Lim, Say Chheng v Ryemetal Pty Ltd
[2009] VCC 1464
•29 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05364
| SAY CHHENG LIM | Plaintiff |
| v | |
| RYEMETAL PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K.L. BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 October 2009 |
| DATE OF JUDGMENT: | 29 October 2009 |
| CASE MAY BE CITED AS: | Lim, Say Chheng v Ryemetal Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1464 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act – injury to the lumbar spine – psychiatric impairment – pain and suffering – loss of earning capacity – causation.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with | Patrick Robinson & Co. |
| Mr R C Forsyth | ||
| For the Defendant | Mr M R Titshall QC with | Hall & Wilcox |
| Ms R J Boyce | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(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 14 July 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by Section 134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning a permanent serious impairment or loss of a body function.
4 The plaintiff also brings this application pursuant to clause (c) claiming a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The body function relied upon in this case is the lumbar spine and psychiatric impairment.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity 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 “at least very considerable”, and “more than significant” or “marked”;
(v) 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, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions;
6 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. The plaintiff’s husband, Ming Fang Chen, swore an affidavit on 28 September 2009.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is presently aged fifty, having been born on 4 January 1959 in Cambodia. She went to school for only three years and stayed home helping her family.
9 As the Khmer Rouge were beginning to be active, the plaintiff and her family moved from their home to live near the Thai border. Whilst there, the plaintiff married and had her first child. In 1980, she and her family went into a refugee camp and from there came to Australia in 1981, at which time she was pregnant with her second child.
10 About a year after arriving in Australia, the plaintiff separated from her husband and later divorced. She began to look for work when her second child was about two.
11 From about 1983, the plaintiff worked as a packer/process worker at Red Tulip for about one or two years. She then worked at Dorf Taps as a process worker for a couple of years and then got a job at Farm Produce packing chips.
12 In 1988, whilst in that job, the plaintiff had a fall, suffering injury to her mid and upper back, and she received treatment from Dr Chan. The plaintiff was off work for about two years, received worker’s compensation benefits, and a lump sum settlement of about $6,000.
13 In cross examination, the plaintiff agreed that she had not mentioned this previous back injury in her first affidavit and she could not remember what she told doctors about it. She agreed she had injured her back, but it had fully recovered. She had physiotherapy and acupuncture. She did not know whether she suffered depression following this injury.
14 When it was put to her that common law proceedings relating to the 1988 injury had included a claim for her lumbar spine, she confirmed it was her mid or her upper back not her lower back that she injured in that incident.
15 Save for the injury at Farm Produce, the plaintiff has had no other injuries to her back or any other part of her body. She did not have any treatment for her back during the 1990s or in the 2000s before the said date.
16 Some time after 1988, the plaintiff got a job at the Oakleigh fruit market, first as a packer part time, then as a cashier full time. The packing work was heavy and involved lifting heavy weights. The plaintiff worked at the market for six years until commencing work with the defendant in February 2003 when the market business was sold.
17 The defendant company makes parts for water taps. It was the plaintiff’s job to put metal pieces into a machine and then remove them after the machine had drilled them out. She would take the metal pieces from a box that sat on a trolley next to her.
18 When she finished one box, the plaintiff needed to turn the trolley around so the second box was closer. It was difficult to turn the trolley because it was heavy.
19 On the said date, the plaintiff was attempting to do this task when the trolley overbalanced and fell on her. As the trolley fell, the plaintiff instinctively grabbed it to try to hold it but it was too heavy so she let it go and it struck her across her legs (“the incident”).
20 In re examination, the plaintiff explained the mechanism of the incident, describing how she was facing the trolley, holding it with both hands when it fell.
21 The incident was witnessed by the plaintiff’s supervisor, Edmund, who came to her assistance. The plaintiff, who was the First Aid Officer, then went to the First Aid room and cleaned her cut and bleeding knees. She also had back pain at that time from attempting to stop the trolley from toppling, but she was more concerned with her knees which were so painful she nearly could not walk.
22 The plaintiff was shown a copy of an injury report dated 14 July 2004. She did not recognise her signature but agreed that Edmund assisted her in filling out the form. She did not know whether he filled it out by asking her questions and writing the answers down. The plaintiff agreed she only mentioned her knee injury to him, but then she said she could not really remember what she had told him.
23 On the following day the plaintiff saw Dr Teasdale. He gave her some medication and advised her to rest. At that time there was bruising on her knees and the plaintiff was having difficulty walking.
24 In cross examination, the plaintiff could not remember what she told Dr Teasdale on various occasions about whether she had hurt her back in the incident and she did not know what condition he included on the medical certificates.
25 As the plaintiff’s pain did not settle over the following days, Dr Teasdale arranged an x-ray of her knees. Further, as her back pain was also not settling he thought that it should be investigated and he referred the plaintiff for physiotherapy.
26 After some weeks, the plaintiff returned to normal duties on a part time basis. She was referred by Dr Teasdale to Dr Gu, an acupuncturist, and to a specialist. The plaintiff saw Dr Gu, acupuncturist, many times but she cannot remember when she last saw him.
27 About a month after the incident, Dr Teasdale suggested the plaintiff return to work and she began work for four hours a day on her old duties, but the sitting made her pain worse.
28 The plaintiff’s hours were then reduced to three hours, three days a week which she managed with treatment but she could not do all her usual duties.
29 The plaintiff managed to increase her hours to four hours, four days per week. She felt very pressured by the defendant and battled on with her job, trying to get her back to her old duties.
30 Dr Teasdale referred the plaintiff to an orthopaedic surgeon whom the plaintiff told of her back pain and x-rays were organised. She thought she had seen Mr Grossbard only later but could not say how many times and for what problem.
31 In cross examination, the plaintiff agreed Dr Teasdale only treated her for her knees but she told him about her back.
32 The plaintiff starting seeing Dr Shortall whilst she was still seeing Dr Teasdale. She also had seen another doctor at Dr Shortall’s practice but could not remember it being Dr Weissman. She stopped seeing Dr Shortall because he left the practice. The plaintiff denied she stopped seeing him because he suggested she return to work.
33 The plaintiff could not remember if Dr Shortall had only treated her for her knee condition. She could recall Dr Shortall gave her certificates but she did not know what condition they related to.
34 The plaintiff first saw Dr Hoi, rheumatologist, on 4 November 2004 and then saw her a few times until April 2005. Dr Hoi arranged an MRI scan of the plaintiff’s lower back and prescribed pain relief medication and encouraged her to continue physiotherapy. Eventually, she referred the plaintiff to Dr Thomas for pain management.
35 In cross examination, the plaintiff said she told Dr Hoi about her pain and wherever she had pain, Dr Hoi treated her.
36 The plaintiff began seeing Dr Thomas in May 2005, at which time she had lower back pain and pain in both thighs, the right being worse.
37 Dr Thomas recommended a rehabilitation program which the plaintiff commenced but did not finish as she found it difficult to work on reduced hours and undertake the program.
38 In cross examination, the plaintiff said could not remember how often she had seen Dr Thomas but she agreed that she had not finished the course but said this was because Dr Shortall had stopped her going because she went to work. She disagreed she stopped seeing Dr Thomas because he suggested she return to work.
