or hydrotherapy would help her to a degree, but would not heal her. I would hope that her disc problem does not worsen but there is the possibility that she may require surgery in the future if the disc in question (L4/L5) were to prolapse and cause severe pain.
Georgina states that her work involved a lot of lifting and walking daily – she was a picker/spare parts runner for an automotive company. She worked in this job for many years. This very probably contributed to her back problems over time, despite there being no specific incident that can be pinpointed. She would not be able to go back to this type of work in the future, or any heavy physical work for that matter.
You have asked whether she would have the capacity for:
1) Prolonged standing – no
2) Prolonged sitting – no
3) Repetitive twisting and bending – no
4) Lifting in excess of 5kg on a repetitive basis – no
5) Lifting in excess of 10kg on a repetitive basis – no.
She would be able to try light clerical duties where she would be able to alternate between sitting and standing.
Her back pain affects her on a daily basis with activities of daily living, but does not stop her from managing housework – she rests when she needs. She would be unable to play any sport but should be able to try a walking program.”[27]
[27]See exhibit 3 at pages 26 – 27 PCB
26 Those acting on behalf of the plaintiff also relied on exhibit 7, which was an extract of clinical records from the Chandler Road Medical Clinic (including various attendances on Dr Kelly).[28] Exhibit 7 contains notes of various consultations the plaintiff had with doctors at the Chandler Road Medical Centre from 26 July 1999 up until 19 February 2016. Although she saw a variety of doctors in the early days when attending such clinic, the main treating general practitioner was Dr Kelly from about the middle of 2001.
[28]See exhibit 7 at pages 159 – 204 DCB
27 The defendant also relied upon exhibit “D”, which were extracts from the records of Dr Kelly which were more generally letters of referral and health plans.[29] In particular, exhibit “D” consists of the following documents:
[29]See exhibit “D” at pages 135 – 145 DCB
(a) A letter from Dr Kelly dated 1 July 2009, wherein he states:
“Georgina has suffered from Depression for over 20 years – this started with the birth of her first child, then worsened after the birth of her second child when her partner left her. She was then a single mother. Due to this depression she started drinking excessive amounts of alcohol to relieve her stress and in order to forget the stresses for a while. This led to an admission in 1991 to Heatherton Hospital for detoxification. She has had ongoing problems with alcoholism since, going in and out of counselling. Her daughter has medical problems and is unable to work fulltime. She lives with Georgina, who has to pay the bills and the upkeep of the house. Georgina works fulltime and has managed to hold down her job for many years. She feels the strong urge to drink alcohol at the end of each working shift and other than going to work, she tends to stay home, shunning even family social occasions. She feels lonely and feels like life is passing her by. She continues on only for her daughter who needs her ongoing support. Her financial stresses add to her depression and she even avoids coming to this clinic too often as she has to pay for her consultations – this obviously limits any treatment she has for the depression. She needs to keep working and earning, and any financial burden could be disastrous for her … .”[30]
[30]See exhibit “D” at page 135 DCB
(b)Mental Health Plans prepared by Dr Kelly dated 28 January 2000 and 16 February 2011.[31] In the first plan, Dr Kelly described the presenting issue to be the daily anxiety of the plaintiff, except when she is working and busy. She takes alcohol when anxious, and has a problem with alcohol and feels out of control, and takes medication of Valium, Premia and Zoloft. When queried to list all medical conditions (illness, injury or disability) which may impact on the plaintiff’s capacity for work or study, Dr Kelly listed Anxiety and Depression, with Chronic Fatigue Syndrome symptoms likely to persist.
[31]See exhibit “D” at pages 136 – 141 DCB
In the second Mental Health Plan, Dr Kelly described the presenting issues to be struggling with Depression and some anxiety about the future, with the temptation to drink alcohol and has felt suicidal at times. At times she was on Kliogest tablets, Nexium, Valium, Lexum, OsteVit‑d and Betamin. Dr Kelly’s diagnosis was “a reactive depression”;
(c)A letter from Dr Kelly to Dr Kruk dated 27 June 2011[32], wherein Dr Kelly referred the plaintiff for assessment and management and describes her past medical history to involve gambling addiction (1996), Alcoholism (1990) and pancreatitis-hepatitis (alcoholic) (1990). Dr Kelly described her current medical history to be Chronic Fatigue Syndrome;
(d)A letter from Dr Kelly to a psychiatrist, Professor Mazumdar, dated 12 September 2013[33] and, in particular, informing the Professor that:
“[The plaintiff] … has had a long history of alcohol abuse, anxiety and depression. She underwent an horrific detox in 2010 and 2011 and has not had a drink since. She is struggling with anxiety and flashbacks to bad events from the past, especially in dreams (eg brother suicided 4 or 5 years ago, she found her father dead in the bathroom). She is taking Seroquel, which was started a short time before going to rehab and Pristiq around the same time. She is still struggling … .”
(e)Further letter from Dr Kelly to the Springvale Community Healthcare physiotherapist dated 28 April 2015[34] in relation to treatment for a Bilateral Carpal Tunnel Syndrome and left ulna nerve symptoms. Dr Kelly describes the plaintiff’s past medical history to include Alcoholism, Chronic Fatigue Syndrome, Depression and, in 1992, pancreatitis and Alcoholism. He describes her current medical history to include Chronic Fatigue Syndrome and Depression. In relation to medication, he lists them to be Clofen, Mobic, Nexium, Pristiq, Seroquel and Ventolin.
[32]See exhibit “D” at page 143 DCB
[33]See exhibit “D” at page 143 DCB
[34]See exhibit “D” at page 144 DCB
28 Returning to exhibit 7, the notes are consistent with the report of Dr Kelly of there being a complaint by the plaintiff of thoracic spine pains on 24 January 2002 (to Dr Jacques De Zoete), but of unknown cause. Furthermore, Dr Kelly, on 12 April 2002, records that the plaintiff was complaining of back pain and on 23 May 2002, complained of persistent neck and back pains, with stiffness, with a chiropractor no longer helping.
29 I refer to the following consultations:
(a)A consultation with Dr Martin Robb on 27 May 2002 (four days after last being seen by Dr Kelly), when the plaintiff described an aching back at work, an inability to sleep, and drinking half-a-bottle of Scotch a night. She was diagnosed to be suffering Alcoholism, Spondylitis and Depression and, amongst other things, was prescribed Vioxx.
