Ingram v Victorian WorkCover Authority
[2015] VCC 1459
•21 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04386
| JOY INGRAM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 October 2015 | |
DATE OF JUDGMENT: | 21 October 2015 | |
CASE MAY BE CITED AS: | Ingram v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1459 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower spine – pain and suffering and economic loss – interposition of various other unrelated injuries and conditions – whether lower spine injury and consequences related to employment – retirement from employment for unrelated reasons – whether 40 per cent loss of earning capacity – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Acir v FrossterPty Ltd [2009] VSC 454; Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Judgment: Leave to the plaintiff to bring proceedings at common law
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr A Saunders | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J Batten | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff, Ms Ingram, worked for Austin Health (“the hospital”) as an instrument technician, from 1998. After working for a short period as a kitchen hand elsewhere, she returned to employment with the hospital in 2000. In 2006, she began suffering pain and restrictions in her lower spine. In early 2007, there was a further significant episode of lower back pain as a result of which she remained off work for about fourteen months. On returning to work, she worked reduced hours for a brief period before returning to full duties. Despite ongoing back pain, she continued to work until December 2009, when she suffered an injury to her right hand. She has not worked since.
2 Since ceasing work, Mrs Ingram has suffered a range of other health conditions and there is little doubt now, at age sixty-four, she has little, if any, work capacity.
3 She claims a range of social, domestic and recreational activities have been lost to her. She had surgery to her lower spine in 2013, but without significant relief from her lower back symptoms. She takes a range of medication and suffers referred pain down her legs, in particular cramping in the calves.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the hospital. The body function said to be lost or impaired is the lower spine.
5 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
6
The plaintiff was the only witness called to give evidence and be
cross-examined. In addition, two affidavits sworn by her, medical and radiological reports, clinical notes and other material were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and the reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
7 The plaintiff is now sixty-four. She has three adult children and two grandchildren. Her husband passed away some years ago.
8 She left school at the age of fourteen and has worked in various roles, including as a laundry and kitchen hand, in factory work, as a nurse’s aide and eventually, as an hospital instrument technician. She has a Certificate qualification in Instrument Sterilisation.
9 In 1998, she commenced work at the hospital as an instrument technician. For a brief period she worked as a kitchen hand elsewhere before returning to the hospital in 2000 on a fulltime basis. She was made permanent in 2002. She experienced right carpal tunnel symptoms in 2000, and this was surgically released.
10 Mrs Ingram’s work involved sterilising surgical instruments. Although the evidence is not completely clear, it would appear that the trays of instruments she handled generally weighed between 5 and 7 kilograms. The work also involved repetitive lifting and handling of these trays and instruments, pushing of trolleys, bending and twisting.
11 Carpal tunnel symptoms aside, Mrs Ingram said she was otherwise well before she started work for the defendant and, in particular, she suffered no significant problems with her lumbar spine.
12 She was able to enjoy all of her domestic activities. She was a keen walker and would walk every day. She would swim from time-to-time and enjoyed dancing at social events. She played bingo twice a week in Reservoir.
The injury and its consequences
13 On or about 14 March 2006 Mrs Ingram experienced lower back pain whilst at work. She reported the incident to an OHS Officer and visited the staff clinic. She then returned to work.[1] Mrs Ingram was unable to recall if she was off work for any significant period.
[1]Plaintiff’s Court Book (“PCB”) 12
14 In late 2006 or early 2007 Mrs Ingram experienced further lower back pain whilst working. An x-ray of the lower back taken on 11 January 2007 showed degenerative changes at various levels in the spine, including in the lumbosacral spine.[2]
[2]PCB 41
15 On 5 February 2007, while working in the sterilisation section, Mrs Ingram said she suffered pain that “stopped me in my tracks”.[3] In evidence, she further described the pain as excruciating.[4] She reported the injury immediately and saw her then general practitioner, Dr Herath. She was advised to rest and undertake physiotherapy and hydrotherapy.[5] While there does not appear to be any note of the attendance on Dr Herath, Mrs Ingram was provided with a medical certificate which said:
“This patient suffers from degenerative disease of the spine and should not lift or bend indefinitely.
