MacDonald v Royal District Nursing Service Ltd
[2013] VCC 1574
•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-13-00037
| JILL MacDONALD | Plaintiff |
| v | |
| ROYAL DISTRICT NURSING SERVICE LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 and 21 October 2013 | |
DATE OF JUDGMENT: | 29 November 2013 | |
CASE MAY BE CITED AS: | MacDonald v Royal District Nursing Service Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1574 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172
Judgment: Leave granted to bring proceedings for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with Mr A Ingram | Melbourne Injury Lawyers |
| For the Defendant | Ms S Manova | 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 from approximately January 2002 until November 2006 (“the injury”).
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 s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied on two affidavits and gave viva voce evidence. She was cross-examined. She also relied on the affidavit evidence of her husband, Neil Cameron MacDonald, sworn 24 September 2013 (Exhibit C) and affidavits from nurses, Carol Niece, sworn 4 October 2013, (Exhibit R) and Angela Boxall, sworn 5 October 2013, (Exhibit S). In addition, she relied on the viva voce evidence of physiotherapist, Mark Di Paolo, and general practitioner, Dr Ayoub, both of whom were cross-examined and tendered medical reports (Exhibit F and Exhibit G respectively). 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
6 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(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 “more than significant or marked and as being at least very considerable”.
9 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.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] in reaching my conclusions.
[1](2005) 14 VR 622
14 The defendant concedes the plaintiff is suffering an injury to the lumbar spine but does not concede that it was an injury which arises out of or in the course of, or due to the nature of, employment on or after 20 October 1999; alternatively, any such injury is not a serious injury in terms of any loss of earning capacity consequences. Subject to the above, pain and suffering consequences were not seriously contested.
The facts
15 The plaintiff was born in 1951 and is presently aged sixty-two years. Upon completing Year 11 at high school, she subsequently became a qualified nursing sister and thereafter worked as such, subject to family commitments in connection with raising four children.
16 She commenced employment with the defendant as a palliative care nurse in June 1992. In paragraph 7 of her affidavit sworn 20 August 2012,[2] she deposed as follows:
“My duties involved me going around to the houses of persons suffering from terminal illnesses, attending to their administration of their medications, attending to assisting them with items of personal care for example so assisting that they were not developing bed sores or other problems, and providing advice to the patients as to the conditions from which they were respectively suffering. The nature of my duties meant that I was frequently having to lift, carry, bear the weight of, bend, twist and adopt stressful positions and postures whilst assisting the people many of whom had reached a stage where they were unable to self support and required considerable assistance usually in a bedding setting or wheelchair or seated position. There were significant physical strains involved on my body as a result of the work which was performed. Having earlier developed lower back pain during the handling of a difficult patient some three or four years prior to that time my recollection being that I didn’t receive medical treatment at that time nor take time off work but I do recall that a number of nurses were involved in the incident and a number of them completed report forms arising from it.”
[2]Exhibit B
17 In viva voce evidence, she identified the incident as having occurred some time in 2002[3] and stated thereafter she suffered intermittent right leg pain which she identified as sciatica. She further stated that she had recourse to physiotherapy, chiropractic and osteopath treatment in the years following.[4]
[3]Transcript (“T”) 30, L5-8
[4]T36, L12-16
18 The plaintiff conceded that there were no particular incidents or accidents thereafter that precipitated symptoms in her back, although she did notice that sciatic symptoms would come on after work at the conclusion of her shift.[5]
[5]T49, L5-11
19 The plaintiff further swore, in paragraph 8 of her first affidavit, as follows:
“The fact of the matter was however that on a regular basis I was lifting and manually handling very significant weights in awkward conditions and frequently placing undue strain upon various parts of my body, and I sustained a number of injuries, but most particularly my spine which forms the central part of this application.”
20 Further, in paragraph 9 therein, she swore:
“As early as 2003 I was suffering from symptoms of pain in my right hip and pain extending down into my right leg. I put up with those symptoms for a while but eventually attended my local practitioner Dr Ayoub at Gisborne Medical Centre … .”
21 Further, in paragraph 10:
“Dr Ayoub nonetheless referred me for physiotherapy treatment with Marc Di Paolo in Gisborne particularly for persisting right leg pain.”
22 On 11 March 2004, Mr Di Paolo wrote to the referring general practitioner, Dr Ayoub in the following terms:
“Thank you for referring Jill for assessment and treatment to her right leg pain. Jill presented to me on the 2nd March 2004 and reported a four week history of right posteriolateral thigh and lateral calf pain with intermittent episodes of paresthesia into the sole of her right foot. She also reported moderate central low back pain. She could not identify any causative factor but found that activities such as sitting in a car, standing for any more than five minutes, and walking on a treadmill for any more than ten minutes increased her leg pain. She found that she would wake on a nightly basis after four to five hours of sleep. She had a past history of lumbar disc problems as a result of a lifting injury at work approximately three years ago.”
