Leonidou v Victorian WorkCover Authority
[2013] VCC 1834
•29 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00078
| LEMONA LEONIDOU | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January, 1 and 4 February 2013 | |
DATE OF JUDGMENT: | 29 November 2013 | |
CASE MAY BE CITED AS: | Leonidou v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1834 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – identity of injury – credit – Medical Panel estoppel
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dordev v Cowan [2006] VSCA 254; Altona Bus Lines v Lococo [2002] VSCA 159; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Whisprun Pty Ltd v Dixon [2003] HCA 48; Kocak v Wingfoot Australia Partners Pty Ltd & Goodyear Tyres Pty Ltd (2012) 35 VR 324; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43
Judgment: Application to proceed at common law for pain and suffering is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M A Hartley SC with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Ms A M Sheehan | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on or about 29 June 2002 (“the first injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. She brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.
3 The body function relied upon in this application is the lumbar spine.
4 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. She relied on an affidavit sworn by Gracijana Marinov on 14 December 2012. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant or marked and as being at least very considerable”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.[1]
[1]Section 134AB(38)(b) of the Act
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2](2005) 14 VR 622
10 The defendant concedes that it accepted liability for an organic injury suffered by the plaintiff in the course of employment on 29 June 2002 but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
11 The four significant areas of dispute between the parties are:
(a) whether the plaintiff’s credit is so impugned, such that histories supplied to supporting doctors are either false or unreliable;[3] and/or
[3]See Dordev v Cowan [2006] VSCA 254 at paragraph [14]
(b) whether or not the plaintiff has sufficiently identified the physical injury which is said to cause consequences which are “serious” in terms of the legislation; and/or
(c) whether the consequences to the plaintiff of the impairment can be described as “serious” when judged by comparison with other cases in the range of possible impairments or losses of a body function; and/or
(d) the extent to which this Court is bound by the Medical Panel opinion dated 5 May 2008 which found that there was zero permanent impairment pursuant to s98 of the Act with respect to the first injury.
12 In this case, there was a subsequent back injury suffered by the plaintiff in alternative employment in or about June of 2005. It would appear common ground that that injury aggravated, at least, the underlying state of the back as it then existed (“the second injury”). The second injury, itself, was not litigated in this proceeding. This factual situation is similar to that pertaining in Altona Bus Lines v Lococo.[4] In that case, Buchanan JA, with whom Chernov and Eames JJA agreed, considered that a trial judge should evaluate the significance of the contribution to the ultimate impairment suffered by a plaintiff by separately assessing the impairment that results from each incident.[5]
[4][2002] VSCA 159
[5]at paragraph [9]
13 Accordingly, it would appear to me that the appropriate analysis is that laid down by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz,[6] in conjunction with Altona Bus Lines, as follows:
[6][2012] VSCA 60
(a)The trial judge should identify each injury.
(b)The trial judge should delineate the impairment consequences of each injury.
(c)Thirdly, as the two injuries arose from separate incidents, their consequences could not be accumulated. The first injury had to satisfy the requirements of a “serious injury” in its own right rather than in combination with the second injury.
(d)Insofar as the plaintiff seeks to rely on pain and suffering consequences that existed after the second injury, and as at the date of hearing, being a consequence of the first injury, it would need to be proved that the plaintiff had been rendered vulnerable by the first injury to all of the consequences that became apparent after the second injury and that those consequences had been materially contributed to by the first injury, and possibly also the second injury.
(e)Alternatively to (d), did the additional effects which became manifest after the second injury, when taken into account in isolation from the second injury, produce a serious impairment to the lumbar spine as a consequence of the first injury.[7]
[7]Altona Bus Lines & Anor v Lococo (supra) at [11] and [12]
14 The defendant’s counsel submits that, even if at the time of the first injury the plaintiff was suffering from degenerative change of the spine at the level of L5‑S1 and it was subsequently aggravated by the first injury, the following consequences pertain. Insofar as this condition had been rendered symptomatic by the first injury, there had been full recovery therefrom, as evidenced by the return to work certificate issued by the plaintiff’s treating general practitioner, Dr Abrams, on 14 October 2002.[8] This being the case, there is no need to consider whether there was material contribution to the consequences pertaining after the second injury. In particular, defendant’s counsel puts in issue the plaintiff’s credit, particularly with respect to the following evidence:
[8]Exhibit D, Plaintiff’s Court Book (“PCB”) 33
(a)The plaintiff had returned to work at her husband’s hairdressing salon, advising and engaging in body piercing, while still in receipt of weekly compensation with respect to the first injury.
(b)The plaintiff had signed medical certificates dishonestly while receiving weekly payments, to the effect that she had not returned to work in any manner.
(c)Surveillance film taken on 12 August 2002 at about 11.49am showed the plaintiff walking along the street with the use of a walking stick and apparently significantly disabled, which was to be contrasted with film taken within her husband’s salon on the same date at approximately 1352 to 1400, which showed her to be animated, friendly, apparently pain-free and capable of a range of lumbar movement and also to be contrasted with film taken at 1430 on the same day showing her bending at 90 degrees into her car bonnet and into the car proper, and holding the posture for some period of time, such discrepancies being inconsistent with an honest presentation. It should be noted that at 15.12 on the same day, she is seen shown shopping without a walking stick but with an apparent limp.
