Marchmont v Peninsula Health
[2011] VCC 864
•19 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01464
| DENIZ ELIZABETH MARCHMONT | Plaintiff |
| v | |
| PENINSULA HEALTH | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 May 2011 |
| DATE OF JUDGMENT: | 19 May 2011 |
| CASE MAY BE CITED AS: | Marchmont v Peninsula Health & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 864 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to lower back – whether the pain and suffering consequences were at least very considerable: section 134AB (38)(c).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O'Dwyer SC with | Ryan Carlisle Thomas |
| Mr C Nettlefold | ||
| For the Defendants | Mr I Gourlay | Hall & Wilcox |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the course of her employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr P O'Dwyer SC appeared with Mr C Nettlefold of Counsel for the plaintiff and Mr I Gourlay of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is her lower back.
5 The following evidence was adduced during the hearing:
(a) The plaintiff gave evidence and was cross-examined; (b) The plaintiff tendered her Court Book (“PCB”), pages 23-74B: Exhibit A; (c) The defendants tendered their Court Book (“DCB”), pages 1-118: Exhibit 1; (d) Film taken of the plaintiff on 7 and 13 December 2007: Exhibit 2; (e) Film taken of the plaintiff on 8 and 9 January 2009: Exhibit 3; (f) Film taken the plaintiff on 15 May 2010 and 17, 18 and 19 October 2010: Exhibit 4. 6 The application is brought under the definition of “serious injury” contained sub-s. (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999. (b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future. (c) Sub-s.(38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”. (d) Sub-s. (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise. (e) In conformity with Barwon Spinners Pty Ltd and Others v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s. (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application. [1] (2005) 14 VR 622, at paragraph 11
8 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Incident
9 The plaintiff was born on 28 June 1972. She is a married woman with one child. Her husband works in the IT industry.
10 The plaintiff entered the world of nursing as a nursing aide. She subsequently obtained a degree in nursing. She is now a Division I Registered Nurse.
11 The plaintiff commenced working in 1995 at the Frankston Hospital, where she worked while obtaining her nursing degree. Subsequently, she successfully applied for a position with the first defendant in one of its divisions known as the Rosebud Rehabilitation Facility.
12 On 17 June 2006, the plaintiff was carrying a garbage bag full of adult nappies which were adulterated with urine and faeces. It weighed about 20 kilograms. The plaintiff swung the bag in order to deposit it into a bin. The top edge of the bin was at about the height of her navel.[2]
[2] Transcript 9-11
13 In the course of undertaking that activity the plaintiff felt sudden sharp pain in her lower back.
The Plaintiff's Medical Treatment
14 The plaintiff reported the incident. The pain she was experiencing persisted. She saw Dr Gopathy, general practitioner, on 19 June 2006. He was of the opinion that the plaintiff was suffering from mechanical lower back pain.
15 The plaintiff was due to return to her next shift on 24 June 2006. She rested in the ensuing period. On her return to work she was able to tolerate the work she was required to undertake despite experiencing pain. She was assisted by her colleagues who covered for her. I infer that they assisted her in avoiding tasks which were likely to aggravate the condition of her lower back.
16 On 25 November 2006, the plaintiff returned home from work. Her daughter, who was then about four years of age, handed her a garden hose which had a trigger nozzle attached to it. The plaintiff leaned forward, and as she did so, reaching out for the trigger nozzle end of the garden hose, she was met with severe pain.
