Marriott v Woolworths Limited
[2014] VCC 854
•15 May 2014
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04305
| KYLIE ANN MARRIOTT | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 13, 14 May 2014 | |
DATE OF JUDGMENT: | 15 May 2014 | |
CASE MAY BE CITED AS: | Marriott v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 854 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – industrial accident – low back
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Aburrow v Network Personnel [2013] VSCA 46; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Acir v Frosster Pty Ltd [2009] VSC 454; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment:Leave granted to the plaintiff to bring proceedings for the recovery of pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr D J N Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Sparke Helmore |
HIS HONOUR:
1 This application for leave under the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of pain and suffering damages relies on a paragraph (a) injury to the low back as well as referred symptoms into the leg from nerve root compression. The impairment relied on is that of the spine. Leave is only sought for pain and suffering damages as the plaintiff has retrained for alternative employment since being injured in a heavy fall at work on 7 January 2008.
2 For the last two years she has worked for Melbourne Pathology since about April 2012. Her job involved collecting blood for analysis. She went to Melbourne and did a Certificate III course in pathology collection at the Western Hospital after it became clear her spinal impairment would not allow her to do any physically strenuous work. In her current job she can alter her posture and she can cope with the work within the limits of her spinal impairment. She is indeed fortunate in being able to take rest breaks for ten minutes every hour or so there is no heavy lifting with little bending also being required.[1] There are many jobs in which this would not occur.
[1]Plaintiff’s Court Book (“PCB”) 33
3 Accordingly the consequences in terms of loss of enjoyment of life need to be judged in comparison with other impairments in the range to see if the consequences can be fairly described as being “at least very considerable”.[2] That is the single issue for determination in regard to this admitted compensable injury.[3]
[2]Section 134AB(38)(c) of the Act
[3]Transcript (“T”) 7
4 Any psychological or psychiatric consequences are unable to be taken into account in this paragraph (a) application.[4] The plaintiff is a single lady aged forty years who really worked for the defendant all her adult life until the fall in a supermarket environment. She started on the checkout and progressed to other positions.[5] She suffered back symptoms requiring conservative treatment in 2005 and in 2007. It was very limited treatment. She only missed a few days off work.[6]
[4]Section 134AB(38)(h) of the Act
[5]PCB 24 to 25
[6]PCB 25
5 I accept her evidence that these early requirements for treatment for back symptoms were only temporary episodes of pain and had no consequences for her in respect of work or daily life at the time of the fall in 2008.[7] She was very active outside the workplace until that fall which resulted in her words:
“… landing heavily on my backside.”[8]
[7]PCB 25; T23
[8]PCB 28
6 Immediately she had a heavy feeling in her lower back. She had to leave work early and saw a local Ararat general practitioner, Dr Deary the next day.[9] Some basic facts indicate the level of her symptoms. Her treatment including prescription medications has really continued unabated now for almost six-and-a-half years, although tapering off in recent years.
[9]PCB 29
7 She returned to work on light duties but symptoms worsened. In the end she could not work on. I accept she has had occasions when her pain required conveyance by ambulance to hospital and this occurred on more than one occasion. It occurred for principally back symptoms but also there were depressive symptoms noted. She was an inpatient for between two and five days on the five or six occasions that she was admitted to hospital.[10]
[10]T25 and T27
8 To be closer to her family for support, she then transferred in her employment from Ararat to Bendigo in December 2008. This was after being treated by a number of practitioners in Ararat.
9 In Bendigo her care was taken over by the Bendigo Medical Centre from early 2009. Treatment included physiotherapy, hydrotherapy, Pilates and injections.[11]
[11]PCB 31
10 She was also treated by the Metropolitan Spinal Clinic in Melbourne. A Dr Du Toit managed her program.
11 I note the repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied that repeal. Nevertheless, clear, proper and adequate reasons are required. It is, however, not necessary in this application to describe the medical evidence in great detail as it largely speaks for itself.