Thereafter, the defendant relies on surveillance film taken on 5 September 2002 which depicts the plaintiff engaging in body piercing (apparently) a nipple of an investigator, which involved her holding her back in a flexed position for a sufficient period to be inconsistent with pain. She is also quite animated, friendly and goes about her tasks with an apparent effortless efficiency. On both occasions, her facial gestures are consistent with a pain-free state. In between the two periods, there is film taken on 15 August 2002 showing the plaintiff once again using a walking stick when in public.
(d)The plaintiff’s admitted use of narcotic medicine and her admissions that she had forged a prescription in order to obtain same.
(e)Her failure to honestly recount reasons for her dismissal from employment in or about March of 2004, which were connected with an unauthorised access to nitrous oxide at her place of employment.
15 The plaintiff’s counsel, on the other hand, contends that the plaintiff has sufficiently proved the existence of a physical injury, the consequences of which have been permanent and have materially contributed to the condition of her back as it subsisted after the occurrence of the second injury. It is contended that the plaintiff is a stoical individual whose recourse to high-end pain relief was ample evidence of the seriousness of her condition, together with the consistent opinions expressed by the medico-legal examiners on her behalf.
Credit
16 In my view, there is considerable weight to be attached to the defendant’s submission that favourable medical opinions tendered on behalf of the plaintiff were seriously compromised because an accurate picture of her history had not been forthcoming. In particular, I found the surveillance film referred to in paragraph 14(c) above difficult to reconcile in a way that was favourable to the plaintiff. In particular, the significant change in presentation on 12 August 2002 when walking along a public street, compared to behaviour within the husband’s salon less than two hours later, is difficult to reconcile. In addition, the surveillance film taken on 5 September 2002 was difficult to reconcile with the contention of a serious impairment. The submission that, in effect, the plaintiff was impermissibly exaggerating the effects of her injury in terms of pain and suffering and ability to work in August and September of 2002 has some weight.
17 Further, the plaintiff’s credibility with respect to the consequences of her injury at that time is relevant, not only to the question of whether her own evidence in that regard is to be accepted, but also relevant to the reliability of the medical evidence on which she relied to establish her case after this period.[9]
[9]See Dordev v Cowan (supra) at paragraph [14]
18 That being said, I am also mindful of the comments of Kirby J in Whisprun Pty Ltd v Dixon,[10] where his Honour stated:
“Lies and civil proceedings: Some judges in the past regarded untruthful evidence – even about peripheral or irrelevant matters - as fatal to a litigant. Most judges today understand that the evaluation of evidence involves a more complex function, requiring a more sophisticated analysis. Courts, after all, are not venues for the trial of the parties' morality or credibility, as such. As judges often explain to juries in criminal trials, people sometimes tell lies in court and elsewhere for extraneous and irrelevant reasons, having nothing to do with the legal issues in the trial. If this is true in criminal trials, it is equally true in civil trials. What is important is not the proof of untruthfulness, as such, but the significance (if any) of any demonstrated falsehoods for the issues at trial. That significance can only be judged when measured against the entirety of the relevant testimony. By its logical force, that testimony may well require that falsehoods be ignored as irrelevant or immaterial to the decision-maker's ultimate conclusion. In particular cases, it may require the decision-maker, within the pleadings, to consider and decide a case different from - or even contrary to - that advanced by the party, because such is the legal entitlement of the person concerned.
Obligations of this kind recognise the ultimate duty of the decision-maker in an Australian court to decide a case according to law and the substantial justice of the matter proved in the evidence, not as some kind of sport or contest wholly reliant on the way the case was presented by a party. Litigants are represented in our courts by advocates of differing skills. Litigants are sometimes people of limited knowledge and perception. Occasionally, they mistakenly attach excessive importance to considerations of no real importance. In consequence, they may sometimes tell lies, or withhold the entire truth, out of a feeling that they need to do so or that the matter is unimportant or of no business to the court. This is not to condone such conduct. It is simply to insist that, where it is found to have occurred, it should not deflect the decision-maker from the substance of the function assigned to a court by law.”
[10][2003] HCA 48 at [119] – [120]
19 The sum total of the credit issues in this case has led me to look more carefully at corroborating evidence in trying to assess whether the plaintiff has discharged her onus of proof with respect to the consequences flowing from the first injury.
Identifying compensable physical injury
20 It is submitted by the defendant that the plaintiff suffered a compensable physical injury on 29 June 2002, the effects of which had largely resolved by the time of her return to work on or about 14 October 2002.
