Keser v Benross Pty Ltd
[2009] VCC 205
•18 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-00866
| STOJA KESER | Plaintiff |
| v | |
| BENROSS PTY LTD | Defendants |
| JOSEPHINE LA GOURMET PTY LTD |
---
| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 & 12 March 2009 |
| DATE OF JUDGMENT: | 18 March 2009 |
| CASE MAY BE CITED AS: | Keser v Benross Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0205 |
REASONS FOR JUDGMENT
---
Catchwords: Accident compensation – Accident Compensation Act 1985, s.134AB – permanent serious impairment of the low back – leave granted.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.R. Moore QC with | Zaparas Lawyers |
| Ms Wolski | ||
| For the Defendants | Mr D. Myers | Wisewoulds |
| HER HONOUR: |
1 Stoja Keser brings this application for leave to bring proceedings for the recovery of damages, pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (the Act) in respect of injury to the low back occurring in the course of her employment on or about 18 May 2006.
2 Ms Keser alleges that her injury is a serious injury within the meaning of paragraph (a) of the definition of serious injury in s.134AB(37). The relevant body function in which there has been an impairment or loss is the spine.
3 The defendants deny the plaintiff has a serious injury as defined in respect to the low back condition. Mr Myers, who appeared on behalf of the defendants, accepted that the plaintiff suffered compensable injury to the low back, but submitted the consequences of such was not a serious injury. He submitted that there was a substantial non-organic component to the plaintiff’s presentation and that the plaintiff could not establish that the physical injury had the requisite physical consequences to satisfy the definition of serious injury.
4 The onus of proof is on the plaintiff.
5 The plaintiff seeks leave in respect of both pain and suffering consequences and loss of earning capacity consequences.
6 I have had regard to s.134AB(19)(b) which provides:
“For the purposes of proving a loss of earning capacity in accordance with sub-s.(38) the worker 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.”
7 I have had regard to s.134AB(38)(h) which provides:
“Psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”
8 The plaintiff and her current treating orthopaedic surgeon, Mr Brian Barrett, gave evidence. Each party tendered documentation in respect of Ms Keser’s injury, compensation claims, medical reports and radiological investigations. It was admitted on behalf of the defendants that the plaintiff had been the subject of surveillance for two minutes in August 2008, January 2009 and three minutes in February 2009. There were three occasions on which surveillance was attempted. No evidence of the results of these attempts at surveillance was produced by the defendants.
9 Facts not in dispute: The plaintiff is aged sixty-two. Her date of birth is 28 February 1947. She is married and has two adult children. The plaintiff completed four years of formal schooling in the former Yugoslavia and came to live in Australia in 1974. She had a solid work history taking time out to raise and care for her two children. She re-entered the workforce in 1994. In September 1995, she commenced employment with Josephine La Gourmet Pty Ltd, a company engaged in food manufacturing. Her employment was fulltime as a factory leading hand. Ms Keser has a food hygiene certificate but otherwise does not have any formal education. She has limited skills in spoken English and poor to non-existent skills in reading and writing in English. She has worked predominantly as an unskilled and semi-skilled labourer in manual practical tasks.
10 The circumstances of her injury: Ms Keser injured herself in the circumstances set out in her affidavit, sworn 14 September 2007. In summary, on 18 May 2006, she was attempting to manoeuvre a bin, which was filled with cooked chick peas, to the cool room for storage. Water had spilled near the cool room door in the walkway. Someone had spread a sheet of cardboard over the spillage to presumably soak up the water and, as she was pushing the bin from the back, the front wheels jammed on the cardboard. She pulled the bin back and tried to push the bin around the cardboard, but the front wheels did not pivot causing her to stop suddenly and, when that occurred, she felt sudden pain in her mid and low back (the incident).
11 Ms Keser kept working and eventually got the bin into the cool room. She told her supervisor she had hurt her back prior to lunch and kept working. Her back pain did not improve. She finished her cooking duties, performed lighter duties in the afternoon and then left work early, at about 3pm, to see her general practitioner, Dr Sellathurai, who certified her unfit for work due to her low back condition.[1]
[1] Plaintiff’s affidavit sworn 14 September 2007, paragraphs 7 and 8, PCB 9
12 The plaintiff has continued to experience persisting chronic low back pain with symptoms extending into her buttocks since the incident.
