Johnson v Victorian WorkCover Authority

[2020] VCC 681

B

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-04735

CATE (CATHY) ANN JOHNSON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	30 April 2020
DATE OF JUDGMENT:	27 May 2020
CASE MAY BE CITED AS:	Johnson v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2020] VCC 681

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – impairment of the lower back – causation –pain and suffering only

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kavanagh v The Commonwealth [1960] 103 CLR 547; Zlatevska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141

Judgment:                Leave granted to bring proceedings for damages for pain and suffering.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M A Nightingale with Mr E Makowski	Arnold Thomas & Becker
For the Defendant	Mr M Clarke	Wisewould Mahony

HER HONOUR:

Preliminary

1 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with Barwon Health (“the employer”) between 21 May 2012 and September 2013 (“the period of employment”).

2       The plaintiff seeks leave to bring proceedings for damages for pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4       The body function said to be impaired is the lumbar spine.

5       The impairment of the body function must be permanent.

6 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

7       The plaintiff bears an overall burden of proof upon the balance of probabilities.

8 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:

“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”

9       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

10      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2010) 31 VR 1

11      The plaintiff swore two affidavits.  She was cross-examined.  Also in evidence were medical reports and other material.  I have read all the tendered material.

12      Causation was in dispute, not only insofar as whether there was an injury at work, but also whether any spinal impairment as at the date of hearing was related thereto.  Seriousness was also in issue.[3]

[3]Transcript (“T”)3

The Plaintiff’s evidence 

13      The plaintiff is presently aged fifty-three, having been born in October 1966.

14      Having completed Year 10, the plaintiff worked in a variety of jobs, including as a cleaner, working at Coles packing shelves and working at Steggles as a process worker; however, she had always wanted to be a nurse, although her then husband, whom she divorced in 1996, did not want her to go down that career path.  After their divorce, she undertook a Certificate IV in Nursing at TAFE.

15      The plaintiff then had further time away from the workforce raising her family and returned in 2000 as a Division 2 Nurse.  She was then working, juggling raising a family and also in the process of renovating her house.

16      The plaintiff did a five-year Bachelor Degree in Nursing at Newcastle University with post graduate study for six months.  She then moved to Tasmania, where she worked for four years as a Division 1 Nurse at Calvary Private Hospital. 

Pre-injury health

17      The plaintiff confirmed she did not have any difficulties performing physical work before her job with the employer and had no issues with her back.  There was only one problem with her back in that time.  In 2004, working at Lake Macquarie Hospital, the plaintiff experienced a twinge in her back when moving a resident.  She rested for a day and took some painkillers and the pain resolved.  She completed an incident report, put in a WorkCover claim and had a couple of days off work.  There was no medical treatment.  She then did hands-on nursing.  Otherwise her back was okay when she started with Barwon Health.[4]

[4]T23

18      The plaintiff was cross-examined about mental health issues detailed in her clinical file at Tremaur Medical Centre in Launceston, where she attended from 2009.

19      On 14 April 2010, it was noted the plaintiff’s life was stressful and she had taken a week off work as a registered nurse at St Luke’s.  Her mother, who lives in Newcastle, has metastatic pancreatic cancer.  The plaintiff had also just found out her fiancé was married.

20      On 17 February 2011, it was noted:

“monday – meltdown

been battling for many months – 2010 split partner + mum died

working 50-60 hrs a weeks

...  .”

21      On 14 April 2011, it was noted:

“went to nsw for a few days

insomnia - poor secondary sleep

agitation / anxiety / forgetful / poor memory.”

22      Entries of a similar nature continued until 12 January 2012.  The plaintiff was still suffering depression, unable to cope with stress and she had resigned from Calvary Private Hospital.  She could not cope with acute high stress positions and had signed up for nurse care personnel at UnitedHealthcare.  She was diagnosed with anxiety with depression.

23      As of 14 February 2012, it was noted the plaintiff continued to search for part-time work, up to twenty hours weekly, in non-stressful occupations.  She was considering moving interstate to find work; she would take her younger son and leave the middle son in the care of an elder sibling.  Her mood was still prone to anger outbursts and on examination, she was frustrated.

24      On 7 March 2012, it was noted the plaintiff needed a further One Path insurance form.  She had tried to stop both Zoloft and Epilim together.

25      Centrelink certificates during 2011 to early 2012 described current symptoms as severe insomnia, anxiety and depression.

26      The plaintiff agreed she sometimes found the surgical nurse role at Calvary  Hospital stressful.  She did not leave that job because she could not cope with it anymore because there was too much stress – “not quite”.[5]   She had had a bit of a meltdown when her mother died at the end of 2010.  She was particularly vulnerable to depression and it hit her quite hard.  With the added stress of working fifty hours a week, she just could not do it at that time.[6]

[5]T12

[6]T13

27      The plaintiff agreed, as her doctor noted on 2 September 2011, that she then said she felt she would never go back to surgical nursing as it was far too stressful.[7]  She resigned and could not cope with acute high stress positions.[8]

[7]T13

[8]12 January 2012 – Tremaur Medical Centre

28      The plaintiff had anxiety and depression since about 2000.  She had no particular difficulty dealing with stressful jobs.  She had not always struggled in jobs that were stressful or demanding.[9]  She disagreed, to a point, that she had difficulties from 2011 dealing with a stressful job.  The point was, the job was not causing the stress, but it was her mental health issues.  Surgical nursing was not stressful until she had her breakdown after her mother’s death.  She then took a period of about six to eight months off work.[10]   

[9]T14

[10]T15

29      The plaintiff disagreed that job was so stressful she needed to leave the field of surgical nursing behind and move to a less stressful position.[11]

[11]T15

30      The plaintiff agreed that as at 4 February 2012, she was continuing to search for part-time work, up to 20 hours a week, in a non-stressful occupation.[12] She was also having difficulty with insomnia; it was not something she particularly struggled with over the years, but she was at that time.  It did improve after she moved to Geelong.[13]

[12]T15

[13]T16

31      There were no other stressors in the plaintiff’s life in Tasmania she was trying to get away from.  She moved to Geelong and started work with Barwon Health on 22 May 2012 as she felt she needed a change.[14]  She had initially planned to work at Ford as a registered nurse in the medical centre.  She thought the job was at Geelong, but she was required to work at Broadmeadows so she did not start there.[15]

[14]T16

[15]T18

32      By the time the plaintiff got to Geelong she was in a really good place.[16]

[16]T74

Barwon Health

33      The plaintiff worked for the employer out of Geelong Hospital in the casual pool, which included working at Blackiston Lodge, which had a psychogeriatric unit and dementia unit, and also at the Grace McKellar Centre. 

34      The plaintiff eventually became permanent part time at Blackiston Lodge, working three days a week, although she ceased work on 25 November 2012, when she moved back to Newcastle for three months for family reasons.[17]

[17]T18

35      The plaintiff returned to Geelong on about 15 March 2013 and worked a second stint with the employer at Blackiston Lodge from March to September 2013 on a part-time basis.  Although she was contracted to work eight-hour shifts three days a week, she often did extra hours and picked up extra hours and ad hoc shifts along the way.

36      Although some of the plaintiff’s work was supervisory, such as dealing with staff rosters, she estimated that about 75 per cent of work at Blackiston Lodge was hands on.  She generally worked afternoons.  The work was often difficult and involved having to manhandle residents who suffered from dementia.  Some were quite aggressive and they often threw themselves on the floor and were resistant to care.[18]  Her duties included showering, dressing and toileting residents, turning them over in bed, putting them to bed and mobilising them after surgery.

[18]Incident Report – physical aggression from a resident on 26 May 2013

37      While the employer had slide sheets and lifting machines, they were not always practical to use, and it was common practice to make a judgment call to lift without the use of equipment.  Also, it was a particular problem when staff had to lift difficult residents off the floor.

38      In that regard, although the employer had a general no lift policy, there were no instructions what to do when a resident was on the floor and resisting, and staff had to do the best they could, and could not just leave the residents on the floor.

39      The plaintiff estimated staff could be picking residents off the floor at least every second day.  They did not receive any specific training in dealing with dementia patients.  Other physical tasks including pushing heavy clunky medication trolleys around on carpet and vinyl, often around corners, which could be difficult.

40      The only breaks were a half-hour tea break and ten-minute afternoon tea break.  Otherwise there were no breaks nor any staff/patient ratios in place.

Onset of back pain

41      As a result of her duties with the employer, the plaintiff started to experience back pain, which she first noticed on Saturday, 21 April 2013, when doing evening shift.  She went home and went to bed that night, and the following morning was in such pain she could hardly get out bed and had to take Panadeine Forte.

42      The plaintiff went to Belmont Bulkbilling Clinic (“Belmont”) the following Monday, where she saw Dr Ho, who prescribed Endone.

43      The relevant entry on 23 April 2013 set out:

“History:

Lumbar pain last night

took Panadeine forte 6 tabs since last night

Wasn’t working yesterday

had a cruisy day

Took some clothes to>wash, weren’t heavy

didn’t lift anything heavy

BO PU normal

no lower limb symptoms.”

(sic)

44      It was noted the plaintiff was very tender on examination and there were limited lumbar movements.  Bilateral lumbar back strain was diagnosed.  Zoloft was ceased and Endone, 5 milligrams, one, twice for breakthrough days was added.

