Mahboobi v Victorian WorkCover Authority
[2023] VCC 1150
•7 July 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-02264
| ZOIA MAHBOOBI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 24 April 2023 | |
DATE OF JUDGMENT: | 7 July 2023 | |
CASE MAY BE CITED AS: | Mahboobi v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1150 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to spine – injury to left shoulder – psychological injury – pain and suffering and loss of earning capacity consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179
Judgment: Leave granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Ms M Fudim | Zaparas Lawyers |
| For the Defendant | Mr R H Stanley | TG Legal + Technology |
HER HONOUR:
Introduction
1Mrs Zoia Mahboobi, the plaintiff, is a 47-year-old kitchen hand. She seeks the leave of the Court to commence a common law proceeding for both pain and suffering and loss of earning capacity damages.
2The plaintiff alleges she suffered injury in an incident at work on 20 September 2019 when she lifted a 20-litre drum of oil (“the incident”). The plaintiff relies upon injuries to her lumbar spine, her left shoulder and/or a psychological disturbance or disorder as the “serious injury”.
3The relevant legal principles are well known and were not in issue.
4The defendant accepted that the plaintiff suffered compensable injuries to her lumbar spine, left shoulder and a consequential psychological injury in the incident.
5The defendant contested the application with respect to the lumbar spine on the basis that the plaintiff had not established that the pain she experienced had a substantial organic basis, and it was submitted that the evidence does not enable identification of organic lumbar spine pain from psychological and/or functional pain.
6The defendant conceded that the plaintiff is beset by an earnest belief of pain and impairment. It was accepted that if the Court were to find that there is a substantial organic basis for the plaintiff’s lumbar spine pain, that the plaintiff has no work capacity for the foreseeable future because of it.
7The application with respect to the left shoulder was contested by the defendant on the basis that the plaintiff had not identified the impairment consequences referable to the left shoulder injury, and in any event, the symptoms had largely resolved.
8The application regarding a psychological disturbance was contested on the basis that this was an aggravation case and further that the impairment consequences did not meet the statutory threshold.
9For the reasons that follow, I find that the plaintiff has satisfied her onus to establish that her lumbar pain has a substantial organic basis. Having determined that issue in the plaintiff’s favour, the defendant’s concession regarding the plaintiff having no work capacity is operative. Leave is granted to the plaintiff to issue proceedings claiming pecuniary loss damages. Such leave also entitles the plaintiff to seek pain and suffering damages.
Background
10The plaintiff was born in Afghanistan. Her formal schooling ceased whilst she was in primary school because of the outbreak of war. Consequently, the plaintiff’s reading and writing abilities are limited.
11During her childhood, the plaintiff lived for a time in Pakistan. She migrated to New Zealand in about 1996, when she was 20 years old.
12The plaintiff subsequently came to live in Australia in 1999, when she was 23 years old.
13The plaintiff has three children aged approximately twenty-five, seventeen, and two years. The two older children are from her previous marriage. The plaintiff married her present husband in November 2019, about two months after the happening of the incident. Her youngest child is from her second marriage.
14The plaintiff was not employed whilst she lived in Pakistan or New Zealand.
15After migrating to Australia, her first employment was as a kitchen hand at the Home of Delicacies café (“the employer”) in Doncaster East in 2013. The plaintiff began working for the current owner of that café in mid-2015.
16The plaintiff had experienced back pain prior to the happening of the incident. Those occasions were short-lived, and the plaintiff did not require any specialist review.
17The plaintiff had also experienced some psychological problems in the years preceding the incident, precipitated by a marriage breakdown, her mother’s ill health and other situational difficulties.
18As a result of the incident the plaintiff experienced pain in her lumbar spine and left shoulder. She took Panadol and continued performing her pre-injury duties. She did not report the incident or injury to her employer at the time. The plaintiff’s evidence was that she thought her pain would improve, and she was keen not to lose her job.
19The plaintiff said that her lumbar and left shoulder pain increased over the ensuing weeks. She first sought medical treatment for her lower back pain when attending her general practitioner (“GP”), Dr Eva Leung on 22 November 2019. She first sought medical treatment for her left shoulder pain when attending her GP, Dr Mark Pretty on 10 December 2019.
20On 1 February 2020, the plaintiff reported the happening of the incident and her injuries to the employer. The plaintiff said she ceased work on 3 February 2020 as a result of increasing pain and restriction. She has not returned to work since. The plaintiff lodged a WorkCover claim on 5 February 2020, which was accepted.
21The plaintiff’s lumbar spine injury and left shoulder injury have been treated conservatively.
