Jerram v VWA
[2020] VCC 881
•25 June 2020
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03126
| JENNIFER JERRAM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2020 | |
DATE OF JUDGMENT: | 25 June 2020 | |
CASE MAY BE CITED AS: | Jerram v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 881 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering only – reliance upon paragraph (a) of the definition – injury to the lower back – disentanglement of other injuries and conditions, including psychological and psychiatric matters – whether burden of proof has been discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Slater & Gordon |
| For the Defendant | Ms R Kaye | Minter Ellison |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (hereinafter referred to as “the Act”). The plaintiff seeks leave to bring proceedings for damages in respect of pain and suffering only. In so doing, she relies upon paragraph (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
2 The injury relied upon is one to the spine and particularly to the lower back, with injury to the right leg and knee being alleged to be consequences of the lower back injury. This shall hereinafter be referred to as “the injury”. The plaintiff was also seeking to rely upon paragraph (c) of the definition, but such reliance was ultimately abandoned – see Transcript (hereinafter referred to as “T”) 66. The plaintiff’s mental condition shall be discussed in greater detail subsequently. It is alleged that the injury occurred throughout the course of the plaintiff’s employment and in particular in early March 2013. This, globally, shall hereinafter be referred to as “the accident”. At the time, the plaintiff was employed by Maggi T Corporation Pty Ltd, which hereinafter shall be referred to as “Maggi”. The plaintiff was employed as the senior person at Maggi’s clothing store in Brighton. Her duties included the changing of items of clothing on heavy and awkward mannequins in the windows of the store. There was acceptance of the plaintiff’s claim for statutory benefits, but solely in relation to the claim insofar as it related to injury to the back and the manner in which this occurred. I would refer to T8.
3 Mr J Fitzpatrick of counsel appeared on behalf of the plaintiff. Ms R Kaye of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(a)The plaintiff’s background, education and employment prior to the accident
4 The plaintiff is aged 71 years, she having been born in 1948. She is a divorced woman. She was educated to Year 11 level and later completed a Degree in Fine Arts. She began working in clerical and retail sales positions, but progressed to high level business management roles in various retail and cosmetic companies. She also had periods of self-employment as a retail business consultant. Commencing in 2008, she was the manager of a clothing store. She was then approached to manage the Maggi store in Brighton and commenced this full-time role in August 2011. She was so employed when the accident occurred.
(b) The plaintiff as a witness
5 The impression which I formed of the plaintiff as a witness is very similar to that expressed by Dr Nigel Strauss, consultant psychiatrist, who examined the plaintiff at the request of her solicitors on 22 October 2019. Dr Strauss made the following comments:
“She was highly anxious and at times a little confused. She was well presented. She was cooperative.”
6 I note that Dr Peter Blombery, consultant physician, reporting to the plaintiff’s solicitors on 8 December 2019, also stated that the plaintiff was a little anxious, although there was no exaggerated pain behaviour. Mr Roy Carey, orthopaedic surgeon, who examined the plaintiff at the request of the defendant, referred to her as “a pleasant witness … but tended to be overinclusive in her answers even to simple and direct questions”. Essentially I agree with these observations. My overall impression is that she was anxious, but did her best to give honest and accurate evidence.
(c) The state of the plaintiff’s health prior to the accident
7 The plaintiff had undergone a left hip replacement in 2002, but made a good recovery. Thereafter she was fit and active. After the death of her mother, she was on antidepressants for approximately a year. There have been no other relevant past injuries or illnesses.
(d) The injury, its treatment and diagnosis
8 Essentially the plaintiff’s back pain and symptoms commenced with an incident on 4 March 2013, when she was lifting a mannequin back into the display window. She was able to continue working, although in discomfort described by her as being significant, for the rest of her shift. She reported the injury the following day. Her lower back pain persisted. Ultimately she saw her general practitioner, Dr Nerissa McDonald of the Brighton Medical Centre. The plaintiff has sworn in her earlier affidavit that Dr McDonald prescribed medication and arranged for her to undergo investigations. However, the earliest report from Dr McDonald that was placed before me by the plaintiff was that of 21 July 2016 and contains little by way of history of early treatment. Further, the earliest radiological report is that of a CT scan of the lumbar spine performed by Dr Kevin Tsao on 15 January 2014. The conclusion of Dr Tsao was that there were mild degenerative changes of all lumbar discs. There was marked degenerative change of the L5-S1 facet joints and mild to moderate degenerative change of the other lumbar facet joints. There was mild canal encroachment at all levels down to L4-5 due to disc bulge/thickening of ligamentum flavum. There was mild encroachment of the bilateral L2, L3 and L4 exit foramina due to disc bulges. There was no evidence of neural impingement. No other radiological reports relating to the plaintiff’s spine were put before me by the plaintiff.
