Langford v IOR Pharmacies Ltd and VWA
[2009] VCC 540
•19 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
DAMAGES & COMPENSATION LIST
Case No. CI-07-02878
| MERRILYN LANGFORD | Plaintiff |
| v | |
| IOR PHARMACIES LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11, 12 and 13 May 2009 |
| DATE OF JUDGMENT: | 19 May 2009 |
| CASE MAY BE CITED AS: | Langford v IOR Pharmacies Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0540 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985 – injury to lower spine – pre-existing back problem – extent of seriousness.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie | Ryan Carlisle Thomas |
| For the Defendants | Mr A McH Ramsey | Wisewoulds |
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered injury to her lower spine on 13 April 2001 in the course of her employment as a nurse with the first defendant when she was lifting and manoeuvring a patient. As a result she claims to have suffered a range of consequences, including ongoing pain, which has led to a change to the nature of her employment, and the loss of a range of recreational, domestic and social pursuits.
2 The plaintiff had a history of problems with her lower back going back to 1990 but claims that the subject incident caused the onset of more significant pain and a greater restriction in the range of activities.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of employment on 13 April 2001.
4 Mr McCredie, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lumbar spine. The application is thus brought under sub-s.(a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering damages only.
5 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the spine are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of impairments or losses of the body function of the spine.
6 Following Ashley JA’s decision in Grech,[1] the proper analysis to determine whether a plaintiff ought be granted leave is:
[1] Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172
(a) to establish the plaintiff suffered compensable injury after October 1999, noting injury includes an aggravation, acceleration, exacerbation or deterioration of previous injury or disease; (b) to sufficiently establish what that injury was; (c) to determine the consequences the plaintiff alleges have resulted and that those consequences were ‘materially contributed to’ by the compensable injury; and (d) to determine whether those consequences attain the ‘very considerable’ level as to pain and suffering as the legislation requires. 7 The plaintiff and her treating general practitioner, Dr Hocking, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, and her friend, Marion Riddell, medical reports, radiological investigations and various WorkCover claim forms were tendered in evidence. I have read all the tendered material.
8 On behalf of the defendants, Mr Ramsey outlined the position of his client in response to the application as follows:
•
The plaintiff had a significant pre-existing spinal condition and the subject incident was no more than another minor exacerbation of the ongoing degenerative process.
•
The subject injury and its consequences did not attain the “very considerable” level as required when compared to other cases in the range.
• The consequences alleged by the plaintiff were not permanent.
Relevant Background
9 The plaintiff is now fifty-one years of age. She was educated to Year 10 and in 1976 obtained her qualification as a Division II Nurse. From that time to the date of the incident in April 2001, she worked as a nurse at various premises and nursing homes and then commenced with the first defendant in September 1987. At the time of the incident, she was working two shifts per week a total 18 hours on a permanent part-time basis. She claimed she worked these reduced hours as at the time she was caring for her husband and two children and the hours worked and the nature of the work accommodated her family situation.
10 Prior to the incident, the plaintiff had a range of physical and psychological health problems. She suffered from Type 2 Diabetes, a thyroid problem known as Hashimoto’s Thyroiditis, mild asthma, vertigo and headaches and vestibulopathy of uncertain origin. In addition, the plaintiff had, for a number of years, been suffering chronic obesity and had been struggling to reduce her weight. Further, the medical records of the plaintiff’s treating general practitioner show that the plaintiff complained of pain and restriction in her upper thoracic and cervical spines.
11 Her son, Adam, was diagnosed as suffering Attention Deficit Hyperactivity Disorder (“ADHD”). As he grew, he became difficult to manage and even violent. Looking after this child, and trying to control his behaviour was clearly a very difficult task and put significant stress and pressure upon the family. At one point the plaintiff slept with a knife under her pillow as protection and eventually obtained an order restraining her son having contact with her. These various health problems and family stresses led to the plaintiff suffering bouts of depression from time to time which required treatment by her general practitioner.