…
I felt the most likely cause of Jill’s leg pain was of somatic referred pain from her lower lumbar spine and that she may have also had some trochanteric bursitis complicating the matter.”[6]
[6]Report dated 11 March 2004, Exhibit F
23 In March 2004, Dr Ayoub had obtained an x-ray of the lumbar spine which reported, inter alia:
“…there is suspicion of a little early facet arthropathy at L4 to S1 on the right side. CT would confirm if necessary.”
24 In the clinical notes from the Gisborne Medical Centre from 27 March 2002 until 29 December 2003,[7] there are some twelve consultations but none are referable to a low-back complaint or sciatica.
[7]Exhibit 5
25 On 27 February 2004, Dr Ayoub has a history as follows:
“Pain hip, right knee, and lateral side of the leg for years.”
26 On examination, she found:
“Mild tenderness lumbosacral region, more to the right paravertebral muscles. Straight leg raising limited to 70 degrees on the right side. Reflexes and sensations are intact.”
27 This clinical note would seem to be consistent with the plaintiff’s viva voce evidence that the problem that subsisted after 2002 was not so much back pain but right sciatica. The management at that stage was recorded as:
“Symptomatic treatment, physiotherapy, will consider referral to S Jensen (neurologist) if not better.”
28 X-rays were ordered at that stage.
29 On 4 March 2004, Dr Ayoub discussed the results of the x-rays and noted that the plaintiff would “continue on physiotherapy and will follow up after that if not better”.
30 Thereafter, there are another three consultations which appear to be unrelated to the subject injury. However, on 1 December 2004, the history is as follows:
“Recent flare-up of sacroiliac pain … works as a nurse in palliative care, no recent precipitating injury noted … taking Nurofen Plus for it … no lower limb paresthesia.”
31 The relevant treatment was:
“Suggest heat pack, keep active, Panadeine and Nurofen PRN and physio for back.”
32 There was another consultation at this surgery on 6 December 2004 for an unrelated matter.
33 Thereafter, the plaintiff followed Dr Ayoub to the Saint Mary Medical Centre, also in Gisborne. On 10 March 2005, Dr Ayoub took a history as follows:
“Has recurrence of low back ache … back pain is returning more on right side, seeing a physio today, wonders what can be done more.”
34 On examination, straight leg raising was limited more on the right side and she was tender over the lumbar and mid thoracic spine. At this stage, a CT scan was ordered of the lumbosacral spine which recorded as follows:
“L5/S1: There is a central disc protrusion with some calcification touching the S1 nerve roots bilaterally particularly the left side. The exit canals are unremarkable. There is moderate facet joint hypertrophy.
Comment: Degenerative changes throughout the thoracolumbar spine worse at L5/S1.”
35 In her report dated 16 April 2012, Dr Ayoub recorded that as at March 2005, the nature of the plaintiff’s work involved helping very sick patients and “lifting sometimes”.[8]
[8]Exhibit G, PCB 59
36 Dr Ayoub amplified this evidence in cross-examination to the effect that she had first-hand experience of nurses assisting with palliative care patients, which often involved a degree of bending and lifting of sick patients.[9]
[9]T501, L21-31; T 151, L23-26
37 Dr Ayoub subsequently referred the plaintiff to musculoskeletal pain physician, Dr Steven Jensen, who saw her in May 2005. He took a history as follows:
“She has had recurrent low back pain for many years but about three months ago she developed leg pain for the first time. This has been more recalcitrant to her previous treatments of chiropractic and osteopathic interventions.”[10]
[10]Exhibit H, PCB 62
38 The plaintiff, for her part, says that this history is not strictly correct and that it should be leg pain for many years but recently developed back pain for the first time.[11] Examination findings included the following:
“There was tenderness and stiffness in the lumbosacral region and palpation over the right L5/S1 and referred pain to the leg.”
[11]T39, L3-7
39 He noted the reports of the CT scans to the effect there was −
“…widespread degenerative changes as well as calcified disc protrusion compromising the neural exit foramen and the S1 nerve roots bilaterally”.
40 His opinion at that time was as follows:
“This is chronic recurrent mechanical low back pain now with some right radicular pain but without radiculopathy.”