39 The plaintiff commenced seeing Dr Pereira in November 2005 because she had heard about him through her friends and there were interpreters at his clinic. He is the only doctor she has seen at that clinic.
40 Despite her problems, the plaintiff continued to work on light duties until November 2005. She was then struggling too much and Dr Pereira gave her a certificate to be off work for a few weeks whilst she was reviewed by Mr Grossbard.
41 Dr Pereira certified the plaintiff fit to resume work two hours per day twice a week in accordance with a return to work plan, but then WorkCover terminated the plaintiff’s payments because she did not comply with the plan of 4 November 2005. By mid 2006, Dr Pereira prescribed the plaintiff Avanza for depression.
42 The plaintiff first saw orthopaedic surgeon, Mr Barrett, on referral from Dr Pereira in September 2007. Mr Barrett ordered an MRI scan on 2 October 2007. At the time of that examination, the plaintiff was finding any activity involving bending, twisting or lifting made her pain worse.
43 When the plaintiff saw Mr Barrett he suggested she see Dr Brighton Knight to discuss surgery. Dr Brighton Knight suggested the plaintiff try some further pain management first before doing so. The plaintiff was happy with this advice and she was then referred by Dr Brighton Knight to Dr Lim.
44 The plaintiff was seen by Dr Lim on a number of occasions. He advised her to buy a walking stick but she felt embarrassed using it.
45 The plaintiff was also prescribed medication by Dr Lim which did not help her condition. She did not know for what part of her body he prescribed medication but he “just gave it to her to help stop her pain.” She had complained to him of pain in her feet and back. The plaintiff could not remember when she had last seen Dr Lim.
46 Before the incident, the plaintiff worked hard and enjoyed her independence. She now feels embarrassed and frustrated about her inability to do things as she had expected things would settle down so she could go back to work.
47 The plaintiff remarried some years ago and now relies on her husband for much of the heavier work around the house. He now mows the lawn. She does some sweeping and wiping but he does the heavier housework.
48 The plaintiff does lighter cooking at home using a rice cooker and she washes the dishes. They do the shopping together and generally her husband carries things. The plaintiff can still drive but generally only needs to drive close to home to go to the doctor, shopping and visiting people. She did not know whether she had driven out of the Melbourne Metropolitan area. The plaintiff has flown twice to South Australia to visit family.
49 Realistically, the plaintiff does not believe that she has a capacity for work. She had tried to do her best and did whatever possible so that she could to go back to work.
50 The plaintiff and her husband rely on Centrelink benefits which she has received since her weekly payments were terminated. They live in a house she purchased before remarrying. There is no mortgage. The plaintiff has two children, aged thirty and twenty seven. They live in Melbourne but she did not know where they lived.
51 The plaintiff has been overseas twice since the incident. The first trip was to Taiwan for two or three months, and a week in Japan in 2006. In 2007, she went to Taiwan for a month and Cambodia and Vietnam for a week.
52 The plaintiff continues to see Dr Pereira once or twice a month. She takes Mobic for pain, Pariet for her stomach, Avanza for depression and Temaz for sleeplessness.
53 Dr Pereira is the plaintiff’s only treating doctor. In addition to medication, he provides certificates and encourages her to do exercises at home and to attend hydrotherapy weekly. The plaintiff did not know what complaints she had mentioned to Dr Pereira. When she was cross examined about the contents of his most recent report, she agreed that she complained to him of lower back pain, bilateral knee pain, neck, mid back pain, depression and stomach pain.
54 The plaintiff’s husband applies Chinese oil to her back and legs. The plaintiff has been having physiotherapy since the incident. She has had acupuncture treatment to her legs and back.
55 The plaintiff continues to have constant lower back pain which radiates into her buttocks and down both legs to the feet, the right being worse than the left. She has pain in both knees with a tingling, numbness sensation on the inside of her right knee. At times she also has pain in the mid and upper back; however her lower back is her worst and main problem.
56 Activities like bending or lifting worsen her back pain and she cannot sit or stand for long. Walking also causes her difficulty. Too much standing or walking also affects her knees.
57 Despite taking medication, her sleep is poor.
58 In cross examination, the plaintiff agreed that she has pain in her whole body. Sometimes she has a headache and sometimes neck ache. Sometimes she could have pain in her shoulders and in her right arm. She has pain in her middle to upper back, pain in her stomach, pain in her left leg from her knee to her calf and sometimes her foot. She also has pain in the whole of her right leg, including the foot. The plaintiff thought that these problems had all occurred because of the incident.
59 The plaintiff’s knee pain started at the time of the incident and the other pain started slowly, except for the lower back pain which started on the said date. The stomach pain came on later when the plaintiff had to take a lot of painkillers.
60 As a result of her injuries, the plaintiff has become anxious and depressed, gets upset easily and has problems with her memory and mourns the loss of her previous active life. She has lost confidence and suffers low esteem and avoids mixing with people.
Lay Evidence
61 The plaintiff’s husband, Ming Fang Chen, swore an affidavit on 28 September 2009 where he confirmed the contents of the plaintiff’s affidavits.
62 He noted that they were married on 21 October 2006, having known each other for eight months, having met through his brother in law.
63 Mr Chen deposed that the plaintiff depends a great deal upon him. He does most of the heavy jobs around the house, including vacuuming, gardening, laundry and heavy shopping. The plaintiff is limited to light dusting, washing a few dishes, light meal preparation and the like.
64 Often the plaintiff complains about having pain as a result of her injuries, particularly in her lower back, and she has trouble sleeping. She can be very irritable and he has to be careful what he says to avoid arguments. Overall, he believes she has been badly affected by the consequences of the incident.
The Plaintiff’s Medical Evidence
65 The plaintiff attended general practitioner, Dr Teasdale, the day after the incident. She told him that since the incident she had been troubled by pain and obvious bruising on the anterior aspects of both knees above her thighs. On examination, he noticed bruising. Dr Teasdale prescribed Vioxx and certified the plaintiff unfit for work for four days.
66 The plaintiff returned to Dr Teasdale on 16 July 2004 complaining of pain above the knees. On 19 July 2004, she attended complaining of pain and swelling in her thighs and an x-ray was arranged which was unremarkable.
67 The plaintiff complained of low back pain for the first time on 26 July 2004. Voltaren was prescribed and on examination on 2 August 2004, Dr Teasdale thought physiotherapy may help alleviate the plaintiff’s symptoms.
68 The plaintiff returned on 9 August 2004 complaining of pain in both legs and her lower spine and Dr Teasdale put her off work for a further week.
69 On 17 August 2004, Dr Teasdale issued a Return to Work Certificate certifying the plaintiff fit to commence light duties on reduced hours.
70 The plaintiff returned to Dr Teasdale two days later stating she had been working for four hours in a sitting position but her thigh pain had worsened and she had difficulty walking. Dr Teasdale certified the plaintiff unfit for all work until 23 August 2004 when he issued a further certificate to the effect the plaintiff should work on light duties sitting for three hours a day for three days a week.
71 The plaintiff continued those duties until 17 September 2004 when Dr Teasdale certified her fit to return to four hours’ work, four days a week.
