King v St Vincent's Private Hospital
[2014] VCC 473
•16 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04094
| ANNETTE KING |
| v |
| ST VINCENT’S PRIVATE HOSPITAL |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2014 | |
DATE OF JUDGMENT: | 16 April 2014 | |
CASE MAY BE CITED AS: | King v St Vincent’s Private Hospital | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 473 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dressing v Porter [2006] VSCA 215
Judgment: Leave granted for the plaintiff to bring common-law proceedings for pain and suffering damages for injury suffered to her low back in the course of her employment with the defendant on or about 23 September 2003.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Cvjeticanin | Maurice Blackburn |
| For the Defendant | Mr D Churilov | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on or about 23 September 2003.
2 The plaintiff seeks leave to bring proceedings for damages in relation to 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.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the low back.
6 The plaintiff relied upon four affidavits, sworn 16 July 2010, 28 November 2012, 17 and 20 March 2014. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits and evidence. However, I will refer to the relevant evidence of the plaintiff in my reasoning.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant.[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) “the consequences” to the plaintiff of her impairment to the low back in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
10 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
11 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6](supra) at paragraph [42]
12 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
13 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
14 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serous injury”;[8]
[8]Section 134AB(38)(h)
(b) must make the assessment of “serious injury” at the time the application is heard;[9]
(c) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[10]
[9]Section 134AB(38)(j) of the Act
[10] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
15 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
16 Further, the medical evidence is that the plaintiff had prior back problems; accordingly, the plaintiff must establish that the additional impairment produces the serious consequences.
Investigations
17 On 21 January 2004, a bone mineral densitometry was performed of the femoral, neck and lumbar spine. The conclusion was normal bone density.
18 On 27 May 2004, a CT scan of the lumbar spine concluded:
“No disc prolapse. No spinal canal stenosis or any other abnormal findings.”
19 On 13 April 2005, an x-ray of the lumbar spine showed:
“Alignment of the lumbar spine is normal. There is mild narrowing of the L3/4 disc space. There are degenerative changes affecting facet joints particularly at the lower two lumbar levels bilaterally. Apart from reactive changes secondary to spondylosis, there are no other focal abnormalities. Sacroiliac joints appear normal, apart from mild sclerosis associated with the left which is more likely to be degenerative.”
20 On 5 April 2006, an MRI scan of the lumbar spine concluded:
“Bilateral disc protrusion [at] L5-S1 contacting the right L5 nerve root. Shallow central protrusion also at this level, but lying between the S1 nerve roots. No other compressive discopathy.”
21 On 3 January 2008, an MRI scan of the lumbar spine concluded:
“Comparison is made with the last study performed at SVH on 5th April 2006. There is normal vertebral body height, alignment and marrow signal. Disc desiccation is present at L5/S1. Comma slice at T12 is of normal size and signal. No evidence of soft tissue mass in the field of view.
L5/S1 minor broad based disc bulge is present. Definite extension into the foramen or far lateral space is not identified and there is no evidence of nerve root compression seen. There is no evidence of canal stenosis. Facet degenerative changes are present.”
22 On 3 January 2008, a CT scan of the lumbar spine concluded:
“Facet joint arthropathy is demonstrated at the L4/5 and L5/S1 levels with joint space narrowing at the L5/S1 levels. No focal disc prolapse or nerve root impingement however is seen.”
23 On 19 April 2010, a CT scan of the lumbar spine and pelvis concluded:
“No focal bony abnormality or neurocompressive pathology demonstrated. If there is ongoing concern about bony metastases, a bone scan could be performed.”
The Plaintiff’s medical reports
Kew General Practice
24 In April 2008, Dr Paul Flood, general practitioner, reported that the plaintiff had been treated at the practice in respect to work injuries since December 2003. The plaintiff reported slipping on a wet concrete floor in the toilet area at work, injuring her back and left wrist. She sought physiotherapy for lower back symptoms and Pilates. Both of these treatments were self funded, but the lower back pain and left wrist pain persisted. She saw a doctor in the defendant’s staff clinic, who organised a left wrist x-ray. When returning from the x-ray, she tripped on a manhole cover in the defendant’s hospital. She landed on her left wrist and right knee. The following day, she consulted the Kew practice, and had an x-ray of her right knee on 5 December 2003. The plaintiff reported that the lower back pain had been her biggest problem.
25 In the past twelve months, the plaintiff had sought the following treatment:
· Feldenkrais
· Hydrotherapy
· Water program activities
· Gymnasium program, including cross-training, cycling, walking machine and balance activities.
26 In 2008, the plaintiff reported restriction in bending forwards, because of exacerbation of low-back pain. The low-back pain is mostly right-sided and occurs on sitting. It is localised in the right of the lumbar L5-S1 region. Dr Flood said the history of the accident at work is consistent with her injuries, in particular the pain in her lower back radiating to the buttock and right hip.