(b)There are many consultations, primarily with Dr Kelly, where there are complaints of problems controlling her alcohol intake, Anxiety and depressive issues, financial issues, and difficulties dealing with her daughter, who is living with her, who also has health problems extending to addiction to gambling and alcohol intake;
(c) On 6 February 2007, Dr Kelly recorded:
“Long consult – has severe stress – financial pressure from many sources, unable to afford her medications so only started Tegretol. Has chronic fatigue, severe back and neck pain all due to excessive financial stress. Daughter adding to this stress, living with her. Not in danger of suicide.”[35]
[35]See exhibit “D” at page 174 DCB
(d) On 13 July 2010, Dr Kelly noted:
“Long consult – very busy at work, run off her feet, lifting 20 litre bottles, lifting truck batteries. Has a partner to help her usually but this person is away and she is doing 2 jobs. This is all stressing her more and she feels more depressed than when she was last here. Not worrying about her daughter as much which is good, does not have as much anxiety so Pristiq 150mg daily is helping. Still going to AA but does get strong urges to drink.”[36]
[36]See exhibit “D” at page 181 DCB
Dr Kelly also noted that after discussion about her job, it was suggested it may be time “to move onto something lighter”, but the plaintiff was worried about what else she could do for work and worried about finances;
(e)On 10 August 2010, Dr Kelly recorded, amongst other things, that she was “Not sleeping, has a lot of aches and pains when she is lying in bed – OK when working”.[37] At that time, he placed her on Brufen tablets, 400 mg per day;
[37]See exhibit “D” at page 181 DCB
(f)On 20 January 2011, Dr Kelly recorded:
“Long consult – job still giving her grief but she is coping. R sciatica worsened of late - has numbness, burning and pain in her R thigh. Also counsellor thinks that maybe her mood swings are related to menopause - she gets hot flushes despite HRT.”[38]
[38]See exhibit “D” at page 185 DCB
Dr Kelly arranged for the plaintiff to undergo a CT scan of her lumbar spine;
(g)On 3 February 2011, Dr Kelly recorded, in part, that the plaintiff had “decided to stop working and she feels this is worsening her drinking problem”.[39]
[39]See exhibit “D” at page 185 DCB
(h)Dr Kelly noted that the CT scan of the lumbosacral spine shows “minor disc bulges … with protrusion”.[40] It is probable that the CT scan referred to by Dr Kelly is that one dated 31 January 2011.[41] He referred her for a lumbar epidural injection;
[40]See exhibit “D” at page 185 DCB
[41]See exhibit 2 at page 20 PCB
(i)On 8 February 2011, Dr Kelly noted that she could not afford to undertake the nerve block (the cost being at $900), although she has left pain and her right knee is still numb;
(j)On 13 January 2011, Dr Kelly recorded that after the plaintiff had returned to work she was:
“… coping OK but has regular anterior R thigh numbness when she is standing for long periods of time – has known lumbar disc problems. Back is OK, copes with alcohol cravings at work as she is always doing something. Still has trouble in the am with cravings but takes 2 Valium and she settles – otherwise may have another Valium through the day but often does not [take] one.”[42]
[42]See exhibit “D” at page 186 DCB
Dr Kelly noted that the plaintiff was struggling physically with the job;
(k)On 12 April 2011, Dr Kelly obtained a history that she had tendered her resignation at work and had finally decided “that she will just be concentrating on her health for a while”;[43]
[43]See exhibit “D” at page 187 DCB
(l)On 27 June 2011, Dr Kelly obtained a history from the plaintiff that she was experiencing a lot of leg weakness of “late”, which caused her trouble getting up, and sitting and squatting;
(m)On 18 June 2012, Dr Kelly recorded the following history:
“Has had low back pain for about the last 8 years – pain, wakes her at night, burning pain in R leg associated with numbness if standing or walking for a while. Needs to sit and rest if standing or walking for a while. Claim accepted by Workcover – been having physio. and doing home exercises but pain is worsening. This started when she was working as a picker/spare parts runner for an automotive spare parts company. Has been seeing another GP for this W/C claim but will get her records transferred her (sic). Has not done knee x-rays as yet … .”[44]
[44]See exhibit “D” at page 192 DCB
(n)Dr Kelly arranged for the plaintiff to undergo a CT scan of the lumbar spine and prescribed her more Mobic tablets;
(o) On 22 June 2012, Dr Kelly records, amongst other things:
“Long consult – x-rays show signs of degenerative disease in knees with R˃L. She still has a lot of low back pain radiating down R leg – burning sensation. She states that she has had back problems since about 2005 when she saw another GP who sent her to hospital – required strong analgesia. She has had problems on and off since with regular physio. not helping. She has L4/L5 disc protrusion on CT with R foraminal stenosis, combined with an osteophyte from inferior body of L4 projecting into R neural foramen. She therefore has low back pain and R sciatica with the possibility of some of the pain coming from degenerative disease in her R knee.”[45]
[45]See exhibit “D” at page 192 DCB
(p)On 3 July 2012, Dr Kelly had available the notes compiled by the general practitioner who was treating her in 2006 [most probably Dr Vijay]. Dr Kelly noted she had:
“… low back pain radiating to R leg – worsened when she was working – walking a lot at work, lifting heavy objects and carrying them. Not much change in R knee 2/52 after steroid injection, can’t walk a lot due to her back and knee so is putting on weight … .”[46]
(q)On 19 February 2016, Dr Kelly recorded:
“Long consult – cough is settling. She is upset and anxious – thinks about her work – is stressed by having to leave that job which she enjoyed, but she developed back pain while there and was seeing a work doctor for treatment. She wants to go back to work but in the field of alcohol and drug rehabilitation – knows that her chronic back problem precludes any physical work. Still has episodes of confusion at times, has memory problems and is worried about whether long term alcohol use has caused any brain problems.”[47]
[46]See exhibit “D” at page 193 DCB
[47]See exhibit “D” at page 203 DCB
30 These notes contain many consultations between the plaintiff and, generally, Dr Kelly (but also other doctors) involving psychological issues, excessive alcohol intake, problems with her daughter and problems with her left elbow and hand. Also, Dr Kelly treated her, on occasion, for an asthmatic condition.
31 Both parties rely on the clinical records from the North Dandenong Medical Clinic and, in particular, the clinical notes of Dr Vijay (who I have earlier referred to as Dr Vijay). Those acting for the plaintiff initially sought to tender the notes over the period from 13 October 2005 to 4 January 2007, during which time the plaintiff was receiving treatment from Dr Vijay following the lodging of the plaintiff’s WorkCover Claim form dated 24 October 2005.[48]
[48]See exhibit 5 at pages 55 – 57 PCB
32 In that Claim Form, the plaintiff described her “injury” as “bulging disc” with her “back … legs, pelvis” affected by such injury. The date of injury is said to be on 11 October 2005, but the condition was first noticed on 6 October 2005. The plaintiff ceased work as a result of the “injury” on 11 October 2005.
33 The plaintiff states in such document that she was “bending and twisting to stand up” just before the “injury” occurred and when proceeding to stand up, felt “a sharp pain in the back”.[49] When asked specifically whether her “injury” arose gradually over a period time, whether she had any previous pain or disability in the area of the present injury, the plaintiff ticked the “no” box.
[49]See exhibit 5 at pages 55 – 57 PCB
34 The Claim also makes clear that the plaintiff attended the Dandenong Hospital, where she was admitted on 11 October 2005 and discharged on 12 October 2005, after which she received treatment from Dr Vijay and a Mr Brendan Dax, a physiotherapist. The Claim Form makes plain she was off work from 11 October 2005 to 24 October 2005.
35 Those acting for the defendant also wished to tender the clinical records from the North Dandenong Medical Clinic (some of which include entries involving Dr Vijay, but other entries involving other doctors), for the period from 4 May 2007 up to 7 October 2014.[50] Ultimately, the clinical notes involving Dr Vijay in his clinic were tendered as one exhibit – exhibit 10.
