Jamieson v Victorian WorkCover Authority
[2024] VCC 473
•22 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04439
| DEBBIE LEANNE JAMIESON | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2024 | |
DATE OF JUDGMENT: | 22 April 2024 | |
CASE MAY BE CITED AS: | Jamieson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 473 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – aggravation – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Lu v Mediterranean Shoes Pty Ltd and Ors (2000) 1 VR 511; Jayatilake v Toyota Corporation Australia Ltd (2008) 20 VR 605; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170; Hunter v Transport Accident Commission [2005] VSCA 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A C Dimsey | Hounslow Lawyers |
| For the Defendant | Mr A W Middleton | Lander & Rogers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an incident at work with Bupa Care Services Pty Ltd (“the employer”) in April 2017 (“the said date”) and throughout the course of the plaintiff’s employment.
2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3The body function said to be impaired pursuant to sub paragraph (a) is the spine. There was no application in relation thereto under sub-paragraph (c).[1]
[1]Transcript (“T”) 4
4The plaintiff bears an overall burden of proof upon the balance of probabilities.
5By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7Subsection 325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9Subsections 325(2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10Subsection 325(2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Haden Engineering Pty Ltd v McKinnon,[3] and Petkovski v Galletti[4] in reaching my conclusions.
[2] (2005) 14 VR 622
[3](2010) 31 VR 1
[4][1994] 1 VR 436 (“Petkovski”)
12The plaintiff swore two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
13While the “throughout the course of employment” application was not abandoned, the plaintiff’s main focus was on the 2017 incident,[5] as a result of which it was said she has no capacity for suitable employment.[6]
[5]T38
[6]T4
14The defendant’s case was that there was not a serious aggravation as a result of either the 2014 or 2017 incident. A later incident in February 2023 was significant. Further, the plaintiff has a capacity for a range of jobs and cannot establish the requisite 40 per cent loss of earning capacity.[7]
[7]T5-6
The Plaintiff’s evidence
15The plaintiff is fifty-six, having been born in October 1967. She is married with three adult children.
16After finishing Year 12, she worked as a machinery operator in a stationery factory for about ten years before her first child was born.
17Having cared for her three children, the plaintiff returned to paid employment. She completed a Certificate III in Aged Care and found work with the employer at its Woodend facility in about 2013.
Pre 2014 health
18In cross-examination, the plaintiff was asked about the following entry in the Brooke Street Medical Centre (“Brooke Street”) notes:
“23/04/2010 … - Emma Read
…
Sore back.
…
4 days ago - lifted end of couch in twisting motion - felt twinge, sore lower back since.
Has been taking neurofen (scil Nurofen) [P]lus.
…
Muscular lower back injury.”
19The plaintiff did not recall this attendance. She did not know Emma Read. She did not remember, at all, making a disability support pension application a short time later.[8]
[8]T15
20The diagnosis on the disability support application form signed by Dr Aarons in May 2010 was lower back sprain, with the date of onset 16 April 2010:
“Moved a chair and felt pain in lower back – has worsened. Conservative treatment at present with view to possible CT scan in near future if persists.”
21When shown the disability support pension application form signed by Dr Aarons in May 2010, the plaintiff did not remember any of it. She did not know why she had even made this application when she was not working in 2010. She could not remember that far back at all and did not remember “doing the Centrelink thing at all”. It was not her signature on the form.[9]
[9]T16
22Dr Aarons also noted on the form that the plaintiff had a problem with her right shoulder muscle and had a steroid injection eighteen months ago. When acute, it was a significant problem for right arm function, but at times it functioned well.
23The plaintiff injured her right shoulder in about 1990, saw a specialist and had some cortisone injections. After a while the injury settled down.
24Dr Aaron treated the plaintiff with cortisone injections for her shoulder.[10] The plaintiff hurt her shoulder several times and it had a tear in it. She thought her last injection “just lasted” and she never had to have another one. She probably had one more after she started with the employer, but she could not remember.[11]
[10]T16
[11]T17
Work with the employer
25At the time she suffered injury with the employer, the plaintiff was working as a personal care attendant (“PCA”) five days a week. She worked thirty-eight hours a week, but also worked a lot of overtime hours. Her pay varied, depending on the overtime she worked and whether various loadings applied. She usually earnt about $2,000 before tax per fortnight.
26She was doing three shifts – Tuesday, Wednesday, and Thursday – and every second Sunday. After her 2017 injury, she “ended up knocking back the Sunday”.[12]
[12]T28
27While her summary of earnings indicated earnings in the range of $33,000-$37,000 in the years before the 2017 injury, she thought she was working longer hours and sometimes would do double shifts, but then agreed she was permanent part time. She probably worked more than thirty-eight hours a week “sometimes”.[13]
[13]T29
28Her work as a PCA was generally a reasonably physical job, as it involved a lot of lifting of residents and awkward postures at times.
2014 incident
29In about 2014, the plaintiff hurt her back while assisting a resident in a wheelchair. She was bent over and placing the resident’s feet on the footplate of the wheelchair, when the resident screamed and the plaintiff twisted her back, experiencing lower back pain (“the 2014 incident”).
30From recollection, the plaintiff saw her general practitioner (“GP”) and had a few weeks off work. After that time, she had recurrent problems with her lower back and saw her GP, who prescribed pain relief from time to time. She continued to work and did not recall any significant periods of incapacity.
31In her Claim Form dated 2 July 2018, the plaintiff described her condition as “chronic (sic) lower back pain”. When asked what happened and how she was injured, she gave the date 2014, and said that she was “Attending Resident in wheel chair. Resident screamed out frightened me and I jumped aw[k]wardly hurting my back.” She answered “No” to previously having had another injury/ condition that related to this condition.[14]
[14]T9
32She did not have any idea why she did not mention the 2017 incident in that Claim Form. She might have forgotten, having been on a lot of opioids since then.[15]
[15]T10
33She could not say why it took her four years to make a claim for the 2014 incident. She could not remember and did not know why she would have done that.[16]
[16]T17
34There were two entries in the Brooke Street notes which mentioned hip/back pain in 2014:
“… 4 July 2014… - Adaeze Emezie
Left hip pain
onset while attending to a client at the NH 2 days ago
bending over [at] the time and she … [said] when the client screamed she was scared and moved back and on getting up felt pain on her left hip
went to work yesterday but after work felt worse
today unable to attend work due to pain and requests med. cert.”
35The plaintiff had never heard of Adaeze Emezie. She could not say why she mentioned hip pain, not back pain on that occasion.[17]
“9 July 2014 … - Dr Karen Aarons
back injury at work last night
Tender L5-S1 …
For physio and anti-inflam[matorie]s and rest and cert and r/v 1/52 if not settling.
[17]T18
Injury occurred on 2nd July 2014. An incident report was completed at work at that time. Debbie tried going back to work on Thursday 3rd but it was too painful. Seen initially by my [colleague] on 4th July 2014. Work cover cert not done at that time. … [Completed] by myself today.”
36The plaintiff could not say why it was not until a week later (after 2 July 2014) that she mentioned she had a back problem as a result of that incident.[18]
[18]T19
37After 2014, she assumed she probably did light duties. She was pretty sure she would have:[19] “If you hurt yourself, you would sort of come back … with a doctor’s certificate, and you’d be on light duties for a little while.” She agreed she was on light duties for a short period of time.[20]
[19]T18
[20]T20
April 2017 incident
38In April 2017, she was in the dining room when a resident left her walking frame and started to walk away. The resident was going to fall, so the plaintiff rushed to her and supported her, and they fell to the ground together (“the 2017 incident”).
39The plaintiff experienced strong lower back pain and saw her GP. She continued to work but was barely coping. She tried to reduce her shifts and even tried to resign, but her manager begged her not to leave.
40In her Claim Form signed by her on 9 February 2019, she mentioned an injury on 26 April 2017: “Caught a falling resident and due to heavy and repetitive bending and lifting over time.”