9 A report from Ms Lisa McCulloch of Normanby Physiotherapy, such report being dated 27 October 2014, was also put in evidence. Ms McCulloch stated that, in consultation with Dr McDonald, it was agreed that the plaintiff would benefit from a graduated return to work program commencing approximately on 30 October 2014. It was stated that this should consist of three hours, five days per week, with an hour per day being added if the plaintiff coped comfortably. Restrictions were placed upon the lifting of weights greater than two kilograms, and upon the carrying of large boxes and overhead lifting. It was also thought that there should be the avoidance of ladders and the use of a pick-up stick for retrieving objects from the floor. In addition, it was said that the plaintiff should not sit for long periods and should avoid low seats. Ms McCulloch stated that the plaintiff would not require lots of hands-on physiotherapy treatment, but would require ongoing Pilates instruction for at least three months to ensure that she had good lumbo-pelvic stability in order to keep her strong and safe at work.
10 Dr McDonald reported on 21 July 2016, observing that the plaintiff had been experiencing back pain on a daily basis since her claim began. She was having physiotherapy that was providing some pain relief and improvement in function and strength. However, unfortunately she had developed severe anxiety in relation to work stressors, leading her to pursue a claim for stress in 2015. For a significant period of time thereafter, she was severely anxious and was unable to leave the house or use public transport. She had been receiving psychiatric care and continued to improve slowly. Dr McDonald felt that the plaintiff was now at a point where she could attend physiotherapy for her back within walking distance of her home. Dr McDonald thought that this would be very beneficial for the back. A weekly supervised physiotherapy session could be in the form of Pilates.
11 On 30 November 2016, Dr McDonald completed a WorkSafe General Practitioner Standard Report. This dealt largely with the plaintiff’s anxiety and depression, at least in part relating to events after her return to work. However, the report also refers to the plaintiff’s lower back pain. Dr McDonald stated that, when this flares up, the plaintiff becomes more anxious, particularly in relation to managing the pain. In relation to her mental condition, the plaintiff had stabilised, but remained highly anxious.
12 A brief letter from Dr McDonald to Xchanging of 1 February 2017 was also placed in evidence. Part of this was virtually identical with what was contained in the report of 21 July 2016. However, Dr McDonald observed that the plaintiff was now at a better level of mental functioning and had been able to “look at” attending physiotherapy. The plaintiff continued to have lower back pain and was weak in the lower limbs as a result of inactivity, secondary to back pain. This had made an impact on her balance and was a possible contributing factor to her recent fall in which she had fractured her knee cap. Dr McDonald asked that weekly physiotherapy be considered. There are no further reports from Dr McDonald. It is not clear whether there has been a request for any, but certainly the amount of information contained in the documents from her that were put in evidence is quite limited.
13 Ms Karen Shaw, physiotherapist, wrote a report to the defendant on 31 July 2017, this being as to the plaintiff’s history and treatment, as well as her progress and the need for ongoing Pilates. Ms Shaw is from the same physiotherapy practice as Ms McCulloch. A certain amount of confusion seems to have been reigning, as Ms Shaw has reported that the plaintiff attended for initial physiotherapy assessment by Ms McCulloch on 14 May 2015. However, it is to be remembered that Ms McCulloch reported to Xchanging on 27 October 2014 in relation to the plaintiff’s graduated return to work and the like. In any event, it seems that Ms Shaw did not see the plaintiff until 20 October 2016, but was in a position to report on treatment and consultations with Ms McCulloch before that date.
14 Apparently on 14 May 2015 the plaintiff described worsening sciatic pain since the injury, further aggravated by chiropractic treatment in April 2015. Her back pain worsened after standing at work all day. She had difficulty sleeping and trouble lying on her right side. The pain started in the lower back and buttock, radiating intermittently to the calf. The pain was worse first thing in the morning and when walking long distances. The plaintiff was taking Mobic or Celebrex, Panadol and Temazepam regularly and used one crutch to assist mobility. On examination, she had a significant limp and her hip joint range of movement was reduced. Tests such as the straight leg raising tests were negative. The plaintiff had a right hip replacement on 31 July 2015 and was rehabilitated through Caulfield Hospital. The report of Ms Shaw goes on to record that the plaintiff returned for physiotherapy to her lumbar spine on 31 July 2015, which seems highly unlikely, given that this is shown as the date of the right hip replacement.