21 In support of this submission, defence counsel relies on the CT scan of the lumbar spine dated 10 July 2002 and 18 May 2005.[11] The first CT scan report relates:
“No focal osseous lesion is demonstrated from T11 to S1, apart from some spondylosis at the lower thoracic spine and upper lumbar region.”[12]
[11]Exhibit J
[12]Exhibit J, PCB 127
22 The latter report is also essentially normal, except for the comment:
“… There are degenerative changes at the lumbosacral apophyseal joints.”[13]
[13]Exhibit J, PCB 129
23 These investigations are to be contrasted with the MRI scan taken after the second injury on 6 September 2005, which reports:
“… Loss of signal intensity is seen in the T11/12 and L5/S1 discs consistent with disc degeneration.”[14]
[14]Exhibit J, PCB 130
24 It is said that the disc degeneration, thus seen, is explicable in terms of the second injury but not proved with respect to the first injury.
25 In any event, there had been a complaint of lumbar pain made worse with prolonged standing on 25 September 2001 which led to a prescription for Vioxx and a certificate off work for three days.[15] Further, there had been prescriptions for pethidine, Aropax, Serepax, diazepam, tramadol and valium for various symptoms relating to either neck pain or headaches between December 2000 and April 2002.[16]
[15]Exhibit E
[16]See general practitioner’s notes – Exhibit E
26 Against this background of pre-existing recourse to pain-relieving medication, there is an entry in the treating general practitioner’s notes dated 6 August 2002 to the effect:
“Not to have any narcotics or valium.”
27 The plaintiff was being prescribed at this time Proladone suppositories for pain relief, together with valium (14 August 2002).
28 It would have to be said that the video surveillance taken on 12 August 2002 is perhaps compatible with the clinical note dated 21 August 2002 to the following effect:
“Much improved. Wants to return to work ... WorkCover certificate fit to work.”
29 Further, the surveillance film taken on 5 September 2002 is also compatible with the clinical note of 10 September 2002 to the following effect:
“… much improved … continue … .”
30 And further, on 24 September 2002, it is noted:
“Insurance company has stopped payments – waiting for conciliation. Pain more manageable. Range of motion – flexion 90 degrees, extension 5. Letter written to Dr John Honey (psychiatrist).”
31 Finally, on 14 October 2002, it is noted:
“Wants to try to return to work. WorkCover certificate fit to work.”
32 Then, on 17 October 2002, it is noted:
“Going to see psychiatrist following brother’s brain haemorrhage.”
33 There is no further entry in Dr Abrams’ notes until 9 February 2004, where it is noted:
“Very busy at work last week – Sunday a.m. at end of shift felt numbness and tingling lower back to back of legs, slight pain in buttocks. Slept till 2 p.m. When got up shooting pains down legs. Took Nurofen, rested, but couldn’t sleep this a.m. ... Assessment exacerbation of back pain. Prescription ‘wean off OxyContin’. Certificate of attendance.”
34 After 17 October 2002, the plaintiff elected to seek treatment from another general practitioner, Dr Valerie Peers, who treated the plaintiff until January 2008. Dr Peers gave viva voce evidence and was cross-examined. The evidence-in-chief was to the effect that the plaintiff was struggling at work in this period because of persisting pain in her back.[17] Further, she stated that prior to the first attendance, the plaintiff was:
“Already on the opiate medication some four months out from her injury when she first attended my clinic and because of the severe nature of the pain I continued with that program”.[18]
[17]Transcript (“T”) 116, L21 – T117, L4
[18]T118, L16-20
35 Further, throughout her period of treatment she prescribed opiate medication, Mersyndol Forte, for breakthrough pain and also Neurontin for “overactivity in the nerves that are causing the pain”.[19]
[19]T118, L23 – T119, L7
36 In cross-examination, Dr Peers recited the history she took at the first consultation to the following effect:
“She had a back problem for three years. Charge nurse in theatre. Herniated a C5-6 disc. Dorsal spine trouble at T7-8 and a lumbar spine problem at L5-S1.”[20]
[20]T119, L25-29
37 Further, Dr Peers had a recollection of how the plaintiff actually presented on the first occasion:
“She presented with a slow somewhat staggering gait, needing a walking stick. Being stressed to have to sit down, being stressed to have stand up. Having very little flexion in her lumbar spine, not being able to bend over very well … and a lot of spasm in her back muscles … .”[21]
[21]T120, L1-13
38 Dr Peers took a further history that the plaintiff was already on MS Contin (30 milligrams twice a day).
39 It was put to Dr Peers that on 14 October 2002, sixteen days before the first consultation, the plaintiff had seen Dr Abrams wishing to try and return to work. It was put that Dr Abrams, at that consultation, did not note any significant notable difficulty with her back and did not prescribe any medication and that, as such, there was a different (clinical) picture from the picture seen by her sixteen days later. She replied, “yes definitely”.[22]
[22]T121, L22
40 Dr Peers recalled there had been some fluctuation in her picture but not to the extent where she had recovered completely and then had relapsed dramatically. She had no recollection of being told that the plaintiff had been working at her husband’s hairdressing salon.
41 Dr Peers was then shown the film taken on 5 September 2002, which showed the consultation at the husband’s salon where an investigator underwent body piercing of his nipple. She was then asked:
Q:“In terms of what you observed in your examinations of her, did she move as freely as what she moved in that video?---
A:No, no. In the clinical no. That was eight weeks later I saw her though.
Q:Yes, and in terms of just mobility, walking around, did she walk as freely when you saw her in the clinic as you saw her in that video?---
A:No, no.