She cannot perform her duties in Sterilizing, Imprest area, Decontamination area (which is causing aggravation to the lower back.)
She can perform lighter duties in other areas.”[6]
[3]PCB 12 and T20, L18
[4]Transcript (“T”) 40, Line (“L”) 9-10
[5]PCB 13
[6]PCB 17
16 In a report to Mrs Ingram’s lawyers,[7] Dr Herath described the February 2007 incident as “backstrain causing pain”[8]. She said the following about the incident:
[7]Dated 20 February 2008
[8]PCB 19
“Joy consulted me in February 2007 complaining of a back ache which was brought on by bending and lifting at work.
At the time she was working as a sterilization technician and her work involved considerable lifting and pushing.
She was kept off work and recommended physiotherapy and hydrotherapy.
The injury itself was backstrain causing pain. The underlying diagnosis was osteoarthritis of the lumbar spine which is a degenerative disease, but the pain was brought on by the lifting and bending movements at her workplace.
….”[9]
[9]PCB 19
17
Mrs Ingram lodged a WorkCover Claim for a lower back injury on
19 February 2007. The claim was accepted by the defendant and she received 16.3 weeks of weekly payments of compensation.[10] Significantly, Dr Herath considered Mrs Ingram was fit to perform clerical duties in July 2007, however she noted that Mrs Ingram had no training in such duties.[11] In the same report, Dr Herath said:
“When I examined Joy in February 2008, her functional capability had improved and the sterilization technician job at Austin Health had been modified so no manual lifting was involved. In view of this, I felt that she was fit to return to work from the 6th of July 2007 as a sterilization technician.”[12]
[10]In fact Mrs Ingram was off work for a longer period, but was paid weekly compensation for only 16.3 weeks.
[11]PCB 19
[12]PCB 19
18 Mrs Ingram remained off work for fourteen months before returning in about April 2008 on graduated duties and reduced hours. She accepted the proposition that there was difficulty finding a suitable job for her.[13] After six or so weeks she was performing her fulltime pre-injury duties. She said she did this with difficulty and received little assistance from her work colleagues and managers.
[13]T20, L24
19 In the time she was off work, the Sterilising Department was modified and centralised and staffing levels increased.[14] Notwithstanding these changes, Mrs Ingram said the work continued to further aggravate her back pain.[15] For the remainder of 2008 and 2009 she continued working, albeit in pain. When working, she managed her pain with Panadol Osteo, six tablets every six hours.[16]
[14]PCB 13
[15]PCB 13
[16]T38, L23
20 Mrs Ingram was examined by Mr Hugh Weaver, orthopaedic specialist, in August 2008, in relation to an Impairment Benefits Claim relating to her back. His assessment was made without the benefit of any investigations of the spine.[17] Nonetheless, he concluded that Mrs Ingram suffered from a probable genuine mild to moderate degree of lumbar disc degeneration. He considered that she should not handle weights of more than 10 kilograms on an intermittent basis or more than 5 kilograms consistently.[18] As to employment potential he said:
“Mrs Ingram has demonstrated her capacity to return to work and she is continuing to function full time at present, admittedly with appropriate minor restrictions in place.
I can see no reason why she cannot continue to function in this fashion, but by the same token it would again be accepted that her continuing employment activities are in themselves going to perpetuate her symptoms to some extent.”[19]
[17]Defendant’s Court Book (“DCB”) 11
[18]DCB 12
[19]DCB 11
21 On 27 November 2009, Mrs Ingram presented to Dr Herath complaining variously of severe back pain and sciatica. She was advised to increase magnesium to twice daily.[20]
[20]Exhibit B, page 4
22 On 12 December 2009, Mrs Ingram developed right wrist pain while working in the Decontamination Section.[21] She reported that injury and attended the Emergency Department at the hospital and Dr Herath a few days later. She said she was advised to rest. Mrs Ingram lodged a WorkCover Claim which was accepted. She subsequently received 130 weeks of weekly payments of compensation which terminated in 2012.