22She was referred to Professor Richard Bittar, neurosurgeon, at Precision Brain, Spine & Pain (“Precision”) in April 2020. He has reviewed her on several occasions, most recently 9 December 2022.
23The plaintiff has also been referred to a number of other practitioners at Precision for assessment and treatment, including Dr Ali Kian Mehr, rehabilitation physician, Dr Kilner Brasier, occupational physician, Dr Meena Mittal, pain physician, Dr Anna Devlin, health psychologist, and Dr Annabel Pollard, clinical psychologist.
24A number of studies have been performed of the plaintiff’s lumbar spine since the incident:
· X-ray - 10 January 2020
· MRI - 3 March 2020
· Isotope Bone Scan - 12 May 2020
· Nerve conduction study - 22 May 2020
· Standing MRI - 26 May 2020
25The plaintiff has undergone diagnostic tests including medial branch blocks and sacroiliac joint injections.
26The plaintiff has undertaken physiotherapy and hydrotherapy.
27However, the mainstay of the plaintiff’s treatment has been prescription analgesia.
28Whilst the plaintiff was pregnant with her youngest child, she was unable to continue taking prescription analgesia for her pain and her treatment at Precision was interrupted.
29The plaintiff’s current medication regime comprises the antidepressant Allegron, Imrest for sleep difficulties and Endone for pain.
30As far as her psychological condition is concerned, in addition to the practitioners at Precision, the plaintiff has attended psychiatrist, Dr Ehsan Rahimikia, on a regular basis.
The Plaintiff as a witness
31Mr Stanley, who appeared for the defendant, did not suggest that this was a case in which the credit of the plaintiff played a role, although he did submit the plaintiff was an unreliable historian.
32On the first day of hearing the Court became concerned as to the plaintiff’s capacity to understand some of the questions being asked of her despite her capacity to speak conversational English. Consequently, an interpreter attended on the second day of hearing.
33My assessment of the plaintiff as a witness was that she was an unsophisticated woman. She appeared to be in significant pain whilst giving evidence. She was generally straightforward and honest. She accepted many matters put to her by Mr Stanley in cross-examination, making numerous concessions.
34The plaintiff had significant difficulty remembering many aspects of her prior health difficulties. Whilst I accept that the plaintiff is an unreliable historian, she was nonetheless a genuine witness. Overall, I am satisfied that the plaintiff’s evidence as to her pain and restrictions ought to be accepted. This finding accords with the concession appropriately made by the defendant, that the plaintiff is genuinely beset by an earnest belief of pain and impairment.
What impairment consequences does the Plaintiff claim referable to the lower back injury?
35The plaintiff said that she experiences constant lower back pain of unpredictable severity. It is generally at a level of eight to nine out of ten on the visual analogue scale, rising to ten out of ten. At rest, her pain is at a level of five out of ten. At times, the pain radiates into her right leg, and at other times into her left leg. It is exacerbated by cold weather.
36The plaintiff deposed that her pain is aggravated by walking, standing or sitting for prolonged periods, and by bending and lifting. To combat the pain, the plaintiff said she resorts to lying down to rest.
37The plaintiff deposed that she was unable to lift anything weighing much more than a glass of water. She stated that she is heavily dependent on her family to assist her with everyday tasks.
38The plaintiff said that she has a walking tolerance of 15 minutes on a good day, and five minutes on a bad day.
39The plaintiff stated that pain disturbs her sleep. Even with medication to assist, the plaintiff said she is woken by back pain after three to four hours and struggles to get back to sleep.
40The plaintiff said her ability to participate in domestic activities, and shopping, is extremely limited.
41The plaintiff said she has difficulty caring for her youngest daughter. She stated that she avoids lifting her. She manages to put her into her car seat, though she does not do this often.
42The plaintiff deposed to being unable to drive long distances.
43The plaintiff said she tends to avoid social activities because of her ongoing lower back pain.
44The defendant did not contend that the Court ought not to broadly accept the plaintiff’s account of her impairment. The issues were the cause of her impairments, and if there was a substantial organic basis for them.
45This is a convenient point to examine the medical evidence tendered by the parties relevant to the issues in relation to the claimed physical injuries.
The medical evidence relevant to the lumbar spine
Treating doctors
Dr Mark Pretty, GP
46The plaintiff tendered a report from her GP, Dr Pretty, dated 13 February 2023.
47Dr Pretty noted that the plaintiff suffered from chronic lower back pain of complex origin, chronic pain with depression and anxiety, and left shoulder pain due to moderate subacromial bursitis with impingement. He noted the plaintiff had made little progress in the three years since sustaining the injuries and had no realistic capacity to work for the foreseeable future.
