Jankowska v Moreland City Council
[2019] VCC 1339
•29 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01246
| MARZENA JANKOWSKA | Plaintiff |
| v | |
| MORELAND CITY COUNCIL | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 August 2019 | |
DATE OF JUDGMENT: | 29 August 2019 | |
CASE MAY BE CITED AS: | Jankowska v Moreland City Council | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1339 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Lower back injury – significantly differing medical opinions – psychiatric condition contributing to the claimed consequences – whether disentangling required – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s134AB(37)(a) and (c)
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Dealehr | Carbone Lawyers |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1 The plaintiff was employed by the defendant as an aged care worker. On 19 May 2016, she was assigned to provide assistance to an aged care client of the defendant. She was attempting to assist the client to shower when the physical effort in doing so resulted in her suffering an injury to her lower back. She was immediately met by pain in her lower back and numbness down her right leg.
2 The plaintiff submits that she has suffered an impairment of the function of her lower back which is serious both in terms of pain and suffering consequences and loss of earning capacity consequences.
3 Mr D Dealehr of counsel appeared for the plaintiff. Mr B R McKenzie of counsel appeared for the defendant.
The issues
4 The defendant challenged the plaintiff’s application on almost every issue, save for whether the plaintiff initially suffered a compensable injury. The breadth of the challenge necessitates summarising a large body of evidence commencing with the time when the plaintiff first obtained medical treatment through to the present time.
The Plaintiff’s treatment
5 The plaintiff first saw Dr Boyapati, general practitioner, on the day she was injured. He provided a number of medical reports.[1] I think his last report is the best summary of his treatment of the plaintiff. He considered that the plaintiff’s lower back pain was possibly of discogenic origin, and in reaching that conclusion, he made reference to an MRI scan dated 1 August 2016. The radiologist reported, among other things, the appearance of a disc protrusion bilaterally at L4-5, worse on the left, encroaching on the intraforaminal left L4 nerve; an annular disc fissure at L5-S1 with a minor central disc protrusion, and a mild central disc protrusion at L3-4.[2]
[1]Dr Boyapati's medical reports are dated 17 July 2018 at plaintiff's Court Book (“PCB”) 59-76; 3 August 2018 at PCB 62; 22 October 2018 at PCB 63-65; 14 March 2019 at PCB 66 and 2 July 2019 at PCB 67-71
[2]PCB 55. A second MRI scan dated 27 March 2019 demonstrates different appearances. The radiologists concluded that it demonstrated bilateral L4 nerve root contact with no significant central canal stenosis, and also the appearance of small annular tears of discs at L3-4 and L5/S1
6 Dr Boyapati noted that the plaintiff was suffering from ongoing pain which radiated into both of her legs, but more on the right side than on the left side. She experienced increase in pain in cold weather and on coughing, sneezing, standing, sitting and walking for more than 20 to 30 minutes and driving for more than 20 to 30 minutes. He described the medication regime which she was employing at that time – an anti-inflammatory gel and Tramadol 50 milligram or Voltaren 50 milligram. He also noted that she was seeing a chiropractor when she suffered exacerbations of lower back pain, and she was using a soft back brace.
7 Dr Boyapati was aware that the plaintiff returned to work with the defendant and was capable of working on light duties for 28 hours per week, spread over four days. She worked under that regime until September 2018, when she stopped working altogether. He considered that her cessation of work occurred due to “her current situation with constant back pain, anxiety and depression”.[3] He considered that the plaintiff was not able to return to her pre-injury duties because she was unable to engage in work which involved lifting, twisting, bending, stooping, pushing, pulling, repetitive and/or prolonged actions, overhead activities or driving long distances.
[3]PCB 69
8 Dr Boyapati was asked to consider what work the plaintiff could undertake. He considered that she could work in suitable employment relative to her medical conditions. He considered that working in an office part time on light duties with the flexibility to take rest breaks when needed and time off during exacerbations would amount to a suitable employment regime. Dr Boyapati was also asked to comment on the plaintiff’s capacity to engage in social activities, domestic duties and recreational activities. He did so by recapitulating what the plaintiff told him were the difficulties she experienced in engaging in those sorts of activities. I will return to what the plaintiff says about her pain and suffering consequences later in these reasons.
9 Dr Boyapati’s last word was to describe the plaintiff’s pain as being continuous, which he considered had caused her considerable distress and anxiety about her future. He referred to her mood having deteriorated and her anxiety having increased, part of which was due to her worries over her financial situation. She had been seeing a psychologist about each of these matters.
10 Dr Boyapati referred the plaintiff to Mr Cunningham, orthopaedic surgeon. The plaintiff first saw him on 22 July 2016. He provided a number of medical reports.[4] I think his last report is the best summary of his treatment of the plaintiff. The plaintiff told him that she was suffering from pain in her lower back and right leg, radiating to the top of her foot. He referred the plaintiff to have the first MRI scan. He considered that the MRI scan demonstrated mild foraminal stenosis at L4-5 “but nothing else of significance”.[5] He advised her that, in the absence of any neurological compression, he was reluctant to offer her any surgical intervention. He referred her to Dr Thomas, occupational physician.