[21]PCB 13
23 By correspondence dated 4 January 2010 she resigned her employment with the defendant, effective 17 January 2010. In cross-examination Mrs Ingram accepted that she told people in the workplace that she resigned because she wanted to reconnect with her family.[22] She later said she was treated “badly”[23] at the hospital and was “unhappy”[24] with hospital management. Mr Batten, for the defendant, put to her that a reason she handed in her resignation was her perception that she was not looked after by hospital employees as well as she should have been. Mrs Ingram accepted that proposition.[25]
[22]T26, L18
[23]T33, L8
[24]T33, L15
[25]T33, L12
24 On 26 May 2010, Mrs Ingram consulted Mr Flood, orthopaedic surgeon, about her right wrist pain. He diagnosed right wrist de Quervain’s Tenosynovitis and performed a surgical release on 29 October 2010 after having performed a right carpal tunnel release in error in June 2010. Mrs Ingram became upset and depressed as a result of the wrong procedure having been performed.[26]
[26]T26, L26
25 In March 2011, Mrs Ingram was referred to Dr Lim, a consultant in rehabilitation and pain medicine, for treatment of a suspected Chronic Pain Syndrome affecting the right wrist. Mr Lim prescribed Lyrica, however Mrs Ingram said she only took one tablet because of the side effects.[27] Dr Lim referred her to a Pain Management Program which she completed later that year.
[27]PCB 14
26
In 2012 Mrs Ingram’s back pain worsened. According to a report from
St Vincent’s Hospital, she had attended the hospital on a number occasions in 2012 and 2013 complaining of back pain with radiation to her legs.[28] Neither the number nor dates of those attendances were provided.
[28]PCB 31
27
At the suggestion of Mr Lim, Mrs Ingram attempted some volunteer work with elderly people in about July 2012. The duration of the volunteer work is unclear. Dr Quiery, general practitioner, described it as a two hour trial.[29] In
cross- examination Mrs Ingram said she “… didn’t do that for too long”.[30] She accepted that her duties were essentially to talk to the elderly. In terms of physical duties she said:
The only thing I did was ask them if they wanted a cup of tea and if they – I mean, like I would help with the – like some of them with their luncheon but that was put on the plate, I wasn’t in the kitchen and that was all on the counter.[31]
[29]PCB 30
[30]T28, L10-11
[31]T28, L5-9
28 In re-examination, Mrs Ingram explained that she stopped the volunteer work because “there was sitting and standing which I knew I couldn’t do”. When asked why she was unable to do the sitting and standing she said:
“Because of my back pain, when I was – the movements are just – like sitting and – and then to get up and stretch my legs and to stay up for a while which is now – which I’d love to do at the present because I’m getting fidgety. But I just love being there with the elderly that was there. It was something I’ve – in my – but – and I can’t do that.”[32]
[32]T43, L14-20
29 In a brief report to the WorkCover insurer after Mrs Ingram’s attempt at volunteering, Dr Quiery wrote:
“Her capacity to concentrate and deal with her pain in a focused environment was unfortunately very poor and she was unable to complete any form of work.
Mrs Ingram is in my opinion completely incapacitated and unfit for any form of work at the present time. Her incapacity may well continue indefinitely.”[33]
[33]PCB 30
30 In 2012 Mrs Ingram came to be under the care of Mr Thien, neurosurgeon. An MRI scan he ordered dated 15 October 2012 showed “Moderate to severe central canal stenosis at L4/L5 … potentially compressing the right L5 nerve root.”[34] Significantly, Mr Thien’s clinical note of 12 March 2013 recorded the following:
[34]PCB 48
“… has not worked since 2010
main reason for not working is low back pain and chronic regional pain
syndrome in right handstanding at ironing board causes pain in lower back and both legs, about
equal in both legs
keen to consider L4-5 decompression and spinal rhizolysis
wants to return to work but at the moment
discussed goals and risks of surgery.” [sic][35]
[35]PCB 50
31 On 4 September 2013 Mrs Ingram underwent an L4/5 laminectomy through the public hospital system at St Vincent’s Hospital. Her admission to hospital was elective.[36] Mrs Ingram accepted the proposition put by Mr Batten that she did not, prior to the surgery, seek approval from the defendant or its agent. When asked why she said: “…I didn’t know that I could still go through – like if I had surgery and that, that it would be paid for. I thought that was – because when I left there.”[37] Although misguided, I consider that Mrs Ingram’s belief that she could not claim medical expenses as she was no longer an employee of the defendant, was honestly held. I therefore accept her explanation for not seeking approval for surgery.