41In response to the question “Have you previously had another injury/condition or personal injury claim that relates to this injury/condition?”, the answer was “transient back injury 2014”. She did not even write those words.[21]
[21]T9
42She could not recall having had any other incidents involving injury to her back before working for the employer.[22] She could not remember attending her GP in November 1998 complaining of back pain or in July 1999, or attending her GP for cramps and lower back pain.[23]
[22]T10
[23]T11
43Brooke Street, Woodend, has been her GP practice for a long time. She has lived in Woodend for about twenty years.[24]
[24]T26
44She could not recall any other incidents where she had hurt her back working with the employer, apart from in 2014 and 2017. Since ceasing work for the employer, she hurt her back and she slipped her disc in March last year.[25]
[25]T11
45The 2014 incident “was less” than 2017. She twisted herself in the first incident.[26] In 2017, there was a lady in the dining room walking away from her frame. She was going to fall, so the plaintiff went to grab her and they both went down.[27]
[26]T11
[27]T12
46As she recently deposed, she continued to experience back pain basically the same for the past six years, dating back to 2018. That was the case until March last year, when she “slipped a disc”, then it was excruciating pain.[28]
[28]T12
47She then recalled another incident when she got caught under a bed, but she did not even know if she had put in an incident report about that.[29]
[29]T12
48She was then shown a statement she made to Gallagher Bassett in August 2018.[30] In addition to the 2014 injury she described another incident where she hurt her back:
“I crawled under the bed and sort of turned, and hurt my back at the time.
I am not sure if I had much time off and cannot remember if I went to the doctor or not.”
[30]Plaintiff’s statement to Gallagher Bassett dated 3 August 2018
49After the April 2017 incident, the plaintiff continued seeing her GP and was sent for investigations, physiotherapy, and acupuncture. She ceased these treatments, as they were too painful and did not seem to help much.
50It would have been the same thing with light duties after 2017 as it was after 2014. She thought she even reduced her shifts because she could not work to that capacity anymore, and she even actually tried to resign. She thought she just went in and saw her GP, and said she needed to knock some shifts back because of her back. She remembered actually resigning to her GP and her GP begged her not to.[31]
[31]T28
“… 30/05/2017 … - Dr Tracy Shearer
Bilateral low back pain ongoing- sacral
Worst at the end of a busy day- ‘seizes when I stop’
Never really addressed with physio/active management
- just works hard all day then takes strong analgesia to sleep when pain is at its worst
Asking for an MRI
OJE indicates bilateral sacral pain
Some radiation to lateral thighs
P: physio assessment
Plain Xrays to start
trial SR NSAID
Keen to have Tramal and panadeine forte prn still. Doesn't use every day
Req screening bloods- full bloods. Says feels tired and lots of body aches and pains incl back, hands, elbows.
… .”
(sic)
“… 31/05/2017 … - Dr Tracy Shearer
Pt phoned to discussed making her acute (and chronic) back pain issues W/C- will see CJ for Mx plan and then see me for certs etc.”
51While there may not have been mention of the work mechanism in the 30 May 2017 note, that did not mean she probably did not mention it, but it was such a long time ago.
“… 14/06/2017 … - Dr Shearer
XRs show only v mild O/A lumbar spine
…
Constant back pain, with or without activity, sitting, lying, at its worst AFTER work ie ‘when I stop’ when I’m moving it[’]s not so bad
…
Working at Bupa Woodend 3 days/week Tues-thurs and every 2nd [S]unday.”52Catherine James, physiotherapist, recorded, on 16 June 2017:
“Physiotherapy initial session
Subjective has put in an incident report at work - 3/52 ago? works in aged care – caught a resident.
Body chart: left sided lower back pain- fairly constant. Sometimes to the other side, sometimes further up, not into the legs.…
Past history: lateral hip pain B when working more.
Social history: aged care- not on light duties at the moment- PCA.
BUPA Woodend- Tues/Weds/Thurs/ second Sunday- used to do more but not now…
Discussed avoiding … stationary positions at [work]
Discussed needs to do stretching really regularly
Discussed WC- could do as has incident report but Debbie not keen.”
53The plaintiff attended The Royal Melbourne Hospital in June 2019 after an episode of severe pain. She was given Endone and stayed overnight.
54She was referred to Associate Professor Malcolm Hogg, a pain specialist, who trialled her on a range of pain medications. She developed an opioid dependency and needed help to get this under control. This was an extremely difficult time, and she was in conflict with her family and friends. She needed support from Cobaw Community Health in Kyneton.
55After ceasing work in October 2018, her back pain did not improve at all. From then until the shopping bag incident (February 2023), her back pain was constant. It was just like what had happened on Good Friday this year: the pain was excruciating, and it took a couple of days to get over it, and then her pain levels stayed the same “as it always was from the injury anyway”. Leading up to the shopping bag incident in February 2023, the pain had basically been the same, until she did her disc.[32]
[32]T27
56As of April 2023, the plaintiff continued to experience constant lower back pain, which felt like a headache in her lower back.[33] Prescription medication eased the pain a bit, but the pain never went away. Sometimes it was reasonably manageable, but often it increased and moved into her legs, and she needed to take stronger medication.
[33]First affidavit sworn on 12 April 2023
57The pain usually increased with activity, but sometimes did so for no apparent reason. Small things, like picking up something, could result in a major pain increase. For instance, a few months earlier (February 2023), she put a shopping bag down in the kitchen and felt her back go.
58The plaintiff spoke to her GP, who referred her for an MRI scan and prescribed Valium and Endone and referred her back to Associate Professor Hogg.
Current condition
59The plaintiff’s lower back pain continues and has been basically the same for the past six years.
60The February 2023 incident was an example of a flare-up which she had experienced many times. That one was very painful, and she required strong pain relief, but after a few days the pain returned to the normal level of pain she had experienced throughout.
61As a result of flare-ups following trivial activities, she has become afraid of any activity that might be productive of increased pain.
Recorded by: Dr Faith Drew Visit date: 22/02/2023
…
# new patient to me
under WC due to her backpain
her consults and medications paid for by WC
injury:2017 she works in aged care, was helping a lady and patient screamed and she fell and hurt her back
she requires her usual pain relief
says excruciating pain and requires Endone and valium
says could not get out of her bed this morning
was thi[n]king of calling AV but she did not
she is on Norspan patch regular
Endone use … [depending] on pain level
Valium says given by Dr Ferguson before if really bad
says her pain now is 10/10
says will attend hospital tom[orrow] if still in pain
not seeing a pain dr at the moment
says last incident similar to this is more than a y[ea]r now
not seeing any physio or any allied health.”
“Recorded by: Dr Candice Baker Visit date: 23/02/2023
…
Long back pain history
Workcover claim - when working at nursing home
previously known to Georgina
reports was carrying a shopping bag in on Tuesday and went to set it down on the floor (reach ant laterally)
suddenly her ‘back went click’ and she developed severe low back pain
had to stand holding the fridge for 45min while ‘the family throw Endone down my throat’
had a phone call with Faith yesterday
given extra Endone + diazepam
hasn’t had an attack like this in nearly 2 years
at baseline: uses between 8-10 endone monthly + Norspan patch
doesn’t have any allied health input
downsizing their property as she can’t manage it anymore (unable to be[n]d over in the garden, etc)
here … [because] they wonder if she needs imaging
no red flags
no change in sensation.”
62Dr Baker accurately recorded what the plaintiff told her that day about what happened in the kitchen at home when she slipped a disc.[34]
[34]T23
63As was noted on 22 February 2023, the pain was excruciating, and her husband had to help her do everything.[35] An MRI scan was arranged for 2 March 2023. She remembered when she walked in her doctor said she had slipped a disc.[36] She agreed that incident changed the level of her back pain dramatically “on that day” and it has not got better. “It’s the same pain as it was prior to that.”[37]
[35]T23
[36]T24
[37]T25
Sleep
64She finds it very difficult to get comfortable and sleep at night, and the pain is more prominent when she is still and there is no distraction. She tosses and turns and finds it hard to get comfortable. The CBD oil helped her with sleeping for a while, but it does not seem to help as much now.
65She found it difficult to sit for more than about twenty minutes and wriggled about. She needed to use pillows or hot water bottles every day to ease the pain.
66If she walks too far, she experiences increased pain and needs to take pain relief, such as Panadol or Nurofen, and if the pain is bad she takes an Endone tablet.
Treatment
67The plaintiff is currently prescribed Endone which she usually takes a few times a week when the pain is at its worst. She applies Norspan patches weekly. She takes Valium, usually once a fortnight when she has a back spasm. She takes Voltaren and Panadol usually twice a day and uses CBD oil twice daily. She was previously prescribed Tramadol, but that had a nasty effect on her. She had also previously been prescribed Temgesic, but then took Valium instead.