41 He offered to review the situation in a month or so.
42 On 22 June 2005, Dr Jensen reported back to the general practitioner that the plaintiff was suffering the same level of leg pain and numbness. His comment at that time was:
“We both agree that as she is still continuing to cope admirably we will leave well enough alone. Should this situation not continue or indeed improve we could consider epidural injection.”[12]
[12]Exhibit H, PCB 63
43 Dr Jensen performed a caudal epidural injection in September 2005. At that stage, he thought the plaintiff had some −
“…claudicant type symptoms in both legs, probably as a result of some L5-S1 calcified disc protrusion causing some S1 nerve root compromise.”[13]
[13]Exhibit H, PCB 64
44 On 6 October 2005, Dr Jensen reported, inter alia:
“What was not reported on this [MRI] scan was that there was a significant high intensity zone posteriorly at L5-S1. There is some correlation between these and discogenic back pain so this may be clinically significant.”[14]
[14]Exhibit H, PCB 65
45 On 28 November 2005, Dr Jensen reported as follows:
“The most likely source of her symptoms is the L5-S1 disc which you may recall had a high intensity zone on MRI scan.”
46 He further reported:
“We discussed the best therapeutic options from here. We decided to try and give her adequate pain relief with opioid and analgesia combined with an exercise program incorporating core stability and strengthening exercises.
As regards the opioids, I have given her prescriptions for Oxycontin 10mg and 5mg as well as Endone 5mg. She is a very sensible lady and with her palliative care nursing experience we discussed how she will try and titrate the dose to the most appropriate level. In order to save her a trip down here I would be most grateful if you could continue prescribing these.
…
I will refer her off to Marc Di Paolo for the rehabilitation programme.”[15]
[15]Exhibit H, PCB 66
47 On 13 December 2005, physiotherapist, Marc Di Paolo, reported to Dr Jensen as follows:
“I have seen her on two occasions now and she is improving with her exercises although to date it has made little difference to her pain. I hope that given a period of time of strengthening that her stabilisers will provide her with more support and ultimately help reduce her pain.”[16]
[16]Exhibit H, PCB 67
48 In the meantime, the plaintiff had remained at work doing her usual 24 hours a week shifts through until November 2005. She had undergone a right sacroiliac joint injection on 27 October 2005 and subsequently, on 24 November 2005, underwent a medial branch block at L3-4 and L4-5 levels in an attempt to block the nerve supplying the L4-5 and L5-S1 facet joints. She reported that these treatments provided only a temporary benefit before there was resumption in the level of her pre-existing symptoms.[17]
[17]Exhibit B, paragraph 16
49 On 24 February 2006, the plaintiff underwent a nucleoplasty which she reported as being beneficial, in that her levels of leg pain were significantly reduced, but unfortunately “the procedure did almost nothing to help with the chronic back pain which I continue to experience”.[18]
[18]Exhibit B, paragraph 19
50 At the end of 2005, and for some time prior thereto, the plaintiff had been prescribed morphine in the form of Oxycontin taken day and night, in addition to Effexor and Stilnox to help her sleep.[19]
[19]paragraph 19
51 Following the nucleoplasty, Dr Jensen reported back to Dr Ayoub on 13 April 2006. He reported the improvement with the leg pain; however, she still had her lower back pain. He noted that she had limited standing and sitting of about 15 minutes. She was walking on a treadmill twice a day for one kilometre at a moderate speed. He noted that, unfortunately, she still needed opioid analgesics in the form of Oxycontin, 20 milligrams at night and 15 milligrams in the morning, and was still taking Effexor and Stilnox. His opinion at that stage was that she should “push on” with her rehabilitation program, and he hoped to significantly reduce her opioid intake in the long term.
52 By October 2007, after considerable treatment centred on her right hip and right buttock, Dr Jensen reported that, following an operation on her right hip in July 2007, the plaintiff −
“…seems to have done reasonably well from that in terms of her lateral hip pain. There is still the groin pain to contend with. My feeling is that this is probably referred from her lumbar spine.
In fact the main impetus for this consultation was some persistent right sided back, buttock and leg pain. Both Jill and I believe this is probably discogenic again.
…
She is struggling to sleep and I suggested she merely increase her Efexor to 150mg daily for now.”[20]
[20]Exhibit H, PCB 72
53 On 23 October 2007, Dr Jensen reported:
“If there is still no joy and her sleep pattern is still poor after that we will look at repeating the diagnostic local anaesthetic injections to her lumbar facet joints or sacroiliac joint to exclude those sources.”[21]
[21]Exhibit H, PCB 73
54 On 12 February 2008, Dr Jensen reported as follows:
“She is now getting some significant radicular quality leg pain and has some subtle L5 numbness and slight weakness of first toe extension, consistent with some L5 nerve root compromise.
I will trial a transforaminal epidural targeting the right L5 nerve root to try and help this leg pain.
She says she can live with the back pain and I am hopeful if we could just quieten down this leg pain she will cope much better. She still needs a fair amount of breakthrough medication despite the Norspan 10mg patches.”[22]
[22]Exhibit H, PCB 75
55 On 27 February 2008, Dr Jensen referred the plaintiff to neurosurgeon, Mr Tange. In his referral, he included:
“I would be most grateful for your opinion on Jill who has a long and chequered career regarding her lower back.
