Kostur v Mars Sugar Australia Pty Ltd and Mars Australia Pty Ltd
[2013] VCC 1586
•6 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-03280
| DUSANKA KOSTUR | Plaintiff |
| v | |
| MARS SUGAR AUSTRALIA PTY LTD and MARS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 – 25 September 2013 | |
DATE OF JUDGMENT: | 6 November 2013 | |
CASE MAY BE CITED AS: | Kostur v Mars Sugar Australia Pty Ltd and Mars Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1586 | |
REASONS FOR JUDGMENT
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Subject: Section 134AB – Lower back injury – Pain and suffering and economic loss – Aggravation of pre-existing degenerative and structural condition of plaintiff’s lower back – Two successive injuries whether each injury considered separately qualifies as a “serious injury”.
Catchwords:
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 – AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 – Petkovski v Galletti (1994) 1 VR 436
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Moore QC with Ms A. MacTiernan | Zaparas Lawyers |
| For the Defendant | Mr J. Gorton SC with Ms G.J. Cooper | DLA Piper |
HER HONOUR:
The application
1. The plaintiff brings two applications pursuant to s. 134AB of the Accident Compensation Act 1985 (Vic) (“the Act”) for leave to bring proceedings for the recovery of damages with respect to a permanent serious impairment of body function, being to her lumbar spine. The parties have agreed for the applications to be heard together. Both applications are with respect to damages for pain and suffering and loss of earning capacity.
2. On 3 June 2000, the plaintiff suffered a severe incident of back pain for which she had a microdiscectomy performed at L5/S1. The plaintiff claims that in two further incidents, she suffered an aggravation of her degenerative lower back condition with particular reference to L4/5 and L5/S1:
1) Firstly on 1 April 2003, when she was working for Mars Australia Pty Ltd (“MA”) and she slipped on a wet floor and fell down some stairs; and
2) Secondly during January and February 2010, when she was working for Mars Sugar Australia Pty Ltd (“MS”) on unrestricted duties on production Lines 4 and 5.
3. The plaintiff’s application is made on the basis that each injury was an aggravation of pre-existing degenerative change to her lumbar spine and that, when considered separately, each injury qualifies as a serious injury.
The law
4. The burden is on the plaintiff to satisfy me on the balance of probabilities that she suffered a permanent body impairment which, when judged by comparison with other cases in the range of possible impairments, the pain and suffering and loss of earning capacity may be fairly described as “at least very considerable” and more than “significant or marked.”[1]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
5. As this is a case where it is claimed that the plaintiff’s pre-existing low back condition has been aggravated by subsequent injuries, I will follow the guidelines set out by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60. This case revisited the legal principles set out in Petkovski v Galletti (1994) 1 VR 436.
6. In Petkovski, the Court of Appeal held that, in the case of a pre-existing condition, an analysis must be made of the extent of impairment of a body function before and after the relevant injury, and the claimed aggravation must itself be a ‘serious injury’.”[2]
[2]at para [26]
7. In Filipowicz, the Court said:
“As it was common ground that Mr Filipowicz had suffered two separate compensable injuries on or after 20 October 1999, the trial judge should have determined the applications for leave to commence common law proceedings against Arnold and AG in the following manner.
First, his Honour should have identified each injury.
Secondly, his Honour should have delineated the impairment consequences of each injury.
Thirdly, in the case of the AG injury, which, although an aggravation of the Arnold injury, was a separate injury, his Honour should have determined whether the injury qualified as a serious injury under s134AB(37) of the Act as amplified by s134AB(38).
Fourthly, in determining whether Mr Filipowicz had discharged the onus of establishing that the AG injury was a serious injury, his Honour should have made a comparison between Mr Filipowicz’s condition before the AG injury and his condition after the AG injury, and should then have made an assessment of the additional impairment.
Fifthly, as the two injuries arose from separate incidents, they could not be accumulated. The AG injury had to satisfy the requirements of a ‘serious injury’ in its own right rather than in combination with the Arnold injury.”[3]
[3]at paras [30] to [36]
The background
8. The plaintiff’s background was set out in her affidavits dated 2 March 2012 and 10 September 2013. The plaintiff also gave evidence. She was born in Croatia on 10 March 1967. After completing high school, she worked in a textile factory for six years from 1985 until 1991. When the war broke out, the factory closed and in 1995 the plaintiff, together with her husband and their first son, moved to Serbia.
9. In 1996, together with her by now two sons, the plaintiff migrated to Australia and her husband followed shortly afterwards. On 11 June 1998, a CT scan of her lumbar spine at L5/S1 revealed a minor annular bulge due to a mild degree of disc degeneration but the conclusion of the report on the scan was that no significant abnormality has been demonstrated.[4]
[4]PCB, p. 105.
10. The plaintiff started work for the defendant, MA, on 10 August 1999 as a process worker in the chocolate room. The factory changed owners several times after she started work. However, this never affected the plaintiff’s position or accrued entitlements.
The discectomy
11. In 2000, the plaintiff woke with severe back pain and pain down her left leg. This pain became worse when she was getting out of her car after driving her children to school.[5] The CT scan of the lumbar sacral spine taken on 6 June 2000 concluded that there was a moderately large left posterolateral disc protrusion at L4/L5 impinging on the left S1 nerve root.[6] On 13 June 2000, a discectomy operation was performed at the Monash Medical Centre. The Outpatient Progress Note from the Southern Health Care network (Southern Health) of 9 August 2000 reported “no pain back at work, very happy.”[7]
[5]Transcript, p. 18.
[6]PCB, p. 106.
[7]PCB, p. 150.
12. The plaintiff returned to work about six weeks after this surgery, performing her normal duties, working full time. These normal duties involved work on a line, packing chocolates into boxes, and the workers rotated to different areas on the same line. The line was divided up to putting chocolates in the box, putting paper over the chocolates, closing the box and then putting them through wrapping machines.
The fall on 1 April 2003
13. The plaintiff claimed that she was able to complete her duties without any difficulties until she had the fall at work on 1 April 2003. The fall happened when she went to assist the people in the jelly department. It was near the end of the shift and there was a lot of water on the floor. When the plaintiff left the jelly area to return to the chocolate area, she had to descend ten steps. As she was going down the stairs, the plaintiff slipped and fell from the top of the stairs to the bottom of the stairs. She landed on the left side of her buttocks and lower back.
