Martin v Epworth Foundation (t/a Epworth Freemasons)
[2022] VCC 1462
•8 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04480
| LYNETTE MARTIN | Plaintiff |
| v | |
| EPWORTH FOUNDATION (T/A EPWORTH FREEMASONS) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2022 | |
DATE OF JUDGMENT: | 8 September 2022 | |
CASE MAY BE CITED AS: | Martin v Epworth Foundation (t/a Epworth Freemasons) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1462 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Lower back injury ꟷ pre-existing lower back pain ꟷ whether the plaintiff’s pre-existing lower back condition was aggravated by her work ꟷ whether the additional impairment caused by the aggravation met the statutory threshold
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: The plaintiff has leave to bring a proceeding at common law to recover damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab S.C. with Mr S Carson | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr N Dunstan | IDP Lawyers |
HIS HONOUR:
Introduction
1The plaintiff commenced employment with the defendant on 3 April 2006 as a patient services associate (“PSA”), and later as a ward clerk. She alleges that the nature of her work involved tasks which were physically demanding and resulted in her suffering injury to her lower back.
2The plaintiff submitted that she has suffered a serious permanent impairment of the function of her lower back, and that her pain and suffering consequences meet the statutory threshold.
3The defendant submitted that there are several issues which need to be determined:
· The nature and extent of the plaintiff’s pre-existing lower back condition.
· Whether the plaintiff’s work resulted in an aggravation of the pre-existing lower back condition.
· Whether the aggravation ceased, leaving her with pain and suffering consequences due to the constitutional nature of her pre-existing lower back condition.
· If she suffered an aggravation, whether the pain and suffering consequences resulting from the aggravation meet the statutory threshold.
4Mr Macnab of Senior Counsel appeared with Mr Carson of counsel for the plaintiff. Mr Dunstan of counsel appeared for the defendant.
The pre-existing lower back condition
5The plaintiff referred to her pre-existing lower back condition in her first affidavit which appears to have been sworn on 3 May 2021, however she did so inaccurately. I accept that the inaccuracies were inadvertent, and due to the plaintiff’s inability to recall events going back many years. She recalled complaining to Dr Kenneth Pyman, general practitioner, of lower back pain in 1979 and on 29 August 2001.[1]
[1] Plaintiff's Court Book ("PCB") 13-14. The jurat to the affidavit have not been completed. I assumed it is a copy of a sworn affidavit
6Dr Pyman provided a report dated 23 January 2017,[2] in which he described his knowledge of the plaintiff’s pre-existing lower back condition:
“There are records at this surgery of attendance for low back pain dating back to 1979.
Notably, she attended in 2001, 2007, and 2009 for incidents of low back pain following workplace incidents, the first when employed at Gracedale Nursing Home in August 2001 when employed as a PCA following lifting, showering and attending to patients and manoeuvring lifting machines, again in 2007, and in October 2009 when she was employed at Freemasons Maternity Hospital as a PSA following awkwardly shifting large Queen sized beds and Double beds on the ward.
On neither occasion was the incident reported. It was since these 3 incidents that her low back pain progressively increased. … .”[3]
[2] PCB 70-71
[3]PCB 70
7The plaintiff reproduced the clinical notes of the Knox Medical Centre which is the clinic from where Dr Pyman conducts his medical practice. The clinical notes that have been reproduced commence on 18 June 2003. There is no clinical note relevant to complaints of lower back pain in 2007, nor in 2009.[4] So, I can only assume that Dr Pyman obtained the detail set out in his report from some other clinical notes. My purpose in attempting to find the particular clinical notes is to understand better the nature and extent of the lower back pain complained of by the plaintiff in 2007 and 2009, and any opinion relevant to its impact upon the plaintiff.
[4] PCB 202-203, and 201
8Under cross-examination, the plaintiff agreed that she suffered lower back pain from an early stage in her life going back to when she was about seventeen years of age.[5] Despite that evidence, and the content of Dr Pyman’s report, I think it is more likely than not that the plaintiff’s pre-existing lower back condition did not incapacitate her for work. My reasoning is that the plaintiff does not say that it incapacitated her in her affidavit, nor does Dr Pyman in his report. If it had incapacitated her, then I would have expected Dr Pyman to have said so, because it is something of significance that, ordinarily, a medical practitioner would comment on, especially when being asked to provide a medical report to be used in a court proceeding.