12 According to her affidavit,[2] the plaintiff suffered occasional “sprains and strains” to her lower spine commencing as early as 1991. She claims that she received nothing more than conservative treatment and these all resolved, enabling her to return to her full duties. It would appear the plaintiff suffered a problem with her low back as early as March 1990 when she consulted her general practitioner. There were a number of significant episodes of low back pain thereafter. The clinical notes of the general practitioner record that in September 1994, the plaintiff was lifting a patient when she suffered a twinge in the lower back. The plaintiff gave a history of a “surge of pain” to the right groin and to the right thigh. Physiotherapy was prescribed and a WorkCover claim was made. For a short period the general practitioner recommended modified duties with no lifting.
[2] PCB 24
13 The reference to the low back problems at this time are relatively brief and I conclude that the plaintiff suffered some form of strain to her low back although the symptoms resolved and the plaintiff was able to return to her usual nursing duties.
14 In April 1996, the plaintiff again complained to her general practitioner of lower back problems following a lifting incident at work. Again, this would appear a minor incident.
15 In June 1997, there was a further incident where she slipped on water on the floor at work. She suffered what was described as low-grade back pain with radiation of pain into the groin. A diagnosis of a lumbar strain was made. The plaintiff had a number of days off work and was prescribed rest and exercises. Upon review about a week later (27 June 1997), the plaintiff continued to suffer mild low back pain with referred pain to the buttocks but with a good range of movement. She returned to work on modified duties and had physiotherapy treatment. By early July 1997 the back pain was described as “not too bad”. The plaintiff was able to return to work on nightshift. Normal duties were apparently resumed in July 1997. In neither this episode, nor that of 1994, was there radiological investigation, medication prescribed, nor referral to any specialist.
16 The plaintiff admitted that over the years up until 2001 she regularly saw a treating physiotherapist, Ms Susan Labberton. These attendances were regular over the years from 1993 until 2000. They included treatment for cervical and thoracic spinal pain, cervicogenic headaches and low back pain. During the episodes of both 1994 and 1997, the records note a number of attendances to this physiotherapist for treatment. On 26 June 1997,[3] the physiotherapist wrote to Dr Hocking referring to the fall at work on 18 June with tenderness at L4-5 and L5-S1. The problem at the time was said to be “… inability to walk for long without onset of pain and she is not able to stoop”. Again, following this episode in 1997, it would appear the plaintiff returned to her normal working duties, and domestic and recreational activities.
[3] Exhibit 1
17 The next episode of back pain commenced in July 2000 when the plaintiff was assisting her husband, who was disabled with Parkinson’s Disease, get up from a bed.[4] There was pain to the lower back and radiation of pain to the right hip. Dr Hocking diagnosed “- query – disc prolapse”. Voltaren was prescribed. An x-ray was taken[5] which did not show any abnormalities. The plaintiff was referred for physiotherapy. A WorkCover claim was made and Certificates of Incapacity were issued from 1 August 2000 for a period of approximately four weeks. At this time the plaintiff was working two days per week. Again, there was no referral to a specialist and despite a differential diagnosis of disc prolapse, that was not confirmed by any investigation. Again, it appears the plaintiff returned to her normal duties.
[4] T 371
[5] PCB 69
18 Of significance is an entry in the general practitioner’s notes of 29 November 2000.[6] On that day the plaintiff attended complaining of swelling in her left knee, upper respiratory infection and low grade backache. There is further reference to vertigo and nausea. Although it is not clear, the entry refers to “giving up work – superannuation fund”. Dr Hocking accepted that the reference indicated a discussion between she and the plaintiff that the plaintiff’s future in nursing might be limited as a result of her various health problems at the time.[7] According to Mr Ramsey, this is a significant entry as one of the consequences that the plaintiff claims arose as a result of the April 2001 injury was that she was forced to modify her employment from nursing and into the area of social welfare.