27 On examination, pain was localised to the L5-S1 area. Pain radiated to the right buttock. Lumbar spine flexion was restricted, as was lateral flexion and rotation.
28 Dr Flood said imaging showed bilateral lumbar spine facet arthropathy and L5-S1 disc degeneration on CT scan. It is possible that the fall at work would have aggravated the disc degeneration, even causing some disc compression. He said her current symptoms were consistent with aggravation of the process and with the imaging findings.
29 Dr Flood said the plaintiff’s records confirmed that she attended on 15 September 2003 complaining of a rotational injury to her lumbar spine on 11 September 2003 with persistent low-back pain. The records noted that there was a long past history of thoracic backache. Diazepam and the anti-inflammatory, Voltaren, were recommended.
30 In January 2002, the plaintiff consulted Dr Broad, complaining of pain in the back and left sacroiliac joint. The plaintiff was taking the anti-inflammatory, Celebrex.
31 There were low-back pain entries for 1995, 1996 and 1998. Dr Flood said there is no clear diagnosis of lumbar problems.
32 Dr Flood referred the plaintiff to Mr Jithoo, neurosurgeon.
Dr Rondhir Jithoo
33 In his report of January 2009, Mr Jithoo, neurosurgeon, confirmed that he had examined the plaintiff in December 2007. She reported a longstanding history of lower back pain which she described as a shooting and stabbing sensation of moderate severity, alternating with an aching and exhausting feeling in the lumbosacral region and right buttock. The pain severely restricted her vigorous and moderate activities.
34 Mr Jithoo diagnosed mechanical low-back pain with proximal sciatica. He said her injuries seen on scan and presentation were consistent with the stated cause. He said the plaintiff did not have a present capacity for work and he would be guarded as to future capacity for work, depending on the efficacy of the pain treatment recommended. His prognosis was guarded, as the condition is likely to continue and the plaintiff is likely to require future medical treatment, including review by a pain specialist with pain intervention treatment. He referred the plaintiff to Dr Peter Courtney, pain specialist, for consideration of facet joint injection or epidural steroids.
Dr Peter Courtney
35 In August 2010, Dr Courtney, anaesthetist and pain specialist, reported that he had treated the plaintiff on referral from Mr Jithoo. Dr Courtney diagnosed mechanical back and sacroiliac joint pain. He performed sacroiliac joint injections and blocks in May and December 2008, injections in March 2009 and thoraco-lumbar medial branch blocks in July 2009 and January 2010. Dr Courtney said the plaintiff’s sacroiliac joint pain and mechanical back pain were consistent with the fall. He said the plaintiff may require further radiofrequency neurotomies to be repeated at intervals and she may be a candidate for a pain management program.
36 In March 2014, Dr Courtney reported that the plaintiff underwent further radiofrequency denervations on 16 April 2011 and 19 September 2012. He confirmed that in March 2014, he was planning to repeat the radiofrequency denervation but was awaiting approval from the insurer.
Dr Brendan Crockett
37 In March 2014, Dr Crockett at St Vincent’s Staff Health Centre reported that the plaintiff had been treated as a result of a fall at work in a wet bathroom. She reported a history of thoracic pain, initiated by gardening. He said, in May 2009, she re-injured her back. She had been managed by Dr Courtney for pain in her back, which has extended over a ten-year period. He said radiofrequency nerve oblations will be needed, roughly annually, as there was a significant degenerative component. His prognosis was guarded. He said the plaintiff is never pain free.
Mr Gary Speck
38 In May 2012, Mr Speck, orthopaedic surgeon, examined the plaintiff on referral from Dr Crockett. Mr Speck said, based on physical examination and history, the plaintiff’s ongoing symptoms were related to the facet joint degeneration which was aggravated by her original fall. He thought facet joint denervation of the affected joints would be a reasonable treatment. He said the plaintiff had symptoms of mild to moderate severity which had continued for a prolonged period and were unlikely to completely disappear. The progression of arthritis and desiccation in the lumbar facet joints and discs respectively is likely to lead to more instability. He thought her pain and symptoms are likely to persist at the present level. He thought her treatment was appropriate.
Mr John Anstee
39 In August 2013, Mr Anstee, plastic and reconstructive surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. He confined his examination to the wrists. He said she had symptoms of pain and discomfort in each wrist and he did not see that resolving. He said her prognosis is therefore fair only.
Mr Russell Miller
40 In September 2013, Mr Miller, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. She complained of ongoing ache and discomfort in the left wrist, and low-back pain, which remains the dominant feature, with problems with prolonged standing, specifically problems with prolonged sitting, significant sleep disturbance and difficulty with activities of daily living. She also complained of right knee pain, problems with kneeling and squatting, and these caused her to intermittently walk with a limp.
41 The plaintiff reported some intermittent mild ache and discomfort in the past but no significant prior problems with back pain. There was no prior knee problem.