17 In addition to experiencing severe pain, the plaintiff also experienced pain extending down both of her legs. She had experienced a pulling sensation in her buttocks between the date when the incident occurred and 25 November 2006, but no pain extending beyond her buttocks and into her legs.[3]
[3] Transcript 18
18 The aggravation which occurred on 25 November 2006 altered the course of events for the plaintiff dramatically. Dr Gopathy referred the plaintiff to have a CT scan which was taken on 12 January 2007. The radiologist concluded that there was a small right-sided paracentral disc protrusion at L4-5, possibly impinging the right L5 nerve root.[4]
[4] PCB 73
19 Dr Gopathy referred the plaintiff to Mr Drnda, neurosurgeon, who saw the plaintiff in February 2007. Mr Drnda referred the plaintiff to have an MRI scan which was taken on 13 February 2007. With the assistance given to him by the MRI scan, Mr Drnda formed the following opinion:
“MRI scan basically showed a small protrusion at L4/5, not even contacting the nerve roots. At L5/S1 there is a midline small protrusion, again not contacting the nerve roots. The pain is therefore referred from the L4/5 disc; maybe occasionally it can reach the L5 nerve root cause some irritation.”[5]
[5] PCB 74B
20 Mr Drnda was also of the opinion that surgery was not called for. He suggested that the plaintiff lose weight, exercise regularly, and change her vocation inside the field of nursing.
21 The plaintiff’s treatment was subsequently undertaken by Dr Gopathy and Dr Nictas, osteopath. The plaintiff first had osteopathic treatment on 26 April 2007 and has continued having the treatment about once a month.[6] Dr Gopathy provides the plaintiff with prescriptions for Panadeine Forte, Voltaren and Norflex. On average the plaintiff uses Panadeine Forte four times a week; Voltaren daily, and Norflex daily. The quantity of medication the plaintiff takes depends on the degree of pain she is experiencing.[7]
[6] PCB 50-56B, and Transcript 7, 19 and 21
[7] Transcript 7-8
22 The plaintiff's husband is a trained masseur. He provides the plaintiff with massage regularly. The only other treatment the plaintiff has obtained is a form of hydrotherapy where she attended a pool for exercise which she found very difficult, which I infer was due to pain.[8]
[8] Transcript 20
Other Medical Opinions
23 An analysis of the opinions of medical practitioners who examined the plaintiff on a medico-legal basis discloses broad agreement that the plaintiff probably suffered an aggravation of degenerative changes to her lower back and a disc injury consistent with the initial diagnosis made by Mr Drnda.
24 Mr Brownbill, neurosurgeon, examined the plaintiff on 25 November 2009 and 27 April 2011. In his second report dated 28 April 2011, he concluded that the plaintiff had suffered an aggravation of pre-existing asymptomatic lower lumbar spine degenerative changes with an associated disc derangement.[9]
[9] PCB 61C-61D
25 Mr Brearley, surgeon, examined the plaintiff on 7 December 2009 and in September 2010. In his second report dated 21 September 2010, he concluded that the plaintiff had suffered a disc injury at L4-5 at L5-S1.[10]
[10] PCB 68-69
26 Mr Doig, orthopaedic surgeon, examined the plaintiff in December 2009 and March 2011. In his second report dated 5 March 2011, he was of the opinion that the plaintiff had suffered disc degeneration of L4-5 and L5-S1 for which her work was a significant contributing factor.[11]
[11] PCB 72B, and for an explanation of the mechanism of the injury at PCB 72
27 Mr Shannon, orthopaedic surgeon, examined the plaintiff for the defendants on 28 April 2008 and 3 March 2010. In his third report dated 5 March 2010, he concluded that the plaintiff suffered disc degeneration in her lumbar spine complicated by a low back strain and a small disc protrusion.[12]
[12] DCB 34
28 Mr O'Brien, orthopaedic surgeon, examined the plaintiff for the defendants on 8 September 2008. In his report dated 18 September 2008, he concluded that the plaintiff was suffering from degenerative changes in the lower two lumbar discs. It was not his clinical impression that there was any nerve impingement. However, he also concluded that the plaintiff’s history of complaints of pain suggested chronic discogenic pain with episodes of severe incapacitating lower back pain and some referred leg pain without nerve root involvement.[13]
[13] DCB 37-39
29 Dr Brown, occupational physician, examined the plaintiff for the defendants on 22 June 2010 and 27 April 2011. In his second report dated 27 April 2011, he concluded that the plaintiff had suffered from mild uncomplicated lower back pain. He considered that the contribution by the plaintiff’s work to the development of a lower back pain had long ceased, and that the pain was related to the usual natural history of constitutional back pain.[14]
[14] DCB
30 Dr Brown stands alone in his opinion that the source of the plaintiff's lower back pain is constitutional and no longer related to the incident. I reject his opinion. It is difficult to reconcile his opinion against the opinions of Mr Drnda, Mr Brownbill, Mr Brearley, Mr Doig, Mr Shannon and Mr O'Brien. I was informed that Mr Brearley is a general surgeon, but I know that the others are surgeons with a specialty in the treatment of spinal complaints.