13 Ms Keser was certified unfit for work from 19 May 2006 to 28 May 2006. She returned to light duties four hours a day, three days per week on 29 May 2006. Her hours were increased. She was not able to cope with that and she continued working four hours a day, three days per week with occasional days off. She had physiotherapy treatment and a referral to Mr Razif, orthopaedic surgeon, who arranged radiological investigations on 3 August 2006. In August 2006, due to increasing low back pain, Ms Keser ceased her employment.
14 Plain lumbar spinal film taken at Dandenong Radiology on 3 August 2006 revealed normal general alignment throughout the lumbar spine. The intervertebral disc spaces were well maintained. Marked facet joint osteoarthritic changes were seen in the lower lumbar levels, particularly at L3/4 level on the right side.[2]
[2] PCB 42
15 A CT scan of the lumbar spine also performed at Dandenong Radiology on 21 August 2006 showed normal general alignment. The disc spaces were reported to be well maintained and no significant disc bulging was seen at any lumbar level. There is quite marked bilateral osteoarthritic changes seen in the posterior facet joints throughout the lumbar spine, increasing in severity towards the lower lumbar levels.
16 Ms Keser completed a six week Cedar Court Rehabilitation Program following the cessation of her employment on 23 October 2006. She undertook exercises and an occupational therapy program.
17 On 9 November 2006, she was referred to Mr Brian Barrett, orthopaedic surgeon, who has continued to manage her since that time. He has been treating her conservatively with rest and medication. He has reviewed her on 11 occasions.
18 On 17 November 2006, an MRI of the thoracic lumbar spine was carried out at Cabrini Hospital. The thoracic spine showed normal general contours and no posterior disc bulges were seen at any thoracic level. However, there are some anterior disc bulges present at T7/8, T8/9, T9/10, T11 and T12 levels. The thoracic spinal cord appears to be normal throughout its length. The lumbar spine reveals that the L4/5 lumbar disc is disrupted with a posterior split seen in the annulus and a modest posterior disc bulge present. There are moderate to marked osteoarthritic changes present in the posterior facet joints from the L3/4 level downwards. There is no clear-cut nerve root involvement at any lumbar level.
19 Ms Keser complains of chronic low back pain which spreads into her right buttock. It is worse with any prolonged sitting. After about 10 to 15 minutes sitting, she becomes increasingly uncomfortable. She experiences pain. She walks most days, two to three times a day, between 500 metres to one kilometre. She can drive a car but has to be careful to avoid turning her body too quickly or too far. She only drives locally. She finds it uncomfortable getting in and out of the car. She has experienced difficulty sleeping because of her back condition. She is reliant on her daughter to do most of the cooking at home. Her daughter assists her with washing clothes, vacuuming, cleaning the bathroom and toilet because of the bending and pushing involved.
20 Prior to injury, the plaintiff enjoyed working in her garden. She had a vegetable patch and a flower garden which she used to tend to for several hours at least most weekends. Her husband now does all the gardening. She has given up her tapestry, sewing and knitting. She has limited social activities. She has given up going to her church because she is required to stand during services. She takes Panadeine Forte once or twice a week to manage her back pain and Panadeine, Panadol or Nurofen Plus virtually every other day to limit back discomfort.
21 The plaintiff, prior to injury, was a well person and did not suffer any pre- existing back pain.
22 The plaintiff gave her evidence in a straightforward manner and did not seek to embellish or exaggerate her description of her symptoms and the consequences of her back injury. She gave her evidence, whilst standing, from the witness box. There was no attack upon her credit. Occasionally she would lean forward and hold the witness box and shift her body weight to get into a more comfortable position. I did not observe any of the behaviours described by Mr Brazenor, neurosurgeon, when he examined the plaintiff on the one occasion on 9 February 2009.
23 I observed Ms Keser walking from the body of the court to the witness box. She walked slowly and carefully but in no way exhibited any staggering, lurching gait, nor did she have any accompanying grasping or groaning sounds.
24 Mr Brazenor appears to be out on a limb insofar as his reading of the MRI reports and also in terms of ascribing Ms Keser’s condition to a mild and temporary exacerbation of chronic lumbar pain lasting no more than three months after cessation of her bending and lifting duties.[3]
[3] DCB 64
25 Mr Brazenor considered, from his observations, that she demonstrated an absolutely classical functional display[4] and stated, in his opinion:
“There was gross functional behaviour today bordering on grand theatre. This lady is malingering in an attempt to gain financial compensation.”