[36]PCB 33
[37]T34, L11-14
32 Following surgery, Mrs Ingram remained in hospital for rehabilitation before being discharged home on 20 September 2013. At this time it was noted that she was using a single point stick as a gait aid and she was independent with activity and ambulation. Her walking tolerance was noted to be 500 metres.[38] Mrs Ingram said the operation did not help.[39] Dr Cush, Mrs Ingram’s then general practitioner, remarked that Mrs Ingram, since the operation, required “… stronger analgesic in the form [of] Targin at low doses” and had commenced Lyrica for neuropathic pain.”[40]
[38]PCB 33
[39]PCB 16C
[40]PCB 37
33 In about December 2013 Mrs Ingram was reviewed by the neurosurgery team at St Vincent’s Hospital. A post-surgery MRI scan revealed “… a persistent right L4/L5 disc extrusion with L4 compression” for which Mrs Ingram was given an injection to her L4/L5 nerve route region in about January 2014.”[41] She said the injection did not help.[42]
[41]PCB 34
[42]PCB 16C
34
She was reviewed at St Vincent’s Neurosurgery Outpatient Clinic on
16 September 2014. It was noted that she still had some ongoing pain and right-sided sciatica.[43] Dr Cush suggested that there was some discussion at that consultation that a fusion might be indicated.[44]
[43]PCB 34
[44]PCB 38a
35 Mrs Ingram further attended upon Mr Thien on 24 March 2015 and 25 May 2015. At the March appointment Mr Thien recorded the following complaints:
“… low back pain and pain in both sides left side is worse than right
when sitting moderate back pain
sitting – notices pain in calves”[45]
[45]PCB 38c
36 At the May appointment Mr Thien recorded “pain in lower back” and “incomplete bowel emptying”.[46]
[46]PCB 38b
37 Mrs Ingram said there are no further surgeries planned for any of her conditions. While she is due to see doctors at St Vincent’s Hospital in November, she has decided not to have further surgery to her back no matter what the advice.[47] As for current treatment, Mrs Ingram attends physiotherapy regularly and otherwise only sees her current general practitioner, Dr Cush, several times a week. It is unclear exactly how much treatment by either the physiotherapist or Dr Cush relates to her back condition.
[47]PCB 16C
38 At the present time Mrs Ingram takes Panadol Osteo (two tablets four times per day), Targin (two tablets twice per day), Lyrica (two tablets twice per day) and Endone (one tablet, twice daily) for pain relief.
39 Mrs Ingram has not worked since 12 December 2009. She effectively retired when she submitted her resignation in 2010. She has been reliant on the Disability Support Pension since 2012. In cross-examination Mrs Ingram said she was not looking for work because “… I know I can’t work”.[48]
[48]T29, L6
40 In August 2015 Mr Paul Hartley, occupational physician, carried out a Vocational Assessment. He noted that IPAR, a rehabilitation service engaged by worker’s compensation insurer had, in 2010 and 2011, identified the following jobs as suitable, namely:
1. Admissions clerk
2. Medical receptionist
3. Switchboard operator
4. Integration aid
5. Sterilization technician
6. Aged carer
7. Residential care worker
8. Out of school hours care worker
9. Pharmacy sales assistant
10. Filing clerk.
41 Mr Hartley said Mrs Ingram has no current work capacity. He further observed:
“My report comprehensively outlines the reasons that lead me to the opinion that Ms Ingram has no current work capacity. Whether this incapacity is still related to her work injuries is outside my area of expertise. However, medical opinion is that she cannot return to her full pre-injury duties as a sterilisation/instrument technician and that she has residual restrictions to both her lower back and right hand/wrist. The alternate jobs put forward as suitable by IPAR require levels of education and skills beyond those possessed by your client, and also appear beyond her post-injury physical capacity, for each separate injury.”