…
Jill is a stoical lady and ex-palliative care nurse. She is now requiring Norspan patches 15mg to help control the pain. She also takes Epilim for the neuropathic component and Efexor as well to try and cope with this pain.
Her past history and interventions include provocative discogram in January, 2006 which was positive for the L5-S1 disc.”[23]
[23]Exhibit H, PCB 76
56 On 11 June 2008, Dr Jensen reported to Mr Tange as follows:
“The leg pain certainly seems to have a claudicant pattern to it. She described to me that this leg pain was the worst of her problems, and prevents her walking more than 100 yards out to the chook pen and back. She has difficulty standing in one spot. With sitting she gets increased back pain.
…
I note her most recent MRI does show some worsening right L5 foraminal stenosis that would be consistent with her clinical picture.
…
I had a discussion with Jill about her problem and also the pro’s and cons of surgical intervention. She understands that any surgical intervention is likely to help her leg pain but is unlikely to help her back pain. Nonetheless she is becoming increasingly frustrated by her inability to get around to the point where she was almost in tears describing this to me, such was her level of frustration. She has previously struck me as quite a stoical lady, so obviously she is decompensating psychologically as a result of her pain.”[24]
[24]Exhibit H, PCB 77
57 Neurosurgeon, Mr Tange, has provided four reports between 24 June 2006 and 27 May 2008.[25] There is no report thereafter. However, Dr Jensen reported on 5 September 2013[26] as follows:
“Ultimately Mr Tange undertook routine right L4-5 microlaminectomy and L5 rhizolysis. Mr Tange noted at surgery all facet joint cyst was found and this was causing quite significant inflammatory change along and around the exiting right L5 nerve root.”
[25]Exhibit K
[26]Exhibit H, PCB 83
58 When reviewed by Dr Jensen on 29 January 2010:
“She was again reporting six out of ten severity back pain. She was severely limited in sitting and standing and somewhat limited in walking and sleeping activities.
…
The predominant pain was through her back and right buttock extending down the lateral aspect of the right thigh and the posterolateral aspect of her right calf where there was an associated numbness sensation. She was still having great difficulty sleeping.
…
At this consultation she was using Endone, particularly in the morning and also paracetamol through the day. She was struggling with household chores and her daughter was now cleaning the house for her. She reported a walking tolerance of 200 metres or five minutes on the flat before developing significant leg pain. She was unable to walk through this as her leg became heavier.”
59 At that stage, the plaintiff had been studying for the last eighteen months in order to undertake a course in pastoral counselling.
60 The plaintiff was last seen by Dr Jensen on 18 October 2011, where he recorded she had been referred to the Royal Melbourne Hospital Chronic Pain Management Clinic, where she had undertaken their pain management program. The history on that occasion was to the effect that she was currently walking for 15 minutes in the morning and night, and also attending a pool regularly to undertake water-based exercises. She was still using a Durogesic patch but noted this was not lasting the full three days. She was still on Lyrica, 75 milligrams twice a day, and recorded that this had helped her leg pain. At that stage, Dr Jensen considered her pain was not controlled with Durogesic patches and he suggested that she change over to Jurnista as an alternative opioid medication. It was also suggested she could take Endone for breakthrough pain.[27] Dr Jensen’s opinion at that stage was that the plaintiff had suffered an initial injury to her lumbar spine, particularly at the L5-S1 disc, as evidenced by the provocative discogram and subsequent outcome to the nucleoplasty procedure of 2006. He considered she subsequently developed gradually increasing degenerative change at the L5-S1 level leading to the right L5 foraminal stenosis and the development of a facet joint cyst, resulting in a subtle L5 radiculopathy for which she required surgical intervention. He considered that she had then gone on to develop more of a persistent low-back problem with a significant centrally mediated component, resulting in continued neuropathic leg pain without objective evidence of radiculopathy. He considered that the thoracolumbar or interscapular pains were part of the central sensitisation she developed subsequent to the L5-S1 disc injury and its chronicity. His prognosis for the lumbar spine problem was that she would go on having similar symptoms involving her back and leg pain, as well as pain through her thoracolumbar junction and interscapular region for the foreseeable future, and it was unlikely that these symptoms would resolve with time or with any other specific medical intervention.