42 Mr Miller said the plaintiff suffered an injury to the left wrist with a soft-tissue injury and there was no evidence of a more severe injury. He believed the prognosis for the left wrist is good.
43 In relation to the lumbar spine, Mr Miller said the plaintiff suffered a musculoligamentous strain and aggravation of degenerative disease in the lumbar spine, including discs and facets, particularly at the lower lumbar levels. He said there was no evidence of radiculopathy or neurological deficit. He said she had a poor response to conservative measures and it is unlikely that she will be assisted by surgery. He believed the prognosis for this is only fair. He believed the lumbar spine condition has been aggravated by the accident in September 2003. He said she will require ongoing treatment with an emphasis on pain management and rehabilitation. Her treatment was appropriate.
44 In respect to her right knee, Mr Miller said the plaintiff had developed chondropathology affecting the patella and medial foraminal condyle. He said the prognosis for the right knee is only fair. It was his view that the plaintiff had pre-existing but asymptomatic disease in the right knee which was rendered symptomatic by the effects of the accident, and that further superimposed injury has occurred. He said the current clinical status reflects predominantly the effects of the accident in September 2003. He thought it is possible that she may require surgical intervention for her knee in the longer term in the form of arthroscopic debridement or possibly more major intervention. He said she is unlikely to require treatment for the left wrist. She may require ongoing treatment, possibly surgery for the right foot, which he said was not directly related to the effects of the accident in September 2003.
45 In a further report of March 2014, Mr Miller was asked to consider the report of Mr Michael Dooley, orthopaedic surgeon. Mr Miller said, in relation to the lumbar spine, he thought Mr Dooley’s report was compatible with his own report. He said the symptoms are likely to be due to degenerative disease in the lumbar spine and aggravation of pre-existing disease in the spine. It is now at a higher level and it is likely that the lumbar spine condition was aggravated by the September 2003 accident.
The Defendant’s medical reports
Mr John Owen
46 In July 1995, Mr Owen, orthopaedic surgeon, examined the plaintiff on referral from Dr Leong with respect to symptoms of pain in her right hip region. On examination, movement of both hips was normal. Her lumbar spine was not tender and she moved well. She reported an episode of acute lumbago at the end of 1994, which he said may be relevant to her complaint of pain in the right hip region. He thought the pain over the lateral aspect of the plaintiff’s hip was more likely to be lumbar than hip in origin. He said if the pain persisted, it would be reasonable to obtain a bone scan. He recommended she do something about her physical fitness.
Mr David Groom
47 In November 2000, Mr Groom, physiotherapist, reported that the plaintiff presented, on referral, for chronic thoracic spine pain, more noticeably on the left, which had gradually worsened over the past two years. It was his opinion that the plaintiff’s underlying problem was degenerative change in the thoracic spine which was worsened by long work hours, poor ergonomics and posture. He suggested a course of mobilisation and postural awareness exercises. He treated the plaintiff on three occasions and the plaintiff reported some degree of improvement. He hoped that with intermittent physiotherapy over the next six weeks, the plaintiff’s symptoms would return to a more tolerable level.
Mr Michael Dooley
48 In August 2013, Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. He said the plaintiff complained of ongoing low-back pain without sciatica. She noted right knee pain with activity and also knee pain in bed at night. Mr Dooley said the plaintiff sustained a soft-tissue injury to the lumbar spine as a result of the fall in September 2003 and a possible soft-tissue injury to the left wrist and possibly both wrists. He thought it is likely that the soft-tissue injury sustained in her fall was an aggravation of underlying degenerative disc disease.
49 Mr Dooley said, based on the documentation, it is evident that she had intermittent episodes of low-back pain in the past but as far as he could tell they had not been major. He said it was likely that the previous episodes of low-back pain related to symptomatic degenerative disc disease of the low lumbar spine. It was his view that the plaintiff’s ongoing low-back pain relates to the aggravation of underlying degenerative disc disease sustained in the work episode and also to the natural evolution of this condition from which she has been previously symptomatic. He said it is likely that the plaintiff would have noted intermittent episodes of low-back pain as a consequence of her underlying condition. From his viewpoint, he would expect the plaintiff to note some ongoing intermittent low-back pain and intermittent left wrist pain. He said, on balance, the constancy and intensity of her ongoing pain were probably greater than he would expect to see for her condition. He thought she most likely had an understandable psychological reaction to her situation but he did not believe that she had an excessive reaction. He said there were no signs of abnormal illness behaviour on clinical examination.
Credit
50 The plaintiff was well-educated, having completed a degree in Applied Science in Occupational Therapy and worked as an occupational therapist for forty years, with some time off to have her four children. At the time of her injury, she was working in a senior position in an administrative role at St Vincent’s Hospital.
51 The plaintiff answered all questions put to her in a direct and frank manner and made appropriate concessions. She conceded that when the cortisone wears off, she will experience pain in her wrists.[11] The plantar fasciitis affected her gardening activities in mid 2013. If she could not remember, she said so. The plaintiff was not challenged on the consequences of her injury. Overall, I accepted that she was truthful.