Q:How would you described the difference, doctor, as being minor or…?---
A:A marked difference.”[23]
[23]T124, L19-27
42 Further, the doctor took a history that the plaintiff was already receiving opiate medication at the time of the first consultation. She was then asked:
Q:“Yes, and in that period of the time since then, doctor, there has been many occasions where medication has been sought from the patient?---
A:Yes, there is definitely an issue with drug abuse.
Q:Can you just tell the court about that? What were your concerns about that particular issue?---
A:My concerns were that there seems to be an inordinate number of – like minor accidents where the report was that the pain was so much worse and the patient was unable to cope and was requesting intramuscular analgesia. A lot of the times it was a report of migraine but the patient did have a history of migraine.
Q:And also painful periods, is that correct?---
A:Yes, yes.
Q:And those complaints were separate to the complaints in relation to the pain in her back and her neck?---
A:Yes, most of the – well, not in every case.”[24]
[24]T125, L13-28
43 It should be recorded the plaintiff was referred to specialist neurologist, Dr David Freilich, who saw her on 26 July 2002 and 29 August 2002. On the first occasion, he took a relevant history of the first injury, and further stated:
“Prior to this incident she had no back pain. For a number of years she has had what she calls migraine. This has been worse in the last two years. She describes neck pain, headache associated with photophobia, nausea and vomiting. She has required intra-muscular analgesia at times. Her mother also has migraine.
…
EXAMINATION: … She was tender over the lumbar region with only mild restriction of movement. Pinprick sensation felt dull in the left upper limb but not the hands. Otherwise neurological examination was entirely normal.”[25]
[25]Exhibit K, report of 31 July 2002, Defendant’s Court Book (“DCB”) 26
44 As to investigations, Dr Freilich stated:
“A recent CT scan of cervical spine shows a left L5/6 disc prolapse. Lumbar spine CT shows no significant abnormality. She had a previous CT scan of the cervical spine in 1999. I could not see the disc prolapse there.”[26]
[26]Exhibit K, report of 18 July 2022, DCB 29
45 On this occasion, his diagnosis was one of “neck and back strain in the incident at work”.[27]
[27]Exhibit K, report of 31 July 2002, DCB 26-27
46 On the second occasion, Dr Freilich took a history that the plaintiff had improved after the first occasion, she had less pain, had more energy and was more mobile. Further, she still had neck and back pain. Three days prior to seeing him, she returned to work on a part-time basis. There was a further incident involving the resuscitation of a patient, following which:
“… she had severe lumbar back pain, pain in the thighs. She has not been at work since. On this occasion the lumbar back pain has been more troublesome than the neck pain.”[28]
[28]Exhibit K, report of 18 July 2002, DCB 29
47 On examination, the lower limbs were neurologically normal. In the upper limbs there was, as before, slight dulling of sensation in the left arm but no other signs. Dr Freilich noted that the plaintiff had been recovering well until the recent incident. His only additional comment was that the clinical state in which he saw the plaintiff in July and August 2002 could be directly attributed to the incident at work, which occurred on 29 June 2002 (the first injury).[29]
[29]Exhibit K, report of 18 July 2007, DCB 29-30
48 To complete the clinical picture in the period prior to the second injury, the plaintiff was examined by orthopaedic specialist, Mr Hugh Weaver, on behalf of the defendant on 29 August 2002. He took a relevant history of the first injury. He noted that since her appointment with Dr Freilich, she had persevered with physiotherapy treatment three times a week and weekly hydrotherapy up until the date of his examination. In addition, she had been using a combination of various appropriate analgesic and sedative preparations. He also took a history of the attempted return to work on 26 August, which only lasted three hours.
49 Her current situation was that she had improved to some extent up until the attempted return to work, and thereafter she was experiencing “some persisting pain each day, from her neck to her lower back region”. Also, she was finding it difficult “to undertake any bending activities whatsoever”.
50 On examination, Dr Weaver noted she was walking with the assistance of a stick held in her left hand. Within the thoracolumbar region itself she flexed to 60 degrees from neutral but did so mainly from her hips. (This is not inconsistent with the surveillance film shown.)
51 He noted further CT scans that had been obtained on 9 July 2002. He commented:
“… Once again, the presence of a small disc lesion was noted at the C6/7 level. The thoracic views were normal whilst the lumbar views failed to reveal evidence that any dramatic disc protrusion was present, but that she did seem to be exhibiting evidence of a diffuse disc bulge affecting the L4/5 level.”[30]
[30]Exhibit L, DCB 41
52 Mr Weaver’s opinion was that the plaintiff presented with quite reasonable evidence that she is suffering from genuine persisting intervertebral disc pathology affecting particularly the lumbar region at the present time.
53 In summary, he considered:
“[The plaintiff] … presents with reasonable clinical and radiological evidence that she is suffering from genuine mild impairments of function affecting separately the cervical and lumbar regions within the line of her axial skeleton.”[31]
[31]Exhibit L, DCB 42
54 Further, he stated:
“Although it was reasonable for an attempt to have been made to return her to employment at this stage, I suspect that Mrs Leonidou will probably require to remain off work for a further one to two months.”[32]
[32]Exhibit L, DCB 43
55 Further, he stated:
“She exhibits currently a persisting partial impairment of function affecting separately the cervical and lumbar regions. She can again argue that these problems remain at least in part work related in character.”