68
She did not have treatment from 2019 to September 2022 because of COVID.[38]
She had not been sent to a neurosurgeon and her back had been looked after by a pain management specialist. She could not remember a suggestion of a neurosurgeon referral in November 2023 by The Royal Melbourne Hospital.[39] She was not sure whether her GP, Dr Sanders, had ever discussed sending her to a spinal surgeon or neurosurgeon.[40]
[38]T25
[39]T26
[40]T27
Driving
69She continues to limit herself to local drives, as she gets uncomfortable and also experiences anxiety in unfamiliar surroundings.
Housework and gardening
70She continues to be very limited in her ability to perform household or gardening tasks. If she does too much, she suffers increased pain afterwards. Her husband and son do a lot of the tasks around the house and in the garden, and, as a result, they have recently purchased a house on a smaller block with less maintenance and will soon sell their current home.
71Her GP assisted in a request for some home help with cleaning and gardening, which WorkCover approved. She had some help with gardening, but had been unable to find a cleaner who was prepared to work on the WorkCover rate.
Social life
72She used to enjoy trips to Melbourne to visit family, or a pub lunch or a barbecue with friends, but her back pain made those activities difficult and not enjoyable. As a result, she very rarely went out. Her brother had a stroke in November 2021 and lived in an assisted live-in facility in Sunbury. She would have liked to visit him more, but the trip was painful and, as a result, did she not visit him as much as she would like.
73She continues to struggle to attend social events. She has no motivation and is concerned about the onset of pain during outings. She also experiences anxiety in social settings, which she previously used to enjoy.
Marital relations
74Her relationship with her husband had been under a huge strain due to her injury and its impact on her life. They then slept in separate beds, as she struggled to get comfortable and kept him awake. Their intimate life had been destroyed and they no longer had a sexual relationship.
75Her intimate life continues to be devastated by her injury.
76As a result of her addiction, she was argumentative and difficult, and had fallen out with family members and friends.
Dental problems
77As a result of taking strong painkillers, she had experienced a dry mouth which contributed to some dental issues. As a result of stress and anxiety, she had also experienced inflammation of her skin on her hands and had been prescribed steroid creams and emollients, and had been referred to a dermatologist.
78She continues to have dental problems, which her dentist has indicated are caused by the strong pain-relief medication. Recently, WorkCover approved a further dental health appointment.
Sporting activities
79She used to enjoy camping trips with her family, but the driving, setting up and sleeping on a camp bed made it unbearable and she did not do it anymore.
80She used to love going to watch her sons play football, but that was too uncomfortable to attend, and she did not go anymore.
81She does not go camping or to football anymore, as the pain would be unbearable.
Work
82She used to really enjoy working in aged care and interacting with other staff and residents. It was a job you could only really do if you liked helping residents, but she did like it and missed the work. Had she not been injured, she would have liked to continue in aged care to retirement age.
83She has been unable to return to work and cannot see a way in which she could return to work in the future.
Easter flare-up
84She had a flare-up last Friday (29 March 2024) when she was dusting the little stairs her three chihuahuas use to get onto the couch. She was not bending. She could not move and went to bed early. She could not get up the next morning and her husband called an ambulance. She spent the night at Bendigo Hospital, where she was given medication. Targin was added to her medication regime. She was told to see her GP, and there was some suggestion of another MRI scan.[41]
[41]T7
85She has a backache every day that never goes away, even with analgesia. It is like having a headache every day that never goes away. Analgesia makes it a little bit better, but it is there every day constantly. The pain is into her legs.[42]
[42]T36
86With the Easter incident, the pain was excruciating again, absolutely excruciating. She thought she had probably done a little bit more damage, as opposed to the last time, until she had an MRI scan, because normally she could probably walk a bit better, but cannot now. She uses sticks now to balance herself. She got those in hospital recently, and it is the first time she has used them.[43]
[43]T36
Surveillance film
87The plaintiff agreed it would be fair to say that, between October 2018 and February 2023, she would not do any activity which she thought would make her back worse.[44] She agreed she would be careful about what she was doing, “absolutely”. She confirmed she had the restrictions deposed to.[45]
[44]T29
[45]T30
88The plaintiff was then shown film taken on two occasions.
89On 10 September 2020, she was shown browsing at a small plant nursery for about 10 minutes. She then went to a shopping centre and went through a checkout, putting a number of items in a trolley, including a bag of soil. The bag was full of bark. She did not think it would weigh about 15 kilograms. She knew she could lift it back then, but could not lift it now. She agreed she had no trouble getting in and out of the ute because it had a handle on the side.[46]
[46]T33
90A second film was taken on 5 December 2023. The plaintiff agreed she had a limp, and that was how she generally walks now. She did not agree that was the result of what she did to her back in February 2023. She said she had sciatica down her legs prior to that as well. She denied she had that limp after February 2023. Her limping was obviously filmed that day, but it did not mean she had not limped since then, because she had. Some days she can wake up and be like that. She first started having a problem with limping probably in 2021 or 2022. “It's just progressively got worse.”[47]
[47]T33
91She agreed that in the 2020 film she moved at all times without any obvious restriction. She was only walking. She can walk. She could shop, but does not shop now. She can only do light shopping.[48]
[48]T34
92She disagreed there had been a severe change in the level of her pain after February 2023 and that was the first time she had a nerve-root involvement in her leg. She had limped before that, before the “loaf of bread” incident – when she put a loaf of bread in a Bakers Delight bag on the kitchen floor. She demonstrated that she put it down with her right hand and did not really bend over. She just dropped it, because it was only bread.[49]
[49]T35
93After the 2017 incident, before she stopped work in October 2018, her back was sore all the time, every day. She did not recall symptoms into her legs at that time. After she ceased work, but before the February 2023 incident, she had pain every day in her back, constant pain. She had a recollection of pain into her leg, and said to several doctors that “it would bring pain into [her] legs”.[50]
[50]T35
94She agreed the pain in February 2023 was excruciating for that day, for those hours, which continued until she had lots and lots of pain relief. By a month afterwards, the pain was back to the same level as prior to that incident, being the pain that she had always had since the incident at work and since when she left work – the same pain every day, all day.[51]
[51]T36
Summary of Plaintiff’s taxation returns
Financial Year
Source of Income
Income
2014
Bupa Services Pty Ltd
$22,810
2015
Bupa Services Pty Ltd
$33,116
2016
Bupa Services Pty Ltd
$37,808
2017
Bupa Services Pty Ltd
$33,294
2018
Bupa Services Pty Ltd
$33,697
2019
Bupa Services Pty Ltd
$13,398
Treaters
Brooke Street Medical Centre, Woodend
95In February 2021, Dr Prematilaka thought the plaintiff was not able to go back to full-time work as a PCA. She was suffering from a drug dependency caused by long-term use of pain medication to help her with her back pain.
96Current symptoms were back pain, insomnia and drug dependence.
97In the most recent report from Brooke Street in February 2024, Dr Sanders advised that the plaintiff had been a patient since 2000 and she had been her regular GP since March 2023.
98The plaintiff had a diagnosis of chronic lumbar back pain, which she reported started in 2014, following two lifting incidents in the workplace – the first in 2014 and the second in 2016 – when she caught a 50-kilogram patient who was falling.
99The plaintiff described the second incident in particular as aggravating her pain. She underwent investigations and was then followed-up by The Royal Melbourne Hospital Pain Clinic.
100The plaintiff had a flare-up of back pain in February 2023, when she reported a worsening of her lower back pain with radiation down both legs. She had an MRI scan showing multilevel degenerative change of the lumbar spine, with a left paracentral focally protruded disc at L4-5 contacting and flattening the exiting L4 nerve root.
101The plaintiff is currently using a regular Buprenorphine weekly patch. When her pain is more severe, she takes a 5-milligram Endone tablet up to three times a day, with a frequency of twenty a month. She found this manageable, although her pain is very variable day to day.
102The plaintiff had also used PRN Naproxen and Diazepam. She had recently started a trial of CBD oil.
103Due to the prolapsed disc and radiation symptoms earlier in 2024, her treaters tried some neuropathic medications (Gabapentin). The plaintiff did not continue that medication after the first prescription due to side effects. She had been prescribed Diazepam to use on an as-required basis as a muscle relaxant for the spasms related to her back pain. She had previously been prescribed Temazepam to help with sleep and had also tried a range of medication to help deal with anxiety.