[6] T 377
[7] T 378
19 In addition to her work and family activities prior to injury, the plaintiff enjoyed a wide range of other activities including pottery, jewellery-making, painting and gardening.[8]
[8] PCB 25
20 Over the years 1989 to 1992, the plaintiff undertook a Diploma in Welfare, studying part-time at Monash University in Gippsland. She denied that she undertook this diploma because she considered that her days as a nurse were numbered. She said she did this because she enjoyed learning and thought it would be appropriate to obtain additional qualifications as a possible extension of her career. She said that before the incident it was not her intention to give up nursing.
21 Further, the plaintiff filed incident reports indicating a strain to her lower back while at work on 15 June 2000[9] and 6 January 2001.[10]
[9] DCB 91-92
[10] DCB 93
22 In fact, the plaintiff admitted11 that she had commenced to suffer lower back pain in her thirties, and had suffered from it ever since.
The Injury and Its Consequences
23 On 13 April 2001, the plaintiff was lifting and manoeuvring a patient in the course of her employment. The patient had been on a commode and was being assisted back into bed by the plaintiff. She lifted the patient’s legs into the bed and then attempted to raise the patient up the bed. In the process of so doing, she felt pain in her mid and lower back, into the right buttock and down the right leg. While there were some inconsistencies in the histories to the various practitioners as to precisely how the incident occurred, I am of the view that the above description is a fair representation of the incident. The plaintiff remained at work and then, after completing a shift, visited a local general practitioner, Dr Tan, who prescribed anti-inflammatory medication. She rested over the next several days and as the pain did not cease consulted her usual general practitioner, Dr Hocking, on 19 April 2001. She was certified as being unfit for work for approximately four weeks and was referred for physiotherapy.
24 By June 2001, the plaintiff’s condition had not improved, and she was referred to Mr Keith Elsner, orthopaedic surgeon. Mr Elsner sent the plaintiff for an MRI scan which he was somewhat surprised to find indicated a T11-T12 disc protrusion. If there were disc damage, he had expected some radiology at the L5-S1 level. He suggested the plaintiff take spinal mobilisation and strengthening exercises and to continue with physiotherapy.
25 The plaintiff remained off work, and in August 2001, suffered an injury to her right knee when she attempted to get up from a chair. She was referred to Mr Peter Lugg, orthopaedic surgeon, for treatment of the knee in August 2002 and subsequent investigation revealed a meniscal tear which has been the subject of a recent arthroscopy.
26 The plaintiff remained off work until 5 September 2001 when she returned to light duties. However, she remained only until 20 September 2001 when,
T 30
according to her general practitioner’s records,[12] she was unable to cope. She remained unfit for work until March 2002 when she again attempted a return to light duties and lasted until May 2002. In November 2002, she returned to work under a rehabilitation plan and remained until May 2003 when she was again described, by her general practitioner, as being unfit for employment duties. She remained off work until March 2004 when she resumed again on modified duties. On 23 August 2005, her employment was terminated.
[12] PCB 31
27 In August 2001, the plaintiff had commenced a degree in social work which she undertook on a part-time off-campus basis and completed the same in 2004. To her credit, in May 2006, she commenced work as a disability worker with Knoxbrook, a facility for intellectually disabled persons in Ferntree Gully. She has remained working at this institution to the present time. She works approximately four shifts per week, commencing at 5.00 pm in the evening and working until 10.00 pm. She is then able to sleep until 6.00 am the next day, and then works until 10.00 am. The residents generally leave the premises by approximately 8.30 pm and at times she is required to undertake a range of cleaning duties, including sweeping, mopping, vacuuming and cleaning work in the kitchen.[13] She states she is able to cope with all except the cleaning duties which cause exacerbation to her back. The plaintiff stated in evidence that she had no plans to seek alternative employment, and enjoyed the work she did at Knoxbrook, although in her affidavit material[14] expressed reservations about whether she would be able to continue. Various medical practitioners, including Dr Hocking and Mr Lugg, have expressed similar reservations. The plaintiff currently works between 61 and 68 hours per fortnight. The remuneration she receives from this work exceeds what she was earning prior to the incident, and she thus makes no application in respect of loss of earning capacity.
