Marshall v Caterpillar of Australia Ltd
[2013] VCC 1567
•30 October 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-11-03440
| KATIE MARSHALL | Plaintiff |
| v | |
| CATERPILLAR OF AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2013 | |
DATE OF JUDGMENT: | 30 October 2013 | |
CASE MAY BE CITED AS: | Marshall v Caterpillar of Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1567 | |
REASONS FOR JUDGMENT
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Subject: Accident compensation
Catchwords: - s134AB(16)(b) – Injury to the back – Pain and suffering only.
Legislation Cited: Accident Compensation Act 1985.
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 – Meadows v Lichmore Pty Ltd [2013] VSCA 2001 – Stijepic v One Force Group Aust. Pty Ltd & Anor [2009] VSCA 181.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti SC | Maurice Blackburn |
| For the Defendant | Mr J. Batten | Minter Ellison |
HER HONOUR:
Introduction
1. On or about 25 March 2005, the plaintiff suffered an injury when lifting heavy boxes in the course of her work for the defendant. This is an application brought by the plaintiff for leave pursuant to s. 134AB(16)(b) of the Accident Compensation Act 1985 (the “Act”) for damages for pain and suffering arising from this injury.
2. The plaintiff brings this application pursuant to clause (a) of the definition of ‘serious injury’ in s. 134AB(37) of the Act claiming to have suffered a permanent serious impairment of the function of her back.
3. There is no dispute that the plaintiff injured her back on in the course of her employment with the defendant on or about 25 March 2005. The issue is as to whether the injury she suffered amounts to being a ‘serious injury’ as defined in the Act.
The plaintiff’s background history and evidence
4. The plaintiff’s history was set out in her two affidavits sworn 9 March 2011 and 10 October 2013 and the plaintiff gave evidence. The plaintiff was born on 19 January 1985 so she is now aged 28 years. The plaintiff completed Year 12 in 2002 and at the end of 2002 commenced work with the defendant. She worked as a picker, which meant that she would work in the warehouse and handle items ranging in weight from a few grams up to 55 kilograms.
5. The plaintiff then moved to Sydney and spent some time there working as a real estate agent before coming back to Victoria and resuming work with the defendant in 2003. She came back to the same job as she had performed before. While the plaintiff suffered from occasions of back pain while working she accepted this as part of the physical work. She was involved in the picking and packing of parts. Some of these parts weighed only a few grams but others weighed 50 kilograms and sometimes more. The plaintiff worked under time pressure to get things done and the work was often very physically demanding.
The injury
6. The plaintiff suffered the injury to her back on or about 25 March 2005 when she was lifting a number of heavy boxes, each weighing about 40 to 50 kilograms or perhaps more. The pain she suffered was mainly in her mid-back area. She then recalled bending over to pick something up and feeling a much sharper pain come on. She stopped work and went to see the first aider. She had some ice put on her back and was able to go back to work, albeit in pain
7. The plaintiff saw Dr Sleigh on 30 March 2005 when she reported back pain after lifting boxes weighing 40 kilograms each on 24 March 2005. Dr Sleigh continued to review her throughout 2005. He organised for various radiological examinations, including an x-ray of her lumbosacral spine on 31 August 2005, which other than minimal degenerative changes adjacent to the L4/5 disc showed no abnormality .[1] As the plaintiff continued to suffer from back pain, he also requested an MIR, the conclusion of which was that there was minimal disc degeneration at L4/5 but no evidence of neural impingement.[2]
[1]Plaintiff’s Court Book (“PCB”), p. 132.
[2]PCB, p. 133.
8. Dr Sleigh referred the plaintiff to Spinal Management Clinics of Victoria for spinal strengthening exercises. She also saw Dr Yong, who issued a medical certificate on 19 April 2005 recommending restricted duties. In 2006, she attended Dr llina at the Coolaroo Clinic. In late 2006, she was referred to Dr Tunaley at the Northern Industrial Clinic.
9. The plaintiff worked on various light or restricted duties, varied her hours and also had some periods off work altogether. However, the pain and the limitations of her back injury were such that it started overwhelm her. As a result in 2006 she was referred to a psychologist, Ms Coral DeBoo.
10. In early 2007, the plaintiff was given some work as a receptionist and carried out desk-based work. This suited her better as she was able to avoid putting too much stress on the back. However, she had difficulties with back pain while being seated for extended periods and she had to stand up and stretch and move about as and when she could.
11. The plaintiff subsequently left work in May 2007, taking 12 months maternity leave for the birth of Ryan, who was born on 5 May 2007. The plaintiff did not go back to work with the defendant after going off on maternity leave and her employment was terminated in 2008.
12. In 2008, the plaintiff was referred to Dr Bruce Mitchell, who in late February 2008 performed a series of diagnostic blocks over her lower lumbar facet joints bilateral L3/4/5.[3]
[3]PCB, p. 35.