[27]Exhibit H, PCB 85
61 As to the work relationship to her lumbar spine condition, Dr Jensen stated as follows:
“Noting the occupational duties of this lady as a district nurse and being cognisant of the recurrent, bending, twisting and manual handling activities required of a district nurse then I believe on the balance of probabilities her employment was a significant and material contributing factor to your client’s lumbar spine injury.”[28]
[28]Exhibit H, PCB 85
62 Further, taking into account her education, skills and work experience and her place of residence, he considered that attempts at retraining and vocational rehabilitation for suitable employment would be unlikely to succeed in returning the plaintiff to the workforce in any meaningful or sustainable manner. He also considered that the injury and its associated level of impairment was permanent.[29]
[29]Exhibit H, PCB 86
63 Finally, he commented:
“This lady has always presented to me in a very straightforward manner with a lack of any prominent psychosocial overlay or attempts to exaggerate her symptoms or clinical signs.”[30]
[30]Exhibit H, PCB 87
64 It is sufficient for present purposes to note that the opinion of the treating physician, Dr Jensen, is largely corroborated by medico-legal experts, being neurosurgeon, Mr David Brownbill, in his report dated 8 May 2013 (Exhibit J); orthopaedic surgeon, Mr Thomas Kossman, in his report dated 1 May 2013 (Exhibit L), and orthopaedic surgeon retained by the defendant, Mr Richard McArthur, in his report dated 21 August 2012 (Exhibit M). In the latter report, Dr McArthur noted, at page 7, as follows:
“Taking into consideration the history, the clinical presentation, investigations and result of treatment, it could be argued that Ms MacDonald’s low back pain and right sciatica, which developed in 2002/2003 and recurred in 2005, was related to a lumbosacral intervertebral disc prolapse. This condition may well have been contributed to by Ms MacDonald’s employment as a nurse with the RDNS. Following treatment in 2006, the right sciatica settled, however the back pain persisted.”[31]
[31]Exhibit H, PCB 120
65 Further, at page 8 of his report, he opined:
“In my clinical opinion the lumbosacral disc prolapse was related to Ms MacDonald’s employment as a nurse for the Royal District Nursing Service. The L4-L5 disc prolapse, which developed after Ms MacDonald left the Royal District Nursing Service, in my opinion, is not related to her employment with RDNS.”
66 Further, he stated:
“Ms MacDonald advised that work with the Royal District Nursing Service involved lifting and turning patients. Ms MacDonald first developed back pain and right sciatica when manipulating a patient in a hoist at the patient’s home in 2002/2003. The load on the lumbar spine as occasioned by lifting, turning and manipulating patients led to the development of a lumbosacral intervertebral disc prolapse.”[32]
[32]Exhibit H, PCB 121
67 Finally, he recorded:
“Taking into consideration the long clinical history of low back pain and sciatica attributed to disc protrusion at the L5-S1 and L4-L5 levels, the extensive treatment including microlaminectomy and the current treatment consisting of a narcotic medication in the form of Jurnista, it is my opinion that Ms MacDonald does not have a current work capacity as defined by the Accident Compensation Act of 1985.”[33]
[33]Exhibit H, PCB 122
68 Since ceasing her work as a nurse, the plaintiff has attempted a return to work both as a telephone nurse and as a nurse educator. She found she was unable to cope with either occupation, even on a part-time basis. In February 2013, she commenced work as an aged-care chaplain with the Church of Christ, being paid approximately $21 per hour. In her affidavit sworn 24 September 2013, she stated:
“Unfortunately I was unable to work the hours required of me and I suffered a flare up of my condition and ceased work earlier this month.”
69 In viva voce evidence, the plaintiff explained how she had been working two days a week at six hours per day and had been asked to increase her hours to seven-and-a-half-hours per day. She was unable to comply with the request because of ongoing back pain, and has now ceased all work. It is common ground between the parties that if the plaintiff can work no more than 18 hours per week, say three days at six hours per day, then she would have a loss of earning capacity of 40 per cent or more, as required by s134AB(38)(h) of the Act.
The Defendant’s submissions
70 In closing address, the defendant made four primary submissions, viz:
(i) The plaintiff suffers from degeneration in her lumbar spine resulting from age-related and congenital changes;
(ii) The plaintiff has not proved any injury to her lumbar spine as a consequence of the performance of her work as a palliative care nurse between 20 October 1999 and November 2005;
(iii) The plaintiff has not proved that she suffered any injury to her lumbar spine in an incident in 2002-2003; alternatively, any such injury was minor and had no permanent effect on her lumbar spine condition;
(iv) In any event, the plaintiff has retained a capacity for work which would enable her to earn at least 60 per cent of her without injury earnings.
71 In particular, counsel argued:
“In relation to the causation point, the plaintiff’s case is based on the underlying premise that the work she was doing over the years as a palliative care nurse required her to repeatedly undertake heavy manual handling of patients including lifting, bending, twisting and carrying of such patients.”[34]
[34]T172, L24−29
72 It was submitted that the total of the evidence was that really the work was “moderately physically demanding”.[35] In particular, it was submitted that the plaintiff conceded that the employer had a no lift policy at all relevant times and that she worked in pairs with a personal care attendant. Further, the plaintiff agreed that hoists were not generally used for palliative care patients because they are terminally ill and remain in bed. When it is necessary to move the patient, such as after a soiling episode, the patient is moved onto a slide sheet. Further, it was submitted that there were only five or six clients per shift and that a lot of time was spent driving in between homes. Further, it was argued that despite the history of intermittent sciatica from 2002 until ceasing work in 2005, the plaintiff managed to perform her normal duties. In light of this different history, it was said that the opinion of Mr Rodney Simm, orthopaedic surgeon, ought to be preferred.