[50]See pages 145-158 DCB
36 When one peruses the notes over the period from 13 October 2005 up to 4 January 2016, there are a number of attendances in relation to the plaintiff’s lower back injury:
(a)On 13 October 2005, Dr Vijay consults with the plaintiff when she complains of a “back strain”. At that consultation she was prescribed Panadeine Forte tablets and a CT scan of the lumbar spine requested;[51]
[51]Such CT scan was the one undertaken on 14 October 2005. See exhibit 2 at page 18 PCB
(b)On 3 November 2005, the plaintiff attended Dr Vijay, complaining of “sciatica” and was also then prescribed Prednisolone tablets;
(c)On 23 November 2005, the plaintiff attended Dr E Lam, where her lateral flexion was tested, as was straight leg raising;
(d)On 29 March 2006, Dr Vijay recorded that the leg of the plaintiff was “slightly better”, and her back pain “fluctuates”, that she was having physiotherapy twice a week, and that she was back at work on light duties;[52]
[52]See exhibit 10 at page 74 DCB
(e)On 5 April 2006, the plaintiff attended Dr Vijay complaining that her back was still painful, that she was experiencing right leg pain and that she had had physiotherapy the day before, which had made the condition worse, and Dr Vijay arranged an MRI scan for 13 April 2006;
(f)On 24 April 2006, Dr S Lok had the MRI scan of the lumbar spine and, at that time, the plaintiff complained of numb anterior aspect to the right thigh down to her knee level and an aching right buttock. She was also undergoing physiotherapy;
(g)On 10 May 2006, Dr Vijay recorded that the plaintiff’s back “has not been good”, although the leg pain was “good”. She was having physiotherapy once per week and was not taking Brufen, or any painkillers, at that time, and tolerating duties at work, although noticed pain on prolonged sitting
(h)On 26 May 2006, Dr Vijay recorded “Right leg pain very good”,[53] although there was still some back pain, especially in the morning, and the plaintiff was undergoing physiotherapy once a week;
[53]See exhibit 10 at page 72 DCB
(i)On 7 June 2006, Dr Vijay recorded:
“Leg good. Back gets stiff in the morning. Has been slack with exercise. Tolerating duties.”[54]
[54]See exhibit 10 at page 72 DCB
(j)On 23 June 2006, Dr Vijay noted that the plaintiff had:
“No leg pain.Having weekly physio.Back feels stiff in the morning.Missed last week’s physio.Tolerating duties.Increase wt limit to 12 KG”;[55]
[55]See exhibit 10 at page 72 DCB
(sic).
(k)On 5 July 2006, Dr Vijay noted that the plaintiff was:
“Tolerating duties.Doing bit more.Has been lifting heavier than is indicated in the certificate.Back pain at times.No leg pain.Hasnt had p[hysio 3 weeks”;[56]
[56]See exhibit 10 at page 72 DCB
(sic).
(l)On 9 August 2006, Dr Vijay recorded:
“… No problems.Same job but picking up Toyota parts not heavy.Working in an office environment.Can sit if she has to.She says this will be her permanent duties.Hasnt seen physio for ˃ 10/8”[57];
[57]See exhibit 10 at page 71 DCB
(sic)
(m)On 14 September 2006, Dr Vijay recorded, amongst other things, that the plaintiff’s back had been good for –
“2/52, some numbness and pain leg. Co worker was away and hence had to do a lot more.”[58]
[58]See exhibit 10 at page 70 DCB
(sic)
The plaintiff was seeing a physiotherapist twice a week;
(n)On 15 November 2006, Dr Vijay recorded that the back of the plaintiff had been:
“… painful in the last two weeks. Working in the place of 2 person.Today leg feels numb.All along has been seeing physio for 1 week.”;[59]
[59]See exhibit 10 at page 67 DCB
(sic)
(o) On 13 December 2006, Dr Vijay recorded:
“c/o pain right buttock/lower back and right leg.Also has some pain back of left leg. Paraesthesia right leg.Aggravated 3/52 ago.No specific incident.Has to do a lot of walking at Work
Lumbar spine Flexion 80/extension 15 degrees.
Rotation normal
Sounds very frustrated.Says even if I write restrictions she’ll have to do her job.
doesn’t want to take any pain killers for fear of masking … and overdoing things at work.”[60]
[60]See exhibit 10 at page 67DCB
(sic)
(p)On 15 December 2006, Dr Vijay rang and spoke to someone at the defendant’s office regarding restrictions, and was advised that the plaintiff could have longer breaks in-between jobs;
(q) On 4 January 2007, Dr Vijay reported, amongst other things:
“Aggravation settled.Has been having physiotherapy.Work has been not busy as before.Flexion almost full.Extension 15 degrees.”[61]
(sic)
[61]See exhibit 10 at page 67 DCB.
37 During the period last referred to, the plaintiff did attend Dr Vijay and other doctors on occasion, relating to matters other than her back, for example, Anxiety alcohol-related issues.
38 In respect to the records of Dr Vijay that the defendant relies on, I note the following:
(a) On 4 May 2007, Dr Vijay noted that:
“Claim stopped. Not going for conciliation
Back Stab[i]lised
Completed Physio
Tolerating duties. Mostly doing normal duties.[Symptoms] almost resolved.
N[o]t taking breaks at WorkExplained that her [symptoms] may return. Should avoid heavy lifting on long term.”[62]
(sic)
(b)On 2 July 2007, Dr S Lok reported that the plaintiff complained of “Low back pain on RHS all night. Might have overdone it at work last week.”[63]
(c)On 27 November 2007, the plaintiff attend Dr E Lam who recorded that the reason for contact was “degenerative lumbar discs”[64] and, on that date, her back movement was tested and was prescribed, amongst other things, Panadol Osteo tablets.
[62]See exhibit 10 at page 158 DCB.
[63]See exhibit 10 at page 158 DCB.
[64]See exhibit 10 at page 157 DCB.
39 Subsequent visits from early-2008 to 17 November 2008, involved a number of attendances involving matters unrelated to the plaintiff’s back, including Anxiety and stress issues; alcohol-consumption issues; a left knee injury involving the prescription of Mobic capsules, cortisone injections and x-rays and a feeling of dizziness and fatigue, together with other general medical issues.
40 The plaintiff also relies on a report from the rheumatologist, Dr Mark Patrick, dated 19 December 2005, which is addressed to a then treating general practitioner of the plaintiff, Dr Vijay.[65] Dr Patrick notes that he examined the plaintiff on 12 December 2005, at which time he obtained the history that she had been working full time for the defendant for about ten years, mostly working in spare parts. In particular, such work did “require a lot of walking, standing, lifting and the like”.
[65]See exhibit 3 at page 28 PCB
41 Dr Patrick also obtained the history that the plaintiff had “for a number of years” had “lower back into right buttock pain”. In particular, eight weeks prior to his consultation, symptoms had heightened, with no specific work-related incident save the repetitive normal functions she would generally perform.
42 At the time of the examination, the plaintiff reported that she considered there have been a “75 per cent improvement”. Clinical examination indicated good back movement with straight leg raising being normal and the slump test unremarkable.
43 Dr Patrick noted that she had some degree of myofascial tenderness in the lower back into the right leg but no other focal neurological problems.
44 Dr Patrick ultimately concluded that the plaintiff’s symptoms were mostly mechanical and muscular rather than nerve root related. He encouraged a physiotherapy and self-managed exercise program, together with some job rotation longer term which would make “… common sense in terms of restricting the amount of repetitive or heavy lifting”.[66]
[66]See exhibit 3 at page 29 PCB
The medico-legal reports relied on by the Plaintiff
45 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by:
(a) The orthopaedic surgeon, Mr Rodney J Simm, who examined the plaintiff on 9 October 2014[67] and 26 May 2016;[68]
(b) The occupational physician, Dr Helen Sutcliffe, who examined the plaintiff on 8 June 2016.[69]
[67]See report of same date – exhibit 4 at page 30 PCB
[68]See report of same date – exhibit 4 at page 37 PCB
[69]See report dated 10 June 2016 – exhibit 4 at page 42 PCB
46 When examined by Mr Simm on 9 October 2014, he had available the various CT scans of the plaintiff’s lumbar spine, together with a “number of pages” from various general practitioners who had consulted with the plaintiff – Dr Vijay, Dr Lok and Dr Bialyew.
47 The plaintiff gave a history to Mr Simm that at the time of the examination, she was a fifty-eight-year-old Disability Support Pensioner, who had resigned from her employment in 2012 and had not worked since.