72 On 11 October 2004, the plaintiff attended the clinic complaining her thigh pain was worse and she had only been able to work three days the previous week. Dr Teasdale referred the plaintiff to Professor Littlejohn, rheumatologist, at Monash Medical Centre, but she was seen by Dr Alberta Hoi, in his place. The plaintiff also requested a referral to Dr Gu, an acupuncturist.
73 Dr Teasdale last saw the plaintiff on 23 March 2005, when she was still worried by leg and lower back pain and she was not sleeping at night. On examination, all movements of the lumbar spine were limited at extremes due to pain and movement of both knees causing pain but there was no obvious pathology.
74 Dr Teasdale referred the plaintiff back to Dr Hoi, whom he believed investigated the plaintiff fully, and she then referred the plaintiff to Dr Thomas.
75 Dr Teasdale concluded the plaintiff had suffered quite a severe soft tissue injury with bruising which could well have occurred as a result of the incident. In his view, it appeared that the plaintiff now had a diffuse widespread pain syndrome and it was difficult to explain the underlying pathological process involved. He noted he would be guided as to the plaintiff’s ultimate prognosis by Doctors Hoi and Thomas.
76 The plaintiff, whilst seeing Dr Teasdale, also attended Dr Shortall from 6 October 2004. On that date she complained to Dr Shortall of bilateral knee and lower back pain following the incident. She advised him she wanted to change doctors as the wait to see Dr Teasdale was extreme.
77 Dr Shortall noted the plaintiff’s history and examination were consistent with a direct blow to the knees resulting in patello femoral impact and significant bruising. He referred to the MRI scan organised by Dr Hoi and the fact the plaintiff had been treated with physiotherapy, hydrotherapy and acupuncture and reported improvement with the acupuncture in particular.
78 Dr Shortall referred the plaintiff to Mr Moran, orthopaedic surgeon, for an opinion. On 28 July 2005, Mr Moran recommended an epidural corticosteroid injection to the lumbar spine.
79 Dr Shortall noted that despite numerous attempts to return to work the plaintiff remained on alternative duties complaining of extreme pain and anxiety and that she refused to continue with any of the duties organised.
80 In Dr Shortall’s view, there appeared to be some psychological component to the plaintiff’s issues with work which appeared to have been aggravated by an overly aggressive approach by her rehabilitation officer, sometimes bordering on harassment.
81 Dr Shortall thought the plaintiff had received soft tissue injuries to both legs and she also had a disc prominence demonstrated at L4-5. He concluded that some of the plaintiff’s symptoms may be psychological and that the overly aggressive approach by her rehabilitation officer had been counterproductive.
82 Mr Moran saw the plaintiff on referral from Dr Shortall in relation to her back and leg injuries on 18 July 2005. He noted that since the incident the plaintiff had complained of bilateral lower limb pain and that lower back pain had become an increasing concern.
83 On examination, there was evidence of significant paravertebral muscle spasm in the lumbar region with flattening of the normal lordotic curve. There was restriction of lumbar movement. Straight leg raising was to forty degrees bilaterally and neurological examination in the lower limbs was normal.
84 Mr Moran noted an MRI scan of the lumbar spine confirmed evidence of desiccation of the L4-5 and L5-S1 discs with a central disc bulge at L4-5.
85 Mr Moran was uncertain on clinical grounds whether the plaintiff’s lower limb pain was arising primarily from her knee or whether there was a more significant element of radicular pain from her lower back.
86 To clarify the relative contributions of pain, he suggested a therapeutic trial, specifically administration of an epidural injection of corticosteroid in the lower lumbar region. He noted he was awaiting a response from WorkCover as to the funding of this procedure.
87 Mr Elsner, orthopaedic surgeon, examined the plaintiff on behalf of Wyatt Gallagher on 8 June 2006.
88 The plaintiff told him that the pains from the incident were in her right thoracic area in the lumbar region, the whole of her right lower limb, including the right knee, left knee and numbness with the whole of her left foot. The plaintiff had told him that there had been no improvement since her injury and she continued to experience constant lower back pain.
89 On examination, there was normal posture with no muscle spasm. The plaintiff’s active range of thoraco lumbar movements was reduced to about fifty per cent of the full range with quite diffuse thoraco lumbar pains, but most of the pain appeared to be lumbosacral. There were no localising features to suggest a specific disc or facet joint injury.
90 The plaintiff’s knee and ankle reflexes were normal. Sensation was normal around both thighs but was uniformly reduced below the knees in a stocking type non organic distribution. There was collapsing weakness uniformally throughout both lower limbs with associated complaints of diffuse left and right sided lower back pain. There was no evidence of radiculopathy.
91 Mr Elsner considered the plaintiff had sustained soft tissue injuries to her lower back and legs and that the incident was a significant contributing factor. At the time of the examination, however, he noted the plaintiff had diffuse symptoms suggesting a chronic pain syndrome.
92 The plaintiff first saw Dr Pereira in Springvale on 3 November 2005. She told him after the incident she noticed pain in both knees and back pain. She told him that Dr Shortall had apparently left his practice and was not working there anymore.
93 The plaintiff claimed she was suffering from daily back pain and right and left knee pain and Dr Pereira certified her unfit for work for two weeks. He referred her to orthopaedic surgeon, Mr Grossbard.
94 Dr Pereira certified the plaintiff off work till 20 November 2005 and she was then introduced to a trial of light duties in accordance with a job offer involving two hours’ work, two days a week.
95 The plaintiff advised Dr Pereira that WorkCover had terminated her payments as of 30 November 2005. At that time she was having physiotherapy twice a week and acupuncture once a week, and she was to consult Mr Grossbard on 1 December 2005.
96 The plaintiff was certified unfit for work on 30 November 2005.
97 Dr Pereira initially thought the plaintiff was suffering from soft tissue injury to her lower back and both knees on a setting of discogenic injury to the lower back as a result of the incident.
98 Dr Pereira most recently reported on 13 July 2009, detailing examinations from July 2006 until that time. He has continued to certify the plaintiff unfit for work due to her back, right and left leg pain, epigastric pain and depression. He noted the plaintiff had been continued on analgesic medication, anti- inflammatory, Mobic, Pariet for epigastric pain, as well as Avanza for depression and Stilnox for insomnia. He initially prescribed Avanza on 17 August 2006.
99 On examination on 8 July 2009, Dr Pereira noted that the plaintiff’s condition was unchanged. She was still experiencing daily lower back pain and bilateral knee pain. She was also experiencing pain in the thoracic and cervical spine and also suffering from depression. Further, she was experiencing daily epigastric pain. She was being prescribed Avanza, Mobic, Pariet and Temazepam tablets.
100 Dr Pereira noted that the plaintiff made an attempt to go back to work in November 2005 but was not able to continue due to the increased level of pain when she went back. Her employment was terminated in February 2009.
101 Given the length of time since her injury and the fact that her signs and symptoms still existed, Dr Pereira thought the plaintiff’s prognosis was not good and that she would most definitely be left with a chronic permanent disability of the lower back and both knees as a result of the incident. He considered she would also be left with a depressive illness as a result of her chronic injuries. In Dr Pereira’s view, the plaintiff was not fit for any duties and had been certified as such.