[4] DCB 63
26 I do not consider this latter comment to be one that appropriately reflects the plaintiff’s situation, having regard to the totality of the evidence before the court and the weight of medical opinion that confirms the plaintiff has suffered an aggravation of pre-existing asymptomatic lumbar spine degenerative changes with associated intervertebral disc damage at L4/5 with resulting back pain and by referral to right buttock pain as a consequence of the incident at work on 18 May 2006. Accordingly, I reject his evidence in its entirety.
27 I find the plaintiff was a reliable witness of truth and accept her evidence. In particular, I accept her evidence of the low back injury, the nature, extent and course of her low back symptoms and the manner in which the injury interferes with her activities of daily living.
28 In this case, there was clearly no incapacity prior to the event on 18 May 2006 and subsequently there has been incapacity that can, on balance, be ascribed to the rupture of the L4/5 lumbar intervertebral disc and/or the aggravation of pre-existing asymptomatic lumbar spinal degeneration as evidenced in the radiological material that has been tendered in this matter.
29 Mr Myers, on behalf of the defendant, made much of the fact that there is an absence of any objective signs of injury that would point in favour of a particular diagnosis. In particular, he said there is no evidence of leg wasting, weakness of ankle jerk or any other motor weakness which could be classified as objective signs. He submitted that all that was left was radiology of dubious significance and complaints of pain which have only increased with rest.
30 I have had regard to the large number of medical reports submitted in evidence and have carefully considered that evidence. I do not propose to summarise in detail all of that evidence but I shall concentrate on those parts of the medical evidence I consider have been most significant regarding the issues in dispute in this matter.
31 Dr Sellathurai, the treating general practitioner’s, report dated 11 November 2006 sets out the plaintiff’s course following the presentation after the incident that occurred on 18 May 2006. Dr Sellathurai took a history consistent with the plaintiff’s complaint that she twisted her back whilst cooking at work due to pushing a bin. She examined the plaintiff and found her to have muscular strain and prescribed non-steroidal anti-inflammatory medication, Voltaren. She continued to monitor the plaintiff throughout the period following the incident, managed her return to work on light duties and referred her for specialist treatment in July 2006 to Mr Razif. From time to time, she certified Ms Keser unfit for employment due to her back condition. Throughout the period up until November 2006, she managed the plaintiff with physiotherapy, rest and prescribed medication. Dr Sellathurai considers that Ms Keser is unable to do her pre-injury employment or suitable employment.[5]
[5] PCB 40
32 Mr Brian Barrett, orthopaedic surgeon, first examined Ms Keser on 9 November 2006 and continues to manage her care. His diagnosis, following clinical examination and review of all the radiological investigations, is that, following the pushing incident in the course of her employment on 18 May 2006, the plaintiff developed quite severe lower back and mainly right loin and buttock pain, significantly increasing in severity to the point where she has been off work continuously since early 2006.
33 Mr Barrett notes that the plaintiff has osteoarthritic changes present in the posterior facet joints throughout the lower half of the lumbar spine and that that had been present for some time without producing any significant lumbar of thoracic symptoms. He considers the symptoms from 18 May 2006 are due to the lower lumbar disc rupture rather than the posterior facet joint osteoarthritic changes.
34 Mr Barrett notes that the plain and CT films of the lumbar spine reveal moderate to marked osteoarthritic changes in the posterior facet joints in the lower half of the lumbar spine, but in addition to that, his opinion is that the MRI scans reveal that the L4/5 lumbar disc is ruptured with a split clearly seen in the posterior and annulus of that disc and producing a relatively modest posterior disc bulge. His diagnosis is a painful rupture involving the L4/5 lumbar disc, producing low back pain and pain radiating up towards the lower thoracic region without any sciatic element. He considers the lumbar disc rupture is a result of the pushing incident at work on 18 May 2006.
35 Over the course of his review of her progress, initially he thought it may be possible for her to return to lighter forms of work. However, he has modified that opinion in view of the plaintiff’s clinical progress and now states that she is unfit for her pre-injury duties or any other suitable work.
36 Mr Barrett was cross-examined and a challenge was made to his interpretation of the investigations. In his final address, Mr Myers submitted that Mr Barrett was out on a limb in terms of his diagnosis.