[11]Transcript 4
Admissions
52 Counsel for the defendant admitted the following:
· The plaintiff had been examined, at the defendant’s request, by Mr Owen Deacon, who provided reports dated 8 May 2004 and 11 October 2006, and Mr Paul Kierce, who provided a report dated 4 February 2010.
· Until the day before the application was commenced, the Defendant’s Court Book index indicated that the defendant had video surveillance of the plaintiff.
53 The abovementioned material was not relied upon by the defendant. In the circumstances, I can infer that the medical reports and video surveillance would not have assisted the defendant.
Analysis of the evidence
Is the injury compensable?
54 All medical witnesses accepted that the plaintiff suffered a compensable injury to her low back in the fall at work in September 2003.
55 In addition, the defendant has paid the plaintiff’s medical expenses and accepted the plaintiff’s s98C claim. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[12] such admission should ordinarily be regarded as very significant –
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[12][2006] VSCA 171
56 No such explanation has been forthcoming in the present case.
57 I accept the plaintiff suffered a compensable injury to her low back in the fall at work on 23 September 2003.
Other issues
58 Counsel for the defendant submitted that the plaintiff’s medical history in relation to her low back was complicated by matters which were not referred to in the plaintiff’s first three affidavits and were not mentioned to any of the doctors in the context of this proceeding, namely:
· Her pre-existing back condition.
· The attendance upon her general practitioner on 11 September 2003, where the plaintiff complained of persistent low-back pain for which it was recommended she take oral anti-inflammatories of Voltaren and Diazepam.
· The attendance on 12 May 2009 on Dr Crockett, who recorded:
“Has hurt her back again and has aggravated her old injury.”
The Plaintiff’s pre-existing condition
59 The evidence was that prior to the work injury, the records of the Kew General Practice recorded the plaintiff’s attendances in relation to low-back pain and thoracic back pain and an attendance relating to an injury to the lumbar spine on 11 September 2003.
60 Dr Flood reported that the plaintiff’s records confirmed that:
· She had received treatment for thoracic back pain. The plaintiff disclosed this to the Court.
· In 1995, 1996, 1998 and 2002, the plaintiff reported low-back pain. Dr Flood said there was no clear diagnosis of low-back problems. The plaintiff could not remember these attendances, but accepted they occurred.
· On 15 September 2003, the plaintiff complained of rotational injury to her lumbar spine on 11 September 2003, with persistent low-back pain. Anti-inflammatories were recommended. The doctor recommended the oral anti-inflammatory, Voltaren, and Diazepam. The plaintiff conceded that she attended on that day but could not remember taking the medication.
· Dr Flood said he could not comment any further from reading the notes. He said there was no clear diagnosis of a lumbar problem at that time.
Medico-legal opinions
61 Mr Miller and Mr Dooley, orthopaedic surgeons, were provided with the report of Dr Flood. Accordingly, they were aware of the plaintiff’s pre-existing condition, namely her complaints of thoracic pain, her attendances in relation to low-back pain, the attendance relating to an injury on 11 September 2003, and reported accordingly.
62 Mr Dooley said that “based on the attached documentation”, the plaintiff had intermittent episodes of low-back pain in the past but as far as he could tell, they had not been major. It is most likely that the previous episodes of low-back pain related to symptomatic degenerative disc disease of the lower lumbar spine. He said:
“In my view, Mrs King’s ongoing low back pain relates to the aggravation of underlying degenerative disc disease sustained in the work related episode and also to the natural evolution of this condition from which she had been previously symptomatic.”
63 In his first report, Mr Miller said the plaintiff reported that she had some intermittent mild ache and discomfort in the past, but there were no significant prior problems with back pain. He diagnosed:
“… a musculo-ligamentous strain to the lumbar spine and aggravation of degenerative disease in the lumbar spine including discs and facets particularly at the lower lumbar levels.”
64 Mr Miller was asked to consider Mr Dooley’s report and said the two reports were compatible.
65 I accept that Mr Miller and Mr Dooley were aware of the plaintiff’s pre-existing condition, and her attendance on 15 September 2003. Both expressed the view that the plaintiff had degenerative disease in the lumbar spine which was aggravated by her work injury on 23 September 2003, and that the previous episodes of low-back pain were intermittent, not major.
Attendance on 12 May 2009
66 Dr Brendan Crockett of the Staff Health Centre at St Vincent’s Hospital recorded that on 12 May 2009, the plaintiff “has hurt her back again and has aggravated her old injury”. A medical certificate and Voltaren Rapid prescription were provided.