15 Indeed, the sequence of events as recorded in the report of 31 July 2017 is hard to follow. Apparently on 7 November 2014 the plaintiff had attended Ms McCulloch for physiotherapy in relation to cervical spine pain, ongoing back ache and restricted use of her shoulder. When seen on 27 February 2015, the plaintiff was working three days per week for eight hours each time. She was complaining of fatigue in both legs, along with coccyx and lumbar spine pain. She had a reduced range of motion. At some stage approval for the use of orthotics was sought.
16 When seen on 20 October 2016, the plaintiff had suffered a fall on 12 August of that year. She sustained a fractured patella and underwent an open reduction of the fracture on 25 August 2016. She attributed the fall to her right sciatic nerve pain and right leg weakness, describing the leg as giving way. She had also had an episode of anxiety which had delayed intervention. On this occasion, the plaintiff complained of having an ongoing dull ache in her back, along with pins and needles at night. On examination, there was reduction of the “spine active range” and on straight leg raising, particularly on the right. Pilates sessions were commenced and continued into 2017. Subsequently the plaintiff was complaining of left-sided headache and cervical spine pain since the fall of 12 August 2016. The opinion of Ms Shaw was that the plaintiff’s back injury was consistent with what had been described. Her falls may have been due to ongoing lumbar spine pathology. Ms Shaw thought that the plaintiff would benefit from ongoing Pilates. I would repeat that the sequence of events as set out in this report is difficult to follow.
17 A brief report was also tendered from Dr Simone Zanon-Waldren, chiropractor. It relates to three visits in 2014. The plaintiff had right-sided lower back pain with right leg radiculopathy. She described the accident. Upon examination, there was a decreased lower back range of movement and positive lower back orthopaedic tests. Neurological tests were unremarkable. For the moment, I leave to one side reports from Dr Rosemary Stevenson, clinical psychologist, but these could be of relevance to the disentanglement issue.
18 Dr Katriona Ross, also of the Brighton Medical Clinic, has provided a report dated 17 July 2019. She has been the plaintiff’s usual general practitioner, but at the time of the injury the plaintiff was attending Dr McDonald of the same clinic.
19 Dr Ross expressed the opinion that the plaintiff’s sciatic pain had stabilised, but she had not returned to normal. She continues to have constant low back pain and bouts of right sciatica. Dr Ross went on to describe the present symptoms as being of constant low grade back pain and stiffness, with bouts of full right leg pain. She thought that the plaintiff needed to wear orthotic shoes and also to limit her daily activities to avoid too much sitting, standing, bending, twisting or lifting. She stated that the plaintiff was unable to work anymore. The plaintiff was not attending a physiotherapist in Hastings, where she was then living, and was consulting Dr Ross only when she could get a lift from Hastings to Brighton. The last consultation with Dr Ross had been on 6 December 2018.
20 Dr Ross expressed the opinion that the plaintiff was restricted in a lot of her daily activities and would never be able to perform her pre-injury duties, this incapacity being permanent. She referred to the plaintiff as having a demanding physical disability. There was also impact upon her social, domestic and recreational activities. Due to financial difficulties, she had moved in with her brother in Hastings.
21 Dr Ross also referred to the fall which the plaintiff had suffered and which had resulted in an exacerbation of right hip arthritis and a fracture of the right patella, in addition to her having depression and urinary frequency. Dr Ross also referred to the plaintiff as having osteoarthritis necessitating bilateral hip joint replacements. Dr Ross was of the view that, given the marked degenerative changes in the plaintiff’s lumbar spine at the L5-S1 level and the mild spinal canal encroachment, she could require back surgery in the future. Treatment by a rehabilitation specialist was recommended.
22 The plaintiff has also been examined for medico-legal purposes. At the request of her solicitors, she was seen by Dr Peter Blombery, consultant physician, on 21 November 2019, Dr Blombery reporting on 8 December. He took an appropriate history. The plaintiff described to Dr Blombery a fall in August 2016 when she sustained a fracture of her right patella. She attributed the fall to her leg giving way due to sciatica. In another fall in 2017, she injured her right eye and had a retinal detachment. In September 2018, she had sustained a fractured right arm as a result of an incident of family violence involving her brother. She was living with him at Hastings when this occurred. The plaintiff was complaining of ongoing low back pain and pain in the coccyx, this radiating into both legs and being worse on the right. She could be woken from sleep by pain. She was taking Panadol Osteo and Panadeine in addition to other medications for matters such as anxiety, depression, high blood pressure and the like. There was a history of high blood pressure.