48 In general, the plaintiff also informed Mr Simm that she commenced employment with the defendant in 1996 and was initially employed full-time in the warehouse, unpacking car parts and, at a later time, (being unsure whether it was eighteen months or two-and-a-half-years) she changed from unpacking car parts to working as a picker. She described that job involving picking car parts by hand and carrying them by hand to the person who requested the part, alternatively, picking a number of car parts and placing them on a small motorised buggy, which was then driven to another location. The car parts included 20-litre drums of fluid, batteries and other heavy items. She described how such work involved manual handling throughout the working day and much of the work was done on her feet.
49 Mr Simm noted that, in relation to the history of “back injury”, the plaintiff had an “extremely poor memory for her medical details and was not able to give a sequential account of her back condition”. Mr Simm noted that such history was compiled on the basis of his interview with the plaintiff, but also included information from her treating general practitioner.
50 In particular, Mr Simm obtained the history of the plaintiff experiencing the onset of lower back pain during the first period of her employment with the defendant performing the cage work. Furthermore, she told Mr Simm she continued working and was unable to recall any formal treatment.
51 Thereafter, there were various attendances on doctors at different times, and chiropractors. Although she was unable to give details of the clinical course of her back condition between 2002 and 2010-2011, she recalls she kept working, which included the heavy and repetitive lifting, and had chronic relapses in back pain throughout this period of time. She accepted that in the initial years there were periods where she was symptom-free, or relatively symptom-free.
52 She also gave a history to Mr Simm of recurrent problems with Alcoholism and that she had undergone “detox” programs, causing her to have some time off work, but was able to return to her place of employment. Furthermore, she informed Mr Simm that in 2009 she was having symptoms of “depression and anxiety”.
53 Dr Simm also notes that the plaintiff was not able to give precise details regarding the reason for her leaving work in 2012, although she stated she was suffering unacceptable levels of back pain during the physical work, which was continued up until she resigned. Again, Dr Simm noted that although she did not state that her problems of alcohol consumption contributed to her leaving work at that time, she did state that she had severe problems with alcohol and this had impinged on her work capacity and her attendance at work.
54 In particular, the plaintiff informed Mr Simm that she is “a bit better” since she stopped work in 2012, although continues to experience constant pain in the lower back, with radiating pain from the right sacroiliac joint, around the front of the right thigh and down to the knee. She has no pain, numbness, pins and needles, or weakness below the right knee, and no pain, numbness, pins and needles or weakness involving the left lower limb.
55 If the plaintiff stands in one position for more than ten minutes, the pain in her right thigh increases and develops as a severe burning quality with numbness. She rated the burning pain to rise to 10/10 on a visual pain scale on several days of each week. When her back pain is less severe, she assesses it as 5/10 on a visual pain scale. She has increased pain when walking for prolonged periods, for which she is more comfortable than standing. She is able to sit for one hour and watch television.
56 When the plaintiff does experience the severe burning right pain numbness, she has to sit for relief. The pain is not aggravated by coughing or straining, but is aggravated by physical activities. She struggles to change the bed linen and she cannot do the heavier household cleaning, such as vacuuming. She has restricted flexion in the back and struggles with her footwear and she develops a sharp pain if she stoops for any length of time and gave the example of washing dishes in a sink.
57 The plaintiff continued to see Dr Kelly at approximately four-weekly intervals and takes Mobic, 15 milligrams per day; Pristiq, 100 milligrams a day and Seroquel, for her emotional disturbance. In particular, she described herself as a recovering alcoholic, who had not had a drink for about ten months and lived with her daughter. She was able to do some household duties, but not all, and is assisted by her daughter.
58 Physical examination at that time revealed her movement to be slow and somewhat laborious and associated with evidence of pain. Movement of the thoracolumbar spine was restricted, but neurological examination of the lower limbs showed no signs of radiculopathy.
59 In response to the various questions posed to him, Mr Simm offered the following opinions:
“2. Your diagnosis.
The diagnosis is symptomatic lumbar disc degeneration. She has referred pain into the right thigh with associated numbness but there are no clinical signs of radiculopathy, and the multiple CT scans and MRI scans did not reveal pathology likely to cause true nerve root compression to cause the symptoms in the right thigh. I would regard this referred pain as somatic pain, not radicular pain. I did not view the special investigations. The changes reported include the fact that there is degenerative gas in the L4-5 intervertebral disc. This is an indication of severe internal disc disruption with disc resorption.
3. Whether our client’s present condition is attributable to his/employment.
There is a contribution to her present condition from her employment. The underlying L4-5 and L5-S1 lumbar disc degeneration is constitutional age-related pathology; however she performed heavy and repeated manual lifting over a period of 16 years with Patterson Cheney. This heavy lifting was associated with pain, which indicates the probability that the repeated heavy lifting was causing some degree of injury to the compromised degenerate intervertebral discs, and this work-related injury could certainly have been responsible for accelerating the degenerative disc changes.
…
5. Your prognosis.
She has an established pattern of chronic and disabling pain which will persist indefinitely. The relationship of the pain to employment is confirmed by the history that when she ceased work the level of her pain improved. Although the pain was less after ceasing work, it remained problematic and has prevented her from doing physically demanding recreational and domestic activities. I do not expect her condition to change in the foreseeable future.
6. Please comment on the restrictions the injuries place on our client’s ability to undertaken domestic, social and recreational pursuits.
Your client is now confined to activities which do not require sustained periods of standing, bending or stooping. She is confined to handling light weights between knee and chest height. She cannot undertake activities that involve repetitive stress on her back such as vacuum cleaning or gardening.
7. Please comment on the restrictions the injuries place on our client with respect to his/her employment capacity.
She is permanently incapacitated for her pre-injury employment tor any alternative employment of a physically demanding nature. I do not expect her to return to the workforce. She is now 58 years of age and on the disability Support Pension. The last 15 years of her employment was essentially unskilled physical work, therefore, although she may have a theoretical capacity for light, non-physical forms of employment such as office work, this is probably not relevant to her work capacity. She is not likely to obtain this employment on the basis of her previous work experience.”[70]
[70]See exhibit 4 at pages 35 – 36 PCB
60 Mr Simm re-examined the plaintiff on 26 May 2016, at which time the plaintiff gave a history that, overall, there had been no improvement in her pain, which averages as 5/10 on the visual pain scale and when there is right thigh burning numbness, it can rise to 10/10 on a visual pain scale. Her back pain is constant and is relieved, to some extent, by changing posture frequently or comfortable sitting, rather than standing and walking. The pain radiates into the right buttock and then around the lateral aspect of the right hip.
61 The plaintiff reported that she had commenced physiotherapy treatment about eight weeks prior to the examination by Mr Simm. She also continued to attend her general practitioner, Dr Kelly, who also continued to prescribe Mobic, 15 milligrams per day, to help relieve the pain that she suffers in her lower back.
62 Mr Simm noted that the plaintiff cooperated with the examination, displaying a symptom focus. He described her movements to be essentially normal, and she walked with a normal gait, although did have some difficulty climbing on and off the examination table.
63 Thoracolumbar movements were restricted and painful. Neurological examination of the lower limbs showed no clinical signs of radiculopathy. There were some regional sensory changes and apparent weakness.
64 By way of answering a series of questions, Mr Simm asserts that his diagnosis remains unchanged, as does his opinion as to the contribution by her work with the defendant to such condition. In particular, Mr Simm was also of the opinion that the plaintiff is permanently incapacitated for her pre-injury employment, or any alternative employment of a physical nature.