67 The plaintiff’s evidence was that she pushed a piece of equipment on that day, which caused her back pain, and she probably saw Dr Crockett.[13]
[13]Transcript 34
68 The plaintiff’s evidence was that she was diagnosed with breast cancer on 28 May 2009. She underwent a mastectomy on 30 June 2009, and took long service leave. She wanted to return to work. In about October 2009, her general practitioner suggested she retire because of the ongoing pain from her injuries and her medical condition. She said the injury to her back and wrists was only part of the reason why she retired; her husband was diagnosed with metastatic cancer, and she had undergone surgery.
69 Counsel for the defendant made two additional submissions in relation to the May 2009 attendance. First, Dr Crockett, the staff general practitioner with the defendant, on 12 May 2009, recorded “an aggravation of the old injury”. This was a separate injury. Second, after the September 2003 injury, the plaintiff continued working full hours for five and a half years. Within six weeks of the May 2009 attendance, the plaintiff stopped work, and never returned to work. He accepted that there were other reasons for her failure to return to work, but submitted, in the absence of the plaintiff not disclosing this history to the medical witnesses who examined her, the Court is not in a position to determine whether the consequences of the plaintiff’s claim result from the injury on 11 September 2003, 23 September 2003 or 12 May 2009.
70 I was not referred to any subsequent records of Dr Crockett or any other medical witness suggesting that the plaintiff’s retirement was related to the attendance on 12 May 2009.
71 I accept that the plaintiff’s decision to retire was due to a number of factors, but did not relate to the attendance on 12 May 2009.
72 I accept that the attendance of May 2009 was not specifically referred to Mr Dooley and Mr Miller for comment. However, there is no record of follow-up attendances by the plaintiff in respect of this incident. The plaintiff was being treated by Dr Courtney from April 2008. He reviewed the plaintiff in April, July and October 2009. There was no suggestion in his report that her condition had worsened as a result of the May 2009 injury. He noted that her husband had been diagnosed with metastatic cancer and that she had retired. I accept that the incident in May 2009 was temporary and did not worsen the plaintiff’s condition.
73 Based on the evidence (both medical and that of the plaintiff) I accept that, as a result of her work injury on 23 September 2003, the plaintiff suffered a musculo-ligamentous strain to the lumbar spine and aggravation of a degenerative disease in the lumbar spine, including discs and facets at the lower lumbar levels. I do not accept that any further injury on 12 May 2009 was permanent and worsened the plaintiff’s condition.
Nature of the Plaintiff’s injury
74 The plaintiff’s injury was variously described as lumbar disc degeneration which could have aggravated the facet arthropathy in the lumbar spine;[14] mechanical lower back pain and proximal sciatica;[15] mechanical back pain and sacroiliac joint pain;[16] a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease in the lumbar spine, including discs and facets, particularly at the lower lumbar levels;[17] a soft-tissue injury which was an aggravation of underlying degenerative disc disease.[18]
[14]Dr Flood
[15]Mr Jithoo
[16]Dr Courtney
[17]Mr Miller
[18]Mr Dooley
75 In considering the consequences of the plaintiff’s impairment, I must make the assessment at the date of hearing. Accordingly, I will be assisted by the more up-to-date medical opinions of Mr Miller, Mr Dooley and Dr Courtney. All examined the plaintiff recently.
76 The medical evidence in relation to the plaintiff’s low back is that the plaintiff suffered a musculoligamentous strain and aggravation of degenerative disease in the lumbar spine, including discs and facets in the fall of September 2013.
Aggravation Injury
77 The Court must consider what the evidence discloses as to the prior condition of the plaintiff, and determine whether the additional impairment is “serious”. In Petkovski v Galletti,[19] the Full Court said that a comparison must be made of the condition of the applicant immediately before the accident with her condition thereafter, and an assessment made of the extent of the additional impairment.
[19][1994] 1 VR 436
78 I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting after September 2003 was serious.[20]
[20]Ibid
79 Prior to 23 September 2003, the plaintiff could not remember suffering low-back pain, but accepted that she attended her general practitioner complaining of low-back pain, as stated in the records.
80 The evidence of the plaintiff’s prior condition was that on five occasions over eight years, the plaintiff attended a general practitioner with complaints of back pain. There were no follow-up attendances, no referrals and no investigations.
81 Mr Dooley said the plaintiff had –
“… intermittent episodes of low-back pain in the past, but as far as I can tell, these had not been major.”
82 Mr Miller obtained a past history that the plaintiff had suffered some intermittent mild ache and discomfort in the past, but there were no significant prior problems with back pain. Mr Miller said:
“It is now at a higher level and it is likely that the lumbar spine condition was aggravated by the accident in September 2003.”[21]
[21]Plaintiff’s Court Book 95A
83 The plaintiff’s general practitioner, Dr Flood, reported:
“1995, 1996 and 1998 file notes refer to back pain or ‘LBP’ [indicating low-back pain]. I cannot comment any further from reading these notes. Certainly there is no clear diagnosis of a lumbar problem.”