13. The plaintiff’s second child Elise, was born 6 April 2009 and In May 2010, the plaintiff went back to work .She worked at Katies Fashion Shop.(Katies) doing nine hours one week, a five hour shift and a four hour shift, and then twelve hours the next week, three shifts of four hours each.
14. The plaintiff deposed that, while she was working at Katies, she could vary her position and sit down for breaks when she could. She found that varying her position and activities stopped the pain from building up too quickly. However, it was inevitable that she would go home in considerable pain at the end of the shift, no matter what precautions she tried to take.[4]
[4]PCB, p. 13.
15. During this period, the plaintiff continued to see her general practitioner, Dr Tunaley about once every two months. She also continued to see Ms Coral De Boo approximately once a month. In addition, she saw Associate Professor Michael Wong, a consultant psychiatrist, for a period in 2008 to 2010.
16. In February 2013, the plaintiff began work as an office clerical assistant with Secura Scaffold, East Keilor, working part time, four days per week, six hours per day. Due to the nature of the sedentary work and a flexible employer she is able to cope without too many problems but believes she would struggle if the hours increased or if she worked four consecutive days. [5]
[5]See report Dr Horesley PCB p. 126.
17. In her second affidavit, the plaintiff stated that her back remains vulnerable, and that she is susceptible and at risk of having episodes of acute flare ups of back pain, which she struggles to tolerate. She is worried that her day-to-day activities will be affected by her ongoing back pain and symptoms in both legs for the foreseeable future.
The other medical conditions suffered by plaintiff
· In 2001 to 2003, the plaintiff was diagnosed with polycystic ovary syndrome.
· In 2006 she was diagnosed with anti-phospholipids syndrome. This was diagnosed because of multiple miscarriages.
· In 2008, she was diagnosed with ulcerative colitis. She is managed by the Inflammatory Bowel Disease Clinic at Box Hill Hospital and consults them on a two-monthly basis. She is currently in remission and has been in remission for 12 months.
· In 2012, she suffered persistent dizziness and blackouts. She was diagnosed with neurocardiogenic syncope and requires medication for this condition.
The plaintiff’s medical reports
Dr Kevin Sleigh, Consultant Occupational Physician:
18. Based on the history, examinations and the imagery obtained, it is Dr Sleigh’s opinion that the plaintiff is suffering from an internal disc disruption at L4-5 level in the lumbar spine. This is associated intermittently with muscle spasm in the lower lumbar spine and the loss of power of her lumbar stabiliser muscular. Secondary to, and associated with it, the plaintiff has developed reactive anxiety and depression associated with the injury and its impact on her ability to perform her usual duties.[6]
[6]PCB, p. 31.
Dr Bruce Mitchell, Pain Specialist:
19. Dr Mitchell performed diagnostic blocks over the plaintiff’s lower lumbar facet joints in February 2008 and reported that it had been proven with 95 per cent accuracy that the structure causing the plaintiff’s back pain was not her facet joints.[7]
[7]PCB, p. 35.
20. On 29 November 2012, Dr Mitchell reviewed the plaintiff who presented with pain in her low lumbar spine and upper posterior girdle. He reported that she continued to be tender over her sacroiliac joints and had signs of pelvic instability.
21. In Dr Mitchell’s opinion, the MRI scan from two years ago showed desiccation of the bottom three disc bulge at L3-4 and L4-5. These were normal findings in 70 per cent of asymptomatic 21 years old. The findings did not mean that “she has disc pain and did not mean that she does not have disc pain.”[8]
[8]PCB, p. 36.
22. Dr Mitchell believed that the plaintiff warranted investigation of her discs. He described her as “very genuine” and having “severe chronic pain which was stomatic in nature.”[9] He considered that, on the balance of probabilities, the workplace incident was the source of her pain.
[9]PCB, p. 37.
Dr Lilia Ilina, General Practitioner:
23. Dr Ilina saw the plaintiff at the Coolaroo Clinic on a number of occasions in 2006. On 23 January 2006, the plaintiff informed Dr Ilina that her employer had ignored her pleas for light duties, instead asking to do her do physically demanding jobs that involved repeated back bending, lifting parts up to 30-40 kilograms in weight.
24. When Dr Ilina last saw the plaintiff, on 10 February 2006, she had been off work for two weeks and her low back pain had improved greatly. Dr Ilina believed that the patient’s employment was a significant contributing factor to her low back pain because it was labour intensive and repetitive work. The plaintiff was capable of working modified duties, no heavy lifting more than 10 kilograms and no repeated low back bending.[10]
[10]PCB, p. 39.
Dr Scott Tunaley, General Practitioner:
25. There were eight reports from Dr Tunaley, who saw the plaintiff first on 12 July 2006 and continues to treat her. His diagnosis was chronic lumbar strain, possibly disc related, and an adjustment disorder. The injuries were consistent with the stated cause.