…
It is therefore my opinion, on the balance of probabilities, [Mrs Ingram] will have ‘no work capacity’ for the foreseeable future, based only on her back injury and its sequelae, and ‘no work capacity’ for the foreseeable future based only on her right hand/wrist injury and its sequelae, and she is unlikely to be able to ever return to any suitable work duties.” [49]
[49]PCB 98
42 According to her affidavits and oral evidence, Mrs Ingram claims the following consequences as a result of her lower back injury:
· She wakes at least once most nights due to back pain. As a consequence, she often wakes feeling unrefreshed. The pain requires significant quantities of medication;
· The condition has required major back surgery in the form of an L4/5 laminectomy, which has not relieved the pain;
· She has difficulty dressing, in particular putting on shoes, socks and slacks. Her capacity to stand and sit for more than a short time is limited;
· She is limited in the housekeeping she can do; she is unable to do heavier chores such as vacuuming, mopping and hanging out washing. She is reliant on home help which she receives once a week together with assistance from her daughter;
· While she is able to do a ‘light shop’ she is reliant on home help for the ‘weekly shop’;
· Prior to the injury Mrs Ingram would regularly go for walks and participate in water aerobics. She would also go dancing six or seven times a year. She in unable to now partake in these activities.[50]
[50]PCB 16e
Onset of other conditions
43 Mrs Ingram has suffered from a myriad of other health conditions. In 2008 and 2009 she suffered from “mini strokes”. In 2011 she had mild lymphocitis[51]. In 2012 she was diagnosed with Hypothyroidism for which she continues to take Thyroxin. In cross-examination she accepted that her Hypothyroidism makes her feel tired and lethargic.[52] She later said that it also caused weight gain[53] and listlessness.[54] Even with medication, she said that she would not be able to work because of her Hypothyroidism.[55]
[51]PCB 32
[52]T31, L13
[53]T39, L30
[54]T40, L3
[55]T36, L28
44 In about 2013 she received treatment at St Vincent’s Hospital for respiratory issues, including, asthma, chronic obstructive airways disease (COAD) and sleep apnoea. Her asthma is controlled with Seratide and Ventolin. She takes Spiriva for COAD. She tried a facemask for sleep apnoea but could not cope with it.[56] In cross-examination she accepted that sleep apnoea causes her to feel tired and lethargic during the day.[57] In re-examination she said the sleep apnoea would not have any impact upon her ability to work.[58]
[56]T31, L27
[57]T31, L30
[58]T37, L12
45 Mrs Ingram also suffers from Hypotension and Gastric Oesophageal Reflux, both of which she said are controlled by medication.
46 Since about 2012 she has had pain in both knees. She relies on a stick for walking because of her knees[59] and also because she gets “wobbly”[60]. When asked why she said:
“It’s my – from my back and my legs, my right leg. It’s yeah, because I do – I do stumble but thank god I don’t fall.”[61]
[59]T32, L22
[60]T38, L30
[61]T38, L31
47 Despite surgical treatment and physiotherapy Mrs Ingram said she still has pain in her right wrist from de Quervain’s Tenosynovitis.[62] In her most recent affidavit[63] she said she continues to suffer “chronic wrist pain” however the condition “has improved a little” and the pain no longer disturbs her sleep. [64] She said the injury continues to have an effect on her ability to do things around the house, however, not to the same degree as her back condition.[65] She takes Panadol Osteo, in part because of wrist pain.[66]
[62]T37, L29
[63]Dated 8 October 2015
[64]PCB 16e
[65]PCB 16e
[66]T42, L23
Medical evidence
48
Mrs Ingram was examined by Dr Robyn Horsley, occupational physician, in July 2015, at the request of her solicitors. That doctor obtained a history that she was asymptomatic until March 2006 and she experienced an aggravation on
5 February 2007. Mrs Ingram’s functional tolerances which were described as “quite poor”, were set out as:
“● A sitting tolerance, clinically approximately 20 minutes, subjectively 5 minutes;
·A static standing tolerance of 5 to 10 minutes;
·A dynamic standing tolerance of 5 to 10 minutes;
·A walking tolerance of 5 to 10 minutes. She can walk a few hundred metres….”[67]
[67]PCB 71
49
Mrs Ingram reported that her pain varies on the Visual Analogue Scale from