[4]Mr Cunningham’s medical reports are dated 22 July 2016, at PCB 75; 16 August 2016, at PCB 76; 2 September 2016, at PCB 77; 14 October 2016, at PCB 78 and 9 May 2019, at PCB 79-80
[5]PCB 79
11 Mr Cunningham described his impression of the plaintiff’s injury in this way:
“Your client sustained some sort of lower back injury as a result of the fall, given her reported symptoms. I was unable to precisely locate the source of these symptoms as they could be coming from multiple levels of degenerative change in her back.”[6]
[6]PCB 80
12 Mr Cunningham did not know whether the plaintiff’s incapacity would continue for the foreseeable future, but he considered that most episodes of back pain improved with time. He did not consider that the plaintiff should perform work which required her to bend, lift, push, pull, crouch or stand for any length of time, and he added that she did not have any capacity to perform her pre-injury duties, but did have a capacity for sedentary duties only.
13 The plaintiff first saw Dr Thomas on 21 November 2016. He provided a report dated 3 June 2019.[7] The plaintiff told him that she was suffering from lower back pain. He noted that she had significant right sciatica initially, and some residual pain in her right calf and right buttock. He noted that she had returned to office work for 26 hours per week, spread over four days. Her only active medical treatment at that time was chiropractic treatment. He considered that the work she was doing “was ideal for her insomuch that she had flexibility so that she was not tethered to a desk”.[8]
[7]PCB 81-84
[8]PCB 82
14 Dr Thomas reviewed the plaintiff on 14 November 2018 after she had completed the pain management program. The plaintiff told him that she had been put off work two months previously because of increasing lower back pain. She also told him that she was using Nurofen, Voltaren and Tramadol. On examination, he found tenderness in her lower back and back movements which were mildly limited. He considered that she was suffering from symptomatic spondylosis of her lumbar spine.
15 Dr Thomas last reviewed the plaintiff on 14 November 2018. He was not convinced that any further rehabilitation would assist the plaintiff. He continued to hold the view that she was suffering from symptomatic spondylosis of her lumbar spine. She told him that she was suffering from severe lower back pain, neck pain and headaches. He repeated that he considered that the office position she had previously occupied was ideal for her. He added that he considered that her condition was having a profound effect on her ability to function domestically and recreationally. Additionally, he considered that her pain and suffering and anxiety and distress were significant, and I infer relevant to her capacity for work and her ability to function domestically and recreationally.
16 Dr Boyapati next referred the plaintiff to Mr Vellore, neurosurgeon. The plaintiff saw him on 3 April 2019. He provided two reports.[9] His last report is the best summary of his treatment of the plaintiff. He referred the plaintiff to have the second MRI scan. When he reviewed the plaintiff he told her that she was possibly “… suffering from severe discogenic pain from L4-L5 disc prolapse and damage causing her mechanical axial pain from the failed disc at L4-L5”.[10]
[9]His medical reports are dated 3 April 2019, at PCB 72, and 16 May 2019, at PCB 73-74
[10]PCB 73
17 Mr Vellore discussed treatment options with the plaintiff. He suggested further pain management to be provided by Dr Buchanan, interventional pain physician, and epidural injections or surgery in the form of a lumbar fusion. He considered that her background circumstances would preclude her from performing any suitable employment for the foreseeable future. He considered that her symptoms of lower back pain would be aggravated by heavy lifting, bending, twisting, stooping, pushing, pulling, prolonged sitting, standing, repetitive pushing, pulling or lifting and performance of overhead activities and the prolonged repetitive use of her lumbar spine. He was asked to consider whether she could pursue the occupations of clerk, receptionist, customer service officer, administrator, real estate agent or care manager. He appears to have doubted whether she could engage in any of those forms of employment.
The Plaintiff’s medico-legal assessments
18 The plaintiff was examined by Dr Kennedy, sports and industrial physician, on 21 August 2018. He provided a report dated 30 August 2018.[11] He obtained a lengthy history from the plaintiff, and in particular, relevant to her clinical progress and current complaints and capabilities. He then examined her and found a number of abnormalities in the lumbar spine. He considered that the plaintiff had suffered accelerated or aggravated pre-existing asymptomatic osteoarthritic changes in her lumbar spine. The plaintiff was working at the time when he examined her. He considered that she could continue working, and he said:
“… should be able to continue with modified occupational duties provided that she can alternate her workstation between sitting and standing as required and she also must avoid repetitive bending, twisting and turning under load or stress and manual handling loads greater than 5kgs.”
[11]PCB 85-90
19 Dr Kennedy considered that her prognosis was fair, and he added that it was likely that she would continue to have problems with her lumbar spine.
20 Dr Kennedy re-examined the plaintiff on 27 March 2019. He provided a further medical report dated 12 April 2019.[12] Dr Kennedy was provided with the second MRI scan. He made a comparison between it and the first MRI scan and concluded that there was evidence of a severe disc space loss at L4-5 and right L4 nerve root contact. He considered that the comparison demonstrated further acceleration and deterioration of the lower lumbar intervertebral discs and posterior facet joints, and in particular, at L4-5. He considered that the clinical signs of radiculopathy correlated with disc damage at that level. Dr Kennedy understood that the plaintiff had ceased work. He considered she would have difficulty engaging in the occupational duties in the employment options referred to in a vocational report he was provided. It is my impression from his discussion of the plaintiff’s vocational options that he did not believe that she could return to the office work she was performing with the defendant at the time when he last examined her.