56 He also stated:
“… the best that can be hoped for is that her symptoms are going to continue to abate slowly over the course of the next couple of months.”
57 Finally, he recommended that a graduated return to employment should be undertaken but:
“… The best that can be hoped for is that she will, in the longer term, be left with a fairly limited persisting partial impairment of function affecting possibly both the low back region and also the cervical spine.”[33]
[33]Exhibit L, DCB 42
58 In my view, it is possible to give the plaintiff the benefit of the doubt with respect to the surveillance film referred to when one looks at the clinical notes of the general practitioner of 10 September 2002, 24 September 2002 and 14 October 2002. In other words, those attendances are compatible with physical recovery from injury and therefore potentially compatible with the surveillance as described. The recourse to strong painkilling medication prior to the first injury and the comment that recourse to such medication is to be avoided may point more to a psychological response to physical injury rather than deliberate exaggeration. Of course, it is also consistent with ongoing and/or fluctuating pain referrable to the first injury.
59 In any event, the plaintiff returned to full-time duties after October 2002 but may have been assisted by co‑workers in her duties. In a disciplinary report dated 13 February 2004, and which was a forerunner to her ultimate dismissal on 12 March 2004, it was recorded as follows:
“… Both night-duty staff were adamant they would have notified [an] after hours supervisor if concerned [about the plaintiff] – however Debbie Magnusson did suggest that … [the plaintiff] would attend to the less physically demanding tasks such as paperwork and recovery and the other staff take over manual handling.”[34]
[34]Exhibit 23, DCB 210
60 Further, it was recorded:
“Night staff indicated that … [the plaintiff] was unable to perform work duties to the full capacity as a result of a prior alleged back injury. There appears to be some reallocation of workload on the night shift to accommodate this.”[35]
[35]Exhibit 23, DCB 211
61 Further, it was recorded:
“Unclear as to what medication … [the plaintiff] is taking, and when, in relation to previous alleged back injury. Possibly taking slow release endone and then presenting for work, not clear as to the time delay and dose taken prior to work. Staff believe … [the plaintiff] does not take any endone immediately prior to work.”[36]
[36]Exhibit 23, DCB 211
62 This report was prepared with respect to allegations that on the night of 10 January 2004, the plaintiff was exhibiting abnormal behaviour signs, including slow deliberate speech with comprehension difficulty.
63 A grievance statement was filed with respect to the plaintiff and her activities on night duty on 5 March 2004 to the effect that the plaintiff had allegedly been self-administering oxygen and nitrous oxide, such that her nursing performance was severely impaired. The behaviour was reported by a Division 1 Nurse and corroborated to some extent by a treating surgeon.[37]
[37]Exhibit 27, DCB 212-215
64 Following a serious misconduct meeting held on Friday, 12 March 2004, the plaintiff was summarily dismissed thereafter for serious and wilful misconduct in a letter dated 12 March 2004.[38] The plaintiff accepted the dismissal without appeal, apparently on advice from her union.
[38]Exhibit 25, DCB 217
Consequences as at 12 March 2004
65 There is independent evidence to the effect that the plaintiff was still suffering ongoing consequences from the compensable back injury as at the above date. That evidence includes the comments by co‑workers to the effect that she needed assistance with her duties on account of a “prior back injury” which was probably the subject injury. Further, the plaintiff was receiving ongoing medication from Dr Peers with respect to her back injury but also for neck pain and headaches. It is also possible that such injury consisted of “genuine persisting intervertebral disc pathology affecting the lumbar region” as opined by Mr Weaver.
66 In my view, the credit issues referred to do militate against the plaintiff’s case; however, the corroborative evidence, particularly that of her workmates, leads me to the conclusion, on balance, that she was still suffering some effects of the physical injury as at March 2004.
67 However, the extensive use of medication prior to the first injury, together with the prevalence of headaches and neck pain at that time, together with the recourse to a psychiatrist at or about the time of the first injury, makes it difficult to separate the physical consequences of the first injury from:
(a) any psychological consequences of the first injury;
(b) pre-existing consequences for other conditions such as neck injury and/or migraine;
(c) the possibility of psychiatric aggravation of any, or all, of these conditions; and
(d) the tendency to either over-medicate or self-medicate, such as led to her dismissal.
Finding as at 12 March 2004
68 I do accept that the plaintiff, as at this date, was suffering some physical effects from the first injury, the exact nature of which is difficult to assess. However, in this period she was able to remain at work, albeit with some apparent assistance from co‑workers. Because of this demonstrated capacity for work, and because of the doubts as to her reliability as a witness as expressed above, I find that the consequences may indeed amount to consequences that are “more than significant or marked”, but I am unable to find that they amount to consequences which are “very considerable”.