14. The plaintiff was taken to the sick room and ice was applied to her back. She then went home and saw her GP, Dr Zorica Bogetic, the next day. At the time, she had pain in her back and left buttock. In her affidavit, the plaintiff described the pain as being “very bad for the first month.”[8] After about one month, she felt better and went back to work for a couple of days, but as the pain got bad again she remained off work until about July 2003.
[8]Affidavit sworn 2 March 2012 at para 6 (PCB, p. 13)
15. During this time, the plaintiff continued to see Dr Bogetic and she attended physiotherapy and took medication for pain. In 2003, she was referred to Mr Armin Drnda, a neurosurgeon, and she had a CT scan performed on 14 May 2003. The report of the scan concluded that there was “a mild left-sided protrusion of the L5-S1 disc with slight irritation of L5 spinal nerve root on the left. No other abnormality seen.”[9]
[9]CT scan, 14 May 2003
16. When the plaintiff returned to work, she was put on light duties working on the process line in the packing department.[10] Her jobs were modified from time to time because on some days she would have increased pain due to working on some of the lines. The plaintiff is 185 cm tall and these difficulties were due to some of the lines being quite low.
[10]PCB, p. 218 certified fit for full time light duties from 1 May 2003
17. On 30 September 2004, the plaintiff was put on permanent restricted duties and advised that she no longer had to provide medical certificates stating that she was only fit for light duties. A Permanent Restrictions Return to Work plan set out her modified duties and included long term restrictions on lifting above 5 kg and avoiding lumbar flexion and twisting.[11]
[11]PCB, pp. 55-57.
18. Between 2004 and 2008, the plaintiff managed her work in the factory because there was an opportunity to work on different machines and rotate her duties. Although she needed to take a couple of days off a year because of her back pain, otherwise she managed the pain with analgesics she purchased from the chemist or supermarket (eg. Nurofen).
19. The plaintiff also received massages now and then, but other than that she did not have any active treatment. Over this time, she saw Dr Bogetic on a regular basis, however this was mainly because she was having injections to help treat an allergic condition that she suffered from.
20. When she was working in the factory, the plaintiff never made any formal complaints about her back but she claimed that she mentioned to, John Zafarakis, and others on many occasions that she felt sore in her back. John would then tell her to work in another area or line so she could rest a bit and change the repetition of her duties.[12]
[12]PCB, p. 14.
21. In or about June 2008, the plaintiff was moved from working as a process worker to serving in the lolly shop which was situated in the factory. The plaintiff described the work in the lolly shop as being “lighter work than in the factory”.[13] Her duties included stacking lollies on shelves and serving customers. When stacking the low shelves, the plaintiff would usually sit on the floor to save her bending over, because that aggravated her back.
[13]Affidavit sworn 2 March 2012 at para 11 (PCB, p. 14).
22. The plaintiff had a chair in the shop which she could sit on when she was not serving customers. The shop was not very busy so she had a lot of time to rest and could have coffee in the shop if she wanted to. She described the duties in the shop as being much better than in the factory because she did not have to bend down so much or stretch over the machines.
23. However, in December 2009, the shop was closed because it was not profitable. The factory closed for Christmas and the plaintiff was advised to report to the factory when she was due to return to work on 4 January 2010.
Plaintiff’s work in January/February 2010
24. When the plaintiff returned to work after the holiday period, she was put on the Line 5 machine. The problem for the plaintiff with this machine was that the line on the machine was very low (700mm) and because she is tall (185 cm), the job was awkward for her. It involved working in a stooped position with her head forward, her shoulders forward and her back in a leaning position for very long periods of time.
25. The plaintiff also worked on the Line 4 machine, which was better because it was higher, although she had to reach further across because the width was greater. She alternated working Line 4 and Line 5 depending on the orders. Sometimes she would work on Line 4 or 5 for several days in a row.
26. The posture required of the plaintiff when working on Line 5 caused her to develop pain and discomfort in her neck, across the top of the right shoulders and low back. After working more than a couple of hours of the shift, the discomfort would become greater. The discomfort often resulted in pain, especially in the low back and neck.
27. On 2 February 2010, the plaintiff worked the whole morning on Line 5 and the pain and discomfort in her neck and back were such that she felt she was unable to continue with these duties. She advised her supervisor and boss of her problems at work. However, she was told the only jobs available for her were working on Lines 4 and 5.
28. On Wednesday 3 February 2010, the plaintiff did not go to work because her back, neck and right shoulder were sore. She went to see Dr Bogetic who suggested she have two days off work. She stayed home for the next two days and returned to work on Friday 5 February 2010.
29. On her return to work, despite asking for other duties on most days, the plaintiff did her usual job on Lines 4 and 5. Every time she worked on Line 5, her back, neck and shoulders felt worse. When she complained about this, the plaintiff was offered a redundancy.
30. Dr Bogetic provided the plaintiff with a certificate to be off work for 3 and 4 February 2010. On 16 February 2010, the plaintiff ceased work and on 17 February she lodged a form for compensation. In late April 2010, she got a letter from defendant MS advising her that her employment was to be made redundant.
Treatment after the plaintiff ceased work
31. On 16 July 2010, Dr Bogetic referred the plaintiff to a psychiatrist, Dr Peter Bosanac, whom she saw on a few occasions. She was also referred to Dr Robert Gassin, whom she saw on six occasions until 16 September 2011.
32. On 26 July 2010, an MRI of the plaintiff’s lumbosacral spine revealed a left paracentral and foraminal disc protrusion producing left S1 radicular compression at the articular recess level. Dr Gassin organised right L4/5 and L5/S1 facet joint injections of cortisone but as these injections provided no relief the plaintiff was referred to Jonathan Bell for physiotherapy treatment.
33. In December 2011, Dr Bogetic referred the plaintiff to Mr Brien Barrett who recommended a pre-operative lumbar discogram to confirm the lesion at L5/S1 and to check on L4/L5, followed by an L5/S1 fusion.