104The plaintiff was under the follow-up of The Royal Melbourne Hospital Pain Clinic, having had a recent review on 30 November 2023. They had recommended a neurosurgical opinion, physiotherapy, occupational therapy, support from a psychologist and referral to a psychiatrist, hydrotherapy, osteopathy, and a trial of anti-neuropathic analgesia, such as Amitriptyline.
105The plaintiff was referred to Woodend Osteo, where she had two sessions, but could not continue due to funding issues. She had also been referred to physiotherapy and hydrotherapy and was due to see a pain specialist physiotherapist through The Royal Melbourne Hospital. She was referred to a psychologist last year but was unable to attend.
106Dr Sanders thought the plaintiff does not have a capacity to return to her pre-injury employment. At present, she does not have the capacity to return to employment. She will need to engage with the above recommendations to improve her symptoms. Without engaging in allied health input, the plaintiff’s symptoms may worsen.
The Royal Melbourne Hospital Pain Management Services
107The plaintiff was referred to the Clinic following a recent Emergency Department presentation for low back pain and seen on 16 July 2019 by Associate Professor Hogg and Dr Sivakumar.
The Royal Melbourne Hospital Pain Management Clinic
108The plaintiff was initially seen at The Royal Melbourne Hospital Pain Management Clinic in November 2023.
109Further investigations and a change in the plaintiff’s medication regime were suggested.
110There was a review in October 2019 with further advice on medication.
111The plaintiff was again seen in March 2020. Her symptomatology was described as being progressively worsening.
112There were further reviews in September 2020 and March 2021 when the plaintiff described worsening pain.
113On review on 23 November 2023, it was then noted the plaintiff had chronic lower back pain and would benefit from physical measures and medication profiling to manage her pain and improve her functional independence. A neurosurgical opinion would be useful to relieve the stress on the patient and guide further management. Without engaging in these therapies, her condition was at risk of worsening with the risk of acquiring more impairments physically and mentally.
Bendigo Hospital
114The plaintiff attended Bendigo Hospital on 30 March 2024.
115The principal diagnosis was unspecified dorsalgia, site unspecified. The reason for presentation was acute on chronic back pain. There was an overnight stay on 30 March 2024 in Emergency.
116It was then noted:
“Patient was dusting the house last night with minimal bending from back and felt ‘back give way’ … then Developed severe back pain, patient describe it as excruciating pain in lower back and radiates to b/Lthighs.”
Investigations
117Dr Shearer organised a lumbosacral spine x-ray in May 2017.
118Under “clinical details”, it was noted: “Chronic back pain, bilateral.” Alignment was normal. There was no pars defect, and all intervertebral disc spaces were normal. There was no focal bone lesion. In the lower lumbar spine, there was very mild bilateral facet joint OA. Very mild OA was noted in the sacroiliac joints bilaterally.
119A lumbar CT scan was organised by Dr Prematilaka in September 2017. Clinical notes set out ongoing back pain with “leg raise test positive. ? Disc bulge.”
120It was reported there was mild degenerative change in the lumbar spine, with small disc bulges at L4-5 and L5-S1. There was no evidence of neural impingement at any level and no degenerative facet joint change.
121Dr Prematilaka organised a CT scan of the lumbar spine and brain in November 2018. It was reported there was mild broad-based posterior disc bulge at L4-5 and L5-S1. There was no significant lumbar canal or exiting foraminal stenosis, and no advanced facet joint degeneration.
122During an admission to The Royal Melbourne Hospital on 30 June 2019, the plaintiff underwent a lumbar CT scan. It was reported no significant lumbar spine pathology was demonstrated. If there was significant concern, then an MRI examination would be more sensitive to early disease.
123Dr Hale at The Royal Melbourne Hospital organised an “NM bone Study Localised + SPECT + Dyn” in August 2019. The overall impression was negative for metabolically active facet joint disease or other bone/joint disease.
124Associate Professor Drummond, neurosurgeon, at The Royal Melbourne Hospital organised an MRI scan of the plaintiff’s lumbar spine in November 2019. It was reported there was no cause for the plaintiff’s symptoms identified.
125A lumbar MRI scan was arranged on 3 March 2023 by Dr Emma Sanders, the plaintiff’s GP at Woodend. It was reported there was multilevel degenerative change of the lumbar spine, with a left paracentral focally protruded disc at L4-5 contacting and flattening the exiting L4 nerve root. No further significant exiting nerve root contact or compression. Central vertebral canal remains capacious throughout.
Medico-legal
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
126Dr Thomas first examined the plaintiff on 30 August 2019. He re-examined her on 26 February 2014, and provided a supplementary report the following month.
127The plaintiff indicated her injury arose at work in 2014, following which she sought medical care, was given medications and referred for physiotherapy. She had some time off and had ongoing back pain following this and was given Panadeine Forte.
128She continued with work and in 2016, while in the facility dining room, a resident went to fall. She went to help the resident and the resident fell onto her.
129Over time, the plaintiff’s work hours were reduced, with her dropping work on Sundays and continuing to work Tuesdays, Wednesdays and Thursdays.
130She continued in that manner until October 2018, up to which time her back pain remained problematic, but one day she could not get out of bed as her pain was particularly severe. She was given an injection and stopped working.
131On examination, the plaintiff’s pain was predominantly in the lower back. She had pain in either leg. Occasionally the pain was all the way down and occasionally just to the knees.
132Dr Thomas thought that, diagnostically, the plaintiff presented as suffering more from symptomatic spondylosis lumbar spine pain with referred pain into her legs than sacroiliitis.
133He would accept the incidents that had occurred at work in the nature of the plaintiff’s work duties, in particular, that the July 2014 incident, had been the genesis of her current condition. In the absence of that, her current condition would otherwise have unlikely occurred. He thought the July 2014 incident, and the subsequent one in April 2017, was the cause of her current predicament.
134The plaintiff then did not have the capacity to return to full-time unrestricted work duties.
135Dr Thomas re-examined the plaintiff in February 2024. He had a similar history of the earlier incidents, but no mention of an incident in February 2023.
136On examination, the plaintiff’s predominant problem was lower back pain, with shooting pain into her leg (but that was fairly minimal). Her lower back pain was constant, and on a day-to-day basis averaged 5/10.
137Medication then included patches, a box of Oxycodone, Diclofenac (an anti-inflammatory), and Diazepam. Medical cannabis had also been prescribed.
138He had available the September 2017 lumbar CT scan, the November 2019 lumbar MRI scan, and the 2 March 2023 lumbar MRI scan, which was reported to show multilevel degenerative changes in the lumbar spine, with the left paracentrally focally protruding disc at L4-5 contacting and flattening the exiting L4 nerve.
139From a diagnostic perspective, the plaintiff had symptomatic spondylosis of the lumbar spine. There was certainly no evidence of any radiculopathy.
140Noting her work history, and the nature of previous work, he accepted that had been a contributor to the plaintiff’s current condition, all aggravating the underlying degenerative changes. In addition, the imaging would tend to support the fact that increased degenerative changes had occurred in subsequent investigations.
141The plaintiff’s presentation was more mechanical, therefore her Chronic Pain Syndrome nociceptive in origin. Although there may be a degree of central sensitisation, he thought it was predominantly organic mechanical backache.
142The dominant cause of the plaintiff’s injuries remained work duties. She was not fit to work as a PCA. That work was not back friendly, and she could not return to any work of that nature.
143He agreed with Dr Rowe’s opinion as to the plaintiff’s employment capacity.
144Any return to work would have to be done with significant restrictions, and overall the plaintiff did not have the capacity for suitable employment. There had been a significant impact on her ability to function socially, domestically, and recreationally.
145The prognosis was ongoing backache, with investigations tending to support the fact that it was the degenerative changes that had worsened with time. Therefore, the trajectory is for progressive disability with ongoing backpain.
146In his March 2024 report, Dr Thomas agreed with Mr Etherington that the plaintiff does not have a capacity for suitable employment.
147In terms of the suggested vocational options, he thought the plaintiff’s level of disability was significant and the medication burden was quite significant.