23 In the opinion of Dr Blombery, the plaintiff had ongoing pain in her back and hip radiating to her legs as a consequence of previously asymptomatic degenerative changes in the lumbar spine being rendered symptomatic. The situation had been complicated by the development of a pain syndrome, with sensitisation of pain nerve pathways. It was not clear to Dr Blombery as to whether her employment had played a significant role in her increasing arthritis, which had led to the need for a hip replacement in 2014.
24 Given the absence of neural impingement, it was unclear to Dr Blombery as to why the plaintiff had developed weakness in the right leg, with falls. He was also of the view that she had developed significant secondary depression and anxiety. The diagnosis of Dr Blombery was that previously asymptomatic degenerative changes in the lumbar spine had been rendered symptomatic and complicated by her pain syndrome, this situation resulting from the accident. He considered the plaintiff’s medical condition to be stabilised. She would require ongoing treatment of the type that she was presently having. Dr Blombery considered that the plaintiff’s incapacity would continue for the foreseeable future and that the prognosis in relation to her back was poor. He thought it unlikely that any arthritis in the hips would progress very much. Dr Blombery concluded that the plaintiff would require ongoing treatment for pain and for secondary depression.
25 Associate Professor Bruce Love, orthopaedic surgeon, saw the plaintiff at the request of her solicitors on 18 November 2019. It is apparent from the history taken that, at some stage, the plaintiff was referred to Mr Chris Jones, orthopaedic surgeon, who determined that her right hip was of a higher priority (presumably than her back condition) and as a result right hip replacement surgery was performed in 2014. The plaintiff had undergone a left hip replacement some 17 years ago. The plaintiff believed that weakness in the right leg, being a consequence of her back condition, caused it to give way and her to fall. She had not seen Mr Jones in relation to any further surgery because of being fearful about it.
26 Upon examination, the plaintiff was complaining of pain radiating through the right leg with generalised weakness, as well as pain in the lower back. These symptoms were worsened by walking any distance. On examination, there was tenderness in the lumbar spine with moderate restriction of motion. Whilst straight leg raising was restricted, Associate Professor Love was not able to detect any abnormal neurological signs. He noted that there had been no imaging, such as an MRI, of the lumbar spine. He thought that such an examination would be advisable.
27 The diagnosis of Associate Professor Love was that the plaintiff had sciatica consequent upon nerve root impingement in the lumbar spine, but the precise details of that impingement had not been identified. He again referred to the desirability of an MRI. As the plaintiff’s condition had been present for a considerable period of time, it could be considered to be stable. It was unlikely to change significantly in the foreseeable future. He was of the view that serious consideration could be given to offering the plaintiff spinal surgery. He thought that she had been left with significant restrictions in terms of bending, lifting, twisting and the like. She was permanently incapacitated for her pre-injury duties. Without surgery, he considered that her current symptoms were likely to remain with her indefinitely. In the absence of radiology, Associate Professor Love thought that the plaintiff did have degenerative arthritis of the lumbar spine and that surgery was a reasonable consideration.
28 The defendant also arranged medico-legal examinations. Dr Timothy Wood, sports physician, saw the plaintiff at the request of the defendant on 10 December 2014. This is a report which, to a considerable extent, has been overtaken by events. Dr Wood took an appropriate history. At the time, the plaintiff was working three days per week. Her predominant area of pain was in the coccyx, but she was also experiencing left and right sided low back pain with some periodic radiation into the right leg. Dr Wood viewed the plain x‑rays, which showed reasonable spinal alignment and mild disc degeneration, predominantly at L5-S1. The plaintiff complained of being exhausted by her pain and struggling with any significant bending or lifting activities, including household chores.
29 Dr Wood described the plaintiff as having non-specific somatic low back pain. He was unable to say whether she had a bulging disc or pain of facet joint origin. He implicated the accident. He also thought that age deterioration was a factor, as well as referring to anxiety. He recommended a reduction in her consumption of Panadeine and Mobic, suggesting Panadol Osteo be used. He also recommended Pilates, along with the possible use of heat.