45      This note setting out the plaintiff’s pain commenced on Sunday night was “written wrong”.  She was so confident about that because she distinctly remembered waking up the morning after work and not being able to get out of bed, and the back pain was so severe, it was something she would never forget.  She was sure she would have mentioned she worked the night before and she got up the next day and could hardly walk.[19]  She had always worked Saturday shifts.  She denied she was trying to relay the story to implicate her work in her back condition.[20] 

[19]T49

[20]T50

46      The plaintiff also denied she geared her version towards supporting a link with work when that was just not the case.  It was absolutely correct she awoke on Sunday in extreme pain, but she did not go to the doctor then, because she could hardly move.  She took some Panadeine Forte which she had from a 2012 knee injury.[21]

[21]T51

47      The plaintiff experienced a sudden onset of acute back pain.  She had worked the Saturday and felt the pain the next morning.  She did not remember feeling pain at work that night.  She could not remember the exact date, but it was around the end of April.  She did not get that date from her medical records.[22]

[22]T48

48      After that Monday, the plaintiff just tried to keep on working.  She could not recall when she missed time off work.[23] Notwithstanding the pain, she  continued to work, simply putting up with it and thinking it would go away.  She did not complete an incident report as there was no one incident that caused her back pain, but rather her duties generally.

[23]T52

49      The plaintiff agreed she never reported suffering an injury to the employer.  She did not complete a claim form while she was still working there.  She had some time off intermittently when her back was in too much pain in the period between April and September 2013. 

50      It was incorrect the plaintiff had never told anyone at work she had a back issue.  She had told her workmates and her boss, Leonie Whittler.  She did not tell them it was caused by work, she just mentioned she suffered some sort of back pain recently and it was quite sore when she was working.[24] When they were doing heavier lifting, the plaintiff had to get co-workers to do most of the work because her back hurt.[25]

[24]T24

[25]T25

51      The plaintiff was aware the employer had a system for completing incident reports.  She denied she did not complete one because she never related her back injury to her work.  She did not do so, because there was no specific incident that occurred.[26]

[26]T25

52      The plaintiff agreed she was experienced working in hospitals with people who had injuries.  She had had prior experience with WorkCover claims.  There was no incident to report as an incident.  She did not tell Barwon Health she had hurt her back at work because she “just didn’t”.[27] She was not sure why she did not record it.[28]

[27]T25

[28]T26

53      The plaintiff also thought the pain would just go away like it did “last time”, and that the pain would resolve.  The “last time” she felt a twinge in her back and it was an event which triggered that incident report.[29]

[29]T26

54      When it was suggested if she had missed time from this incident she would have put in a claim, the plaintiff said she just wanted to keep working as best she could.  It did not cross her mind at that time to put in a claim, even though she was raising two children at home on a single income and she was missing days from work because of her back.  In financial terms, she was able to work most of the shifts, but could not do the extra shifts.[30] 

[30]T27

55      When it was suggested to the plaintiff if she had thought she had hurt her back at work she would have put in a WorkCover claim, she replied:  “Well I did not.”  She disagreed, whilst still working with the employer, she thought her back pain had nothing to do with that job.[31]

[31]T61

56      The plaintiff ultimately competed a Claim Form on 11 September 2014.  In that form, she described suffering an injury to her lower back, attending to patients in residence and assisting patients from the floor.  She was doing lifting when injured. 

57      The plaintiff also described the location of the injury as the residents’ sitting room, but could not recall why she made that entry.  There was a particular resident that they used to assist off the floor in that area and that possibly had something to do with her injury.  Possibly, this was something that regularly happened in that area and she thought more likely it could have been the cause.  She was not sure why she wrote it, because it was a long time ago, but that was a possibility.[32] 

[32]T31

58      The plaintiff did not know why she did not complete the part of the form regarding the time of injury or when she first noticed injury.  She knew exactly when she suffered injury – on the day after her injury occurred, about the end of April.  She had not experienced pain at work.  It was not because she just did not know at the time of filling out the form when she had first noticed any injury or condition of her back.  It was just an oversight – she left it blank.  She did not put in she had stopped working because she was still working.  She did not have help from a solicitor completing the form but she had solicitors at the time.[33]  On the form, she explained the delay –“was on days off and GP stated he did not think it was serious and rest would improve it”.[34]

[33]T32

[34]T33

59      The plaintiff confirmed her pain was very, very excruciating at that time and it did not go away completely.[35]

[35]T33

60      While the plaintiff agreed it is probably correct she would have input into her own medical care given she is a nurse, she did not take action until September 2014 because she just tried to get on with working and hoping it would eventually go away.  She tried treatment and different medications, but it never went away.  Hardly ever did she have days without pain.  She basically kept working all the way through until today.[36]

[36]T34

61      The plaintiff is a nurse, not a doctor.  She “kept going back repeatedly when the pain never stayed away, when it just kept getting exacerbated by doing really a lot of things.”  Her doctors sent her for investigations and then she had a diagnosis which proved she had a serious injury.  Up until then, she did not know what was going to happen, but she was hoping it would resolve with analgesia and rest, but that did not happen.[37]

[37]T44

62      The plaintiff answered “no” on the Claim Form to any previous injury or condition.  She did have one claim, but did not receive anything for it, so it was not relevant.  It was a separate injury.  It is not the same as the one in this case.[38]  She has not had much familiarity with WorkCover in her nursing role.[39]

[38]T35

[39]T37

63      The plaintiff just put up with the pain and took medication, including Endone and Celebrex.[40]  However, her pain did not abate, and on 15 July 2013, she attended a chiropractor at Spinal Dynamics.  She thought she only saw the chiropractor twice, not three times, as was reported.  She disagreed that treatment made her feel great and pain free, as it actually made her worse.[41]

[40]T52

[41]T55

64      On 21 October 2013, the plaintiff saw Dr Yoong, general practitioner, with ongoing pain in her lower back.  He organised an x-ray, following which she was reviewed on 22 October 2013 and referred for physiotherapy.  That entry set out:

“Was here for lumbar pain 6/12 ago

Pain comes and goes.

Been taking Panadeine/Nurofen and didn't help

Took Endone and helped 50%

Worry about the pain affecting her work

… .”

(sic)

65      The plaintiff denied, as was recorded on this and later examination,[42] that her pain at that time “comes and goes”.  She recalled having pain all the time at differing levels.  She cannot comment on what the doctor had written, that was not her memory of it at all.  Sometimes the pain was more manageable than others.[43]

[42]16 January 2014

[43]T59

66      The plaintiff stopped Endone because she got used to it and it did not help.  She did seek further treatment.[44]

[44]T57

67      While there was a referral, the plaintiff did not have physiotherapy because she thought that treatment would involve exercise and she could not do it.  The pain was bad but she did not realise the actual injury was quite significant.[45]

[45]T58

68      The plaintiff again saw Dr Yoong on 29 October 2013 when he prescribed MS Contin, 5 milligrams slow release, for back pain and the plaintiff was given a certificate; however, the pain continued unabated and she continued to attend that clinic throughout the latter part of 2013 and 2014, and on 1 February 2014 she was prescribed Tramadol. 

69      The note of 1 February 2014 set out the plaintiff attended for “persistent back pain, worsening and even nocte”: 

“No History:

trauma, XRay nad

Originally lower lumbar; now thoracic

Using Mobic and Endone reluctantly

Requesting further Ix-feels something is quite wrong

… .”

70      An MRI scan was requested and prescriptions printed for Voltaren, Endone and Tramadol.

71      The plaintiff agreed at that stage, she thought she had a significant back injury.

72      On 20 February 2014, it was noted Voltaren and Panadol had worked a treat for the plaintiff’s back pain and it goes to 2 to 3 out of 10 with this combo, MRI scan was due in March.  She was in some pain during examination and given a prescription for Tramadol.

73      On 13 May 2014, the plaintiff came for a repeat script and “was known to have back pain”.  She needed more Voltaren and had been on Zoloft for depression.  An ultrasound of the right buttock was requested.

74      On 16 May 2014, the plaintiff attended for back pain.  It was noted she had been unable to go to work as she had a crook back.

75      The plaintiff’s back pain continued.  On 29 May 2014, she had a CT scan, which showed bulges at L4-5 and L5-S1.  On 25 June 2014, she had a CT-guided facet joint injection, which really did not seem to help her pain. 

76      On 28 August 2014, the plaintiff first saw Dr Hargreaves, general practitioner, who recorded:

“Lumbar back pain severe again.  Has booked for MRI L spine  Wednesday.  Try short course pred in interim.”

(sic)

77      The MRI scan on 3 September 2014 revealed an L5-S1 disc bulge and arthropathy at L4-5. 

78      Dr Hargreaves noted, on 8 September 2014:

“MRI defines change at.L4/5 and L5/S1 likely to be causing pain.  Extended (>45 min) consult going through approach to longer term management.  She is considering WorkCover claim, I have advised against this, but left it up to her. 

To commence stretched and core stabilising exercise.

Centrelink cert.”

(sic)

79      On 8 September 2014, when they discussed the MRI scan, the plaintiff agreed she and Dr Hargreaves had an extended consultation discussing management options and considered WorkCover.  He had advised her against that but had left it up to her.  She believed that was the first time she was having thoughts of WorkCover.  From what she could remember, basically he told her that people who went to WorkCover failed to be motivated to work.[46]

[46]T41

80      The plaintiff could not remember talking to Dr Hargreaves about whether the injury was work related or not.  She could not remember whether she particularised her duties with the employer.  She could not remember the conversations; they were a very long time ago.  She did not remember whether she told Dr Hargreaves it was work with the employer.  She possibly did tell him about the onset of her back pain.   She cannot remember going through the records with him.[47] 

[47]T42

81      The plaintiff was taken to the letter that her solicitors, Arnold Thomas & Becker, wrote to WorkCover explaining the late reason for filing her claim.  She did not know how serious her condition was until she had the MRI scan.  She did not really have a lot to do with WorkCover.[48]

[48]T42

82      The plaintiff confirmed she thought the injury was only muscular until the MRI scan.  She denied it came and went; it was pretty much there all the time.[49]

[49]T43

83      It was her back, not a stress claim, that prompted the plaintiff to see her solicitors and they did not handle the stress claim.[50] 

[50]T47

84      The plaintiff attended her general practitioner for back pain on 11 September 2014.

85      On 25 February 2014, Dr Hargreaves noted that a DSP application had been completed and the plaintiff will pursue CT lumbar spine “with a view to ? guided steroid injection”.

