Langmaid v Victorian WorkCover Authority
[2021] VCC 1293
•13 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE VIA ZOOM COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02602
| SUSAN LANGMAID | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne via Zoom | |
DATE OF HEARING: | 3 September 2021 | |
DATE OF JUDGMENT: | 13 September 2021 | |
CASE MAY BE CITED AS: | Langmaid v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1293 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – psychiatric injury – Medical Panel Opinion – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation Compensation Act 2013
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203; Johns v Oaktech Pty Ltd [2020] VSCA 10; Noori v Topaz Fine Foods [2018] VSCA 323; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave granted to the plaintiff to commence proceedings for pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Scully | Arnold Thomas & Becker |
| For the Defendant | Mr B McKenzie | Lander & Rogers |
HIS HONOUR:
Introduction
1This is an application for leave to commence a common law proceeding for pain and suffering damages in respect to a workplace injury.
2The plaintiff, Mrs Susan Langmaid, is a currently 56 year old, married woman. She lives with her husband. She has two adult daughters. She is currently employed as a teacher’s aide.
3The plaintiff claims that in the course of her employment as a sales assistant with Diana Ferrari Pty Ltd (“the employer”), she suffered injury on 20 May 2014 while moving as ladder at a retail store in Ringwood.
4Prior to the hearing of this proceeding, upon referral from a judge of this Court, a Medical Panel was asked to answer medical questions regarding the plaintiff. Pursuant to a Certificate of Opinion dated 15 May 2021[1], a Medical Panel answered such questions.
[1]Plaintiff’s Court Book (“PCB”) 11
5It is convenient at this stage to set out in full the Certificate of Opinion of the Panel―
“The Medical Panel formed its Opinion in response to a Referral from Judge Coish lodged on 29 January 2021 pursuant to Victorian Workers Compensation Legislation.
The Panel comprised the following members:
Dr Jenny Downes-Brydon, General Practitioner
Dr Daniel Lewis, Rheumatologist
Mr Kevin Siu, Neurosurgeon
Dr Peter Millington, Psychiatrist
Dr Sumitra Shankar, Psychiatrist
I, Dr Jenny Downes-Brydon as Presiding Member of this Panel, have discussed the referral with the other Panel Members and this is the opinion of the Panel on the medical questions set out below.
Question 1: What is the nature of the medical condition of the Plaintiff’s:
(a) back;
(b) mind?Answer: In the Panel’s opinion the Plaintiff is suffering from:
(a) no ongoing physical medical condition of the back
(b)from a chronic pain disorder associated with both psychological factors, namely an adjustment disorder with depressed mood (now in remission), and a general medical condition, namely a resolved soft tissue injury of the lumbar spine and sacroiliac joints.
Question 2:
(a) Does any medical condition of the lumbar spine identified by the Medical Panel in answer to Question 1(a) result from or is it materially contributed to by the injury on 25 May 2014?
Answer: (a) Not applicable.
(b)Does any medical condition of the mind identified by the Medical Panel in answer to Question 1 (b) result from or is it materially contributed to by the medical condition of the lumbar spine?
Answer: (b) In the Panel’s opinion the Plaintiff’s chronic pain disorder associated with both psychological factors, namely an adjustment disorder with depressed mood (now in remission), and a general medical condition, namely a resolved soft tissue injury of the lumbar spine and sacroiliac joints results from and is materially contributed to by the (now resolved) medical condition of the lumbar spine.
Question 3: Is any medical condition of the Plaintiff’s
(a)back;
(b) mind
As identified by the Medical Panel as a result of injury suffered in employment with the employer ‘permanent’ meaning ‘likely to last for, during or through the foreseeable future’?
Answer: In the Panel’s opinion, the Plaintiff’s chronic pain disorder associated with both psychological factors, namely an adjustment disorder with depressed mood (now in remission), and a general medical condition, namely a resolved soft tissue injury of the lumbar spine and sacroiliac joints is permanent.
Question 4: Is the Plaintiff incapacitated for work as a sales assistant?
Answer: In the Panel’s opinion the Plaintiff has no incapacity for work as a sales assistant resulting from any claimed physical or psychological condition.
Question 5: If any incapacity is identified in question 4, does such incapacity result from or is it materially contributed to by any, and if so which, of the following medical conditions:
(a) back;
(b) mind?Answer: Not applicable
Question 6: If any incapacity is identified in response to Question 4, is such incapacity likely to be ‘permanent’ meaning likely to last 4, during or through the foreseeable future?