Professor Richard Bittar, neurosurgeon
48The plaintiff tendered three reports from Professor Bittar.
49Professor Bittar first saw the plaintiff on 16 April 2020, on referral from her GP, Dr Pretty. He has seen her on three subsequent occasions, most recently in December 2022.
50In his first report dated 16 June 2020, Professor Bittar noted that the standing MRI scan of the plaintiff’s lumbar spine performed on 26 May 2020 did not demonstrate any abnormalities. He opined that the nerve conduction studies performed on 22 May 2020 demonstrated right-sided L5 nerve root irritation. He noted that the SPECT-CT performed on 12 May 2020 “demonstrated increased radiotracer uptake in the right sacroiliac joint” and opined that “this could easily be related to much of her pain”.[1]
[1]Plaintiff’s Court Book (“PCB”) 26
51In his second report dated 27 November 2020, Professor Bittar referred to an earlier MRI scan of the plaintiff’s lumbar spine performed on 3 March 2020. He stated that this demonstrated disc bulging at several levels but no evidence of neural compression. Professor Bittar diagnosed the plaintiff as suffering from an aggravation of lumbar spondylosis and opined that the plaintiff’s employment was a significant contributing factor. He noted that the plaintiff’s prognosis was guarded and that she remained significantly symptomatic and disabled when last reviewed.
52In his third report dated 13 March 2023, Professor Bittar noted that the plaintiff had undergone diagnostic tests including sacroiliac joint injections and medial branch blocks, both of which were negative. He had been unable to find evidence of radiculopathy on examination.
53Professor Bittar maintained his diagnosis of an aggravation of lumbar spondylosis. Having been asked whether there was “an organic component” to the plaintiff’s pain with respect to her lumbar spine condition, he responded that there was. He identified the potential pain generators as the intervertebral discs, facet joints and sacroiliac joints. He noted that “changes on imaging are consistent with lower back pain and an organic basis for such pain”.[2]
[2]PCB 35
54He opined that the plaintiff’s condition had not improved at the time of his last review in December 2022. The plaintiff remained totally incapacitated for work. Professor Bittar suggested a trial of a spinal cord stimulator.
Dr Ali Kian Mehr, rehabilitation physician
55The plaintiff tendered two reports from Dr Mehr, rehabilitation physician, dated 2 November 2020 and 20 February 2023.
56Dr Mehr assessed the plaintiff on approximately 24 occasions between May 2020 and February 2023.
57In his report dated 20 February 2023, Dr Mehr diagnosed an aggravation of lumbar spondylosis, intermittent left lower limb pain due to mild irritation of the left L5 nerve root and bursitis and tendinitis in the left shoulder. Dr Mehr opined that the injuries were caused by the plaintiff’s work duties. He said the prognosis was poor as the plaintiff had not responded to treatment.
58Regarding the plaintiff’s lower back pain, Dr Mehr stated:
“Yes, I believe there is organic reason and this is aggravation of spinal spondylolisthesis, which has discogenic and facetogenic component.”[3]
[3]PCB 52
59Dr Mehr opined that the plaintiff had no capacity for pre-injury or suitable employment by reason of her physical lower back injury alone.
Dr Kilner Brasier, occupational physician
60The plaintiff tendered a report of Dr Brasier dated 16 June 2020.
61Dr Brasier appears to have examined the plaintiff only once. He noted that the plaintiff complained of constant lower back pain, predominantly in the right lumbosacral area and radiating into her right foot.
62Upon examination, she presented with an antalgic gait and was in obvious discomfort. Lumbar spine movement was globally restricted, and left shoulder movement was mildly restricted. Dr Brasier recommended the plaintiff participate in a pain management program.
Dr Meena Mittal, pain physician
63The plaintiff tendered two reports from Dr Mittal dated 6 May 2020 and 19 February 2023.
64Dr Mittal assessed the plaintiff on approximately 12 occasions between May 2020 and April 2022.
65Dr Mittal recommended the plaintiff undergo bilateral sacroiliac joint injections. When that diagnostic test was negative, she recommended bilateral L3/4, L4/5, L5/S1 medial branch blocks. The result was negative. Thereafter, the plaintiff underwent a lumbar medial branch radiofrequency neurotomy. The result of that diagnostic test was negative. Dr Mittal then recommended a trial of a spinal cord stimulator.