31 Dr Brown does not have the same medical background as the surgeons to whom I have just referred. They are surgeons of the highest rank whose opinions I prefer over Dr Brown’s. Whilst I have no basis to doubt Dr Brown’s expertise in occupational medicine that expertise does not match up against the opinions of a body of surgeons with a special interest in the treatment of spinal complaints.
32 Mr Gourlay referred me to passages from some of the reports for the purpose of demonstrating that when the plaintiff was subjected to physical examination she showed a level of freedom of movement inconsistent with a person who has suffered an impairment of function of her lower back of any significant magnitude.
33 However, to look at the product of examinations in a vacuum is to miss the point. The examining medical practitioners no doubt relied upon the histories obtained from the plaintiff, the results of their examination of the plaintiff, and relevant radiology. It seems to me that it was the aggregate of those three factors, together with the skill possessed by the examining medical practitioners, that is at the base of the opinions which they expressed.
34 Save for Dr Brown, there is unanimity amongst the other examining medical practitioners that the plaintiff had radiological appearances of degenerative changes in her lower back. However, on the basis of the radiology, histories and examination, they all seem to have come to the conclusion that there is discal involvement in the injury complex of the plaintiff.
35 Furthermore, they were of the opinion that the plaintiff could not return to her former work as a nurse undertaking the same tasks which she was required to undertake prior to the incident.
36 For example, Mr Brownbill concluded that the plaintiff would be restricted in her employment and related activities to a moderate to marked degree and that such incapacity would continue for the foreseeable future. He also concluded that the plaintiff would be likely to be restricted in her social, domestic and recreational activities to a moderate to marked degree and that such incapacity would also continue for the foreseeable future. He was very specific when he referred to the sort of restrictions which he considered reasonable to impose upon the plaintiff, namely, the avoidance of heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
37 Mr Brownbill was also very specific when he referred to the plaintiff not being able to work in excess of three nightshifts per week as a nursing supervisor. He considered that such restrictions were permanent.[15]
[15] PCB 61D. The other medical practitioners expressed similar opinions – Mr Brearley at PCB 69-70; Mr Doig at PCB 72B; Mr Shannon to a lesser extent than Mr Brearley and Mr Doig, at DCB 33-34, and Mr O'Brien who gave a consistent opinion to Mr Shannon at DCB 38. Although differing on the question of causation, Dr Brown expressed a similar opinion to Mr Shannon and Mr O'Brien at DCB 44D
38 Dr Gopathy provided six reports tracking the treatment he has provided the plaintiff and her progress from the first occasion on which he saw her on 19 June 2006. In his last report dated 24 February 2011, he expressed the opinion that the plaintiff was suffering from ongoing chronic lower back pain requiring analgesics; that she would be severely limited in her activities, and unable to lift weights or drive long distances and enjoy general life activities, but noting that she had learnt to cope with and manage her pain.[16]
[16] PCB 49A
39 Mr Gourlay did not submit that the aggravation of 25 November 2006 should be considered as an intervening event, but rather as a relatively innocuous event which produced significant symptoms to an already injured lower back. I considered, on the basis of all the medical evidence, that no other conclusion was open.
Serious Injury
40 The plaintiff returned to work after the incident until the aggravation of 25 November 2006. She was absent from her employment for about ten days. Subsequently, she was treated by Dr Gopathy and Mr Drnda.