86      The plaintiff’s DSP application was rejected.[51] She made the application because she was really unwell and her back was “absolutely killing” her, as well as her issues with harassment and bullying.  She could not remember why it was rejected.[52]

[51]T61

[52]T62

87      The plaintiff also submitted an income protection application which was accepted and limited payments made.  In 2015, she was also in receipt of sickness benefits from Centrelink.

88      On the visit of 23 March 2015, Cymbalta, Endone, prednisolone and Zoloft were ceased.

89      On 3 June 2015, Dr Hargreaves noted:

“Imaging suggestive of facet joints at L4/5 as pain trigger.  For imaging guided steroid.  Has been working as pension application rejected and pain uncontrolled.  STartTargin. 

(sic)

90      On 11 October 2015, Dr Hargreaves noted:

“lower back pain was better for 1- 2 months post injections, but now severe again.  Allodynia component prominent.  Samples lyrica to trial, and for further injections if this ineffective.”

(sic)

91      On the 2 November 2015 attendance for back pain, it was noted there was a tremendous response to Lyrica.

92      On 27 January 2016, when the reason for visit was depression and anxiety, it was noted the plaintiff was starting a job next month.  On 8 February 2016, depression was better.

93      The plaintiff was seen by Dr Gupta, general practitioner, on 9 May 2016, who noted:

“Been well except.for persistent pain left lower back and left groin

Not lifting any patients "

Cannot walk/sit for long time more than 5-10 mnts max”

(sic)

94      The plaintiff’s dosage of Lyrica and Naprosyn was changed.  It was noted “Does not want it to be WorkCover”.  She was referred to Mr Spittaler, neurosurgeon.

95      The plaintiff first saw Mr Spittaler on 3 August 2016.  He organised an MRI scan on 9 August 2016, which revealed advanced L4-5 facet joint arthropathy in addition to a small paracentral bulge at T11-12.

96      On review on 30 August 2016, Mr Spittaler discussed the possibility of L4-5 fusion surgery and explained the risks with such a procedure, and the plaintiff was not inclined to undergo same.  He also suggested the plaintiff try and lose weight.  She had been putting on weight as she was not as active as she used to be because of back pain.  He is the only specialist she has seen.[53]

[53]T64

97      On 14 December 2016, Dr Gupta noted the plaintiff was still in a lot of pain, and Lyrica did not help much.  She was working, but could not walk because of the pain.  The reason for the visit was depression/anxiety.

98      The plaintiff attended Hunter Valley Medical Practice in Cessnock in New South Wales from 11 February 2017 to 31 July 2019.

99      On the first attendance, in terms of history, it was noted disc bulging at L4-L5 and T1-2 and had seen a neurosurgeon.  There was moderate facet joint degeneration at L4-5.

100     On examination on 14 February 2017, it was noted the plaintiff had tried several medications, like Endone, Targin, OxyContin, NSAIDS, steroid injection as well, now complaining of pain in lower back and requesting medication.  There was restricted movement of lower back due to pain.

101     On 6 June 2017, it was noted, ongoing chronic lower back pain, been having exacerbations of lower back pain often, denied sciatica.  Previously was on S8 medications and on Lyrica.  Did not want any medications now, wanted to try physiotherapy.  The reason for visit was lower back pain and there was referral to Mr Stewart Burns, physiotherapist. 

102     On 14 June 2017, there was a complaint of lower back pain.  “Got aggravated after walking.  Severe pain.  Denied trauma.” On examination, there was midline tenderness.  The diagnosis was back pain, and Mobic and Panadeine Forte were prescribed.

103     There was mention of chronic lower back pain with worsening symptoms recently on 19 June 2017 and the plaintiff was due to see a physiotherapist then.  The reason for visit on 28 June 2017 was back pain.  It was noted that the plaintiff had an office-based job, mostly involved in patient care.  She was nurse manager at Calvary Nursing Home and was happy to work four hours a day, alternating days.  She was told not to lift, bend or twist, and to have rest breaks, and continue physiotherapy.

104     Back problems were detailed on 4 July 2017.  There was a report of intermittent back pain on 25 July 2017 and Mobic was prescribed.

105     Thereafter, attendances related mainly to mental health and gynaecological issues.

106     In December 2018, the plaintiff had an MRI scan, which revealed an L4-5 spondylolisthesis, together with a disc bulge at L5-S1.

107     As at May 2019, the plaintiff was seeing Dr Weerabaddanah at Hunter Valley Medical Practice.  She was entitled to five physiotherapy visits a year, but only went when absolutely necessary.  She had given up painkillers as she found they simply did not work; however, she resorted to drinking in excess, which was not good for her, but she found it was the only way she got some pain relief.

108     The plaintiff has not had a further facet joint injection because the 2015 injection did not provide long-lasting relief and was quite invasive, and she was not keen to have another one.  She had used stronger medication for her back pain in the past, but did not take it, as she does not believe taking regular strong medication is an appropriate way to cope with permanent back injury.

109     The plaintiff does not have ongoing treatment for her back or take any regular medication.  She manages it by avoiding activities and modifying her behaviour.[54]

[54]T66

Post-injury work

110     Following injury, the plaintiff attempted to work as a nurse but found she had to rely on Endone and came to the realisation she was incapable of performing nursing duties.

111     In about September 2013, the plaintiff’s permanent part-time contract with Barwon Health expired.  From then until December 2013, she undertook some casual on-call agency work with Barwon Health – a few shifts, maybe a dozen.[55]

[55]T19

112     The plaintiff first saw the termination letter from Barwon Health dated 3 February 2014 when it was sent to her by her legal team in the context of this case.[56]  The letter set out the plaintiff was a casual employee, and the reason for termination was that she “was unreliable with offers to work – frequent cancellations of booked shifts.  Has been spoken to on several occasions re this issue and no improvement noted.”

[56]T21

113     The plaintiff explained she was not able to pick up the extra shifts off the casual pool as she was working full time at Balmoral Grove in Grovedale in an aged home from December 2013.[57]  She had applied for that job early that month.[58]

[57]T20

[58]T59

114     The plaintiff worked at Balmoral as a clinical care coordinator until June 2014.  She had oversight of the clinical care but no direct nursing role.  She agreed it was a step up in terms of the managerial tree and within that aged care sector in terms of not being on the tools.  She believed she was paid more on an hour to hour rate.[59]

[59]T31

115     Between July 2014 and September that year, the plaintiff worked as an acting facility manager at Bannockburn ACF. 

116     From September 2014 to December 2015, the plaintiff worked as a registered nurse and Victorian manager for Freedom Aged Care.  She continued working Monday to Friday and the workload was not as heavy as her previous job as it was an office role as the village manager, dealing with a set of independent living units.[60]

[60]T45

117     During that time, the plaintiff was bullied at work and lodged claims for stress, anxiety and bullying and harassment.  It was an ongoing thing from when she started working there.  The first claim was denied and she did not think she was ever off on worker’s compensation.  She went on stress leave and then sickness benefits.

118     In about 2016, the plaintiff moved to New South Wales.  Between March and April that year, she got work as a registered nurse on a casual basis with ACCCA-ACF-Cessnock, an aged care facility.[61] She found this job was difficult and she had problems pushing trolleys.  She knew she could no longer work as a nurse and in April found work as a clinical care coordinator with Calvary ACF, which she performed until October 2017. 

[61]T46

119     Between December 2017 and February the following year, the plaintiff was employed as an acting manager at Tinonee Gardens.  She was engaged by Australian Health Research Institute between February 2018 and April that year, assessing various reports.  She then returned to work for Tinonee Gardens as a care manager, where she worked until August 2018.

120     The plaintiff started work with Japara in Wyong as a clinical care coordinator in December 2018 on a full-time basis, being paid $1,900 a week.  She got that job through a friend and did not tell Barwon Health of her back problems, as she thought she would not get the job if she did. 

121     The job was essentially office based, involving computer work and paperwork, and the plaintiff found sitting in front of a computer for prolonged periods tended to aggravate her back pain.  She regularly needed to get up and stretch.  She continued to work for Japara until March 2020.  She worked with back pain and found some days very difficult.

122     The plaintiff is presently working at Uniting Agewell as a registered nurse in Newstead, Tasmania.  She started about four weeks before the hearing.  She has a home office set up, and does a lot of phone calls to clients from home.  These are people who live in the community and have high care packages, and it is her job to make sure they are managing all of their medications, diagnoses, helping if they need mobility assistance and with meals on wheels and “all those sort of things”.[62]

[62]T10

123     The current job is less physical and less stressful than work at Japara.  The plaintiff is sometimes required to drive to a client, but so far work has mostly been based at home and she is lucky to have found that job.

124     The plaintiff has a financial imperative to work, so she has pushed herself to return to full-time work.  It was a struggle at Japara.  Some days she felt like she was overdoing it. 

125     The plaintiff experiences back pain each and every day in her back.  Some days are better than others, but she is never free from back pain.  Sometimes she has had bad flare ups which are unpredictable and they cause a large increase in her symptoms.

126     The plaintiff’s current job, and indeed the job she had with Japara, is not the job she had envisaged for herself if she had not had a back injury.  She would be working as a medical or surgical registered nurse, and really misses the hands-on work and clinical skills she possessed.  While at the time of the accident she was a casual, she was still doing physical hands-on work, including in the dementia unit, which was largely hands-on.

127     The plaintiff does not believe she would be able to be a medical or surgical nurse due to the tasks involved, including repetitive bending, reaching, twisting and lifting.  This is a serious loss for her.

128     At the end of a working week when the plaintiff was employed by Japara, even though it was less hands-on than with the employer, she was still in increased pain and avoided doing many of the activities she would be doing after work, but for the injury.  At Japara, she had trouble with prolonged sitting and standing.  In her present job, prolonged sitting still increases back pain, but she can get up when she wants to.  She is more isolated in her new job, as she does not see colleagues at work every day, but she is willing to accept a job that is less physical on her back and less stressful.