Answer: Not applicable.”
6The plaintiff had initially relied upon a physical injury to the low back, as well as “stress and anxiety” as the claimed serious injuries. As is apparent, the Panel Opinion is such that the plaintiff cannot maintain the claim based upon physical injury. Accordingly, the application proceeded on the basis that the plaintiff claimed serious injury by way of a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
7Further, by reason of the Panel Opinion that she had the physical and psychiatric/psychological capacity to undertake her pre-injury employment as a sales assistant, the plaintiff’s application was confined to pain and suffering.
8This proceeding was conducted in the “usual manner”, that is, the plaintiff tendered affidavits in support of the application and was cross-examined on the contents of her affidavits. In addition, the parties tendered relevant medical material.
9This proceeding is somewhat “unusual” because of the extremely limited medical evidence before the Court. For practical purposes it is confined to the Panel Opinion and the Panel’s Reasons for Opinion.
10The parties agree that, by reason of s313(4) of the Workplace Injury Rehabilitation and Compensation Act (“the Act”), the Panel Opinion must be adopted and applied and must be accepted as final and conclusive.
11It is accepted that the plaintiff has a medical condition affecting her mind, described by the Panel as―
“a chronic pain disorder associated with both psychological factors, namely an adjustment disorder with depressed mood (now in remission), and a general medical condition, namely a resolved soft tissue injury of the lumbar spine and sacroiliac joints.”[2]
[2]PCB 11
12I have taken the whole of the evidence into account, including the transcript of the plaintiff’s oral evidence and the Panel’s Reasons for Opinion dated 15 May 2021.[3] In this application the Panel Opinion and the Reasons for Opinion perhaps assume greater importance than might otherwise be the case because they are effectively the only relevant medical evidence.
[3]PCB 13
13The narrow issue in this application boils down to whether the plaintiff has consequences from the psychiatric injury - as identified by the Medical Panel - which are “serious” and meet the test of “severe”. The defendant submitted that the consequences to the plaintiff were not “severe”. Perhaps not surprisingly, the plaintiff submitted that she had impairment consequences that were “severe”.
14In making an assessment as to whether the plaintiff’s injury is “serious”, I take into account the possible range of injuries, impairments and consequences and not just those that come before the Courts.[4]
[4]TTB SMS Pty Ltd v Reading [2020] VSCA 203
15The plaintiff was challenged broadly in cross-examination as to whether her consequences were “serious”. But this is not a proceeding where there is a major attack upon the plaintiff’s credit. I found her to be a reliable witness, who made concessions against interest as appropriate. As has been said many times before, particularly when it comes to an assessment of the “seriousness” of a claimed injury, the credit of the plaintiff is an important issue and an important starting point.[5]
[5]Johns v Oaktech Pty Ltd [2020] VSCA 10
16The defendant played approximately two minutes of video surveillance obtained on 29 June 2021.[6] That video surveillance depicted the plaintiff going to and from a yoga class, driving her car to a bakery and moving in an apparently unrestricted manner. Of course, it was only for a few minutes and the video needs to be seen in context. But the video demonstrated nothing more than what the plaintiff conceded in her oral evidence. It was put to her in cross-examination that she could walk without any apparent problem and she agreed that was the case[7]. The video showed her ability to engage in ‘normal’ daily activity, consistent with her evidence, but it did not otherwise impact her credit. I am satisfied that I can rely on the evidence of the plaintiff and that she was a reliable witness.
[6]Exhibit D1
[7] Transcript (“T”) 38, Lines (“L”) 29
17The other credit issue that arose in cross examination was the plaintiff’s past history of psychiatric symptoms, as described by her to the Panel as “a past history of panic attacks associated with plane flights which were successfully treated by a psychologist more than 10 years ago.”[8] In cross-examination the plaintiff was taken to various entries in the clinical records from the Warrandyte Road Clinic. Those records reveal that from time to time the plaintiff was prescribed medication such as Xanax or Valium, but the records also confirm that those prescriptions were associated with occasions when the plaintiff was travelling by aeroplane. I do not consider that cross-examination to have impugned her credit. There is otherwise no evidence that the plaintiff was anything other than psychiatrically fit and well before suffering injury with the employer.