65 When Dr Sutcliffe examined the plaintiff on 8 June 2016, she had available to her the medical reports of Mr Simm dated 9 October 2014, the reports of Dr Kelly dated 25 September 2014 and 3 March 2015, together with the report of the rheumatologist, Dr Mark Patrick, dated 19 December 2005. She also had various CT scans.
66 Dr Sutcliffe gave a past history of leaving school at Year 9 or 10 and a history of Alcoholism.
67 In general terms, she described her activities with the defendant initially working on the cages and later being a picker, delivering parts to various areas of the warehouse. Again, she confirmed that such parts included truck batteries, heavy discs, or 20 litres bottles of coolant.
68 Again, the plaintiff confirmed the onset of lower-back pain when first working for the defendant when bending over into the storage cages and, over the years since then, developing increasing pain and difficulty with her lower back.
69 At the time of examination, the plaintiff complained of constant sharp pain in the lower back on the right to left, with buttock pain bilaterally and, in addition, sensory symptoms of the anterolateral aspect of the right thigh. Dr Sutcliffe did note that there had been some decrease in pain since she ceased work. Pain on a day-to-day basis was at an intensity of 5 to 8 on a visual analogue level, which woke her every night, and she had increased pain with activity.
70 Ms Sutcliffe noted that the plaintiff was a vague historian, with difficulty with memory. Examination revealed a normal gait and there was normal elevation of heels and toes.
71 Examination of the lumbosacral spine revealed no tenderness in the back, but there was restricted movement and straight-leg raising decreased on the right to 70 degrees. Dr Sutcliffe noted there was decreased power in the right knee flexion and extension, and right ankle dorsiflexion and plantar flexion.
72 Circumference of the right calf was 36.5 centimetres and the left equivalent position was 38 centimetres.
73 On the basis of her examination, history, and various other material available to her, Dr Sutcliffe opined that the plaintiff had suffered the onset of disc derangement and aggravation of degenerative change in the lumbosacral spine as a result of her employment as described. Furthermore, Dr Sutcliffe believed the plaintiff had no capacity for her pre-injury employment, now or into the foreseeable future and that she had no capacity for suitable employment, taking into account her age, education, training, past work experience and the incapacity present.
74 Dr Sutcliffe noted that the plaintiff had struggled with alcohol abuse for years, but this was currently under control. Dr Sutcliffe also was of the opinion that the plaintiff may benefit from attendance at a Pain Management Clinic and some physiotherapy, although that would make little difference to her capacity for employment.
The medico-legal expert relied on by the Defendant
75 It is convenient to also refer to the report of the neurosurgeon, Mr Kevin Siu, who medico-legally examined the plaintiff on behalf of the defendant on 14 December 2015.[71] Mr Sui notes in his report that the plaintiff “had trouble remembering” when things occurred and various dates. However, she gave a general history that she had had back trouble ever since she started with the defendant, which had involved treatment from a chiropractor, from her general practitioner and, at least on one occasion, from a hospital.
[71]See exhibit “A” at page 1 DCB
76 The plaintiff also gave a general history that she had undergone alcohol detoxification programs in 2008 and 2010.
77 In particular, the plaintiff informed Mr Siu that she stopped work in 2012 because the back pain got worse, but also because “she resumed her drinking at that time”. She described her pain level to Mr Siu to be 6/10 and is “persistent and constant”. On examination, Mr Siu found her neurological examination to be normal.
78 Mr Siu had available the CT scan of the plaintiff’s lumbar spine undertaken on 20 June 2012. He notes that the L4/5 disc is degenerate and a broad-based disc bulge with no real nerve root compression.
79 In answer to a series of questions, Mr Siu states:
“1. The circumstances of the alleged back injury, as stated by the worker, including any history of pre-existing and/or non-work related medical conditions and/or injuries.
There have been multiple episodes of reports of back pain following incidents at work. The dominant one was in 2010 when the pain was so bad that she was taken to Dandenong Hospital, however, it settled and she was able to return to work several weeks later.
There was a significant flare-up in 2012 although the details regarding the back pain was obscured by the fact that in 2012 she was stressed and emotional and resumed drinking so her recollection is perhaps unreliable.
However, it would appear that she reports a number of incidents where she experienced back pain and pain down the right leg.
2. The findings of x-rays, CT scans, MRIs and other radiological tests relevant to the alleged back injury.
The CT scans of 2005 and 2006 show degenerative changes at L4/5. The CT scan of October 2005 shows a posterior bulge with mild compression of the thecal sac at L4/5 otherwise there is no significant pathology.
The CT of the lumbar spine in June 2012 shows a progression of deterioration at L4/5.
I do not have the film of 2005 but the CT of 2012 shows loss of disc height and degenerative changes at that level. There is, however, no nerve root compression in either.
Apart from the various episodes of pain followed by incidents at work we have a progression of pathology. I therefore conclude it is likely there has been aggravation and corresponding imaging supporting the deterioration.
3. Please comment as to:
3.1 The worker’s experience of pain, including pain intensity, frequency and duration and how pain is managed through medication;
She complained of back pain and pain radiating down her right leg, but only as far as her knee.
3.2 As well as the disabling effect of pain and the extent to which the pain interferes with the worker’s ordinary activities of life and limits her physical functioning, such as the effect on sleep, mobility, cognitive functioning, capacity for self-care and self-management, performance of household and family duties, recreational activities, social activities, sexual life and enjoyment of life;
She said there has been episodes when her pain was so bad that there was the need to attend Dandenong Hospital but at the moment her activities of daily living are not significantly compromised.
3.3 In your opinion, does the pain have an organic (physical) basis?
Her pain did have an organic basis but in view of the fact she requires minimal analgesics and not terribly restricted in activities, the level described by her to be 6/10 I think her pain should be manageable.
3.4 …
4.…
5.…
6.…
7.Your diagnosis of the worker’s current physical condition and whether any specific incident (please provide details) and/or employment in general materially contributed to the condition, and, if your answer is “Yes”, whether work is still a materially contributing factor to the worker’s current condition.
The diagnosis is aggravation of her lumbar spondylosis and indeed correspondingly with time there has been degeneration which in part can be related to employment but in part due to ongoing constitutional degenerative changes. However, because she has various episodes reported, one would probably need to accept her work has probably contributed to it. However, importantly since stopping work in 2012 her symptoms have improved.
8.…
9.…
10.Please comment as to the presence and extent of any pain disorder, chronic pain, non-organic, functional overlay signs, psychologically based symptoms and/or symptom exaggeration.
She has persistent chronic pain but to me it is not so severe that I would call it chronic pain syndrome. She only has persistent symptoms.
11.Disregarding the psychological and psychiatric consequences resulting from the worker’s non-organic and psychologically based condition and looking at the organic (physical) low back injury resulting from the specific work incident/s identified above as having materially contributed to the condition (please provide details as to which incident/s) in isolation, please comment as to:
11.1 …
11.2 …
11.3 what are the consequences and resulting incapacity resulting from the worker’s physical condition? In particular, as a result of the alleged low back injury, could the worker:
(a)return to pre-injury duties;
(b)return to suitable employment, and if so, what are the applicable restrictions and/or modifications in relation to suitable employment? Could she perform these duties on a full time basis? If not on a full time basis, how many hours a week is the worker capable of performing;
11.4 …
At her age, I am not confident there is any work capacity. I do not think she can return to pre-injury duties …
12.…
13.…
14.Disregarding the contribution of any pre-existing or other non-work related condition/s and looking at the alleged low back injury resulting from employment in general in isolation, could the worker:
14.1 return to pre-injury duties;
14.2 return to suitable employment, and if so, what are the applicable restrictions and/or modifications in relation to suitable employment? Could she perform these duties on a full-time basis? If not on a full-time basis, how many hours a week is the worker capable of performing;
I do not think currently she has any capacity for pre-injury duties or indeed any other gainful employment.”[72]
(emphasis added).