12 I accept the defendant’s submission that psychological or psychiatric conditions have played a part in the plaintiff’s presentation and problems since the compensable low back injury was suffered. Psychological issues have been referred to by a number of practitioners and by the plaintiff.[12]
[12]PCB 12-13, 36a, 51
13 I do not find there is any psychological or psychiatric condition causing any impairment of function. The defendant has not even seen fit to have her examined by a psychiatrist. She got depressed by being in pain, stuck at home and without a job.[13] Her low back impairment, on all the evidence, is organically based.
[13]T37
14 I accept that her treatment proved to be of only some temporary relief on occasions, that she was required to be off work on doctors’ certificates for very long periods and that she became very concerned about a job that she had successfully managed for some fifteen years.[14] In these circumstances some understandable depression and anxiety were predictable, but they were not productive of any impairment.
[14]PCB 32
15 The low back injury, supported by clear pathology shown on radiology was the cause of her pain, disabilities and consequences in regard to her work and daily life. It resulted in her feeling isolated, in constant pain and restricted in activities that she wished to enjoy.[15]
[15]PCB 36
16 I accept that this is still the case. Accordingly there is no real disentangling exercise required. The consequences in this case are attributable to physical lower back injury.[16]
[16] Peak Engineering & Anor v McKenzie [2014] VSCA 67
17 The main consequence in this case has been constant and at times very severe low back pain. It has been like a “knife” going into her at times.[17] It has also been described as a “stabbing-like pain”.[18] I accept her oral evidence with respect to pain both in her back and down her leg.[19] Her condition has required a great deal of medications of different types.[20] Even now she needs it often. Each morning, during the day and at night is the usual regime.[21] For a lady only thirty-four years of age at the time of injury, to have to undergo such a regime of medication for daily pain indicates a very considerable consequence.[22]
[17]PCB 29, 33-35, 36a
[18]PCB 29
[19]T28-29, T32, T35
[20]PCB 30-31
[21]T47
[22]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Aburrow v Network Personnel [2013] VSCA 46; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
18 Dealing with the medical evidence, it is clear from the very start when the plaintiff saw the first of the Ararat Medical Centre general practitioners on 9 January 2008 that she needed narcotic medication.[23] She was getting “marked pain” and was no longer showing any improvement when the doctor saw her again on 31 March 2008.[24] Panadeine Forte was still being prescribed.[25] Also in this very early period, the general practitioner quoted a CT scan of the lumbosacral spine that he had requested that read:
“Disc protrusions in the lower lumbar spine as noted affecting particularly the right S1 nerve root.”[26]
[23]PCB 45
[24]PCB 47
[25]PCB 48
[26]PCB 48
19 By April, the doctor was reporting that the injury had regressed and she was unable to work and was hospitalised.[27] There was no mention of any psychological or psychiatric component to her problems at this stage.
[27]PCB 50
20 A further report from the same Ararat Medical Centre, this time authored by Dr M Connellan, was dated 14 May 2008. Dr Connellan had taken over from his colleague, Dr Deary. Now some references to depressive symptoms were recorded.[28] He reported there had been no change in her physical state however. He noted she developed typical lumbar pain and sciatica into the right leg. She had been tried with various analgesics and pain medication, but often with significant side effects. These were clearly major and resulted in excessive drowsiness, inability to stand and apparent weakness. All this led to the need for hospital admissions.
[28]PCB 51
21 Without hearing from this doctor or any doctor for that matter, on the probabilities I accept the medications prescribed to her for the back and sciatic pain had detrimental side effects.[29] Some depressive reaction was totally explicable when a thirty-four-year-old worker who wants to go to work is being admitted to hospital for days at a time.[30]
[29]T25 and T27
[30]PCB 51
22 The key to understanding the psychological impact and its cause is really found in the doctor’s statement that she had an injury at work which had disrupted her “normal functioning”.[31] I agree with that statement. I find the organic back impairment has led to the serious pain in her back and leg that has led to the need for medications and they have led to disturbing side effects which led to inpatient hospitalisation. I do not accept any psychological or psychiatric condition is causative of the relevant consequences in this case.