34. In April 2012, the plaintiff commenced treatment with Dr Geoffrey Hogan, psychiatrist, as she was becoming depressed about her predicament. The plaintiff was prescribed Allegron and she saw Dr Hogan about every 4-5 weeks.
35. On 22 August 2013, the plaintiff had an MRI of her lumbosacral spine. The report comment was:
“Stable appearance of the L5/S1 paracentral and foraminal protrusion with mild S1 radiculopathy present. No deterioration seen in appearance and study 2010.”
36. The plaintiff has not worked since February 2010. She gave evidence about seeing a rehabilitation lady three or four times, but this lady did not find her any other employment. The plaintiff also went to a labour hire firm but she claimed that when she told them about her back problems, they informed her that they only organised work for people without injuries or problems.[14]
[14]Transcript, pp. 61-62.
The medical opinion relied on by the plaintiff
Mr Armin Drnda (Consultant Neurosurgeon)
37. Dr Bogetic referred the plaintiff to Mr Drnda for an opinion in May 2003. Mr Drnda provided three reports, dated 26 May 2003, 22 February 2010 and 3 May 2010.
38. On 26 May 2010, Mr Drnda reported that he saw the plaintiff a month after she had fallen down the stairs. She had told him that ever since the fall, she had been suffering from pain in her lower back and buttocks. On examination, Mr Drnda found no limitation of movement of the lumbosacral spine and he reported that a CT scan “didn’t reveal any new disc problem.”[15]
[15]PCB, p. 81.
39. On 22 February 2010, Dr Drnda’s results on examination were similar but he found that there was “a slightly decreased range of movement in the lower back.”[16]
[16]PCB, p. 83.
40. In his report of 3 May 2010, Dr Drnda’s diagnosis was myofascial neck and back pain. In his opinion, the plaintiff appeared:
“not to be fit for work in which she was exposed to awkward positioning of the lower back as well as repetitive bending and twisting of the lower back. She may be capable of performing jobs where these strenuous activities were not performed and restrictions will be accordingly The prognosis was good and with time the plaintiff’s symptoms should subside”.[17]
Mr Brian Barrett (Orthopaedic Surgeon)
[17]PCB, p. 84.
41. Dr Bogetic referred the plaintiff to Mr Barrett, who provided two reports, dated 2 December 2011 and 31 January 2012. Mr Barrett was of the opinion that:
“it was clear she sustained a serious L5-S1 disc injury, causing discogenic pain of a severe degree, symptoms from which first arose in the year 2000 following repetitive heavy, lifting, twisting and carrying activities in the course of her work.”[18]
[18]PCB, p. 88.
42. Mr Barrett described the nature of the plaintiff injury in 2000 as being:
“a rupture of the L5-S1 lumbar intervertebral disc, a condition that has no capacity to repair, and so each lifting, bending or twisting activity, including the fall downstairs during 2003, have added and increased her symptoms and L5-S1 lumbar disc injury.”[19]
[19]PCB, p. 81.
43. With respect to causation, Mr Barrett was of the opinion that the injury commenced in 2000, following repetitive heavy lifting activities and was then aggravated and worsened by the fall in 2003 and further aggravated by her work in early 2010.
44. The only form of treatment was to perform an operative fusion and if untreated the prognosis was for a gradual increase of symptoms and disability.
Dr Robert Gassin (Pain Management Specialist)
45. Dr Gassin reported that the plaintiff was referred to him by Dr Bogetic for management of persistent low back pain.[20] She had consulted him on six occasions between 14 July 2010 and 16 September 2011.
[20]PCB, p. 90.
46. The plaintiff informed Dr Gassin that her pain was constantly present in the lower back. It had a sharp quality and was aggravated by standing, crouching forward, leaning back, bending and twisting. The plaintiff also reported that she experienced difficulty with most activities including lifting.
47. On examination, Dr Gassin noted that the plaintiff had a very limited range of lumbar spine movement in all planes. She was tender to palpation in the right buttock. The neurological examination of the lower limbs was normal.
48. Dr Gassin diagnosed the plaintiff as suffering from discogenic back pain. The L5/S1 disc was the “most likely pain source.”[21] He organised to perform right L4/5 and L5/S1 facet joint injections of cortisone but they gave the plaintiff no relief.
[21]PCB, p. 92.
49. In Dr Gassin’s opinion, the plaintiff was likely to suffer moderately severe low back pain and moderate disability for the foreseeable future. While he considered that the plaintiff had a capacity for non-physical work, he was unaware of her literacy level of education or work experience.
50. Given the time lapse between the onset of pain and his involvement in the plaintiff’s care, Dr Gassin could not comment on the relationship between her symptoms and work. However, he thought it “likely that any physically demanding work would aggravate her pain.”
Mr Jonathan Bell (Physiotherapist)
51. In his report of 22 November 2012, Mr Bell noted that on physical examination the plaintiff’s lumbar flexion was limited to 25% of normal range. Her lateral flexion was similarly limited. She was very limited in her mobility into lumbar extension. Her straight leg raise was limited to 70 degrees bilaterally by pulling in her lumbar spine. Mr Bell’s diagnosis was likely lumbar disc injury resulting in low lumbar instability and trouble coping with loading her lumbar spine.
Medico-legal opinion relied on by plaintiff
Mr Charles Flanc (Vascular and General Surgeon)
52. Mr Flanc’s reports were dated 13 October 2011, 2 February 2012 and 25 October 2012. In summary, his opinion was that the initial aggravation of the plaintiff’s lower back condition occurred in 2000 when she required a laminectomy and a microdiscectomy with an excellent result but she would have been vulnerable to further aggravations in the future.
53. The plaintiff subsequently suffered two significant aggravations of back pain. The first one was in April in 2003, when she fell down the stairs and suffered a very significant aggravation of the degenerative condition of the her lumbar spine so that the level of her back pain was considerably more severe than it was before the fall. This significant aggravation of the pre-existing degenerative condition of her lumbar spine made it symptomatic and vulnerable to further aggravation.[22]
[22]PCB, p. 117.