66Dr Mittal opined that the plaintiff’s lower back condition “was essentially secondary to myofascial pain and due to the duration of symptoms, had now become neuropathic in nature”.[4]
[4]PCB 68
67Dr Mittal was asked whether there was “an organic component” to the plaintiff’s lower back pain. She said she was sure that there was and clarified her response as follows:
“Mrs Mahboobi’s main cause of pain initially was that of myofascial spasm. Over time, due to persistence of myofascial spasm, she developed myofascial sensitisation, which has subsequently led to neuropathic pain of the lower back and bilateral lower limb.”[5]
[5]PCB 68
68Dr Mittal described the plaintiff’s incapacity as severe, and likely to continue for the foreseeable future. Dr Mittal stated that the plaintiff had no work capacity by reason of her physical back condition alone, and that incapacity was likely to last for the foreseeable future.
Medicolegal reports
Dr Hazem Akil, neurosurgeon
69The plaintiff tendered a report from Dr Akil dated 28 February 2023.
70Dr Akil examined the plaintiff on 28 February 2023. He noted that the plaintiff complained of continuing constant lower back pain affecting the middle of her lumbosacral region with radiation to her left leg and foot every two or three days especially after physical activities, as well as intermittent left shoulder pain occurring when lifting even light objects.
71As to the cause of the plaintiff’s back pain, Dr Akil stated:
“With regard to her lower back pain, it appears to be most likely coming from aggravation of lumbar spondylosis with a particular source coming from aggravation of sacroiliac joint on the right. The radiation of the pain towards the leg can be explained by the sacroiliac joint irritation.
The mechanism of injury is compatible with this particular symptom. I believe that the injury caused the pain in her lower back. This pain made worse by the psychological background of Ms Mahboobi.
…
There is an organic component to Ms Mahboobi’s lower back pain …
I did explain that the presence of right sacral iliac joint dysfunction as it is clear on the bone scan with SPECT views of 2020 can cause similar pain that she is complaining from and also can cause a referred pain towards the leg that can go all the way to the foot due to the irritation of the lumbosacral plexus at the sacroiliac joint level.”[6]
[6]PCB 75-76
72Dr Akil was of the view that the plaintiff’s prognosis was poor.
73Dr Akil did not comment on the plaintiff’s left shoulder condition, stating it was beyond his speciality.
Dr Eman Awad, occupational physician
74The plaintiff tendered a report of Dr Awad dated 17 March 2023.
75Dr Awad examined the plaintiff on 17 March 2023. He reported that the plaintiff complained of intermittent back pain of a severity of seven out of ten, increasing to nine out of ten by the end of the day. She reported that her pain radiated to her left leg with numbness in her toes. The plaintiff reported intermittent pain in her left shoulder, with pain precipitated by any movement of lifting or externally rotating her shoulder/arm.
76Dr Awad diagnosed an aggravation of lumbar spondylosis, and left shoulder subacromial bursitis. When asked specifically as to whether there was an organic cause for the plaintiff’s pain, Dr Awad said:[7]
“In my opinion there is an organic component to both her back and shoulder injury. She has spondylosis and bursitis which are causing her pain.
…
The pain [in] her shoulder is secondary to inflammation of the bursa and her back pain likely to be from her intervertebral discs.”
[7] PCB 91
Dr Sam Soliman, occupational physician
77The defendant tendered a report from Dr Soliman dated 12 March 2020.
78Dr Soliman examined the plaintiff on 11 March 2020 and conducted a worksite assessment the following day.
79Dr Soliman noted that an X-ray and ultrasound of the plaintiff’s left shoulder performed on 17 December 2019 revealed bursitis. He opined that she would benefit from a steroid injection.
80Dr Soliman further noted that the MRI scan of the plaintiff’s lumbar spine performed on 3 March 2020 was “completely normal”. He reported that the plaintiff walked slowly, leaning forward in a pronounced way. On examination, the plaintiff did not attempt to move her back at all. Dr Soliman opined that the plaintiff’s lower back pain was “highly likely to be a simple mechanical back pain. Ms Mahboobi presented with obvious functional overlay and extremely limited range of movements with no clinical explanation.”[8]
[8]Defendant’s Court Book (“DCB”) 8
81Dr Soliman thought the plaintiff was fit to resume her pre-injury duties with some restrictions.
82Given this report is now more than three years old it is of limited assistance in assessing the plaintiff’s current impairment.
Associate Professor Lynette Kiers, neurologist, and neurophysiologist
83The defendant tendered one report from Associate Professor Kiers dated 25 January 2023, which was prepared ‘on the papers’.
84Associate Professor Kiers opined upon the results of the nerve conduction study and EMG report performed by Dr Mehr on 22 May 2020 as follows:[9]
“The nerve conduction studies performed are adequate, although in most circumstances peroneal and tibial F wave responses would be recorded and a contralateral (left) peroneal to EDB distal motor amplitude would be recorded for comparison. EMG has been performed on 4 muscles, 2 predominantly innervated by the L5 nerve root and 2 innervated by the S1 nerve root. Paraspinal muscles were not examined. MUP analysis on one motor unit in right peroneus longus has been included. This is not usually performed for investigation of radiculopathy, but in any case is of no diagnostic value given MUP analysis requires recording of 20 different motor unit potentials and it appears that only 1 motor unit potential has been recorded using an automated program.