[5] Transcript (“T”) 7
The compensable injury
9After commencing work with the defendant, the plaintiff’s time was divided between one third of the week working as a ward clerk, which was exclusively desk based. The rest of the time she worked as a PSA. It was that work which the plaintiff said was physically demanding. In summary, she was engaged in the following work:[6]
· Cleaning hospital rooms, which involved stripping beds of dirty linen, making beds with clean linen, moving furniture and stocking supplies in the room as required.
· The furniture which required moving was heavy.
· Making beds required her to lift heavy mattresses. Some of the mattresses were single mattresses, but nonetheless heavy, and others were double mattresses, which were heavier.
· The heaviest work was putting the dirty laundry into a laundry skip, and then unloading the bags of linen from a trolley onto the floor of the laundry room.
· Sometimes a trolley was not available, requiring the plaintiff to drag the bag of dirty laundry into the laundry room.
[6] PCB 12-13
10Overall, the plaintiff described her work as very physical, heavy and repetitive in nature. The plaintiff said that there was no specific incident which resulted in her alleged lower back injury, but that it occurred over time, with her lower back gradually worsening. She said that she suffered flare ups, and would have days off here and there, before ceasing work altogether in January 2015.
11The reason why the plaintiff ceased working in January 2015, was not so much due to the gradual worsening of her lower back, but due to the tragedy that befell her and her husband when he was diagnosed with cancer. She described that he had a long battle with cancer before passing away in September 2015. She took time off work to care for him.
12An industrial issue occurred as between the plaintiff and the defendant. The defendant made the plaintiff redundant due to the amount of time she had taken off work, but after some negotiation, the defendant offered her weekend work. She declined the offer when she discovered that someone would need to be put off in order to accommodate her, which she considered to be unfair.
Medical treatment
13The plaintiff first sought medical treatment in 2013. In the report of Dr Pyman, dated 23 January 2017, he referred to the plaintiff’s lower back pain progressively increasing. He noted that the plaintiff was experiencing pain radiating into her left buttock. He noted one of the consequences of the increase in lower back pain was the plaintiff’s reduced ability to walk to about ten minutes, and her reduced ability to bend and lift. He referred her to have a CT scan, which was taken on 19 August 2013.[7]
[7] PCB 122
14Dr Pyman’s clinical note, dated 16 August 2013, refers to the plaintiff having longstanding lower back pain, and a referral for her to have a CT scan.[8] The next clinical note of 2 September 2013 refers to a referral to a chiropractor and a diagnosis of an L4-5 right disc protrusion. Dr Pyman elaborated on his diagnosis in his report dated 23 January 2017. He diagnosed a likely lumbar disc injury at L4-5, which he considered was possibly an aggravation of a pre-existing injury dating back to 1979, and resultant stress at facet joints leading to osteoarthritis of L5-S1 facet joints. He also considered that incidents of 2001, 2007 and 2009 may have caused the L4-5 disc injury, or had aggravated it.
[8] PCB 198
15The plaintiff appears to have had very little treatment between 2013 and 2016. She obtained physiotherapy treatment from Mr Krishna Prakash, physiotherapist, on 22 March 2016. He provided a report dated 8 March 2017.[9] He noted that the plaintiff had longstanding lower back pain, exacerbated by her work at a nursing home. She complained of deep pain going down her legs, which interfered with her gait. On examination, he noted pain with lumbar flexion, limited straight leg raising to 80 degrees and tenderness to palpation at L5 and S1 vertebrae, which was worse on the right-hand side. He considered that she had an L5 posterior disc derangement. According to the plaintiff, she attended four sessions of physiotherapy and found that it was of little assistance. She was provided with what she described as a “program” by Mr Prakash, which she continued to employ. It would appear that she was paying for physiotherapy treatment herself.
