Jovanoski v Aged Care Services Australia Group Pty Ltd
[2013] VCC 1173
•5 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION SERIOUS INJURY | Revised (Not) Restricted Suitable for Publication |
Case No. 1320 of 2012
| PETRA JOVANOSKI | Plaintiff |
| V | |
| AGED CARE SERVICES AUSTRALIA GROUP PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12-14 August 2013 | |
DATE OF JUDGMENT: | 5 September 2013 | |
CASE MAY BE CITED AS: | Jovanoski v Aged Care Services Australia Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1173 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Application under s134AB(16)(b), Accident Compensation Act 1985 serious injury for physical consequence of injury and psychological or psychiatric consequences.
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave granted to the applicant to bring proceedings for damages in respect of serious injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Zaparas Lawyers |
| For the Defendant | Mr J Batten | Thomsons Lawyers |
HER HONOUR:
1 Petra Jovanoski seeks leave to bring proceedings under s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of an injury that arose in the course of her employment on 7 May 2010.
2 Ms Jovanoski was employed as a Registered Nurse (Division 1) with Aged Care Services Australia Group Pty Ltd (the defendant) at Yarra West Private Nursing Home.
3 The circumstances of the injury were that Ms Jovanoski was assisting a male patient. He suffered from dementia and was incontinent. The plaintiff was attempting to change him. The patient’s legs had been swung off the bed and she was in the process of attempting to swing his legs back onto the bed when he became resistant and tried to stand up such that she took his weight whilst she was in a bent forward position and suffered injury to her spine (the incident).
4 The plaintiff seeks to rely on both sub-paragraphs (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act.
5 There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;
(c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
6 Leave is sought in respect to both the claimed physical and mental conditions in respect to both pain and suffering and pecuniary loss consequences.
7 Mr Smith submitted that the Court ought to be satisfied that the statutory requirements have been met for both the physical impairment and severe mental disorder.
8 The plaintiff’s claimed physical injury is an aggravation of pre-existing and asymptomatic degenerative changes in the lumbar spine, giving rise, by reason of the incident, to a protrusion or prolapse at the L4/5 level.
9 Mr Smith, on behalf of the plaintiff, relies on an impairment of the lumbar spine for the claim under sub-paragraph (a). The claimed severe mental or permanent severe behavioural disturbance or disorder is for reactive depression; that is, reaction to the physical injury suffered which is of itself a separate and distinct condition for the claim under paragraph (c).
10 Mr Batten, on behalf of the defendant, confirmed that the defendant accepted, through the WorkSafe Claims Agent, a claim for compensation, dated 12 May 2012, for lower back injury occurring in compensable circumstances on 7 May 2010.
11 The defendant contends that the nature of the injury is as an aggravation of pre-existing degenerative changes in the lumbar spine. The defendant contends the extent of injury, namely the aggravation, is governed by the principles as set out in Petkovski v Galletti.[1]
[1][1994] 1 VR 436
12 Mr Batten submitted that the plaintiff’s presentation to treating doctors is inaccurate and misleading. He relied upon the expressed opinion of Mr Michael Dooley, consultant orthopaedic surgeon dated 30 October 2012. Mr Dooley opines that the constancy and intensity of the plaintiff’s ongoing pain are greater than one would expect to see for her condition.
13 Further, Mr Batten submitted the plaintiff does not meet the codified “very considerable” test.
14 In these types of applications, the Court of Appeal has made it clear in Barwon Spinners Pty Ltd & Ors v Podolak & Ors[2] that the correct template is firstly to determine whether the plaintiff suffered compensable injury on or after the 20 October 1999, secondly to determine the nature of that injury and its consequences, and finally to confirm whether the consequences of that injury meet the statutory definition of serious injury.
[2][2005] VSCA 33
15 In this application I have had the real advantage of seeing the plaintiff, Dr Clayton Thomas, the treating Pain Management Specialist and Dr Byron Rigby, the treating Psychiatrist, give evidence and be cross-examined.
16 Dr Thomas has relevant clinical expertise and has treated the plaintiff and had regard to the radiological findings to support his expressed opinion that Ms Jovanoski has an organic injury and there is no reason for him to doubt her veracity.
17 Dr Rigby has also had the advantage of regular reviews and I accept his stated opinion. He considers the plaintiff to be highly motivated. I reject Mr Batten’s submissions that I could not rely on Dr Rigby’s evidence and that he was argumentative and an advocate for the plaintiff.
18 I find that the plaintiff is genuine and reject Mr Batten’s submission that she has presented to doctors in an inaccurate and misleading fashion.
19 The parties relied further upon other medical reports and material that was tendered in evidence and I have read all the tendered material.
20 The plaintiff adopted her two affidavits. The first one was sworn on 10 April 2011 and the second one on 3 May 2013.
21 I shall deal first with the claimed physical injury.
22 By way of background Ms Jovanoski was born on 28 December 1959 in Macedonia. The family moved to Belgrade, Serbia when she was young. She was educated in Serbia. She completed Year 12 and then obtained a Diploma of Nursing. She commenced employment as a nurse whilst living in Serbia. She migrated to Australia in 1986 where the following year she commenced employment as a nurse.