102 The plaintiff saw Mr Barrett on 18 September 2007 on referral from Dr Pereira. At that time she complained of low back pain radiating to both buttocks and pain radiating into the left leg from the knee as far as her left foot and toes. She also complained of right buttock pain into the right posterior thigh, calf, foot and toes associated with some pins and needles in both feet, the right lower limb being more troublesome than the left.
103 The plaintiff told him that she had not sustained any spinal injuries prior to the incident and her health had otherwise been good.
104 On examination, movements of the lumbar spine were very limited, producing lower back pain radiating into the buttocks. There was some moderate lower lumbar tenderness and straight leg raising was to seventy degrees bilaterally. Power in the lower limbs was normal and symmetrical and all lower limb reflexes were present and brisk. There was some mild depression of sensation in the right lower limb of a patchy and non dermatome pattern extending from the knee joint distally.
105 Mr Barrett had available to him the 2004 MRI scan which suggested there was no significant abnormality. He requested a further lumbar spinal MRI scan which was carried out on 2 October 2007. He noted the films confirmed that both the L4-5 and L5-S1 lumbar discs were disrupted and other lumbar discs appeared to be normal. The L4-5 disc had a modest posterior disc bulge present touching the lumbar theca but clear of the nearby nerve roots. He noted there was a posterior split seen in the annulus of this disc. The L5-S1 disc was disrupted without disc bulge seen, but again the split in the posterior annulus was clearly present.
106 In Mr Barrett’s opinion, the plaintiff sustained ruptures involving her two lower lumbar intervertebral discs during the incident immediately causing some lower back pain. Subsequently, her pain had gradually increased and was accompanied by bilateral sciatica, particularly down the right leg.
107 Mr Barrett considered the plaintiff’s injuries were genuine and her complaints were consistent with the physical nature of these two lumbar disc injuries.
108 In Mr Barrett’s view, lumbar disc ruptures of this type have no ability to heal or repair. He noted, with possible treatment in mind, he arranged for referral to a spinal orthopaedic surgeon colleague, Dr Brighton Knight, for further opinion.
109 Mr Barrett re examined the plaintiff for medico legal purposes on
21 July 2009. At that stage she complained of lower back pain radiating to
both buttocks and pain in both lower limbs, particularly the right.
110 Movements to the lumbar spine were very limited and all produced low back pain. There was moderate lower lumbar tenderness and straight leg raising was to seventy degrees bilaterally if taken carefully. All lower limb reflexes were brisk and symmetrical. Her plantars were downgoing. Sensory testing revealed some mild depression of sensation in the right lower limb not of a dermatome pattern.
111 Mr Barrett confirmed his earlier view that the plaintiff had sustained genuine and physical ruptures of her two lower lumbar intervertebral discs. He considered the plaintiff had no capacity to return to even light and part time work now or in the foreseeable future. In his view, there was no functional overlay, behavioural disorder or psychological condition.
112 Dr Brighton Knight saw the plaintiff at the request of Mr Barrett in November 2007 for consideration of surgical intervention for her L4-5 and L5- S1 lumbar disc disruptions.
113 Dr Brighton Knight did not think the plaintiff warranted surgical intervention as she had not been managed in an ideal manner with respect to her mechanical pain. He thought she should be seen by a specialist in chronic pain before considering surgery.
114 Dr Brighton Knight referred the plaintiff to see Dr Lim, and noted that she may benefit from a review of her medications as well as a review of the bio psychosocial aspects of her pain.
115 Dr Brighton Knight thought the plaintiff had a poor understanding of education in relation to her pain and its aetiology. He did not believe there was any significant inflammatory component that was causing her pain.
116 He did not believe the plaintiff had had the opportunity to be managed in a pain management team and the overall result had not been a cohesive integrated pain management program.
117 He noted the plaintiff was looking for cures and complete reassurance. She had refused the epidural injection that had been offered because she wanted a guarantee of a risk free positive outcome.
118 Mr Brearley examined the plaintiff on 26 August 2009. The plaintiff told him of the incident and that thereafter she had back pain as well as severe pain in her legs.
119 The plaintiff told Mr Brearley of her graduated return to work but that after about a year after the incident she was having so much pain that she was unable to continue her part time duties, and ceased work in November 2005.
120 The plaintiff complained to him of constant discomfort or pain in the lower back and in both legs. She had pain down the right leg to the sole of the foot and second toe, and in the left leg she had pain to the ankle. She had discomfort or pain in both knees.
121 The plaintiff told Mr Brearley of the injury to her upper back whilst working for Farm Produce, and that that had resolved.
122 On examination, there was tenderness over the lumbar spine and very marked limitation of movements in all directions by pain. Straight leg raising was to forty degrees on both sides and all deep reflexes were normal and sensation appeared normal.
123 Mr Brearley had available to him 2004 and 2007 MRI scans. In his view, the plaintiff suffered mechanical lumbar pain resultant from intradiscal injury of the L4-5 and L5-S1 intervertebral discs. He noted there was no clinical or radiological evidence of radiculopathy but that the plaintiff was having some pain, presumably from some nerve root irritation. He also diagnosed a soft tissue injury of both knees.
124 Mr Brearley considered the plaintiff’s injuries were consistent with the incident. He thought conservative treatment was appropriate and there was no indication for surgery.
125 In Mr Brearley’s view, the back injury itself would continue to cause pain and suffering in the foreseeable future and would cause loss of enjoyment of life. He noted the plaintiff was unable to socialise as she could not sit or stand for long periods and that she had difficulty with her housework.
126 Mr Brearley thought the plaintiff was not able to do her pre injury type work because of the back injury and at most she could do some part time light work in carefully selected employment where she could avoid lifting beyond three kilograms and where she could sit and stand as she wished. He thought she could probably work for only three hours, three days a week and her attendance would be unsatisfactory, in that she would require time off without notice because of her ongoing back pain. He did not think her leg injuries would prevent her from working.
127 Mr Brearley was not aware of any significant functional overlay or non organic contribution to the plaintiff’s symptoms.
128 Mr Brearley was cross examined. He confirmed he did mainly medico legal work but did some minor operating. He had never practiced in orthopaedic surgery but had done some training.
129 When asked about the finding of an annular fissure in a woman of her late forties, Mr Brearley said it had to be taken in the context of history and the whole clinical presentation. If there was a subjective complaint of low back pain then in his view, that MRI finding was consistent with it, however the finding cannot tell anymore than that. In particular, it did not show whether the fissure was traumatically caused. Mr Brearley confirmed there was no neural compressing focus identified in either MRI scan to account for any complaint of sciatica.
130 Mr Brearley thought the plaintiff had a pretty severe injury to her legs and her back was relatively less important to her at the time of the incident, and that her back became progressively worse in terms of symptomology. He understood her back condition became more or less steady over the last year or two at a significant level.
131 Mr Brearley confirmed it was the plaintiff’s back only that was causing her pain when she saw him and that he was instructed by her solicitors to look at her back and knees only.