[9] PCB 97-98
16The next level of treatment occurred in January 2017. Dr Pyman’s clinical note of 18 January 2017 refers to a request for an L5-S1 facet joint injection to treat the plaintiff’s severe bilateral facet arthropathy and lower back pain, and a referral for a CT scan .[10] The CT scan was taken on 31 January 2017. It disclosed an abnormality at the L4-5 disc space, demonstrating a broad-based disc herniation, with possible pressure on the L5 nerve root bilaterally.[11] Dr Pyman then referred the plaintiff to have an MRI scan, which was taken on 28 June 2017. The scan disclosed a small broad-based posterior central disc protrusion at L4-5 and some other abnormalities.[12]
[10] PCB 187
[11] PCB 124
[12] PCB 125
17The investigations led to Dr Pyman referring the plaintiff to Mr Paul Smith, neurosurgeon. The plaintiff said that she saw him on 18 January 2018. He referred her to have a further MRI scan, which was taken on 7 February 2018.[13] It disclosed that the disc protrusion was more evident than seen on the previous MRI scan, with other abnormalities. Mr Smith referred the plaintiff to have a nuclear bone scan which was taken on 9 February 2018.[14] The plaintiff said that he recommended she undergo an L5-S1 left-sided facet joint injection.
[13] PCB 126-127
[14] PCB 128
18The plaintiff wanted a second opinion. She was referred to Mr Paul D’Urso, neurosurgeon. He provided a report dated 14 July 2022.[15] The plaintiff said that she first saw him on 23 February 2018 and then again on 29 November 2018.[16] He reviewed the radiology and diagnosed an L4-5 disc prolapse causing left sciatica, with some articular L5 and foraminal L4 nerve root compression and facet joint arthropathy at L5-S1. He recommended that the plaintiff undergo surgery, which he performed on 18 June 2018, comprising an L4-5 laminotomy discectomy and rhizolysis.
[15] PCB 104-107
[16] PCB 18
19Mr D’Urso has not reviewed the plaintiff post-surgery. He considered that the condition of her lower back would stabilise, however he considered that she would be prone to degenerative progression, which would be difficult to determine and predict, and that she would be at risk of recurrent disc prolapse.
20Under cross-examination, the plaintiff was challenged that she had very little medical treatment between 2012 and about 2016. In particular, she was asked whether Mr Prakash was the first physiotherapist she had seen. She said that she had seen other physiotherapists. She agreed that no reports were obtained from them.[17] She otherwise agreed that, following the treatment provided by Mr Prakash, she had not had any other physiotherapy treatment.[18]
[17] Transcript (“T”) 9-10
[18] T10
21One of the explanations provided by the plaintiff for not having pursued any significant medical treatment over the years after 2012, was that her attention was directed to the plight of her husband. While that is an entirely understandable state of affairs, it does not go all the way to explaining why the plaintiff did not seek medical treatment for her lower back when she was seeing Dr Pyman, and other general practitioners at his clinic, for other medical conditions between 2012 and early 2017.[19]
[19] PCB 145-204
The other medical opinions
22Dr David Barton, consultant occupational physician, examined the plaintiff on 26 October 2017, and provided a report dated 27 October 2017.[20] He provided a supplementary report dated 27 October 2017.[21] The first thing to be noted is that the plaintiff apparently gave Dr Barton an incorrect history by describing the occurrence of a lower back injury in 2012, when, in fact, that is contrary to the plaintiff’s evidence that she suffered the injury to her lower back in the course of her employment with the defendant. Dr Barton focused on the absence of treatment from about 2012, and then no mention by her of her lower back being a problem after she ceased work in 2015, until the worsening of her lower back by October 2017. He considered that the plaintiff’s earlier work-related lower back pain had resolved.
[20] Defendant's Court Book ("DCB") 53-57
[21] DCB 59
23The plaintiff was also examined by three surgeons. The first in time was Mr Roy Carey, orthopaedic surgeon, who examined the plaintiff on 4 May 2017 and provided a report bearing the same date.[22] The next was Mr Greg Etherington, spinal surgeon, who examined the plaintiff on 22 September 2021 and provided a report bearing the same date.[23] The next was Dr Hazem Akil, neurosurgeon, who examined the plaintiff on 21 July 2022 and provided a report bearing the same date.[24] I should start by noting that each of them obtained a history that the plaintiff was experiencing lower back pain in about 2012. It would appear that they were aware that there was an absence of obvious medical treatment for some time, consistent with the summary I have noted above.