23 Ms Jovanoski has an impressive and solid work history. From about 1987 until mid to late 1988, at which time she accepted a redundancy package, she worked full-time as a Registered Nurse (Division 2) in the North-West Hospital. She then worked for various nursing homes through an agency. In 2000 she upgraded her qualifications to Registered Nurse (Division 1) and commenced working for Cumberland Manor Nursing Home. She worked there approximately 20 hours per week until mid-2008. In 2000 she also commenced working as an Associate Charge Nurse Unit Manager (Interim Ward) at the Sunshine Hospital. That role was for 30 hours per week and ceased in August 2004 when the ward shut down. She then commenced working for Burnside Nursing Home until about mid-2008. In about mid-2008 she worked for a different home again through an agency working between 30 to 35 hours per week. In 2008 she completed an Aged Care Quality Assessment Training Course with the intention to move into the quality assessment area in respect to various nursing homes. In mid 2009 she commenced working as a Registered Nurse (Division 1) with the defendant.[3]
[3]Plaintiff’s affidavit sworn 10/11/2011, paragraphs [2]–[9], Plaintiff’s Court Book (“PCB”) 6-7
24 Ms Jovanoski has a history of compensable back injury. She suffered injury to her lower back whilst lifting a patient in April 1997. She was treated by her General Practitioner with analgesia and returned to normal duties within approximately one month.[4] In December 1997, whilst lifting a patient, she suffered a further incident of lower back pain. She was again treated by her General Practitioner with analgesia and returned to work in February 1998, gradually working back up to full hours and normal duties by mid-1998.[5] In August 2007 she suffered another incident of lower back pain whilst lifting a patient’s legs. Dr Gamboni, General Practitioner, diagnosed “lower back strain”. Her condition improved with chiropractic treatment and she returned to work after approximately one month.[6] She did not experience any ongoing lower back pain or referred pain in her legs and continued her normal duties and hours.
[4]PCB 8, paragraph [11]
[5]PCB 8, paragraphs [15]–[17]
[6]PCB 9-10, paragraphs [22]–[23]
25 The evidence confirms that history of back strains associated with her work.
26 I am satisfied that those injuries suffered in late April 1997, December 1997, and August 2007 were self-limiting. That finding is supported by the independent medical assessments performed by Dr M Wyatt on 27 May 1997 and Mr Michael Shannon, Surgeon, on 23 March 1998 together with the fact that Ms Jovanoski had resumed her normal nursing duties without restriction.
27 Dr Wyatt diagnosed a back strain and confirmed that it had notably improved by the time of her examination. Ms Jovanoski had already returned to work and was performing normal duties. No permanent disability from the April 1997 episode was anticipated.[7]
[7]Defendant’s Court Book (“DCB”) 232
28 Mr Shannon considered that the two separate lifting injuries during the course of her employment in April 1997 and in December 1997 were consistent with a lumbar disc lesion which would probably have been confirmed on a CT scan although this was never performed. He doubted that the plaintiff had a major disc prolapse but noted that Ms Jovanoski had some minor sciatic symptoms and that there did appear to be some genuine restriction of straight leg raising. He considered that the plaintiff was genuine and noted the return to duties on a graduated basis.[8]
[8]DCB 235
29 Similarly, with regard to the August 2007 incident, after a month off work with chiropractic treatment Ms Jovanoski resumed her full time working duties.[9]
[9]PCB 10
30 By mid-1998 Ms Jovanoski had resumed normal duties and normal hours.[10]
[10]PCB 9
31 I therefore consider her condition following the April 1997, December 1997 and August 2007 incidents to have been lower back strains that were self-limiting with no lasting disability. This application is therefore not of a kind that is governed by the principles set out in Petkovski v Galletti.
32 I accept Ms Jovanoski’s evidence that it was not until the following incident in 7 May 2010 that she suffered a significant lower back injury.
33 Immediately following the incident at work on 7 May 2010, Ms Jovanoski noted the onset of lower back and referred leg pain. Later that day she was attended on at home by Dr Ching, a locum General Practitioner, who prescribed Tramal and certified her unfit for work.
34 On 10 May 2010 she was seen by Dr Andrianakis, General Practitioner who prescribed analgesia and referred her for x-rays. Dr Andrianakis remains responsible for her management to the present time. Her course of treatment has been conservative.
35 On 20 May 2010 a CT scan of the lumbar spine was taken and that was reported as showing diffuse disc bulging at the L4/5 level extending into the left-sided neural foramen.[11]
[11]PCB 73
36 On 27 July 2010 Ms Jovanoski was referred to Mr Barrett, Orthopaedic Surgeon, by her General Practitioner. He arranged an MRI of the lumbar spine that was undertaken on 6 August 2010. That MRI is reported as showing left-sided posterior-lateral protrusion at L4/5 with compression of the L5 nerve root.[12]
[12]PCB 74
37 Mr Barrett advised conservative treatment, rest and appropriate medication. Because of the multiple discs involved, he did not recommend surgical treatment.