129     In her current job, the plaintiff is paid $1,900 a week.  She did not believe that was the most she had ever been paid.  When she worked at Bannockburn, she was paid $120,000, before starting at Freedom.  She had been successful in obtaining and procuring work, and in a “pay wise sense” had gone upwards in terms of her career.  Her current level is below the home manager or facility manager at the top.  Below her are the nurses.  She copes with the work as best she can.[63]

[63]T65

130     The plaintiff did not agree that regardless of her back injury she would have moved forward in her career to something like her current job.[64] She disagreed that she found surgical nursing very stressful to cope with and confirmed that she would rather be working as a nurse or surgical nurse rather than take up these well paid positions.  She missed all the clinical skills she had, and to actually see someone come into the surgery, go through it and then help them improve their life and get out.  She loved that.  She is now involved in people more at a distance and does not have any hands-on work with them.  If she is physically able to do surgical nursing, and it was something that she could do, she would absolutely be doing it.  It was not necessarily the case she would not have been able to do it anyway.  She disagreed the natural progression was to move off the tools as she had done.[65]

[64]T66

[65]T67

131     In the 2014 financial year, the plaintiff earned about $56,000.  Working as a clinical nurse, she could earn up to around $80,000.[66]  She agreed that in the 2016 financial year, she had earnt $83,990.  Of course, it was significantly more than she could earn with Barwon Health and it was a more senior role.  She could probably now earn more than $80,000 working in hands-on nursing.[67]

[66]T71

[67]T80

132     The only hands-on work since the injury with the employer was work with it  between September and December 2013 and when the plaintiff went to New South Wales and worked for NCCCA.[68]

[68]T79

133     At the end of 2013, work sessions were made available by the employer to the plaintiff which she did not undertake because of severe back pain.  She was not coping at all.  With the NCCCA job, she did not cope at all.  Her back pain was making it really difficult to do the job and she had to be on her feet for quite a long time pushing trolleys and giving out medications and it was very, very difficult.  She lasted there six to eight weeks and then started the coordinator’s role at Calvary.[69]

[69]T76

134     If the plaintiff could cope with that sort of work she would be working in a hospital doing hands-on nursing. 

“It was never my ambition to become a manager.  My joy, and, you know I got a lot out of actually helping the people that I was, you know, my patients.  I loved seeing them get better and seeing them go home.  Um, the clinical skills I really thrived on, you know, learning new skills and things like that.  I got probably … it just brought me joy to be able to do that and I don’t like being a manager, I don’t like confrontations, I don’t like managing people.  I’d just much prefer to just get on and, you know, help my patients and send them home healthy.[70]

[70]T77

135     The plaintiff does not get as much enjoyment out of work at all now.  She confirmed, as a mature age student, she wanted to go into nursing.[71]

[71]T77

Consequences

136     As at May 2019, when she swore her first affidavit, the plaintiff continued to experience ongoing lower back pain, which was a burning throbbing type sensation, worse on the left.  She also experienced groin pain on the left.

137     The pain affected the plaintiff’s ability to sleep most nights and often woke her in the middle of the night.

138     The plaintiff had difficulty sitting, standing and walking for prolonged periods.  She had difficultly performing any heavy lifting, and tasks involving bending, pushing, pulling or twisting also aggravated her back pain.

139     At one stage, the plaintiff’s weight ballooned by about 20 kilograms, although she had managed to get it down by 10 kilograms.  She used to be a size 12 or 14 and was then a size 18.

140     Because of her back pain, the plaintiff had difficulty wearing high heels and tended to wear flats most of the time.

141     Driving for extended periods could aggravate back pain.  A forty-minute walk to work was manageable; however, when having to drive to Sydney Airport for about an hour-and-a-half, she had to stop along the way to rest her back.  Flying from Sydney to Melbourne also aggravated her back pain and she tried to sit in the aisle seat.

142     Pre injury, the plaintiff was a very fit individual.  Living in Tasmania, she used to walk her red cattle dog along a track in Launceston every day.  It was about a 6-kilometre walk, very hilly, and she did it without difficulty.  There is no way she could try that now, with or without a dog.  She could walk for about fifteen minutes before the pain became very uncomfortable.

143     The plaintiff still had two dogs, but was incapable of walking them, and her son walked one of them.  Otherwise, she would take the dogs to a park in her car and she did not have to get them in and out of the car.

144     The plaintiff used to be very socially active and enjoyed going to the local pub and listening to bands, and getting up on her feet and dancing.  She no longer participated in those activities because of back pain and hardly went out socialising.

145     The plaintiff was restricted around the home in terms of domestic chores.  She found vacuuming, sweeping and mopping difficult, and more often than not relied on her son, who was not that reliable.  The house was nowhere near as clean as it used to be.  He helped her out cooking, as he was an apprentice chef.  In the kitchen, the plaintiff had difficulty lifting heavy pots and pans on and off the stove, reaching into the oven and standing for long periods chopping vegetables.

146     Because of the plaintiff’s difficulty lifting heavy weights, her son helped her out with the shopping when he could.  Fortunately, at home, there was not much of a garden, although there was a bit of lawn, which she would be mowing but for her back injury.  Her son did it now.

147     Living in Weston in 2001, the plaintiff was able to renovate her house, install a kitchen, knock out walls and perform other tasks.  She was able to climb up ladders and carry equipment.  There is no way now she could do that because of her back pain.  Her son assisted with the heavier bathroom cleaning.  She no longer pegged laundry out on the line.

148     The plaintiff had difficultly putting on her shoes and sat down on a chair to do so.  She could not bend down in the shower to wash her feet.

149     Over and above those restrictions, the plaintiff missed working as a nurse.  It had always been her intention to do so, as she could not go down that path until her divorce.  While working as a nurse, she enjoyed helping people and the interaction with patients, but she did not believe, because of her back pain, there was any prospect of being able to get into the field.

150     The plaintiff provided a further affidavit earlier this year. 

151     The plaintiff moved to Tasmania in August 2019. One of the reasons for the move was to be with her daughter who had a baby boy.

152     Due to her injury, the plaintiff is restricted in respect of helping her daughter look after the baby.  Holding him for prolonged periods increases her pain.  At a recent barbecue, she had held him for a prolonged period and had to take the next day off work.

153     In the past, the plaintiff had suffered some psychological issues, but they were well managed with medication.  She had had some depression in 2010, when her mother died.  Her back injury has negatively impacted on her psychological state, but currently her main problem is her physical back pain and restrictions.

154     The plaintiff remains on psychological medication, but her state is stable and she does not see a psychologist or psychiatrist.  She has stress from time to time.

155     The plaintiff thought she had made two stress related claims in 2015 and also an unfair dismissal claim.  When she left that workplace, her mood improved towards late 2015 and early 2016 because the source of stress fell away. 

156     Presently, the main problem affecting the plaintiff’s health is back pain and the limitations it places on her working, social, domestic and everyday life.  Overall, she continues to be affected in the manner previously deposed to.

157     The plaintiff made a permanent impairment claim in respect of her back injury, the subject of this application. It was accepted on 31 December 2015.

158     The plaintiff has reduced the amount of walking she does, because prolonged walking increases her back pain, although previously she had enjoyed long walks.  Her social life is reduced because she is physically less active and does not socialise often.

159     The plaintiff presently lives alone, so she does not have help from her son, but she does the best she can.  She finds tasks like vacuuming, sweeping and mopping difficult.  She paces herself and does not do a very good job of house cleaning.

160     The plaintiff avoids making roasts and tries to rely more on the stovetop to reduce bending and heavier lifting. 

161     The plaintiff’s son lives in Tasmania.  If he is around, he does the large shop, otherwise she tries to cope with small shops.  She has been pestering him to do the mowing, as the lawns are quite high, and she has difficulty doing it because of the back pain.

162     The plaintiff’s problems with showering continue.

163     The plaintiff has done her best to push on with life, but understands there is not much more available by way of treatment to assist with her daily constant pain and limitations from her work injury.

164     The plaintiff disagreed her recreational activities were not interfered with.  She used to go out dancing with friends and be able to walk her dog.  Her back pain now stops her doing what her friends do.  They go bushwalking and can sit in the picture theatre.  She could possibly have dinner, but then her back pain becomes quite bad, so it is easier to stay at home.  She does not take medications because they do not work.[72]

[72]T78

165     The plaintiff has had carpal tunnel for a while, but only gets numbness in her hands that wakes her from time to time.  Her back pain is the key factor interfering with her sleep.[73]  She is woken virtually every night by this pain and she does not wake refreshed.[74] 

[73]T68

[74]T80

166     The plaintiff is still taking antidepressants and has been on and off them for many years to treat anxiety and depression.  Her depression is managed quite well and does not impact on her social life.  Her back impacts on her ability to get out and about and enjoy social activities.  She has not attended her general practitioner in Tasmania for some time with respect to her back.

167     To cope at the moment, the plaintiff does as little as possible.  She does not do anything that exacerbates her pain and in the evening she drinks a lot of alcohol, a bottle of wine or half a bottle of whiskey.  She feels ashamed about that.[75]

[75]T78

168     The plaintiff confirmed nearly every day before hurting her knee she was running and jogging.  She walked the dog 6 kilometres and absolutely loved getting out.  She did not feel good not being able to do it.  Her knee is now “fantastic” and does not give her any problems.[76]

[76]T81

169     The plaintiff confirmed enjoying dancing at the pub.  When she came to Geelong she joined a social group and they went out.  Those activities are still available to her, but she cannot sit, stand and walk, and do all those things she used to be able to, so it is impossible.[77]

[77]T79

170     The plaintiff is in pain at work at the end of the day and more at the end of the week.[78]

[78]T81

The Plaintiff’s medical evidence 

Treaters

171     Dr Kristen Logue, chiropractor, from Spinal Dynamics in Geelong West, reported on 18 September 2018.

172     The plaintiff presented on 16 July 2013, experiencing an acute exacerbation of chronic lower back injury, as well as some neck pain.