[72]See exhibit “A” at pages 4 ‒ 9 DCB
80 Mr Siu, although accepting that a course of physiotherapy may be helpful, doubted that spinal rehabilitation in a formal setting would help. He noted that she is perhaps depressed and that her past history of alcohol may impact on her future capacity to return to work.
The cross-examination of the Plaintiff
81 Under cross-examination, the plaintiff accepted that when performing the cage work she was required to bend into cages which were about 60 centimetres deep, bracing her knees against the cage and retrieving goods from the cage. Such goods could weigh 20 kilograms or more. The plaintiff accepted that she did this type of work for about two-and-a-half years on a daily basis and that was when she first suffered lower back pain while performing the cage work. The plaintiff also confirmed that after about six months she consulted a chiropractor, who she saw a number of times – she could not remember the name of the chiropractor but believed he had died since.
82 Under cross-examination, the plaintiff also confirmed that she changed to the picker/packer work in or about 1998 and in particular, the following evidence was given:
Q:“And the running role, whilst it was physical, was less physically demanding than that cage store role, or the cage role?---
A:In a different way.
Q:Now, you then worked in that running role, right through until effectively when you stopped work at the end of 2010?---
A:Correct.
Q:You’ve told us about some problems that you had in October 2005, and you’ve identified, in your affidavit, a couple of instances, one when you were asked to mop the floor?---
A:Correct.
Q:And then a little later when you bent over to close a draw, and a week after that when you placed a bag into a cabinet, is that right?---
A:That’s correct.
Q:And those instances in about October 2005 caused you some back pain, is that right?---
A:That’s correct.
Q:And I suggested that was just a continuation of the back pain that you had had, back from when you were doing that heavy work, the cage work, they were symptoms that you had had over the period from 1998?---
A:That was a continuation to that date, of when I put my bag in the drawer and then ended up in hospital.
Q:Perhaps I will go back a step?---
A:That’s when it showed up bulging discs.
Q:You’ve told us about seeing a chiropractor back in - or about 1998, in that period when you were doing the cage work?---
A:Yes.
Q:You’ve told us about the comment that the chiropractor made to you, if you continued with that work you would need surgery, that’s right. And I suggest that even though your role changed to runner in 1998, you continued to have back pain when your role changed, is that right?---
A:Correct.
Q:And you continued to have back pain in 1999, after the first year of running, is that right?---
A:That’s correct, yes.
Q:And you continued to have ongoing pain in 2000, after a couple of years of running?---
A:That’s correct.
Q:And again we could take it right through to 2005, you were in continual pain for the period of employment that you were with Patterson Cheney?---
A:That’s correct.
Q:And that pain had started when you were working in the cages, about six months after you started in that role?---
A:Yes, but not to the extreme.”[73]
(emphasis added).
[73]T23, L24 – T25, L3
83 The plaintiff confirmed that the incident that she had described occurring on 6 October 2005, when she bent over to close a drawer, was followed by immediate pain in her left lower back and down the back of her right and left thighs. When queried by the Court, the plaintiff said that was the first time that symptoms had occurred in her thighs.
84 The plaintiff was shown exhibit 6, which consisted of casualty reports in relation to the episode on 6 October 2005 and the episode on 11 October 2005. The plaintiff confirmed that she was referred for a CT scan[74] and that arrangements were made for her to undergo physiotherapy.
[74]See exhibit 2 at page 18 PCB
85 The plaintiff also confirmed that she returned to work on 24 October 2005, working two hours a day, and over time, her hours increased such that by November 2005 her hours increased to six hours a day, five days a week, and in about January 2010, she returned to her normal hours. She also confirmed that she returned to normal hours on her pre-injury duties but could not cope, and from January 2007, was performing her pre-injury hours with restrictions, which did not extend as to the amount or weight but more particularly, how she was to bend over, how she was to pick up things and how she was to carry things.
86 The plaintiff confirmed that Dr Vijay – generally referred to as Dr VJ – at the North Dandenong Medical Clinic was her primary “WorkCover doctor” and that was over the period from 2006 until about the end of March 2007. The plaintiff also confirmed that Dr Daniel Kelly at the Chandler Road Medical Clinic was her normal general practitioner in the years prior to commencing with the defendant, and continues to be her general practitioner at this time.
(b)The plaintiff performed such cage work for about two-and-a-half years, and it was during this period that she first experienced lower back pain, causing her to intermittently consult a chiropractor;
(c)On 16 November 1998, she became a full-time employee of the defendant as a picker/packer in the spare parts/despatch department in Dandenong. Such duties involved her picking the requested car part or parts by hand and delivering the car parts to the person requesting the car parts either by carrying the car parts on foot or driving a motorised buggy to various workshops at the premises. The car parts varied in size and weight, including 20 litre drums of coolant/car fluid weighing about 25 kilograms each and car/truck batteries weighing about 30 to 35 kilograms each. During any one shift and, on average, she picked up about three to four drums of coolant fluids and about four to six car/truck batteries. She was required to work at a constant, fast speed when doing parts picking and was on her feet throughout the shift. When using the buggy to transport material, it was necessary to lift items up and over a lip around the buggy (I have earlier described this work as the “picker/packer work”);
(d)The plaintiff continued such work until about October 2005 and over the years she suffered back pain for which she received intermittent medical, physiotherapy and other chiropractic treatment, and she tried to keep working “despite the pain”. I note that the records of Dr Kelly record that in April 2002, the plaintiff stated she was seeing a chiropractor for back problems (although the site was not specified), and in May 2002 it is noted that the plaintiff had persistent “back” and neck pain, with stiffness, and such condition was not responding to a chiropractor;[98]
(e)In October 2005 the plaintiff experienced significant back pain following relatively minor events – mopping the floor of the warehouse; bending over to close a drawer at work and after straightening up she felt immediate pain in her left lower back and down the back of her right and left thigh (6 October 2005); and when bending and twisting her back into a cabinet at work, she experienced lower back pain and could not straighten up from her bent position (11 October 2005).
(f)The plaintiff lodged a WorkCover Claim Form dated 24 October 2005,[99] which was accepted by the defendant. As already recorded, the plaintiff was off work for about nine days until 24 October 2005;
(g)When returning to work on 24 October 2005, the plaintiff commenced on two hours a day performing modified duties, which involved standing at a carousel with rotating car parts. She collected the parts, placed stickers with barcodes on the parts, entered the barcodes into the computer system and placed the barcode parts into tubs. Such work was lighter than the work she had been previously doing. In November 2005 her work hours increased to six hours a day, five days a week;
(h)The plaintiff ultimately attempted to return to the picker/packer work on 10 January 2006, but was unable to cope due to increased lower back pain;
(i)From about December 2006, the plaintiff resumed the picker/packer work subject to, initially, medical certificates which set out weight restrictions.[100] Although no further certificates were submitted, the weight restriction continued for a while, although she built up to heavier weights which she did not cope with very well – she felt she was under pressure to perform such work as she was an experienced picker/packer.
Over the period from about October 2005 to about May 2007, the plaintiff was attending mainly Dr Vijay, receiving reasonably regular treatment for what was described as a flare-up or aggravation of her back condition. When seen on 4 May 2007, Dr Vijay noted the plaintiff was mostly doing normal duties and her symptoms had almost resolved, but it was explained to her that the symptoms may return and she should avoid heavy lifting long-term. The plaintiff was subsequently seen in July 2007 and November 2007, when she complained of lower back pain and on one occasion noted she might have overdone it at work over the last week. She was also prescribed, amongst other things, Panadol Osteo tablets.