54. The second aggravation took place in 2010, when the plaintiff’s working conditions changed so that she was no longer on restricted duties and had to stand throughout her shift on the production line and bend frequently which was a particular problem for the plaintiff because of her height.[23]
[23]PCB, p. 128.
55. While Mr Flanc considered that both injuries were significant contributing factors to the plaintiff’s current condition, he placed greater emphasis on the 2003 injury, which resulted in a significant aggravation of the pre-existing degenerative condition of her lumbar spine by making it symptomatic and vulnerable to further aggravations.[24]
[24]PCB, p. 128.
56. In his most recent report of 25 October 2012, Mr Flanc was of the opinion that on the plaintiff’s history, her condition has stabilised and it was “mostly likely her condition will not change significantly over the next 12 months.”[25] The plaintiff had a theoretical capacity for light duties. She should avoid repeated bending, heavy lifting, twisting or prolonged standing.
Elizabeth Lewis (Neurosurgeon)
[25]PCB, p. 129.
57. There were two reports from Ms Lewis, dated 5 December 2012 and 29 September 2013.[26] In her earlier report, the diagnosis was “aggravation of degenerative disc change at L5-S1 with mild radiculopathy.”[27]
[26]PCB, pp. 130-131.
[27]PCB, p. 132.
58. While Ms Lewis believed that plaintiff’s lower back problems arose from the 2003 incident, she also believed that the plaintiff’s problems were aggravated by the duties she performed in 2010.
59. With respect to the plaintiff’s work capacity, Ms Lewis believed that:
“the worker is fit for alternative duties. If she was doing the restricted light duties which she was between 2004 and 2008 she would still be working.”[28]
[28]PCB, p. 132.
60. In her later report, Ms Lewis could not say when the pathology demonstrated in the MRI scans of 26 July 2010 and 22 August 2013 eventuated. It may have been present since 2003 but it was probable that it occurred some time between 2003 and 2010.[29]
Mr David Brownbill (Consultant Neurosurgeon)
[29]PCB, p. 133.1.
61. Mr Brownbill provided two reports, dated 4 September 2013 and 12 September 2013. In his first report, Mr Brownbill noted that on his examination of the plaintiff on 28 August 2013, she had “shown restriction of thoracolumbar spinal movements. There was no objective neurological abnormality of the lower limbs. There were no signs of radiculopathy.”[30]
[30]PCB, p. 137.
62. Mr Brownbill regarded the plaintiff’s condition as being aggravation of lumbar spine degenerative changes. In his opinion, aggravation of pre-existing lumbar spine degenerative changes was consistent with this occurring “as a result of the fall onto her bottom in 2003 and the repeated bending, twisting activities described in 2010.[31]
[31]PCB, p. 139.
63. The plaintiff was not fit for her pre-injury duties. Both the fall and the work activities had resulted in an aggravation of the degenerative changes. Mr Brownbill considered that “on probability each of these events continues materially to contribute to her current condition with on probability each being of equal contribution.”[32]
[32]PCB, p. 139.
64. In his more recent report, Mr Brownbill was of the opinion that it was not possible to state with certainty what the cause of the swollen nerve root of the MRI scan 22 July 2010 was.
Mr Michael Dooley (Orthopaedic Surgeon)
65. The plaintiff also relied on Mr Dooley’s report to MS on 2 February 2011. Mr Dooley was of the opinion that April 2003 when she fell down the stairs the plaintiff “most likely aggravated underlying degenerative disc disease.”[33]
[33]MS’ Court Book (“MSCB”), p. 169.
66. With respect to the 2010 injury, based on all the information available, he believed that it was “probable that the plaintiff aggravated her underlying degenerative disc disease during the course of her work operating the line five machine.”[34]
[34]MSCB, p. 169.
Medical opinion relied on by MA
Mr John O’Brien (Orthopaedic Surgeon )
67. MA also relies on the Monash Medical Centre discharge summary in the Plaintiff’ Court Book in so far as they revealed that the plaintiff had suffered three weeks of back pain radiating down the posterior aspect of the left leg.
68. With respect to the fall in April 2003, Mr O’Brien was of the opinion that the plaintiff’s fall “precipitated her back pain” and therefore that her employment was a significant contributing factor to her current presentation.”[35] With respect to the aggravation in 2010, Mr O’Brien stated that:
“With respect to the employment in 2010, given the history, I would have to conclude that employment in February 2010 has been an aggravating factor of pre-existing lumbosacral disc pathology which initially began in 2000 and was subsequently aggravated in 2003.”[36]
[35]PCB, p. 149.
[36]PCB, p. 38.
69. Mr O’Brien noted that currently the plaintiff described constant low back pain which radiated to the left buttock and the region of the left hip. The plaintiff described “the severity of the pain as 5 to 7 out of 10 on the visual analogue scale.”[37]
[37]PCB, p. 36.
70. As to the prognosis, Mr O’Brien remained guarded. He considered that the plaintiff presented with a moderate disability and resulting mild restriction of her general domestic, social and recreational activities which would be a permanent situation.
71. With respect to plaintiff’s employment prospects, he considered that she was not capable of unrestricted employment and could not undertake her pre-injury occupation. While Mr O’Brien considered that she could undertake the modified duties she undertook between 2004 and 2010, he regarded this as being theoretical as her pre-injury occupation was no longer available.
72. Indeed in his report of 3 September 2012, Mr O’Brien was of the opinion that it was “highly unlikely” that the plaintiff would obtain gainful employment.[38] She remained mildly restricted in relationship to her general social, domestic and recreational activities. This was likely to be permanent.
Mr Keith Elsner (Orthopaedic Surgeon)
[38]MA’s Court Book (“MACB”), p. 43.
73. In his report of 23 May 2011, Mr Elsner was of the opinion that the plaintiff’s employment around 2 February 2010 caused a soft tissue injury of her neck with referred pain into the right shoulder and produced an aggravation of pre-existing lower lumbar disc degeneration without radicular symptoms,[39] and that:
“she suffered an aggravation of pre-existing L5-S1 disc degeneration and possibly some aggravation of pre-existing facet degeneration at that level, which has not completely resolved. In other words, she probably has still not returned to her pre-February 2010 back condition.”[40]
[39]MACB, p. 61.