37 Mr Barrett has examined Ms Keser on 11 separate occasions between 9 November 2006 and February 2009. He states her symptoms, clinical features and radiological investigations are all consistent with a painful rupture involving L4/5 lumbar intervertebral disc, this producing her lower back pain and now troublesome, and mainly right lower limb, sciatica of her right L5/S1 root distribution.
38 Mr Barrett organised an up to date lumbar spinal MRI to be carried out on 25 February 2009. His interpretation of the MRI is that it reveals normal alignment throughout the lumbar spine. There is desiccation of lumbar discs from L2 to L5 levels, while L1/2 and L5/S1 discs appear normal. The L3/4 disc has a minimal posterior disc bulge present clear of the nearby nerve root. The L4/5 disc has moderate posterior disc bulge seen with a split in the posterior annular fibres close to both L5 nerve roots and pushing into the intervertebral canals bilaterally below the emerging L5 nerve root. There is quite marked facet joint osteoarthritic changes seen in the posterior facet joints from L3 to S1 lumbar levels.
39 Mr Barrett considers that the up to date lumbar spinal MRI investigation confirms the ongoing disruption and a posterior split in the annulus at L4/5 disc level consistent with a significant lower lumbar disc disruption and demonstrating no evidence of healing of this disc disruption between the MRI investigation.
40 In his evidence Mr Barrett confirmed that he disagrees with the expressed opinion of Mr Graeme Brazenor, neurosurgeon, dated 9 February 2009, particularly his statement that, “There is no sign of injury other than the healed posterior annular tear at L4/5”. He maintains there is no capability of the lumbar disc ruptures or annular splits healing, the internal fibres of the intervertebral discs having no blood supply and therefore no capacity to heal or repair following ruptures of the annulus. He maintains the nature of the plaintiff’s work injury on 18 May 2006 with the sudden onset of severely increasing pain, the ongoing nature of her lumbar right buttock and right sciatic symptoms are consistent with a lower lumbar disc rupture, such as that demonstrated on MRI investigations of 16 November 2006 and 25 February 2009.
41 Ms Keser has been seen by a number of medico-legal experts who have provided reports. Some of these are somewhat dated and are limited because they do not refer to all the radiological investigations, in particular, the MRI scans.
42 Mr Peter Mangos, surgeon, reviewed Ms Keser on 13 November 2006. He did not have the opportunity of reviewing the MRIs on that occasion. He thought that her condition was not stabilised and thought it was quite possible there may be some improvement in the next six months. At that time, he did not think she had a work capacity.
43 In a letter dated 27 August 2008, following Mr Mangos’ re-examination performed on that day, he found that Ms Keser was suffering a ruptured L4/5 lumbar intervertebral disc which occurred as a consequence of the injury at work on 18 May 2006. He did not find true sciatica and considered she was totally disabled for return to her pre-injury work.[6]
[6] PCB 65
44 Mr Mangos noted the MRI of the lumbar spine performed on 17 November 2006 and noted the plaintiff had moderate facet joint arthropathy with a broad- based disc associated with a central annular fissure at L4/5 with no evidence of neural compromise. Following re-examination, he stated his opinion that the plaintiff’s condition has remained serious and she is incapable of returning to her pre-injury duties, and his diagnosis has not altered. He stated the MRI clearly reveals that she has an injury to her L4/5 intervertebral disc, but there is no clinical or radiological evidence of true radiculitis. He does not consider that the plaintiff has any work capacity and she is most likely to continue indefinitely to have no work capacity.[7]
[7] PCB 67
45 Mr Charles Flanc, general and vascular surgeon, reviewed the plaintiff on 11 December 2006 and 24 February 2009, and he had the opportunity of reviewing the MRI scan performed in November 2006 which showed disc degeneration at L4/5 level, including an annular fissure which indicated that the lining of the disc had ruptured. He confirmed that MRI scan also shows arthritic changes in the facet joints of the lumbar spine.