[31]PCB 52
23 On 8 May 2008, Mr H Williams, orthopaedic surgeon, in Bendigo reported back to Dr Deary in Ararat. Mr Williams had seen her regarding her sciatica in the right leg. He reported on about three hospital admissions and physiotherapy and said her pain was “characterised by an agonising pain” in the right buttock, right thigh and leg extending down to the ankle. He agreed with the CT scan of “findings of an L5-S1 disc prolapse causing pressure on the right S1 nerve root. This could fit with Kylie’s clinical presentation”.[32]
[32]PCB 53
24 The surgeon gave a prescription for Endone and save for her excessive weight, he obviously considered surgery an option but conservative treatment was advisable in the circumstances. Her very active treatment then shifted from the Ararat referral to Bendigo to a referral down to the Metropolitan Pain Clinic in Melbourne. She attended there in July 2008. Dr Du Toit reported the diagnosis as –
“… symptoms and signs of radicular leg pain most likely coming from the right L4, or right S1 nerve root.”[33]
[33]PCB 31
25 Epidural injection treatment then was tried in September 2008, July 2009 and August 2009. Only short-term relief seemed to follow.
26 After further CT and MRI scanning he concluded:
“… there were signs of a large L4-S1 disc protrusion extending towards the right, and compressing the right S1 nerve root.” [34]
[34]PCB 42
27 Conservative treatment was required but he also raised the prospect of spinal fusion surgery. I take that as indicative of severe symptoms in such a young patient. He last saw her in September 2009 and by that time she had moved across Victoria from Ararat to Bendigo for family support. He saw improvement but lower back pain was ongoing, and her condition was not stable.
28 He thought she was nevertheless able to cope. He last saw her in 2009, so the report is now quite out of date. The assessment required of me in relation to her consequences is an assessment now in May 2014. Her treatment was taken up by Bendigo general practitioners after she moved her residence there in December 2008. The large number of doctors from the Bendigo Medical Centre became her local treaters. Dr B Carroll and Dr S Snow saw her and a report of 25 January 2011 was provided.
29 Dr Carroll stated:
“Large L5-S1 disc bulge and subsequent right S1 nerve root compression which Kylie states was a result of a fall at work in January 2008. The patient’s description of the cause was consistent with her physical findings when I saw her in April 2009.”[35]
[35]PCB 38
30 Other medical conditions were mentioned including obesity. Candidature for Lap-Band band surgery was recorded that would improve the prospects of a return to work and minimise the chances of aggravating the back injury and back pain. It would also improve some other medical conditions which she had.
31 I find those other medical conditions not relevant to the consequences of the low-back impairment. [36] Two WorkCover certificates from November 2009 and January 2010 were tendered from this clinic.[37] They cleared the plaintiff as “expected to be fit for normal duties”. They are consistent with the plaintiff being desperate to get back to work. Unfortunately her employer would not take her back.[38] She became very miserable about this by mid 2010 when she was still off work.
[36]PCB 38
[37]Exhibit 2
[38]PCB 32
32 I do not read those WorkCover certificates as indicating the plaintiff was in any way symptom free in regard to back and sciatic pain when they are read in the context of Dr Carroll’s full report. [39] Clinical notes from this practice were also tendered.[40] These described other medical conditions and limited references to back symptoms in 2011 through to 2013. They do not assist. They are extremely brief, computer-driven notes and could not contain anything like a full record of what conversation took place between doctor, and patient.
[39]PCB 38-39
[40]Exhibit 5
33 In any event, apart from daily prescription medication that she still takes usually three times a day and trying to lose weight, there was little if any treatment advised to the plaintiff.[41] A single clinical note of an attendance in Ararat on 19 November 2008 was also tendered. It refers to an ankle complaint but it is in the context of “knee pain”. It does not advance this case in any way in assessing the low-back consequences now in 2014.
[41]T47
34 A final treater is Dr C Worme, a general practitioner, who started seeing the plaintiff in Bendigo in June 2013. She prescribed Tramadol and Mobic for back pain.[42] In April 2014, she diagnosed “lumbar disc prolapse with radiculopathy”.[43] The plaintiff continued to attend monthly for prescriptions. The doctor recorded that the plaintiff worked full time in a position not requiring lifting heavy objects while bending down. The plaintiff’s current employer has not been told about the back injury.