[13] PCB 28B
[14] PCB 28D
28 The plaintiff developed depression as a result of the constant pain and was referred to a psychologist, Ms Clare Roberts, in April 2003.[15] In 2004, she was referred to the Glen Waverley Rehabilitation Centre where she underwent a rehabilitation program. As a result, an exercise routine was developed and she was encouraged to undertake a walking program. She accepts this program has provided some relief of her symptoms.
[15] PCB 52
29 In 2003, the plaintiff was referred by her general practitioner to Dr Alex Stockman, rheumatologist, as it was suspected that she may be suffering fibromyalgia, or generalised body pain. Dr Stockman, however, at the time of his examination, said that the condition was not evident.[16]
[16] PCB 33
30 The plaintiff was first referred to Mr Peter Lugg, orthopaedic surgeon, in August 2002 in relation to both back pain and right knee problems.[17] An MRI scan demonstrated a meniscal tear and chondral damage to the knee and eventually the plaintiff underwent an arthroscopy which has led to some pain relief in the right knee. He thought the plaintiff was suffering some referred pain from the back into the left leg. He did not recommend any active intervention in relation to the lower back symptoms.
[17] PCB 49
31 As a result of her weight problem, the plaintiff proposes to undergo lap banding surgery and is on public waiting list for that procedure. She claims it is difficult to lose weight given her back problems render her unable to do a range of physical activities in order to reduce weight.
32 At the present time the plaintiff complains she suffers constant low back pain[18] radiating from the back into both legs. The pain, she says, is intermittent but occurs daily. The low back pain is the worst of the various conditions from which she currently suffers. She takes over-the-counter medication, including up to four Panamax per day and two Mersyndol tablets at night. She claims her sleep is affected. She remains under the care of Dr Hocking and receives only conservative treatment. She sees Dr Hocking several times a year.[19]
[18] PCB 28C, 28G
[19] T 169
33 Of particular significance, the plaintiff claims, is the impact of her lower back injury upon various recreational pursuits. She particularly enjoyed pottery work and even taught, on a voluntary basis, schoolchildren. She is unable to sit at a pottery wheel. She still undertakes jewellery-making, but not to the same extent as previously. She does some gardening work, but requires assistance in mowing the lawns.
34 In opening, Mr McCredie submitted there were five consequences to the plaintiff which, if accepted, took the level of the consequences as a result of injury to the “very considerable” bar set by the legislation. They were:
(a)
the plaintiff, as a result of the back injury, was unable to work in her chosen nursing profession, and although she had returned to work as a welfare officer, even earning more pay than previously, the loss of that profession was of a significant consequence to her;
(b)
secondly, her back pain made it difficult to enjoy an intimate relationship with her husband, and as a result, that relationship broke down. Although the plaintiff had formed several further relationships, each suffered the same fate;
(c)
she had suffered a loss of recreational hobbies, particularly doll- making, pottery, painting and jewellery-making. She is now restricted in those undertakings;
(d)
although not prescription medication, the plaintiff takes significant quantities of pain-relieving medication on a daily basis;
(e)
there is a significant interference with the plaintiff’s activities of daily living, including cleaning, shopping, driving and the like.
35 In addition to the conservative treatment provided by her general practitioner, the plaintiff has massage once a month, and adheres to the exercise program provided to her. She states that up until this year her capacity to drive a car has been reasonable, providing she avoids the longer trips. She states, however, that more recently driving has become problematic. She claims she is unable to maintain sustained postures and cannot sit nor stand for longer periods. Activities which require pushing, pulling, bending, twisting and lifting cause aggravation of her back pain.[20]
[20] PCB 27
Credibility of the Plaintiff
36 There was no significant challenge by the defendants upon the plaintiff’s credibility. There were some minor inconsistencies in histories to the doctors, and she acknowledged that a statement in her affidavit[21] that her husband had left her when his family was dissatisfied with the level of the care, was quite incorrect.