46 Mr Flanc’s opinion was that the main physical injury involved L4/5 intervertebral disc which was significantly aggravated by the episode which occurred at work on 18 May 2006 in the sense that it became symptomatic and those symptoms have persisted. He commented that the widespread nature of her symptoms and her clinical examination indicate that her symptoms are probably also being influenced by non-organic factors. He qualified this by saying:
“Despite this it is my opinion that the whole process was initiated by the specific episode which occurred on 18 May 06 which resulted in the significant aggravation of pre-existing disc degeneration of the lumbar spine. In my opinion this aggravation has persisted and is still a significant continuing factor to her current disability.”[8]
[8] PCB 78
47 Mr Flanc confirmed there was no objective neurological abnormality and he considered that the pain radiating down the plaintiff’s right leg is referred from her lumbar spine, but it is doubtful whether there is any actual radiculopathy.
48 In his opinion, Ms Keser had asymptomatic disc degeneration of the lumbar spine, and that became symptomatic following the episode that occurred on 18 May 2006 and that was a specific injury which resulted in significant aggravation of previously asymptomatic disc degeneration in the sense that it became symptomatic. In his opinion, this aggravation has persisted even though the aggravating stimulus has ceased. He considers the physical consequences of her injury alone support her inability to work into the indefinite future.
49 Mr Flanc considers that she is not fit for any heavy work which involves prolonged standing, heavy lifting, frequent bending or pushing. She will never be able to return to her pre-injury employment. She is not capable of suitable employment.
50 Importantly, he considers she has no realistic work capacity. He considers the physical injuries, namely, the aggravation of pre-existing disc degeneration of the lumbar spine at L4/5 level is still making a significant contribution to her pain and disability, notwithstanding any psychological component.
51 Mr Flanc reviewed the up to date MRI of the lumbar sacral spine of 25 February 2009. He disagrees with Mr Brazenor’s expressed opinion that the “disc contours at all levels were absolutely normal except for L4/5 where there was a small posterior annular tear which could not possibly be asymptomatic. There is no sign of injury other than the healed posterior annular tear at L4/5”. He commented that even mild degenerative changes can result in pain and he disagreed with Mr Brazenor’s comment that the small posterior annual tear could not possibly be asymptomatic. He recommended comment by a radiologist in terms of comparing the two MRI scans.
52 Further, he stated that the fact that the plaintiff has ceased her employment does not necessarily correlate with the cessation of pain. He stated that it is not uncommon for an aggravation caused by an injury to persist, despite cessation of heavy work. He repeats his expressed opinion about the association of Ms Keser’s low back condition to the specific incident at work on 18 May 2006 and considers that the injury resulted in a significant aggravation of pre-existing disc degeneration of the lumbar spine which became symptomatic and is still making a significant contribution to her pain, notwithstanding the influence on pain of emotional factors.[9]
[9] PCB 80.3
53 Mr David Brownbill, consultant neurosurgeon, examined Ms Keser on 8 May 2007 and 4 February 2009. His examinations did not reveal any objective neurological abnormalities. There was a varying range of thoraco lumbar spinal movement. He commented her demeanour and responses during examination indicated the presence of an emotional reaction component which likely accentuates and perpetuates her own perception of pain and activity restriction. Nonetheless, he considered that, on the balance of probabilities, she has suffered aggravation of pre-existing asymptomatic lumbar spine degenerative changes with associated intervertebral disc damage at L4/5 with resulting pain.
54 He, too, does not consider she is capable of returning to pre-injury employment or manual type employment. Noting her age, education and work experience, he considers she is not fit for any suitable employment. He considers that she will suffer the consequences of her incapacity and physical injury into the foreseeable future.[10]
[10] PCB 91
55 Mr Brownbill reviewed the MRI of 25 February 2009. He is aware of Mr Brazenor’s opinion. He states he notes and respects his opinions. However, he states that a diagnosis of a patient’s condition requires assessment of the history provided as well as review of the radiological investigation results. The question to be considered is whether for a particular patient the radiological investigation results are significant in the light of the clinical context.
56 Mr Brownbill states, noting all the information provided, that the plaintiff did not have any past back injury or pain before the incident of 18 May 2006 with onset of pain following that incident and the continuation of pain in a fluctuating manner since then, the radiological investigations have shown some degenerative changes at multiple levels of the lumbar spine which he considers, on the information provided, are consistent with being aggravated by the described incident of 18 May 2006 with an ongoing clinical history of pain, as outlined. He did not consider there was any indication, as a result of reviewing the report and expressed opinion of Mr Brazenor, to modify his previously expressed opinions.
