Lazic v Victorian WorkCover Authority
[2017] VCC 1940
•21 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE SERIOUS INJURY LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-14-03862
| VESNA LAZIC | Plaintiff |
| v | |
| MELBOURNE HEALTH LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2017 | |
DATE OF JUDGMENT: | 21 December 2017 | |
CASE MAY BE CITED AS: | LAZIC v VICTORIAN WORKCOVER AUTHORITY | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1940 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION.
Catchwords: Serious injury application – injury to lumbar spine – disentanglement from other physical injuries – disentanglement of consequences of physical injury from consequences of psychological condition - pain and suffering consequences only – whether consequences “very considerable”.
Legislation Cited: Accident Compensation Act 1985, s134AB.
Cases Cited:Peak Engineering Pty Ltd & Anor v Victorian WorkCover Authority [2014] VSCA 67; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Richard Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
Judgment: Leave to the Plaintiff to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Robinson Gill Lawyers |
| For the Defendant | Ms G-J Cooper | IDP Lawyers |
HIS HONOUR:
PRELIMINARY
1 The plaintiff, Ms Vesna Lazic, seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act1985 (“the Act”) to bring common law proceedings to recover damages for an injury to her lumbar spine suffered by her during the course of her employment as a psycho-geriatic nurse with Melbourne Health Ltd (“the defendant”)[1] on 11 December 2009 and over the course of her employment.
[1]Melbourne Health Ltd is named the first defendant and the Victorian WorkCover Authority is named the second defendant in the Originating Motion. For practical purposes, I shall refer to Melbourne Health Ltd as the defendant.
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering” damages only, within the meaning of s 134AB(37) of the Act.
3 The plaintiff gave evidence and was cross-examined. Both parties tendered various affidavits and medical material.
4 The Court must not give leave to bring proceedings, unless it is satisfied on the balance of probabilities, that “the injury” is a serious injury within the meaning of the definition of “serious injury” contained in s 134AB(37) of the Act.
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s 134AB(37) of the Act, being a permanent serious impairment or loss of a body function. The part of the body said to be impaired for the purposes of paragraph (a) is the lumbar spine of the plaintiff.
6 The plaintiff is required to prove, on the balance of probabilities, that the consequences of injury in relation to “pain and suffering” must be serious – that is, the impairment or loss of a body function “when judged by comparison with other cases in the range of possible impairments… may be, fairly described as being more than significant or marked, and as being at least very considerable”.[2] This is sometimes referred to as the narrative test.
[2]s 134AB(38)(c) of the Act.
7 The plaintiff was born in Serbia and is 55 years of age. She completed high school and nursing studies in Serbia. In 1982, at the age of 20, the plaintiff immigrated to Australia with her husband and their child. Upon arrival, she obtained employment at Caritas Christi Hospice. In about 1999 she was transferred to the Westside Lodge (“the Lodge”) operated by the defendant, where she worked on a full time basis as a psycho-geriatric nurse.
8 Prior to her back injury, the plaintiff said her work at the Lodge involved full nursing care of patients. Amongst other tasks, she was required to assist patients to shower, toilet and feed. She was also required to lift patients off chairs or the floor and move patients to and from beds and wheelchairs. She said that the lifting work was often done manually, without a lifting machine. She also said the patients often engaged in challenging behaviours and became aggressive or resistant as a result of their psychological or cognitive conditions.
9 The plaintiff’s work supervisor Colin Barker said that her pre-injury duties were physical and required her to amongst other tasks assist patients in getting out of bed and showering.
10 On 11 December 2009, during the course of her shift at the Lodge, the plaintiff experienced extreme pain across her left low back.[3]
[3]There is evidence of some prior injuries. It was, however common ground, at the hearing that these were largely immaterial. In 2001 the plaintiff had low back pain ‘on and off’ which resolved soon after. In the same year she underwent a hernia repair. In mid-2007 the plaintiff was involved in a car accident in which she was hit from behind. The accident caused some neck and upper back pain for which she attended one session with a physiotherapist. The pain resolved soon after. In 2008 the plaintiff experienced some neck and shoulder pain which she attributed to her work duties. She took approximately two months off work and undertook light duties for a period upon returning to work. The pain she said, eventually passed.
11 This is said to be the injury which is the subject of this application.
12 The plaintiff eventually returned to work and continued to work full time hours at the defendant until May 2014 (when she sustained an injury to her neck and shoulders).
13 Two disentanglement issues were raised in this matter: firstly, that the plaintiff has suffered a subsequent injury (or injuries) to her neck and shoulder(s) (“the neck and shoulder injury”) and secondly, that the defendant asserts that there is a psychological overlay to the pain and suffering claimed by the plaintiff.
14 The first issue which I am required to resolve concerns the separating out of any pain and suffering consequences associated with a subsequent neck and shoulder injury sustained by the plaintiff. I am required to identify and exclude any consequences referable to the subsequent injury in assessing whether the plaintiff has satisfied the narrative test.[4] Only consequences properly referable to the back injury can satisfy this test.
[4]Peak Engineering & Anor v McKenzie [2014] VSCA 67 (“Peak Engineering”).
15 In Peak Engineering, Maxwell P discussed the difficulty that arises when a separate injury also produces pain and suffering consequences for the claimant, as well as the relevant injury. In such circumstances:
The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.[5]
[5]Ibid [2].
16 The second issue raised in this matter which I must resolve is whether I am required to disentangle any pain and suffering consequences and work incapacity arising out of the plaintiff’s psychological condition from the consequences associated with her back injury.
17 Section 134AB(38)(h) of the Act provides that consequences which are psychologically based must be disregarded in a paragraph (a) case.