26. Dr Tunaley’s opinion in his early reports was that the plaintiff had a capacity for return to suitable employment with restrictions, no heavy lifting over five kilograms, to vary her posture regularly, to commence a graduated program but not to do any bending. However, due to psychological issues, she was not fit to return to suitable alternative employment.[11]
[11]PCB, p. 104.
27. In his report of 12 July 2013, Dr Tunaley reported that the plaintiff could not perform her pre-injury employment as a store person based on the description of the job given to him. Her incapacity to perform her pre-injury employment was permanent. She was coping with her current employment and still had pain.
28. In his final report of 1 May 2013, Dr Tunaley stated:
“Since my last report, there has been little change in Katie’s physical condition with continued back pain for which she uses simple analgesics and home-based exercises. Unfit for previous employment, fit for other jobs that involve less physical work, such as administrator work or office work. With regard to her back, pain continues which she tends to put up with as there is little else that could be offered. She states on a visual analogue scale the pain rates as 7, 8 out of 10 most of the time, with 10 out of 10 being the worst pain she has ever experienced. She suffers from chronic lumbar strain, adjustment disorder, depression, and associated suicidal ideation.”
29. Dr Tunaley’s notes of the plaintiff ‘s attendance on 4 June 2013 reveal that the plaintiff had been self managing as per best practice for her back injury and only came to see him for medication and referral for psychology or specialists.[12]
[12]DCB, p. 90.
30. On Friday 12 July 2013, he prescribed Diazepam for her mental health condition. He felt that it would help the plaintiff with anxiety and muscle spasm, which it did.[13]
[13]DCB, p. 90.
Dr Robyn Horsley, Occupational Physician:
31. In her report of 4 October 2012, Dr Horsley’s opinion was that the plaintiff had ongoing mechanical back pain related to heavy manual handling in March 2005. She had clinical symptoms suggestive of discal disruption, although the MRI (of 8 November 2005) did not confirm a discal disruption.
32. In her report of 1 May 2013, Dr Horsley’s diagnosis was that the plaintiff presented with mechanical back pain with no peripheral radicular component. The plaintiff still presented with symptoms suggestive of a discal disruption, although the most recent MIR from 2006 did not confirm an annular tear. The plaintiff had also developed a chronic adjustment disorder with mixed anxiety and depressed mood.
Professor Richard Bittar, Consultant Neurosurgeon:
33. In his report of 13 September 2013 Dr Bittar’ s opinion was that:
“Katie Marshall suffers from aggravation of lumbar spondylitis. The potential causes of her pain would include the intervertebral disc facet joints and sacroiliac joints. Her L4-5 and L5-S1 facet joints are likely to be the main cause of her pain, given her response to the diagnostic blocks.”
34. With respect to causation, in his opinion:
“Her employment has been a significant contributing factor, specifically her workplace activities undertaken while working for Caterpillar Australia Pty Ltd, and in particular, those undertaken on 25 March 2005’ remain the very significant contributing factors to her ongoing pain, disability and requirement for treatment.”
35. As to work capacity, he stated that:
“She is permanently incapacitated for her pre-injury duties as a store person She does have the capacity to work sedentary duties part time and is currently working 24 hours per week. Whilst she may be able to increase her hours slightly, it is extremely unlikely that she would be able to work full time hours even if in a sedentary role. In my opinion, her partial incapacity for work is permanent.”[14]
[14]PCB, p. 131.
Radiology reports:
36. The radiology results were as follows:
· X-ray lumbosacral spine, 24 August 2005:
“The L5-S1 disc is narrow but this in not likely to be of significance in the presence of transitional vertebrae. The other lumbar disc is satisfactory remain. Minimal degenerative changes are present adjacent to the L4-5 disc. No other bony or joint abnormality is demonstrated.”
· MRI scan, 8 November 2005:
“Conclusion: - Minimal disc degeneration but no evidence of neural impingement. No evidence of disc disruption.”
· MRI lumbar spine, 28 June 2006:
“Mild disc bulges noted at all levels from L1 to L4-5 inclusive. The bulge at L3-4 produces mild indentation of the anterior aspect of the theca. No evidence of significant neural impingement is seen within the range of the study.”
· MRI scan lumbosacral spine, 29 March 2010:
“Conclusion: - transitional lumbosacral vertebrae finding suggesting minimal low lumbar discogenic disease. Certainly no worse than that described on the 2006 examination. No disc protrusion or neural compromise.”
Opinion of the Medical Panel:
37. The Medical Panel, on 7 April 2006, provided:
“In the Panel’s opinion, the worker is suffering from L4-5 disc injury without radiculopathy and adjustment disorder with depressed and anxious mood relevant to the claimed back injury. In the Panel’s opinion, the worker’s incapacity for her pre-injury duties is still materially contributed to by the claimed back injury.”