[8]PCB 27
18Before turning to analyse the relevant evidence in this proceeding, I accept that the plaintiff must satisfy the Court that she has psychiatric/symptoms which are “severe”, which means something more than “serious”.
19The starting point is the plaintiff’s own affidavit evidence. Relevantly, in her first affidavit she set out the impairment and consequences as follows:
“I continue to experience symptoms of back pain and restriction up to the present time. I am always aware to some degree of my back pain. Although I have good days and bad days, the pain is present constantly.
Prior to my back injury, I had a very full and active life.
I enjoyed activities such as skiing, tennis, badminton, swimming and exercise.
With respect to skiing, I have regularly skied since I was about 16 years old. I would consider myself an intermediate to advanced skier. I am no longer able to pursue this due to my back pain, and this is a great disappointment to me, particularly as my family continues to pursue this activity but they now do this without me.
Similarly with exercise, I had a very active lifestyle. I regularly exercised at the gym with my daughter and my sister-in-law. It was a social and physical activity. I no longer feel like I can participate to the same degree due to my back injury, and it has led to a loss of my social life.
Previously I was able to go on long walks. I enjoyed long walks on various terrains, like the 1000 steps in the Dandenongs. I now struggle to go on walks due to my back.
Around my home I was previously very houseproud and I did the majority of household chores including washing, hanging out washing, cleaning, dusting, mopping, etc. Each of these activities now flare up my back pain. I now need help in doing these activities.
My marriage has been severely affected by my back injury. Whereas previously my husband and I had a happy marriage in every aspect, our marriage has been strained by my back injury. We now often sleep in separate beds as any movement during the night wakes me and causes pain in my back. Our intimate relationship has also been negatively affected by my back injury.
Throughout my adult life I have always been interested in travel. It has always been my ambition to travel as much as possible. During 2018 my husband and I travelled overseas. However, whereas previously I was able to have some spontaneity about my travel, I now have to think carefully about the trip and to break up the trip with various overnight stop overs and the like. I need to be careful in choosing accommodation and thinking about their beds and the quality of their mattresses and things of that nature because of my back pain. We have also had to pay for seating upgrades on the flights to ensure that the seats are more comfortable for my back, and have to now extend ours stays in cities with stop-overs to ensure that I have enough time to recover in between destinations. This is something which will have an ongoing impact on my life.
Further, even when flying for a couple of hours, I need to take quite strong pain relieving medication to be able to cope with sitting for extended periods. I take Endone and Valium for longer flights. This is because sitting for a long flight significantly flares up my back pain.
With respect to my medication I also take Gabapentin, Melatonin and Temazepam to help with my sleep. I have also been prescribed Effexor for my mood.
As mentioned above, a great impact on me is that I now feel socially isolated as a result of my back injury. I do not feel like I can attend social functions that require me to be seated for extended periods, I need to be able to get up and move around. This means that an activity like going to a restaurant is something that I need to think about and turn my mind to how long we will be there for. This puts a strain on my friendships as friends believe they can only see me if they visit me in my home where I am able to move about and have a comfortable place to sit.
Another impact on my life is that whereas previously I participated in activities such as bushwalks, or longer bushwalks that involved carrying a pack, I can no longer do those activities. I could not participate in an extended family trip to Arnhem Land that involved a lot of walking. This is an ongoing and severe impact on me in that there will be many things in the future that I will not be able to undertake. As another example, at family functions when people undertake activities such as playing tennis, I now sit and watch other people participate in these activities, whereas previously I was one of the very active participants.
In my domestic life I now rely on my husband to assist me with domestic duties such as cleaning. I can only do activities such as shopping on my own if I am doing a small shop. I need assistance with lifting.
For the last couple of years I have been able to secure employment as a teacher’s aide. I have always had some involvement in the workforce and now believe that I will be restricted in the work that I can do. I do not believe I could ever again work on an unrestricted basis as a shop assistant or in retail. I need to be constantly thinking about how my duties could flare up my back pain.
My mood has also been impacted by my back injury. As mentioned above, in the last few years I have also faced a cancer diagnosis and both issues have impacted on me. However, as part of pain management I have been treated by a psychologist who I continue to see specifically about my back pain.