18 In Meadows v Lichmore[6] Maxwell ACJ set out a two-step approach to the task of disentangling psychological or psychiatric consequences of a physical injury:
[6][2013] VSCA 201.
… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.[7]
[7]Ibid [21]-[22].
19 Ultimately, I am required to determine whether the disentangled consequences fall within the range of the narrative test in s 134AB(38)(c).
pre-neck and shoulder injuryPlaintiff’s contemporaneous medical evidence
20 As I said, on 11 December 2009, during the course of her shift at the Lodge, the plaintiff experienced extreme pain across her left lower back. At the time she was caring for an incontinent patient who spent most of his time on the floor. The patient required lifting approximately 10 times.
21 The plaintiff said the pain came on quickly but then settled. She completed her shift and went home whereupon the pain returned and progressively worsened. At approximately 4am the next morning, she awoke in severe pain and found that she could not move her left leg. When she put her left foot on the floor, she felt a severe sharp pain in her back. She contacted a locum doctor who advised her to rest which she did for three days. Over this period her leg symptoms improved however her back pain continued.
22 On 15 December 2009 the plaintiff attended her general practitioner, Dr A S Ansari, who ordered an x-ray of her lumbo-sacral spine and left hip. The x-ray showed a disc space narrowing at L5/S1. Several days later on 19 December 2009, a CT scan of the plaintiff’s lumbar spine was performed. This showed:
Broad diffuse disc bulge at L4/5 and L5/S1 causing mild lumbar canal stenosis. Bilateral L3/4 mild disc protrusions contacting but not compressing L3 nerve roots.
23 Dr Ansari referred the plaintiff to orthopaedic surgeon Mr Brian Barrett, who examined the plaintiff on two occasions in January 2010. Based on his assessment of the CT scan, Mr Barrett ordered an MRI of her lumbosacral spine, which was performed on 15 January 2010. The results of this MRI were that “no significant abnormality is seen”.
24 In January 2010, Dr Ansari observed the plaintiff could not move and was in a lot of pain. He prescribed her 100 mg of Tramadol and Naprosyn
25 At this time, Mr Barrett advised the plaintiff that she should consider a return to light work in the next week few weeks. Mr Barrett expressed this opinion “knowing that she has not sustained a serious or permanent lumbar spinal injury.” I note that this opinion was expressed in the context of discussing MRI results which showed no abnormality. Mr Barrett clarified in a later report that while the MRI concluded that there was no significant abnormality seen, “sometimes following a relatively minor lumbar disc injury the MRI features may take some months to fully develop.”
26 As at February 2010, Mr Barrett was not able to determine when the plaintiff could return to her pre-injury duties, but said that she would need to avoid prolonged stooping and heavy lifting situations for many months. Mr Barrett was of the opinion that he expected the plaintiff should avoid working in a geriatric ward owing to the often unexpected need to lift, carry and support patients.
27 Dr Andrew Miller, occupational health consultant, assessed the plaintiff in mid-February 2010. He expressed the opinion of the plaintiff’s injury that “the underlying pathology appears to be an aggravation of degenerative changes in the lower spine”. He also opined that she was not capable of doing the full range of pre-injury duties, but was capable of working with restrictions which avoided lifting in excess of 5kg, certain back movements, forceful pushing or pulling and prolonged static postures including sitting or standing.
28 In March 2010, the plaintiff returned to work at the defendant on light duties, two hours per day, three days per week. Her duties were limited to feeding patients and paperwork. In May 2010 she increased her hours to five hours a day, two days per week and she continued with light duties.
29 In October 2010, Dr Ansari diagnosed the plaintiff as having sustained “a musculo-ligamentous strain of the lumbar spine and left hip”. He reported that the plaintiff was now taking Panadol for pain and Panadeine Forte for severe pain and was also attending on a physiotherapist. He was of the opinion that the plaintiff was capable of attending to normal work duties, except heavy lifting which he said she must avoid any cost. He reported that the plaintiff’s lifestyle was affected. She required her husband and son to help with most of the major domestic tasks. Her sleeping patterns were significantly disturbed. She was only able to tolerate sitting for around 40 minutes, so was limited in where she could drive. She did not go out as much anymore. While she was able to walk, bike riding was “out of the question.” She could no longer go for an hour or two hours walk.
30 Dr Ian McInnes, Clinical Associate Professor of Surgery assessed the plaintiff in January 2011. He diagnosed the plaintiff as “suffering from spondylosis of the lumbosacral spine” and said she “does continue to suffer from it relevant to the injury”. He said that the plaintiff was still “very guarded about anything she does” and that she did not do any heavy lifting, twisting or turning.
31 The plaintiff ceased work in February 2011 because the defendant told her that there were no light duties available.
32 By April 2011, Dr Ansari observed that the plaintiff was continuing to have back pain, which had prevented her return to normal duties to that point. However, he was of the view that the plaintiff, was capable of gradually returning to normal duties, but with specific restrictions. Those restrictions included no frequent lifting, bending, pulling, twisting and no reaching above shoulder height.
33 In a Certificate of Opinion dated 4 April 2011 the Medical Panel noted that the plaintiff had an “accepted lower back injury”. In a Certificate of Opinion dated 20 October 2011, the Medical Panel diagnosed the plaintiff as:
…suffering from persisting low back dysfunction, without radiculopathy, as a consequence of soft-tissue injury of the lumbar spine, relevant to the claimed injury.
34 In August 2011, the defendant offered the plaintiff light duties at a location in Bundoora, which the plaintiff says she was not able to accept because she could not manage to drive to this location (because of the prolonged sitting involved with such a drive).
35 Around this time, Dr Ansari certified the plaintiff fit for normal work. The plaintiff then returned to work at the Lodge on a full time basis in September 2011.