30 Mr Roy Carey, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 31 October 2017. One of the principal purposes of this examination appears to have been an Impairment Assessment. She complained of an unusual noise in her back and severe pain associated with the accident. She was taking Lyrica, Valium (to aid sleep), antidepressant medication and Panadol Osteo. There was also a reference to physiotherapy.
31 Mr Carey considered the situation to be stable. The plaintiff complained of constant and severe right lumbosacral/sacroiliac pain and “shocking” pain in the coccyx area. There was also discomfort down the right leg, along with a complaint of discs and lumps protruding in the low back from time to time. She also recounted her falls. Mr Carey noted reports in relation to the plaintiff’s anxiety and mood symptoms, along with references to bullying and harassment. Upon examination there was diffuse tenderness and considerable limitation of movement. Mr Carey noted the CT lumbar spine report of 15 January 2014, which referred to multilevel degenerative change. None of the changes would be considered acute.
32 Mr Carey diagnosed symptomatic lumbar spondylosis, along with features suggestive of a chronic pain syndrome. He considered that the plaintiff’s current situation was produced by the subject injury. He noted that, subsequent to the giving way of the right leg, the plaintiff had sustained other injuries, including a fractured right patella. He went on to describe the diagnosis as being the aggravation of lumbar spondylosis, now producing low back and right lower limb symptoms, in the absence of radiculopathy. The prognosis was for continued discomfort into the foreseeable future. The condition was now stable and unlikely to change substantially. Mr Carey considered that the plaintiff’s clinical history and examination findings were compatible with her specific injury. He made an impairment assessment.
33 Mr Michael Rolston, manipulative physiotherapist, reported to the defendant on 1 February 2018. Apart from other aspects of the history, he noted that the plaintiff had resumed physiotherapy in 2017 and had also received orthotics at that time. Since then she had felt somewhat improved. Her pain had lessened and she felt stronger. However, her capacity to undertake the activities of daily living had not changed. He described her lower lumbar pain as being her worst pain and as being in the nature of an intermittent ache. She experienced coccygeal pain intermittently, along with some leg and foot pain. As at the time of the examination, the plaintiff was having physiotherapy once a week, including the use of Pilates machines. The plaintiff also performed exercises at home. Apart from other medications such as Lyrica and Mobic, she was taking Panadol Osteo approximately three times per day, in addition to Nexium and Valium. In relation to her activities, the plaintiff said that she could sit for 30 minutes maximum before needing to move about. She could perform housework duties, although they are somewhat limited. She could perform light shopping. She could walk for 20 to 30 minutes maximum. She has difficulty getting to sleep if she is experiencing increasing symptoms and may take Valium. She occasionally wakes through the night. However, it is not necessarily the pain that wakes her. She is comfortable lying on her left side, but lying on her right side is painful.
34 The diagnosis of Mr Rolston was of chronic back pain secondary to the accident. Such matters as having been bullied at work and suffering from anxiety may be contributing to her symptomatology. He believed that she would benefit from a more directed, frequently performed program of exercises. He considered that she had a chronic pain condition and that it would be unrealistic to expect her condition to fully resolve.
35 Dr Graeme Doig, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 16 May 2019. Dr Doig noted that the plaintiff was being investigated for right hip problems in 2003, at which stage it was noted that there was severe osteoarthritis of the left hip and moderate degeneration of the right. He also noted that the plaintiff had undergone a right total hip replacement in 2014 and that she suffered ongoing falls as a result of her lower back problem. Her current complaint was of persistent lower back pain, with radiation to the right leg and feelings of instability. She was taking various medications, including Panadeine Forte for her back pain and Lyrica at night to help her sleep. She avoided repetitive bending and heavy lifting.
36 Upon examination, Dr Doig noted that the plaintiff’s straight leg raising was full, with negative nerve root tension signs, and that there was no focal neurological deficit of the lower limbs. He also recorded the limitations associated with her right knee. He noted that the plaintiff appeared to be suffering from pre-existing facet joint degeneration of the lumbosacral spine, which appeared to have been aggravated by the accident. In short, he diagnosed an aggravation of a pre-existing degenerative lumbosacral spine.
37 Dr Doig thought that the plaintiff required the prudent use of simple analgesics and anti-inflammatory medication to control her back discomfort, along with a self-managed exercise program to maintain core strength. He considered that her lower back pain would not resolve in the future and had the potential to deteriorate with time due to the underlying arthritis. Dr Doig thought that she had significant osteoarthritis at the right hip joint, which had played a significant role in aggravating her back condition. The plaintiff also had psychiatric problems.