...
I do not agree with the conclusion of the EMG study. There has been over-interpretation of a mild subjective increase in polyphasic motor unit potentials in right peroneus longus and gluteus medius. This is not accompanied by any abnormality of recruitment pattern, motor unit potential amplitude or duration and is of uncertain clinical significance. In addition, there is no evidence of active denervation in any of the muscles sampled, so one cannot conclude that there is evidence of right L5 nerve root irritation. The latter would be manifested by increased insertional or spontaneous activity, which is not present.”
[9]DCB 110
85Essentially, Associate Professor Kiers concluded that there was an over interpretation of a very minimal abnormality.
86I note that the plaintiff was not seen or examined by Associate Professor Kiers.
Dr Graeme Brazenor, neurosurgeon
87The defendant tendered two reports from Dr Brazenor dated 28 October 2022 and 5 February 2023. Dr Brazenor examined the plaintiff on one occasion only, on 28 October 2022.
88Dr Brazenor was provided with reports from the plaintiff’s treaters at Precision, as well as radiological and clinical records. He considered and commented on this material.
89The plaintiff reported to Dr Brazenor that her back pain had not improved since she ceased working in February 2020. She described her lower back pain as her worst pain. It was exacerbated by standing for more than ten minutes, or bending. She also experienced pain in her left buttock and leg, down to the left foot.
90On examination, Dr Brazenor found that the plaintiff had a normal lumbar lordosis with no palpable spasm. There was no apparent wasting in any muscle group in the lower limbs. Tendon reflexes were normal and symmetrical at the knees and ankles, and plantar reflexes bilaterally downgoing. Sensation to pinprick was intact and symmetrical.
91Dr Brazenor was of the view that the plaintiff’s presentation during his examination was inconsistent, blatantly functional, and implausible at times. This conclusion was prompted by the following matters:
(a) The plaintiff was asked to slide her hands inferiorly on the anterior aspect of her thighs to effect lumbosacral flexion, but she halted at 2° stating she had sudden and sharp lower back pain. Dr Brazenor commented that this was “implausible”;
(b) Dr Brazenor opined that the plaintiff was “blatantly functional” when he tested power in her feet and ankles, with prominent “give-way” in plantar flexion and dorsiflexion at the left ankle. He said this was inconsistent with her ability to symmetrically raise herself on the balls of both feet and her heels when standing holding onto the back of a chair;
(c) Her supine straight leg raising to 50° was inconsistent with her demonstrated ability to sit in a chair and extend each knee to 180°. Dr Brazenor opined that the latter movement was consistent with supine straight leg raising to at least 75-80°.
92Dr Brazenor gave the following opinion in relation to the MRI of the plaintiff’s lumbar spine dated 3 March 2020:[10]
“This also showed a completely normal lumbar spine for Ms Mahboobi’s 43 years at that time, with mild T2-weighted signal decrease in the L2/3, L3/4 and to a lesser extent L4/5 discs, but excellent preservation of disc heights throughout, with no abnormality whatsoever of disc annulus. There is also seen age-appropriate facet joint degeneration at the lower three levels, only significant on the right side at L5/S1.”
[emphasis added]
[10]DCB 31
93As to the Isotope Bone Scan of 12 May 2020, Dr Brazenor opined:[11]
“This showed a single abnormality of a very mild uptake in the superior section of the right sacroiliac joint. This was so subtle that it does not appear on the whole-body black and white scans where the uptake in the sacroiliac joints in the AP views [is] normal and is symmetrical.”
[11]DCB 31
94With respect to the standing MRI of 26 May 2020, Dr Brazenor said:[12]
“This was completely normal apart from mild age-related facet changes. There has been absolutely no change when compared with the previous scan of 3 March 2020.”
[emphasis added]
[12]DCB 31
95Overall, Dr Brazenor described the findings on the radiology as follows:[13]
“The radiological record here is incontrovertible: it has been normal (and a good normal for someone 10 years younger than Ms Mahboobi) in all scans between 17 December 2019 and 5 January 2022. The discs have retained normal height and reasonably normal T2-weighted signal, with absolutely not a single departure from normal annulus contour at any level in this excellent lumbar spine. Furthermore, there has been absolutely no change in the appearance on scan between 29 January 2020 and 5 January 2022: powerful evidence that no structural injury was incurred in September 2019.”