36 Two years later in April 2013, Dr Ansari said that the plaintiff was experiencing back pain with pain radiating down her left leg, and that she continued to rely on Panadol and Panadeine Forte to manage that pain. By this time, the plaintiff had returned to normal duties at work for some time. He opined that her prognosis was “good” and without any undue pressure her condition would improve.
37 In February 2014, shortly before the plaintiff sustained her neck and shoulder injury, Dr Ansari observed that the plaintiff continued to report ongoing pain and tenderness in her back with pain and numbness in her leg. She said that the pain was on and off and worse on some days than others. He reported that the plaintiff was using “mainly” Panadeine Forte for her pain relief. He said that the plaintiff was not totally prevented from enjoying her personal and recreational interests, however she remained unable to do any bike riding and could only walk short distances.
38 The plaintiff continued to work full time hours at the defendant until May 2014, when she sustained an injury to her neck and shoulder injury.
39 The plaintiff said that she took between one and three Panadol per day and between one and three Panadeine Forte per week, depending upon how bad the pain was.
Defendant’s contemporaneous medical evidence pre-neck and shoulder injury
40 The plaintiff was also assessed by Dr David Barton, occupational physician. In October 2010, he was of the opinion that the clinical presentation of the plaintiff did not “fit with a straight forward physical problem and suggests a degree of abnormal illness behaviour.” However, he went on to conclude “… it is possible she developed a mild soft tissue injury…” He further observed that he could not see any ongoing physical problem which would prevent the plaintiff from returning to normal work, with gradually increasing hours.
41 Dr Barton assessed the plaintiff again in 2011. He reiterated his conclusion that the plaintiff’s “condition is not physically based”. He stated that:
She may have had a mild soft tissue injury in her back area, that I believe has now resolved and that her current problems relate to abnormal illness behaviour.
42 Dr Barton could see no reason why the plaintiff could not undertake normal work or the activities of daily living.
43 The defendant accepted the plaintiff’s Worker’s Injury Claim Form dated 13 February 2009, in which the plaintiff stated that her injury/condition was “Musculoligamentous of Lumber spine left hip [sic]”.
pre-neck and shoulder injuryork duties evidence Contemporaneous w
44 I have already detailed the range of duties and activities that the plaintiff undertook as a psycho-geriatric nurse prior to her back injury.[8]
[8]See above [8]-[9].
45 The plaintiff said that when she returned to work in March 2010 she was on restricted or light duties, which were basically limited to feeding and paperwork. She was not able to work full-time hours. She increased her hours in May 2010, but remained on light duties. She said that by June 2010, however she was taking Panadeine Forte daily for her pain.
46 The plaintiff said that after she returned to full time work in September 2011, she was struggling to maintain her work. She was doing some heavy lifting, although she tried to avoid this activity.
47 During cross-examination, the plaintiff accepted the proposition put to her that after her return her duties were unrestricted. However, she added that she was not able to do what she used to do and frequently asked for help and stayed longer at work. She felt she had no choice but to return to work at the Lodge because she could not drive to Bundoora.
48 In re-examination the plaintiff clarified that, if she had to lift someone, she would ask for help or she would use a lifting machine. She said she would do tasks differently to the way it was meant to be done. She said that it would take her longer to finish tasks and she found it stressful that she could not perform tasks in the way she used to.
49 The plaintiff described her back pain between 2011 and 2014 as:
six, six, seven [out of 10], it all depends like I’m saying what I did the day before, what I’m doing at the time and what type of patients and amount of manual handling, you know, you perform.
50 Mr Thomas Tang, work colleague of the plaintiff, said that since meeting the plaintiff in June 2012, he has observed that the plaintiff experienced significant back problems at work. He said that he has seen that the plaintiff walks slowly on the wards and has to take extra time. He knows that she is not able to change the incontinence aides of the residents, so he does not ask for her help to do that activity. He has personally seen her stay after hours to complete her work.
51 Ms Esther Muu, work colleague of the plaintiff said that she met and worked with the plaintiff prior to her back injury. She observed that after the plaintiff injured her back she could not stand for long periods. She had extreme difficulty performing work tasks which involved bending, crouching, squatting or lifting. She recalls the plaintiff asking her personally for assistance dressing residents on numerous occasions.
52 The defendant made no challenge to the evidence of Mr Tang or Ms Muu. Their evidence is important because it supports the plaintiff’s account that despite her return to full time and normal duties, her back pain persisted and, in fact, continued to restrict her performance of some of her duties.
Contemporaneous home duties evidence pre-neck and shoulder injury
53 The plaintiff said that she needed her husband to help her with the vacuuming and laundry. She said she was able to garden, but it is with a level of difficulty and pain she did not experience before, particularly around bending.
54 The plaintiff’s husband, Branislav Lazic, said that the plaintiff has only been able to do a limited amount of light home duties. The plaintiff said that prior to her back injury she did a full range of domestic chores and took pride in keeping the house in good order. He said he had taken over a substantial amount of the basic domestic activities.
Contemporaneous recreation evidence pre-neck and shoulder injury
55 The plaintiff said she was no longer able to take recreational walks, which she used to do in the evening for exercise and to unwind.
56 She struggled to ride a bike at all, an activity which she previously did approximately once per week.
57 She barely went out because she could not stand or sit, where she used to enjoy going out with her girlfriends frequently.
58 She finds driving long distances problematic. As consequence, she said that her and her family no longer go on family outings on the weekend.
59 Mr Lazic confirmed that before her back injury, he and the plaintiff would walk or bike ride a couple of times per week together. The plaintiff now had difficulties riding her bike.
Contemporaneous sleep evidence pre-neck and shoulder injury
60 The plaintiff said that her sleep was affected by the back pain and that she took Panadeine Forte at night at least once per week in order to fall asleep or fall back to sleep after waking up.