38 In a report addressed to the plaintiff’s solicitors, dated 16 November 2010, Mr Barrett expresses the opinion, following his clinical, orthopaedic and radiological examination of Ms Jovanoski on 27 July 2010, that he considers she sustained some desiccation, annular splits and some modest posterior disc bulges present at each of her lower four lumbar intervertebral discs. Mr Barrett noted that she was not fit to return to even light or limited work. In addition, he states that the current physiotherapy program was causing aggravation and an increase in symptoms. He advised that physiotherapy should cease. He recommended she continue with conservative treatment, including rest and appropriate medication.[13] He noted the past history of back pain. He considered the incident of the 7 May 2010 was a much more significant and serious work injury.[14]
[13]PCB 43
[14]PCB 43
39 Mr Barrett’s diagnosis is of painful ruptures involving the four lower lumbar intervertebral discs, clearly demonstrated both clinically and radiologically. The prognosis for full recovery he says is very poor given that it effects multiple discs and he postulates that it is unlikely that Ms Jovanoski will be able to return to even light and limited work in the future.
40 Mr Barrett re-examined Ms Jovanoski on 9 June and 3 August 2011. He confirmed the plaintiff’s complaints of significant lower back pain and pain radiating down the left lower limb as far as the left foot. He noted that she experienced intermittent left leg numbness and continued to require daily analgesics to keep her symptoms under control. Car driving was stated to be very difficult and increased her lower back pain. Her sleep remained disturbed and walking any distance is difficult and painful.[15]
[15]PCB 45
41 His opinion remained the same. There was no improvement over the period of time that he had been involved in her care and he stated that is consistent with the inability of lumbar disc ruptures to heal or repair.[16]
[16]PCB 46
42 He opines that radiological investigations taken in August 2010 and July 2011 reveal no improvement or healing of serious and multiple disc ruptures confirming that she has sustained injuries that have no capacity to improve or heal, even into the foreseeable future.[17]
[17]PCB 47
43 On 30 September 2010 Ms Jovanoski was reviewed by Dr Brian Lovell, Physician, who recommended an epidural injection to the lumbar spine, however this was never proceeded with.
44 Dr Lovell confirmed that he assessed Ms Jovanoski for back and left buttock/leg pain, the most predominant problem being the back pain which, he said is almost certainly discogenic in origin.[18]
[18]PCB 48
45 From 28 October 2010 Ms Jovanoski attended Mr Tsironis, Psychologist, for counselling.
46 On 27 June 2011 Ms Jovanoski first attended Dr Clayton Thomas, a Pain Management Specialist, on referral from her General Practitioner.
47 On 27 July 2011 a further MRI of the lumbar spine was undertaken. That MRI is reported as showing a mild bulge at the L4/5 level, slightly smaller than on the previous MRI, that contacts but does not compress the left L5 nerve root. A disc bulge at L2/3 level is unchanged in size but contains T2 hyperintensity consistent with annular disruption. A mild left lateral disc bulge at the L3/L4 level is unchanged in size but also contains a new focus of T2 hypersensitivity consistent with annular disruption.[19]
[19]PCB 76
48 On 2 September 2011 Ms Jovanoski commenced attending Dr Byron Rigby, Psychiatrist, and has continued to be reviewed by him on a fortnightly basis.
49 Ms Jovanoski completed a multidisciplinary rehabilitation program at Dorset Hospital between 29 September 2011 to 29 November 2011 where she had physiotherapy, psychological counselling and occupational therapy. She made some minimal improvement but remained in pain in her lower back and lower limbs.
50 Dr Rigby diagnosed depression and prescribed Lyrica for the neuropathic pain and also a high dose of an SSRI anti-depressant, Avanza.
51 Dr Andrianakis confirms that Ms Jovanoski has remained on strong narcotic analgesia, anti-inflammatory medication and Avanza since early 2012, but says she still has significant lower back pain with reduced mobility and leg weakness and remains unfit for any work duties.
52 Dr Clayton Thomas, Pain Management Specialist, has seen Ms Jovanoski on 27 June 2011, 22 August 2011 and 23 January 2012. He has reviewed the MRIs of the lumbar spine dated 6 August 2010 and 26 July 2012. In addition, he oversaw the rehabilitation program at Dorset Rehabilitation.
53 He considers that Ms Jovanoski is suffering from an L4/L5 left-sided disc prolapse with left sciatica and feels she is significantly disabled and does not have work capacity.[20]
[20]PCB 56, 57.
54 When last seen on 23 January 2012 by Dr Thomas the plaintiff confirmed that she was taking Mersyndol Day and Night at night time, Panadol Osteo during the day, Tramadol infrequently (perhaps two times per fortnight), and Mobic.