[35]T173, L6
73 Before turning to the opinion of Mr Simm, I consider it appropriate to make some preliminary findings.
74 First, the plaintiff impressed me as a witness of truth and there was no attempt to embellish any aspect of her evidence. In particular, it would have been easy for her to have said that lifting et cetera at work produced contemporaneous symptoms in her lumbar spine. She did not so attest. Her case, really, is that the work involved a series of insults to her lumbar spine when she was required to manoeuvre palliative care patients, such that the insults produced or contributed to an insidious process of degeneration of the spine which probably commenced with a lifting incident in 2002-2003, as sworn to by the plaintiff. It is true that Mr Brownbill, for example took a history that the sciatica commenced without any known precipitant, but there is ample evidence from other practitioners that the plaintiff recalls a particular lifting incident with a patient and that that patient had also caused other nurses to complain of back symptoms. I accept the plaintiff’s evidence that there was such an initiating incident and that, from time to time thereafter, she suffered sciatica, particularly at the completion of a shift. I also accept that she complained to Dr Ayoub and Mr Di Paolo in or about March 2004 of the ongoing process in a setting where she had no intention at that time of claiming WorkCover.
75 Secondly, I accept her evidence that she had no desire to claim compensation prior to 2011 as she had hoped that she would get better and she felt that there was a certain stigma associated with WorkCover claims. Whatever the objective merit of these views, I accept that it was her subjective belief with respect to both aspects.
76 Thirdly, I also accept her evidence that she was unable to cope with a seven-and-a-half-hour shift as a chaplain for the Church of Christ and, in my view, I doubt whether she would be able to manage three shifts of six hours per week in such an occupation.
77 It is the plaintiff’s submission that she is either totally incapacitated or only able to work up to the two days a week at six hours per day, as she was performing prior to being requested to increase those hours. I accept that the plaintiff’s view is honestly and reasonably held.
78 This view is supported by Dr Ayoub, the treating general practitioner, who gave viva voce that the plaintiff’s limit would be two hours per day, two days a week. Mr Jensen considered that the plaintiff was unlikely to be re-employed or retrained in any meaningful employment. Mr McArthur, the defendant’s surgeon, considered that the plaintiff had no capacity at all. These views are consistent with the plaintiff’s efforts to find alternative work upon resigning as a nurse. In addition to the pastoral care work, she has tried office work, telephone nursing and teaching at TAFE, all of which had to be surrendered because of ongoing back pain.
79 I should note that the defendant also tendered in evidence an affidavit from Carmel Eileen Brown, sworn 30 July 2013, who is currently employed by the defendant as a clinical nurse consultant, palliative care. Relevantly, she swore:
“The duties of a palliative nurse include: clinical assessments; symptom management; support to the carers and family and personal care as required, such as sponging in bed; administering medication and other general care requirements.”[36]
[36]Exhibit 3, paragraph 7
80 She further swore that the plaintiff’s duties would include:
“…symptom assessment and medication administration which were the primary call-out reasons for palliative clients. In addition, they may be required to perform “some personal care as required”. These are called settling visits”.[37]
[37]Exhibit 3, paragraph 8
81 Dr Ayoub has sworn that settling such patients can often occur in the context that they are highly volatile and often resistant to treatment. Ms Brown also recorded that there is an assistant to assist the nurse if it is required “for example to roll or move a patient”. Further, the types of patients the nurses would see “may require a high level of care”.[38] Further, the nurse must “take whatever appropriate action was required at the time such as administering medication and making the client comfortable”.[39] Further, she swore that the night nurses −
“…usually are not required to move palliative care patients for personal hygiene reasons or to aid in their mobility. They usually perform settling care and ensure the client is comfortable. The morning or afternoon shift nurses would be more likely to have to move a client for the purpose of assisting with personal care such as bathing.”[40]
[38]Exhibit 3, paragraph 11
[39]Exhibit 3, paragraph 13
[40]Exhibit 3, paragraph 14
82 The plaintiff herself agreed with this observation in general, but noted that there were occasions when such assistance was required due to soiling et cetera.
83 Finally, Ms Brown deposed:
“Generally, the RDNS duties performed can be physically demanding, though there are adequate and appropriate physical aids available to nurses to minimise risk of injury to them and to assist them in their duties. It is the responsibility of each nurse to use the aids provided to minimise their risk of injury.”[41]
[41]Exhibit 3, paragraph 23
84 Accepting this statement at face value, it does not appear to me that, whilst the duty of the nurse is to minimise her risk of injury, this does not detract from the statement that generally those duties can be physically demanding.