[12]PCB 91-96
21 Dr Kennedy provided a third report dated 25 July 2019. He was asked to comment on the reports of a number of other medical practitioners who had also examined the plaintiff on a medico-legal basis. He agreed with the assessment made by Dr Thomas, and in particular, relevant to Dr Thomas’ view that the plaintiff should reduce her reliance on opioids, and that further rehabilitation was unlikely to significantly alter her overall functioning. He then turned his attention to the plaintiff’s capacity for suitable employment. He limited the comments he made to the plaintiff returning to work as a patient service attendant, and did not address the office work the plaintiff was performing in the latter part of 2018; however, he then said:
“If Mrs Jankowska was able to find modified occupational duties of a more sedentary nature she would still have to be able to alternate her workstation between sitting and standing as required and avoid any load or stress on her lumbar spine.”[13]
[13]PCB 99
22 Dr Horsley, occupational physician, examined the plaintiff on 25 June 2019. She provided a report bearing the same date.[14] Like Dr Kennedy, she obtained a lengthy history from the plaintiff, and in particular, relevant to her clinical progress and current complaints and capabilities. She then examined her and found a number of abnormalities in the lumbar spine. In the formulation of her diagnosis, she noted that the plaintiff was difficult to examine objectively. She considered that the plaintiff’s work was a contributing factor to her injury on the background of the pre-existing abnormalities in her lower back. She was not convinced that there were any significant clinical radicular features. She undertook an analysis of the plaintiff’s psychiatric state which was suggestive of the plaintiff suffering moderate to severe depression and severe anxiety which she considered was compatible with the plaintiff’s presentation.
[14]PCB 112-122
23 Dr Horsley considered that a number of work restrictions were appropriate to be imposed upon the plaintiff. Despite the need for those work restrictions, she considered that if the plaintiff’s mental health could be stabilised and she was involved in a functional restoration program to improve her functional tolerances, she then said, in that context:
“Any job that she returns to at this point, would need to be part-time, in the vicinity of 15 to 20 hours per week, within the restrictions as outlined above. Her overall capacity is likely to be in the vicinity of 28 hours per week, as she was doing for the last 12 months … .”[15]
[15]PCB 120
24 Dr Horsley made relevant observations concerning the plaintiff’s increasing anxiety which impacted upon her presentation when examined, and significant fear avoidance behaviour.
The Defendant’s medico-legal assessments
25 The defendant concentrated on the opinions of Dr Slesenger, occupational physician, Associate Professor Buzzard, general surgeon, and Dr Brazenor, neurosurgeon, and not so much on the other medical practitioners who examined the plaintiff. The references which the defendant made to the medical reports of those other medical practitioners went rather more to the question of the plaintiff’s credit. It is for that reason that I do not propose to expend much time summarising the opinions of Dr Brown, occupational physician,[16] Dr Bones, occupational physician,[17] and Dr Baynes, occupational physician.[18]
[16]Dr Brown provided a report dated 8 November 2016, at DCB 2-5
[17]Dr Baines provided a report dated 22 February 2017, at DCB 6-12
[18]Dr Baynes provided a medical report dated 19 October 2017, at DCB 18-22
26 Professor Buzzard examined the plaintiff on 18 July 2018. He provided a medical report bearing the same date.[19] The plaintiff told him that she suffered pain in her lower back radiating down her right leg to her right ankle. On examination, the plaintiff was able to sit at a right angle on the examination couch without apparent pain which was in contrast to significantly limited movement when the plaintiff was more formally examined. This was something on which Professor Buzzard made comment:
“So far as her present presentation is concerned, the fact that the back pain does radiate to the right leg suggests that there is a nerve root problem with sciatica. However, the situation is complicated by functional overlay, at least some of which is at a deliberate level. This is evidenced by the fact that she does have a positive right straight leg raising test, yet she is able to sit at right angles on the examination couch. Furthermore, there are no definite objective signs of nerve root involvement.”[20]
[19]DCB 51-58
[20]DCB 55
27 Professor Buzzard considered that the plaintiff had suffered an aggravation of pre-existing degenerative changes. He considered that she had what he described as a “light work back”. He considered that the work she was undertaking at the time he examined her was suitable employment, but he added that he did not think there was a justification for reducing her work hours from five days a week to four days a week.