55 In her affidavit sworn 10 November 2011, Ms Jovanoski states at the time she saw Dr Thomas she was taking Endep, 25 milligrams at night; Valium, two milligrams at night; Tramadol, 50 milligrams; Mersyndol, two tablets every 6.5 hours and two tablets at night; and Mobic, 15 milligrams. She commenced on Neurontin but stopped because of its side-effects.
56 In her second affidavit Ms Jovanoski states that she commenced the pain management course at Dorset Rehabilitation on the recommendation of Dr Clayton Thomas. The course went for eight weeks, two days a week for about two to three hours each day. The course taught her how to limit strain on her back but did not affect her ongoing pain.
57 In evidence, Ms Jovanoski said that she is currently taking Mersyndol every four to six hours during the day and two tablets of Mersyndol Night when she goes to bed, and, if necessary, Tramadol, 50 milligrams, about twice a week instead of Mersyndol when her back pain is worse. She also takes Valium, five milligrams, once or twice a week for back spasms; Mobic anti-inflammatory every morning; Avanza, 25 milligrams, as an anti-depressant at night; and Nexium daily for stomach upset. She describes her back pain as being much the same.
58 Mr Batten relied heavily on the expressed opinion of Mr Michael Dooley, Orthopaedic Surgeon, who reviewed Ms Jovanoski on the one occasion only on 21 September 2012. He refers to the MRI scan of the lumbar spine in August 2010 that revealed multilevel degenerative disc disease and the subsequent MRI scan of the lumbar spine taken July 2011.
59 Mr Dooley’s opinion is that the plaintiff has naturally occurring and age-related degenerative disc disease of the lumbar spine. Nonetheless, he considers that following the episode at work in May 2010 she sustained a left-sided disc prolapse at L4/5 level that would explain her initial acute lower back pain and subsequent left-sided sciatica.[21]
[21]DCB 81
60 He says, given the time that has elapsed since that incident, that the constancy and intensity of Ms Jovanoski’s ongoing pain is greater than what one would expect to see for her condition. He also opines that the natural history of disc prolapse is improvement with time. He says Ms Jovanoski has had a psychological reaction to her injury that is influencing her ongoing symptoms.[22]
[22]DCB 81
61 I am not prepared to accept Mr Dooley’s expressed opinion based on one examination. I prefer and accept the evidence of the treating specialists Mr Barrett and Dr Clayton Thomas, both of whom have had ample opportunity to observe the plaintiff in a clinical setting and have had the advantage of reviewing the patient over a period of time from which they could make their own independent assessments and findings supported by a thorough review of the results of radiology.
62 Dr Clayton Thomas has extensive clinical experience. He was cross-examined extensively by Mr Batten. Dr Thomas rejected the suggestion put in cross-examination that there were non-organic features to Ms Jovanoski’s presentation.[23]
[23]Transcript (“T”) 57, Lines (“L”) 4-22
63 He was shown surveillance footage taken on 17 June 2012, 25 June 2012 and 31 December 2012.
64 That footage has been viewed by the Court and it depicts the plaintiff doing various activities. I found the surveillance material to be consistent with what the plaintiff has told various assessors about her limitations and stated level of incapacity. The film in no way undermines her credibility.
65 For example, Dr Yong recorded the plaintiff’s stated level of functioning when he examined her on 12 July 2013 as:
· Sit 30 minutes.
· Stand 30 minutes.
· Walking 15 minutes.
· Driving 30 minutes.[24]
[24]DCB 92
66 On 25 June 2012 at around 11.18 am the video shows the plaintiff getting into her car. There is a segment of film at 11.22 am where the plaintiff is seen standing beside a petrol bowser presumably putting petrol into her car. She is then seen walking along the street with a slow gait. At about 11.38 am she is seen sitting at a café alone smoking a cigarette. During some parts of the film Ms Jovanoski is obscured by a man who sits down nearby. At about 11.41 am another female joins her and they drink coffee together. At 12.07 pm Ms Jovanoski leaves.
67 On 17 June 2012 the video shows the plaintiff at 11.38 am opening her car door and carefully getting into the driver’s seat. At 11.44 am she is seen walking into a shop and then through the front window of the café she is seen drinking coffee and having a cigarette. At about 12 pm she is seen walking along the street very slowly towards her car and then driving. At 12.32 pm she is seen alighting from her car and then the view is obscured somewhat as she walks into her driveway.
68 On 31 December 2012, the video shows the plaintiff at 12.23 pm walking slowly down a supermarket aisle holding a basket. At times she is seen walking about the supermarket holding onto the right side of her hip as she is walking. The film is taken from behind the plaintiff. At 12.43 pm she is shown in her car outside her home.