38. The plaintiff is not capable of performing her pre-injury work.
Defendant’s medical reports relied on by the plaintiff
Mr Rodney Simm, Orthopaedic Surgeon:
39. In his report of 19 November 2012 Mr Simm diagnosed the plaintiff’s condition as being “mechanical thoracolumbar back pain. In his opinion:
“There are early changes of degenerative disc dissemination with disc bulging in the lowest three lumbar invertebral discs. These changes are not uncommon and are not necessarily associated with symptoms. However, it is thought that this pathology may be responsible for chronic low back pain and these degenerative changes may be contributing in this case. There are features of chronic pain response in the presence of an associated emotional disturbance. The later would have to be evaluated by a psychiatrist.[15]
[15]Defendant’s Court Book (“DCB”), p. 83.
40. He described the plaintiff as “presenting as a genuine person” and he accepted that there was “a level of chronic mechanical lumbar back pain which interfered with her ability to undertake sustained physically demanding activities.” The plaintiff was incapacitated for physical forms of employment but if she was provided with light non-physical employment, that allowed flexibility of sitting and standing, she could probably work full-time”.[16]
[16]DCB, p. 83.
41. In his most recent report, Mr Simm stated that:
“The pain has not improved since I last saw her and overall her condition is the same. She suffers from constant pain. She said today was a bad day. Her pain was 7 out of 10 on a visual pain scale during this interview. Pain normally varies from 4 out of 10 up to 9 out of 10. The high levels of pain may be associated with sustained physical activities such as vacuum cleaning. She again presented in a straight forward cooperative manner. There was no elaboration of physical signs. She presented as an intelligent genuine person but it was also my impression that she experiences quite an amplified pain response in association with an ongoing emotional disturbance. I believe her clinical cause is features of a chronic adverse pain response triggered by relatively minor physical injury in the work place. I believe her current condition has been triggered by the physical injury in the work place. I am not able to establish the diagnosis of a physical cause for her condition. Assuming that the work injury was an aggravation of a pre-existing degenerative disc pathology, the ongoing symptoms would suggest that there is an aggravation which has not ceased.”[17]
Plaintiff’s medical reports relied on by the defendant
[17]DCB, p. 86.
Associate Professor Michael Wong, Consultant Psychiatrist:
42. Professor Wong saw the plaintiff from 14 May 2008 through to 13 April 2010. His diagnosis at the time of the last consultation in April 2010, was that the plaintiff had an adjustment disorder with anxiety and depressed mood. The adjustment disorder was the direct result of her physical injury at work and the alleged additional stress imposed by her employer when she attempted to get proper diagnosis and treatment of her injuries and to go on Workcover.
43. At the time of the consultation, he considered that the plaintiff was not psychologically fit to return to work and regarding her lack of significant progress at the time, he thought she would remain so in the foreseeable future.[18]
[18]DCB, pp. 51-56.
Ms Coral DeBoo, Psychologist:
44. Ms DeBoo reported that the plaintiff first attended psychological treatment on 23 June 2006 when she was referred by her treating GP at the time, Dr Slesenger. In her report of 6 October 2008, Ms De Boo diagnosed a chronic pain condition with an adjustment disorder. In her opinion, there was a direct correlation between the injured back and the workplace incident. In addition, Caterpillars management of the plaintiff and her condition appeared to have caused stress and anxiety.[19]
[19]PCB, p. 63.
45. In her report of 29 March 2012, Ms De Boo reported on the plaintiff’s work for Katies as follows:
“With respect to her employment at Katies, she is working part time on weekends at a local retail store. Even this employment, although very inactive compared to her work at Caterpillar, has caused her some pain and suffering as described by Ms Marshall but she is reticent to ceasing employment because it assists the family financial.”[20]
[20]PCB, p. 76.
46. In her final report of 8 July 2013, Ms De Boo’s prognosis was that:
“Fortunately Mrs Marshall has found a suitable part time position which she is able to complete despite her medical restrictions regarding her back condition. Whether this is likely to continue indefinitely is up to Ms Marshall and her treating specialists.---- However, Ms Marshall’s back remains significantly injured and she has reported still affected by this condition. She has explained she has to accept that her back condition is ongoing and that pain can flare at any time.” [21]
[21]PCB, p. 91.
Mr T J Russell, General Trauma and Vascular Surgeon:
47. The defendant relied on thr reports of Mr T J Russell, dated 28 November 2005, who, given the history and in the absence of any evidence on MRI scan of a traumatic lesion, found it difficult to understand how the events occurring around August 2005 had been related in a significant and material way to the plaintiffs employment or to the previous injury.
48. Mr Russell stated:
“At the moment her symptoms are difficult to understand in terms of any specific injury or pathology. I presume the symptoms in the presence of a normal MRI scan and examination today would be expected to recover over a period of some one to three months with time and an exercise program. Her most recent return to work plan dated 3/11/05 offers work which is within her capabilities.”[22]
[22]DCB, p. 3.