28 Dr Slesenger examined the plaintiff on 13 June 2018 and provided a medical report dated 18 June 2018.[21] He re-examined the plaintiff on 3 June 2019 and provided a report dated 10 June 2019,[22] and he provided a supplementary report dated 25 July 2019.[23]
[21]DCB 23-31
[22]DCB 34-44
[23]DCB 45-50
29 On examination on 13 June 2018, Dr Slesenger noted that there was extreme tenderness to minimal palpation in a global distribution over the plaintiff’s lumbar spine and associated areas of her lower back. What he found on examination led him to conclude that the work incident was a “plausible cause of Mrs Jankowska’s initial impairment”. He added that he considered that there was a “strong functional element to her presentation, and indeed, this appears to be the dominating factor”.[24] He recommended that the only restrictions which should be imposed upon her were no pushing, pulling, carrying or lifting over 5 kilograms; no repetitive bending or twisting and no prolonged static postures.
[24]DCB 28
30 Dr Slesenger was asked whether the plaintiff could return to work as a general clerk, information officer/customer service clerk, receptionist, receiving and dispatch clerk, real estate representative, health information manager/medical records administrator, case manager, payroll clerk and accounts clerk. He considered that she could. The only occupation he considered that was outside her capacity was as a facilities administrator. He added that he considered that her condition was only partially related to the incident and the injury which the plaintiff suffered as a result of it and that “there is a significant non-organic element to her presentation”.[25] One of the reasons why he was of this overall opinion was because of the inconsistency in his examination of her lumbar spine.
[25]PCB 31
31 On the second occasion Dr Slesenger examined the plaintiff, he was provided with an account of the treatment which the plaintiff had undergone since he last examined her, and most of the reports relied upon by the plaintiff and the defendant in this application, and the second MRI scan. On this occasion, he considered that the plaintiff had suffered a mechanical injury to her lumbar spine, an aggravation of degenerative disease in the lumbar spine and chronic lower back pain with right leg radiating features without evidence of radiculopathy. He added that the aggravation of the degenerative disease had for the most part resolved. Despite that diagnosis, he then added:
“I am of the opinion that there is a strong functional element to Mrs Jankowska’s symptoms, and indeed, the organic impairment appears to be a minor contributing factor to her overall impairment and disability.”[26]
[26]DCB 42
32 Dr Slesenger again went through each of the occupations which he addressed in his first report and considered that the plaintiff continued to be capable of returning to those forms of employment. He repeated his opinion relevant to the plaintiff’s capacity to return to suitable employment in his supplementary report.
33 Mr Brazenor examined the plaintiff on 2 July 2019 and provided a report bearing the same date.[27] He was provided with almost all of the medical reports and radiology which were tendered in evidence. He considered that there were a significant number of statements made by the plaintiff which he found difficult to accept.[28] On examination, the plaintiff was only able to flex her lumbosacral spine to 20 degrees, but was able to flex her lumbosacral spine to 70 degrees when she alighted from the examination couch.
[27]DCB 66-91
[28]DCB 76-77
34 Mr Brazenor made a comparison of the two MRI scans, and in particular, the appearances on the second MRI scan. He considered that there was no evidence of structural injury to her lumbar spine resulting from the incident. He considered that “at the very most” that the plaintiff had suffered a soft tissue injury which had resolved. He also considered that the MRI scans demonstrated that the only restriction he would place upon her in terms of return to suitable employment would be to avoid repeated bending at the waist, repeated accessing of levels less than 600 millimetres from ground level, and very vigorous pushing or pulling movements, for example manoeuvring heavily laden trolleys. He added that these are the restrictions he would have imposed on her had he seen her prior to the incident. What resonates throughout Dr Brazenor’s assessment of the plaintiff is serious doubt about her creditworthiness. He used florid language, describing the plaintiff’s presentation overall as “perpetuating a ruse”.[29]
[29]DCB 81
35 Dr Brazenor commented on the opinion of Mr Vellore. He noted that he had seen her on one occasion only, and he considered that the conclusions he reached were “far-reaching”. He considered that he reached those conclusions without “adequate historical evidence to draw” those conclusions.[30]
[30]DCB 70
The psychiatric evidence
36 Dr Lewis, psychiatrist, examined the plaintiff on a medico-legal basis on 20 June 2019. He provided a report dated 23 June 2019.[31] He accepted that the plaintiff was suffering from chronic pain symptoms. He considered that his psychiatric diagnosis was inextricably linked to her physical injury and its consequences. He diagnosed that the plaintiff was suffering from an Adjustment Disorder with some depressive features. He suggested that she might benefit from an antidepressant treatment in the event of deterioration in her condition or more pervasive depressed mood. In answer to a question put to him relevant to whether the plaintiff could return to suitable employment by separating her psychiatric condition from her physical injuries, he said that she had a theoretical capacity to undertake her pre-injury duties.
[31]PCB 100-111
37 Dr Krapivensky, psychiatrist, examined the plaintiff on 23 May 2019. She provided a report dated 27 May 2019.[32] She appears to have accepted that the plaintiff was suffering from chronic pain symptoms. She considered that the plaintiff was suffering from a Mild Adjustment Disorder with Anxious Mood. She considered that the plaintiff had a full unrestricted work capacity from a psychiatric point of view for her pre-injury work.