148The job of product examiner was not something the plaintiff had capacity for. Sales assistant was not appropriate and would aggravate her condition. She would be able to do some part-time work as a booking clerk, three hours four days a week, with days off in-between. Overall, a diversional therapist role was not appropriate. A bingo caller was an appropriate position with limited hours.
149He did not feel the plaintiff had an overall capacity for suitable employment and the residual level of functionality that she had was so minimal that it would not be compatible with any form of mainstream employment.
Dr James Rowe, specialist occupational physician
150Dr Rowe examined the plaintiff in September 2022, focusing on the April 2017 incident and the plaintiff’s duties throughout her employment.
151In 2014, there was an incident when the plaintiff was attempting to transfer a patient in a wheelchair and the resident jolted suddenly and unexpectedly, and the plaintiff jarred her back. The plaintiff managed with physiotherapy, but said her symptoms never fully resolved after this incident.
152The plaintiff described a further incident on 24 April 2017, where she jarred her back again while attempting to prevent a resident from falling. Her employment was terminated in 2018 and she had been unable to return to work since.
153There had been a number of investigations to date, as well as physiotherapy treatment, a reliance on opioid medication for pain management, and a referral to The Royal Melbourne Hospital for pain management in July 2019. The plaintiff had not had any ongoing physical treatment since about 2019 and had not been offered any injections. Surgery had never been discussed.
154The plaintiff reported continuing pain in the lower back with radiation to the legs.
155For heavier household chores such as vacuuming and laundry, she was able to do them if she paced herself and did a small amount at a time. Otherwise, she was reliant on her family to assist around the house.
156The plaintiff previously enjoyed camping, eating out at restaurants, and visiting friends and family, but had been unable to continue these activities due to a combination of lower back pain and her mental health. She could walk the dogs for about fifteen minutes.
157He diagnosed an aggravation of lumbar spondylosis, particularly about the L4-5 and L5-S1 levels. There was no radiological evidence of radiculopathy, but the plaintiff did have positive findings in her right leg on physical examination.
158As a result of the plaintiff’s lower back injuries, she was precluded from activities including heavy pushing or pulling, repetitive pushing, pulling or lifting, prolonged standing or sitting, overhead activities, and prolonged driving.
159As a result of those restrictions, the plaintiff was not fit to return to work as a PCA, which required her to assist patients who may behave erratically or require mobility assistance. She could not perform the inherent duties of this position in a safe, consistent, and reliable manner without risk to herself, patients, or colleagues.
160The plaintiff was not fit for suitable or alternative employment. She did not have a normal range of movement in her lower back or normal function in her right leg.
161It was not likely the plaintiff would be able secure or perform any type of work in a consistent, stable and sustainable manner, given her ongoing fluctuating pain, high levels of medication, ingestion, and ongoing need for medical treatment and supervision. She would be unable to regularly attend work and engage in safe work practises consistently, regardless of what work might be offered to her and regardless of if that work were offered full or part time.
162This situation was permanent.
Mr Greg Etherington, spinal surgeon
163Mr Etherington examined the plaintiff in February 2024.
164The plaintiff told him that, following the 2014 incident, she was off work for a few weeks and had intermittent pain since then. She required some medications from her GP but did not require any more time off work.
165Following the second episode in April 2017, the plaintiff had to go off work and see her GP. This time, the lumbar pain did not sufficiently improve. She had ongoing, but fluctuating, lumbar pain, which was helped with medication and rest, but unfortunately it kept recurring, and she resigned in 2018.
166Currently, the plaintiff’s main pain is in the lower lumbar paravertebral region bilaterally. There is some radiation towards the lateral aspect of both left and right thighs, but not past the knee.
167Current medications include Endone, a Norspan patch, Valium, anti-inflammatories, and occasionally CBD oil.
168Mr Etherington had available all the radiology. The 2023 MRI scan was reported to show loss of disc signal at L5-S1, L4-5 and L3-4, and L5-S1 height reduced combined with minor disc bulge.
169The plaintiff had some degenerative changes in her lower lumbar spine, particularly at L5-S1. The overall diagnosis would be regarded as an aggravation of pre-existing degenerative changes in the lower lumbar spine.
170There were two episodes which contributed to the plaintiff’s pain. The first was in 2014, and although that did improve, she had some ongoing aches and pains requiring occasional medication. The second episode in 2017 was more significant and resulted in her eventually resigning from her job.
171Unfortunately, despite being off work for six years now, the pain had continued and had been difficult to control. Overall, the plaintiff’s current situation was just a continuation from 2017.
172Given these factors, it would seem the plaintiff is unlikely to find suitable employment or maintain, or obtain, employment.
173The plaintiff’s social, domestic, and recreational activities were significantly reduced because of her lumbar pain. She is now on treatment for depression. She requires significant help around the house, and she limits herself quite significantly both in the home and elsewhere.
174Given the symptoms had been continuous since 2017, it would seem they are most likely to continue into the foreseeable future. More importantly, the plaintiff’s symptoms have been very difficult to bring under control, despite a significant number of interventions.
Vocational evidence
175Anne Forsyth, occupational rehabilitation consultant/vocational advisor from Vocational Directions Pty Ltd, prepared a vocational assessment report in March 2023.
176Ms Forsyth concluded the plaintiff has no safe, consistent and reliable capacity for suitable employment. She has no current work capacity as she has no realistic prospects of being able to find employment in the current labour market, given her current incapacity for employment as a result of her work injuries. Her very substantial workforce disenfranchisement is likely to persist into the foreseeable future, with considerable loss of remuneration and quality of life in addition to that which she has already suffered.
Defendant’s medico-legal
Dr Terence Saxby, consultant orthopaedic surgeon
177Dr Saxby first examined the plaintiff on 27 July 2018. She brought no investigations with her.
178The plaintiff told him her original injury occurred in 2014 when she was working as a carer attending to a resident in a wheelchair. The plaintiff did not fall to the ground, but she had immediate pain. She ceased work that day and consulted her GP. She had physiotherapy and anti-inflammatories and believed she was off work for a week or two with bed rest, then returned to work.
179The plaintiff reported ongoing pain in her back since then, and there was no new injury. She believed the problem of her chronic back pain was due to the work incident in July 2014 to the present time.
180She then complained of intermittent back pain, which was worse on the left side.
181The plaintiff was then complaining of lower back pain and an inability to bend, and difficulty with any activities when she had to bend. She was having physiotherapy and had oral narcotics and patches.
182The diagnosis was a musculoligamentous injury to the lumbar spine. There was most likely a soft tissue injury to the lower back which had resolved. Intermittent ongoing pain was most likely an underlying condition. He had not seen the radiology, which may provide a more specific diagnosis of her cause.
183The plaintiff’s condition was a constitutional one and he did not believe it was likely to be related to her 2014 injury.
184The plaintiff would be able to increase her hours to normal hours and increase her activities to normal work over the next month or so.
185On re-examination on 4 April 2019, the plaintiff told him of an incident where she caught a resident who was falling over in the dining room on 26 April 2017, which caused immediate back discomfort.
186The plaintiff also said she had injuries because of heavy repetitive lifting and bending over a period of time, although she was somewhat unclear about the exact details of injury.
187The plaintiff was then taking Endone, Tramal, Lyrica, and Norspan patches. She stated she realised she had a prescription drug dependency and was hoping to wean off the medication.
188He diagnosed back pain with radiation into the posterior thigh. There was lumbar spondylosis with radiation of pain into the upper legs, but not true radiculopathy.
189It was difficult to say what was the cause of the plaintiff’s pain, noting she had multiple episodes of lumbar pain with some radiation to her legs. That was most likely a combination of the pre-existing condition and perhaps some work aggravation. One would have expected any aggravation from the alleged incident to have ceased, as that was over two years ago. It was most likely that her ongoing problem was related to her underlying condition, but he had not seen the investigations.
190The plaintiff then did not appear to have any capacity for work, and it was difficult to state her incapacity for employment.
191Dr Saxby provided a report in April 2024 on the papers.
192He believed the most appropriate diagnosis was lumbar spondylosis with degenerative disease associated with the condition of drug dependence. He did not believe there was any information that would cause him to alter his previous opinion.
193He would have expected any work exacerbation or increase in symptoms should have resolved over time.
194He did not believe work was a significant factor in causing the aggravation of the condition. The mechanisms were very low energy injuries, and he would expect they would have caused a temporary increase in symptoms and not made the plaintiff’s condition worse.