(j)Over the years from about 2005 the plaintiff experienced more extreme pain, particularly in her leg, with numbness, and from about 2005 she found she had to sit down every now and then to relieve the pain;
(k)The plaintiff ceased work in early 2011 in part, because of her ongoing and increasing back problems. The plaintiff had other medical issues involving alcohol intake and some psychological issues.
[98]See exhibit 10 at page 167 DCB.
[99]See exhibit 5 at pages 5 – 57 PCB
[100]See exhibit 8, which consists of Certificates of Capacity dated 29 December 2006, 17 January 2007, 2 March 2007 and 22 March 2007
122 After a consideration of all the evidence, and bearing in mind the findings that I have set out above, I do find that the plaintiff suffered a compensable lower back injury arising out of, or in the course of, her employment from 20 October 1999 throughout the period of the employment to when she ceased work in 2011. Although there was a degree of fluctuation of pain – for example, significant difficulties in 2005-2007 and later in 2010, I consider that there was a slow deterioration in the back culminating in that being one of the reasons she ceased employment in 2011.
123 I have come to such a conclusion for the following reasons:
(a)The nature of the picker/packer work that she was performing on and after 20 October 1998 required her to be on her feet, lifting and manoeuvring car parts, some of which could weigh in excess of 20 kilograms, which were required to be taken to various sites in the Plant, either by hand or on a trolley, which required lifting the parts onto the trolley over a lip. Such work was pretty constant and involved manual handling. Clearly enough, such work involved frequent lifting and bending;
(b)The plaintiff’s description of ongoing and increasing lower back pain, with referred pain to one or both legs, over the period from 20 October 1998. I note that Dr Vijay referred the plaintiff to the rheumatologist, Dr Mark Patrick, who consulted with the plaintiff on 12 December 2005, at which time he obtained the history that she had been working full-time for the defendant for about ten years, mostly working in spare parts. Such work did “require a lot of walking, standing, lifting and the like”. Dr Patrick also obtained the history that the plaintiff, “for a number of years … had lower back into right buttock pain”; [101]
[101]See exhibit 3 at page 28 PCB.
(c)The orthopaedic surgeon, Mr Simm, the occupational physician, Dr Sutcliffe, and the neurosurgeon, Mr Siu, each opine that the plaintiff’s employment with the defendant contributed to her lower back injury. In particular, I note the following:
(i)Mr Simm diagnosed symptomatic lumbar disc degeneration with referred pain into the right thigh, which he did not consider was a clinical sign of radiculopathy, but somatic pain. In particular, he noted that there was reported degenerative gas in the L4-5 intervertebral disc, which he considered an indication of severe internal disc disruption with disc resorption. Mr Simm was of the opinion that the employment of the plaintiff with the defendant was a contributor to her underlying L4-5 and L5-S1 lumbar disc degeneration, which is constitutional age-related pathology, but the heavy and repeated manual lifting over the years caused some degree of injury to the compromised degenerate intervertebral discs and could certainly have been responsible for accelerating the degenerative disc changes. Mr Simm noted that the “relationship of the pain to employment is confirmed by the history that when she ceased work the level of her pain improved;”[102]
[102]See exhibit 4 at page 35 PCB
(ii)Dr Sutcliffe was of the opinion that the plaintiff had suffered the onset of disc derangement and aggravation of degenerative changes in the lumbosacral spine as a result of the employment undertaken by her with the defendant;
(iii)Mr Siu diagnosed the plaintiff to be suffering an aggravation of her lumbar spondylosis and asserts that “correspondingly with time there has been degeneration which in part can be related to employment but in part due to ongoing constitutional degenerative changes.”[103] He also notes that since stopping work in 2012 her symptoms have improved.
[103]See exhibit “A” at page 6 DCB
Mr Siu also asserts that a review of the various x-rays and scans reveal a “progression of pathology”[104] and that the “corresponding imaging supporting that deterioration”[105] brought about by the aggravation of her back injury by employment with the defendant.
[104]See exhibit “A” at page 4 DCB
[105]See exhibit “A” at page 4 DCB
(d)Dr Kelly, one of the treating general practitioners of the plaintiff (and her current general practitioner), diagnosed her to be suffering from lumbar disc degeneration and he stated that the nature of her picker/packer work:
“… probably contributed to her back problems over time, despite their being no specific incident that can be pinpointed. She would not be able to go back to this type of work in the future, or any heavy physical work for that matter.”[106]
(e)From around 2010 leading into early 2011, Dr Kelly had various consultations with the plaintiff where she was complaining of lower back pain, numbness and referred pain.
(f)I do not consider that the evidence of Lisa Huzony, the daughter of the plaintiff, is of much assistance in the determination of any of the issues. Her evidence was vague as to when she considered her mother to have suffered an “injury”, and in the circumstances of the matter, there is no issue there was lower back pain when performing the cage work – the issue is whether or not there has been aggravation of that condition on or after 20 October 1999.
[106]See exhibit 3 at page 26 PCB
124 The major attack on the plaintiff’s credit was in relation to the evidence about her various attendances at hospital for drink-related matters or attendances for psychological treatment. The plaintiff was ably cross-examined by counsel for the defendant, highlighting that, on many occasions when queried by doctors, nurses, or other health professionals as to what she considered to be any precipitating issue causing any psychological problems or, more particularly, her drinking problems, there was no reference, at any time, to lower back pain. This must be compared to the assertions of the plaintiff in her affidavits and, indeed, during the course of the evidence on occasion, that she considered that her bouts of drinking were brought about by her bouts of increasing pain in her lower back.
125 On some occasions, the plaintiff considered that she may have told a doctor, and on many other occasions she accepted that she may not have told people treating her for alcoholism or other emotional issues anything about her ongoing back pain problems. It was strenuously put to the plaintiff that the absence of such histories to those type of treaters suggested that she had no ongoing back problems or pain. To this proposition, the plaintiff then asserted that she did have back pain throughout this period of time.
126 In relation to this issue, the plaintiff gave evidence that over the last few years of her employment her back pain was bad and painful, and she stated:
“How do I answer this? I just don’t want it coming out the wrong way. My back has been an issue for a long time, from work, that when the CAT team came into it, when my drinking came into it, I think the back was put to a back burner at the time because I was in more trouble, I was in deep trouble because alcoholism took over me so much that I had to - that was more important for help than my back at the time. How do I explain it?”[107]
[107]T124, L6 – 15
127 I also refer to the evidence of Dr Kelly, who noted the plaintiff had a variety of other problems which she had to deal with. In particular, Dr Kelly stated:
“The history of her back complaint is fragmented in our medical files due to the other, more serious problems facing her. I remember that she was very fearful of losing her job and so just tried to battle along as best she could, just coping with her back pain and sciatica. She tried various mild analgesics and NSAID’s which gave some relief and enabled her to continue in her job. In May 2012 she stated that she was considering put[t]ing in a Workcover claim – she stil[l] had chronic low back pain at this time, with intermittent sciatica in her right leg. She stated that she thought the years of heaving lifting in her work place had contributed to, or caused this problem.”[108]
(sic)
[108]See exhibit 3 at page 24 PCB
128 As recorded in these Reasons, it is necessary to make the assessment of serious injury at the time the application is heard. The medical evidence before the Court is overwhelming that the plaintiff does suffer symptoms in her lower back which impact on her day-to-day living and her work capacity.