5 out of 10 up to 10 out of 10. She told Dr Horsley that she experiences a “cramping sensation” in her calves and feet when she walks. The cramping sensation can occur by day and also at night. She diagnosed “mechanical back pain with intermittent peripheral cramping but no peripheral radicular pain.”[68] She noted Mrs Ingram has:
[68]PCB 70
“… radiological evidence of constitutional degenerative change with has resulted in canal stenosis, particularly at the L4/L5 level, which is resulting in her current presentation / back pain and intermittent claudication.”[69]
[69]PCB 70
She “presents with no capacity for work”,[70] “she is totally and permanently disabled”[71] and “she is not a retraining or redeployment candidate”.[72] She suggested the following restrictions would be appropriate:
[70]PCB 71
[71]PCB 72
[72]PCB 72
· Avoidance of repetitive over reaching;
· Avoidance of prolonged static postures involving the lumbar spine;
· Avoidance of truncal rotation;
· She should ambulate with her single point cane or with a frame;
· Avoidance of lifting items greater than 5kgs except on an occasional basis;
· Avoidance of repetitive bending and lifting.[73]
[73]PCB 71
50 Mrs Ingram was examined by Professor Richard Bittar, consultant neurosurgeon, in September 2015. He obtained a history that her back pain is constant and sharp with an average severity of 7-8/10. It is exacerbated by sitting for more than 30 minutes, standing for more than 30 minutes, bending, twisting and lifting more than 3 kilograms.[74] He thought that she suffers from aggravation of lumbar spondylosis. He said her employment with the defendant has been a significant contributing factor to the injury. In terms of prognosis he thought that she is likely to continue to suffer from significant pain and disability into the foreseeable future. He recommended management by a qualified pain specialist and continued treatment with fortnightly physiotherapy and analgesia. As for work capacity, he wrote:
“In my opinion, as a result of the organic injury to her lumbar spine, she is permanently incapacitated for her full pre-injury duties.
She does, in theory, have the physical capacity to undertake very sedentary work part-time. Her partial incapacity for work as a result of her work related lumbar spine condition is complicated by the fact that she has a significant wrist condition (which is beyond my area of expertise).”[75]
[74]PCB 72B
[75]PCB 72D
51 Mrs Ingram was examined by Mr Michael Dooley, orthopaedic surgeon in July 2013. He reviewed the report of an MRI scan taken in 2012 and provided the following opinion:
“It is clear that [Mrs Ingram] has established degenerative disc disease of the low lumbar spine. This involves mainly the L4/5 level and as a consequence of degeneration spinal canal stenosis is occurring.
…
In my view it is clear that Ms Ingram’s work has not caused either her lumbar spine degeneration or the spinal canal stenosis that has occurred secondary to it. Given her underlying degenerative disc disease, it is certainly feasible that activities such as regular lifting, regular bending etc, could cause the underlying condition to have heightened effect at times. This would be equally applicable to activities carried out in everyday life etc.”[76]
[76]DCB 88
52 Mr Dooley re-examined Mrs Ingram in February 2015. He obtained an updated history and noted that surgery in 2013 did not alter her symptoms. He remained of the view that Mrs Ingram has naturally occurring degenerative disc disease of the lower lumbar spine involving mainly the L4/L5 level. He considered that the decision to carry out surgery was based on her naturally occurring degenerative disc disease and spinal canal stenosis. Mr Dooley expressed the following view:
“… the constancy and intensity of [Mrs Ingram’s] ongoing pain are out of proportion to the organic injury. I believe that Ms Ingram has had a psychological reaction to her situation and that this reaction does influence her ongoing symptoms. In my view, in the setting of a compensable soft tissue injury with disproportionate pain that I believe is due to Ms Ingram’s psychological reaction…[77]
[77]DCB 92
53
On behalf of the defendant, Dr Kevin Fraser, rheumatologist, examined
Mrs Ingram in August 2013 and February 2015. In the earlier 2013 report
Dr Fraser provided the following opinion:
“It would appear that the worker has significant lumbar spondylosis, a degenerative condition, related to her age and constitutional factors, including obesity.