The second injury
69 Within six weeks of termination of her employment with the defendant, the plaintiff commenced employment for a Dr Rajendra at the Ivanhoe Endoscopy Clinic for two days per week. She assisted in the preparation of the operating theatre, as well as helping the recovery room for patients undergoing day procedures. On 10 June 2005, she was assisting an overweight patient, who had just completed a procedure, to sit up and mobilise. The patient was still very groggy from being under sedation. The plaintiff estimated the patient’s weight at between 80 and 90 kilograms. Somehow the patient managed to lurch to her right and fell off the operating table. In so doing, she dragged the plaintiff with her because of their interlocking arms, such that the plaintiff fell to the ground onto her left side. She immediately suffered severe low-back pain and eventually left work. She has not returned to work since.
70 As a result of the injury suffered, the plaintiff made a WorkCover claim, which was approved, and she was in receipt of weekly payments of compensation for about two years.
71 The plaintiff swore that her ensuing low-back pain, together with leg pain, was too much for her to go back to nursing.
72 Shortly thereafter, she presented to Dr Peers. Dr Peers reported that:
“She hurt her back quite badly in a fall in the endoscopy theatre at work on 10/06/05. Her back was very stiff and painful after this incident. Clinically she presented with marked left sided lumbar spasm and required rest, analgesia and physiotherapy to improve. She has not returned to work since this incident. … .”[39]
[39]Exhibit G, medical report dated 25 April 2006, PCB 75
73 Thereafter, the plaintiff was referred to pain physician, Dr S A Schweitzer, who saw her for the first time on 4 April 2006. He took a history of the two incidents referred to. On examination, he found:
“… marked tenderness of the spinal facet joints in the cervical, thoracic and lumbosacral regions with associated muscle spasm.”[40]
[40]Exhibit P, PCB 112
74 The medical evidence, thereafter, is to the effect that the plaintiff was now suffering disc degeneration as shown on MRI scan taken 6 September 2005.[41] This reported:
[41]Exhibit J, PCB 130
“… Loss of signal intensity … in the … L5/S1 discs, consistent with disc degeneration …”[42]
although no focal disc protrusion was seen.
[42]Exhibit J, PCB 130
75 The plaintiff attended a third general practitioner, Dr Andrew Miller, on 1 December 2008 and gave a history of the two injuries. He noted her treatment at that stage had been physiotherapy and analgesic medication, and she had also attended a pain management clinic at the Epworth Hospital. She also had been attending a psychologist on a regular basis.[43] He considered at that stage that she had suffered a soft-tissue injury to her back and was not able to return to her pre-injury duties. He considered she would be able to work in lighter employment for no more than four hours a day, five days a week.
[43]Exhibit F, report dated 21 September 2010, PCB 60
76 In a further report dated 23 October 2011, Dr Miller considered that the diagnosis was “aggravation of degenerative changes in the axial spine and an anxiety/depressive condition.”[44] He considered that the first injury on 29 June 2002 appeared to have caused the initial injury but that both incidents had been considerable in their contribution to the claimed injuries. He thought that the initial injury was of greater magnitude than the second injury, as she had apparently never fully recovered from this particular injury.[45]
[44]Exhibit F, PCB 64
[45]Exhibit F, PCB 65
77 In a follow-up report dated 22 August 2012, Dr Miller noted that the plaintiff experienced persisting symptoms in relation to her neck and back in the form of discomfort and limitation of movements. At that stage, she had been pursuing a self-managed exercise program at home, a gymnasium and pool, which had been providing partial attenuation of her symptoms. She had been using analgesic medication in the form of Mersyndol Forte tablets sparingly when her symptoms are intolerable. He considered that her pre-injury employment would now be beyond her physical capacity, such as assisting with the transfer of patients. He again confirmed that she would only be capable of working 20 hours a week in a light duties capacity.[46]
[46]Exhibit F, PCB 69
78 The plaintiff was examined for medico-legal purposes by surgeon, Ms J McKenzie, on 31 August 2005 and 7 September 2005.[47] Her opinions could be regarded as aligned with those of Dr Schweitzer referred to above.