[32]DCB 59-65
38 The plaintiff was referred to Dr Ramagnano, psychologist, for treatment by Dr Boyapati.[33] She commenced seeing her on 13 May 2019 approximately monthly.[34] The plaintiff said that she wanted to see a psychologist because she was anxious and depressed regarding her ability to work.[35] The plaintiff prepared a short statement which she provided to Dr Ramagnano. In it she referred to her physical problems affecting her capacity to work and the interference with her domestic, social, personal and recreational activities. It was in that context that she also referred to: “That stress also affect (sic) my mind and learning capacity due to very poor concentration.”[36]
[33]PCB 124, and the clinical note of Dr Boyapati dated 15 March 2019
[34]Transcript 29
[35]Transcript 51-52
[36]PCB 153
The Plaintiff’s consequences
39 The plaintiff swore two affidavits in which she described the consequences of the impairment of the function of her lower back. Additionally, she expanded upon those consequences under cross-examination and re-examination. The following is a short summary of the consequences on which she gave evidence:
· Constant discomfort and pain in the lower back.
· Pain radiating down the back of the right leg with intermittent numbness and pins and needles down the right leg into the right foot.
· Pain radiating up the back.
· Interference with sleep. She purchased a new bed and mattress at significant expense.
· Flaring of symptoms when engaged in bending, lifting, static standing, prolonged sitting and walking on uneven and bumpy surfaces.
· Development of a limp when walking.
· Interference with being able to drive comfortably over prolonged distances.
· Driving in traffic results in numbness and pins and needles in the right leg.
· The need to pull over when driving to rest when the symptoms associated with driving occur.
· Limited to local driving.
· The need to purchase a different car because her previous car was too low to the ground and presumably difficult for her to get in and out of it.
· Interference with the ability to socialise with friends and family.
· Interference with the ability to undertake personal care, such as showering, painting toenails and similar personal care.
· Interference with being able to attend church services because of the need for prolonged sitting.
· No longer able to ride as a passenger on her husband’s motorcycle.
· No longer able to attend a gym to undertake exercise.
· No longer able to undertake all of her housework. She now relies on her son to help her with cooking, mopping, vacuuming and washing.
· Interference with her ability to care for her elderly aunt, including assisting with her personal care, cleaning her bedroom and taking her to medical appointments.
· Development of constipation.
· The need for continuing medical treatment. The need for psychological treatment and the need for the prescription of painkilling medication.
40 The plaintiff’s son swore an affidavit on 16 July 2019.[37] He refers to the fact that his mother was physically well and capable of undertaking all of the housework. He has progressively taken over more and more of that work, and now does the majority of the housework.
[37]PCB 26-28
41 The plaintiff returned to work with the defendant in July 2016 and continued working until September 2018. She was provided with light duties and modified hours. She worked about 28 hours per week over four days undertaking administrative duties. She said that she undertook this work because she felt pressure from the relevant WorkCover insurer that if she did not, she would lose her job. She ceased work in September 2018 because the defendant could not offer her light duties any longer.
42 The plaintiff said that she has tried to retrain. In 2019, she enrolled in an online course in bookkeeping. She struggled with the study she was required to undertake because of the need to sit for periods of time. She ceased undertaking the course after about one month.
The Plaintiff’s injury
43 Before Mr Vellore examined the plaintiff, the diagnoses of her injury excluded any significant discal involvement. His diagnosis of the plaintiff’s injury is of significant discal involvement. He provided the plaintiff with three treatment options, one of which was a surgical option. The plaintiff emphasised the surgical option as a demonstration of the seriousness of her lower back injury. I am not convinced that Mr Vellore was actually proposing surgery as the treatment option. This is what he actually said:
“… Given that was the case, I discussed with her the option of obtaining another pain management opinion from interventional pain physician, Dr Guy Buchanan which would consist of perhaps further epidural injections and the like versus having surgical intervention which would be in the form of a lumbar fusion surgery. I explained to her at that stage the relative risks, benefits, alternatives and indications of each of those approaches in detail. She wished to consider options and get back to me as to how she wished to proceed moving forward. I have not seen her or heard from her thereafter.”[38]
[38]PCB 73
44 I think he intended to provide the plaintiff with the range of nonsurgical options against the surgical option without placing any particular emphasis on surgery as the preferred option. What is also evident from the quoted passage is the invitation to the plaintiff to consider the advised treatment options. She pursued none of those options. She has not seen Dr Buchanan. She has not investigated the usefulness of having epidural injections. She certainly has not investigated whether surgery is the preferred treatment option.
45 A comparison between the opinion of Mr Vellore and all of the other examining medical practitioners, with the exception of Dr Kennedy, demonstrates a remarkable difference of opinion. Mr Vellore was impressed by his inspection of the two MRI scans. He considered that there was a significant deterioration demonstrated on the second MRI when compared with the first. Dr Slazenger, Dr Horsley and Dr Brazenor were provided with both MRI scans. None of them considered that their inspection of them warranted a same or similar diagnosis to that made by Mr Vellore.
46 Neither Dr Slazenger, Dr Kennedy nor Dr Horsley are surgeons who specialise in the treatment of spinal injuries. Dr Brazenor is such a specialist in the treatment of spinal injuries. His opinion is the polar opposite of Mr Vellore’s. It is of itself a remarkable thing to see two surgeons with the same surgical qualifications differing so markedly when armed with the same MRI scans.