Dr Mary Wyatt, Occupational Physician:
49. Dr Wyatt provided the defendant with five reports.
50. On 23 May 2008, Dr Wyatt reported that
“The key issue sought to be addressed is Ms Marshall’s capacity for work. From a physical perspective, Ms Marshall indicates she has continuous soreness to her back. She does a variety of lighter activities but obviously copes with the twelve month old child and babies are demanding on the back. She presents to be fit for a broad range of alternative employment including work in real estate, administrator or clerical duties and a range of other tasks listed in job seeking reports.”
51. In her report of 5 June 2009, Dr Wyatt reported that:
“It has now been some four years since the problem initially developed. It is unlikely that employment is a continued contributing factor to Ms Marshall’s back problem. It is noted that the problem developed on lifting a few particular boxes of heavier weight. That particular activity on one occasion is not the sort of activity that would result in a long term back problem. Over the time, I think the work contribution is diminished and the current problem is most likely constitutionally based. Capable of work avoiding repeated heavy lifting.”
52. Dr Wyatt’s opinion remained the same in her other reports. In her final report, of 13 December 2009, she commented on the Medical Panel’s opinion as follows:
“Three years have passed since the Medical Panel opinion was provided, and I consider that the situation has materially changed since the opinion in early 2006. I believe that Mrs Marshall’s capacity for work has altered from that time, and that the work contribution has diminished with the passage of time. I believe the situation in terms of work contribution has also materially changed since that time.”[23]
[23]DCB, p. 16.
Mr Robert Wilks, Psychologist:
53. On 3 July 2006, in relation to the plaintiff, Mr Wilks reported that:
“She is currently experiencing mild to moderate anxiety depressive disorder. The cause of her psychological disorder is her frustration and sense of failure and forced to stop work due to her back disorder and being unable to effect a full return to work. Her psychological disorder is secondary to her physical injury.”
Mr J L Sinha, Surgeon:
54. In his report of 31 January 2007, Mr Sinha commented that:
“Gross restriction. Spinal flexion demonstrated during this assessment was due to non-compliance and incompatible with three spinal movements observed during this assessment. Injuries of any sustained level of the lumbar spine have resolved.”[24]
[24]DCB, p. 25.
55. Mr Sinha did not believe that the injury sustained in March 2005 was materially contributing to any incapacity for work at the present. In his opinion:
“On a physical basis she remained fit to perform most of her so called pre-injury duties provided manual lifting is restricted to lifting objects no more than 7 kilos.”[25]
[25]DCB, p. 26.
56. In his report of 8 February 2008, with respect to the Medical Panel’s opinion of 7 April 2006 2008, Mr Sinha referred to the fact that this was some two and a half months prior to the MRI study of the lumbar spine on 28 June 2006. He stated that:
“This study revealed no evidence of any localised lesion in the L4-5 disc, in particular any degenerative or traumatic changes. In view of the findings of the assessment including the findings of the MRI scan, it would be reasonable to conclude that there has been an improvement of this worker’s condition including her capacity for work since the Panel’s assessment some nine months ago.”[26]
[26]DCB, p. 27.
Mr J Richard Ball, Pychiatrist:
57. In his report, of 2 June 2008, Mr Ball diagnosed:
“An adjustment reaction with some depression and anxiety entirely secondary to her physical problems and the consequences thereof. Primary incapacity alleged the perceived physical situation which is work related and her mental disorder is work related and is entirely secondary to her physical problem.”
Dr Simon Kennedy Clinical and Forensic Psychologist:
58. Dr Kennedy provided the defendant’s solicitors with five reports. In his final report, dated 24 September 2009 he diagnosed the plaintiff as:
“--suffering from an adjustment disorder with mixed anxiety and depressed mood with her psychological condition related to her physical state but also personality vulnerability to this disorder. Could now work from a psychological point of view.”[27]
[27]DCB, p. 55.
59. He also said:
“I provided a supplementary report on request which was provided on 28 July 2009. In this report I indicated that based on Dr Wyatt’s opinion that it was unlikely employment is a continued contributing factor to Ms Marshall’s back problem, on the basis that it was considered it was unlikely that employment was continuing contributing factor to her psychological state.”[28]
[28]DCB, p. 55.
Dr Timothy Entwisle Consultant Psychiatrist:
60. Dr Entwisle diagnosed the plaintiff as suffering from an adjustment disorder with depressed and anxious mood. His prognosis, in his report of 12 September 2013, was for continued improvement. From a psychiatric perspective, the plaintiff had capacity for her pre-injury duties or alternative duties and she could increase her hours in current employment. With respect to her back injury, he said:
“Mrs Marshall continues to assert that her back contributes to her various mood states and difficulties. My view is that her back injury is but one of a number of health problems she has had to deal with.”