[21] PCB 28E
37 Generally I found the plaintiff to be an honest and straightforward historian. Her credibility, in my view, is enhanced by her participation in rehabilitation programs and her return to work as a welfare officer. I formed the view she has made every reasonable attempt to reinstate herself into the workforce.
Medical Opinions
38 In the various medical reports of Dr Hocking,[22] she referred to the plaintiff’s lower back incapacity being as a result of heavier work over the years as a nurse. However, in evidence,[23] the doctor acknowledged that while the degenerative component of her back condition had been present from an earlier time in her nursing career, the subject incident was more major than the previous incidents from which the plaintiff had made a good recovery. The subject injury required referral to specialists, radiological investigation and a significant interference with the work capacity.
[22] PCB 29-46d
[23] T 158
39 Dr Hocking referred to the plaintiff’s various other health problems.[24] She also noted the CT scan of May 2001[25] showed moderately severe facet joint degenerative changes at L5-S1, and the MRI scan of July 2001[26] showed a moderately large T11-T12 broad-based disc protrusion. Dr Hocking described the plaintiff’s back condition as generating back discomfort although of more recent times[27] she noted there had been increased back pain. She considered the plaintiff would be permanently limited in her capacity to do heavy lifting or bending and would continue to experience low grade back discomfort with exacerbations into the future. Any employment would require modification. In cross examination, Dr Hocking was taken through the various earlier entries relating to low back pain. She conceded that prior to the incident either herself or other doctors of the clinic would have advised the plaintiff to avoid heavy lifting and excessive bending.[28] Further, it would have been appropriate before the incident for the plaintiff to be looking for an alternative job.[29] The doctor disagreed that at that earlier time the plaintiff was permanently incapacitated.
[24] PCB 34
[25] PCB 73-74
[26] PCB 76
[27] PCB 46C
[28] T 160
[29] T 161
40 In re-examination, the doctor was taken to the entries after November 2000, and it was noted that on approximately eight occasions upon which the plaintiff had attended for treatment up until 10 April 2001, there was no reference to back pain.
41 Mr Elsner, orthopaedic surgeon, in his report of July 2001,[30] noted the plaintiff had a previous history of intermittent low back pain in 1994 and 1997. Having viewed the MRI scan which showed the T11-T12 protrusion, he thought that although somewhat of an unusual finding, that the protrusion at that level could give rise to the plaintiff’s pain. He considered the plaintiff would be unable to return to her nursing duties.
[30] PCB 47-48
42 In his report of October 2008,[31] Mr Lugg noted the plaintiff was suffering continuous low back pain with radiating pain into the buttocks. The plaintiff complained of pain on a scale of five out of ten, aggravated by walking up and down stairs and with a significant restriction in her activities of daily living. He could find no neurological deficit in the lower limbs. He opined that the bulge at T11-T12 was a coincidental finding, and not the source of the plaintiff’s pain. He believed the plaintiff was suffering a discogenic injury, probably at L5-S1, and degeneration of the facet joints at that level. He noted that her back pain was reasonably controlled by analgesia and modification of her activity levels. He thought her back pain would stay much the same with exacerbations from time to time. These symptoms were as a result of the injury sustained in April 2001. The plaintiff would be precluded from her nursing duties and he noted that her obesity worsened the back pain.
[31] PCB 51a-d
43 The plaintiff was examined by Mr Wilde, orthopaedic surgeon, in June 2007 and January 2009.[32] Mr Wilde received similar complaints of pain as did Mr Lugg. He thought the incident of April 2001 triggered more significant pain than had the previous episodes from which the plaintiff had made a satisfactory recovery. He considered the plaintiff had suffered a lumbosacral disc injury without clear prolapse and that the source of her pain was discogenic. When seen in January 2009, he said the light duties the plaintiff was undertaking were appropriate and generally considered her disability as moderately severe. He thought the pain would remain chronic and troublesome. He noted referral of pain into the thighs.