[42]PCB 54
[43]PCB 55
35 The report said the plaintiff could manage the job by standing and sitting. Her social and recreational activity was also limited by her back problem the doctor reported. I take it from the tenor of the report, the doctor had no disagreement with these complaints the plaintiff was making, or thought they were in any way unreasonable or inconsistent with her low-back condition.[44]
[44]PCB 56
36 All this treating medical evidence across three Victorian cities is consistent in diagnosis. It is also consistent with respect to very considerable pain as well as extensive treatment. It is also consistent with that treatment not making much if any difference with the need for prescription drugs still there after close to six-and-a-half years. I accept this body of treating medical practitioners as supporting daily pain in the low back and intermittent sciatic pain as being a very considerable consequence for this young woman. Injured at thirty-four years of age, she has a long life expectancy in which to deal with symptoms that I accept now are permanent. Her long life expectancy is relevant in this case.[45]
[45]Acir v Frosster Pty Ltd [2009] VSC 454; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
37 Turning to the medico-legal opinions, there is really no difference in respect to diagnoses of the low-back injury from that agreed to by all the treaters, apart from one aspect in Mr Shannon’s report. I accept the treaters’ evidence and find the plaintiff has discharged the onus of proving pain and suffering consequences that are “serious”. Nevertheless I will deal with the medico-legal opinions briefly.
38 Mr T Kossmann, orthopaedic surgeon, said in September 2013 that the diagnosis was –
“… discogenic back pain on the basis of a posterolateral disc protrusion at the L5-S1 level compressing the right S1 nerve root and multi-level disc desiccation.”[46]
[46]PCB 61
39 Surgery was a moderate to high chance. He thought she would suffer from pain issues in her lumbar spine that will require conservative treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. He said her condition was stable. [47]
[47]PCB 61
40 He put permanent restrictions on her work capacity and noted that she was to undergo Lap-Band surgery. As with the other doctors mentioned already, he did not comment that her being overweight caused her symptoms. I accept that is a reasonable opinion. She is a lady who has battled significant problems of weight for years before and after the 2008 fall. I find the impairment of body function of the low back was caused by the compensable injury and not from any obesity. It had not caused symptoms in all the years before the work injury and it is illogical to suggest it does now after the fall.
41 The defendant tendered two pages of notes from the East Grampians Health Service.[48] They do not assist the task of assessing pain and suffering consequences now, given they are both notes from March 2008. The first is a single injury about low-back pain in 2007, which on all the evidence I find is of no relevance to the 2008 compensable disc injury.[49]
[48]PCB 79-79
[49]PCB 78; T23
42 The second note is from a physiotherapist with a history of low-back pain “when slipped 6/12 ago”.[50] As already indicated there is no real evidence of the plaintiff suffering any back symptoms in the time before her fall at work. The defendant, her employer at that time for about fifteen years, has not placed any evidence before the Court of absences from work, complaints about her work or incapacity to perform her full-time unrestricted duties.
[50]PCB 79
43 The reports obtained by the defendant commenced with Mr H Weaver, orthopaedic specialist, who saw her in 2009 and 2010. These reports are quite dated now, but he thought in his first report:
“…she clearly presents with clinical CT and MRI evidence to suggest that Ms Marriott is indeed suffering from a degree of genuine intervertebral disc pathology.”[51]
[51]DCB 10
44 He thought in part her obesity was related to the problem, but the workplace accident substantially affected if not initiated the problem. After examination, he said that –
“… she is almost certainly suffering from some degree of genuine lumbar disc pathology.”[52]
[52]DCB 11
45 In his second report in 2009 he thought her obesity was likely to cause persistence of back pain. He did not change his view though that the pain was attributable to the compensable accident.[53] He considered her a well motivated individual and in order to work she would need a rotation of duties.[54]
[53]DCB 17
[54]DCB 18
46 His last report in March 2010 recorded improvement after a period of rest.[55] She was off work at this time. The plaintiff disagreed when put to her in cross-examination that she was basically asymptomatic at this time. I accept her evidence in that regard that she has never been asymptomatic since the compensable injury occurred. He thought she could work in full-time alternative work.[56] That has proved accurate as she has retrained and found suitable alternative employment that allows ten-minute rests every hour.[57]
[55]DCB 20
[56]DCB 21
[57]PCB 33
47 He did not see her again so his views do not assist in assessing pain and suffering consequences now over four years since he last reported. Mr M Wearne reported in 2001, so he, too, is out of date. He also diagnosed:
“… chronic low back pain and sciatica caused by lumbar intervertebral disc disease particularly at the L5-S1 level where there is radiological evidence of a posterolateral disc protrusion compressing the right first sacral nerve root.”[58]
[58]DCB 28
48 In some respects the report is hard to follow. He considered the work fall contributed to the pain but “the bulk” of the symptoms were now due to obesity. However, he then went on to give a permanent AMA percentage assessment of 10 per cent, but only took 3 per cent off for obesity, leaving 7 per cent work caused. While the percentages are not relevant to this application, 3 per cent is hardly “the bulk” percentage when the work percentage is 7 per cent.