[47]Exhibit M
79 The plaintiff has been examined for medico-legal purposes by orthopaedic surgeon, Mr S F Schofield, who has provided reports dated 7 March 2011, 25 May 2011, 12 October 2012 and 5 January 2013.[48] At the consultation on 1 March 2011, he took a history of the two injuries, and also noted:
“She also developed non-orthopaedic conditions following that (ie the first) injury.”[49]
[48]Exhibit H
[49]Exhibit H, PCB 88
80 Further, he noted:
“… Additional non-orthopaedic complaints also followed that second incident. In addition, she also suffered psychological symptoms.”[50]
[50]Exhibit H, PCB 88
81 He further noted that employment with the defendant –
“... was terminated in March 2003 mainly due to your client’s difficulty coping with her normal duties.”[51]
[51]Exhibit H, PCB 89
82 Further, he took a history that after the second injury –
“Her condition gradually improved over the next few months and she started to work in her husband’s body piercing clinic. At that time, however, she went through a separation and thus ceased working for him and has not worked since.”[52]
[52]Exhibit H, PCB 89
83 It is not clear whether this history really relates to the period after the first injury rather than the second injury, or perhaps both. In any event, she was still suffering from the effects of neck pain and lumbar pain relevant to the respective pathologies. On examination, he noted that reflexes were present but she had a definite reduction in her left knee jerk. An MRI scan of lumbar spine in April 2008 had reported a desiccated lumbosacral disc with a broad-based disc bulge and a small left-sided annular fissure causing mild narrowing of the left neural exit foramina.[53] He also noted the specific pathology in the cervical spine which included a small central disc protrusion at C6-7.[54]
[53]Exhibit H, PCB 90
[54]Exhibit H, PCB 91
84 Mr Schofield’s opinion at that stage was that as a result of two work-related accidents, the plaintiff was left with chronic cervical and lumbar pain and chronic disability as a result of those injuries. He noted:
“…. Her clinical signs have revealed moderate cervical stiffness with normal neurology in the upper limbs, she also has evidence of lumbar spine disorder with moderate lumbar stiffness, restricted straight leg raising, mainly causing left leg pain, reduced sensation of the left calf and a reduced left knee jerk. These are positive organic signs related to her disability – the cause of which I believe has been through the work related accidents.”[55]
[55]Exhibit H, PCB 92
85 Mr Schofield considered the CT scan taken in 2002 was:
“… an inadequate soft tissue investigation to diagnose the condition, but on clinical grounds, it is likely that she did suffer a prolapse at the lumbosacral level and aggravation of the cervical degenerative changes at C5/6 (due to the first injury).”[56]
[56]Exhibit H, PCB 92
86 Mr Schofield further considered that the second injury caused aggravation of a pre-existing degenerative change in the lumbar spine and the cervical spine, with referred pain in the upper thoracic region. The injury to the lumbar spine was far greater than that which occurred in the cervical spine.[57]
[57]Exhibit H, PCB 93
87 Mr Schofield re-examined the plaintiff on 2 October 2012. He repeated the history that the plaintiff had resumed nursing after the first injury, but then:
“… due to difficulty in coping with her normal duties, she was dismissed in March 2003. She then obtained part-time work in an endoscopy clinic.”[58]
[58]Exhibit H, PCB 103
88 Again, he took a history of the plaintiff assisting her husband in his body piercing clinic doing part-time light duties after the second injury.[59] On examination, he noted, inter alia:
“… Straight leg raising on the left was to 50o reproducing left leg pain, 80o on the right, examination of the left leg revealed weakness of dorsiflexion, eversion and inversion with 4cm wasting of the left thigh but no wasting of the calf. There was reduced sensation over the lateral three toes and I noted a reduced left ankle jerk.”[60]
[59]Exhibit H, PCB 103
[60]Exhibit H, PCB 104
89 His opinion on this occasion was to the effect that the cause of her current condition was as previously stated in his first report as being due to two work-related accidents.[61] He then stated that it was his view that:
“… her condition was due to aggravation of degenerative change affecting the discs in both the cervical and lumbar spine causing her to cease work in 2005 after the second accident.”[62]
[61]Exhibit H, PCB 106
[62]Exhibit H, PCB 107
90 He now considers her major disabling pain arises from aggravation of degenerative change affecting the lumbar spine, and on the second occasion–
“… her clinical signs are worse with wasting of the left leg amounting to 4cm in the thigh, numbness in the calf and toes and some weakness of dorsiflexion and eversion of the left foot. She also has a reduced ankle jerk.”[63]
[63]Exhibit H, PCB 107
91 He now found that, on this occasion, she had evidence of radiculopathy.
92 As to the causes of her condition, he stated:
“… The aggravations caused by the two incidents are shared with the more severe changes having occurred after the second accident, aggravating the symptoms from the previous accident which had not allowed her to return to her pre-injury duties.”[64]
[64]Exhibit H, PCB 107
93 He considered that the total of the two injuries caused the plaintiff to be incapacitated for her pre-injury employment.[65]
[65]Exhibit H, PCB 108
94 Finally, he stated:
“… The radiculopathy in her left leg is increasing and may be due to a combined L5 and S1 radiculopathy. The possibility is that she may require surgery to involve both lumbar disc levels which in my view would be a spinal fusion. … .”[66]
[66]Exhibit H, PCB 110
95 Finally, in a report dated 5 January 2013, Mr Schofield was asked to review his opinion, apparently without a further consultation with the plaintiff. He noted the relevant history as being that the plaintiff continued working after the first injury, but symptoms in the left leg increased. He noted that following some rest and conservative treatment, her symptoms improved, allowing her to return to her nursing duties in October 2002, but with persistent back and leg pains. Once again, he recorded the history that the termination was related to her injury, as she was unable to cope with normal duties. Following the second injury, he noted that immediate symptoms were pain in the neck and left shoulder and arm, followed by more severe pain in the back and left leg. She then developed less severe pain in the right leg, and numbness. Thereafter, there was gradual improvement over the next few months and she obtained some work in her husband’s body piercing business. This job eventually ceased due to a separation of husband and wife.[67]
[67]Exhibit H, PCB 110A
96 Again, after reviewing the investigations including an MRI scan taken in December 2012, Mr Schofield considered that –
“The clinical assessment is therefore one of a disc protrusion causing radiculopathy affecting the left leg due to compression of both L5 and S1 nerve roots.”[68]
[68]Exhibit H, PCB 110C
97 Then, in his “Opinion” section, he stated:
“It is quite clear from the history of your client’s first injury that she sustained a significant injury to her back and neck.