84 In relation to the 15 September 2003 attendance, Dr Flood recorded:
“Mrs King attended Dr Patience who recorded a rotational injury to lumbar spine on 11 September, and that there was persistent LBP [low-back pain], and that there was a long past history of thoracic backache, and now there was also left wrist pain. He recommended the oral anti-inflammatory, Voltaren, and Diazepam.”
85 There was an attendance in January 2002 for pain in back and left sacroiliac joint and in February 2002, a note that the plaintiff had been attending physiotherapy twice weekly for six months and was taking the anti-inflammatory, Celebrex. The plaintiff disputed attending physiotherapy for six months. She said it was “more in terms of six or eight visits, possibly each week, possibly each fortnight”.[22]
[22]Transcript 22
86 Prior to the work injury, I accept that any low-back pain the plaintiff suffered was minor and intermittent and did not interrupt her active lifestyle. I accept that in February 2002, she may have received physiotherapy for a short period which settled her back. Accordingly, on a Petkovski v Galletti analysis, the impairment extent at the hearing was referrable to the work injury. I accept the medical evidence is that the low-back impairment is related to her employment with the defendant.
87 As a result of the injury on 23 September 2003, the plaintiff said she initially attended Pilates and received some myotherapy. She took over-the-counter medications such as Nurofen and was prescribed Celebrex. She was referred to a neurosurgeon, Mr Tiew Han, who arranged for a CT scan. He discussed the possibility of surgery, but advised that it was unlikely to assist.
88 The plaintiff was referred to Mr Jithoo, neurosurgeon, who in turn referred her to a pain specialist, Dr Peter Courtney. She underwent seven episodes of injections. The plaintiff has deposed to being in constant pain since 23 September 2003. She has taken various medications for her back and at present she takes Tramadol from time to time and Endone.
89 It is now necessary for me to consider whether the pain and suffering consequences satisfy the statutory criteria.
Pain and suffering consequences
Pain
90 The plaintiff said she suffers pain in her low back all the time. It flares up when she tries to do too much. At its worst, she finds it difficult to put on her socks, stockings and shoes. She finds it difficult to even dry her feet. She has not had a day pain free in ten years. She said the level of pain depends upon the medications she takes. If she does not take medication it becomes marked. She said she cannot take Celebrex for more than two weeks because it upsets her stomach. She now has a bad stomach because of the consumption of Celebrex. She said, because of the pain, she has to modify her activities to fit with what she is physically capable of doing; for example, travelling. She said it is a delicate balance. Sometimes she overdoes activity; for example, she bends too much.
91 The plaintiff’s evidence to the Court was that in 2013, the pain was getting progressively worse. It coincided with her husband dying, with the result that she cancelled an appointment with Dr Courtney. As a result, she was not able to see Dr Courtney until January 2014.
92 Dr Crockett said the plaintiff is never pain free. She cannot walk distances, is tired by day’s end. She is limited in travel.
93 The plaintiff reported the level of pain she suffered to the doctors whom she saw. Mr Miller recorded:
“She has a problem with low back pain and discomfort. It radiates into the buttocks and occasionally further down the legs. It does not radiate into the upper back area. She has some feeling of numbness and tingling in the feet. Back pain remains the dominant feature and she has problems with prolonged standing, but specifically had problems with prolonged sitting at work. She has difficulty with activities of daily living.”
94 He described her ongoing pain problems as “significant”.
95 Mr Dooley reported the plaintiff notes:
“Ongoing low back pain. There is no sciatica pain. She has had injections into her back and these did not help specifically. Radiofrequency denervation treatment did help. She takes Panadol Osteo and Movalis for pain.”
96 Mr Dooley said the constancy and intensity of the plaintiff’s ongoing pain were probably greater than he would expect to see for her condition.
97 Counsel for the defendant submitted that Mr Dooley said it was likely the plaintiff would have noted intermittent episodes of low-back pain as a consequence of the underlying condition. The evidence of the plaintiff is that the pain is constant. She has taken medication and undergone injections which a number of the medical witnesses said will continue into the future. Further, the plaintiff was not cross-examined on this point.
98 I accept the plaintiff’s evidence in relation to her description of the pain that she experiences as a result of the injury to her low back. She was consistent in reporting to the medical witnesses the level of pain she suffered. All medical witnesses accepted the level of pain the plaintiff reported. I accept that the experience of pain for the plaintiff is constant and is a consequence I can take into account.
99 I refer to the observations by Dodds-Streeton JA (with whom Buchanan, Ashley and Kellam JJA agreed):
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[23]
[23]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at [199] and [2010] VSCA 12 at [73]
Medication and treatment
100 The plaintiff’s evidence is she takes Tramadol every day, 12-hourly release, and Endone when the pain is really bad. Initially she took the Tramadol for plantar fasciitis but now takes it for the low-back pain. The plaintiff said she last saw Dr Courtney in January 2014 because the pain was bad and she requested a radiofrequency denervation on the left side. The pain was progressively getting worse during 2013. She had made an appointment to see Dr Courtney but she had to cancel the appointment due to her husband’s illness and subsequent death. She is awaiting approval from the insurer for further treatment with Dr Courtney, which is consistent with the evidence of Dr Courtney and Dr Crockett.