The neck and shoulder injury
61 In May 2014, the plaintiff experienced pain in her neck and shoulders. She attributed the pain to heavy lifting at work but there was no specific incident which triggered the pain.
62 The plaintiff ceased work between May to November 2014 because of shoulder and neck pain.
63 In December 2014 she returned to work performing office duties at the Sunshine office of the defendant until that office was closed.
64 By May 2015, the plaintiff had returned to work at the Lodge. She increased her hours at the Lodge to eight hours per day, four days a week. She said her duties were limited to feeding, assisting other staff with toileting, supervising, observing patients and administrative duties. She said she was quarantined from aggressive and unpredictable patients.
65 The plaintiff took stress leave between October 2015 to January 2016 while she was recovering on WorkCover. During this time the Lodge was permanently closed. She returned to work on light duties in January 2016 at the Aged Person’s Mental Health Unit at Sunshine Hospital, operated by the defendant. By 7 March 2016 she returned to full normal duties.
66 Between August and November 2016 the plaintiff went on a further period of stress leave because of “work related issues”.
67 She is currently employed by the defendant at the Sunshine Hospital on a full time basis.
Plaintiff’s medical evidence post the neck and shoulder injury
68 In February 2015, Dr Ansari noted that the plaintiff continued to experience back pain, which was sharp and radiated down the sides of her legs. However, he also observed that “the problem in her shoulders and neck was so severe, that it overshadowed her back pain.” He opined that these subsequent injuries had aggravated the plaintiff’s back condition. At this time, the plaintiff continued to take Panadeine Forte.
69 Dr Ansari ordered a further MRI of the plaintiff’s spine on 11 March 2015. No significant abnormality was detected.
70 By February 2016, Dr Ansari noted that the plaintiff continued to experience back pain with pain going down her left leg. She avoids certain types of movements including repetitive bending, lifting, pulling, pushing and sitting or standing for too long. The plaintiff’s pain continued to wake her at night. He felt that she could return to full time work with “extra support.” She continued to be restricted in her pre-injury hobbies and activities and daily personal activities.
71 In his most recent report of February 2017, Dr Ansari reported the plaintiff had chronic back pain, which she described as “shooting” pain. She manages severe pain by taking Panadeine Forte (500mg) and takes some Panadol and Celebrex (200mg) when the pain is not at the severe level. The plaintiff’s current normal duties are less physical than before, but she is required to sit or stand for prolonged periods, which aggravates her back pain. He observed that the plaintiff’s back condition is “now considered to be getting worse”. She is still unable to go cycling and has trouble going for walks.
72 At the request of her solicitors, the plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, in December 2014, September 2015 and March 2017.
73 In a report of December 2014, Mr Simm stated that he had received a history of deteriorating back symptoms since the onset of neck and shoulder symptoms. He thought the plaintiff was suffering from chronic, non-specific, mechanical low back pain, which commenced on 11 December 2009. He observed that the plaintiff has never had a period of sustained recovery from her low back pain. He went on to say that he was unable to provide a diagnosis of the underlying pathology responsible for the chronic pain. With regard to shoulder and neck pain he said “there were features of a cervicobrachial pain syndrome with frequent and at times marked pain behavior”. As for work capacity he said:
She is currently totally incapacitated for her previous employment as a geriatric nurse. She is confined to alternative light office-based employment because of neck and shoulder pain. Her back injury was not incapacitated her for her normal employment and in the absence of neck and shoulder symptoms I would have expected her to continue to do her normal hours and duties…
74 In September 2015, Mr Simm was of the opinion that the plaintiff’s back injury had stabilized, but noted a deterioration in her shoulders which remained painful. He said there was pain in her neck most of the time. He noted that the plaintiff’s back pain is now present most of the time and she had difficulties bending and dealing with her footwear, sitting or standing for more than 30 minutes at a time. He opined that the plaintiff’s presentation was dominated by the clinical features of a chronic adverse pain response. However, he did not explicitly identify which injuries this comment was referable to. He went on to say that her condition falls, “to some extent”, outside the field of orthopaedics and more in the field of chronic pain and psychiatry.
75 In his final report of March 2017 Mr Simm noted persistent symptoms of chronic, non-specific mechanical back pain and persistent neck and bilateral shoulder pain. He observed that the plaintiff “is no better than when I last examined her…” He thought that the clinical findings “in relation to both shoulders,” were more consistent with a chronic pain response in the setting of somebody with work related stress and anxiety regarding her ongoing musculoskeletal symptoms, and that these aspects of her condition need to be evaluated by a psychiatrist.
76 Several reports from Associate Professor Nicholas Paoletti were tendered. In a report of January 2017, he diagnosed the plaintiff with a chronic unspecified adjustment disorder with both anxious and depressive components. However, he concluded that the plaintiff does not need psychiatric treatment.
Defendant’s medical evidence post the neck and shoulder injury
77 The defendant relies on two reports prepared by Dr Ansari in late 2014, concerning the plaintiff’s injury to her neck and shoulder. Dr Ansari reported that the plaintiff is being treated with Celebrax and Panadeine Forte for pain relief. She is experiencing sleep disturbance and experienced intense pain at night. In a report dated 9 December 2014, Dr Ansari said that the plaintiff was experiencing constant pain in her right shoulder and neck. She suffered regular headaches. He opined that activities which would aggravate her neck and shoulder injury included any overhead activities, doing hair and make-up, sleeping, sitting for than 30 minutes and resistance exercises.