[32] PCB 54-58e
44 The plaintiff was examined by Dr Robyn Horsley, occupational physician, in August 2007 and March 2009. These reports are not of great assistance as they were obtained for the purpose of determining the plaintiff’s work capacity.
45 The plaintiff was examined by a range of doctors on behalf of the defendants. In his report of 25 July 2001[33], Mr Marshall, surgeon, did not consider the plaintiff had suffered any injury as a result of the April 2001 episode. He noted that the plaintiff was “enormously overweight” and that was the reason for her back pain. He did not believe employment was a significant contributing factor to her injury. I do not accept the opinion of Mr Marshall. His opinion is contrary to those of all of the plaintiff’s practitioners, including her treating practitioner, and most of the defendants’ practitioners. It is an unusual finding that, given the plaintiff did suffer pain, had a considerable period off work and received the consequent treatment, that he could conclude that she had suffered no injury.
[33] DCB 1-5
46 The plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, in October 2001.[34] He accepted that the plaintiff had suffered an injury in April 2001 in the incident as described. He noted some improvement in her symptoms and considered that the plaintiff ought to lose weight. The opinion of Mr Jones is now somewhat dated and of little assistance.
[34] DCB 9-10
47 Mr Weaver, orthopaedic specialist, examined the plaintiff in July 2003 at the request of the defendants.[35] Mr Weaver concluded that the plaintiff’s back problems were as a result of her employment over a number of years since 1986.[36] He also noted the plaintiff’s weight, and considered that her back problems were very substantially related to her level of obesity and also the degenerative process in her spine. He considered the longer the plaintiff remained out of employment (she was not working in 2003) then the less substantially her back problems would be related to employment.
[35] DCB 24-30
[36] DCB 27
48 The plaintiff was examined by Mr Anthony Dunin, orthopaedic surgeon, in April 2002, April 2003 and May 2004.[37] He obtained a history of intermittent back problems going back to 1993 and considered the plaintiff had suffered a soft tissue strain of the lumbar spine in April 2001. He thought her morbid obesity was a significant factor in a slow recovery from that incident. He thought she had a mild to moderate incapacity in the lumbar spine but that she was significantly limited by her obesity. He thought she would benefit from a rehabilitation program. He accepted the plaintiff would be unable to return to her pre-injury duties as a nurse and that her best management was for a weight reduction program. He accepted the plaintiff had suffered a permanent impairment to her lumbar spine which was attributable to her work.
[37] DCB 31-37a
49 In May 2004, Mr Dunin noted that the plaintiff had some improvement in her back condition as a result of the exercise program she had undertaken. He noted the plaintiff still, at that time, had a moderate degree of intermittent lower back pain. He thought her prognosis was guarded and that she would never be able to return to work as a nurse.
50 Dr Gary Davison, occupational physician, examined the plaintiff in November 2002 and December 2004.[38] He thought the plaintiff was suffering constitutional disc degeneration, although noted that the incident of 2001 probably constituted an exacerbation of the condition. The persistence of symptoms, he considered, was as a result of her morbid obesity. He considered that the work-related component was minor, although a contributing factor.
[38] DCB 38-46
51 The plaintiff was examined by Mr Brian Davie, orthopaedic surgeon, in January 2006.[39] He received a history from the plaintiff that her symptoms were “not too bad’ unless she did any lifting or she put strain on her lower back. He thought the plaintiff had suffered a muscular ligamentous strain and that the protrusion at T11-T12 was of no clinical importance. He thought there were non-work-related factors playing a role, including that the plaintiff was generally overweight and, further, that there were pre-existing degenerative changes in the lumbar spine and the facet joints at L5-S1 which were due to ageing. While he considered the plaintiff may have a minor disc problem at the lower lumbar level, it was more likely a muscular ligamentous strain. The plaintiff, he said, was capable of returning to lighter employment.