129 Given the history of back pain from about 1997, I consider it inherently unlikely that the plaintiff was asymptomatic over the years, the subject of cross-examination by counsel for the defendant. Cleary enough, the plaintiff being a single woman with a dependent daughter had a real need to work and, in a general way, enjoyed her job, although found it physically demanding. It is also noted that the plaintiff has a good work record.
130 Ultimately, I have come to the view that such evidence relating to her failure to mention the back pain to those who were treating her for any psychological conditions and/or alcoholism, does not detract from the proposition that the plaintiff suffered a compensable lower back injury over the period from 20 October 1999 to her cessation of employment.
131 I find that such injury has resulted in permanent impairment, giving rise to organic consequences impacting on work, domestic and recreational activities.
132 After consideration of all the evidence, I accept the plaintiff has no capacity for her pre-existing employment or, indeed, any suitable employment, given her age, her industrial background and education. As I understood the submissions of counsel for the defendant, it was accepted that the medical evidence was all one way on this particular issue.
133 In particular, the aggravation, at least, and, arguably, the acceleration of her degenerative disease by the type of work she was performing from 20 October 1999 to ceasing work has, over time, brought about a deterioration of her capacity for work, which is now manifest on all the available evidence.
134 I do accept that prior to 20 October 1999 the plaintiff did experience back pain, initially when performing the cage work and, later, when performing the picker/packer work from November 1998 up, and to, 20 October 1999.
135 Arguably, the demonstration of a “serious injury” may be approached by the application of Grech v Orica Australia Pty Ltd & Anor,[109] which has been described as a case dealing with “causation issues” in the context of a single ongoing condition – in that case, Bilateral Carpal Tunnel Syndrome – which commenced prior to 20 October 1999 and continued after that date. As Ashley JA, in that case set out, the question for determination was whether the worker had suffered identifiable compensable injury to his wrists and hands on or after 20 October 1999, which resulted in, or materially contributed to, the consequences that he claimed constituted serious injury.[110] In this sense, I have no difficulty in finding that the plaintiff did suffer identifiable compensable injury to her lower back on and after 20 October 1999, which has resulted in, or materially contributed to, the consequences claimed to constitute serious injury – in particular, the inability to work and various functional restrictions.
[109](2006) 14 VR 602
[110]See also AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
136 However, bearing in mind that her back pain prior to 20 October 1999 was not only precipitated by the picker/packer work but, also, initially by the cage work, it is perhaps more appropriate to analyse whether the plaintiff has suffered a “serious injury” within the meaning of Petkovski v Galletti,[111] which requires that where there is a pre-existing condition, an analysis must be made of the extent of impairment of a body function before and after the relevant injury, and the claimed aggravation must, itself, be a “serious injury”. I do find that any back pain suffered by the plaintiff prior to 20 October 1999 has been aggravated and, on one view, accelerated as a result of the type of work she was performing from 20 October 1999 to the date of her cessation of employment. Such aggravation has resulted in her inability to perform her pre-existing duties or suitable employment, together with a variety of functional restrictions caused by the pain in her lower back.
[111][1994] 1 VR 436
137 As I already pointed out earlier in this decision, a worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[112]
[112]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle (op cit) at paragraphs [60] – [64]; Acir v Frosster Pty Ltd (op cit)
138 I do refer to the opening comments by counsel for the defendant when he stated that even if there be a relevant compensable back injury, such back injury is not causative of any reduced working capacity. I reject such assertion for the reasons I have set out. I was also informed that the evidence will establish that there are “a myriad of reasons why she is not working”.[113]
[113]T15, L5 – 6
139 It may have been multifactorial as to why the plaintiff finally ceased her employment – lingering issues with her alcoholism, psychological conditions and other health issues may well have played a role. I do not consider such considerations to be to the point. In this respect, I refer to the Court of Appeal decision of Dressing v Porter.[114] In that case, the plaintiff lost his serious injury application at first instance, in part because it was plain that the worker was suffering from a multiple of other physical conditions beyond the subject relevant injury – a neck injury. On appeal, he succeeded.
[114][2006] VSCA 215
140 I refer to Ashley JA, in paragraph 47, wherein he states:
“This should next be said. In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”
141 In a similar way, it is necessary for the Court to identify a compensable injury – in this case a lower back injury; determine whether such injury gives rise to any permanent impairment and organic consequences, and whether those consequences satisfy the test for serious injury. In this case, I have found that one of the consequences suffered by the plaintiff has been her inability to perform her pre-existing job or, indeed, any suitable employment. It is not to the point that there may be other conditions which impact on the capacity of the plaintiff to work (although these may be relevant in any ultimate damages claim).
Conclusion
142 Pursuant to s134A(16)(b) of the Act, I grant leave for the plaintiff to bring common law proceedings for both “pain and suffering damages” and “pecuniary loss damages” in respect of a back injury suffered during the course of her employment from 20 October 1999 to the cessation of her employment in 2011.
143 I will hear the parties on the question of costs.
- - -
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit 1
·Affidavits of the plaintiff sworn on 4 September 2015 and 10 June 2016
·Affidavit of Lisa Huzony (the daughter of the plaintiff) sworn on 10 June 2016.
(All such documents are found at pages 1 – 17 Plaintiff’s Court Book (“PCB”)).
Exhibit 2
·Report of CT scan of the lumbar spine undertaken on 14 October 2005
·Report of MRI scan of the lumbar spine undertaken on 16 April 2006
·Report of CT scan of the lumbar spine undertaken on 31 January 2011
·Report of CT scan of lumbar spine undertaken on 20 June 2012.
(All such documents are found at pages 18 – 21 PCB).
Exhibit 3
·Medical reports from the general practitioner, Dr D Kelly, dated 25 September 2014 and 3 March 2016
·Report of the rheumatologist, Dr Mark Patrick, dated 19 December 2015.
(All such material is found at pages 23 – 29 PCB).
Exhibit 4
·Medico-legal reports of the orthopaedic surgeon, Mr Rodney J Simm, dated 9 October 2014 and 26 May 2016
·Medico-legal report from the occupational physician, Dr Helen Sutcliffe, dated 10 December 2016.
(All such material is found at pages 30 – 49 PCB).
Exhibit 5
·Worker’s Claim Form dated 24 October 2005
·Employer’s Claim Form dated 25 October 2005.
(All such material is found at pages 55 – 59 PCB).
Exhibit 6
·Casualty reports from employer dated 6 October 2005 and 11 October 2005.
(Such material is found at pages 60 – 61 PCB)
Exhibit 7
·Extract of clinical records from the Chandler Medical
(Such material is found at pages 159 – 204 of the Defendant’s Court Book (“DCB”))
Exhibit 8
·Certificates of Capacity dated 29 December 2006, 17 January 2007, 2 March 2007 and 22 March 2007.
Exhibit 9
·Extracts of Southern Records (pages 531, 592, 593, 594, 607, 608 and 609).
Exhibit 10
·Clinical notes of Dr Vijay from October 2005 to January 2007 contained in the extract of clinical records of the North Dandenong Medical Clinic.
(Such material is found at pages 146 – 158 DCB)
The defendant tendered the following material:
Exhibit A
·Medico-legal report of the neurosurgeon, Dr Keven Siu, dated 14 December 2015.
(Such material is found at pages 1 – 10 DCB).
Exhibit B
·Offer of suitable employment dated 20 January 2006.
(Such material is found at page 14 DCB).
Exhibit C
·Extract from the clinical records of Dandenong Hospital – Monash Health.
(Such material is found at pages 18 – 134 DCB).
Exhibit D
·Extracts from notes of Dr Kelly.
(Such material is found at pages 135 – 145 DCB).
0
10
0