132 Whilst the plaintiff told him she experienced back pain immediately after the incident, he noted the report to Dr Teasdale of back pain three weeks thereafter but he said perhaps the plaintiff did not mention her back because her legs were more important.
133 Mr Brearley thought there was an abnormality shown on the MRI scan and the question was whether it was significant in the context of the plaintiff’s presentation. He disagreed that the finding was not different from any other forty five to fifty year old. He said you would expect to see some bulging but you would not expect to see fissures because they do not occur in the majority of people.
134 However, Mr Brearley then went on to agree with Dr Varma that fissures are quite commonly associated with degenerative disc disease and not uncommon in that age group, but then said that finding had to be taken in context.
135 Mr Brearley agreed that radiological abnormalities do not always correlate with clinical signs and that disc degenerative disease can result in non specific back pain. He noted that the changes at L4-5 and L5-S1 were mild from an injury point of view but not from a normal point of view.
136 Mr Brearley “did not know that it was right” that the plaintiff had a good prognosis because, in his view, those injuries do not heal. However, he then said it is not right to say that once symptoms are caused by disc protrusion or bulge that “they will be forever thus”.
137 Mr Brearley went on to say that with the passage of time herniated discs do usually improve somewhat with the dehydration process. He explained that this process itself was a degenerative one and that it could also be in response to injury.
138 In re examination, Mr Brearley said if the plaintiff had a history of back injury and ongoing symptoms, and the MRI scan showed a significant fissure, that finding would be important.
139 Mr Brearley assumed that the fissure was traumatic in origin if the plaintiff had a manual work history and no symptoms in the six years prior to the incident, and subsequent thereto complained of symptoms and had the findings shown on MRI scan.
140 Dr Nathar, psychiatrist, examined the plaintiff on 16 July 2009. He noted the plaintiff spoke surprisingly very good and accurate English without an interpreter. The plaintiff told him of the incident and her persisting physical problems.
141 The plaintiff told him Dr Nathar that she spent most of her time mainly at home doing exercises taught to her by her physiotherapist. She could not walk everyday because her knees and toes were too painful. She watched a bit of television and could not go out and socialise to the same extent as before.
142 On examination, the plaintiff sounded miserable and depressed and limped when she walked. She spoke with normal tone/volume appropriateness and speech.
143 The plaintiff did not have any abnormality in the form and stream of her thinking and it was noted she was very much pain pre occupied. She described her loss of confidence. She was not deluded or suicidal and she described obsessive ruminations about pain.
144 Dr Nathar found there were no perceptual disorders such as hallucinations. The plaintiff was correctly orientated but she did struggle to remember dates. Her intelligence was within normal limits. Her judgment was unimpaired and in Dr Nathar’s view, she seemed to have good insight and understanding into her problems.
145 In diagnostic terms, Dr Nathar considered the plaintiff had a major depressive illness with symptoms of anxiety that required anti depressant medication. He thought that after this length of time, her psychological state was also amplifying her pain and physical problems and therefore there was an additional appropriate diagnosis, namely that of a chronic pain disorder involving psychological factors and general medical conditions.
146 Dr Nathar thought that the plaintiff should continue taking Avanza and that she would probably not benefit from any additional psychiatric treatment. In his view, there was the possibility the plaintiff would benefit from a multidisciplinary approach of a pain clinic.
147 Dr Nathar considered the plaintiff’s overall prognosis was poor. He thought she had real and significant ongoing physical problems, now amplified by a poor psychological state and difficulty adjusting and coping. He considered, on balance, it was likely she would have a moderate level of permanent psychological deficit.
148 The plaintiff’s psychological state and pain pre occupation in his view, would cause a marked reduction in her ability to enjoy her life, recreational activities and leisure pursuits on a permanent basis.
149 He considered, although she spoke good English, it would not be sufficient for the plaintiff, at her age and with very little schooling, to be retrained into non physical work. He thought her poor state of mental functioning would support the notion that on psychiatric grounds alone the plaintiff was totally and permanently incapacitated for pre injury and also alternative duties.
150 On 13 August 2007, the Medical Panel (“the Panel”) assessed the plaintiff’s permanent whole person impairment at seven per cent, resulting from the accepted physical injuries to the lower back left and right legs, left and right knee and stomach injury. The Panel was of the opinion there was a zero per cent psychiatric impairment.
Investigations
151 An MRI scan of the lumbosacral spine taken on 17 December 2004 showed no neural compressive focus to account for the patient’s right sided sciatica. However, there was a broad based annular disc prominence seen at L4-5, as well as some mild disc desiccation. L5-S1 was noted to be unremarkable.
152 An MRI scan of the lumbosacral spine taken on 3 October 2007 showed L4-5 and L5-S1 disc degenerative changes demonstrating minimal change in comparison with former imaging. There was no new disc prolapse or neural impingement.
153 The L4-5 disc was mildly reduced in height and hydration. A central posterior annular fissure was present, slightly more prominent than on the previous imaging. There was a small associated broad based disc bulge. There was no neural contact, spinal canal or neuroforaminal compromise.
154 The L5-S1 disc was mildly reduced in height and hydration. There was a small central posterior annular fissure present unchanged from former imaging. There was a very minor disc bulge present at that level with no canal or neuroforaminal compromise. There was mild facet joint arthropathy changes at L4-5 and L5-S1 unchanged from former imaging.
Plaintiff’s Vocational Evidence
155 Margaret Leitch, of Evidex, carried out a vocational assessment of the plaintiff on 22 September 2009.
156 Ms Leitch took a history of the incident and the plaintiff’s subsequent return to work and noted that the plaintiff was unable to continue working beyond November 2005, at which time she was on limited duties, two hours a day, three days a week.
157 Ms Leitch concluded there was no commercially viable occupation in the open labour market for which the plaintiff was likely to qualify which met the definition of suitable employment with regard to her lower back injury only, or her psychiatric injury only, and that this situation would continue.
158 Ms Leitch thought factory process work or working as a checkout operator was unsuitable.
159 She noted the plaintiff had very few transferrable skills for a new occupation with low demands. The plaintiff had very limited formal education, no vocational qualifications, very limited English literacy, no experience of office work and only very basic computer skills. No alternative occupation was found by her where the inherent job requirements were within the plaintiff’s functional capacity when analysed separately for her lower back and psychiatric injuries.
Claim Documents
160 The worker’s claim form dated 31 July 2004 set out the relevant injury was to lower back, knee and legs. The incident happened when the trolley collapsed while being turned onto the plaintiff’s legs, causing pain and bruising to both thighs.
161 The employer’s claim form dated 5 August 2004 set out the incident was witnessed by Edmund Hinago. The incident happened when the plaintiff moved the trolley towards her and it was not correctly weighted and it fell.
Defendant’s Medical Evidence
162 Mr Battlay examined the plaintiff on 30 November 2004, at which time she told him of pain in both knees. She did not report any back pain nor did he examine the plaintiff’s back.
163 On 25 January 2005, Mr Battlay noted a Return to Work Program dated 19 January 2005 which envisaged the plaintiff returning to work five hours a day from 17 January 2005 and six and a half hours from 31 January 2005, with full pre injury duties being performed as of 14 February.