85 I now turn to the opinion of Mr Simm. He first saw the plaintiff on 27 November 2012. The work history was recorded as follows:
“Her work duties involved driving to clients’ homes. There was a strict lifting policy. She did not attempt to lift clients or turn clients, although there was some physical assistance of clients required.”
86 Mr Simm did not elaborate on what that physical assistance amounted to. It may well be that he interpreted the plaintiff’s history that she did not attempt to lift clients or turn clients other than in accordance with the strict lifting policy. In any event, he recited the extensive clinical history consistent with that already recorded; in particular, the following:
“She ultimately underwent a microdiscectomy procedure at the right L4-5 level with release of the right L5 nerve root later in 2008. There was considerable improvement in her right lower limb pain and some improvement in her back pain after the operation. However, she subsequently had persistent and quite severe pain that required ongoing conservative measures, which have included radio-frequency denervation, opioid medication and medication for neuropathic pain.”[42]
[42]Exhibit 2, DCB 4
87 Further, he reported:
“Following the surgery, she went back to Dr Jensen for further pain management. She was prescribed Lyrical for neuropathic pain and strong analgesics, which included Panadeine Forte and Endone. She was placed on a walking programme and treated with manual therapy. In 2010 her symptom complex extended to the lower thoracic spine, which was becoming increasingly problematic. She had a thoracic MRI scan, which was completely normal.
She was referred to Dr Peter Courtney, another Pain Management Specialist, in 2011 and she had a radio-frequency neurotomy on 22 February 2011. There was some improvement although she had persistent right leg pain after the procedure.”[43]
[43]Exhibit 2, DCB 4
88 At the time of his assessment, the plaintiff was taking “Genista”, 32 milligrams per day. He described this as “strong opioid analgesic medication”. She was further taking Lyrica, 75 milligrams twice daily, which was an anti-convulsant medication used for the treatment of chronic neuropathic pain. She was also taking Panadol on a needs basis. She was attending her general practitioner every two weeks for prescriptions for the “Genista” which is a restricted medication. He noted:
“She has very little pain if she is resting quietly, however, if she lifts even moderate weights such as 5kgs of shopping, sits for longer than 10 minutes or walks for longer than 15 minutes, the pain may be quite troublesome. She has pain in the lumbar region of her lower back, more to the right side. Pain extends to the outer aspect of the right buttock, down the lateral side of the thigh to the instep of the right foot and the second and third toes of the foot. She has occasional numbness in the toes in the right foot. The numbness is not localised. … With prolonged sitting, the pain increases in the lumbar spine and the right leg. … The low back pain does not necessarily occur each day. The pain is directly related to activities. She has good and bad days and on the bad days she can do very little.”
89 Further, Mr Simm took a history:
“She drives locally but cannot drive for long distances. She is independent with dressing, washing, feeding and toileting. She is able to do the shopping and cooking providing she does not carry heavy loads of shopping. Her husband helps with the cleaning. There are days when she is able to do the vacuum cleaning at her own pace. On other days when the pain is bad she cannot do the household cleaning. She does light gardening, which includes pruning and weeding but she could not dig or do the heavier gardening. She enjoys sewing, knitting and she is currently making a dolls’ house with the assistance of her husband.
She had to cease work because of pain in 2006 and she has never returned to work as a District Nurse since that time.
In 2009 she commenced doing some light, part-time pastoral care work with the Gisborne Church of Christ. In 2010 and 2011 she did some teaching at Victoria University. She has undertaken studies in aged care and pastoral work, which may increase her ability to take on further pastoral care work with the Gisborne Church of Christ.
…
She presented in a pleasant and cooperative way. She had excellent recall of her detailed medical history.
There was no elaboration of the physical signs on examination.”[44]
[44]Exhibit 2, DCB 5−6
90 Mr Simm reviewed a number of radiological investigations. In particular, he noted the CT scan of 21 March 2005 as follows:
“Central disc protrusion at L5-S1 contacting the nerve roots on the left.”
91 The MRI scan of the lumbar spine of 27 September 2005:
“I noted mild degenerative disc desiccation at L5-S1 with minimal posterior central disc bulging.”