69 In cross-examination, Dr Clayton Thomas was asked whether what was depicted in the video was not a person somebody walking with an antalgic gait. He responded, “I don’t think you could draw that conclusion in totality. Certainly she was not walking with.. I wouldn’t have thought a very brisk gait which was shown in the first DVD and in the supermarket she was holding her back”. He was asked, “Do you say that that video is in any way consistent with the marked disability in her presentation to you?” He answered, “The marked disability was the total picture that I received from her. It is not her ability to walk around a shopping centre”. He agreed that she was capable of doing that.[25] Dr Clayton Thomas said that she did all the other activities such as walking, moving, getting into her car, putting petrol into her car, as he would have expected her to.[26]
[25]T 62, L 24-29
[26]T 63, L 1-4
70 Dr Clayton Thomas confirmed in cross-examination that the plaintiff has chronic pain. He distinguished that from “Chronic Pain Syndrome” as used by Barristers.[27] He disagreed with the suggestion that Ms Jovanoski’s presentation is dominated by non-organic factors. He stated that he thought the emotional distress would magnify her problems and her pain but that it is not the driver of her pain.[28]
[27]T 64, L 16-21
[28]T 65, L 1-4
71 He considered Ms Jovanoski to be motivated and said that she seemed to have made progress during the program in a manner that is in keeping with that of someone who is reasonably motivated to improve.[29]
[29]T 66, L 16-23
72 He considered that the discharge summary indicated that she took on board the principles of pain management and she has had ongoing psychological and psychiatric treatment subsequent to the program and that is reasonable.[30]
[30]T 69, L 12-15
73 Dr Clayton Thomas did not consider that Ms Jovanoski had a current work capacity. He commented that the limitations placed upon her in the assessment provided by Dr Yong, Occupational Rehabilitation Provider, are quite extreme, and that she would have difficulty finding a job with those extreme or severe restrictions.[31]
[31]T 72, L 14-23
74 When Mr Michael Dooley’s expressed opinion, that the constancy and intensity of the plaintiff’s ongoing pain is greater than one would expect to see for a person with her condition, was put to him, he did not consider that that comment was helpful.
75 As far as Mr Dooley’s suggestion that sciatic pain improves in terms of its intensity over time, he said, “We do not see that. We do see that but it’s not a universal absolute”.[32] Dr Clayton Thomas considered that if there is going to be improvement with time, if it is to happen, it is going to happen in the first six months.[33]
[32]T 74, L 1-2
[33]T 74, L 5-6
76 He specifically disagreed with Mr Michael Dooley’s comment that her ongoing symptoms are disproportionate to her situation or that a subsequent significant psychological reaction has occurred. He disagreed expressly with that opinion and noted when she had her first episode of back pain after this event that she had acute pain which was quite disabling from the start. He said that it was not a history in which she has gotten progressively worse because the emotional state was bad from the outset.[34]
[34]T 76, L 1-6
77 He did not consider that the job as a Pathology Collector or a Courier for Pathology would be appropriate for Ms Jovanoski.
78 In re-examination, Dr Clayton Thomas confirmed that Ms Jovanoski’s history was concordant with his examination findings which were concordant with the MRI investigation findings; that is, that the MRI was the third piece of the jigsaw puzzle. He said that that is not common in his area of work. He confirmed that he accepts the L4/5 disc was almost certainly the cause of the left leg pain.[35] He confirmed that there was nothing in the surveillance film that was inconsistent with the manner in which Ms Jovanoski has presented to him.[36]
[35]T 77, L 15-25
[36]T 78, L 11-13
79 He expressly said that he did not have any concerns about Ms Jovanoski’s veracity concerning her complaints to him.[37]
[37]T 78, L 15-16
80 He further clarified what he meant by chronic pain syndrome in the context of Ms Jovanoski’s position. He confirmed that here you have got back pain, disc prolapse and sciatica, and that you could argue that that is Chronic Pain Syndrome. There is a set of signs and symptoms which are common.[38]
[38]T 78, L 20-24
81 He confirmed overall, having regard to his own clinical findings, examinations and the investigations, that he had formed his own conclusion that it was very much an organic problem.[39]
[39]T 79, L 4-5
82 Two medico-legal specialists, Mr Charles Flanc, Vascular and General Surgeon, and Mr David Brownbill, Consultant Neurosurgeon, have both assessed Ms Jovanoski and provided independent assessments.
83 Mr Flanc considered that when he last reviewed Ms Jovanoski, on 21 May 2013, her condition had stabilised. He considered that the work incident of 7 May 2010 had resulted in a significant aggravation of a pre-existing degenerative condition of the lumbar spine in the sense that it became symptomatic and has remained so. The condition has stabilised although it is likely the symptoms will fluctuate in severity. She has a management problem with chronic back pain which is difficult to treat.[40]
[40]PCB 91
84 Mr Brownbill agrees with Mr Flanc’s diagnosis.
85 Mr Peter Scott, Consultant Surgeon, undertook an examination on behalf of the WorkCover Agent, on 26 October 2010. He confirmed Ms Jovanoski suffered from acute severe back pain with discogenic lesions of the lumbosacral spine and evidence of disc prolapse at L4/5 causing lumbosacral nerve root irritation affecting the left lower limb. At that time the condition was not resolved and no improvement had been forthcoming. He did not consider that Ms Jovanoski had capacity for employment by virtue of her chronic, severe pain.[41]
[41]DCB 10-12
86 Mr Peter Battlay, Surgeon, reviewed Ms Jovanoski for the WorkCover Agent on 18 July 2011. He considered that she had lower lumbar disc derangements without radiculopathy and the prognosis was guarded. Her situation had stabilised.