101 The plaintiff agreed that she had attended on her general practitioner on three occasions in 2012 for prescription renewals, and on seven occasions in 2013, but only on one occasion in relation to her low back. The plaintiff’s evidence was that even if she attended for an unrelated matter, she normally discussed her back with her general practitioner.
102 The plaintiff reported to the medical witnesses the level of medication she takes and her current treatment. All doctors accepted that the plaintiff would suffer discomfort, and Mr Miller was aware that the plaintiff was having ongoing pain management from Dr Courtney. He said she will require ongoing pain management and rehabilitation. He thought it unlikely that she will require surgery.
103 Mr Dooley said the appropriate treatment was for her to remain active and to undertake low-impact exercise.
104 In March 2014, Dr Courtney confirmed that he had submitted a request to the insurer to repeat the radiofrequency. He said the plaintiff will require repeat radiofrequency and/or sacroiliac injections from time to time for pain reduction. In March 2014, Dr Crockett said the plaintiff is never pain free; she will require radiofrequency nerve oblations annually.
105 No doctor suggested her treatment was inappropriate. Mr Miller, Dr Courtney and Dr Crockett said the plaintiff will require treatment and medication into the future. I accept that the treatment the plaintiff has is a consequence which I can take into account.
Sleep
106 The plaintiff said her sleep is affected every night. The pain in the left side of the lumbar back disturbs her sleep. She is unable to lie on her left side or on her back. She sleeps with pillows under her knees to maintain her position, but often wakes because she rolls on her back. She said her sleep can be disturbed two or three times a night, which occurs every night. She said she takes Stilnox when she wakes and cannot get back to sleep. Mr Miller said she reported significant sleep disturbances.
107 The plaintiff agreed that she had difficulty sleeping prior to her work injury, and in 2002 was prescribed Stilnox. She said she thought she had two part-time jobs at that time which were particularly stressful. She agreed that she now takes Stilnox because of her back pain.
108 Counsel for the defendant submitted that as the plaintiff was taking Stilnox in 2002 and continued with Stilnox after the work injury to the extent the plaintiff relies on sleep difficulties it was pre-existing. I do not accept that submission. The plaintiff’s sleep disturbance in 2002 was specific to the work she was doing and is unrelated to the plaintiff’s claim in this application. Disturbed sleep is a consequence I can take into account.
Activities of daily living
109 The plaintiff reported how the pain affected her activities of daily living, which she reported to the medical witnesses. Dr Courtney said that now her husband had died, this was creating difficulties as she had to do the jobs that he performed. Mr Miller noted that she had difficulties with domestic and gardening activities. Dr Crockett said she was tired by day’s end, and is limited in travel potential. Mr Dooley said she will be limited in her ability to carry out heavy physical activity and those activities that involve regular bending, manoeuvring and twisting.
110 The plaintiff’s evidence was that she owns two gardens, one at home and one at Phillip Island. Gardening has been her passion. It had been her intention, once she retired, to increase her gardening activities. She cannot do this because of the pain in her low back. She can no longer dig in the garden, climb a ladder to prune trees, nor can she plant annuals in her garden because too much work is involved. In the past, annuals were a feature at her garden in Melbourne. Now she is limited to planting annuals in pots. She has to employ a gardener to do the heavy work in her gardens, the work that she performed prior to her injury. When she bends to pick up leaves her back is sore afterwards and if she performs too much activity, the back pain flares up. I accept that the limitation upon the plaintiff’s ability to garden is a consequence I can take into account.
111 The plaintiff agreed that she had travelled overseas on a number of occasions since 2007. Her son lived in England and she and her husband visited him for between six and eight weeks at a time. The plaintiff’s evidence was that the manner in which they travelled had to accommodate her low back pain. They undertook bus tours, which involved staying in a place for approximately three or four days and doing bus trips of approximately 45 minutes. She said the travelling they did was very low impact. She agreed that they had travelled in September 2007, August 2009, April and September 2010, and October 2011. She said her son had returned to Australia.
112 She agreed that she could travel overseas but said she travels at a slower pace. For example, she went to Japan in April of 2010 for twelve days. She said the tour catered for mostly elderly people, so the pace was a slow pace to fit with the client base. She was the youngest on the tour. She was expected to sleep on a ryokan on the floor, a very thin mattress. She requested four and stacked them on top of each other. I accept that the plaintiff can travel overseas, but that her travelling must accommodate her back injury. This is a consequence I can take into account.
Other medical conditions
113 Counsel for the defendant submitted that the plaintiff was complaining of other medical conditions which would impede the plaintiff’s activities of daily living including gardening. Peak Engineering & Anor v McKenzie[24] requires that where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences that are operative at the date of trial. This would be necessary in considering which of the pain and suffering consequences are attributable to which injury.