Most likely her activities at work, as described previously, caused symptomatic aggravation from time to time but in my view it is unlikely that there was any acceleration of the underlying degenerative changes in the lumbar region as a result of her employment.
At this stage, I would suggest that she has recovered from any putative work-related aggravation of degenerative changes in the lumbar region.
The marked overreaction on physical examination suggests that she may be exaggerating her incapacity, but to the extent that it is organically based I consider that it is now solely due to the age-related degenerative changes.”[78]
[78]DCB 103
54 At the 2015 examination Mrs Ingram reported to Dr Fraser that there had not been any improvement in her back pain since the last examination. He obtained a history that swimming provides some relief.[79]
[79]DCB 105
55 Dr Fraser:
“My previous conclusions are unchanged. In particular, I do not consider that there are any ongoing work-related injuries in this case. Rather, she has lumbar spondylosis, with multilevel degenerative changes.
…
If there was any work-related aggravation of pre-existing age-related degenerative changes in the lumbar region it has, in my opinion, long since resolved.
I consider that any organically based incapacity in respect of her back is solely due to the underlying degenerative condition. From this point of view she is unfit for her previous work as an Instrument Technician or for any work requiring bending and/or lifting. I still consider her fit for more sedentary employment.”[80]
[80]DCB 107
Conclusions
56 I accept that, in the course of her employment duties in March 2006, Mrs Ingram suffered lower back pain which required some medical treatment, but she returned to work within a relatively short time. She had some ongoing problems and then significantly, the next year in February 2007, she suffered pain which she described as “excruciating”. Again, this required ongoing medical treatment. I am satisfied that this pain was an aggravation of underlying degenerative disease in particular at L4/5. An MRI scan of October 2012[81] concluded there was central canal stenosis at L4/5, possibly causing compression of the right L5 nerve root. Ultimately, in 2013, this condition led to an L4/5 laminectomy being undertaken at St Vincent’s Hospital. This surgery has been largely unsuccessful in relieving Mrs Ingram’s pain and restriction. This is confirmed by a subsequent MRI scan which showed disc extrusion at L4/5 with L4 nerve compression.
[81]PCB 48
57 Mr Batten made a number of submissions about the application:
·Firstly, in 2006/2007 Mrs Ingram suffered a back strain from which she improved and was able to return to fulltime work by June 2008. She recovered from that strain and if there was increase in her lower back pain in 2012/2013, it was simply the progression of the underlying degenerative disease and bore no relation to her work injury. This proposition was supported by the opinions of Mr Dooley and Dr Fraser;
·Secondly, her lower back condition was not responsible for her ceasing work. That occurred in 2009 as a result of the injury to her right wrist. It is clear from medical opinion and correspondence at the time, that she resigned because of that problem and to return to Queensland to be with her family;
·Thirdly, Mrs Ingram’s physical health has been subsumed by the range of other conditions and injuries from which she has suffered and disentangling the consequences from those conditions and injuries, the Court could not be satisfied that in respect of the lower back alone, she meets the statutory test both in respect of pain and suffering and economic loss.
58 In determining the first issue raised by Mr Batten, it is necessary to not only consider the histories provided to, and the opinions of, the various medical practitioners who have seen Mrs Ingram over the years, but also to make an assessment of her credibility. Much is to be determined by her evidence that the pain she experienced in 2006/2007 never relented. Even though she returned to work, having had fourteen months away because of her back injury, in 2008 she had ongoing pain and problems undertaking her work duties.