87 Mr Robin Williams, Consultant Orthopaedic Surgeon, examined Ms Jovanoski on behalf of the WorkCover Agent on 24 August 2011. He considered that Ms Jovanoski had chronic pain in her back and left lower limbs associated with L4/5 intervertebral disc pathology. He did not consider that she had a current work capacity. He stated that he was unable to predict whether she would ever be able to return to her normal nursing duties but thought that it was unlikely.[42]
[42]DCB 31
88 Professor Vernon Marshall, Surgeon, reviewed the plaintiff on 4 April 2012. Following his examination he reported to the WorkCover Agent that the diagnosis has a low back strain work injury with persisting discogenic pain and leg pain, and associated anxiety of mood. He believed she was likely to be permanently incapacitated for all duties, including pre-injury and other duties.[43]
[43]DCB 61
89 Subsequently, he was asked to review the surveillance film taken on 25 June 2012 and he considered that the film showed the plaintiff walking without significant restrictions and therefore recommended a trial of return to work with restrictions.[44]
[44]DCB 78
90 Having reviewed the film I disagree with that conclusion.
Conclusions in relation to the claimed physical injury
91 I am satisfied that as a result of the injury that occurred in compensable circumstances at work on 7 May 2010 Ms Jovanoski has suffered an injury to the lower back.
92 The preponderance of medical opinion is that the plaintiff sustained an acute back injury at work on the 7 May 2010 with persisting discogenic pain and referred pain in the leg with discogenic lesions of the lumbosacral spine and evidence of disc prolapse at L4/5.
93 The condition is permanent in the sense that it is unlikely to improve in the future.
94 In determining the outcome of the application, insofar as physical consequences are concerned, I have disregarded any psychological sequelae of the injury.
95 I accept that the injury has impaired the function of the plaintiff’s lumbar spine and that it has had the pain and suffering consequences as set out in her affidavits.
96 The plaintiff’s quality of life has been affected.
97 I accept that Ms Jovanoski suffers chronic pain in her lower back with referral of pain down the legs and to her feet. The pain is managed with strong pain relief and other medications as described.
98 The injury impedes her ability to walk. She walks quite slowly. Prolonged sitting, standing, bending and significant physical activity aggravates her pain symptoms. She only gets some relief by resting and lying down.
99 Ms Jovanoski has not been able to return to her pre-injury employment or any other form of employment since 7 May 2010. With the exception of Dr Stern, a psychiatrist, all medical examiners agree that she cannot perform her pre-injury role as a Registered Nurse – Division 1.
100 She requires assistance to do the heavier aspects of her housework. She is only able to do some light cooking and light domestic chores. She cannot drive for any prolonged periods. She has difficulty sleeping. Her sexual relations have been affected. She does not enjoy socialising as much as she did previously. She no long participates in ballroom dancing with her partner.
101 Overall the evidence supports the conclusion that the pain and suffering consequences are at least very considerable. The degree to which the plaintiff suffers those consequences is more than significant or marked and in my value judgment those consequences are at least very considerable.
102 I am satisfied that the plaintiff’s pain and suffering consequences for the claimed physical injury meets the statutory test.
Loss of earning capacity consequences
103 Mr Batten relied upon the reports of Mr Dooley and Dr Yong, Occupational Physician, to submit that the plaintiff has a residual employment capacity that she has not exercised. He submitted that the Court should find that she is fit for a variety of light physical work, including pathology collector, library assistant, mail clerk, light pathology collector and receptionist in an allied health role.
104 Dr Andrianakis has expressed the view that Ms Jovanoski has no earning capacity by reason of the claimed lower back injury. Furthermore, Mr Barrett and Dr Clayton Thomas accept this expressed opinion.
105 Mr Flanc and Mr Brownbill have both expressed the opinion that Ms Jovanoski does not have any realistic work capacity.[45]
[45]PCB 83, 98.
106 Mr Flanc, when advised of the job opportunities suggested namely, Pathology Collector, Library Assistant, Mail Clerk and Pathology Courier, stated that in theory she could do the pathology collection on a part-time basis for three hours a day, three days per week.[46] Mr Thomas was clear in cross-examination that he did not consider this to be suitable. I defer to his opinion.