61. At this point, Dr Entwisle believes she is working to capacity, 26 hours per week in an office administrative role with a flexible employer. By the end of her six hours per day, she experiences back pain and requires Panadol. However, with a break on a Wednesday, she is able to return to work on Thursday with little difficulty. If she was working four consecutive days, she may not cope as well.
The surveillance footage
62. The defendant also tended video film of the plaintiff taken on 30 August 2012 and 3 September 2012. On 30 August 2012, the plaintiff was seen in a car park with her daughter going to the local supermarket. While the plaintiff was in the supermarket she seen bending occasionally to the lower shelf. She was also seen unloading the supermarket trolley and partially bending from time-to-time.
63. At the supermarket, the plaintiff is seen taking the bags of shopping from the supermarket trolley one at a time and placing them in the back of her vehicle.. When she was asked in re-examination why she was taking them only one at a time, her reply was – “Because they’re too heavy otherwise and I feel a sharp pain in my back”.[29]
[29]Transcript, p. 31.
64. On 3 September 2012, over a two hour period, the plaintiff was seen with her son and daughter at some play facilities. During this period, she was seen standing, walking and bending from time-to-time. When she was cross-examined, the plaintiff said that she varied her posture and that taking the kids to the park caused her “a great deal of pain.”[30]
[30]Transcript, p. 28.
Case for defendant
65. The case for the defendant is that the pain and suffering consequences relied on by the plaintiff do not reach the “very considerable level” and that I could not be satisfied that these claimed consequences have an organic basis.
66. With respect the consequences of the injury, counsel for the defendant quoted Ashley JA in Dwyer v Calco No.2 [2008] VSCA 260, at paragraph 27, where his Honour said
“It is true that impairment is concerned with what has been lost but the significance of what has been lost which bears upon the seriousness of the consequences may be informed to an extent by what is retained.”[31]
[31]Transcript, p. 33.
67. It was submitted that after the injury, the plaintiff had retained the ability to work. Within a short period of her weekly payments of compensation ending, she had obtained work at Katies. Then the administrative position with her present employer, where she is working 24 hours per week.
68. In addition, it was submitted that she was independent in the personal activities of daily living and going about the ordinary activities of daily living including housekeeping and being the mother to two children. In this respect, the defendant relied on the video footage as showing no impairment consequences.
69. With regard to the nature of the injury, while it was accepted that the plaintiff was a credible witness, it was submitted that non-organic factors played a significant role in the plaintiff’s presentation. The defendant relied on the fact that, although Mr Simm had accepted the plaintiff as genuine, he had been unable to establish a definite physical diagnosis for her chronic thoracolumbar back strain.[32] The defendant also relied on the reports of Professor Wong and Ms De Boo as supporting their case.
Finding
[32]Transcript, p. 34.
The nature of the injury
70. The recent decision of the Court of Appeal in Meadows v Lichmore Pty Ltd [2013] VSCA 2001 confirms that the first step in cases such as this is to ask whether there is substantial organic basis for the pain and suffering consequences relied on. I accept that there is a substantial organic basis for the plaintiff’s pain and suffering consequences, being mechanical thoracolumbar back pain with early degenerative disc desiccation in the lower three lumbar intervertebral discs.
71. In arriving at this decision, I have accepted the opinion of Mr Simm who saw the plaintiff on three occasions and described her as having an established pattern of chronic back pain which would last indefinitely. On examination, Mr Simm noted physical restrictions with regard to the thoracolumbar spine, including that the plaintiff was very sensitive to light palpation along the entire lumbar region.[33]
[33]DCB, p. 75.
72. While Mr Simm considered that there were features of a chronic pain response in the presence of an associated emotional disturbance, he described the plaintiff as presenting as a genuine person. He also found that there was no elaboration of the physical signs.[34]
[34]PCB, pp. 81, 82 & 87.
73. There also is support for this diagnosis from Dr Sleigh in so far as he referred to the plaintiff as being “very genuine” and as having “severe chronic pain which was somatic in nature.”[35] Dr Horsley referred to the MRIs showing some disc desiccation and diagnosed ongoing mechanical back pain with no radicular component.[36] Similar to Mr Simm, she described the plaintiff as presenting as a straight forward woman with no fear avoidance behaviour exhibited.[37]
[35]PCB, p. 37.
[36]PCB, pp. 121-26.
[37]PCB, p. 125.
74. Professor Bittar and the Medical Panel were also of the opinion that there was an organic cause for the plaintiff’s symptoms. Professor Bittar diagnosed aggravation of lumbar spondylitis and the Medical Panel reported a L4/5 disc injury without radiculopathy.