[24][2014] VSCA 67
Wrists
114 The plaintiff’s evidence was that she currently had a problem with her right wrist which had pretty much resolved. She said she had a ganglion and had an ultrasound injection into the right wrist in June 2013. Since then, it had not been a problem. She accepted that cortisone is not a permanent solution.
115 The plaintiff reported pain in her wrists. Mr Anstee said the prognosis was fair only. Mr Miller described the injury as a soft-tissue injury to the left wrist. He said the prognosis was good, there was no significant evidence of arthritis and the plaintiff was unlikely to require treatment for the left wrist. Mr Dooley said that the exact nature of the injury to the left wrist was unclear. He was aware that others thought the plaintiff might have arthritis affecting the pisotriquetral joint. He said this maybe the case, but there was no local tenderness when he examined the plaintiff. He said the left wrist symptoms will limit her ability to lift and manoeuvre. He did not consider there was a need for ongoing orthopaedic treatment. Dr Crockett did not refer to the plaintiff’s wrist problem after 2005.
116 There was a dispute on the medical evidence as to whether there was arthritis. Mr Dooley thought the plaintiff might have arthritis which would limit her ability to lift and manoeuvre. I accept that the level of pain the plaintiff suffers in the wrists is at the low end of the spectrum, and that there might be some limitation on her ability to lift and manoeuvre.
Right knee
117 The plaintiff reported right knee pain to Mr Miller, and she reported knee pain with activity to Mr Dooley. Mr Miller said the right knee had been rendered symptomatic by the work injury and the prognosis was fair. Mr Dooley was aware the plaintiff fell on her right knee in the work injury but said it was stable. Dr Crockett did not comment on the right knee injury.
118 In April 2008, Dr Courtney administered injections around the right knee, but provided no further treatment. I accept the current position is that the plaintiff is not complaining about the effects of the right knee and it is stable.
Upper back pain
119 The plaintiff’s evidence was that the pain in her upper back was intermittent. It was relieved in large part by massaging and once ergonomic changes to her workplace were introduced. Once she ceased work, the upper back pain ceased. I accept that currently the upper back is not a problem to the plaintiff.
Plantar fasciitis
120 The plaintiff agreed that she had been suffering from plantar fasciitis, which affects the feet, was very painful, and affected her walking and gardening. She said the condition had improved which is consistent with Mr Dooley’s expectations that the condition would settle.
121 Having considered the evidence relating to the plaintiff’s other medical conditions, the current evidence is that there may be some level of pain in the wrists at the low end of the spectrum, with some limitation on her ability to lift and manoeuvre with the left wrist. I take this into account when considering the pain and suffering consequences of the low back injury. I also take into account the evidence of Mr Dooley that had the plaintiff not suffered the injury at work, he would have expected the plaintiff to suffer intermittent low back pain and intermittent left wrist pain.
122 I accept that the dominant feature of her presentation was low-back pain. This was supported by the medical witnesses.
123 I accept the submission of counsel for the plaintiff that when considering whether the plaintiff established a serious injury for the low back, I should follow what Ashley JA said in Dressing v Porter:[25]
“… In concluding that the appellant had not established that his then inability to work, and his daily restrictions and limitations, were due to his neck injury, it may be, I put the matter no higher, the judge approached the matter from an incorrect standpoint. What his Honour had to do was to decide what symptoms afflicted the appellant in consequence of his compensable injury, and with what effect. If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences. His Honour’s reasons rather suggest that he approached the matter on the footing that there must only be one condition which could satisfy the test.”
[25][2006] VSCA 215 at paragraph [47]
124 Applying that principle, I am satisfied that the pain and suffering consequences of the low-back injury satisfy the serious injury test.
Retained capacity
125 A further submission of the defendant’s counsel was that the plaintiff has retained the capacity to garden and travel. It was not in issue that the plaintiff could perform some work in her gardens, albeit very limited. The plaintiff had travelled, but in a limited manner. The plaintiff has been in the workforce for forty years. Gardening was her passion which, prior to her injury, she pursued at the weekends. It was an activity she intended to pursue upon her retirement. She expressed to the Court her frustration and sadness in not being able to pursue her passion. I accept that this is a significant consequence for this particular plaintiff. Accordingly, I reject the defendant’s submission that the plaintiff has retained the capacity to garden when the gardening she can perform is so limited, and given her evidence that gardening was her passion and her plans to pursue it upon retirement. I accept that the plaintiff can travel but in a very limited manner.
126 Taking all the evidence into account, I am satisfied it is fair to describe the pain and suffering consequences of the plaintiff’s low back as being “more than significant” or “marked” and properly regarded as “very considerable” when judged by a comparison with other cases in the range.
127 In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act. I am satisfied that the low-back injury is permanent, given the evidence from all medical witnesses.
128 The plaintiff therefore satisfies the narrative test for pain and suffering.
129 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the low back is successful.
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