[46]PCB 84
107 As far as the role of Library Assistant was concerned, again Mr Flanc thought this was a theoretical possibility for part-time work only, at three hours per day, three days per week. With regard to a position as a Mail Clerk, he did not consider her able to cope with this type of work because his understanding of that job was that it would require moving parcels and bags of mail, using carts if necessary.[47]
[47]PCB 85
108 As for the role of Pathology Courier, Mr Flanc doubted that Ms Jovanoski would be able to cope with that job because of her difficulty driving, as it aggravates her back pain. He considered that the job would be difficult if it involved repetitive bending or twisting and that she probably would be unable to cope with that job.[48]
[48]PCB 85
109 Mr Flanc acknowledged that psychological factors are at play in magnifying perceptions of pain but says that Ms Jovanoski is still suffering from significant symptoms of a physical origin which would decrease her capacity for employment.[49]
[49]PCB 91
110 Mr Brownbill agrees that the plaintiff is not fit for her pre-injury duties and considers that she should avoid heavy lifting, repeated bending or prolonged standing or sitting. He considers it probable that she would have difficulty performing any work for which she is suited in an ongoing and reliable fashion.[50]
[50]PCB 98
111 Mr Brownbill, when asked whether any of the suitable employment options identified of Pathology Collector, Library Assistant, Mail Clerk, or Pathology Courier, stated on balance that she would have difficulty performing any of those occupations in an ongoing or reliable fashion.[51]
[51]PCB 100
112 I find that the plaintiff’s pre-injury employment as a Nurse (Division 1) is no longer suitable employment. She has a number of restrictions on her physically by reason of her injury and does not have the capacity to return to the demands of that role.
113 I accept the plaintiff’s evidence that she would not be capable of undertaking some of the tasks required in the employment as outlined by Dr Yong. I do not consider that the plaintiff is fit for suitable employment.
114 I rely on the expressed opinion and evidence of Dr Clayton Thomas, who considers that the plaintiff is not fit for the various roles proposed by Dr Yong. This is supported by the opinions of Dr Andrianakis, Mr Barnett, Mr Brownbill and Mr Flanc.
115 I reject the expressed opinions of Dr Yong and Mr Dooley. I consider that Dr Clayton Thomas, Mr Barnett, and Dr Andrianakis, the clinicians who have been involved in the management of the plaintiff’s injury, are in a far superior position to clinically assess her and to know and understand the limitations placed upon Ms Jovanoski following injury. Both Dr Yong and Mr Dooley have only met with the plaintiff once prior to formulating their expressed opinions.
116 I have had regard to s134AB(19)(b) which provides that the plaintiff, for the purposes of proving the relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment, including alternative or further or additional employment and the extent of such inability.
117 I am satisfied the plaintiff has satisfied this onus in respect to the physical consequences of her injury.
118 I consider having regard to the evidence of Dr Andrianakis, Mr Barrett, Dr Clayton Thomas, which I accept, that the plaintiff does meet the statutory test in respect of loss of earning capacity in respect to her physical injury.
Psychiatric injury and its consequences
119 Dr Byron Rigby has been treating Ms Jovanoski since 2 September 2011 on referral from Dr Peter Andrianakis.
120 His diagnosis is Depression associated with the plaintiff’s ongoing lower back pain and disabilities.
121 Dr George Tsironis, Psychologist, also sees the plaintiff for treatment.
122 Dr Tsironis states in his report to the plaintiff’s solicitors that he has diagnosed Post-Traumatic Stress Disorder and Adjustment Disorder with mixed anxiety and depression. He considers that Ms Jovanoski has no capacity for work, either for her pre-injury employment or for the proposed employment options of Pathology Collector, Library Assistant, Mail Clerk or Pathology Courier. He considers her to be genuine and honest.
123 Dr Rigby considers that Ms Jovanoski’s symptom pattern is consistent with the presence of a depressive disorder of significant severity and/or acute or chronic adjustment disorder accompanied with anxiety and depression. He considers the psychiatric condition is secondary to chronic pain. He does not consider Ms Jovanoski fit for work.
124 He considers her to be a genuinely motivated person. He is anxious to continue to support her attempts to trial work but is not optimistic that she is capable of undertaking employment. He considers her to be a vital and optimistic lady who is keen to work who is fed up with forced inactivity. However, when in pain, this quality is in abeyance. He confirms that the plaintiff is currently taking Avanza (60mg daily).[52]
[52]PCB 65.2
125 He considers that the plaintiff’s condition has stabilised and that improvement in her psychiatric state is unlikely. He does not consider that she will be fit to resume work in the foreseeable future as a consequence of both the physical disability of pain and the resulting depression and adjustment disorder.[53]
[53]PCB 65.2
126 In contrast, Dr Stephen Stern, Psychiatrist, who reviewed Ms Jovanoski at the request of the WorkCover Agent, diagnosed an Adjustment Disorder with mixed anxiety and depressed mood but considers that the plaintiff does have a current work capacity and says that she is fit for pre-injury duties and hours from a psychiatric aspect alone.