[39] DCB 53-55
52 The plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, in October 2006 and June 2007.[40] He considered that as a result of the April 2001 incident the plaintiff had suffered the onset of recurrent back pain and referred back pain to her right leg which would appear as sciatica and probably due to a disc disruption or degenerative changes in one of the lower lumbar discs, not evident on radiology. He recommended the plaintiff lose 20 kilograms in weight. By June 2007, he considered that although there had been a significant exacerbation in the April incident, her continuing back pain had gradually returned to its pre-injury state. He did not consider that the plaintiff’s work capacity was significantly impaired given she was able to work 27 to 30 hours per week.
[40] DCB 56-64
53 Finally, the plaintiff was examined by Mr John O’Brien, orthopaedic specialist, in July 2008.[41] The plaintiff told him she continued to suffer low back pain since the incident but that by 2008 the severity of the pain had decreased. According to the Visual Analogue Scale, the severity of pain was four out of ten. He noted the pain was aggravated by bending, lifting, sitting and standing for prolonged periods and heavier housework and gardening tasks were avoided. He noted the radiation of pain into the right leg to the foot. He found the plaintiff had a relatively good range of lumbar movement without radiculopathy. He noted no significant pathology on radiological investigations and he considered the plaintiff’s symptoms to be mild not requiring regular treatment. He thought the plaintiff’s situation was of very mild lumbar pathology which, although precluding her from nursing duties, would not inhibit her in her current employment.
[41] DCB 65-68
Summary of Medical Opinions
54 I accept the views of Mr Lugg and various other practitioners that the finding of bulging at T11-T12 is coincidental. I found the opinions of the plaintiff’s treating doctors, particularly Dr Hocking and Mr Lugg, of assistance, although it is clear that Dr Hocking is considerably sympathetic towards the plight of the plaintiff given, no doubt, that she has been involved with the difficulties of the plaintiff’s life, particularly with her son, Adam.
55 A number of the defendants’ doctors attribute the plaintiff’s current lower back condition as being related to her obesity, or a combination of obesity and the underlying degenerative condition from which she undoubtedly suffers. However, it was clear that the plaintiff was significantly overweight before the incident, and was able to undertake employment as a nurse and perform a range of recreational and domestic activities with little inhibition, save for the exacerbations of her lower back problem from time to time. When she suffered the injury in April 2001, there was the immediate onset of pain which continued, in fluctuating degrees, from that time to the present. While it would be sound medical advice for the plaintiff to lose weight, and I accept that she has attempted to do so, including the prospect of radical surgery, the temporal association with the onset of pain to the lifting incident points to that as a significant factor in the plaintiff’s current disability.
56 Further, while the plaintiff no doubt had an underlying degenerative condition in the spine, aggravated from time to time by work-related incidents over the years, she was again able to return to employment and general activities, and while the incident of April 2001 aggravated that condition, I am not convinced that aggravation has subsided and been subsumed by the degenerative process.
57 I prefer the opinions of, particularly, Mr Lugg, that the plaintiff has sustained a disc injury at the L5-S1 level with aggravation of the facet joint degeneration and, further, that the plaintiff suffers discogenic pain radiating into the buttocks. I accept his assessment that the plaintiff’s impairment is moderate but that it fluctuates. I further accept his view, and that of other practitioners, that this situation is likely to continue into the indefinite future, but that the plaintiff will suffer exacerbations depending upon the activities in which she is engaged.
The Significance of the Pre-Existing Low Back Episodes
58 It is clear the plaintiff had a significant number of episodes of lower back pain over the years until 2001. The episodes of 1990, 1994 and 1997 were generally transitory. There was no radiological investigation, and no referral to any specialist. While there was some time away from work, after each occasion, the plaintiff was able to resume her physically demanding duties as a nurse, and maintain her interest in a range of recreational and domestic activities. While these episodes are relevant, it is clear the plaintiff made a good recovery after each.