[40]MACB, p. 178.
74. It was also his opinion that the plaintiff’s work in 2009, and particularly January and February 2010, was still significant contributing factors to her current level of lower back pain.
75. With respect to the 1 April 2003 incident, in his opinion, it was playing some part in the plaintiff’s current condition. However, the plaintiff had “made it very clear” to him that she was able to cope with her full time, albeit restricted, work duties until Wrigley took over the factory.[41]
[41]MACB, p. 62.
76. In addition, Mr Elsner considered that if the plaintiff had continued to work in the “permanent restrictions” role, it was unlikely that she would have suffered further injury to her lower back, bearing in mind that she had been working on these duties with only an occasional days off work from 2004 until at least 2008.
77. In keeping with this opinion, in his report of 12 March 2012, Mr Elsner’s opinion was that the plaintiff would be capable of undertaking work similar to the work she did before Wrigley’s took over the factory. The prognosis was that she would probably continue to experience intermittent lower back pain with moderate bending and lifting activities.
78. MA also relied on the clinical notes of Dr Bogetic in so far as there was no reference in the notes to the plaintiff complaining of back pain from 2005-2009. I will not detail the notes herein, however it is sufficient to say that, despite having some difficulties with the doctor’s handwriting, I am satisfied that there is no reference to back pain over this period.
Medical opinion relied upon by MS
Dr Malcolm Brown (Occupational Physician)
79. In his report of 14 October 2011, Dr Brown was of the opinion that the plaintiff’s spinal condition was primarily constitutional in nature, but that the fall at work, in April 2003, caused a significant exacerbation which lasted for about six months which had now ceased.
80. Dr Brown did not believe that there was any significant aggravation from the return to operational work in early 2010. He also believed that any contribution from her employment to her current condition was minimal.
81. In his opinion, the plaintiff had a capacity for suitable full-time employment in tasks which did not involve heavy lifting, regular bending, or standing still in one position throughout the work shift. Her work capacity was unlikely to change significantly in the future.
Mr David Wallace (Neurosurgeon)
82. Mr David Wallace’s report is dated 12 August 2013. In his opinion, the plaintiff has a permanent loss of low back function as a result of her original injury (the injury in 2000). She had been permanently rendered more prone to back and leg discomfort than an average individual. The principal cause of this is was the injury before her laminectomy/discectomy with subsequent aggravation of the fall down the stairs to a significant degree, with at least temporary aggravation of her troubles by the production line work between January and February 2010.[42]
[42]MACB, p. 223.
83. When asked to apportion the plaintiff’s overall impairment between the three events, Mr Wallace allotted 70 per cent of her impairment to the original injury, 20 per cent to the fall down the stairs, and 10 per cent to the production line work at the end of her career.
84. In so far as the plaintiff’s work capacity is concerned, MS relied on the medical opinion that the plaintiff is capable of performing the work she was doing from the period 2004-2008.[43]
Dr David Barton (Occupational Physician)
[43]Mr O’ Brien, Dr Barton, Mr Dooley, Dr Brown, Mr Wallace, Mr Flanc, Ms Lewis and Mr Brownbill
85. In his report of 18 March 2010, Dr Barton was of the opinion that the plaintiff may have developed a mild soft tissue back injury in association with her previous back injury (the injury prior to the operation). He considered that she should be capable of returning to the duties that she had been performing prior to her recent period of time of work.
Credibility of the plaintiff
86. It was submitted for the defendant MS that I should not accept the plaintiff’s oral or affidavit evidence as to her pattern of symptoms before and after the fall. In particular, the histories given by the plaintiff to Dr Elsner, Dr Brown and Dr Flanc were relied on as revealing that the plaintiff had ongoing problems with low back pain after the operation and before the fall.[44]
[44]Transcript, p. 21.
87. Mr Elsner took a history from the plaintiff that after the operation she had “some back pain off and on particularly when working.[45] Dr Brown, reported that the plaintiff gave him a history that “it was not bad enough to stop her working.”[46] Mr Flanc referred to a history of “occasional mild back pain in her lower back.”[47]
[45]MACB, p. 55.
[46]MACB, p. 189.
[47]PCB, p. 113.
88. When the plaintiff was cross-examined about the history given to Dr Brown and Mr Flanc, she denied that she gave them a history of back pain after the operation.[48] With respect to Mr Elsner, the plaintiff could not remember giving “a history that after the operation and before the fall she had back pain on and off and sometimes took Panadeine Forte for the pain.”[49]
[48]Transcript, pp. 20-21.
[49]MSCB, p. 173.
89. However, I accept that the plaintiff experienced occasional back pain after the operation and that she gave this history to these doctors. Despite accepting that she suffered from occasional back pain I did not form the opinion at any stage of the hearing that the plaintiff was being deliberately evasive or dishonest. Rather I accept that, due to the passage of time, the plaintiff did not recall the pain she experienced after the operation or about giving this history to the doctors.
90. It was also submitted that the plaintiff’s oral evidence, at times, conflicted with her affidavit material. However, it appeared to me that this was largely due to language difficulties and that, in all fairness to the plaintiff, all the questions in the hearing of the application should have been put to her through the interpreter.
91. In assessing the plaintiff’s evidence, I have taken into account that there was no suggestion from any of the many medical experts who saw her, that she was a unreliable historian or being dishonest. In this respect, I note that:
· In her report of 5 December 2012, Ms Lewis described the plaintiff as being obviously very genuine in the history and examination.[50]
[50]PCB, p. 131.
· Mr Dooley, who provided MS with a report, described the plaintiff as “presenting as a sensible and genuine historian” and said that he was not exaggerating her symptoms.[51]
· Mr Elsner, who also reported to the defendant, described the plaintiff “as a pleasant lady who appeared to give a generally straight forward account of her problems.”[52]
[51]PCB, p. 169.
[52]MSCB, p. 176.
92. However, in so far as that there was some conflicting evidence from the plaintiff, in determining the issues in this case I have most been mindful of the guidance provided by the court of Appeal regarding the need in such cases to analyse and give appropriate weight to all the evidence both as to the cause and as to the seriousness of the plaintiff’s injury.[53]
[53]See Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 and Forder v Hutchinson [2005] VSCA 281.