57 Ms Keser was reviewed on one occasion by Dr Timothy Entwisle, consultant psychiatrist, on behalf of the defendant. He reviewed her on 1 August 2008. He considered that she did not present with a psychiatric condition which would prevent her, from a psychiatric perspective, of working. She does not require any psychiatric treatment.
58 Ms Keser has been reviewed on behalf of the defendants’ medico/legal examiner, Dr David Barton, consultant occupational physician. His opinion is somewhat dated. He saw Ms Keser on 15 August 2006 and 20 October 2006.
59 At his first consultation on 15 August 2006, he considered there was a functional element to the plaintiff’s complaints, but it was possible she had a soft tissue injury as a result of the work-related incident. On the second occasion, following his examination, he confirmed his original diagnosis. Having reviewed the MRI taken on 17 November 2006 he did not modify his expressed opinion. His opinion is that the MRI scan shows some fairly minor age-related problems which he states he does not believe are particularly relevant. He finds there is no evidence of any disc bulging or neurological compromise.
60 Mr Peter Battlay, surgeon, submitted a report for the insurer following an examination on 16 July 2007. That was in relation to a 4th edition Impairment Assessment. Notwithstanding the nature of the examination, he does state that the MRI scan of the thoracic and lumbar spine of 17 November 2006 shows bulging of the L4/5 disc with some facet joint arthroscopy throughout the lumbar spine and no evidence of neural compromise. He noted the plain x-rays of the lumbar spine showed degenerative changes, particularly at the right L3/4 posterior facet joint and the CT scan of the lumbar spine showed lower lumbar facet joint degenerative changes and with no discrete disc prolapse.
61 Mr Battlay considered that the plaintiff’s history was consistent with her having suffered a soft tissue strain under compensable circumstances in the context of pre-existing degenerative changes of an age-related nature. She has stabilised with permanent impairment. He states that the nature of her spinal condition is aggravated osteoarthritis with mechanical low back pain and referred symptoms in the legs.
62 Dr Mary Wyatt, an occupational physician, performed an independent medical assessment on 8 August 2007. Dr Wyatt completed a workplace assessment on 16 August 2007 and last reviewed the plaintiff on 27 August 2007. She noted throughout that the plaintiff’s condition had not materially altered and that the plaintiff continued to complain of soreness in the back with radiating pain into the legs. Her diagnosis was of chronic back pain.
63 Dr Wyatt considered that the plaintiff has some referred symptoms into the legs but no significant disc prolapse or sciatica. Dr Wyatt considered there were functional components or non-physical factors playing a significant role in the presentation.
64 Her opinion, based solely on physical symptoms, was that the plaintiff is likely to be able to perform a range of modified duties, avoiding heavy lifting or lifting over seven to ten kilograms, avoiding constant work in awkward positions and being encouraged to change posture regularly. She considered that there were some factory-based tasks that do not require a lot of physical work and they would be suitable for Ms Keser, but most packing jobs requiring manual handling would not be suitable. Product controller or quality controller would be suitable. Parking enforcement officer would be reasonable or work as a car park attendant would be suitable, as would work as a school crossing supervisor, mail sorter, ticket sales person, working in retail or working in a café.
65 Mr Michael Dooley, orthopaedic surgeon, reviewed Ms Keser on 15 October 2008 and also provided a supplementary report upon his review of the MRI scan of 25 February 2009. He considered that Ms Keser sustained a soft tissue injury to the lumbar spine and, based on physical injury alone, it would only have a mild effect on social or occupational functioning; that is, some difficulty with bending and lifting, some difficulty with impact activity and active impact on domestic duties. He considered her fit to do light physical work that does not involve regular bending or lifting and some clerical duties. He considered she is unfit to perform heavy physical work.
66 Upon review of the MRI report, he noted that there is desiccation of all the lumbar discs. There were facet joint degenerative changes affecting the lower lumbar levels. It is stated that there is a mild annular disc bulge at L4/5 disc. There is no evidence of nerve root compression and there is no evidence of spinal canal stenosis.
67 He postulates what the MRI shows is age-related, naturally occurring degenerative disc disease and that is essentially the same report as the MRI scan report of 2006.