47 Dr Brazenor did not observe anything particularly concerning in either of the two MRI scans. He did observe some deterioration in the interval between the first and the second, but nothing which alerted him to a dramatic deterioration of the order considered to be the case by Mr Vellore. Of course, there is another reason why Dr Brazenor considered that the plaintiff’s injury was modest. His impression of the plaintiff’s description of her injury, the consequences of her injury and the observation he made concerning her spinal movements when she alighted from the examination couch were important in him arriving at a clinical impression of what he was dealing with.
48 I do not accept Mr Vellore’s opinion, nor Dr Kennedy’s. I am impressed by the large body of evidence of all of the other medical examiners who express a contrary view regarding the diagnosis of the plaintiff’s injury. The evidence points to there being a likelihood of some discal involvement, or a mechanical lower back injury, or an aggravation of degenerative changes or an aggravation of spondylitic changes or a soft tissue injury. Those terms of art have all been used to describe an injury which has an absence of the dramatic discal involvement described by Mr Vellore and Dr Kennedy.
49 Should it be thought that I have wrongly concentrated on the plaintiff’s injury rather than the directive of the definition, then I will make it clear that I have not. Identifying the injury permits an understanding of the body function which has been impaired for the purpose of making an objective assessment of the claimed pain and suffering consequences and loss of earning capacity consequences.
Creditworthiness and reliability
50 There are three parts to the assessment of the plaintiff’s creditworthiness and reliability. The first is whether the plaintiff has deliberately exaggerated the nature and extent of the impairment of the function of her lower back. The second is whether the plaintiff has deliberately exaggerated her pain and suffering consequences and loss of earning capacity consequences. The third is whether the plaintiff’s supervening psychiatric overlay is contributing to the plaintiff’s pain and suffering consequences and loss of earning capacity consequences.
Deliberate exaggeration
51 The source of the enquiry whether the plaintiff has deliberately exaggerated the impairment of the function of her lower back starts with Mr Cunningham. He was perplexed by the plaintiff’s presentation. The result was that he could not make a diagnosis by the usual route of taking a history, inspecting relevant radiology and undertaking a clinical examination. Then there are the examination findings of Professor Buzzard, Dr Slazenger and Dr Brazenor. They considered that their formal examinations of the plaintiff were unreliable and perhaps misleading.
52 I accept the evidence of Professor Buzzard, Dr Slazenger and Dr Brazenor that the plaintiff has a significantly greater range of motion in her lower back than she was prepared to demonstrate on formal examination. I think that is indicative of the plaintiff not having the discal injury to her lower back described by Mr Vellore, but rather an injury of greater modesty.
53 The defendant made an attack upon the plaintiff’s credit by referring to a number of pieces of evidence which it submitted collectively called into question the plaintiff’s creditworthiness.
54 One was the film of the plaintiff taken on 5 March 2019.[39] It was very short. It showed the plaintiff standing on a street in the company of other persons who were identified as her aunt and her aunt’s carer. She appeared to be able to stand, smiling on the street before she moved off. She was then shown bending her back to what appeared to me to be about 30 to 45 degrees. The bending was associated with her manually handling her aunt’s collapsible walking frame. She manipulated it so that it was collapsed. She then lifted it and placed it in her car. She then entered the driver’s side of the car into the driver’s position without the appearance of any difficulty.
[39]Exhibit 4
55 The plaintiff was cross-examined about the film. I was not sure whether the plaintiff remembered the particular day on which she was filmed. I say that, because her answers appeared to me to be rather general ones rather than specifically related to that particular day. In any event, she said that she did not bend very low. She had difficulty doing what was shown on the film. She always has pain when engaging in the sorts of movements shown on the film.[40]
[40]Transcript 37-38
56 The next line of attack was the plaintiff’s evidence that she walks with a limp. She said that when she rises in the morning after resting for a long time she will limp after she starts walking, and that occurs even after walking over a short distance.[41] The plaintiff’s evidence that she limps was relied on by her to demonstrate the degree of pain which she experiences in her lower back and her right leg. That degree of pain results in an impairment of the function of her right leg when she walks.
[41]Transcript 66-67
57 Under cross-examination, it was put to her that the only medical practitioner to whom she demonstrated a limp was Dr Slazenger on the occasion when he examined her on 3 June 2019. He had not observed that when he examined her on an earlier occasion. No other medical practitioner made a note of her limping. Essentially, the defendant’s position was that if she had developed a limp, then it is a matter of such significance that she would have informed examining medical practitioners of that. In the face of cross-examination that she had not mentioned limping to any of the examining medical practitioners except Dr Slazenger, she said that she told all of the doctors that she had a limp.[42]
[42]Transcript 33
58 The plaintiff complains that she now has pain radiating up into her neck with accompanying stiffness.[43] Essentially, the defendant’s position was that the neck pain cannot be anatomically associated with her lower back injury.