The plaintiff’s lumbar spine prior to the aggravation on 1 April 2003
93. The starting point in this case is the condition of the plaintiff’s lumbar spine prior to the Injury on 1 April 2003. The plaintiff suffered a severe episode of back pain in 2000 and the CT of the plaintiff’s lumbar sacral spine taken on 6 June 2000 revealed a moderately large left posterolateral disc protrusion at L5-S1 impinging on the left S1 nerve root.
94. I accept the medical opinion of Mr Flanc and, and Mr Wallace that the plaintiff sustained a serious L5-S1 disc injury in 2000. This opinion is supported by the CT scan and the fact that the plaintiff underwent a dicectomy at the left L5/S1 level. There is also support for this finding from Mr Dooley, Dr Barton, Mr Barrett, Mr Brownbill and Dr Gassin. In addition I accept that this disc injury made the plaintiff more prone or vulnerable to further back injuries. [54]
[54]MSCB, p. 223, Mr Wallace “permanently more prone ” and MSCB, p. 210, Mr Flanc “vulnerable to further aggravations of the underlying degenerative condition.”
95. However, I also accept that the dicectomy in 2000 was largely successful in relieving the plaintiff’s back symptoms and that she only suffered from occasional back pain after this operation. This finding is supported by the out-patient progress notes from Southern Health and the fact that after a short period of recovery the plaintiff was able to return to full-time normal duties with only occasional pain.
96. Although some of the medical practitioners described a history of the plaintiff suffering from back pain after the operation, I accept that it was occasional and not severe. I also accept the plaintiff’s evidence in re-examination that, after the operation in 2000, she had no restrictions on her housework (including vacuuming and moping), socialising and her private life.[55]
[55]Transcript, pp. 69 and 80.
The injury to the plaintiff’s lumbar spine on 1 April 2003
97. The plaintiff’s case is that as a consequence of the 2003 injury, she suffered pain, soreness, restriction, limitation of movement and loss of amenity. In particular, it is the plaintiff’s case that she suffered a reduction in work capacity so that she could only work at light modified duties. The injury in 2003 was submitted to have caused an increased vulnerability to further injury and, in the event of further injury, a real risk of a total loss of earning capacity.
98. The plaintiff also relied on State of Victoria v Collins [1998] VSCA 129 in submitting that the vulnerability of the plaintiff’s lumbar was, in essence, a progressive, ongoing condition and that any total loss of earning capacity could be attributed to the injury in 2003.
99. While it is conceded by MA that the fall down the stairs on 1 April 2003 probably did cause an exacerbation of the plaintiff’s back pain, it is denied that the consequences of the plaintiff’s injury were such that it met the definition of being a “serious injury”.
100. With respect to the plaintiff’s work capacity, it is accepted by MA that after the fall in 2003, the plaintiff returned to work on restricted duties and that, in September 2004, she was placed on a Permanent Restrictions Return to Work Plan, which set out modified duties and placed long term restrictions on lifting above 5kg and avoiding lumbar flexion and twisting.[56]
[56]This plan set out modified duties and placed long term restriction on lifting above 5kg and avoiding lumbar flexion and twisting.
101. However, the case for MA is that the plaintiff was able to cope with these restricted working duties and there was no loss of earning capacity as required by the legislation and no interference with her life in any significant way prior to 2010.
Finding
The injury
102. With respect to the nature of the plaintiff’s injury I accept the medical opinions of Mr Barrett, Mr Gassin, Mr Flanc, Ms Lewis, Mr Dooley, Mr Brownbill, Mr O’Brien, Mr Elsner and Mr Wallace that the injury suffered by plaintiff as a result of the fall down the stairs on 1 April 2003 was an aggravation of the previous degeneration of her lumbar spine.
Pain and suffering
103. In determining the impairment consequences to the plaintiff of this injury, I have, as suggested by Maxwell P in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, considered the plaintiff’s experience of pain as such and the disabling effect of the pain on her physical capabilities (including capacity for work) and enjoyment of life.
104. Having compared the plaintiff’s condition prior to the injury in 2003 to her condition after the aggravation to her lumbar spine, I am not satisfied with respect to pain and suffering that the plaintiff suffered “a serious injury” as defined in the Act. I consider that this finding is supported by the plaintiff’s own evidence and the observations and histories of the medical experts.
105. In her first affidavit, the plaintiff deposed that:
“Between 2004 and 2008 I managed my work in the factory because there was an opportunity to work on different machines and rotate my duties. I needed to take a couple of days off a year because of the back pain but otherwise I managed the pain with analgesics I had purchased from either the chemist or the supermarket (e.g. Nurofen). A friend who had been taught massage would give me a massage now and then but otherwise I did not require any active treatment. Over this time I was still seeing Dr Bogetic on a regular basis mainly because I was having injections to help treat the allergic condition that I suffer from. That allergic condition never interfered with my work.”[57]
[57]PCB, p. 14 and transcript, p. 57.
106. With respect to the disabling effect of the pain, the plaintiff’s evidence was that:
· she was not able do heavy lifting or to vacuum as well as previously;[58]
[58]Transcript pp. 60 and 73.
· if she needed to bend this caused her problems;[59]
[59]Transcript p. 73.
· she needed the assistance of her family with the heavier shopping;[60]
[60]Transcript p. 73
· she could not recall if her back was causing her problems with sleeping;
· she developed left leg pain (buttock to mid thigh) but never had pain in the whole of her leg;[61]
[61]Transcript, p. 77
· occasionally she had pain in her lower back which was brought on by heavier jobs, standing for a longer period of time, twisting and turning;[62]
[62]Transcript, p. 70.
· at the end of a day on packing duties, sometimes she had problems and sometimes she felt all right;[63]
· despite having to sit down to fill the lower shelves she agreed that she could cope well with her job in the shop.[64]
[63]Transcript, p. 72.
[64]Transcript, p. 39.