195General duties, including physical activities, probably contributed in a minor way over time. The underlying constitutional problem of degenerative change of the lumbar spine is by far the major contributing factor.
196Those work exacerbations would have been temporary and would resolve over six months.
197The conditions are degenerate ones which will gradually progress over time. The two incidents at work would have caused only minor injury or force across the lumbar spine and he did not believe they had altered the natural history of the condition.
198He thought it unlikely the plaintiff would have a capacity for pre-injury work. On his understanding of her underlying disease process in the lumbar spine, she would only be fit for sedentary type work and was not required to do heavy lifting or repetitive bending. Those activities would likely exacerbate her underlying condition. He would impose restrictions that she avoids bending, twisting and heavy lifting, or pushing or manual handling over 5 kilograms.
199The plaintiff was fit for the jobs suggested in the February 2024 vocational report – product examiner, light sales assistant and bingo caller, customer service officer, receptionist, and lifestyle and leisure assistant.
200Given the time the plaintiff has been out of the workforce, she would not be able to return to full time duties now, but would be able to increase her hours to full-time work if she was motivated.
201The plaintiff has a capacity for retraining.
202The plaintiff had exhausted non-operative treatment and he did not believe there was any alternate treatment likely to be of benefit.
203There had been significant changes when one compared the report of the 2019 MRI scan to the 2023 report. This would be consistent with a lumbar spondylosis or a degenerate condition which progresses over time. Therefore, he thought the findings on the 2023 MRI scan occurred after November 2019 and were due to simply the natural progression of the underlying degenerate changes.
204It was more probable than not that the 2023 MRI findings are not at all related to employment. Obviously, there was minimal change in 2019, but in March 2023 there was much more advanced degenerative change, which is not consistent with a work injury during that period of employment with the employer. He thought it was most probably simply due to the natural progression of an underlying condition.
205The likely progression of the underlying spondylosis, which is the cause of the 2023 MRI findings, is more probable than not simply due to the natural progression of degenerative disease and not related to the Bupa employment.
Dr Majid Rahgozar, consultant occupational physician
206In January 2022, Dr Rahgozar examined the plaintiff for the purposes of an independent medical examination to assess the plaintiff’s current condition relating to the April 2017 injury.
207The plaintiff told him of intermittent episodes of back pain since 2014 due to a number of incidents, including an episode that year. She also reported another injury in 2017, when a client was about to fall and she grabbed him from the back to break his fall, which jarred her back.
208Since then, she had developed chronic lower back pain, at times radiating to both buttocks, with ongoing pain and disability. She had stopped working in about 2018 and had been unable to return gainful employment since. She seemed to have developed opioid dependence and had been on different medications from Tramadol (which she did not tolerate) to most recently a combination of Norspan, Endone and Temgesic.
209On examination, there was no abnormal gait, posture or behaviour.
210He noted the plaintiff had been experiencing intermittent episodes of lower back pain due to workplace injury since 2014. Those injuries are likely to have been of a musculoligamentous nature and/or exacerbation of multilevel degenerative changes of the lumbosacral spine.
211Given the time since her initial injury and lack of involvement with physically demanding work, one could argue that the initial injury had now resolved.
212The plaintiff’s pain had now become chronic in the context of a number of psychosocial risk factors, namely a concurrent mental health condition that appeared not to have been managed appropriately, her likely development of opioid dependence, and fear avoidance of further injury. Her presentation that day also had elements that could not be explained by physical or musculoskeletal pathology, raising the possibility of a nonorganic component to her presentation and functional overlay.
213The plaintiff’s lower back pain without radiculopathy was consistent with a five per cent whole person impairment.
214Significant pathology arising from the spine was not likely.
215The plaintiff was not likely to require surgeries, injections, diagnostic blocks and the like. Her condition has stabilised, and an impairment assessment is appropriate.
Dr Sam Soliman, occupational medicine consultant
216Dr Soliman examined the plaintiff in December 2023.
217In terms of the history of the injury, the plaintiff described the 2017 incident and another incident where she held a resident to prevent her from falling and she fell on top of her.
218The plaintiff was extremely vague on the details of these events.
219She said she stopped working and resigned in 2018.
220In 2023, she stated she developed more back pain after bending and putting a loaf of bread away and she slipped a disc. She stated that all injuries are work related.
221On examination, the plaintiff was complaining of constant backache with sitting and standing, walking, and “everything”. The pain was 5-9/10 severity. She said, “I just put a loaf of bread away and slipped a disc”. There was sciatica in both legs for one year.
222Dr Soliman discussed the reports of all the investigations, including the March 2023 MRI scan.
223On examination, the plaintiff expressed slight general tenderness in the lower back. There was no evidence of muscle spasm or wasting. There was limited range of movement.
224He noted the plaintiff allegedly injured her back at work in several incidents around 2017.
225She had multiple investigations which were essentially normal, apart from mild longstanding degenerative changes at L4-5, and her SPECT scan was negative for active facet joint disease or other bone/joint disease.
226She had conservative treatment and it appeared she developed opioid dependency.
227In March 2023, according to her, she developed left L4-5 paracentral disc protrusion which was contacting and flattening the exiting L4 nerve while at home. She strongly believed that this incident at home, and the disc prolapse, were still related to work.
228Despite the lack of radiological findings and negative activity on the SPECT scan, as well as resting for five years, the plaintiff was still expressing severe disabling pain and limitations in her daily functions. She presented with a strong disability belief and significant functional overlay.
229The plaintiff’s recent acute L5 disc protrusion, which she developed in March 2023, was a new pathology and unrelated to her initial accepted claim.
230Prior to that March 2023 incident, the plaintiff had an accepted claim for persistent dysfunction of the lower back secondary to aggravation of underlying lumbar spondylosis according to the Medical Panel in May 2022.
231Since March 2023, her diagnosis was left L4-5 disc protrusion with L4 nerve root flattening.
232Despite the plaintiff’s view to the contrary, he thought her new acute disc protrusion in March 2023 was unrelated to the claimed lower back injury.
233The plaintiff’s previously accepted persistent lower back dysfunction was now overtaken by her acute L4-5 disc protrusion and left L4 radiculopathy, which she developed in March.
234The plaintiff told him she had not done any work or training since she resigned and had been on a disability pension since.
235The plaintiff is unfit to perform her pre-injury duties due to an underlying disc disease. From a physical perspective, she should be able to perform alternative roles where she is able to alter her posture regularly, with no bending, lifting, twisting, heavy pushing, pulling and lifting over 5 kilograms at waist height, for example, lifestyle coordinator or customer service.
236No specific treatments are required apart from self exercising and core muscle strengthening.
237The plaintiff had the capacity to perform the identified job options in Recovre’s February 2024 report. She needed to be able to alter her posture regularly, with no bending or lifting below waist height, twisting, pulling or pushing, and no lifting above 5 kilograms at waist height.
238He believed working part time, doing four to five hours a day, would be a reasonable option for her, as she had not worked in six years. She had the physical capacity for retraining and to do light alternative roles.
Compensation documents
239By letter dated 8 August 2018, the plaintiff was advised by Gallagher Bassett that her claim for compensation (2014 injury) dated 2 July 2018 had been rejected.
240It was rejected on the basis that she had not sustained an injury arising out of or in the course of her employment, and her employment was not a significant contributing factor to her claimed injury.
241The plaintiff was examined by Dr Saxby for the purposes of that decision.
242By letter dated 27 March 2019, Gallagher Bassett advised the plaintiff that the claim for compensation dated 9 February 2019 had been rejected.
243The plaintiff was also examined by Dr Anthony Menz on 18 March 2019 for the purposes of this application.
244The rejection was on the basis the plaintiff did not sustain an injury within the meaning of the Act, and she did not lodge a claim for weekly payments as soon as practicable after the incapacity arising from the claimed injury became known.
245Gallagher Bassett obtained a further report from Dr Saxby in April 2019 and confirmed its rejection of the decision of 27 March 2019 rejecting the plaintiff’s claim for weekly payments in relation to the April 2017 incident.