92 The MRI scan of the lumbar spine of 3 April 2008:
“I reviewed this investigation and noted early changes of degenerative disc desiccation at L5-S1 with a small focal central disc protrusion. … The pathology was mild but the Radiologist reported that the disc appears to contact the exiting right L4 nerve root. I believe it is more likely to be contacting the right L5 nerve root.”[45]
[45]Exhibit 2, DCB 7
93 Mr Simm’s diagnosis was one of −
“…chronic spinal pain syndrome in the presence of degenerative lumbar pathology. Her initial symptoms were mostly pain extending from the right buttock down into the right lower limb. These symptoms were interpreted as sciatica or referred symptoms from the lumbar spine, but there is good evidence that the initial symptoms may have been due to trochanteric bursitis from degenerative changes involving the insertion of the glutei into the greater trochanter. She subsequently developed low back pain and a patter of referred pain into the right lower limb extending to the foot, consistent with pain arising from the level of the lumbar spine. The MRI scan shows moderate changes of facet joint hypertrophy, associated lateral recess/foraminal stenosis, mild to moderate degenerative disc desiccation with some associated mild disc protrusion.”
94 Further, he stated:
“I was unable to establish a specific diagnosis for her low back pain and referred pain into the right lower limb, but the pain is consistent with pain arising from lumbar disc degeneration or alternatively pain arising from facet joint arthritis with some associated lateral recess stenosis causing nerve root irritation. The provocative discogram implicated the degenerate L5-S1 intervertebral disc, but a nucleoplasty of the L5-S1 intervertebral disc did not influence the symptoms. The diagnosis was then right L5 nerve root irritation in association with subarticular stenosis from facet joint hypertrophy. Surgery was directed towards this diagnosis with some improvement. This gives some support for the diagnosis of nerve root irritation in association with degenerative changes, but she continued to have severe back pain and right lower limb pain, to the point where she had the requirement for strong analgesic and neuropathic medication and a further radio-frequency denervation procedure. This is an indifferent response to the surgery and the diagnosis of right L5 nerve root irritation has not been determined with certainty. She has mechanical low back pain, referred symptoms into the right lower limb with clinical features of a chronic pain syndrome requiring a long period of specialised chronic pain management. There is now evidence of significant improvement, although her activity tolerance is still extremely low and she is confined to sustaining static postures for very short periods of time.”[46]
[46]Exhibit 2, DCB 8−9
95 This exhaustive diagnosis, together with the clinical course thus described by Mr Simm and the other medico-legal examiners, leads me to the conclusion that the pain and suffering consequences of the lumbar disc injury are such that they are clearly able to be categorised as “more than significant or marked” and as “at least very considerable”, as required by the legislation. The plaintiff’s need for strong opioid medication, together with loss of her career as a nurse, would lead to this conclusion.
96 Mr Simm, however, considers that there is not the relevant work relationship with the injury. He states:
“There was no history of a particular incident or incidents in the workplace. She did not relate the onset of her symptoms to any particular work activities. The symptoms in the back and the right lower limb came on insidiously. Her work was only moderately physically demanding and I do not believe epidemiological studies would support any relationship between the clinical course of the degenerative pathology in the lumbar spine and employment.”[47]
[47]Exhibit 2, DCB 9
97 In his second report dated 27 August 2013, Mr Simm re-examined the plaintiff. He noted that her increased workload as an aged-care chaplain had resulted in some deterioration of her back pain. He also took the following history:
“She first noted symptoms in the right lower limb in 2002. She was working as a nurse, doing night duty at the time. The symptoms were thought to be sciatica and were troublesome whilst she was working.”[48]
[48]Exhibit 2, DCB 11
98 On neither occasion does Mr Simm take a history of what activity the plaintiff was performing in 2002 “as a nurse, doing night duty at the time”. As already stated, I accept the plaintiff’s evidence as to the mechanism of the initiating incident. I also accept her evidence that she had symptoms of sciatica thereafter, and note Mr Simm’s history that the symptoms “were troublesome whilst she was working”.
99 Because of the limited history taken by Mr Simm as to what exactly was the “physical assistance of clients required” in the performance of her duties, I prefer the evidence of the plaintiff’s medical practitioners, as already cited. In my view, the lack of evidence of actual work activities producing symptoms contemporaneously between 2002 and 2005 is not fatal to the plaintiff’s claim in this regard – see Grech v Orica Australia Pty Ltd & Anor,[49] where his Honour Ashley JA stated:
“I think that it would be wrong in principle to necessarily equate injury with the development of symptoms. That is so although in many cases, of course, occurrence of injury and onset of symptoms will be contemporaneous.”
[49](2006) 14 VR 602 at paragraph 77
Findings
100 On the evidence before me, I find that the plaintiff has suffered injury to her lumbosacral spine by way of disc degeneration which has arisen out of and in the course of her employment with the defendant and that the employment was a significant contributing factor to the production, recurrence, aggravation, acceleration, exacerbation and deterioration of that degenerative disc condition.
101 Leave will be granted to the plaintiff to commence proceedings at common law in respect of the injury for pain and suffering damages and loss of earning capacity damages.
102 I will hear the parties as to any consequential orders.
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