173     The diagnosis was an acute exacerbation of chronic lumbopelvic joint dysfunction.  There were three treatments over a period of ten days from 16 July until 26 July 2013.  At her last visit, the plaintiff reported feeling great and free of pain. 

174     Dr Logue was unable to draw conclusions as to whether or not the injury was sustained as a direct result of the nature of the plaintiff’s work; however, it could have contributed to it to some degree.

175     Judging by her response to treatment, Dr Logue thought the plaintiff had a capacity to work with modified duties and would suggest a strengthening exercise and rehabilitation program to be undertaken to support her and prevent further exacerbation of deterioration.

176     The Spinal Dynamics Patient Confidential Admission Form signed on 15 July 2013 set out present symptoms were lower back/neck pain, LB on and off for a long time, exacerbated a month ago.  There was the answer “no” to exercise, “yes” to under stress and “yes” to a program tailored for health and restoration.

177     Dr Hargreaves from Belmont completed a claim for income protection disability benefits in March 2015.  His primary diagnosis was lumbar back pain.

178     Dr Hargreaves also reported on 22 September 2015.

179     Dr Hargreaves noted the plaintiff initially presented to Belmont with lower back pain on 23 April 2013.  She reported she had been experiencing intermittent and infrequent back pain for some time, with a very slow but consistent increase in the frequency and severity of episodes.  Of relevance in her history was the fact she had tried to access alternate work where she was able to undertake supervisory duties without the requirement for physical hands-on nursing duties but had found this difficult to source.  Due to these difficulties, she had continued to undertake physically demanding nursing work with subsequent deterioration in her symptoms.

180     The plaintiff’s work duties around the time of her presentation were heavier nursing duties involved in the care of dementia patients, as described in the instructing letter.[79]

[79]Letter from ATB dated 8 September 2015

181     Dr Hargreaves noted in fact, as recently as the patient’s last visit in June 2015, she was in a position of having to undertake physical nursing duties despite severe back pain due to her application for a Disability Support Pension being rejected.

182     The formal diagnosis, following investigation and examination, was of discogenic lumbar pain with co-existent mechanical pain related to facet joint arthritis.

183     The plaintiff was initially prescribed anti-inflammatory and analgesic medication, Oxycodone and Diclofenac and later, oral prednisolone.  There was a referral for physical therapy.  Dr Hargreaves noted those treatments provided some benefit; however, improvements were not sustained and while the stronger medication gave pain relief, due to the undesirable side effects and tendency to develop tolerance, they were not a sustained long-term treatment option.

184     Due to the persistence of pain, the plaintiff was also referred for steroid injection.

185     Dr Hargreaves thought it highly likely (almost certainly) that the plaintiff’s lumbar condition was caused by in part by her employment with Barwon Health.  He noted it is quite easy to qualify this as contributive, although difficult to quantify the degree of contribution.  He thought her spinal condition was caused by repetitive bending and lifting activities undertaken over extended periods.  Employment and other physical pursuits in the years prior to that job may have contributed also.  Certainly, her ongoing work at the Barwon Health, while in pain, suggests an accelerated progression of her injury.

186     As of her last visit in June 2015, the plaintiff was still at work despite significant pain, and that was when she was referred for the injection.  Dr Hargreaves thought that would suggest the plaintiff had some capacity for light work, for example administrative office-based work, with restriction on prolonged sitting, but she was not fit to undertake the physical duties of personal direct contact nursing care, now or any time into the future.  He thought at best her outlook was for ongoing lumbar pain, similar to what she currently experienced.  Whether her condition had stabilised would depend on her ability to avoid aggravating activity.

187     Mr Peter Spittaler, consultant neurosurgeon, saw the plaintiff on 3 August 2016, on referral from the defendant.

188     The plaintiff advised she developed lower back pain in 2013 while working in an aged care dementia service.  There was no specific incident.  She worked with lower back pain and her symptoms, in essence, persisted.  When seen, she was taking Lyrica.  She had had no physical treatment such as physiotherapy or chiropractic.  She was complaining of exclusively back pain, although there was some pain radiating into the left groin. 

189     Mr Spittaler suggested an MRI scan, which was carried out on 9 August 2016, and also further x-rays.  The x-rays demonstrated some instability at L4-5 and on that basis, he felt it possible that stabilising the segment and L4-5 fusion may improve back pain, but he reassured the plaintiff there was no risk in not intervening.  He encouraged weight loss.

190     Mr Spittaler diagnosed lumbar degenerative disc disease and some mild instability at L4-5.  He noted the plaintiff had lumbar disc degeneration.  The conditions were all likely to have been present prior to the onset of pain in 2013, although they were asymptomatic and were likely to have remained so had the plaintiff not done heavy physical work, and on that basis, he would consider her employment had been a substantial contributing factor to her current symptoms.

191     Mr Spittaler certainly did not believe the plaintiff was fit for heavy physical work where there was bending and lifting, and she appeared able to cope with sedentary duties.  He thought her symptoms were relatively stable.  If she was careful and avoided bending and lifting and also improved her core strength and lost weight, then he thought she would be able to manage her symptoms and the risk of deteriorating was reasonably low.

192     When seen at Newstead Medical in Tasmania on 21 November 2019, it was noted, among a number of matters of history, the plaintiff had back pain starting after a work incident, was on narcotics for a while, but now just gets on with life, especially caring for her two dogs.  Aware weight loss would be desirable.

Medico-legal evidence

193     Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff on behalf of Allianz in December 2015 for the purposes of an AMA Assessment.

194     Mr Moran was provided with the records from the Belmont Clinic, Dr Hargreaves’ report, the chiropractor’s report and various claim documents.

195     Mr Moran noted that on 23 April 2013, the plaintiff worked afternoon shift and did not feel anything during the shift.  When she woke the following morning, she experienced severe lower back pain and saw her doctor.  He noted subsequent treatment and the plaintiff’s work history.

196     On examination, the present symptoms were constant lower back pain, and back movements were restricted.  The plaintiff sometimes had pain in her left groin, but did not have any pins and needles in her legs.  She was then taking Lyrica and Naprosyn and not doing any exercises.

197     Mr Moran thought the plaintiff had aggravated L4-5 and L5-S1 disc degeneration and bilateral L4-5 facet joint arthropathy.  He allowed a 5 per cent whole person impairment in relation to the lumbosacral spine and thought the condition had stabilised. 

198     By letter dated 31 December 2015, Allianz advised the plaintiff that liability had been accepted for her lower back injury suffered on 23 April 2013.

199     Professor Bittar, consultant neurosurgeon, first saw the plaintiff in September 2018 and re-examined her on 26 March 2020 via Telehealth link.

200     On the first examination, the plaintiff told Professor Bittar of her work at Barwon Health in the aged care dementia environment, which was of a heavy physical nature, involving frequent bending, pushing, pulling and handling of patients.  She also had to do a considerable amount of lifting.

201     Prior to the commencement of that job, the plaintiff had not had any lower back injury or complained of any symptoms suggestive of a pre-existing lumbar spine condition.  The onset of her symptoms occurred during the course of heavy workplace activity on or around 24 April 2013.  There was no obvious precipitating event and she explained she completed her shift and went directly to bed.  She awoke the following morning with severe lower back pain, which had persisted.

202     The plaintiff took analgesic medication and had a CT-guided injection, which did not provide a significant benefit.

203     The plaintiff advised that, having ceased work in September 2013 due to her symptoms, she commenced a role with another employer, which was office based.  She continued taking analgesic medication and had ongoing pain radiating from her lower back into her left groin.

204     When she moved to New South Wales, the plaintiff was referred to a neurosurgeon.  The plaintiff was then doing office-based management.  Mr Spittaler arranged further investigations.  While it was possible her back pain and instability would progress to the point where a fusion was indicated, he recommended conservative treatment and she had not seen him since.

205     Ongoing treatment had included analgesic medication and physiotherapy, the plaintiff having derived a moderate benefit from physiotherapy, which she continued to receive five times a year under Medicare.  Her current treatment consisted of self-medication with alcohol. 

206     On examination, the plaintiff complained of constant lower back pain, which was burning, throbbing and aching.  It was located bilaterally, but worse on the left.  The average severity was 5 out of 10 with a maximum of 8 out of 10, and was exacerbated by a variety of activities.  Her back pain radiated into her left groin.

207     The plaintiff reported that she socialised much less and her recreational and domestic activities were severely restricted.  Her sleep was moderately disrupted and overall, her quality of life was severely diminished.

208     On examination, the plaintiff had moderate restriction of lumbar spine flexion and severe restriction of extension, the latter being more painful than flexion.  There was bilateral lumbar paravertebral muscle spasm and left-sided paravertebral tenderness, particularly over the lower facet joints.  There was no evidence of radiculopathy and no abnormal illness behaviour.

209     Professor Bittar thought the plaintiff presented with aggravation of lumbar spondylosis/spondylolisthesis.  He considered her employment had been a significant contributing factor.  Specifically, her work at Barwon Health  remained a significant contributing factor to her ongoing pain, disability and requirement for treatment.

210     While there were radiological changes consistent with very longstanding degenerative change affecting L4-5, those changes were completely asymptomatic prior to commencement of employment with Barwon Health, and, in his view, the duties there aggravated the plaintiff’s pre-existing but asymptomatic degenerative disease and rendered her significantly symptomatic and disabled in an ongoing fashion.

211     Professor Bittar thought the plaintiff’s prognosis was guarded, given her longstanding symptoms had not responded to conservative treatment.

212     Professor Bittar considered the physical injuries suffered in the course of employment with Barwon Health caused the plaintiff to be incapacitated for her pre-injury employment on a permanent basis and she was currently suited for work as an agency nurse undertaking office-based work.

213     Professor Bittar confirmed his view, having seen the 2018 investigations.

214     On re-examination earlier this year, there were similar examination findings, although a detailed examination was not available.