[13]DCB 35
96Dr Brazenor further opined that the GP records gave “absolutely no support to the concept of shoulder or low back injury whilst in the employ of Home of Delicacies”. He referred to the plaintiff’s allegation of bullying by a co-worker and expressed the view that the plaintiff had an apparent grievance against the defendant.
97Given his findings on examination, and conclusions from the radiology and clinical records, Dr Brazenor stated:[14]
“… I believe that there is only [one] explanation that fits the observed facts. This is that since 2020 Ms Mahboobi has, in relation to her low back and left shoulder, been largely perpetrating a ruse. There is no pain generator in her lumbar spine, and the degenerative changes in her left shoulder are not due to injury.
…
There is no evidence for any injury in left shoulder or low back. If Ms Mahboobi had reported pain in either area on the day or within 48 hours, I would have admitted the possibility of a recoverable strain injury, but such is not the case.
…
If Ms Mahboobi did incur such strain injuries during her employ of Home of Delicacies, she has long since recovered from the symptoms.”
[14]DCB 35
98Dr Brazenor was subsequently provided with the report of Associate Professor Kiers dated 25 January 2023 and asked whether it changed his opinion. He said:[15]
“A/Prof Kiers has vindicated my suspicions of the report on the nerve conduction study dated 22 May 2020 by physician/rehabilitation specialist Dr Ali Kian Mehr. A/Prof Kiers is the ultimate authority in the interpretation of neurophysiological tests and I have complete confidence in her opinion.
Therefore, all of the conclusions in my report to you dated 28 October 2022 not only stand but are considerably strengthened by the vindication of my significant doubt regarding Dr Ali Kian Mehr’s report.”
[15]DCB 76-77
Dr David Vivian, musculoskeletal physician
99The defendant tendered two reports from Dr Vivian dated 11 January 2023 and 24 February 2023.
100Dr Vivian examined the plaintiff on 11 January 2023 by Telehealth.
101The plaintiff told Dr Vivian that she suffered from central back pain, with intermittent right lateral leg numbness and tingling to the outer two toes. Her back pain was always severe but was worse after maintaining any posture.
102Dr Vivian noted that the plaintiff no longer had any left shoulder pain.
103On examination via Telehealth, Dr Vivian noted that the plaintiff’s “movement from sitting to standing was laboured and accompanied by pain behaviour. In standing, she flexed to 10°, extended to 5°, side bent to 10°, and rotated to 30°. In sitting she rotated to about 10°”.[16]
[16]DCB 99
104Upon review of photographs of imaging provided to him, Dr Vivian opined that the MRI scans undertaken in 2020 and 2021 show:[17]
“Pristine discs of normal height without any T2-weighted change (thus, no disc desiccation), surrounding end-plate Modic change, disc prolapse or significant canal or lateral recess compromise. The inference is that there is very little chance that she sustained a disc injury.”
[17]DCB 99
105Dr Vivian opined that the plaintiff had a non-specific (ie idiopathic) chronic pain condition unrelated to any injury or non-inflammatory disease of the musculoskeletal system.
106Dr Vivian administered a central sensitisation inventory during his examination. The results indicated probable central sensitisation. Dr Vivian said:[18]
“This condition reflects underlying central nervous system processes that prime her to multiple system symptoms and has nothing to do with her work or any injury. Its presence is associated with anxiety, depression and chronic pain.”
[18]DCB 101-102
107Dr Vivian opined that:[19]
“The functional deficit and pain intensity suggest severe psychosocial contribution.
…
The examination revealed substantial non-organic features that could be consistent with abnormal pain behaviour or exaggeration.”
[19]DCB 102 and 103
108Dr Vivian thought that an auto-immune disease might be contributing to the plaintiff’s presentation. He recommended that contribution from inflammatory arthritis ought to be assessed, although its contribution would be minimal in comparison to the psychosocial factors. He concluded by opining as follows:[20]
“There is considerable abnormal illness behaviour that might relate to one or more of the following: abnormal illness behaviour, conscious exaggeration, unconscious exaggeration or secondary gain.”
[20]DCB 106
109Dr Vivian opined that if the plaintiff had sustained a significant back injury, she would have been in substantial pain within 48 hours.[21] The absence of pain of that magnitude in the weeks following the incident appears to have informed his opinion that the plaintiff did not sustain a back injury of significance in the incident.
[21]DCB 102
Mr Roy Carey, orthopaedic spine surgeon
110The defendant tendered one report from Mr Carey dated 6 February 2023. He examined the plaintiff the same day.
111The plaintiff reported to Mr Carey that she continued to experience constant pain in her lower back. She described her right leg as “okay” but reported that her left foot was intermittently numb. She described pain over both shoulders.