41 The plaintiff subsequently undertook retraining as a nurse educator. She said that she could not now do that work because of the necessity to sit and stand for significant periods of time in a classroom, and because of the necessity to sit for significant periods of time correcting exam papers.[17]
[17] Transcript 65-66
42 At present she works at a nursing home which comprises a 140-bed facility. She is a nurse supervisor. She worked nightshift from 10.00 pm to 7:30 am every Tuesday, Wednesday and Thursday. The description given by the plaintiff of the physical demands of that work suggest to me that it is light work, as distinct from the heavier physical demands required of a nurse in the previous role in which she worked.[18]
[18] Transcript 5-6
43 Mr O'Dwyer opened the plaintiff's case on the basis that one of the major losses suffered by the plaintiff was her inability to obtain further qualifications in nursing, and in particular, as a midwife. The plaintiff said that she could no longer tolerate the physical demands which would be required of her in midwifery.[19] The plaintiff said that it was her ambition to apply for a training position in midwifery.
[19] PCB 32 and Transcript 6 and 29-30
44 The plaintiff swore three affidavits on 20 November 2009, 15 November 2010 and 17 January 2011. The plaintiff says that she has pain all the time. The pain fluctuates, and is sometimes severe. It goes down into her legs, with her left leg being more affected than her right leg. She sometimes experiences numbness in her legs if she sits for too long on the floor when she plays with her daughter. She is unable to undertake gardening, go camping and enjoy the pleasures of a mother with a young child.
45 The plaintiff and her husband built a house at Carrum Downs. The plaintiff said that the design of the house paid attention to her lower back problems. For example, the kitchen benches are higher; there is no carpet requiring vacuuming; there are no steps, and the garden is very small, requiring little attention. [20]
[20] Transcript 36-39
46 Mr Gourlay showed the plaintiff a number of films. Each of the films was very short. The films taken on 7 and 13 December 2007 show the plaintiff shopping in a warehouse, getting into and out of her car, and driving her car. Mr Shannon saw a five-minute film taken in 2007.[21] The description he made of the film he saw is almost precisely the description of the film which I saw. In the absence of any submission made by Mr Gourlay on the subject, I accept Mr O'Dwyer’s submission that it is the same film. Mr Shannon did not think much of the film.
[21] DCB 25
47 The other films shown to the plaintiff were really not much different. Most of them involved the plaintiff getting into and out of her car – on one occasion carrying a box, and on another occasion carrying some papers with two small boxes on top of the papers. She put the foregoing into her car. There were degrees of modest bending and twisting, but nothing of any significance, or inconsistent with the film which Mr Shannon saw.
48 I am not prepared to undertake the role of a medical practitioner trying to diagnose what those films actually show and whether they are, to any degree, contradictory of the plaintiff's evidence. It seemed to me that the activities undertaken by the plaintiff were within the range of her capacity as described by Dr Gopathy, Mr Brownbill, Mr Brearley, Mr Doig, Mr Shannon and Mr O'Brien. None said she could not drive or carry objects.
49 Mr Gourlay cross-examined the plaintiff at some length regarding her distribution agreement with a company known as Mona Vie. It is the manufacturer and distributor of fruit juice. The plaintiff said that she applied to be a distributor, but has acquired the fruit juice for her own use and has only made a handful of sales to people she knows.
50 The plaintiff has a transfer on the rear window of her car (shown in one of the films) advertising Mona Vie. Again, Mr Gourlay cross-examined the plaintiff about whether that advertising was consistent with the plaintiff running a business. Although I detected some reticence on the part of the plaintiff to answer those questions spontaneously, leaving me in some doubt about the plaintiff’s credit, in the end all I have is some doubt about the quality of the plaintiff's answers with no other evidence to suggest that she is in fact carrying on such a business.
51 The plaintiff admitted to going on a ten-day cruise last year with her husband and daughter to Vanuatu, Fiji and New Caledonia. She said she loved it. However, she said that the trip had been booked some time ahead. She was concerned whether she would be able to undertake the cruise successfully, and said that a number of activities that she, her husband and daughter could have engaged upon were not pursued because of her concern about her ability to cope with them due to the condition of her lower back.[22]
[22] Transcript 62 and 67-68
52 The plaintiff admitted that she has attended venues in the City of Melbourne with girlfriends where live or disco music is played. The last one she went to was about three or four months ago. She was dropped off at the venue by her husband. She stayed there from 10.00 pm to 5.00 am. She described that, on the occasions she has gone to venues like that, she would stand, and sit when she needed to.[23]
[23] Transcript 39-40
53 Mr Gourlay submitted that I should conclude that the plaintiff has a level of pain which is tolerable; has a capacity to engage in a reasonable level of activity socially, domestically and recreationally; is able to work three long nightshifts as a nurse, and has a level of medical treatment which is not significant. He said all of these features do not amount to consequences which meet the statutory test for pain and suffering.