38 Dr Doig reported to the defendant again on 24 January 2020, having seen the plaintiff on 6 January. The plaintiff was continuing to complain of persistent lower back pain which was worse with activity. There was radiation to the right leg and feelings of instability. No recent imaging had been performed. The plaintiff was continuing to use Panadeine Forte and Lyrica occasionally at night to help her sleep. She was taking other medication, including medications for anxiety and depression.
39 Upon examination, the plaintiff was tender in the lumbosacral region, but with no evidence of a limp. She had similar restrictions in relation to movement, as evidenced upon the earlier examination. Dr Doig again diagnosed an aggravation of pre-existing degeneration in the lumbosacral spine. He thought that the prognosis was guarded and that the plaintiff’s condition had stabilised. She required the ongoing, prudent use of simple analgesics. He thought that no other treatment was required for her back condition, other than to continue to maintain core strength. Dr Doig considered her condition to be primarily pre-existing, but 25 per cent as a result of the lifting at work.
40 I accept the diagnosis of the rendering symptomatic of previously asymptomatic degenerative changes in the lumbar spine. This is the diagnosis of Dr Blombery. In effect, it is not vastly different from the diagnosis of Associate Professor Love of sciatica consequent upon nerve root impingement in the lumbar spine, the precise detail of which has not been identified. Dr Blombery’s diagnosis is in turn consistent with the MRI findings of 15 January 2014. It is also similar to the diagnosis of Dr Doig of aggravation of pre‑existing degeneration in the lumbo-sacral spine.
41 Thus, the injury is in the nature of the aggravation of a pre‑existing condition. However, I accept that the back symptoms from which the plaintiff now suffers were not present prior to the accident.
42 I am also satisfied that the consequences from which the plaintiff now suffers are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Blombery has expressed the view that the plaintiff’s medical condition has stabilised and that her incapacity in respect of her social, domestic and recreational activities will continue for the foreseeable future. Associate Professor Love has stated that, without surgical intervention (which is not contemplated), the plaintiff’s current symptoms are likely to remain with her indefinitely, whilst Mr Carey, examining on behalf of the defendant, referred to continuing discomfort for the foreseeable future. Dr Doig, similarly examining, referred to a guarded prognosis and to the plaintiff’s condition as having stabilised.
43 As there is no reliance upon paragraph (c) of the definition, consequences of a psychological or psychiatric nature are not to be taken into account. However, a question of disentanglement does arise. In her report of 17 July 2019, Dr Ross referred to the plaintiff consulting a psychologist and psychiatrist regularly. Dr Nigel Strauss, consultant psychiatrist, saw the plaintiff at the request of her solicitors on 22 October 2019. The history taken by Dr Strauss focussed not only upon the injury, but also upon alleged bullying at Maggi and the unfair dismissal litigation which ensued. The plaintiff was having regular treatment from a psychologist and saw a psychiatrist intermittently.
44 Dr Strauss considered that the plaintiff suffered from a major depressive illness. He also thought that her emotional distress accounted for at least some of her ongoing back and leg pain. He expressed the belief that employment is a significant factor in her major depressive illness, but that specifically includes the bullying. Dr Strauss considered the plaintiff to be totally and permanently incapacitated on psychiatric grounds alone and it was his opinion that her situation is stable, with the possibility of further deterioration.
45 Dr Rosemary Stevenson, clinical psychologist, has treated the plaintiff upon referral from Dr McDonald. Dr McDonald had noted that the plaintiff presented with increased symptoms of anxiety and high distress in relation to her WorkCover claim. The plaintiff had negative thoughts about her workplace injury, but was also particularly distressed by the bullying and the like. At one stage the plaintiff took time out from therapy as she was overwhelmed by her anxiety symptoms. As at 10 March 2016, it was the opinion of Dr Stevenson that the plaintiff was not able to return to her pre‑injury duties until her physical and mental health capacity was reviewed in the future. Her current treatment needed to be continued.
46 A second report from Dr Stevenson is dated 16 September 2016. Dr Stevenson thought that the plaintiff had shown improvement in her general functioning, but lacked the confidence to consider going back into the workplace without anxiety. She expressed strong emotions about her being treated unjustly by Maggi. Whilst there had been improvement, the plaintiff was still exhibiting symptoms of anxiety and became emotionally agitated and distressed when there was a discussion concerning concrete steps towards returning to the workplace. She continued to be unable to perform her pre‑injury duties until her physical and mental health capacity was reviewed at an undetermined future date.