78 The defendant tendered several reports from Dr John Lange, occupational physician. In 2014, Dr Lange examined the plaintiff in relation to her shoulder and neck symptoms, for the WorkCover insurer. Upon examination Dr Lange found no evidence of abnormal illness behaviour. In Dr Lange’s final report of October 2014 he concluded that the plaintiff had recovered from her neck and right shoulder conditions. He noted that her main pain at that time preventing her from returning to work was her left shoulder. He concluded that the plaintiff was fit to return to her full normal duties. In cross examination the plaintiff accepted that she told Dr Lange that her shoulder symptoms were so severe at night that she was apprehensive about going to bed.
Work activities evidence post neck and shoulder injury
79 In two affidavits sworn in April and May this year, the plaintiff said that she continues to suffer from constant low back pain and stiffness. She said her back pain is sharp. She said that the worst pain she gets at work is when she is required to transfer a patient to a wheelchair.
80 In July this year, the plaintiff said that her shoulder pain was constant and “7/10 on both sides”. Under cross examination the plaintiff accepted that she has had constant pain in her right shoulder since 2014 and that pain restricts her ability to lift above shoulder height and reach forward.
81 She conceded that such pain was really severe but said that it was not all the time, it depended on what she was doing. She denied that her shoulders were her main issue.
82 At the present time, the plaintiff said that she takes Panadeine Forte (500mg) twice per week to enable her to work. She also takes two to three Panadol daily and Celebrex (200mg) one to three times a week for shoulder pain.
83 The plaintiff said that her work at the Sunshine Hospital is physically easier than the work at the Lodge because the patients are more independent. However, she continues to have difficulties performing tasks at work that involve bending, crouching, squatting and lifting heavy patients. During cross-examination, she further accepted that her current work at Sunshine Hospital aggravates her shoulder pain from time to time. She said the only activity at work which only affects her shoulders alone is sitting at the computer doing notes.
84 She said she is constantly adjusting the way she does things to avoid reinjuring her back, for example, using wheelchairs and lifting machines to move patients where other workers would not. On several occasions she has refused to lift various patients. She also said she goes onto her knees to work at lower heights. As a result of these adjustments she said she is slower than other workers.
85 The plaintiff states that she believes most people would stop working if they experienced the difficulties and pain she did at work, but she loves her work. She said she would be lost without it and has chosen to put up with the pain in order to keep going.
Home and recreation activities evidence post neck and shoulder injury
86 The plaintiff said that she continues to be unable to sit or stand for prolonged periods. She said the pain is worse at night and her sleep is interrupted by her back pain every two hours or so. During cross-examination she said she sometimes wakes up because of back pain and sometimes shoulder pain. She is still unable to ride her bicycle or go on long recreational walks. Her husband has continued to take on much of the household chores.
87 In an affidavit of July 2017, which specifically concerned her neck and shoulder injury, the plaintiff said that she had to have her husband help with grocery shopping as she could no longer carry grocery bags. She also struggled to clean the house as a result of her shoulder and neck injury, as she struggled with reaching up and forward. She found it difficult to vacuum and hang out washing. She said she also had difficulty washing her hair. During cross-examination, she accepted that her shoulders made it difficult to wash her hair.
RESOLUTION ON DISENTANGLEMENT OF PHYSICAL INJURIES
88 Counsel for the defendant submitted that the consequences properly referable to the back are some moderate pain that requires the taking of Panadol and Pandeine Forte a couple of times a week, some mild sleep disturbance, an inability to ride a bike, restrictions on her ability to garden and, a reduction in socializing.
89 Counsel for the plaintiff submitted that the consequences properly referable to the back were chronic pain which was managed by taking strong medication on a regular basis, an inability to return to pre-injury duties without adjustments and modifications, assistance with most of the major tasks around home, significant disturbance of her sleeping pattern, and restrictions on her ability to go for walks, cycling or drives for more than 30 minutes.
90 I make the following preliminary observations:
· There were no major credit issues put to the plaintiff.
· Counsel for the defendant accepted that the plaintiff was an honest witness, but submitted that, to some degree, she was an unreliable witness with respect to the consequences from her back condition. (Counsel for the defendant argued that I ought to prefer the contemporaneous notes and reports made between 2010 and 2014 over the plaintiff’s evidence, where her evidence gives rise to a conflict or expansion).
· I found the plaintiff to be a credible and honest witness and to generally be a reliable witness.
91 Essentially for the reasons advanced by the plaintiff’s counsel I am able to separate out the symptoms and consequences of her back injury from her neck and shoulder injury.
92 First, I have the benefit of many contemporaneous reports relating to the period before May 2014. I have the benefit of an affidavit deposed by the plaintiff before her neck and shoulder injury was sustained, and of witnesses who were able to make observations of the plaintiff prior to that subsequent injury in May 2014.
93 The parties agreed that, on the evidence, the plaintiff’s back injury has not improved since it was first sustained in December 2009. In my view, this common position accords with the state of the evidence. While the plaintiff now must contend with additional pain and consequences, referable to her neck and shoulder injury, the consequences referable only to her back injury subsist to this day both in both range and extent.
94 Therefore, I am greatly assisted in my task of separating out the consequences of the back injury from any consequences associated with the neck and shoulder injury, by a body of evidence, lay and medical, which is referable to the period before May 2014. This evidence is credible and reliable (it is not suggested otherwise) and provides an important objective point of comparison for separating out the consequences of the back injury from the consequences of the neck and shoulder injury. The consequences identified in this earlier evidence carry forward to today.
95 Second, the plaintiff was able to sufficiently discriminate between the two injuries. While the plaintiff struggled at times with the somewhat artificial process of being asked to separate out the consequences of the two injuries which impacted on her every day work and life in an often simultaneous way, there were further and different consequences referrable to her shoulders/neck injury:
·The plaintiff was able to say that “I do know the difference, you know, because I can feel different pain.”