59 I assessed Mrs Ingram as an honest witness giving a fair account of the injuries she suffered and the consequences. She gave evidence in a forthright manner, attempting to responsively answer questions put to her in cross-examination. I did not detect any embellishment nor exaggeration. An example of the straightforward and direct way she answered questions was shown in the course of Mr Monti’s re-examination. Mr Monti asked Mrs Ingram questions about the various other conditions that she suffered and whether they would have affected her work capacity. The intent of the re-examination was for her to respond that her work capacity was not affected by those other conditions so as to retain the focus on the lower back injury. When asked about Hypothyroidism, she said that it did affect her work capacity;[82] she answered similarly in relation to her problem with sleep apnoea.[83] She conceded the pain in her hand as a result of the de Quervain’s Tenosynovitis was still a significant issue.[84]
[82]T36, L20-L27
[83]T37, L10
[84]T37, L28
60 She said over the period in 2008 and 2009 she still had ongoing pain in the lower back and referred pain and cramping into the right leg, such as to require large quantities of Panadol Osteo. She described the back pain over this period as severe.[85] Although it would appear clear there was some early improvement in her back condition, as assessed by her then general practitioner, Dr Herath,[86] such as to enable her to return to work, nonetheless, she has given a consistent history to most practitioners that the pain which originated in 2006/2007 persisted up to the period in 2012/2013 when she came under the care of the Neurology Department at St Vincent’s Hospital. That resulted in a laminectomy in September 2013. I accept Mrs Ingram’s evidence that she has suffered lower back pain from the incidents of 2006/2007 and that that pain has continued through to the present time. It is clear that the pain has ebbed and flowed, improving in 2008 to enable her to return to work and then significantly deteriorating in 2012/2013, such as to require the decompression surgery. The surgery has not been successful and I am satisfied that she is left with significant lumbar back pain and referred pain down her right leg, such as to cause the consequences of which she complains.
[85]T38
[86]PCB 19
61
I prefer the opinion of Professor Bittar, neurosurgeon, and Dr Robyn Horsley, to the opinions of Mr Michael Dooley and Dr Kevin Fraser, for the defendant. Both Dr Horsley and Professor Bittar were given a history of ongoing pain from the original incidents through to the present time. Both
Mr Dooley and Dr Fraser concluded that the current condition relates to the underlying degenerative disease, and not any work-related injury. Accepting as I do Mrs Ingram’s complaints of constant pain from the date of those injuries, I reject the opinions of Mr Dooley and Dr Fraser. They both held the view that Mrs Ingram’s presenting complaints were out of proportion to the underlying pathology. Again, because of her truthfulness and credibility, I reject those views.
62 Mr Batten’s next point is that the reason for Mrs Ingram leaving work in 2009 was her wrist problem. I accept that to be the case. It appears clear that she did not leave work because of her lower back problem. However, it was made clear by J Forrest J, in Acir v FrossterPty Ltd,[87] that for the purposes of determining earning capacity under s134AB(38)(f), other supervening subsequent conditions or injuries should not be taken into account. His Honour carefully analysed the provisions of the Act and set out eight propositions as to why subsequent conditions or injuries are irrelevant to the assessment of earning capacity for a specific work injury.[88]
[87][2009] VSC 454
[88]Supra at [169]-[178]
63 As earlier stated, there is no doubt Mrs Ingram has little, if any, work capacity now. She is sixty-four years of age and suffers a range of conditions, complications and restrictions which would make work almost impossible. In terms of earning capacity, I must focus on the injury to her lower spine, and its consequences, and be satisfied, the onus being upon the plaintiff, that she has suffered at least a 40 per cent reduction in earning capacity. I am satisfied that her lower back injury has resulted in such a loss of capacity. She is a woman who has only worked in unskilled employment as a factory hand, in laundries and in hospitals. The only area where she has any specialist qualification is as an instrument technician. I am satisfied the lower back injury required decompression surgery in 2013, which has not relieved her problems. I accept her complaints of pain both in her lower back and cramping down her right leg at the present time. The definition of “suitable employment” requires the Court to take into account the nature of a worker’s incapacity, her age, education, skills and work experience, in determining reduction in work capacity. Clearly, bearing in mind Mrs Ingram’s age, skills and work experience, and taking into account her lower back condition and its consequences, I am of the view that she has little, if any, work capacity from her lower back condition alone.
64 The authorities make it clear that if a worker meets the test in respect of loss of earning capacity, the test is also met in terms of pain and suffering.[89] In any event, I am satisfied Mrs Ingram meets the test in respect of pain and suffering, given the ongoing pain both in her back and leg, the requirement for extensive medication and the interference with her various domestic and recreational activities.
[89]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
65 In these circumstances, the plaintiff’s application succeeds both as to pain and suffering and loss of earning capacity. I shall make the appropriate orders.
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