75. I reject the opinion of Dr Wyatt that employment is unlikely to be a continued contributing factor to the plaintiff’s back problem. In Mr Simm’s opinion, the plaintiff ‘s condition was triggered by a soft tissue strain of the lower back as a result of heavy lifting in the work place. He noted, as did others, that from the time of the injury onwards, the plaintiff’s back pain had remained chronic without remission. On the basis of this clinical history, he considered that one could draw the conclusion that her condition remains work related.[38] I agree with Mr Simm’s conclusion.
[38]DCB, p. 76.
76. In addition, I reject the opinion of Mr Sinha, which I believe was influenced by his adverse findings on examination. These findings are inconsistent with those of Mr Simm and Dr Horsley. They are also inconsistent with my impression of the plaintiff as a straight forward and credible witness.
77. With respect to the defendant’s submission that Professor Wong and Ms DeBoo support the defence case, I do not accept this submission. While I accept that the plaintiff has developed a Chronic Pain Disorder and Adjustment Disorder with anxiety and depressed mood, I am satisfied that pain and suffering consequences are largely the result of her physical back injury.
78. In her report of 6 October 2008, Ms DeBoo said
“Mrs Marshall initially sustained injury on the 24 march 2005 2005,so consistent and long lasting has been her chronic pain that I have no hesitation in believing that Mrs Marshall is indeed suffering.”[39]
[39]PCB, p. 62.
79. In her more recent report of 8 July 2013, when describing the plaintiff’s present employment and her desire to continue with it, Ms DeBoo said:
“However, Mrs Marshalls back remains significantly injured and she has reported still affected by this condition Mrs Marshall has explained that she has to accept that her back condition is ongoing and can flare up at any time. Many fears arise from her about the future in this regard.”[40]
[40]PCB, p. 91.
80. In his undated report, Professor Wong was of the opinion that the plaintiff’s “adjustment disorder was the direct result of her physical injury at work and the alleged additional stress imposed by her employer/workplace when she attempted to get a proper diagnosis and treatment of her injuries and go on Workcover.”[41]
[41]PCB, p. 55.
81. The plaintiff was cross-examined about her depression and anxiety. Her evidence was that she had not seen a psychologist for some weeks. She said that over the last month or two, she had improved. However, I accept that she still suffers from mental heath issues but that they are secondary to the physical injury to her back.
82. With respect to the plaintiff’s other medical problems, while no doubt they contribute to her psychchiatric condition, I accept that they do not contribute to the pain and suffering consequences arsing from the physical injury to her back .In making this decision I have also taken into account that
· Her neurogenic cardiac syncopy is controlled by medication and while she suffers from falls and dizzy spells they are not as intense or frequent as they used to be. These episodes do not trouble her.[42]
[42]DCB, p. 63.
· Her polycystic disease is in remission.[43]
· Her ulceratic colitis is in remission.
[43]DCB, p. 63.
Serious injury
83. In determining whether the pain and suffering consequences attributable to the plaintiff’s back injury satisfy the statutory test, I have, as Maxwell J suggested in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, distinguished between:
· The plaintiff’s experience of pain as such; and
· The disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.
The pain suffered by the plaintiff
84. The plaintiff has had back pain since 2005. She always has a level of back pain and is never free of it. The severity of it is unpredictable. The pain is across the mid-lower back which goes to the left and right above the belt line. There is always dull aching pain which gets worse with day-to-day activities as described. The severity of the discomfort and pain she experiences each day depends on the activities during the day.[44]
[44]PCB, pp. 12, 16 & 18.
85. The plaintiff uses Panamax and Panadol Osteo, however she prefers to put up with discomfort and pain and generally avoids using medications due to suffering from ulcerative colitis. Although the plaintiff can get by for a few weeks without using medications, she then has to use them frequently, three tablets four times a day to get any pain relief.[45]
[45]PCB, p. 18 & transcript p. 29.
86. In his affidavit, the plaintiff’s husband said that she often complained to him of back pain and that the frequency and severity of her complaints varied over time. From his observations, there are episodes of periods of time where the plaintiff struggled more than others. The severity and episodes were unpredictable.
87. The plaintiff continues to attend her general practitioner and Ms Coral DeBoo to help her deal with persistent pain and ongoing difficulties of day-to-day activities.
The disabling affect of the pain
Domestic tasks
88. The plaintiff is unable to stand for too long, walk for too long or sit for too long because this makes her back pain worse. She has to change her position and posture frequently to ease discomfort, soreness and pain in her back. Her back becomes more painful when doing domestic tasks.[46]
[46]PCB, p. 17.
89. When she was cross-examined the plaintiff agreed that she got on with her life looking after her family, including as a housekeeper wife and mother, and that this involved doing domestic and household chores to the best of her ability.[47]
[47]Transcript, p. 16.
90. However, I accept that while she is able to do most household and domestic tasks she has problems, including for example when bending, making beds or when bathing and dressing her two young children. I accept that if her back is sore, it becomes more painful when doing these tasks.[48] In addition, that all tasks involving lifting bending flexing and turning her back can make the pain and symptoms in her back much worse.[49]
[48]PCB, p. 17.