The CT scan however, failed to demonstrate any significant pathology but it is likely that your client did suffer soft tissue injuries to the lumbar spine and the neck limiting her capacity to return to her previous duties. The Cedar Court report of 23 September 2002 confirmed the soft tissue injury and evidence of disc bulging at C5/6 and C6/7 and central disc bulging at L4/5 without radicular symptoms. I believe that these changes did cause restriction in your client’s ability to perform her previous duties and was an ongoing disability at the time of the second accident in 2005.
On balance therefore, it is my opinion that the first accident was the major cause of her ongoing disability with aggravation of her pre-existing condition ultimately responsible for being unable to work from 2005 onwards.
The main ongoing condition of injury applies to her lumbar spine.
The symptoms in her neck I believe are relatively minor compared with her lumbar spine disability and without the latter, I believe that your client would be able to resume her normal duties.”[69]
[69]Exhibit H, PCB 110D
Findings
98 In evaluating the plaintiff’s evidence, it would appear that there has been a worsening of the plaintiff’s condition following the second incident, particularly with the emergence of radiculopathy from the L5-S1 discal pathology.
99 Secondly, there is a prima facie case that the plaintiff is now unable to work in the same occupation she was performing between October 2002 and March 2004, and that this incapacity has been materially contributed to by the second injury.
100 Thirdly, there is also a prima facie case that the first injury has materially contributed to the resultant incapacity.
101 Fourthly, there is no persuasive evidence that the second injury would not have occurred but for the first injury.
102 Fifthly, there is no persuasive evidence that the effects of the second injury were more severe because of the first injury, such that any additional effects thereof could be said to be consequences of the first injury.[70]
[70]See Altona Bus Lines & Anor v Lococo (supra) at paragraphs [11] and [12]
103 Finally, the impairment to the lumbar spine resulting from the first injury is complicated by the additional injury to the cervical spine and the emergence at an early stage of a psychological condition, either reactive to the injury, or injuries, or to pre-existing conditions, or to the death of her brother, or other unknown factors.
104 In this context, the second treating general practitioner, Dr Valerie Peers, noted, on 13 August 2008, in a letter to Victoria Legal Aid as follows:
“From the time of initial presentation she required frequent consultations for many minor injuries at home and work. She also suffered migraine headaches and painful periods. She required opiate injections for some of these pain flare ups on about a twice monthly basis. I was concerned on several occasions that her medication was being abused. On one occasion a local pharmacist reported that she presented a forged prescription for an opiate medication. …
Over a long period she failed to cooperate in attending a regular Pain specialist at Epworth Hospital. It was also difficult to get her cooperation with the rehabilitation programme.
…
She has attended physiotherapy locally and was referred to a psychologist Marianne Love at Newport Counselling. She had issues regarding the marriage breakup. She became the sole supporting parent to her two sons born ‘82 and ‘90. She reluctantly reported a history of severe domestic violence and these domestic issues are now being addressed.”[71]
[71]Exhibit 8, report dated 13 August 2008
105 Prior to attending the third general practitioner, Dr Peers noted:
“Over the last 1-2 years, she has been able to remain on a reduced dose of Oxycontin (currently 20 mgm (sic) twice daily). She has ceased demanding breakthrough opiate injections. She attends a gym regularly and overall is improved. Her posture and gait have improved. She is not always compliant with her antidepressant medication and has had some exacerbations of depression with associated anxiety.”[72]
[72]Exhibit 8, report dated 13 August 2008
106 In conclusion, I am unable to find that the plaintiff has discharged the onus of proof that the consequences of the first injury are such that, whilst it is open to find that they are “more than significant or marked”, I am unable to find that they are “very considerable”.
107 Finally, both counsel made submissions with respect to the effect of a Medical Panel decision which found that there was zero permanent impairment with respect to the first injury pursuant to the table appended to s98 of the Act. The extent of any estoppel arising therefrom was considered by the Court of Appeal in Kocak v Wingfoot Australia Partners Pty Ltd & Goodyear Tyres Pty Ltd.[73] This decision was overturned on appeal to the High Court.[74] In any event, in my view, it has limited application in view of the analysis already conducted. A finding of zero permanent impairment of the spine with respect to the first injury does not necessarily relate to ongoing pain with respect to that injury, as distinct from a loss of a range of movement. Further, I consider it would be speculative on my part to consider whether or not the decision was inconsistent with the opinion of Mr Weaver with respect to the injury involving discal damage. Even if I am wrong in this consideration, the Medical Panel decision is consistent with my ultimate disposition of this matter.
[73](2012) 35 VR 324
[74]Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 (6 November 2013)
108 Accordingly, the application will be dismissed.
109 I will hear the parties as to consequential orders.
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