47 I would point out that these reports are now somewhat dated.
48 Thus, the situation is not necessarily a simple one, particularly bearing in mind the decision of the Court of Appeal in Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67. If the opinion of Dr Strauss is to be accepted, and there is no reason not to, the plaintiff has a major mental illness which is partially consequential upon the accident. However, no reliance is placed upon it and it is to be disentangled and disregarded. It shall be disregarded but the plaintiff’s mental condition is a complicating factor. The situation would be more difficult if the plaintiff was also seeking leave in relation to loss of earning capacity. As she is not so doing, the consequences of the organic injury only shall be, and have been, taken into account.
(e) Other developments since the accident
49 For a period of a couple of months after the accident, the plaintiff continued working with difficulties. Her hours and duties were modified in May 2014 and she was certified unfit for work in June 2014. She was off work until October 2014 and during this period had hip replacement surgery.
50 The plaintiff continued to work at Maggi on a part-time basis until 27 April 2015, when her services were terminated. Without going into the circumstances at any great length, it was during the period of re-employment that problems relating to alleged bullying and the like arose. The termination issue was taken to Fair Work Australia by the plaintiff and, as I understand it, the termination was withdrawn. The plaintiff resigned. She has not worked since.
51 Anxiety and depression certainly played a large role in the plaintiff’s medical condition at this time. She was treated by psychologist, Dr Rosemary Stevenson, on a regular basis. Because she was overwhelmed by anxiety symptoms, this treatment was decreased. The course of it has been described above. At least some of the plaintiff’s anxiety centred on the WorkCover process. The diagnosis of Dr Stevenson was of an adjustment disorder, anxiety and mood symptoms.
52 In August 2016, the plaintiff fell and fractured her right patella. She claims that this fall was caused by or related to her back injury and associated weakness in the right leg. Whether she has established that this can be treated as a consequence of the back injury shall be discussed subsequently.
53 The plaintiff had a fall in in late 2017 in which the she suffered a right eye injury, namely retinal detachment. On the basis of the available evidence, I am not of the opinion that this can be linked or attributed to the accident.
54 At some stage, the plaintiff moved to Hastings and there she shared accommodation with her brother. I gather her economic situation effectively forced this upon her. This was not a happy arrangement. Apparently he has a problem with substance abuse. In February 2019, he became violent towards her, breaking a bone in her right hand. The police became involved and the plaintiff obtained a restraining order. Her brother moved out in December 2019. She moved to Crib Point. Her affidavit of 5 February 2020 makes some attempt to link these events to the back injury and her resultant straitened circumstances. However, Mr Fitzpatrick ultimately made it clear that this tentative line of causation would not be pursued – see T73 and 74.
Ruling
55 I am of the opinion that whether the plaintiff’s application rises or falls depends upon her back injury and the consequences thereof.
56 The fractured patella sustained in the fall in August 2016 does not seem to me to have been established as a consequence of the back injury. It may well be the belief, honestly held, of the plaintiff that the discrete leg injury suffered in the fall is related to the back injury. She had undergone a right hip replacement on 31 July 2015, this being performed by a Mr Chris Jones, who also performed the open adduction and internal fixation of the fractured patella on 25 August 2016. There is no report from that surgeon. To Dr Blombery, the plaintiff stated that her right leg had given way due to sciatica. To Associate Professor Love, she described the leg giving way due to weakness. Her then general practitioner, Dr Ross, referred to the fall as occurring as a result of the plaintiff being on medication.
57 Thus, there is some uncertainty surrounding the cause of the fall. There is nothing from the operating surgeon as to the contemporaneous history given, the success of the surgery and the like. Dr Blombery, examining at the request of the plaintiff’s solicitors, has stated as follows:
“There is and was no evidence of neural impingement at the time and it is unclear as to why she developed weakness in the right leg with falls.”
58 Associate Professor Love, similarly examining, and commenting on sciatica, has pointed out that the precise detail of nerve root impingement has not been identified and suggested an MRI examination. That has not been performed.
59 Further, the degree of symptoms emanating from the plaintiff’s right knee is not altogether clear. In the plaintiff’s more recent affidavit of 5 February 2020, there are substantial references to back pain “and associated right leg pain”. There is a reference to pain in the left knee in relation to the fall in 2016, but that may be a typographical error. In any event, the description of associated symptoms is pain on bending or squatting or after standing or walking for a long period.