127 In his second report, Dr Stern said that Ms Jovanoski is suffering from residual anxiety and depression in relation to chronic pain. He indicated a worsening of the adjustment disorder with mixed anxiety and depressed mood. He states nonetheless that Ms Jovanoski is fit, from the psychiatric point of view, for pre-injury or other work, including the job options identified in the vocational assessment of 27 February 2013. His prognosis is of chronic anxiety and depression and reaction to chronic pain.
128 I am not prepared to accept the expressed opinion of Dr Stern. He has not had the benefit of treating the plaintiff. I consider his suggestion that Ms Jovanoski is fit for her pre-injury duties as a Nurse (Division 1) to be totally unrealistic having regard to the very real demands of the role and is not supported by any other assessor.
129 I accept Dr Rigby’s expressed opinion, which he maintained under lengthy cross-examination, that the plaintiff is a very genuine person who suffers organic pain, and that she has had real difficulties coping with her inability to work and the restrictions imposed on her by reason of her physical injury.
130 Dr Rigby’s observation is that whenever he has seen Ms Jovanoski she is always depressed to some degree, sometimes more than on other occasions.[54] He confirmed during cross-examination that he does not just rely on the self-reported symptoms of the patient but also undertakes his own professional assessment which includes non-elicited, non-objective observations of his own, and that is what he calls “signs”.
[54]T 86, L 21-24
131 His immediate impression upon seeing the plaintiff was that she was depressed and suffering from pain and he has not altered his view. He has seen her for some 20 plus visits since September 2011. He considers there was a period of improvement after the initial treatment and since the first pain program there has been slight improvement as well, but by no means as much.[55] He believes that Ms Jovanoski’s condition is stable but it is a fluctuating condition.[56]
[55]T 95, L 1-23
[56]T 96, L 6-7
132 In response to questions asked about the various jobs proposed as suitable employment, he suggested that he would support employment but that it would need experts who could identify the potential for certain movements to generate pain to confirm whether that particular occupation was within the ambit that would be suitable for Ms Jovanoski. He deferred to Dr Clayton Thomas as being better able than him to identify whether any particular job proposed was appropriate.[57]
[57]T 107, L 29-31, T 108, L 1-8
133 He expressly stated that he did not agree with the expressed opinion of Dr Stephen Stern with respect to the plaintiff’s work capacity.[58]
[58]T 115, L 3-7
Conclusions in relation to the claimed mental disorder
134 I am satisfied that as a consequence of the compensable physical injury that the plaintiff has developed psychiatric injury, described by Dr Rigby as Major Depression, a depressive disorder of significant severity and/or acute or chronic adjustment disorder with anxiety and depression.[59]
[59]PCB 59, 65.5
135 I have had regard to the chronic nature of the plaintiff’s psychiatric symptoms, the extensive ongoing treatment, including cognitive behavioural therapy, counselling and medication to manage her psychiatric symptoms, provided by Dr Rigby.
136 Dr Rigby reports that Ms Jovanoski’s state varies within narrow limits and her overall condition has now stabilised. Improvement in her psychiatric condition is not likely.[60]
[60]PCB 65.2
137 I am therefore satisfied that the plaintiff’s condition is permanent in that it will not improve in the foreseeable future.
138 Ms Jovanoski has now had considerable psychiatric treatment with little, if any, benefit. She is no longer capable of performing her pre-injury duties. As a consequence of her psychiatric injury, her quality of life, level of function and enjoyment, and mood have all dramatically declined. For a woman who is only 53 those consequences are considerable and marked.
139 Section 134AB(38)(d) requires the making of a comparison and a judgement on whether the consequences of mental or behavioural disturbance or disorder could be fairly described as being more than serious to the extent of being severe. Considering the plaintiff’s psychiatric condition alone I am satisfied that the plaintiff has satisfied the “severe” test.
140 The plaintiff has therefore satisfied the test for pain and suffering consequences for the claimed mental disorder.
141 Relying on Dr Rigby’s expressed opinion and evidence I find that the plaintiff has no capacity to engage in her pre-injury employment or similar duties or to engage in employment, be it full-time or part-time, due to the plaintiff’s psychiatric condition.
142 Therefore I consider that the nature of the plaintiff’s psychiatric condition is of such severity that she has functional impairment that precludes her from being fit to undertake suitable employment as defined in the Act.
143 In conclusion, I am satisfied that the plaintiff’s ability to undertake suitable employment has been permanently destroyed from the perspective of both the physical injury and the psychiatric injury, each considered separately.
144 Ms Jovanoski has therefore satisfied me that she has proved a loss of earning capacity of 40 per cent or more and that therefore she has established that she has a serious injury based on pecuniary loss under s134AB(38)(e).
145 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
146 I am satisfied that the plaintiff has discharged the burden of proof in this regard both in relation to the “severe” test and in relation to the factors set out in s134AB(38)(e)-(g).
147 Leave is therefore granted to the plaintiff to bring proceedings to recover damages in respect of injury suffered by her during the course of her employment with the defendant on the 7 May 2010 in respect of both the claimed physical and claimed mental disorder for both pain and suffering damages and pecuniary loss.
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