107. While the plaintiff gave a history to Dr Gassin that she had “suffered persistent back pain since the fall down the stairs in 2003,” [65] the history the plaintiff gave to most of the medical experts was consistent with her suffering from intermittent mild back pain:
[65]Dr Gassin at PCB, p. 90.
· Mr Drnda reported after the fall in 2003, the plaintiff had several months off work then returned to work on light duties. She then worked in the shop. The job was pretty easy and she kept on working with minimal discomfort in her back.[66]
[66]PCB, p. 83.
· Mr Barrett reported that she was managing fairly well until she was placed on full work again in 2010.[67]
[67]PCB, p. 87.
· Mr Flanc reported that during the period on restricted duties she was able to sit and rotate her jobs so that her back pain remained mild in degree.[68]
[68]PCB, p. 128.
· Ms Lewis reported that when she went back to work she was on light duties the supervisor looked after her and she was happy.[69]
[69]PCB, p. 137.
· Mr Wallace reported that after she returned to work on light duties she remained well until 2010.
· Mr O’Brien reported that following the return to work she continued to be aware of some fluctuating mild back pain and left buttock pain however she continued with her restricted duties and in general remained quite active although she relied on her husband and family to undertake heavy physical duties.[70]
[70]MACB, p. 36.
· Mr Elsner reported that the plaintiff made it very clear to him that she was able to cope with her full time albeit restricted duties until Wrigley took over the factory.[71]
· Mr Dooley reported that she was off work for several months but said she was able to return to normal duties (I note that this was only for a short period).[72]
[71]MACB, p. 62.
[72]MACB, p. 163.
108. In all the circumstances of this case and, in particular, on the evidence set out above, I am satisfied that after the injury in 2003, the plaintiff’s lumbar back pain was intermittent and mild and could be controlled with over the counter medication. The very fact that the plaintiff could not remember if the pain interfered with her sleep supports this finding as does the minimal treatment she was receiving.
109. The plaintiff’s GP’s clinical notes, although difficult to decipher, reveal no complaints of back pain in the many attendances by the plaintiff from 2005 to 2009.[73] In so far as it was submitted that the GP might not have written down everything the plaintiff said, I consider it very unlikely that he would not have recorded complaints of continuing back pain.[74]
[73]Clinical notes of Dr Bogetic.
[74]Transcript, p. 97.
110. While I accept that there was some interference with the plaintiff’s ability to carry out the house work and the shopping, I do not consider it was significant. The most significant consequence of the injury in 2003 has to be that the plaintiff suffered a reduced work capacity. However, it is apparent from the history she gave to the medical practitioners that she was able to continue to work with only a couple of days off a year.
111. While I accept that there were occasion’s when the plaintiff complained of back pain at work, it appears that this was well managed by MA by moving her to work in another area or another line so she could rest a bit or change the repletion of her duties.[75] In any event, the overwhelming evidence is that the plaintiff was able to cope with her restricted duties and it was agreed by the parties that she continued to receive her full wages.
[75]PCB, p. 5.
112. With respect to the plaintiff’s reliance on the decision in Collins to submit that any total loss of earning capacity could be attributed to the injury in 2003, I reject this submission. In doing so, I note that:
· Mr Elsner was of the opinion that if the plaintiff had continued to work with the permanent restrictions, it was unlikely that she would have suffered further injury to her back.[76]
[76]MACB, pp. 178 & 187.
· Mr O’Brien believed that it was possible that if she had continued with permanent restrictions of employment, the plaintiff would have remained in the workforce.
· Ms Lewis was of the opinion that if the plaintiff was doing the restricted light duties which she was between 2004 and 2008, she would still be working.[77]
[77]PCB, p. 132.
113. Prior to her return to duties on production Lines 4 and 5, the plaintiff had been working with only an occasional day off and the weight of the evidence is that suffered form occasional mild back pain. I accept that. but for the change in her duties to work on production Lines 4 and 5, the plaintiff would have continued to work on the modified duties put in place after the fall in 2003.
The injury to the plaintiffs spine in 2010
Case for MS
114. In essence, the case for MS is that the aggravation to the pre-existing degenerative condition of the plaintiff’s spine as a result of the work she did in 2010 does not of itself amount to a serious injury.
115. With respect to the plaintiff’s work capacity, it was submitted that the fall in 2003 had led to permanent work restrictions so that when MS came to employ the plaintiff she was already a worker with a reduced capacity for work.
116. It was submitted that the plaintiff is capable of going back to the same modified factory work she was doing from September 2003, or alternatively the lolly shop work. In this respect, MS relied in particular on the opinions of Mr O’Brien, Dr Barton, Mr Elsner, Mr Brown, Mr Wallace, Mr Flanc, Ms Lewis and Mr Brownbill.
117. MS also relied on the plaintiff’s first affidavit where she deposed that she may be able to work in the factory doing the same rotations of duties as before or work in the lolly shop.[78] In addition it was submitted that the plaintiff had not satisfied the onus of showing that she had made appropriate steps to try and find this type of work.[79]
[78]PCB, p. 22.
[79]Transcript, pp. 42 and 62.
118. With regard to pain and suffering, MS relied in particular on the plaintiff’s evidence that the pain, at its worst, was 5 to 7 out of 10 a few times a month. The plaintiff’s treatment was submitted to be “fairly modest,” and it was submitted that the plaintiff had retained the ability to do most of the housework and to drive, walk and socialise a couple of days a week with her sister.[80]
[80]Transcript, pp. 93-95.
Finding
The injury
119. I find that the plaintiff’s pre-existing lumbosacral disc pathology was aggravated as a result of the nature of the work she did for MS on production lines 4 and 5 in January February 2010. This finding is supported by the medical opinions of Mr Elsner, Mr Barrett, Mr Flanc, Ms Lewis, Mr Brownbill, Dr Brown, Mr Dooley, Mr O’Brien and Mr Wallace.
Pain and suffering
120. Comparing the plaintiff’s experience of pain prior to the injury in 2010 to after the injury, I accept her evidence in re‑examination that after she worked on production line five, her lower back pain “was stronger” and it was there” all the time”.[81] This evidence is in contrast with the history she gave to the medical practitioners after the injury in 2003, as having occasional mild back pain.