215     Professor Bittar remained of the view the plaintiff’s employment had been a significant contributing factor to her ongoing pain, disability and requirement for treatment.  He confirmed his view as to prognosis and the plaintiff’s employment capacity.

216     Professor Bittar thought the plaintiff should be reviewed by a pain specialist and considered for a series of diagnostic blocks, and she may be a candidate for radiofrequency denervation.

217     Dr David Middleton, occupational physician, examined the plaintiff in January 2019.

218     The plaintiff told him it was the third day in a row she had been on an afternoon shift with dementia patients.  On the last day of her roster, she was exhausted, travelling home and going straight to bed.  The following morning, which was her day off, she found she had excruciating lower back pain when she went to get out of bed.

219     Dr Middleton noted subsequent treatment and that the plaintiff did not make a claim for compensation as she still had the feeling the injury would get better.  He detailed the plaintiff’s subsequent treatment and work experience.

220     The plaintiff’s main pain was in the lumbosacral area, radiating to the left buttock and more recently, the right hip.  She described it as a constant aching pain that varied in intensity and developed into a painful burning that could extend into both feet, greater on the right than the left.

221     Dr Middleton noted the plaintiff had weaned herself off all medication which she had substituted with whisky and red wine, pointing out that she was unable to do regular exercise.

222     Dr Middleton thought the plaintiff had proved not to be work averse, picking out less physically demanding work and having to contend with her ongoing symptomatic lumbar spine, with treatment having failed to address her core lumbar instability.

223     Dr Middleton considered the injury suffered in the course of her work with Barwon Health resulted in the plaintiff being precluded from repetitive bending and/or twisting and was restricted to all remaining employment or activities as listed.  She no longer had the safe or reliable physical capacity to do pre-injury duties on a full or part-time basis, and was now restricted to sedentary non-manual duties that needed to be performed, in a self-paced manner, with provision for work breaks as required, and the ability to change posture frequently.

224     Dr Altaf, occupational physician, examined the plaintiff on 10 March 2020.

225     Dr Altaf noted the injury occurred in April 2013, when the plaintiff recalled being required to assist a resident shower and mobilise after surgery.  On 23 April 2013, she was working an afternoon shift, and the following morning, when she woke, she experienced severe lower back pain and went and saw her general practitioner.[80]

[80]This history is incorrect – cross-examination T49

226     On examination, the plaintiff’s pain was in the lower back, predominantly the left.  It was constant, but it varied in severity, on a better day reducing to 2 out of 10 and on average 4 out of 10 if she was not doing anything, and on a bad day, 8 out of 10.  There was a constant dull ache with no radiation.

227     On examination, there was the restriction of lumbar spine movement and straight leg raising.

228     Dr Altaf thought the plaintiff had sustained an aggravation of age-related degenerative disease to her lumbar spine as a consequence of her employment.

229     As a result of that physical injury, Dr Altaf considered the plaintiff was precluded to undertake any employment which required prolonged sitting, stooping, repetitive bending or twisting.  That led to her being incapacitated for her pre-injury employment.  Any work would need to be performed in a self-paced manner with adequate opportunity to alter her posture and position.  She was limited to sedentary office-based duties.

230     Given the plaintiff had suffered with these symptoms for a prolonged period with no onward medical management plan, Dr Altaf thought her prognosis was poor.

Investigations

231     Following an MRI scan of the plaintiff’s lumbar spine organised by Dr Hargreaves in September 2014, it was reported there was minor annular non-compressive bulge of the L5-S1 disc and no neural compression.  The central canal was capacious.  There was prominent facet arthropathy on the left at the L4-5 level with hypertrophy and suspected underlying pars defect.

232     Dr Hargreaves organised a CT scan of the lumbar spine in May 2015.  It was reported there was minor disc bulging at L4-5 and L5-S1.  There was bilateral L4-5 level facet arthropathy with vacuum phenomenon and capsular bulging.  No pars interarticularis was seen.

233     A CT-guided facet joint injection was carried out in June 2015.

234     There was a lumbar spine MRI scan organised by neurosurgeon, Mr Spittaler in August 2016.  It was reported there was a small left paracentral T11-12 disc bulge, advanced L4-5 facet joint arthropathy, and no signs of neural compromise.

235     Mr Spittaler also arranged an x-ray of the lumbar spine at that time.  There was 3 millimetres of forward slip of L4 on L5, which was most prominent during flexion, and there was minor subluxation during extension.

236     There was an MRI scan of the lumbar spine organised by Professor Bittar in December 2018.  It was reported there was Grade 1 spondylolisthesis at the  L4-5 level related to moderate facet joint arthritis.  No associated neural canal or central spinal stenosis was present. 

237     Professor Bittar also then organised an x-ray of the lumbar spine.  It was reported there was a 4.5-millimetre spondylolisthesis at L4-5 in extension which increased by 2 millimetres in flexion.  There was minor lipping of the lumbar vertebral bodies present.  There was slight narrowing of the L5-S1 intervertebral space.

The Defendant’s medical evidence   

Medico-legal

238     Mr Siu, neurosurgeon, examined the plaintiff initially in July 2019 and re-examined her in March 2020.

239     In terms of history, the plaintiff was not sure how she hurt herself.  There was no specific incident.  It was an afternoon shift and she went to bed that evening, and the next morning awoke with severe lower back pain.

240     Mr Siu noted the plaintiff was told by her general practitioner she had suffered a soft tissue injury and was given Endone.  She was off work for a week and then able to return to work performing the same duties.  She was just coping, but had to give up extra casual work because she was not coping with the extra work, and she continued to keep her routine work at Barwon Health.

241     In 2013, the plaintiff saw her general practitioner and had an MRI and CT scan.  Mr Siu noted both scans clearly identified prominent severe arthropathy on the left at L4-5.

242     The plaintiff returned to Newcastle in 2016 and worked there during 2016 and 2017, and saw a neurosurgeon in 2016.

243     Mr Siu noted the plaintiff’s treating neurosurgeon considered the plaintiff’s employment may have contributed.  He noted she was working as a nurse in Tasmania before she started with Barwon Health.  She had also continued to work as a nurse in a private aged care facility in Geelong for a year.

244     At the time of that examination, the plaintiff’s job was more a desk job as a nurse coordinator, and she did not have to do any hands-on work. 

245     In 2018, having left the job in Newcastle, the plaintiff took on some part-time work in Tasmania again.  She was then sharing a house with her son, who helped with shopping.  She drank a bottle of wine every day.

246     On examination, extension and lateral flexion to the left caused some discomfort.  There was no weakness in any muscle group.  There were no muscle spasms and the neurological examination was normal.

247     Mr Siu noted from the history he obtained that, in 2012-2013, save for a brief period of interruption returning to Newcastle, the plaintiff was working for Barwon Health.  She alleged, during that time, working in the secure dementia unit with repetitive bending and looking after residents, she hurt her back. 

248     There was no specific incident.  The plaintiff was able to return to her full duties after a week off and able to continue other nursing duties after she left Barwon Health, but remained in Geelong in 2014-2015 and returned to work in Newcastle, albeit now in a more clerical role. 

249     Mr Siu noted the plaintiff had a number of jobs subsequent to the alleged injury in 2013.  Importantly, she had only one week off, as organised by her general practitioner, and returned to the same duties, even though she was finding it difficult to cope with back pain with no radiation into the lower extremities.  In 2014, after she left Barwon Health, she was able to work in the private sector in Geelong and also at an aged care facility.

250     On examination, the plaintiff complained of back pain at 5 out of 10.  The diagnosis was therefore transient exacerbation of her pre-existing severe facet joint arthropathy in 2013.  There was no nerve root irritation and she had no symptoms of sciatica.

251     The plaintiff may have had a minor slip of some 3 millimetres and that was attributed to the facet arthropathy.  Mr Siu believed her symptoms were a minor exacerbation.  He noted the impairment assessment would give an indication of the injuries sustained at the time of 2013.  On examination, there was no obvious functional manifestation.

252     In his supplementary report, describing a “transient” exacerbation, Mr Siu meant that it was the natural history of lumbar spondylosis that there are periods of remission and exacerbations.  The plaintiff had worsening of the symptoms, and they did not persist.  She was able to return to gainful employment with another employer and indeed, in a similar capacity, after 2014.  Although she may have argued she had symptoms all the time, it was not bad enough to stop working.

253     Mr Siu noted there was merit in the argument of the defendant’s solicitors that  the work duties were not an exacerbation or an aggravating factor and the plaintiff never reported a back injury while at Barwon Health.  When she was able to resume similar duties, albeit with a different employer in the year following her departure from that job, she was coping with the new job, but similar duties.  He suspected that one may well argue that over the course of employment, she has suffered some exacerbations.  As a nurse looking after a patient with dementia, it is conceivable she would need to bend, lift and twist, and suffer an exacerbation.

254     On re-examination earlier this year, the plaintiff reported her pain level at 3 out of 10 and she was on no medication.  She took some Nurofen a week earlier and advised she is “a nurse and understand[s] pain management and drugs are not the answer”.

255     Mr Siu noted the plaintiff continued working in 2017 to 2019, and in a casual nursing job, mainly as a manager in an aged care facility.  She emphasised she did not have to do any hands-on work.  A registered nurse would administer the medications and a PCA would attend to the care of the residents.  The plaintiff sat at her desk and mainly did the paperwork.  She moved back to Tasmania in 2019, and again, she worked as a nurse manager.

256     The plaintiff could not remember when she last saw her general practitioner for back pain.  She freely admitted she drank a bottle of wine or half a bottle of spirits per day.

257     On examination, there was no spasm in the muscles of the back.  There was mild tenderness in the left paraspinal region of L4-5, sciatica nerves were tender, and extension caused some discomfort.  There was no sensory disturbance and the neurological examination of the lower extremities was normal.