59 The episode of late 2000 was more substantial. The plaintiff was off work for approximately four weeks and there was a differential diagnosis of disc injury. However, again, the plaintiff was able to return to nursing duties and a range of other activities. Further, the plaintiff attended her general practitioner for a range of other medical complaints before the April 2001 back incident, and there was no reference to any back problem.
60 What is clear, is that by November 2000 the accumulation of these various events, together with other physical problems from which the plaintiff was suffering led her, in conjunction with her general practitioner, to consider whether she would be able to continue nursing. As Dr Hocking stated, she would have been advising the plaintiff at that time to restrict her heavier activities and to consider the possibility of alternative employment. This issue is relevant to Mr McCredie’s contention that the incident of April 2001 resulted in the loss of the plaintiff’s employment as a nurse.
The Consequences of the April 2001 Incident
61 I accept that as a result of the incident, the plaintiff suffered significant pain in her lower spine with referred pain into the buttocks, and from time to time the legs. I accept that this pain has fluctuated over the years with exacerbations from time to time. I accept the description by Mr Lugg that overall the impairment is of moderate degree and that the plaintiff’s pain is reasonably well-controlled by the analgesia.
62 I am satisfied and accept the evidence of the plaintiff that the pain leads to a range of restrictions in domestic, recreational and social activities. I accept that she has difficulty sleeping and that particularly pottery, which was a pastime she enjoyed, is not longer available to her.
63 It is put by Mr McCredie that the plaintiff’s relationship breakdown was as a result of her lower back injury. The evidence is unclear in this regard and while I would accept that as a result of her back pain there would be a restriction in the plaintiff’s capacity to enjoy intimate relationships, I am not satisfied that her relationship with her husband broke down substantially for that reason. It is clear there were significant difficulties in the marriage, particularly relating to the couple’s son. Further, the plaintiff became involved in other relationships subsequently, and it is not clear that they broke down as a result of this lack of intimacy.
64 I am further satisfied that the plaintiff will be unable to return to work as a nurse. This is in part related to the injury as a result of April 2001, and in part related to various earlier exacerbations, and the underlying degenerative process in her spine as a whole. I am, however, satisfied that the incident of April 2001 did materially contribute to the loss of her nursing profession.
65 The question then remains as to whether the consequences which I have found have arisen as a result of the incident, or have been materially contributed to thereby, reach the “very considerable” level as the legislation requires. Prior to the incident, the plaintiff clearly had a range of health problems, many of which have persisted through to the present time. Not the least of these was the difficulty in coping with her son, although he has since left home and is no longer such an intrusion into her life. Absent the April 2001 incident, it was unlikely the plaintiff would have been able to continue working as a nurse indefinitely. It is impossible to say how long she would have remained in that work, but in my view her various medical conditions, including her problem with the low back, would have, in the end, resulted in a change of occupation.
66 However, the plaintiff’s life has changed markedly as a result of the lifting incident. She has suffered the onset of chronic low back pain, albeit of a moderate degree, requiring daily analgesia. She had a very considerable period off work. A range of recreational pursuits which she enjoyed have been lost to her, or at least she has been limited in their enjoyment. Further, while the incident was not the sole reason for her loss of the work as a nurse, it was a materially contributing factor and as such should be taken into account. She will never again be able to work as a nurse. I am impressed by the manner in which the plaintiff has undergone rehabilitation and retrained into a different area of employment. I am of the view that she is not a person who overstates nor makes much of the incapacities which she suffers and that, in my eyes, leads me to accept her evidence as to the impact of the injury upon her life.
67 In these circumstances, I am satisfied that the consequences do achieve the “very considerable” level in respect of pain and suffering and I propose to grant leave to that effect and make consequent orders.
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