49 He also thought light work with a number of restrictions was all her current incapacity amounted to. In any event, whatever his thoughts were about obesity, I do not find her obesity is causative of her lumbar spine impairment.
50 Mr M Shannon, orthopaedic surgeon, reported in 2013 and he diagnosed:
“… lower lumbar disc degeneration and has sustained a disc prolapsed presumably as a result of the incident at work.”[59]
[59]DCB 33
51 He then went on to say that she did not have much in the way of sciatica as he thought some leg symptoms were caused by meralgia paresthetica.
52 The part of the thigh where she had symptoms was apparently his reason for saying this, although sciatica, he said, would be consistent with pain in the ankle region. The plaintiff said she had symptoms that far down the leg.
53 So what the cause of that is, Mr Shannon does not adequately explain. Does he mean she suffers from sciatica as well as the “meralgia paresthetica”? He then concluded by saying:
“She is suffering from mechanical back pain associated with lumbar disc degeneration, and has a right sided lumbosacral disco protrusion.”[60]
[60]DCB 33
54 It is the same diagnosis throughout virtually all the medical evidence in this case.
55 I do not accept Mr Shannon’s solo opinion that she is suffering this additional condition on top of her disc degeneration. I accept the view of the vast majority of doctors in this application that she has disc pathology with nerve root compromise and that causes her leg symptoms. In any event, Mr Shannon said her symptoms and restrictions were consistent with his diagnosis of mechanical back pain disc degeneration, together with right-sided lumbosacral protrusion involving pain and pins and needles.[61] He considered there was no evidence of voluntary or involuntary exaggeration by the plaintiff of her symptoms or restrictions. I agree with that assessment of her.
[61]DCB 32-33
56 Finally, he said the ongoing medication was appropriate. A continuing need for Tramadol for this lady injured at only thirty-four years of age is of itself a very considerable consequence in terms of loss of enjoyment of life, indicating, as it does, a serious level of pain.[62]
[62]T47
57 At all times the plaintiff presented as an honest, reliable and accurate witness. She did not embellish her pain or incapacities, she presented as a person who faces her constant pain, takes her prescription drugs morning, noon and night and keeps working through her pain. Her motivation is not contested. She is not to be penalised for bravely getting on with life, going out and obtaining qualifications and finding very light alternative work that she can cope with having her rests every hour.[63]
[63]Haden Engineering Pty Ltd v McKinnon (supra); Sutton v Laminex Group Pty Ltd (supra); Aburrow v Network Personnel (supra)
58 In addition to the daily endurance of pain there are other permanent consequences I consider to be very considerable for a woman injured so young. The impact on her social life is of itself serious. To miss out on the fun of an island cruise when others are enjoying themselves is a great loss for a young tourist. She became physically upset when taken to that trip in cross-examination.[64]
[64]T49, PCB 26-27, 33; T43-44
59 To miss Christmas with severe back pain is another graphic example of the impact on her social life.[65] I accept that points to very severe pain. She recounted the problems around the house in her affidavits with respect to a number of very simple tasks that are impacted on. She was demonstrably emotional in court when describing having to call on family members to perform household tasks she used to do herself.[66]
[65]PCB 34-36
[66]T47-48, T50
60 In the end she best summed up her life. She accepted she was always in pain, but “I have to try and work my life around it”.[67] She bravely does so.
[67]T29, T32 and T35
61 For the above reasons I grant leave to bring proceedings for the recovery for pain and suffering damages.
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