164 Mr Battlay thought that this Return to Work Plan was entirely applicable to the plaintiff’s medical condition and that she would be unreasonable if she did not avail herself with the opportunity at her rehabilitation.
165 Dr Clayton Thomas’ report appeared in a report of the Victorian Rehabilitation Centre Multidisciplinary Assessment Report. It was noted in the Rehabilitation report that there was a case conference held on 6 July 2005, at which time the plaintiff was working four hours a day, four days a week.
166 Dr Thomas examined the plaintiff on 26 May 2005. The plaintiff told him of the incident and that with time her pain had spread.
167 On examination, the plaintiff complained of bilateral knee pain in a fairly non specific manner and also of neurological symptoms in her right leg with numbness and pins and needles.
168 On examination, there were multiple tender points throughout the spine and the movement of the thoraco lumbar spine was about two thirds of normal in a non specific pattern. Neurologically, reflexes were present and symmetrical, power was give way, sensation diminished in a non specific manner to the right and the straight leg raising was unremarkable.
169 Dr Thomas did not have any imaging available to him but he noted an MRI report on the lumbar spine which reported a mild diffuse disc bulge at L4-5 (query normal).
170 At that stage, it certainly seemed to Dr Thomas the plaintiff had a diffuse and widespread pain syndrome and he noted it was very difficult to know what, if any, underlying physical abnormality remained from the original injury. He thought a rehabilitation program would be entirely appropriate and he commented that he would certainly not want the plaintiff to stop work because of increasing pain complaints.
171 Dr Chris Baker first examined the plaintiff on 7 April 2005. He carried out a worksite inspection on 22 August 2005 and re-examined the plaintiff on 11 August 2005, 20 December 2005 and 15 October 2007. He provided a letter of 9 January 2006 advising he did not think the plaintiff needed gardening assistance.
172 In October 2007, the plaintiff told Dr Baker she had suffered from ongoing lower back pains, sometimes radiating up to her neck, and her right leg was worse than her left. She also had knee pain.
173 On examination, there was a marked reaction to light touch over the back of the neck and head and over the thoracic and lumbar spine. There was tenderness over the base of the neck into the trapezius muscle and over the lumbosacral region.
174 On examination of the thoraco lumbar spine, the plaintiff was only able to flex to forty degrees from vertical. It was noted that there was a positive response to axial loading, indicating a non physical component to her presentation.
175 There was straight leg raising to ninety degrees in both legs. Reflexes were present at the knee, and ankle joints and were equal and normal. On sensory examination no abnormality was detected.
176 Dr Baker concluded the plaintiff originally suffered injury to her lower legs and with the passage of time her condition became more widespread with pain in her neck, lower back and leg. He also thought she was suffering with an Adjustment Disorder with depression and pain amplification.
177 In his view, the majority of the plaintiff’s symptoms were not related to the work accident but were related to psychosocial factors and there was a significant non physical component to her presentation.
178 Dr Baker did not consider the continued use of physiotherapy or hydrotherapy would alter the course of the plaintiff’s condition and he did not consider any benefit in providing ongoing physical services.
179 In Dr Baker’s view, the plaintiff was capable of undertaking her activities of daily living and he believed the only way forward for her was to participate in a multidisciplinary pain management program. However, he noted she had now become entrenched in her current position and he considered there was a significant non physical component to her presentation with a chronic pain state.
180 Dr Turecek psychiatrically assessed the plaintiff in January 2006. He noted that repeatedly throughout the assessment the plaintiff returned to the predominant symptom of pain to both knees. When pressed further about the nature of her symptoms, the plaintiff said she was not able to go anywhere because of pain which she described as all over her body and she reported trouble with her back and radiation to the back of her neck.
181 Dr Turecek noted throughout the assessment the plaintiff remained morose and somewhat despondent and there was an underlying mood of depression and resignation. However, she showed some degree of animation when discussing the effects of the pain.
182 On assessment, he found it not possible to elicit any thought disorder. There was no evidence of perceptual disturbances, such as delusions and/or hallucinations, and he commented that a very noticeable feature, however, was the extreme focus on the pain she experienced, but he noted there was no evidence of subjective pain throughout the interview.
183 In his view, the subjective symptoms and mental status examination confirmed and established a diagnosis of psychogenic pain disorder – Item 307.89 in the DMS IV classification.
184 In Dr Turecek’s view, the minor injury appeared to have precipitated an abnormal reaction, and in that sense the plaintiff showed amplification of pain in the context of abnormal illness behaviour.
185 He thought, in terms of a return to work, predominantly there was a serious impediment, namely the plaintiff’s subjective belief that she was not able to function in the presence of the pain that she experienced. He thought, however, that she was a poor candidate for rehabilitation.
186 The plaintiff was examined by Dr Jakobovits in relation to her gastric problems on 14 December 2006. He noted that the plaintiff had been taking the non steroidal anti inflammatory drug, Mobic, after the incident and complained of very non specific upper abdominal pains which, in his view, probably did in some way relate to the taking of that medication. He noted a gastroscopy had been normal and that Pariet, a strong antacid, may give it some relief.
187 In his view, the plaintiff’s gastric symptoms would probably persist while she was taking non steroidal drugs. He assessed her impairment from a gastrointestinal point of view at two per cent.
188 Dr Stevenson, consultant physician, examined the plaintiff on behalf of the defendant on 3 November 2008.
189 The defendant resiled from Dr Stevenson’s comment that medically
inexplicable pain was a common somatic symptom and presentation in South
Asian cultures.
190 Whilst this report was tendered by the plaintiff reliance was placed by the defendant on the findings of significant non organic reaction shown by the plaintiff on examination with the differences between straight leg raising on formal examination and casual observation.
191 In Dr Stevenson’s view, the plaintiff clearly sustained no injury whatsoever to her lumbar spine and she had suffered bruising to her legs which had long resolved.
192 In Dr Stevenson’s view, the incident as described would impose no significant force at all on the lumbar spine and non specific back pain was often strongly associated with psychological factors.
193 Dr Stevenson thought the radiological change was perfectly age appropriate and degenerative and bore little relationship to pain and disability. He noted the radiologist described bulges and not tears or ruptures and the concept of disc ruptures was an outdated one from the 1930s. Dr Stevenson noted the forces required to actually rupture or traumatically damage discs had been studied experimentally and they were considerable. He noted it required an unusual combination of flexion, rotation and substantial vertical load in excess of two hundred kilograms.
194 Dr Stevenson considered the plaintiff was physically quite fit for anything she wanted to do and her impediments were psychological.
195 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, on 2 April 2009. At that time the plaintiff complained of constant ongoing bilateral knee pain and ongoing lower back pain and that sometimes the whole of her right side, including the upper and lower limbs became numb. She said at times her neck became painful.
196 On examination, there was tenderness of the lower thoracic and lumbar spine. There was a restriction of movement and straight leg raising on both sides was to twenty degrees. The plaintiff noted pain in the lumbar spine, aggravated by hip and knee flexion.
197 There was loss of sensation in the whole of the right lower limb in a non dermatomal distribution. There was evidence of wasting of the right thigh and right leg musculature of half a centimetre.