[81]Transcript, pp. 78-79.
121. While the plaintiff’s evidence was that, presently, at its worst her pain from out of ten was 5-7, the plaintiff also said that since working in early 2010, her back pain had never gone away and that it was constantly present in her low back.[82]
[82]PCB, pp. 41 and 90.
122. While in 2003, the plaintiff was taking over the counter medication, after the injury in 2010 she was taking prescription medication, Tramal twice a day and Panadol as well as Nurofen.[83] The plaintiff had more treatment than she did after the injury in 2003. She commenced physiotherapy with Mr Bell and received facet joint injections from Dr Gassin. Unlike with the injury in 2003, there is no suggestion that the plaintiff did not complain of back pain to her GP.
[83]Transcript p. 63.
123. While the plaintiff deposed that the pain improved after she stopped working, she still takes between 3 and 5 Panadeine Forte most days and Tramadol a couple of times a week. While the plaintiff can still do house work and drive, she continues to experience difficulty with the housework and shopping and she cannot manage prolonged driving.[84]
[84]PCB, pp. 85-88.
124. In February 2012, the plaintiff gave a history to Mr Elsner of her back pain being present all day every day. It is worst when she sits for more than about 20 to 30 minutes, after she goes for her once or twice daily walk for 15 to 20 minutes, and if she tries to do any heavier house duties.[85]
[85]MACB, p. 67.
125. In November 2012, the plaintiff informed Mr Bell that she had trouble getting comfortable and sleeping at night. She also reported significant pain and stiffness in the morning, she had trouble getting going in the morning and was taking Panadeine Forte and antidepressants. On examination, Mr Bell found her to very limited in her mobility into lumbar extension.[86]
[86]MSCB, p. 212.
126. While the plaintiff is able to do most of her home duties, her husband and son have to do the vacuuming and assist with the shopping. The plaintiff told Mr Elsner that she has to do the duties a lot more slowly than prior to February 2010. In addition that, although she does drive a car, she prefers not to drive very far because of her lower back pain.[87]
[87]MSCB, p. 176.
127. I am satisfied with respect to the pain and suffering consequences that the additional impairment caused by the work in 2010, when judged by comparison with other cases in the range of possible impairments or loss of a body function, can be fairly described as being more than “significant” or “marked and at least “very considerable.”
128. I am also satisfied that the injury and impairment are permanent in that it is likely to last for the foreseeable future. In this respect, I have taken into account that:
· Mr Gassin was of the opinion that the plaintiff was likely to suffer moderately severe back pain and moderate disability for the foreseeable future.[88]
[88]PCB, p. 92.
· Mr Flanc was of the opinion that the plaintiff’s discomfort would continue into the foreseeable future and that it was also possible that her condition would deteriorate in view of the recurrence of the disc prolapse seen on the MIR scan of July 2010 and that she may even require surgery in the future.[89]
· Mr Wallace was of the opinion that her current symptoms were likely to continue in the long term and that she may eventually require some sort o f surgical intervention.[90]
[89]PCB, p. 118.
[90]PCB, p. 220.
Loss of earning capacity
129. With regard to the plaintiff’s work capacity, the plaintiff carries the onus of proof to establish that as at the date of the hearing, she has a loss of earning capacity of forty per cent or more which will continue permanently.[91]
[91]S. 134AB (38)(e)
130. The loss of earning capacity is to be measured by comparing the plaintiff’s gross income from personal exertion, which the plaintiff is earning or is capable of earning in suitable employment as at the date of hearing, with the gross income the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of from personal exertion during that part of the period within three years before and three years after the injury, as most fairly reflects the worker’s earning capacity had the injury not occurred.[92]
[92]S. 134AB (38)(f)
131. Section 5 of the Act provides that suitable employment means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following:
a. The nature of the worker’s capacity and pre-injury employment;
b. The worker’s age, education, skills and work experience;
c. The worker’s place of residence;
d. The details given in medical information, including the medical certificate supplied by the worker
e. The worker’s return to work plan, if any; and
f. Occupational rehabilitation services provided to or for the worker, if any.
132. While in her in her first affidavit, the plaintiff’s belief was that she could work in the lolly shop again if that job was available and maybe in the factory doing her previous modified duties she gave evidence that
“I am not absolutely sure how I would go because I need a lot more analgesics now than when I was working in the factory prior to mid-2008.”[93]
[93]PCB, p. 22.
133. When she was cross-examined about the lolly shop job, the plaintiff agreed that if the job was available she could do some light duties. However, she did not think that she could do the return to work duties she had done previously.[94]
[94]Transcript, p. 62
134. In re-examination, when she was asked about her capacity to work in a milk bar, the plaintiff gave evidence that she did not think she would be able to bring in crates of milk, stack the fridge, particularly the low levels, or bring in a bundle of newspapers.[95]
[95]Transcript, p. 74.
135. The plaintiff is a 46 years old woman who has worked hard as a process worker since arriving in Australia and starting work in the factory in April 1999. It was apparent when she gave her evidence that her English skills are limited and that she had difficulties in understanding the questions put to her.
136. There is no suggestion that the plaintiff is capable even with retraining of doing an office type job. She has now been unemployed since April 2010 and she has given evidence that she does not think she can return to her previous employment. While the majority medical opinion is that she could do the modified duties she was performing from 2003-2009 I accept that her work capacity was best expressed by Mr Flanc, when he said that although she had a theoretical capacity for suitable light duties, he could not indentify any specific job which would be sustainable.[96]
[96]PCB, p. 129.
137. It appears to me that the reality is that her previous modified job was one which catered for her special needs and that it is not one which exists in the reality of the commercial world. In Smorgan Steel Tube Mills Pty Ltd v Miliovjmajkic (2008) VSCA 230, Buchanan JA said, with regard to suitable employment, that:
“I consider that the legislature intended the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work.”
138. I am satisfied that the plaintiff fits into this category of worker and that accordingly given her back ground, skill level, age, work experience and limited English, she permanently has no capacity for suitable employment.
Conclusion
139. I grant the plaintiff leave to bring proceedings against MS pursuant to s. 134AB of the Act to recover damages for pain and suffering and economic loss.
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