246By letter dated 2 March 2022, Gallagher Bassett advised the plaintiff that, in relation to the injury of 26 April 2017, liability had been accepted for “Lower Back relevant to the claimed Back” and rejected for “Thoracic/Cervical spine relevant to the claimed Back”. That rejection was based on the opinion that the plaintiff had not sustained any injury arising out of or in the course of her employment with the employer.
247There was originally a zero per cent whole person impairment following an examination by Dr Rahgozar on 25 January 2022.
248The plaintiff took the matter to the Medical Panel, which determined, on 24 May 2022, that she had a five per cent whole person impairment in relation to her back injury based on examinations by Dr Robin Hunter, rehabilitation physician, and Mr Peter Dohrmann, neurosurgeon.
249By letter of 4 March 2024, EML advised the plaintiff that, for a maximum of thirteen weeks, she would receive appropriate mental health support without admission of liability.
Vocational evidence
250Larissa Griffiths from Recovre provided a vocational assessment report on 20 February 2024.
251Based on the plaintiff’s education, work history, and transferrable skills, as well as the reports from Dr Saxby, Dr Rahgozar, and Dr Soliman which opined that the plaintiff retained a capacity for suitable employment, the following work options were identified as suitable:
· product examiner – $1,029
· light sales assistant – $1,057
· bingo caller – $1,372
· customer service officer/receptionist – $1,003
· lifestyle and leisure assistant (diversional therapist) – $1,108.
Overview
252Having considered all the evidence, this application cannot be properly characterised as injury during the course of employment, but rather as a result of two specific incidents – the first in July 2014 and the later, more significant, injury in April 2017.
253This was not a case which involved ongoing complaints to doctors or the employer about back problems resulting from the nature of the plaintiff’s PCA duties.
254As this an aggravation case, the principles in Petkovski apply and the Court must be satisfied the consequences of the 2017 incident are serious and permanent as at the date of hearing.
255Before 2014, the plaintiff did not have any significant ongoing problems with her back. She could not remember one-off attendances with her GP in November 1998 complaining of back pain, nor attending her GP for cramps and lower back pain in July 1999.[52]
[52]T11
256While there was an application for a disability pension in May 2010 in the plaintiff’s clinical records, she had no memory of this application and was not working at that time. The plaintiff then started work as a PCA with the employer in 2013.
257There was no mention of a further back complaint to the GP until 9 July 2014 when an incident at work a week earlier was noted – “For physio and anti inflams and rest and certified r/v 1/52 if not settling.”
258By 16 July 2014, the plaintiff’s GP noted “back feeling great” and three days later, certification of a full return to work. The plaintiff was noted to be feeling good after a few days at work.
259As counsel for the defendant submitted, the 2014 incident seemed to be a very short-lived incident and injury.[53]
[53]T48
260There were then ongoing attendances for non back-related matters with a note of the need for a certificate for one day on 10 June 2015 for “exac of low back pain”. Nearly a year later, on 19 April 2016, the plaintiff complained of back pain turning over in bed.
261Thus, it is apparent that treatment for the 2014 injury was very limited. Further, post July 2014, the plaintiff was absent from work for a matter of days and there was no formal change in the nature of her permanent part-time duties, save for a short time during which she was given lighter duties.
262As there is a pre-existing back condition, having considered what the evidence discloses as to the prior condition of the plaintiff, the Court must determine whether the additional impairment resulting from the April 2017 incident is serious and permanent.
263In Petkovski, the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
264While no doctor has undertaken this task or provided an assessment as to whether either of the two incidents (2014 and 2017) in their own right could amount to a serious injury,[54] this leave application is not trial by doctors’ opinion.[55] It is the Court’s role to undertake this task.
[54]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 and To Ha Lu v Mediterranean Shoes Pty Ltd and Ors (2000) 1 VR 511; T42
[55]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605 at paragraph [17], per Ashley JA
The 2017 incident
265There is no dispute the plaintiff suffered injury to her back in the April 2017 incident.
266The consensus of medical opinion is that the plaintiff’s lumbar condition is an aggravation of pre-existing degenerative changes, or aggravation of lumbar spondylosis.[56]
[56]T51
267Mr Etherington, spinal surgeon, is clearly of the view that the work contribution continues. He stated explicitly he regarded the plaintiff’s current situation as the continuation of the 2017 episode.[57] Dr Thomas also thought the dominant cause of the plaintiff’s symptoms remains her work duties.
[57]T51
268While Doctors Saxby and Rahgozar thought that any aggravation would have ceased and the initial injury resolved,[58] this clearly has not been the case. The plaintiff has suffered ongoing back pain since 2017, requiring ongoing significant painkilling medication since that time and also referral for pain management.[59]
[58]T51
[59]T52
269In any event, no path of reasoning has been provided by these examiners as to when and why any underlying degeneration takes over from the 2017 work incident as the cause of the plaintiff’s ongoing spinal pain.
Credit
270As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[60]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[60]Supra at paragraph [12]
271The surveillance film was not shown to attack the plaintiff’s credit, rather to establish that there was a significant worsening of the plaintiff’s symptoms after the February 2023 incident, drawing into contrast the level of mobility shown on the film in September 2020 and December 2023.
272I had no significant concerns about the plaintiff’s credit in this case – albeit she was a vague historian and, at times, somewhat unreliable. In those circumstances, the contemporaneous medical evidence was of particular assistance in my deliberations. Further, I accept her evidence that she has had had ongoing back pain with flare ups at times involving her leg, causing her to limp as shown on the 2023 film. Leg pain predates the February 2023 incident as examiners such as Dr Thomas noted in September 2019.
Consequences
Pain
273The evidentiary basis of the pain assessment ordinarily comprises, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[61]
[61]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11], per Maxwell P
274As a result of the 2017 incident, the plaintiff has suffered a continuous substantial level of pain requiring strong prescription medication.[62]
[62]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [48], per Ashley JA and Beach AJA
275She has a backache every day that never goes away, even with analgesia. She described it as like having a headache every day that never goes away. Analgesia makes it a little bit better, but it is the pain every day constantly. That pain is into her legs.[63]
[63]T36
276This has basically been the situation for the last six years, with significant flare ups in February 2023 and Easter this year.
277Post 2017, there has been a greatly increased frequency of GP attendances with back complaints and increase in the level and strength of medication leading up to the plaintiff ceasing work on October 2018. The GP’s notes mention the plaintiff not being able to work at times during this period and the need for certificates.[64]
[64]T55
278As counsel for the plaintiff submitted, there are very clear impacts in terms of the plaintiff’s experience of pain that she has deposed to relating to the 2017 incident and on which she was not really challenged.[65]
[65]T56
279However, the defendant placed particular significance on the plaintiff’s February 2023 injury and the MRI findings thereafter compared to the 2019 MRI.[66]
[66]T54
280Following this injury, the plaintiff could not get out of bed and had excruciating pain, leading to a further MRI scan which identified flattening of the L4 nerve root. It was submitted this was a new and significant finding, as Dr Soliman opined.[67]
[67]T44
281Further, a comparison was drawn between the free and normal movement in the 2020 film and the constant limping shown in December 2023. It was submitted one clear explanation for the change was the February 2023 injury.[68]
[68]T49
282While the defendant focused on the February 2023 incident as a new injury and being the cause of the plaintiff’s current condition, as counsel for the plaintiff submitted: “By then, her incapacity is well and truly entrenched, as is the situation with medication.”[69]
[69]T53
283I accept that the “damage” had already been done with the plaintiff, having then had ongoing problems for nearly six years since 2017.
284Dr Thomas, who examined the plaintiff in 2019 and again in 2024, and was aware of the MRI findings in 2019 and 2023 (although not the specific incident), did not change his view that, as of February 2024, the dominant cause of the plaintiff’s symptoms remains the work duties.
285Mr Etherington held a similar view. He had all the radiology. He was provided with the plaintiff’s affidavit in which she mentioned the February 2023 flare up, although not overly clearly. As counsel for the plaintiff submitted, it seems in his analysis of the radiology Mr Etherington does not regard this incident as being as significant as Dr Soliman did, and he does not comment on the findings at all.[70]
[70]T53
286Dr Saxby, in his 2024 supplementary report on the papers, did not describe the findings on the 2023 MRI as a new injury and thought they were due to simply the natural progression of the underlying degenerative change, which he thought was the major contributing factor to the plaintiff’s incapacity. Of significance, he had available the Brooke Street notes and the plaintiff’s affidavit describing the February 2023 flareup.