112On examination, Mr Carey noted the plaintiff walked slowly and deliberately with vocalisation and grimacing. On standing, her pelvis was level and lordosis was preserved. No paravertebral spasm was seen or palpated.
113Mr Carey noted an excellent range of shoulder movement, with no evidence of symptomatic subacromial bursitis.
114Mr Carey concluded as follows:[22]
“She describes very severe disability, but with no specific physical findings on examination, and with really no imaging findings which are concordant with any significant pathologies, and with effectively normal Nerve Conduction Studies.
…
Her presentation is not consistent with any specific localised physical injury. At best, she has developed an idiosyncratic psychological response to injury (a Chronic Pain Syndrome or Disorder) or, she is “perpetuating a ruse” as opined by A/Prof Brazenor. All other alternatives have been excluded.
…
It would seem that the specific incident 20 September 2019, for whatever reason, has now been overtaken by a florid idiosyncratic psychological response to injury (a Chronic Pain Syndrome or Disorder), or there is active intent to exaggerate ongoing discomfort and disability.”
[22]DCB 122, 123 and 124
Is there a substantial organic basis for the Plaintiff’s lumbar spine pain?
115In Meadows v Lichmore Pty Ltd,[23] Maxwell ACJ approved a two-step approach to disentangle physical and psychological pain and suffering consequences. The first step is to ask if there is a substantial organic basis for the pain and suffering consequences relied upon. If that question cannot be answered affirmatively, the next step is to disentangle the physical and psychological components of the pain and suffering consequences.
[23][2013] VSCA 201 at paragraphs [21]-[22]
116The defendant submitted that the answer to the first question was no. This was because the radiology and nerve conduction study did not reveal any cause for the plaintiff’s severe lumbar spine symptoms. Further, it was submitted that Dr Brazenor’s careful analysis of the radiology, clinical records and his more thorough examination of the plaintiff ought to be preferred.
117The plaintiff submitted that no challenge was made to the genuineness of her pain. The Court ought to accept the evidence of the treating specialists and Dr Akil and Dr Awad that there was a substantial organic basis for the plaintiff’s lumbar pain. Further, it was submitted that no psychiatrist had diagnosed a psychological pain condition.
118Dr Brazenor opined that the plaintiff had lumbar spine degeneration which might be regarded as typical for someone of her age. Indeed, his review of the various scans undertaken of the plaintiff’s lumbar spine identified T2-weighted signal decrease in the L2/3, L3/4 and L4/5 discs and age-related facet joint degeneration at the lower three levels of the plaintiff’s lumbar spine.
119Professor Bittar was of the view that the scans demonstrated disc bulging at several levels in the plaintiff’s lumbar spine, facet joint changes and increased radiotracer uptake in the right sacroiliac joint.
120I note the controversy regarding the nerve conduction study findings of Dr Mehr. I accept Associate Professor Kiers’ evident expertise but note that she acknowledges that there is some subjectivity in interpreting EMG findings. Associate Professor Kiers did not have the benefit of examining the plaintiff and interpreting the EMG findings in the setting of a physical examination or history from the plaintiff. In contrast, Dr Mehr consulted with the plaintiff on more than twenty occasions over an almost three-year period and appears to have been the practitioner who interpreted the EMG results. On balance, I therefore prefer Dr Mehr’s conclusions regarding the results of the nerve conduction study given the additional information available to him.
121The conclusions of Professor Bittar, Dr Akil and Dr Awad are that the plaintiff’s previously asymptomatic spondylosis was rendered symptomatic by the claimed incident. In other words, the bulging discs and/or degenerate facet joints, combined with aggravation of the right sacroiliac joint, are the plaintiff’s main pain generators.
122I note that Professor Bittar had the benefit of seeing the plaintiff on several occasions between 2020 and 2023.
123Dr Brazenor opined that the radiological record would be considered a “good normal” for someone ten years younger than the plaintiff. He stated that the fact that the findings on the radiology were unchanged in the period January 2020 to January 2022 was “powerful evidence” that the plaintiff did not sustain “structural injury” to her lumbar spine in the incident.
124I note that Dr Brazenor found support for his view by an analysis of the GP records – in particular, the absence of complaint of a work injury prior to November 2019. I do not accept that it is within Dr Brazenor’s expertise as a neurosurgeon to give an opinion on such aspects of GP clinical records.