[43]Transcript 40-41
59 The plaintiff complains that the medication she has been prescribed has resulted in her suffering constipation.[44] The plaintiff was taken to an entry in the clinical notes of Dr Boyapati dated 8 April 2015 in which he recorded that constipation had been a problem for the plaintiff “over weekends for the past few years”.[45] Upon being made aware of a prior constipation problem, the plaintiff then said that she had suffered constipation occasionally before, but it was a different problem compared to what it is now.[46]
[44]PCB 16
[45]Exhibit 3
[46]Transcript 41-42
60 The plaintiff referred to prior lower back problems in her second affidavit after she was shown the entries in the clinical notes of Dr Boyapati in February 2010, February 2012, March 2014 and May 2015. She described her prior lower back problems as amounting to temporary stiffness after working a long day. Essentially, the defendant’s position was that the plaintiff had not informed any of the examining medical practitioners that she had suffered a prior lower back problem.
61 The plaintiff complains that the medication she has been prescribed interferes with her concentration. The only examining medical practitioner who obtained a brief history consistent with that complaint was Professor Buzzard. Essentially, the defendant’s position was that if it was a consequence of any significance, the plaintiff would have informed the examining medical practitioners that her consumption of medication was interfering with her concentration.
62 The defendant did not mince words when cross-examining the plaintiff about each of these matters. It squarely put to the plaintiff that each of these matters demonstrated that the plaintiff had not been candid in her evidence. Furthermore, it was put to her that the aggregate effect of how she behaved when examined by Professor Buzzard, Dr Slazenger and Dr Brazenor and these other matters, was evidence of her deliberately exaggerating the nature and extent of her disablement to suit her case.
63 The allegations of deliberate exaggeration is a very serious one. Whilst the aggregate of these attacks on the plaintiff’s credit go some way to impugning the strength in the plaintiff’s case, I am not prepared to go so far as to conclude that the plaintiff has been deliberately exaggerating her evidence for the purpose submitted by the defendant.
64 For reasons which will become evident shortly, I prefer the view that the plaintiff’s overall presentation is explicable by her supervening psychiatric condition. I will refer to that next.
The psychiatric condition
65 There is evidence that the plaintiff has suffered a supervening psychiatric condition. I think that is beyond doubt when regard is had to the evidence of Dr Lewis and Dr Krapivensky, and the opinions of Dr Slazenger and Dr Horsley. I consider the opinions of Dr Slazenger and Dr Horsley to be of particular importance for reasons which will become obvious shortly.
66 Both Dr Slazenger and Dr Horsley are occupational physicians. Their particular speciality is directed to acquiring an understanding of the nature and extent of the plaintiff’s injury, and the extent to which the impairment resulting from the injury renders the plaintiff fit or unfit for suitable employment. I think it is inevitable that in making an assessment of that kind, that neither are limited to assessing the disabling impact of physical injury, but also the disabling impact of any psychiatric condition.
67 Dr Slazenger considered that there was a significant non-organic element to the plaintiff’s presentation. Dr Horsley considered that the plaintiff was suffering from a psychiatric condition which was suggestive of a moderate to severe depression and severe anxiety. These opinions alone demonstrate that there is a potent supervening psychiatric condition which is contributing to the plaintiff’s pain and suffering consequences and loss of earning capacity consequences. Dr Horsley’s analysis and conclusions were that the plaintiff’s mental health needed to be stabilised. The plaintiff then needed to undergo a functional restoration program to improve her functional tolerances. It was only after those two steps are been achieved that Dr Horsley conceived that the plaintiff could return to part-time work consistent with the work she was doing with the defendant before she ceased work in September 2018.
68 I think the aggregate effect of this evidence is potent in demonstrating that there are two factors contributing to the plaintiff’s claimed pain and suffering consequences and loss of earning capacity consequences: her physical injury and her psychiatric condition. I should add that Dr Slazenger and Dr Horsley are not the only ones who hold that view. It is also the view of Dr Boyapati. He recognised that in the course of his treatment of the plaintiff, and more obviously when he referred the plaintiff for psychological counselling.
69 The defendant submitted that the plaintiff bears the onus to undertake the disentangling of the physical contributions to her pain and suffering consequences and loss of earning capacity consequences from the extent to which her psychiatric condition contributes to each of those consequences.
70 In Meadows v Lichmore,[47] the Court of Appeal referred to the framework which was said to be the origin of the need to disentangle in the judgment of Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd.[48] Additionally, the Court of Appeal referred to a practice in this Court of a two-step approach in determining whether there is a call for disentangling. The first is to ask whether there is a substantial organic basis for the pain and suffering consequences, and in this case, also the loss of earning capacity consequences. If the answer is in the affirmative, then there is no call for disentangling of the physical contributions to the pain and suffering consequences and the loss of earning capacity consequences from the psychiatric contributions to those consequences.
[47][2013] VSCA 201 at paragraphs [19]-[24]
[48][2008] VSCA 167 at paragraphs [24] and [25]-[29]
71 If, however, the answer to the first question cannot be answered affirmatively, then the plaintiff will need to take the next step and undertake disentangling. The plaintiff will need to be able to separate the physical contribution of the pain and suffering consequences and the loss of earning capacity consequences from the psychiatric contributions in order to satisfy the statutory test.