The injury has impacted negatively on my relationship with my daughters. I feel like I have let them down by not being able to always be available to assist them. One of my daughter’s moved to Geelong for University after my back injury and I was unable to travel there as frequently as I would have liked to in order to be able to spend time with her. Again, even when I did travel to be with her, I had to break up the trip and stop for a break after about an hour of travel. I also had to take medication to be able to get through the day. Even to this day, one of my daughters now lives in Ocean Grove and it continues to be a struggle to travel in order to visit her.”[9]
[9]Affidavit of plaintiff sworn 12 February 2020, PCB 40−43
20In her further affidavit, the plaintiff said:
“I continue to suffer constant pain in my lower back, on both sides. I suffer pain every day of my life. The pain on the right side of my lower back is worse than the pain on the left. I sometimes suffer pain down into my legs, and I experience numbness in the toes of my right foot.
The pain in my back is aggravated particularly when I sit for prolonged periods. The pain in my back varies in intensity, and I believe it ranges from between 2 or 3 out of 10, and to as high as 8 out of 10 in severity. I find that the pain tends to be at its worst after I sit for prolonged periods, or if I try to perform any physical activities.
There are things that I can do to try to reduce or relieve the pain in my back, I take regular breaks when I am at work; I change positions regularly; I stand and keep moving to try to control the pain; or I just lie down. However, the only thing that I find really works is taking Endone and Valium medication together, but I try not to do this too often.
I try to manage my pain levels by performing meditation and yoga on a daily basis, and by avoiding prolonged sitting or any activities that aggravate the pain. I take Mobic, Melatonin and Gabapentin medications daily; Endone once a month; Valium once or twice a week; and Temazepam medication to help me sleep. While I did previously take anti-depressant medication, I no longer do this because I felt that it was having adverse effects on my personality; was causing me to put on weight; and reduced my sex drive entirely.
I see Ms Joanne King, Psychologist, around once every 2–3 weeks.
The restrictions on my domestic, social and recreational activities outlined in my previous affidavit have persisted.
My sleep continues to be disturbed by the pain that I suffer, and I tend to wake up three or four times overnight. I am very tired a lot of the time. I find that, in order to get through a day of work, I have to drink a lot of caffeine due to my general feelings of exhaustion.
I am often depressed about the fact that my pain has affected my relationships with my husband and children.
My constant pain, and my psychological symptoms, have affected my relationship with my husband. My husband and I used to love attending the movies together, but I am no longer able to sit through a movie without aggravating my pain levels. My husband and I no longer sleep in the same bed, and our sex life has suffered dramatically.
My relationship with my youngest daughter has been significantly affected by my pain.
I am no longer able to attend the gym with her, which was a very important social activity for us, and it was difficult to visit her when she lived in Ocean Grove for 18 months due to my inability to drive for more than half an hour or so without suffering significant pain. Thankfully, she has recently relocated back to Melbourne.
Before my injury, my family and I were very active. We would go skiing every year, and enjoyed family tennis matches and family badminton tournaments. I am no longer able to partake in these activities because of my constant pain.
Due to my inability to exercise as I used to, I have put on around 8 or 10 kilograms in weight.
I have always loved travelling and it remains one of my great passions. My family and I would travel most years together, and since suffering my injury we have travelled overseas on multiple trips. However, as indicated in paragraph 29 of my previous Affidavit, the way that I have travelled has changed since injury. I now need to take Endone and Valium medication in order to sit on an aeroplane for prolonged periods; stop over regularly during any long trips to rest my back; and we were unable, in recent trips, to travel as broadly as we would otherwise have done, and had to stay in one place for long periods to rest my back and control any increases in my pain levels. Whilst COVID has obviously put a hold on travel on my ability to travel in the past 18 months, this is something that I hope to resume when we are able to again.
My mood has been affected significantly. I have a low mood, and I experience depression regularly when I think about what the future holds for me. My daughters are planning on having children, and I worry that I will be able to assist them as I would love to, and I will not be able to look after my grandchildren in the future. I am very socially isolated now, and I tend to see only one friend now, rather than engaging socially with the large circle of friends I used to have.
I find that my memory and concentration are significantly reduced now, and I forget simple things like if I had read a book or seen a television show or movie before. I also find it hard to find words when trying to explain things.”[10]
[10]Affidavit of plaintiff affirmed 27 August 2021, PCB 45−48
21The plaintiff’s affidavit material paints a picture of her suffering significant ongoing pain, which limits her ability to engage in day-to-day activity. She continues to be prescribed painkilling medication including Mobic, Gabapentin, and on occasion Endone. Her affidavits describe an interference with her ability to undertake ordinary day-to-day activity and an interference with her family and personal relationships.