60 In the circumstances, including the complete absence of information from the treating surgeon, I am not satisfied that the knee injury sustained in the fall of 25 August 2016 is a consequence of, or is related to, the accident. In any event, the consequences of it are not described as contributing a substantial amount to the overall picture. The opposite is nearer the truth. In summary, I shall have no regard to them.
61 I am even more emphatically of the view that the eye injury falls into the same category of consequences which have not been established. The very brief report from Dr Mark McCombe, the treating surgeon, simply refers to retinal detachment surgery. I have already dealt with the arm injury sustained in the assault by the plaintiff’s brother.
62 I turn now to the back injury.
(1)I am of the view that the plaintiff did her best to give evidence in an honest fashion. At times she may have been a little confused, but a lot has happened in her life in recent years. I would refer to the observations which I have set out in paragraphs 5 and 6 above.
As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] VR 439 at [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance, ...”
In summary, I have no reason to believe that the plaintiff has done anything other than her best to give an honest account of her symptoms and restrictions.
(2)The plaintiff has consistently complained of constant, aching pain in the back, which she rates as being 9/10 at the worst and 5/10 at its best. She has frequent flare ups. Dr Blombery has referred to ongoing pain because of the persistent sensitisation of pain nerve pathways. To Dr Doig, examining on behalf of the defendant, the plaintiff described persisting lower back pain with radiation to the right leg. This is not a complaint which he appears to have rejected, although he attributed most of it to pre‑existing degeneration. To Mr Carey, similarly examining, the plaintiff described lumbo-sacral/sacroiliac pain which was constant and severe, as well as shocking pain in the coccyx area. It is to be remembered that Mr Carey seems to have had no problem with the plaintiff’s credibility, describing her as “a pleasant witness to her problem”. Indeed, in his report, he later referred again to her “constant symptoms in the low back and right lower limb”. Mr Michael Rolston, physiotherapist, also examining on behalf of the defendant, stated that the plaintiff suffers from chronic back pain secondary to the accident. The CT scan, although somewhat dated, showed marked degeneration of the L5/S1 facet joint.
In short, I accept that the plaintiff has constant, chronic lower back pain, with some radiation into the right leg. As was said in Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
(3)The plaintiff has sworn that her back pain wakes her most nights. She has referred to this in each of her affidavits. In Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Maxwell P stated as follows:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
(4)I accept that there has been interference with the plaintiff’s everyday activities as a result of her back pain. Her pain worsens with bending at the waist or lifting anything heavy. Living by herself has made it difficult for her to avoid lifting. Given that she lives alone, it is easy to accept that there would be substantial interference with her everyday activities.
(5)The plaintiff takes a reasonably high level of medication, albeit that some of this is also of benefit for her other complaints. However, the taking of this medication would appear to have commenced with the fall. She takes Lyrica, Mobic and Panadol Osteo, the last mentioned being on a daily basis. She takes two tablets every six hours. Associate Professor Love has raised the prospect of back surgery, but this does not seem to be a possibility which the plaintiff intends to pursue.
(6)The plaintiff is a person who now lives on her own in a small country town. This doubtless does not assist in relation to her capacity to manage her pain and engage comfortably in everyday activities. I am not suggesting that this is a consequence of the accident. However, it is also trite to say that the defendant must take the plaintiff as it finds her. In this instance, at the time of the accident the plaintiff was a 64 year old woman living on her own. Her situation has since deteriorated.
(7)It is also to be remembered that the plaintiff suffers not just from constant low back pain, but also from right leg pain. I accept that this results from and is part of the injury. The plaintiff’s general practitioner, Dr Ross, has described her as suffering bouts of full right leg pain. Associate Professor Love has referred to sciatica consequent upon nerve root impairment in the lumbar spine. Mr Carey, examining on behalf of the defendant, stated that the plaintiff has constant symptoms in the low back and right lower limb. It is clear from his report that he regards the two as related and separate from the subsequent fractured patella. In short, the sciatic pain experienced in the right leg is an additional and important factor.
63 In summary, I am of the view that the plaintiff has discharged the burden of proof in relation to pain and suffering resulting from injury to the low back suffered in the accident. That is so even though the amount of treatment she has received in relation to it is not great and there seems to have been no specialist treatment directed to the injury. However, for the reasons set out above, I am of the view that, in this somewhat unusual case, the plaintiff has satisfied the burden of proof.
64 I would repeat that, in arriving at this conclusion, I do not take into account the subsequent injury to the patella or the injury to the eye.
Conclusion
65 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring an action for pain and suffering damages. I shall hear the parties as to any further orders that are required.
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