68 He states:
“The result of this MRI would not cause me to alter my views in relation to diagnosis and prognosis. My view remains that Ms Keser aggravated underlying degenerative disc disease in the work-related episode. Subsequent to this she developed a chronic pain syndrome and it is her psychological reaction to injury and pain that dominates the clinical presentation.”[11]
[11] DCB48
69 Mr Brazenor, neurosurgeon, has reviewed Ms Keser on the one occasion only on 9 February 2009. He acknowledged that the work performed with the defendants was heavy and involved lifting, pushing and pulling. He noted the incident leading to the condition. It is not apparent that he has seen Mr Dooley’s report of 5 March 2009 where he states that Ms Keser aggravated underlying degenerative disc disease in the work-related episode. He agrees with Mr Dooley’s earlier diagnosis of soft tissue injury.
Conclusions – Findings on injury and pain and suffering consequences
70 What is important in this case is to appreciate the context of the plaintiff’s injury. Prior to the incident at work on 18 May 2006, the plaintiff was employed in a fulltime capacity as a leading factory hand at the defendants’ premises. Her work described in her affidavit, which evidence was not contested, was heavy. Ms Keser worked in that environment for about 12 years without restrictions or incapacity. Her job involved a variety of process work. She was required to lift 25 kilogram bags of chick peas half a dozen times a day, she was required to push heavy trolleys and undertook a variety of packing duties. She moved about the plant regularly and there is no suggestion that she was restricted or limited in executing her duties. There is no evidence of any pre-existing back injury or symptoms that limited her capacity to work. Following the incident on 18 May 2006, she has consistently complained of chronic back pain with referral of symptoms into the right buttock. She is no longer able to perform her pre-injury duties. That is the consensus of every examiner who has been required to assess the plaintiff’s condition.
71 There is a dispute as to the nature of the plaintiff’s injury.
72 I am satisfied, on balance, that the plaintiff did suffer injury to her low back, being disc rupture at L4/5 level and aggravation of the previously asymptomatic lumbar spinal degenerative condition and that, as a consequence, she suffers pain that is discal in nature.
73 I have considered the comments made by Mr Brazenor and reject his comments having regard to the matters that I have referred to earlier in my judgment. I have also considered the comments of both Mr Brownbill and Mr Flanc in terms of the emotional contribution.
74 Having regard to the evidence of the plaintiff as to the nature and extent of her back symptoms, the expressed opinions of Mr Barrett, Mr Flanc, Mr Brownbill and Mr Mangos, whose opinions I accept, I am satisfied, to use the words of
Redlich AJ in Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 that─
“The medical evidence has sufficiently identified the physical
consequences of the injury for the plaintiff.”
75 On balance, I am satisfied that there is a clear physical cause for the plaintiff’s injury and the consequences of that result in impairment to the back which satisfies the statutory requirement of serious injury.
76 I am satisfied that the impairment to the back or loss of body function of the spine is permanent in the relevant sense.
77 I am satisfied the impairment or loss of body function of the spine has resulted in pain and suffering consequence which, when judged by comparison with other cases in the range of possible impairment or losses of body function, fairly described as being more than significant or marked and as being at least very considerable.
Findings – loss of earning capacity
78 I have had regard to s.134AB(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. I am satisfied the plaintiff has satisfied this onus. She unsuccessfully attempted to return to work and undertook the Cedar Court rehabilitation program.
79 The plaintiff by reason of her injury has been unable to return to her pre-injury duties.
80 Based on my own observations of the plaintiff and my assessment of the totality of the evidence, I prefer and accept the expressed opinions of Dr Sellathurai and Mr Barrett. Both doctors have had the advantage of seeing the plaintiff over the many years since the incident and have certified her unfit for her pre-injury or suitable duties. Their opinion is supported by Messrs Mangos, Brownbill and Flanc.
81 I have further had regard to the expressed opinion of Mr Radley, vocational assessor, set out in his comprehensive report dated 12 December 2008.
82 I am satisfied that the “without injury” earnings is $650 gross and I accept the expressed opinion of Mr Radley, vocational assessor, that the plaintiff is not fit for any suitable employment within the meaning of s.5 of the Act. I find that the plaintiff has no capacity for suitable employment of her low back injury. I find that the after injury earnings figure is nil and therefore the plaintiff satisfies the 40% loss of earning capacity test under s.134AB(38)(e).
83 Accordingly, I am satisfied, in respect of the low back injury that the plaintiff has a serious injury with respect to both pain and suffering and loss of earning capacity consequences and I grant leave to bring proceedings for the recovery of damages.
- - -
0