54 Mr Gourlay also submitted that I should have some caution in what of the plaintiff's evidence I accept given the quality of her evidence regarding the distribution agreement.
55 I accept the plaintiff's evidence that an incident occurred which resulted in her suffering an injury to her lower back. I accept that the innocuous incident reaching for the trigger nozzle of the garden hose was not an intervening event, but a worsening of the disc injury which the plaintiff had already suffered.
56 I accept the plaintiff's evidence that after the garden hose incident, her pain worsened to such a degree that she was experiencing increased pain in her lower back and pain in both of her legs. That is confirmed by the evidence of Dr Gopathy and Mr Drnda. Mr Drnda found abnormal pathology in the plaintiff's lower back consistent with a disc injury which he considered was caused by the incident.
57 I accept that the plaintiff gave a truthful and accurate account of her injury and its consequences to each of the subsequent examining medical practitioners who considered the plaintiff to be an accurate and reliable historian. It would appear she behaved when examined to the extent that each of the medical practitioners was able to obtain a reasonable picture of the plaintiff's clinical state in order to express an opinion with some confidence.
58 I see no reason why I should not accept the plaintiff's evidence, even though I have some doubt about her evidence regarding the distribution agreement with Mona Vie. It is something which the plaintiff should have referred to in her affidavits, and additionally the cruise which she went on and her infrequent social outings to music venues in the City of Melbourne. Each of these matters are of some importance for the purpose of a judge determining whether the pain and suffering consequences meet the statutory test.
59 Despite the shortcomings in the plaintiff's affidavits, and my view about the way in which the plaintiff gave part of her evidence, I am satisfied that I should accept the aggregate of the plaintiff's evidence as corroborated by the medical evidence and also by the affidavit of her husband sworn 27 January 2010.[24] I am satisfied that the plaintiff’s evidence is essentially reliable.
[24] PCB 34-35
60 It seems to me that what stands out in this proceeding is that the plaintiff has persistent pain. She requires the use of medication on a daily basis. The medication is significant prescription medication designed to be an effective treatment for serious pain.
61 The plaintiff's every activity requiring a full, free and unrestricted use of her lower back is affected adversely. Her capacity to sit, stand and move freely is significantly impaired. Her capacity to undertake general household duties, garden and to go on pleasurable outings, whether they be camping or day outings, has also been impaired.[25]
[25] Transcript 45
62 I accept the plaintiff's evidence that she began her journey into nursing at a humble beginning and has very probably worked hard to gain entry into university to obtain a nursing degree. I accept that she had an ambition to undertake general nursing, and to improve her nursing qualifications to enter the world of midwifery. I accept that she is now limited in what she can do with her nursing qualification, and that is entirely consistent with the medical evidence: for example, the opinion of Mr Brownbill.
63 I think the evidence bears out characteristics which are consistent with the plaintiff suffering pain and suffering consequences which meet the statutory test. It is clear enough to me that almost every aspect of her domestic, social and recreational life has been significantly impacted upon, as has her close relationship with her husband and her daughter.
64 Furthermore, her ambition to journey further into the world of nursing has been thwarted. She cannot undertake her former work, and is now limited to what I consider to be much lighter work of a supervisory nature. I accept that it was something of enormous importance for the plaintiff to have that ambition and to make strides to fulfil it. I do not accept that her capacity to shop, drive and go out socially with her girlfriends militates against the findings I have made of the plaintiff's pain and suffering consequences meeting the statutory test.
Conclusion
65 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering arising out of her employment with the first defendant.
66 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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