22The plaintiff tendered a report from her treating general practitioner, Dr Michael Mackay, dated 21 July 2020.[11] Obviously that report predates the Panel Opinion. Dr Mackay describes an ongoing physical injury to the lumbar spine, which diagnosis I must disregard because of the Panel Opinion. He otherwise details restrictions for daily activity that the plaintiff has described to him, consistent with her affidavit material. His report does not add much to the analysis, other than to confirm that he was then prescribing ongoing medication for the plaintiff’s pain.
[11]PCB 97
23The most relevant opinion, and more particularly Reasons for Opinion, are from the Medical Panel. The history and description of symptoms obtained by the Panel are consistent with what the plaintiff has said in her affidavit material. Under the heading of ‘Psychiatric Assessment’ the Panel recorded the following:
“The Panel also performed a psychiatric examination which, due to the COVID-19 pandemic, was undertaken remotely using Zoom technology.
The Panel confirmed with Ms Langmaid the account of her physical injury as contained in the Statement of Reasons of the previous Panel.
Ms Langmaid said that following her injury she became angry, upset and sad when she realized that her back was not going to get better and in the context of not being able to do things that she used to. She became angry and upset about the injury’s impact on her relationship with her husband and daughters. She said that her close relationship with her husband and daughters was damaged, giving as an example that because of pain she was not able to travel to Geelong where her daughter was studying when her 21-year-old daughter broke her arm. She said that she felt terrible because of this. She said that she was not able to go to the gym with her younger daughter who turned to her aunt instead. She said that she and her husband began sleeping in separate beds because she would wake if he moved in the bed and then have problems with pain and that not sleeping together caused a lessening of intimate communication.
Ms Langmaid said that at its worst she was sad more often than not for months and depressed for one day at a time. She said that she stopped doing things and became isolated. She said that the amount of reading she undertook decreased. She said that her weight increased by 10 kg. She said she was not tense or worried about things.
Ms Langmaid said that since then her psychological state has improved. She said that she consulted two psychologists as part of pain management programs and found the second psychologist very helpful. She said that funding for further psychological treatment was cut off by the insurer and that after conciliation she is now able to have more sessions with a psychologist. She said however that when she made contact with the psychologist, she had moved interstate and so she has made an appointment to begin further psychological treatment with another psychologist.
Ms Langmaid said that in November 2014 she was diagnosed with cancer of the breast and treated with a lumpectomy, radiotherapy and ongoing hormonal therapy. She said that the hormonal therapy has caused her to go into menopause with hot flushes. She said that she has had surgery on her breasts so that they are now the same size once more. She said that she does not believe that the cancer has affected her relationship with her husband. She said that the impact of the breast cancer was very different, and minimal, compared to the impact of her injury.
Ms Langmaid said that she continued working at the workplace after her injury, only taking one or two days off. She said that she did modified duties after the injury and was well supported by her workplace and colleagues. She said that they took over a lot of her tasks so that she did not have to bend over. She said she never returned to her full pre-injury duties because of physical restrictions but that mentally she had no difficulty with working. She said that she gradually got fewer and fewer shifts at work and four and a half years ago began working at a school, three houses away from her, with a girl who has an acquired brain injury. She said that the work involves helping the girl communicate and socialize but does not involve any physical activity as the girl is not physically disabled. She said that she is currently working four days a week for six hours a day with a 45 minute break in the middle of the day.
Ms Langmaid said that in a typical day she gets up at 7:30 AM if she is working and 8 AM if she is not. She said she does yoga and meditation using an “app”. She said she walks to work, spends her lunch break at home including taking a 15 minute rest, and generally enjoys her job. She said it can be “mind numbingly dull” because it is with children but “at times it’s gorgeous because the children are lovely”. She said it is not mentally stimulating but the people are all nice. She said the job allows her to move as much as she wants to, to help ease her pain. She said after work she relaxes and lies down on her couch. She said she goes for a 15 minute walk with her husband, a graphic designer and university lecturer who works from home. She said she watches TV. She said on days when she is not working, she sleeps in longer. She said she paces herself. She said she meditates. She said she does not do a lot of housework although she does light dusting and does the washing. She said she stays away from shops because of COVID-19 and that her husband does the food shopping. She said she plays card games with her children online. She said she sees her children every two weeks and socializes with a good friend and her friend’s husband every month. She said she walks with her sister-in-law once every two weeks and sees her parents once every two weeks. She said she cooks three times a week or gets take away. She said she eats lunch and dinner, eating the latter meal with her husband. She said after dinner she watches television and reads books, at a rate of about one work of modern fiction every two weeks, which she can generally take in and enjoy. She said she watches movies and Netflix on television and can follow and enjoy them. She said she spends an hour a day in total on social media including family chats and also writes notes on a computer for school. She said she retires to bed at 10:30 AM.