198 Mr Dooley noted the 2007 MRI scan of the lumbar spine which showed evidence of classical age related degeneration at L4-5 and L5-S1 levels and no evidence of nerve root compression.
199 Mr Dooley concluded that clinically there was a restriction of lumbar spine movement greater than one would expect to see for the soft tissue injuries sustained and for the degree of underlying degenerative disc disease. He thought there was no evidence of objective neurological deficit affecting the lower limbs and that there were signs of abnormal illness behaviour on clinical examination.
200 In his view, following the incident, the plaintiff had developed a chronic pain syndrome in which the constancy and intensity of her ongoing pain were out of proportion to the injuries suffered.
201 He thought the appropriate treatment for the plaintiff was for her to increase her activity and fitness.
202 Mr Dooley concluded the plaintiff may have sustained a soft tissue injury to the lumbar spine that had involved some musculo ligamentous damage and aggravation of age related degenerative disc disease. From an orthopaedic viewpoint alone, he thought that injury had been on the mild level on the scale of mild, moderate and severe.
203 Mr Dooley noted the plaintiff’s prognosis depended on that of her chronic pain syndrome. He thought if practitioners continued to treat her as though she had sustained some sort of major organic orthopaedic injury, then her current invalidism would continue and she needed to be confronted with the real diagnosis.
204 Mr Dooley believed the plaintiff was unfit to perform heavy physical work in the future, and from an orthopaedic point of view, thought she was capable of carrying out light physical work and clerical duties. In his view, currently her psychological reaction to the injury and/or pain precluded her from doing that. He believed in time the plaintiff should return to some useful, satisfying and productive work.
205 Mr Dooley noted annular ruptures are a part of the pathophysiology of degenerative disc disease. He noted that it had been well known for a long time that from a gross anatomical point of view disc degeneration involved annular ruptures posterio laterally in a very specific pattern.
206 Mr Dooley thought in this case the ruptures noted on MRI represented classic degenerative change and were not traumatic in nature. In his view, soft tissue injuries to the lumbar spine would explain some intermittent lower back pain and that currently it was the plaintiff’s psychological reaction to injury and/or pain that dominated her clinical presentation. He noted lumbar discogenic pain can be referred into the buttocks and sometimes the thighs but it did not go below the knees.
207 Mr Dooley explained that ruptures are similar to the degenerative splits and rents one sees in rotator cuff tendons. “Nature mounts an inflammatory response in these areas and sometimes lays down calcium as a putty to try and fill them in. It cannot fill in those areas with normal original tissue. They are not meant to and cannot repair with virgin tissue. Whether they do or not there is no influence upon ongoing symptoms.”
208 Dr Varma, Deputy Director of Radiology and the Head of Trauma and Emergency Radiology at the Alfred Hospital, provided two reports analysing the investigations.
209 Having viewed the various investigations, he noted that annular fissures were quite commonly associated with degenerative disc disease and it was not uncommon to see such mild degenerative changes in the plaintiff’s age group.
210 In his opinion, there were mild degenerative changes at L4-5 and L5-S1 with associated small annular fissures. There was a small disc protrusion at those levels with no neural compromise.
211 Dr Varma noted radiological abnormalities do not always correlate with clinical symptoms. In his view degenerative disc disease can result in non specific back pain and on the imaging there was no cause identified for the plaintiff’s sciatic-type symptoms at L4-5 and L5-S1. He thought those changes were mild and would have a good prognosis.
212 He noted in his last report that most herniated discs heal over time with non surgical treatment and in some cases heal on their own by the process known as resorption.
Claim Documents
213 The defendant tendered a series of Certificates of Capacity dated from 15 July 2004 to 30 March 2005 which were provided by Dr Teasdale, Dr Shortall and Dr Weissman. These certificates all referred to unfitness for duties or fitness for modified duties on the basis of the plaintiff’s thigh and knee injuries and did not refer to her back injury.
Overview
214 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
215 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a) what injury is relied upon; (b)
further, that that injury is referable to employment on or after 20 October 1999 (“the relevant date”).
216 It is disputed by the defendant that the plaintiff suffered a compensable injury to her lumbar spine in the incident.
217 However, on 26 July 2004, the plaintiff reported to Dr Teasdale that she had injured her back in the incident. Further, the plaintiff included a back injury on her claim form dated 31 July 2004. The claim was initially accepted by the defendant.
218 Whilst I note that the plaintiff’s back was not the focus of her complaints to either Dr Teasdale or Dr Shortall, who concentrated on her knee problems, and provided certification in relation thereto, they both were told by the plaintiff of her back injury and referred her for treatment and specialist assessment.
219 I accept that the incident was a cause of the plaintiff’s back pain as she took the weight of the falling trolley both on her legs and back as she was leaning forward holding the trolley. The incident was witnessed by and formally reported to the plaintiff’s supervisor Edmund Hinago.
220 Save for Dr Stevenson, medical practitioners who have examined the plaintiff on behalf of both parties agreed that the plaintiff suffered a back injury in the incident.
221 Accordingly, I am satisfied that the plaintiff suffered a compensable injury to her back in the incident.
222 I accept that the plaintiff sustained a soft tissue injury to the lumbar spine that involved some musculo ligamentous damage and aggravation of age related disc degenerative disease as diagnosed by Mr Dooley.
223 In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2004 incident is serious and permanent.
224 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that:–
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
225 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
226 In accordance with the principles in Grech v Orica Australia Pty Ltd & Anor (supra), provided the plaintiff establishes that the subject compensable injury in 2004 materially contributes to her impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
227 Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the 2004 incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
228 After injuring her back whilst working for Farm Produce in 1988, the plaintiff had two years off work. Whilst court documentation relating to the common law claim brought in relation to this incident included injury to her lumbar spine, the plaintiff maintained in cross examination that she did not hurt her lower back at that time.
229 Further, the plaintiff said that she fully recovered from the effects of this injury. There was no evidence to the contrary. The plaintiff did not have treatment for her back during the 1990s or in the early 2000s before the incident.
230 The plaintiff was able to work full time in a relatively heavy job at the fruit market for six years before commencing work with the defendant in 2003.
231 In these circumstances, I do not accept that the plaintiff was troubled by any lower back problems in the years leading up to the incident.
232 The question then becomes whether the consequences of the impairment to the back is “serious”.
233 The impairment to the lumbar spine must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
234 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441. See in particular Chernov JA at paragraph 29.
235 In addition to being “serious” the impairment must be permanent, in that it is likely to last into the foreseeable future.
236 Further, Section 134AB(38)(h) of the Act provides that
“the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”
237 Therefore psychological or psychiatric consequences of the plaintiff’s back injury must be excluded when considering her application pursuant to sub paragraph (a).
238 As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, para 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, . . . requires that any psychological or psychiatric overlay be stripped aside. …”
239 Thus the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
240 Counsel for the defendant submitted that the plaintiff failed to establish that she had a serious injury to her lumbar spine that was organically based and that she had not disentangled the back condition from her generalised complaints of pain.
241 I accept that from the outset there has been a chronic pain component to the plaintiff’s presentation.
242 In early 2005, Dr Teasdale thought the plaintiff had a diffuse widespread pain syndrome. He considered it difficult to explain the underlying pathological process involved and was waiting for guidance from Doctors Hoi and Thomas in this regard.