[49]PCB, p. 16.
91. In his affidavit, the plaintiff’s husband confirmed that her back problems made it difficult for her to complete household tasks and care for the two children. He stated that she tried to remain as active as she could but that her day-to-day activities were reduced because of difficulties and pain in her back.[50]
[50]Transcript p. 25.
92. The plaintiff’s evidence and affidavit material is consistent with her complaints to the medical practitioners of suffering back pain during domestic tasks. For example:
· On 21 September 2012, Dr Tunaley noted that that the plaintiff’s back was very sore with 8-9 hours of housework a week.[51]
[51]DCB, p. 92.
· On 14 February 2012, Dr Tunaley noted that “vac and mopping gives a lot of pain” and “less picking up children, 3 yo and 5yo” and “shopping difficult, a lot of pain putting items in car.”[52]
[52]DCB, p. 93.
· Mr Simm reported that the plaintiff suffers from constant pain, present since the original injury in 2005, and that the more severe pain occurs with physical activity such as sweeping or mopping.[53]
[53]DCB, p. 80.
· Dr Horesly reported that the plaintiff had ongoing back pain which varied on the visual analogue scale from 4 out of 10, and up to 10 out of 10 with acute flares depended on her activity level.[54]
· Mr Ball reported a history that the plaintiff’s bad pain was on average 7 and a half on a scale of 1 to 10. It did not get any better than that as such, but some days were worse than others. It was there all the time and sitting down for too long, standing for too long or walking too far exacerbated it.[55]
[54]PCB, p. 117.
[55]DCB, p. 29.
93. The plaintiff said that it was difficult to cope with the demands of young children when she was like this and that she found it upsetting that her injury compromised her ability to care for her children. The plaintiff often struggled with back pain to organise, lift, carry or manhandle the two young children; for example, reaching and stretching, getting the children in and out of their car.[56]
[56]PCB, p. 17.
Recreational pursuits
94. I accept that prior to her back injury the plaintiff and her husband enjoyed a variety of outdoor activities. Also that when she had tried to participate in these activities after her back injury the plaintiff was unable to tolerate them because they caused her back pain to flare up.
95. In his affidavit, her husband confirmed that, prior to her injury, they used to go on bushwalking trips (walking three to six kilometres a day), off road four wheel driving and weekend camping trips to places such as Bright and Marysville.
96. He also confirmed that they had purchased a caravan and used that a number of times thinking it would help. However, the plaintiff had found it difficult loading, unloading and setting up the caravan because it caused a flare up of her back pain and the caravan was now for sale.
97. While the plaintiff agreed that she could still drive a car, in the last six months the longest drive she had done was probably around the city.[57] She had also taken the children on holidays to Adelaide. However, it took 12-14 hours as they had many breaks.
[57]Transcript, p. 21.
Work
98. While the defendant relied on the fact that the plaintiff had retained the ability to work, the plaintiff never got back to full time work after the injury. Her work at Katies was part-time and in her present job she works for 24 hours a week.
99. In her report of 1 May 2013, Dr Horsley was of the opinion that the plaintiff was working at capacity doing these hours in the office administrative role with a flexible employer. Dr Horsley stated that:
“by the end of her six hours per day, she experiences back pain and requires Panadol. However, with the break on Wednesday, she is able to return to work on Thursday with little difficulty. If she was working four consecutive days, she may well not cope as well.”
100. In Stijepic v One Force Group Aust. Pty Ltd & Anor. [2009] VSCA 181, the appellant was a young man aged 28. The Court of Appeal found that he had low back pathology which had at least been aggravated by the compensable injury. They said that:
“He faces, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life. When judging the pain and suffering consequence of the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences for a man (or woman) will have to put up with for 40 years might well be judged more serious then the same consequences which a man (or woman) may have to put up with for a much shorter period of time.’
101. The plaintiff is a young woman being 28 years old. She has already put up with the consequences of this injury for some eight years. Mr Simm described her established pattern of chronic back pain as being one which will persist indefinitely. Unlike the plaintiff in Stijepic, who could still take part in various recreational activities, the plaintiff can no longer take part in activities such as bushwalking, camping and four wheel driving.
102. The plaintiff always has a level of pain and is never free of it. She is in the unfortunate situation where she cannot take strong prescription medication to control the pain due to her uleratic colitis. She experiences pain when performing her domestic chores and looking after her children. She has lost the ability to take part in her recreational activities. The video did not show her doing anything that was inconsistent with her claimed injury. In fact it was supportive of her case to the extent that she was shown placing the shopping bags one at a time into the boot of her car.
103. In all the circumstances of this case, I am satisfied that the plaintiff has suffered a permanent serious impairment or loss of body function where the consequences in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable.
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