Current psychiatric symptoms and function
Ms Langmaid said that currently her mood is generally pretty good. She said she gets depressed about not seeing her children, changes in her life and her relationship with her husband once or twice a week lasting for a few hours. She said she does not have thoughts that life is not worth living. She said she gets enjoyment from things. She said she is not more angry or irritable than usual although she gets angry if her husband drives over a speed bump too fast because it hurts her back. She said she thinks she is not engaging with life as much. She said that her sleep is disturbed because of pain. She said she is uncomfortable when she first goes to bed and it takes her 30 minutes to fall asleep. She said she wakes up after three hours and then at other times for a total of typically three or four awakenings per night. She said on three of the times she wakes it takes her five minutes to 15 minutes to return to sleep and on three or four occasions a week it takes an hour or so. She said she gets a total sleep of seven or eight hours a day and is still very tired when she gets up, although this passes after about 30 minutes. She said she has energy. She said she gets fatigued, rests at lunchtime and then has energy when she returns to her work. She said her motivation is pretty good. She said her appetite has not changed. She said for the last year she has been on an intermittent fasting diet and has almost lost all the weight that she put on. She said she only eats between 11 AM and 7 PM. She said her concentration is decreased and would interfere if she wanted a higher level job. She said her memory is not as good for details as it used to be. She said her libido is intact and she continues to have a sexual relationship with her husband.
Ms Langmaid said that currently she is not anxious. She said she does not get shortness of breath, chest pain or racing heartbeat.
She said she is not currently consulting any mental health professional.
Ms Langmaid said that she drinks one alcoholic drink per week, does not smoke tobacco or use illicit drugs and does not gamble.”[12]
[12]PCB 24−27
24The Panel’s psychiatric diagnosis was then set out as follows:
“The Panel concluded that Ms Langmaid suffered from an adjustment disorder with depressed mood related to the injury to her lower back but this is now in remission.
The Panel also concluded that Ms Langmaid is currently suffering from a chronic pain disorder associated with both psychological factors, namely the adjustment disorder with depressed mood now in remission, and a general medical condition, namely resolved soft tissue injury of the lumbar spine and sacroiliac joints.”[13]
[13]PCB 27
25Finally, in respect to capacity for work as a sales assistant, the Panel said:
“As discussed above the Panel also considered that Ms Langmaid’s current psychiatric condition is mild and it would not restrict her capacity to return to her pre-injury employment and perform all the duties and responsibilities of sales assistant ...”[14]
[14]PCB 30
26That is the extent of the relevant evidence.
27I accept the plaintiff’s ongoing description of pain. In particular, I accept her described symptoms of ongoing low back pain 4−6/10;[15] pain in the lower lumbar region on both sides, more severe on the right and sometimes radiating into her legs, with such pain present most of the time and most aggravated by sitting;[16] and restriction for activities such as driving, sitting, and physical pursuits.[17] I accept that her description of the pain is genuine and is a genuine consequence of the diagnosed chronic pain syndrome. As such it can be taken into account as a consequence of the compensable psychiatric injury[18]
[15]PCB 20
[16]PCB 21
[17]PCB 22
[18] Noori v Topaz Fine Foods [2018] VSCA 323
28I take account of the fact that the plaintiff is 56 years of age. She has suffered the pain consequences now for some 7½ years, and will obviously have many more years of those pain consequences.
29Balanced against the plaintiff’s evidence of impairment consequences, I also take into account the fact that she is able to maintain employment, engage in a range of day-to-day activity (such as yoga), and has been able to continue her love of travel, even if she has had to modify how she undertakes overseas holidays.[19] I accept that in determining the “seriousness” of an injury it is relevant to not only look at what has been lost, but what has been retained.