258     Mr Siu thought the imaging showed longstanding lumbar spondylosis with moderate facet joint arthropathy.  There was, however, no nerve root compression. 

259     Mr Siu noted the plaintiff’s level of pain had decreased significantly since last seen.  There was no obvious change in her condition, which was an exacerbation of pre-existing lumbar spondylosis.  According to the plaintiff, it was bad throughout 2013 to 2015, and even 2016, until she returned to New South Wales.  Since she returned to Tasmania and onwards, she really is not suffering from any severe symptoms.

260     Mr Siu believed this is the pattern of the natural history of lumbar spondylosis, which appears with exacerbation and remission.  Work may have contributed to this in part in 2013, but it had long since subsided and work is no longer materially contributing.

261     Mr Siu thought the x-ray appearances were not uncommon for someone in their fifties apart from perhaps more facet arthropathy; however, the plaintiff’s weight must be considered as contributing to the degenerative change.

262     Mr Siu did not detect the presence of any functional component or psychological reaction.  He noted the plaintiff was on no specific treatment and no specific medication.

263     Mr Siu was provided with Professor Bittar’s report. 

264     Mr Siu confirmed he was aware of what the plaintiff’s duties entailed and that hands-on duties for a nurse could be heavy, but not all nurses sustained lumbar injuries – age-related degenerative change can play a part.

265     Importantly, Mr Siu felt the exacerbations had been transient, as the plaintiff was able to work in a similar role, and there is no good evidence she sought medical attention regularly during 2013 to 2016, and she saw a specialist once in 2016. 

266     Similarly, Mr Siu could not find detailed records of the plaintiff attending medical practitioners regularly for back pain between 2018 and 2020.  She told him she could not recall when she last saw her general practitioner and she was taking no medication for pain.  Thus, he felt she suffered a transient exacerbation, as he believed she had a substantial recovery.

267     Mr Siu was then provided with the Belmont Clinic notes and also notes from the Hunter Valley Medical Practice, Lake Macquarie Medical Centre and TriStar Medical Group.

268     Mr Siu noted it would appear the plaintiff attended some clinics in 2013 to 2015 for back pain and was treated symptomatically.  Investigations were done, pointing to degenerative conditions of the lumbar spine.

269     In his 2019 report, Mr Siu mentioned the plaintiff had impairment payments.  His point was that if she had had an assessment and was given a lump sum, then it would have been considered that her clinical condition with regard to the lumbar spine had stabilised and thus the impairment assessment was performed.

270     Mr Siu noted the clinical notes around 2017-2018 were records of the plaintiff’s complaints of anxiety, stress and depression, and he could not easily find extensive records of back pain.

271     In his 2020 report, Mr Siu noted the plaintiff had told him she could not recall when she last saw her general practitioner for back pain.  She was having no medication for pain, but had a high alcohol intake.  He confirmed his view that there was a transient exacerbation of pre-existing lumbar spondylosis from her job in 2013 which subsequently settled and even considered stable in 2015. 

Other documentation  

272     The plaintiff’s solicitors, Arnold Thomas & Becker, wrote to Belmont Health on 8 September 2015.

273     They advised they acted for the plaintiff, who was injured in the course of her employment with Barwon Health, when working caring for dementia patients.

“Whilst working at the Grace McKellar Centre, Ms.  Johnson was required to assist heavy patients to shower and to mobilise them after surgery.  She also assisted patients to the toilet and into bed.  Some of the patients were violent and others were uncooperative.  Some patients were required to be pushed and pulled and others were required to be lifted from the floor.  Ms.  Johnson was also required to push lifting devices to move patients located in the lifting devices.

As a result of performing her duties, Ms.  Johnson experienced symptoms in her low back and in her groin.

We are instructed that Ms.  Johnson has attended the Belmont Bulk Billing Clinic in relation to her condition.  We request that you provide us with a medical report in relation to Ms.  Johnson.  We enclose herewith duly signed authority of our client for your records.  In your report, we would be obliged if you would give your opinion as to the following:

a)      the history provided to you by Ms.  Johnson;

b)      the diagnosis of Ms.  Johnson’s condition;

c) the treatment provided by you and the outcome of such treatment;

d) the extent to which Ms.  Johnson’s condition can be related to her employment with Barwon Health;

e)      Ms.  Johnson’s capacity for employment;

f)       her future prognosis;

g) whether her condition has stabilised;

h) the likelihood of any further deterioration in her condition.”

Overview

Credit

274     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[81]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[81](supra) at paragraph [12]

275     Counsel for the defendant submitted the plaintiff was vague and unconvincing on key issues and in the absence of there being any corroborative objective evidence, her evidence should not be accepted.

276     The plaintiff was not able to give any cogent explanation with respect to a number of key matters, but principally, why there was never a report to the employer while working there that she suffered injury at work.[82]

[82]T84

277     Further, the medico-legal opinions rely entirely on the plaintiff’s version, which is not borne out by contemporaneous medical records, and it ought not be accepted without corroboration because of the unconvincing nature of her answers.[83]

[83]T91

278     An example was, in re-examination, when the plaintiff described her social life had been affected by not being able to sit or stand and walk. It was submitted these were very extreme propositions which would plainly prohibit her from working full time and sitting to give evidence.[84]

[84]T92

279     In response, counsel for the plaintiff submitted that throughout the time of her application for a serious injury, the plaintiff had done her level best and virtually been successful in remaining in employment despite her injury.  That was consistent with her being a credible witness.[85]

[85]T96

280     Further, the plaintiff has been prepared to make admissions against interests, such as acknowledging the pain came on when she was not at work, and also volunteering that she was earning $120,000 at Balmoral Grove, in her job after leaving Barwon Health.[86]

[86]T98

281     On that basis, it was submitted the plaintiff ought to be accepted as an honest, credible witness, who was prepared to help the Court the best she could in the manner in which she gave her evidence.[87]

[87]T98

282     In my view, the plaintiff was a truthful, credible witness.  Having raised her children as a single parent, as a mature age student she embarked on a nursing career and despite her back injury, has stayed in the workforce, save for a short time in 2015.  In those circumstances, she is somewhat of a stoic, not resigning herself to the limitations of her injury.[88]

[88]Dwyer v CalcoTimbers Pty Ltd (No 2) [2008] VSCA 260 per Nettle J at paragraph [4]

Causation

283     The plaintiff must prove that on the balance of probabilities there is a causal connection between her back injury and the employment at Barwon Health.[89]

[89]Kavanagh v The Commonwealth [1960] 103 CLR 547

284     The question of causation is a matter of common sense.  It is not necessary for the plaintiff to establish that the act or omission of Barwon Health was the “sole” or “dominant” cause of her injury.[90]

[90]Zlatevska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141

285     Counsel for the defendant submitted the plaintiff did not suffer a back injury at work with Barwon Health.

286     While the plaintiff’s viva voce evidence was she complained of a sore back at work, she never told anyone that that was because of work.  Further, there was no explanation why there was not an incident report completed and that “beggared belief”. It was submitted the real explanation was there was no relationship to work and no explanation for her claim not being put in until a year later.[91]

[91]T85

287     It was submitted it was simply unbelievable that the plaintiff did not submit a claim when she was losing time for work because it did not cross her mind, particularly where she had previously had a claim in 2004.[92] It was also unbelievable in the context of her being a trained nurse.  The answer “I just didn’t put in a claim” was plainly because there was no relationship to work in terms of any injury.[93]

[92]T86

[93]T85

288     In the present case, there was not the usual explanation that the plaintiff wanted to keep her job, or something along those lines, and that answer, and her other evidence, had been unconvincing at best and ought not be accepted.[94]

[94]T86

289     It was submitted there is clearly no onset of pain while at work, which is in contrast to the plaintiff’s affidavit.  She did accept in the witness box there was no onset at work.  There was also then the issue of the Belmont Clinic note on 23 April 2013, that the pain arose after a few days at home doing nothing.[95]

[95]T87

290     In response, counsel for the plaintiff submitted even Mr Siu, who had read all the clinical records, did not opine that there was no compensable injury.  He did not resile from the fact that there was one, although he talked about a temporary aggravation.  It was submitted there was just no basis for the defendant’s claim there was no compensable injury.[96]

[96]T98

291     Further, it was submitted it was truly open to find the plaintiff’s condition was work related because she was not cross-examined as to her description of her duties in her first affidavit.  Therefore, the medical practitioners were able to accept that account of her history and “one well knows that there may be an onset of pain when one gets home, or the next morning after a heavy day at work.  There is no absolute necessary requirement that there must be an experience of pain at work.”[97]

[97]T101

292     It could be assumed that for over a year the employer had the plaintiff’s 2019 affidavit detailing her duties and would have had the opportunity to try and contradict that history.[98]

[98]T102

293     It was submitted, when one looked at the totality of the evidence, the Court was entitled to conclude there was a compensable injury, the consequences of which are ongoing.[99]

[99]T102

294     Further, the plaintiff’s explanation for not putting in a claim was not evasive.  It was not until the September 2014 MRI scan that she was aware of the true nature and gravity of her spinal injury, and then she did something about it.[100]  This is not a reconstruction.  The plaintiff has time and time again indicated in her evidence and to doctors that she was doing her best to just try and get on with her life.  A WorkCover claim was not the foremost in her mind and there should be no criticism about the time it took to put in a claim. 

[100]T102

295     The plaintiff was not “putting her hand out at the first sniff of the possibility of a claim”, so she should not be criticised.  She had told people at work she was suffering from a bad back, although she did not say it was work related.  The pain has been ongoing.[101]

[101]T59

296     Taking into account all the evidence, I am satisfied the plaintiff suffered an injury to her back while in the employ of Barwon Health. 

297     I accept the plaintiff’s work with the employer was heavy, as she described.  Save for a minor incident in 2004, she was able to carry out hands-on nursing duties without difficulty until April 2013.  After a heavy day at work on the Saturday, she experienced severe back pain when she awoke the following the day, attending her doctor the next day.