72 I think I have set out enough of the evidence which is adequate to demonstrate that there is both a physical contribution and a psychiatric contribution to the plaintiff’s pain and suffering consequences and loss of earning capacity consequences. If there needs to be an exemplar of that position, then it is the opinion of Dr Horsley. She advocates that the plaintiff needs to take steps, one of which is relevant to her mental health, before she will return to a capacity to undertake suitable employment. I infer that the psychiatric contribution also infects the plaintiff’s pain and suffering consequences in the same way that it does her loss of earning capacity consequences.
73 The plaintiff has not undertaken any disentangling. She has been content to rely upon the opinion of Mr Vellore as the platform upon which her whole case has been advanced.
74 The best case scenario, based upon the evidence which I accept thus far, is that if the plaintiff undertakes the steps advocated by Dr Horsley, then she may be left in a position where her physical contribution to her pain and suffering consequences and loss of earning capacity consequences will return her to a state where she can undertake the suitable employment referred to by Dr Horsley; however, that interim conclusion is based entirely upon an acceptance of Dr Horsley’s opinion ignoring other relevant opinions.
75 The fact that the plaintiff demonstrated a better spinal movement when examined by Dr Slazenger, Professor Buzzard and Dr Brazenor points to the plaintiff being significantly less disabled than Dr Horsley believed her to be. I should add at this point that what underwrites Dr Horsley’s opinion is an acceptance that the plaintiff has annular tears at L3-4 and L5-S1 and severe degeneration at L4-5. This is contrary to the opinion of Dr Brazenor, who considers that there were no such significant discal problems evident on a comparison between the two MRI scans.
76 The failure to disentangle makes it very difficult for me to determine whether I should accept Dr Horsley’s opinion, or whether I should accept Dr Slazenger’s opinion that the plaintiff is fit for a wide variety of suitable employment. He was of the opinion that the plaintiff could return to work as a general clerk, information officer/customer service clerk, receptionist, receiving and dispatch clerk, real estate agent, health information manager/medical records administrator, case manager, payroll clerk and accounts clerk.[49] He based his opinion relevant to each of those forms of employment on a report of AMS Consulting Group dated 23 March 2018.
[49]DCB 45-50
77 The difficult position the plaintiff has created by not undertaking the disentangling is that the conclusion I am left with is the compelling opinions of Dr Slazenger and Dr Horsley. Dr Horsley would have it that the plaintiff is partially incapacitated for work, and by inference, that partial incapacity impacts upon her capacity to engage in social, domestic and recreational pursuits, but it is difficult for me to determine to what extent. Dr Slazenger, on the other hand, recognises that the plaintiff has some level of incapacity for work, but has a full capacity for work in the suitable forms of employment he has referred to. If the plaintiff is able to work to that extent it logically follows that she could not be troubled as much as she alleges relevant to social, domestic and recreational pursuits.
78 The following is a summary of the conclusions I have reached on the basis of my summary of the whole of the evidence, and my analysis of the medical evidence:
· I accept that the plaintiff has suffered a compensable injury. I consider that it is more likely to comprise some discal involvement, or a mechanical lower back injury, or an aggravation of degenerative changes or an aggravation of spondylitic changes or a soft tissue injury.
· I do not accept that there is an issue of permanency relevant to the impairment of function of the plaintiff’s lower back. I have not dealt with this specifically; however, inherent in my overall findings is an acceptance that the impairment of function is permanent. Furthermore, an acceptance that the plaintiff has some level of pain and suffering consequences and loss of earning capacity consequences which are also permanent.
· I do not accept the opinion of Mr Vellore or Dr Kennedy that the plaintiff has suffered an injury as extensive and grave as described by Mr Vellore.
· I do not accept the opinion of Dr Brazenor that there is nothing wrong with the plaintiff. I think his opinion is against the preponderance of the evidence which I think demonstrates that the plaintiff has suffered an injury to her lower back which impairs the function of a lower back at some level.
· The plaintiff has failed to undertake the process of disentangling which has made it very difficult to determine the degree of impairment of the function of her lower back and hence what pain and suffering consequences and loss of earning capacity consequences result from the impairment.
· The best that I am able to determine of the plaintiff’s functional capacity is by having regard to the opinions of Dr Horsley and Dr Slazenger. Their opinions are based upon a similar view of a supervening psychiatric condition, but where they part company is a differing view on the identity of the plaintiff’s injury, the impairment resulting from it and what capacity the plaintiff has retained for suitable employment.
· The evidence demonstrates that the plaintiff has at least had the capacity to perform work with the defendant which she was performing up to September 2018, and I think there is a real likelihood that she has a greater capacity to perform the light work referred to by Dr Slazenger as being within her retained capacity for suitable employment.
· I am not convinced that the plaintiff is disabled to anywhere near the extent she contends is the case. I think a large part of that is the effect upon her of the supervening psychiatric condition.
· The conclusions I have reached relevant to the plaintiff’s evidence and the medical evidence demonstrate that the plaintiff has not persuaded me that her pain and suffering consequences and loss of incapacity consequences can meet the statutory test.
79 Therefore, I order that the plaintiff’s originating motion be dismissed. I do so after having made the relevant comparison with like impairments.
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