·Her shoulder/neck injuries “restricted her ability to lift above shoulder height and forward” and as a consequence she had difficulty doing cleaning tasks, hanging out washing and washing her hair. However, she clarified during cross-examination that her hands (and shoulders) were not separate from her back and in respect of these activities her back was also affected. She gave an example of lifting – sometimes you need to use both your shoulders and back.
·She struggled with reaching up and forward
·She said that her shoulders affected her differently and her back affected her differently. It all depends what she is doing.
·However, she was able to say that she experienced pain, which affected her shoulders/neck only, sitting at a computer and doing notes.
·As to her sleep, if she is lying on the side, it affects her shoulders. If she lies on her back, it affects her back. Because she sleeps on her back she thinks the back injury affects her more. Her sleep was “worse” because she experienced pain in her shoulders and could no longer lie on her side (after she injured her shoulders/neck). Her pain in relation to her neck and shoulder injury was so severe at night she was apprehensive about going to bed.
·She had to have her husband help with grocery shopping on occasions to carry grocery bags. However, she clarified during cross-examination that she thought it was difficult because of both her back and shoulders.
·Her shoulders further limited her gardening to watering and potting plants, and further limited her capacity to do house work.
·She agreed with the proposition that she is vastly more restricted today than she was before her shoulder injury.
·Her pain referrable to her neck and shoulder injury is probably worse than that referrable to her back injury, though this varies and it will depend upon the day.
·As for medication she continues to take Panadol (nearly daily) and Panadeine Forte (one to three times a week) for her back pain and Celebrex for her pain referable to her neck and shoulder injury.
96 In short, she gave evidence of those consequences referrable to the neck and shoulder injury to be considerable pain in both shoulders, the use of anti-inflammatory medication, restrictions in lifting above her head and forward, difficulty using her arms/shoulders to complete notes, increased sleep disturbance because she was no longer able to seek relief by lying on her side, and further restricted garden and home duty activities.
97 By contrast, those consequences which are referable only to the back injury – as established by the contemporaneous evidence – and which I find persist today are:
i. persistent back pain which includes pain radiating across the lower back, and occasional numbness and pins and needles in her legs (thighs). The pain is not present every day but occurs on most days.
ii. significant restrictions to her capacity to undertake the activities of gardening, bike riding and recreational walking.
iii. she is unable to return to her pre-back injury duties without the need for practical and ongoing modifications and assistance. In particular, she has extreme difficulty performing work tasks which involve bending, crouching, squatting, twisting, turning, heavy lifting, lifting of heavy patients or dressing residents. She frequently asks for help and stays longer at work to complete her tasks.
iv. she takes Panadol (between one and three tablets nearly daily) and Panadine Forte (one to three times a week) for her back injury. She takes the Panadol for pain and Panadeine Forte for severe pain.
v. She continues to have sleep disturbance because of her back injury which arises because she sleeps on her back. She will wake up with numbness on the side of her legs.
vi. She has limited sitting tolerance (approximately 30 to 40 minutes).
vii. She cannot not stand for long periods.
viii. As she cannot stand or sit for prolonged periods, she barely socialises, whereas she used to enjoy going out with her girlfriends frequently.
ix. As she cannot stand or sit for prolonged periods this affects her capacity to drive for lengthy periods. As a consequence, she said that her and her family no longer go on family outings on the weekend.
x. She now has difficulty with basis domestic chores (including the vacuuming and the laundry). Prior to her back injury she did a full range of domestic chores and took pride in keeping the house in good order. She requires her husband and son to help with most of the major domestic tasks.
98 I turn now to address the principal specific arguments advanced on behalf of the defendant.
99 As to the defendant’s argument that the neck and shoulder injury overshadowed the back injury and was at least “the main issue” today, this does not, in my view, answer the very questions which I must address – namely, are the consequences referable only to the back injury ascertainable and do they amount to serious injury? I agree that her neck and shoulder injury does appear to be the ‘main issue’ today. However, the back injury, and it consequences which persist to today, can be adequately identified. Further, as will become apparent I find that it is a relevantly serious injury. Certainly the neck and shoulder injury does not overshadow the back injury to such a degree that it is no longer possible to disentangle the consequences of the respective injuries.
100 As to the defendant’s reliance upon the fact that the plaintiff was able to return to full time work, purportedly on unrestricted duties, prior to her neck and shoulder injury, this is not, in my view, an obstacle to the plaintiff’s case:
· The fact that she returned to full time work after the back injury (and before the neck and shoulder injury), purportedly on unrestricted duties, needs to be balanced against the cogent contemporary lay and medical evidence that she did in fact modify her approach to work and that her symptoms and pain and consequences persisted. I find that in fact the plaintiff has never been able to return to unrestricted pre-injury duties. I accept the evidence of the plaintiff and her work colleagues in this respect.
· I take into account that the plaintiff has demonstrated a degree of stoicism about her pain. She has been injured before and returned to work.[9] She has said that she believes that many would not put up with what she experiences in terms of pain at work, but she does because she loves her work. Since arriving in Australia more than 20 years ago, she has always done this kind of work. The plaintiff is entitled not to be disadvantaged by her stoicism.[10] I do find that she was someone who wanted - and wants – to work in her chosen field.
· The fact that the plaintiff was unable to return to full time work after the neck and shoulder injury merely demonstrates that this injury has tipped the plaintiff over the edge. It does not diminish the gravity of the back injury.
[9]See footnote [3].
[10]Richard Sutton v Laminex Group Pty Limited [2011] VSCA 52 [48] [80]-[83].
101 As to the plaintiff’s failure to report any ongoing issues to Mr Colin Baker since March 2016 (despite the fact that he emphasised that she was immediately to report any pain or any difficulty she may be experiencing in completing her full range of duties), I accept the plaintiff’s explanation that she was actually afraid to bring it up for fear that she might lose her job. She said that he effectively threatened her with this consequence. I am prepared to accept that her stoicism and determination to keep her job prevented her from complaining. It cannot be inferred from her failure to do so that her health issues were minor.