243 The next treating doctor, Dr Shortall, in 2005, also thought there was some psychological component.
244 The plaintiff did not continue treatment with either of these doctors after that time and there is no report from either practitioner.
245 The plaintiff has also been seen by Mr Grossbard, Dr Thomas and Dr Lim. No reports from these practitioners have been relied upon by the plaintiff. In the absence of these reports and also reports from the plaintiff’s initial treating doctors, I am entitled to infer that these treating doctors would not have assisted the plaintiff’s application.
246 Further, in a report from Dr Thomas following examination in 2005 which was included in a vocational rehabilitation assessment report relied upon by the defendant, Dr Thomas found diffuse and widespread pain, and noted that it was difficult to know at that stage what remained of an organic basis from the incident.
247 Mr Moran, to whom the plaintiff was referred for treatment in 2005, does not assist the plaintiff as he did not relate any of the plaintiff’s ongoing knee problems to her back.
248 Whilst it is the impairment not the injury which is the relevant matter for consideration, Mr Barrett is only doctor who considered that the plaintiff had suffered disc ruptures in the incident and that those ruptures had no ability to heal.
249 Dr Varma found nothing of significance in terms of the radiological findings and noted that such findings were not uncommon in the plaintiff’s age group.
250 Further, as Mr Brearley said in cross examination, the significance of any radiological findings depended upon an acceptance of the plaintiff’s subjective complaints and he seemed to accept that discs in fact had the capacity to heal. He agreed there was no radiological basis for the plaintiff’s sciatica.
251 Dr Brighton Knight, to whom the plaintiff was sent for a surgical referral by Mr Barrett, thought the plaintiff’s pain was mechanical and he suggested pain management before considering surgery.
252 It is interesting to note that the plaintiff did not mention any back complaint when examined on the defendant’s behalf by Mr Battlay in November 2004.
253 Other medico legal opinion from Mr Elsner and Dr Turecek in 2006, Dr Baker in 2007 and Dr Stevenson in 2008 relied upon by the defendant supports a diagnosis of chronic pain and the presence of a non organic basis for the plaintiff’s complaints with findings of inconsistencies on examination and the presence of widespread inexplicable pain.
254 Mr Dooley’s view is probably the most supportive of the defendant’s examiners, in that he found a soft tissue injury to the lumbar spine on the background of a discogenic setting. However, whilst the soft tissue injury would explain some intermittent lower back pain, he thought it was currently the plaintiff’s psychiatric reaction to injury that dominated her clinical presentation.
255 Dr Nathar, upon whom the plaintiff relies, found pain amplification in addition to a major depressive illness.
256 Whilst I accept that Dr Pereira is very supportive of the plaintiff, he does not provide any real analysis of the basis for her ongoing problems. He rarely examines the plaintiff and his treatment consists of prescription of medication for a variety of complaints, including lower back pain, bilateral knee pain, thoracic and cervical pain and also depression.
257 The plaintiff’s own evidence is that she has pain everywhere except her chest, which she attributes to the incident and this is how she presents to Dr Pereira and she gets treatment for these widespread problems. Further her focus on many examinations has been on her knees which are not part of this application.
258 Further, whilst there was no surveillance film or other evidence challenging her claimed level of disability, at times I found the plaintiff’s answers in cross examination evasive and unconvincing. It is inexplicable why she could not recall, matters such as the addresses of her children.
259 Whilst I was not addressed by counsel in this regard, this case obviously raises issues considered by the Court of Appeal in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46 and also Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167.
260 Whilst it might be said the Court of Appeal took a different approach in Jayatilake from that taken in Stamboulakis, and the High Court did not consider the issue on appeal, I accept, as Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at para 50:
“… if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”
261 Taking into account all the evidence, I accept that the plaintiff’s presentation is immersed in a chronic pain syndrome, supported by medical opinion and also evidenced by the widespread, diffuse nature of her complaints and their continuation long after she has long ceased work or any other aggravating activity.
262 I do not accept that the plaintiff has a serious injury pursuant to subsection (a) and her application is dismissed.
263 I now turn to the plaintiff’s claim pursuant to sub section (c)
264 I accept that a chronic pain syndrome can result in impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder, which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.
265 In a Second Reading Speech on the Accident Compensation Bill, the Government recognised it was proper to maintain a higher threshold requirement for a mental or behavioural disturbance or disorder due to the degree of subjectivity involved in such a condition
266 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
267 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
268 Since the incident the plaintiff has remarried and lives with her new husband, who helps her with various household tasks. She continues to do light cooking and they go shopping together. She has been able to travel with him overseas to visit family. The plaintiff is still able to drive, although she seemed unclear as to whether she had driven outside the metropolitan area. She is also able to socialise.
269 Save for the prescription of Avanza by Dr Pereira, the plaintiff has not had any psychiatric or psychological treatment suggested by Dr Pereira or any other practitioner.
270 In terms of work, it appears that from the limited material available from the plaintiff’s treating doctors before Dr Pereira took over her care in late 2005, they considered the plaintiff had the capacity to return to her normal duties and in fact she was doing so on reduced hours until mid 2005.
271 In May 2005, with concerns about the cause of the plaintiff’s ongoing problems, Dr Thomas certainly did not want her to stop work because of increasing pain.
272 The plaintiff deposed that when Dr Pereira took over the plaintiff’s care in late 2005, he certified her unfit for work whilst she was reviewed by Mr Grossbard. There is no report from Mr Grossbard as to his views on the plaintiff’s employment capacity or any other matter.
273 Since Dr Pereira has been treating the plaintiff he has certified her unfit for all work due to her back, right and left leg pain, epigastric pain and depression. He has not identified any psychiatric condition that alone prevents her from returning to work.
274 Dr Nathar is the only practitioner who considers the plaintiff unfit for work on psychiatric grounds. His findings on mental status examination however were of no significant abnormality, but noting that the plaintiff was very much pain preoccupied.
275 Dr Turecek, in 2006, thought, from a psychiatric perspective, that the plaintiff was capable of suitable employment after intense rehabilitation, but he thought a serious impediment towards a return to work was predominantly the plaintiff’s subjective belief that she is not able to function because of her pain – pain she described as “all over the body”.
276 Since ceasing work in late 2005, the plaintiff has not looked for work. For reasons that still remain unclear, she did not complete the rehabilitation program in 2005. I accept that she has shown little motivation in relation to returning to work. Since her weekly payments were ceased the plaintiff has been in receipt of Centrelink benefits.
277 Taking into account my concerns as to the reliability of the plaintiff’s evidence and the totality of the medical evidence, I do not accept that the plaintiff is unfit for work as a consequence of any psychiatric condition nor are there any other consequences of her psychiatric condition which are severe.
278 I find the plaintiff has not satisfied the “permanent severe” test in relation to her claim pursuant to sub-section (c).
279 Having found the plaintiff does not satisfy the narrative, I am not required to consider her claim for loss of earning capacity.
280 Accordingly, the plaintiff’s claim in relation to pain and suffering and loss of earning capacity is dismissed.
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