287As counsel for the plaintiff submitted, whether through the pharmaceutical prism or the work capacity prism, by February 2023, the “die is cast”, both in terms of the plaintiff’s problems working and also the need to take painkilling medication. The pattern did not change after the 2023 flare up, and the plaintiff candidly said the pain was excruciating but then returned to its pre-February 2023 level.[71]
[71]T56
Treatment/addiction
288The plaintiff has had conservative treatment since the 2017 injury with a range of investigations being undertaken.
289She had limited physiotherapy and acupuncture treatment in in 2017/18, but did not continue as those treatments were not of much assistance.
290In mid-2019, she was referred to the Pain Clinic at The Royal Melbourne Hospital following an Emergency Department attendance for low back pain. She continued under the care of the Clinic, having been seen most recently on 30 November 2023.
291The plaintiff was referred to Our Health Clinic in Gisborne for a trial of medicinal cannabis in July 2023.
292The plaintiff attended Bendigo Hospital Emergency in March 2024 complaining of acute on chronic back pain.
293The plaintiff has been prescribed a significant amount of strong painkilling medication since April 2017.
294She is currently prescribed Endone, which she usually takes a few times a week when the pain is at its worst. She applies Norspan patches weekly. She takes Valium, usually once a fortnight, when she has a back spasm. She takes Voltaren and Panadol, usually twice a day, and uses CBD oil twice daily.
295In Kelso v Tatiara Meat Company Pty Ltd,[72] Dodds-Streeton JA said:
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[72](2007) 17 VR 592 at paragraph [199]
296Further, the plaintiff has had problems with addiction to the medication prescribed to treat her back injury. I accept this is a very significant consequence of her spinal impairment.[73]
[73]T54
297I reject the defendant’s attempt to disconnect this addiction to painkilling medication from the compensable injury. It matters not in these circumstances that The Royal Melbourne Hospital concluded there was no cause for the plaintiff’s symptoms or that the plaintiff had not been referred to a specialist, as counsel for the defendant submitted.[74]
[74]T46-48
298Further, the plaintiff has had dental problems associated with her medication intake, with WorkCover approving a further dental appointment for consideration of dental work.
Other activities
299As a result of ongoing back pain, the plaintiff continues to experience sleep difficulties.
300She is limited in her ability to perform domestic tasks and requires assistance from family members. Her GP has assisted in a request for some home help with cleaning and gardening, which WorkCover approved.
301She has difficulties sitting for extended periods and driving long distances. Walking is an issue.
302Her social and recreational life is limited by back pain, and she does not participate in a range of activities she previously enjoyed such as watching her sons play football and going camping.
303Intimate relations with her husband are affected.
Work
304A major consequence of the plaintiff’s spinal impairment is her inability to continue working as a PCA since October 2018 – a job she trained for late in life and really enjoyed.
305Counsel for the plaintiff submitted the plaintiff is a woman who simply cannot work on a consistent reliable basis. There are also the added problems associated with living in Woodend, which is some distance from Melbourne.[75] Before the 2017 injury, the plaintiff was a woman working on a permanent part-time basis after a long period out of the workforce raising a family. She was working and enjoying her work with older people, and that had been taken away from her.[76]
[75]T58
[76]T56
306The defendant’s position in relation to work consequences seems to be that the plaintiff went off work due to the significant side-effects from her painkilling medication. Further, it was submitted there did not seem to be any proper history of the plaintiff’s work performance after April 2017 that she was working less and she went back to work. On that basis, it was submitted there was a lack of contemporaneous report.[77]
[77]T50
307However, I am satisfied that there is support from the general practitioners’ notes for variable but increasing back pain and issues with work post April 2017, leading to the plaintiff ceasing work in October the following year.
308The consensus of medical opinion is that the plaintiff has no capacity to return to her pre-injury duties as a PCA. Although they thought this situation was a result of her underlying disease, both Dr Soliman and Dr Saxby consider the plaintiff unfit for her pre-injury duties.
309The loss of ability to engage in the PCA role for which the plaintiff was trained is a relevant pain and suffering consequence in this application, per Ellis Management Services Pty Ltd v Taylor[78] and Hunter v Transport Accident Commission.[79]
[78][2013] VSCA 326
[79][2005] VSCA 1
310Taking into account all the evidence, I am satisfied the pain and suffering consequences (ongoing pain, need for medication, addiction to pain killing medication, interference with a range of activities) of the aggravation of the plaintiff’s spinal impairment related to the 2017 incident are serious. I also accept that these consequences are permanent, as there has been no significant improvement in the plaintiff’ s condition over the last seven years despite extensive treatment.
“Without injury” earnings
311Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
312The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “after injury” earnings; and
(ii)“without injury” earnings.
313The former must be calculated by reference to the six-year period specified in s325(2)(f)(ii).
314“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
315It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
316The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein, per Barwon Spinners Pty Ltd & Ors v Podolak.[80]
[80] Supra at paragraph [70]
317I am therefore required to determine a “without injury” earnings figure. No submissions were made by counsel in this respect as the plaintiff’s case was that she had no work capacity.
318In the three years before April 2017, the plaintiff’s income ranged from $33,000 to nearly $38,000 in 2016. Taking the highest figure as that which most fairly reflects the plaintiff’s earning capacity without injury, the plaintiff must establish that she does not have the capacity to earn more than 60 per cent thereof on a permanent basis – $22,800 per annum or $438 per week.
319While Dr Saxby and Dr Soliman thought the plaintiff had the capacity to do the jobs suggested by the vocational assessor in February 2024 – product examiner, light sales assistant and bingo caller, customer service officer, receptionist, and lifestyle and leisure assistant – their support was on the limited basis that the plaintiff needed to be able to alter her posture regularly, with no bending or lifting below waist height, twisting, pulling or pushing, and no lifting above 5 kilograms at waist height. Significantly, any return to work was to be on a graduated basis.
320The medical opinion relied on by the plaintiff was that the plaintiff’s was not suitable for these jobs and that there was no way she could return to work on a reliable and consistent basis.[81]
[81]T58
321In September 2022, Dr Rowe thought the plaintiff was not fit for suitable or alternative employment. It was not likely she would be able secure or perform any type of work in a consistent, stable and sustainable manner, given her ongoing fluctuating pain, high levels of medication ingestion, and ongoing need for medical treatment and supervision. She would be unable to regularly attend work and engage in safe work practises consistently, regardless of what work might be offered to her and regardless of if that work were offered full or part time.
322In February 2024, the plaintiff’s GP, Dr Sanders, thought the plaintiff does not have the capacity to return to employment.
323Mr Etherington considered the plaintiff is unlikely to find suitable employment.
324Dr Thomas thought the plaintiff could only do back friendly work and overall, did not have the capacity for suitable employment – having only done PCA and factory work before. The residual level of functionality she has is so minimal that it would be incompatible with any form of mainstream employment.
325The plaintiff has not resumed work since October 2018, and I accept that she has been incapacitated for work since that time.
326While a number of jobs have been suggested, I do not consider they are appropriate for the plaintiff, given her level of pain and restriction, need for ongoing strong painkilling medication, and her limited work experience in only manual factory work and as a PCA. I do not accept that she could attend any of the suggested jobs on a reliable, consistent basis.
327Therefore, I prefer the medical opinion relied upon by the plaintiff.
328In any event, as counsel for the plaintiff submitted, in suggesting those job opinions Recovre did not have the benefit of any medical material relied on by the plaintiff, and only included the defendant’s medical reports that detail a capacity.[82]
[82]T57
329I am satisfied that, as a result of the 2017 incident, the plaintiff does not have a capacity for suitable employment. Accordingly, she has suffered the requisite loss of 40 per cent, being unable to earn in excess of $438 per week for the foreseeable future.
330In those circumstances, the plaintiff has suffered the requisite loss of 40 per cent.
331I am also required to consider issues of retraining and rehabilitation pursuant to ss325(2)(g).
332In light of my findings as to the plaintiff’s spinal impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g)(i) and (ii).
333The plaintiff, having satisfied the test laid down by the Act in relation to loss of earning capacity, is at large to make a claim for damages – that is, for both pain and suffering and loss of earning capacity.[83]
[83]Acir v Frosster Pty Ltd (supra) at paragraph 147 per Forrest J; also, see Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
334Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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