298     Further, I accept the plaintiff’s explanation that she did not lodge a claim sooner as she thought any injury was minor and she was keen to keep going at work.   

A transient exacerbation?  

299     Counsel for the defendant submitted any back pain was explicable in the context of the natural ageing process and that any medical evidence that supports the plaintiff’s claim is “reliant on her reconstruction”.[102]

[102]T87

300     If the defendant failed on the causation argument, it was submitted Mr Siu’s approach that there was a transient exacerbation and any connection to work had long ceased, should be accepted.[103]

[103]T87

301     It was submitted there was strong evidence to support that proposition.  Firstly, there were the Belmont Clinic notes that the pain comes and goes.  There was a gap between the first attendance at that clinic on 23 April 2013 until 21 October 2013 with respect to the back.  That “beggared belief” that there was a very severe excruciating event on the weekend and ongoing pain since, in a context where the plaintiff worked full time and continued working the hours that she had been working prior to the injury. 

302     Further, there were three attendances on the chiropractor in July 2013, although the plaintiff seemed to think there were only two.  The plaintiff’s evidence about those attendances were “polar opposites”, with the chiropractor saying the plaintiff was feeling great and free of pain and the plaintiff saying she only went twice because the treatment made her feel worse.[104]  In those circumstances, it was submitted the chiropractor’s evidence should be preferred.[105] Also, the plaintiff’s explanation that physiotherapy meant exercise and that was why she did not go ahead with it, should not be accepted.[106]

[104]T88

[105]T89

[106]T90

303     It was submitted that simply attending a general practitioner on an infrequent basis was not consistent with someone struggling with a significant back injury and indicative of someone who did not have significant disabling pain.[107]

[107]T90

304     It was submitted the medical evidence was really a “battle” between Professor Bittar and Mr Siu.  They both agreed that the plaintiff had pre-existing degenerative spinal problems.  Professor Bittar plainly accepted her version of ongoing pain to come to his conclusion.  Mr Siu classed it as a transient exacerbation.  It was submitted his view should be preferred because he had all the clinical notes, whereas Professor Bittar did not.  The Court also had the benefit of those notes, and was aware of the plaintiff’s failure to go to physiotherapy, her ability to work full time and increase work hours, albeit managerially, and her ability to continue working more or less uninterrupted until now, save for a period out of work for bullying and harassment issues.[108]

[108]T91

305     Dr Hargreaves’ opinion was criticised as he did not come in as a treater until 2014.  Further, he supported a variety of applications on the plaintiff’s behalf and he was totally reliant on the information given by the plaintiff’s solicitors in the letter of instruction.

306     Mr Spittaler also relied on the plaintiff’s version of her injury circumstances in forming his opinion.[109]

[109]T94

307     In response, counsel for the plaintiff submitted the plaintiff’s back condition is ongoing.  It is, in terms of the evidence, a continuing problem.[110]

[110]T99

308     Mr Siu’s opinion was criticised on the basis he had incorrect history as to the plaintiff’s post-incident work and having a week off work.[111]  Further, he would appear to be relying on attendance at medical practitioners, but there are notes after 2016 of ongoing lumbar complaint.[112]  In particular there were a number of attendances on general practitioners in 2017, such as on 11 February and also 14 June, with lower back complaints.[113]

[111]T104

[112]T105

[113]T106

309     Mr Siu was clearly wrong when he thought the plaintiff was able to work in a similar role after 2013 and that there was no good evidence she sought medical attention after 2016.[114] There were in fact unsuccessful attempts at hands-on nursing, the first between September and December 2013 with the employer, and then later in New South Wales.  On that basis, Mr Siu’s opinion should be rejected.[115]

[114]T107

[115]T107

310     Dr Hargreaves could not be criticised for being supportive of the plaintiff.  After he had first seen her, he arranged an MRI scan, which had significant findings.[116] Further, the letter of instruction did not include all the history he relied on.[117]

[116]T99

[117]T99

311     I accept that the plaintiff’s complaints of back pain have continued and are much more than a transient exacerbation as Mr Sui opined, based on his misreading of the notes and an incorrect post-injury work history. 

312     It was not a situation of the plaintiff having a week off and pretty much normal duties thereafter.  She had difficulties with the two short-lived hands-on roles after April 2013 and since then, has otherwise been unable to return to full nursing duties. 

313     Further, Mr Sui made no reference to the facet joint injection in 2015 or continuing complaints of pain to that time and thereafter.  There were eight  attendances for back pain during 2017 which he ignored. 

314     Otherwise there was no path of reasoning supporting Mr Sui’s conclusion.  I therefore prefer Professor Bittar’s opinion based on the plaintiff’s history of complaints, which I accept.  Dr Middleton and Mr Spittelar also shared his view.

Seriousness

315     If it was accepted there was a compensable injury, the effects of which continued, counsel for the defendant submitted it was not a case that met the very considerable threshold.  There was only one attendance on a specialist in 2016 and recommendation of conservative treatment, no ongoing treatment and no pain medication.[118]

[118]T94

316     The plaintiff has been able to continue working full time and progress her career into managerial positions, earning significantly more money.[119] In response to an anticipated argument as to the loss of vocation, it was submitted this was not a case like a carpenter or a tradie, who now had to work in a sedentary role, completely removed from their vocation.  The plaintiff had been able to stay in the same industry helping people, albeit accepting managerial positions rather than doing hands-on work.  She may have been forced to do that work in any event, because doing hands-on work forever simply is not possible.  She had been able to stay in the field of medical healthcare, which had been her joy and goal as a mature age student to enter.[120]

[119]T95

[120]T95

317     Accordingly, it was submitted any employment consequence was not serious.[121]

[121]T95

318     Counsel for the defendant described as “bland”, the other claimed consequences such as not being able to socialise or dance. 

319     Further, it was submitted it is not believable that someone is able to work full time, having no ongoing treatment and no medication.[122]  The plaintiff was able to stick to jobs and had a consistent work record since the incident. She had been able to make changes to her lifestyle, like going to Tasmania to be with her daughter, therefore the impact on her career was not anywhere near as great as would be submitted.[123]

[122]T96

[123]T96

320     In response, counsel for the plaintiff submitted that the plaintiff had fought on through a life which had not been without difficulty, raising five children by herself, and at times working fifty to sixty hours a week.[124]  She had left school, done hard physical work and was not the sort of person who would shirk from various labour intensive jobs. 

[124]T108

321     The plaintiff made a decision to change her life and career path and completed a Bachelor of Nursing as a mature aged student and then worked as a hands-on nurse, deriving enormous pleasure from that work.[125]  It was submitted it is an enormous consequence that she has been deprived of that opportunity.  One would be hard driven to find that this could not be regarded as serious. It spoke for itself and was the greatest, most important consequence for her.[126]

[125]T108

[126]T109

322     It was submitted the plaintiff is to be admired, of course, because of her history since injury.  She has truthfully explained she does not like being a manager and does not like ordering people around.  That was not what she chose, and while it is work still in the same industry, it really is far from what she had wanted, given her joy in carrying out hands-on nursing work.[127]

[127]T109

323     Further, the plaintiff, now in her early fifties, had been deprived of being able to go for very long walks with her dogs she enjoyed pre injury.  Her ability to run and jog was also compromised.[128]

[128]T109

324     The plaintiff’s social life is now restricted and she also has problems playing with her grandchild, having moved to Tasmania to be near he and her daughter.[129]  Further, the plaintiff has ongoing interference with sleep.[130]

[129]T110

[130]T110

325     While not taking medication, as it did not help her, as Dr Hargreaves confirmed, the plaintiff continues to drink heavily at night for pain relief.

326     While treatment had been conservative, the plaintiff had also had an invasive procedure in the form of a CT-guided facet joint injection which gave her little relief.[131]

[131]T111

327     For some years now, the plaintiff has had to alter her lifestyle and be careful of what she was does to manage her back pain, as Dr Hargreaves earlier advised.

Pain

328     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[132]

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

[132]Supra

329     I accept that the plaintiff suffers ongoing constant lower back pain radiating to the left, varying in severity, as she has described in the range of 2 out of 10 on a good day to 8 out of 10 on a bad day.

330     While she was prescribed significant painkillers in early years after her injury, including Endone and Mobic, in more recent times she has found drugs are not the answer to her pain and she self-medicates with a high level of alcohol daily.

331     The plaintiff had a facet joint injection with little improvement in 2015 and is reluctant to undergo that procedure again.  Otherwise no other treatment has been suggested other than pain management by Professor Bittar. 

332     The plaintiff’s lumbar movement is restricted, as found on multiple examination, and she is unable to engage in any heavy bending or lifting, and unable to maintain sustained postures for any period.  I accept she had difficulty sitting still while giving her evidence.[133]

[133]T112

333     As a result of her pain and these restrictions, the plaintiff has been unable to return to hands-on nursing save for two short-lived unsuccessful attempts, the most recent in 2017. The consensus of medical opinion is that she is unfit to perform this work. 

334     I accept this is a serious consequence particularly for a woman who came to nursing late and loves the nurturing caring role of the job with patient contact rather than a higher paid managerial role without it.  She is not comfortable with a managerial role and any conflict it may involve. 

335     Other consequences of the plaintiff’s back pain include difficulty sleeping and an inability to play unrestricted with her grandchild – one of the reasons she moved to Tasmania was to be closer to her family.  Further, the plaintiff is restricted in her ability to do heavier housework.

336     I accept that the plaintiff was relatively active pre injury and able to walk long distances and jog with her dogs. She is no longer able to walk as freely because of back pain.

337     Taking into account all the evidence, I am satisfied the consequences of the plaintiff’s lumbar impairment are “serious”.

338     As the plaintiff’s pain and restrictions have continued for in excess of seven years without significant improvement, I am satisfied her spinal impairment is permanent.

339     Accordingly, I grant leave to bring proceedings for damages for pain and suffering.

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