102 I turn to the defendant’s reliance upon the note from Dr Ansari’s report in October 2010 that “She enjoyed walking and bike-riding prior to the injury. She is able to walk now, but the bike-riding is out of question.”[11] I do not interpret that as an admission by the plaintiff that she had returned to recreational walking or that she was able to enjoy walking. At best, this note, which is not the plaintiff’s own note and which she never had an opportunity to read or adopt, is ambiguous.
[11]Emphasis added.
103 The defendant also relied upon the opinion of Mr Simm in his December 2014 report that prior to the onset of her neck and shoulder pain she was walking and cycling for one to two hours per day. Viewed in isolation, these propositions bespeak of a person who is very largely unaffected by her injury. They tell against the plaintiff’s case.
104 However, insofar as home life is concerned, the whole paragraph from the report reads:
She is able to drive. She is independent with the personal activities of daily living. She struggles with certain tasks associated with dressing and showering. She is able to do light shopping and some light cleaning. She is able to prepare meals. She previously enjoyed gardening but she is now limited to watering the garden and doing light gardening. Prior to the onset of her neck and shoulder pain she was walking and cycling for one to two hours per day. She is now unable to walk comfortably for more than 30 minutes because of soreness in the neck and shoulder. She is not able to sit and stand for lengthy periods because of aggravation of her back. These symptoms have worsened lately.[12]
[12]Emphasis added.
And earlier in the report Mr Simm notes that:
Her back is stiff and it is difficulty for her to bend forwards to deal with footwear. She has great difficulty standing up straight after bending forwards. The back symptoms are aggravated by carrying shopping and by doing housework. She vacuums on her knees. Her husband usually does the vacuuming and heavier housework.
105 In my view, Mr Simm was describing a person quite significantly impaired with daily activities.
106 Mr Simm also expressed an opinion, in the same report, that the plaintiff’s back injury was not incapacitating her for her normal employment and in the absence of the neck and shoulder symptoms he would have expected her to continue to do her normal hours and duties. The defendant relies upon this. I have some difficultly reconciling that statement with the evidence I have quoted in the previous paragraph. In any event, the statement just does not sit with the evidence of the plaintiff, her husband or her work colleagues, which I find to be credible and reliable.
107 As to the defendant’s reliance upon the various opinions that “her prognosis was good” (Dr Ansari, 2013), that her injuries were not “serious or permanent in nature” (Mr Barrett, 2013) and that her prognosis is “reasonably good” (Dr Ansari, February 2013), these opinions must be considered in context of the evidence as a whole. For example, the opinion of Mr Barrett was expressed in the context of discussing MRI results which showed no abnormality. He also noted that he would expect that the plaintiff would have to avoid working in a geriatric ward owing to the unexpected need to lift, carry and support patients. Further, I must ultimately assess whether the injury is relevantly serious by reference to the actual and specific consequences which I find to exist. These general opinions say little or nothing about these specific consequences.
108 The defendant also argued that the plaintiff (perhaps unwittingly) exaggerated some of the consequences of her back injury in her evidence before me. The defendant’s counsel submitted that the plaintiff’s assertion that her back pain is six or seven out of 10 is inconsistent with the contemporaneous medical and lay evidence. The defendant’s counsel also submitted that the plaintiff’s evidence that she was waking up every 3 hours because of her back pain is inconsistent with the plaintiff’s more moderate description in his first (contemporary) affidavit that she takes Panadeine forte at least once a week to help her sleep, in order to fall asleep or fall back asleep after waking up. I prefer the contemporary evidence as to these matters. I have, out of caution, disregarded the plaintiff’s evidence before me on these matters. That all said, the answer to these arguments is that the level of her back pain and the extent of her sleep disturbance, established by reference to her contemporaneous descriptions, is still far from minor.
109 Putting the psychological overlay issue to one side, having identified the consequences properly referable to the plaintiff’s back it falls to be determined whether those consequences, by comparison with the consequences of “other cases in the range of possible impairments”, can reasonably be viewed as “at least very considerable or more than significant or marked”.
110 Accepting the evidence, as I do, of the various consequences referable to the plaintiff’s organic (back) injury, I am satisfied that the impact of those consequences upon her achieve the “very considerable” level of the statutory test.
RESOLUTION ON DISENTANGLEMENT OF PSYCHIATRIC CONDITION
111 Counsel for the defendant argued that while there may have been an initial soft muscoligamentus injury to the plaintiff’s back, there is no longer a substantial organic basis for the consequences relied upon. She further contended that the plaintiff’s level of complaints of back pain over so many years suggested a psychological overlay. In other words, only a psychological overlay can account for the level of pain she describes. What organic injury there was has been overtaken by a chronic pain syndrome of some sort.
112 Counsel for the defendant argued that it was the combined effect of the evidence of Mr Simm (that the plaintiff suffered from a chronic pain response), the evidence of Mr Barrett (that the plaintiff did not have a serious or permanent injury), and the evidence of Dr Barton (that there were findings that did not fit with a straightforward physical problem which suggests a degree of abnormal illness behaviour) which could allow me to draw an inference that there was a psychological overlay. This was against that background that there was no significant abnormality seen on the MRIs of the plaintiff’s spine of 15 January 2010 or the lumbar spine MRI of 11 March 2015.
113 Counsel for the plaintiff argued that there is no need to engage in a disentangling process as there is evidence of a substantial organic basis of injury. He made the following points in support of his submission:
· The Medical Panel found, in 2011 and 2015 that the plaintiff suffered from persisting low back dysfunction, without radiculopathy, as a consequence of soft tissue injury to the lumbar spine.