125Further, I am not persuaded by Dr Brazenor’s analysis, which primarily focussed upon whether the plaintiff sustained a “structural injury” in the incident. I understand Dr Brazenor to mean that he was searching for signs of a frank injury. Such an injury is not required for an applicant to come within paragraph (a) of the definition of “serious injury” in the Act. To come within paragraph (a) of the definition of “serious injury” in s325(1) of the Act, the plaintiff must establish that she has a permanent serious impairment which has a substantial organic basis.
126Dr Brazenor opined the plaintiff has been “largely perpetrating a ruse”. I do not accept that opinion. First, it is an inappropriate comment. Second, the defendant’s case is not put on the basis that the plaintiff is consciously exaggerating her symptoms. Third, I have found that the plaintiff is genuinely beset by significant pain and restriction.
127Dr Vivian examined the plaintiff on one occasion, by videolink. His opinion regarding the injury sustained by the plaintiff appears to have been influenced by the fact that the plaintiff was not claiming substantial pain within 48 hours of injury. Whereas the defendant accepted that insofar as the plaintiff’s lumbar pain increased in the performance of her normal work duties between the date of the incident and the date she ceased work, such an increase in symptoms was accepted to be a progression, not an aggravation or new injury.[24]
[24]T152-153
128Further, Dr Vivian was given inconsistent accounts as to the nature of the plaintiff’s work duties as a kitchen hand. The plaintiff told him it was heavy work. Dr Soliman’s report suggested most work was at waist height and there was no heavy lifting. Dr Vivian accepted that the work was not heavy, concluding “[t]he ongoing work was not physically intense and would not have contributed to the pain and functional deterioration.”[25]
[25]DCB 104
129Because of the limits of Dr Vivian’s examination, and the conclusions of Dr Vivian regarding the progression of symptoms which were contrary to the case being put by the defendant, I am not persuaded by his opinion.
130Mr Carey examined the plaintiff on one occasion. His view was that the findings on imaging were not concordant with any significant pathologies, and the plaintiff’s presentation was, at best, an idiosyncratic psychological response to injury. I prefer the evidence of Professor Bittar, Dr Mehr, and Dr Mittal to the opinion of Mr Carey as each of them has seen the plaintiff on multiple occasions and their opinions better accord with the plaintiff’s presentation and the imaging findings.
131It was submitted by the defendant that even if it were found that there is an organic cause for some of the plaintiff’s lower back pain, the functional findings made by Dr Brazenor, Dr Vivian and Mr Carey, and the reference by the plaintiff to intermittent symptoms in her left leg and her right leg, cast doubt upon which of the plaintiff’s symptoms were functional, which were psychological, and which were physical.
132The plaintiff complains of very significant pain, and significant restrictions in her everyday functioning. The evidence supports a view that she is apprehensive to undertake some movements because of pain avoidance. That apprehension provides an explanation for many of the so-called ‘functional’ findings made by Dr Brazenor, Dr Vivian, and Mr Carey. Those matters do not cause me to doubt that the plaintiff’s lumbar pain has a substantial organic basis. I am fortified in that view by the opinions of the plaintiff’s treating specialists who have had the opportunity to assess the plaintiff’s presentation on multiple occasions since 2020.
133It is evident from the reports of Professor Bittar that the plaintiff does not have true radiculopathy. Her leg symptoms are referred pain from her spine. In those circumstances I do not accept that the fact that the plaintiff experiences variable leg pain is an indicator that such pain is not organic.
134I accept that the plaintiff has experienced lower back pain continuously since the incident. I prefer the opinions of the plaintiff’s treating doctors (Professor Bittar, Dr Mehr and Dr Mittal), and Dr Akil and Dr Awad, that the plaintiff’s lower back pain is most likely caused by an aggravation of pre-existing lumbar spondylosis and that there is a substantial organic basis for that pain.
135Given my finding that the plaintiff’s lumbar pain has a substantial organic basis, it is unnecessary to undertake the second step approved by the Court in Meadows v Lichmore.
Conclusion
136Considering my finding that the plaintiff’s lumbar pain has a substantial organic basis, the defendant’s concession regarding the plaintiff’s incapacity to work is operative. As it is conceded that the plaintiff is unfit for any work for the foreseeable future, she satisfies both the narrative test and the pecuniary loss test.
137Having determined that the plaintiff’s claim succeeds in relation to the plaintiff’s impairment due to her lumbar spine injury, it is unnecessary to consider the claimed left shoulder injury and the claimed secondary psychological injury.[26]
[26]Georgopoulos v Silaforts Painting Pty Ltd & Ors [2012] VSCA 179 at paragraph [109]
138Leave is granted to the plaintiff to issue proceedings claiming pecuniary loss damages in respect of her lumbar spine injury. Such leave also entitles the plaintiff to seek pain and suffering damages.
139I will hear the parties on the issue of costs.
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