[19]T49, L8−12
30At the conclusion of the evidence, the defendant submitted as follows:
“MR McKENZIE: So Your Honour, the defendant submits that the starting point in terms of medical evidence - the start and finishing point - is the medical panel opinion. And Your Honour, as Your Honour has identified, Your Honour doesn’t have any countervailing medical material that might be said to be contrary to the panel opinion. Neither one of us has sought to tender any of that. What Your Honour is left with, in the defendant’s submission, is a chronic pain disorder as we have looked at, that’s the description of it. It’s associated with an adjustment disorder with depressed mood, now in remission, and a general medical condition, namely a resolved soft-tissue injury of the lumbar spine and sacroiliac joints.
And that’s the medical panel characterisation, it’s made it clear that that’s the psychiatric diagnosis. It’s dealt with the issue of permanency; it says they’re permanent, but significantly it says that the plaintiff has no incapacity to work as a sales assistant resulting from any claimed physical or psychological condition. And as we’ve looked at, the panel has also said - on two occasions - that it considers the chronic pain disorder is mild. That’s at p29, last bullet point and at p30, second line. So the application is therefore to be determined based on that medical evidence.
It’s accepted that that’s not the end of the story, but what is significant in this case is that the plaintiff has to satisfy Your Honour that the condition meets the severe threshold, and that is a matter of some significance in the defendant’s submission. It is submitted that the plaintiff’s task is made difficult in terms of satisfying Your Honour that there is a severe emotional behavioural disturbance or disorder as required under legislation in circumstances where the medical panel opinion, or the opinion upon which we’re all required to operate is this medical panel opinion. And it being a mild one, the defendant submits that the application is immediately well below the threshold of severe. And I won’t trouble Your Honour with the authorities in relation to what that means, but - - -
HIS HONOUR: Well, I know that severe means something more than serious in the language used in the legislation.
MR McKENZIE: Yes, and to the extent it’s relevant the defendant would submit that these consequences aren’t even serious, let alone severe.”[20]
[20]T55, L8−T56, L20
31In respect to the spectrum of injuries and impairment consequences, there are some injuries that are clearly “serious” and some that are clearly not “serious”. On my assessment, bearing in mind that the plaintiff bears the evidentiary onus in this application to demonstrate impairment consequences that are “serious” in the sense of being a “severe disturbance”, this proceeding falls somewhere in the middle of the spectrum.
32As mentioned, I accept the plaintiff’s description of ongoing pain, which she has been living with now for over seven years and will now permanently live with. Many daily activities are now restricted because of her pain experience. I accept her described restrictions for daily activity. I accept – and there was no challenge – that she continues to be prescribed and uses strong medication to manage her pain[21]. She impressed me as someone who has not succumbed to the consequences of her injury, and, despite suffering chronic pain, has attempted to get on with her life as best she can, but with interference in her ability to engage in day-to-day activity, hobbies, and her work. In particular, she has difficulty sitting for prolonged periods and that translates into her described restrictions for work, driving and travel. Her personal relationship with her husband is compromised. She is not as physically active as she was pre-injury, or as she would like to be. In my judgment the ongoing consequences of her pain experience are such to produce a “very considerable” consequence to her. Despite the Panel describing the condition as “mild”, the combination of the plaintiff’s pain, her need for significant medication and ongoing restrictions for daily activity are such, in my assessment and contrary to the submissions of the defendant, so as to conclude that the plaintiff’s psychiatric injury can be described as “severe”.
[21] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at paragraph 199
33The outcome of this proceeding was finely balanced, when evaluating the spectrum of impairment consequences to this plaintiff with impairment consequences that may otherwise be suffered[22]. To determine whether the plaintiff has suffered a “serious injury” involves elements of fact, degree and value judgment.[23] In my view, for the reasons set out, the combined pain and suffering impairment consequences to the plaintiff from the psychiatric/psychological injury do produce a “severe disturbance” so as to meet the test of “serious”. The balance is tipped in the plaintiff’s favour.
[22] TTB SMS Pty Ltd v Reading (op cit) at [31]
[23] Mobilio v Balliotis [1998] 3 VR 833
34Accordingly, leave shall be granted to the plaintiff to commence a proceeding for pain and suffering damages.
35I shall hear from the parties as to the question of costs.
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