· The medical evidence establishes that the organic injury persists today.
· Dr Ansari‘s evidence is replete with contemporaneous and continuous complaints of back pain to an identifiable incident. There is no suggestion in Dr Ansari’s evidence of psychological overlay.
· Mr Simm’s opinion (expressed in his September 2015 report) that the plaintiff’s current clinical presentation is now dominated by the clinical features of a chronic adverse pain response was confined to the neck and shoulder injury and was not directed to the back injury.
· Mr Miller said the plaintiff was suffering from an aggravation of degenerative changes in the lower spine.
· Dr McInnes said the plaintiff said suffered from spondylosis of the lumbosacral spine.
· Mr Paoletti found the plaintiff was suffering from a chronic unspecified adjustment disorder and did not need psychological treatment. By inference, he did not find the plaintiff was suffering from a pain syndrome.
114 It is convenient to partly reproduce some passages from the report of Mr Simm of September 2015:
1. Which of the injuries were caused or aggravated by the subject accident?
i. Persistent symptoms from chronic non-specific, mechanical low back pain which was initiated in the workplace on 11 December 2009 ... and a more specific pathological diagnosis was not established.
ii. Persistent neck and bilateral shoulder pain, for which I am unable to establish a specific diagnosis. Symptoms were initiated in the neck and the right shoulder …………use of the upper limbs
Her current clinical presentation is now dominated by the clinical features of a chronic adverse pain response.
2. Whether the injury stabilized or substantially stabilized
The back injury stabilized. On the basis of her reported symptoms and on the physical signs presented by your client today there has been a marked deterioration in the condition of both shoulders since my last examination. I am not able to explain this on the basis of an organic diagnosis of a specific condition of either shoulder.
115 I accept the argument advanced by the plaintiff’s counsel and interpret Mr Simm’s comments with respect to a pain response as relating to the plaintiff’s shoulders and neck as distinct from her back:
· Mr Simm’s opinion expressed in his September 2015 report, that the plaintiff’s current clinical presentation is now dominated by the clinical features of a chronic adverse pain response, must be read in conjunction with the opinions expressed by Mr Simm across all three reports.
· These opinions are consistently and unequivocally to the effect that the plaintiff was suffering from a chronic non-specific mechanical or organic back injury.
· Even in his September 2015 report Mr Simm makes reference to there being non-specific mechanical low back pain and to the back injury being stabilized.
· By contrast Mr Simm has consistently maintained, in unmistakably clear terms and across all three reports (December 2014, September 2015 and March 2017), that the pain associated with the neck and shoulder is non-organic. I also note that in his most recent report, Mr Simm referred specifically to the plaintiff’s shoulders when discussing a chronic pain response.
· Mr Simm is not saying that the back injury is non-organic or that the symptoms are clouded by psychological overlay;
· It is also noted in the September report that the plaintiff’s conditions fall to some extent outside the field of orthopedics and is now more in the field of chronic pain and psychiatry. It follows that Mr Simm is saying her conditions are partly mechanical and partly psychological which I read as being referable to her back, and to her neck and shoulder, respectively.
· In all the circumstances, I have concluded that Mr Simm’s reference to the plaintiff’s current clinical presentation now being dominated by the clinical features of a chronic adverse pain response is directed towards the neck and shoulder injury.
116 Notwithstanding that there is no clear radiological explanation for the plaintiff’s current symptoms, I am satisfied that she suffered a physical injury at the time of the incident, and I am satisfied that this persists to this day. Indeed it is not in dispute that she suffered some organic injury and that it has persisted. It is not suggested that this has resolved – at most it has stabilized. The plaintiff sought medical attention promptly after the incident and required medication including to the present time. She made adjustments to the manner she carries out her work and obtained physiotherapy treatment for a period.
117 Dr Barton’s approach seems to be more generalised than the other medical evidence. Dr Barton appears highly cynical of there being any organic injury to the plaintiff’s back. This seems to cut across all the evidence in the case (tendered on behalf of both parties) and the defendant’s concession that there is an organic injury.
118 I prefer the evidence of Dr Ansari over Dr Barton. Dr Ansari has had the benefit of a more fulsome clinical picture than Dr Barton and there is no suggestion in Dr Ansari’s evidence of psychological overlay.
119 I also prefer the evidence of Mr Simm who, over his three reports, clearly identifies an organic or mechanical injury. He has also sought to discriminate between those injuries which are attributable to a non-organic or chronic adverse pain response and those which are attributable to an organic response. Dr Barton does not do this.
120 As to Mr Barrett, I have already noted earlier in my reasons that his general opinion that the plaintiff did not have a serious or permanent injury needs to be assessed against the body of more specific evidence which supports the finding that the back injury is a substantial organic injury, and that it persists today.
121 Further, the fact that the plaintiff did return to work and ultimately to full time work after her back injury (and before her neck and shoulder injury) suggests to me that the symptoms in relation to her back have never been overlayed with a psychological response. It has only been since her neck and shoulder injury that she has been unable to resume full time work. If there is a psychological explanation for her current pain, I infer that this is attributable to her neck and shoulder issue.
122 Taking into account the findings of Dr McInnes, Mr Miller, Mr Simm and Dr Ansari I am satisfied that the plaintiff suffers from a substantial organic injury and that it meets the statutory test for serious injury. It is therefore not necessary to engage in a process of disentangling of psychological consequences.
CONCLUSION
123 I am satisfied on the balance of probabilities, that “the injury” is a serious injury within the meaning of the definition of “serious injury” contained in the Act and that the plaintiff is entitled to the leave which she seeks in this proceeding.
124 I shall make the appropriate orders.
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