[22] PCB 108-115
[23] PCB 117-121
[24] PCB 56-60
24Mr Carey considered that the plaintiff had developed chronic lower back symptoms in the absence of radiculopathy. On causation, he considered that she had suffered an aggravation of pre-existing multilevel lumbar spondylosis, which he described as a degenerative condition and not associated with an acute injury. Mr Etherington provided a similar opinion to Mr Carey. By the time he examined the plaintiff, she had undergone the surgery performed by Mr Paul D’Urso. He considered that the nature of the plaintiff’s work tasks were most likely a contributor to her degenerative changes and lumbar symptoms. He diagnosed an aggravation of pre-existing degenerative changes in her lumbar spine. Dr Akil and Mr Etherington also concluded that the nature of the plaintiff’s work tasks were the main cause of her lower back injury. They diagnosed persistent lower back pain caused by aggravation of lumbar spondylosis.
25I do not consider it is necessary to summarise the opinions of the medico-legal assessors in any greater detail. I think they all obtained, save with the exception of Dr Barton, a history of the work performed by the plaintiff and the demanding nature of it. They understood the appearances on the radiology and, I think, enough of the plaintiff’s history of treatment to give consideration to the question of causation. Save with the exception of Dr Barton, their opinions favour the conclusion that the plaintiff suffered an aggravation of her pre-existing lower back condition, which persists in causing her symptoms of pain and a level of disablement.
Disposition
26The evidence clearly demonstrates that the plaintiff experienced lower back pain from about the age of seventeen years, with more obvious pain and perhaps some level of disablement, in the years referred to by Dr Pyman in his report dated 23 January 2017.
27The plaintiff’s memory was understandably poor when it came to recalling the nature and degree of the lower back pain she was suffering over those years, and any detail of any treatment that she obtained. Interestingly, Dr Pyman does not refer to the plaintiff having any significant treatment before the referral for the first CT scan in 2013, and I would have expected he would have done so had she had any significant treatment.
28I am fortified in reaching the conclusion that the plaintiff may have had intermittent lower back pain, because what is clear from her affidavits, is that she worked from about 2000 in aged care, and then with the defendant from 2006, without the nature and extent of her lower back condition interfering with her capacity for work. I think that is, of itself, a very good indicator of the likelihood that the plaintiff’s lower back condition was at least tolerable, and perhaps not all that significant in an overall sense over those years.
29For the purpose of this application, it occurs to me that the work which the plaintiff was required to perform with the defendant was indeed demanding work, which was likely to place significant stress and strain on the plaintiff’s spine. I accept the plaintiff’s evidence that the work she was required to perform was very physical, heavy and repetitive. Common sense suggests that it is just the type of work which is implicated in the causation of a lower back injury.
30I accept the plaintiff’s evidence that, by the time she saw Dr Pyman and was referred to have the first CT scan, she was significantly troubled by lower back pain. What is very evident from the first CT scan taken on 19 August 2013, is that it disclosed a right posterolateral disc protrusion at L4-5. The subsequent radiology disclosed similar findings, although the radiologists referred to different findings as well, and perhaps that is the product of different forms of radiology interpreted by different radiologists. In any event, I think it is likely that the plaintiff had a level of degeneration in her lower back which was aggravated by the work she was required to perform with the defendant.
31Where a serious injury application is based upon an aggravation of a pre-existing medical condition, then the onus is on the plaintiff to identify the injury and separate the impairment consequences of the pre-existing injury, and the injury as aggravated, and identify whether the additional impairment caused by the aggravation meets the statutory threshold.[25]
[25] Petkovski v Galletti [1994] 1 VR 436
32I am satisfied that the plaintiff suffered an aggravation of the pre-existing pathology demonstrated in the first CT scan, and also the subsequent radiology, and, furthermore, the very pathology which was the subject of operative treatment by Mr D’Urso.
33I am satisfied that the plaintiff had a pre-existing lower back problem which was tolerable. I am satisfied that it is unlikely to have resulted in any significant pain and suffering consequences, whereas the additional impairment caused by the aggravation is “at least very considerable”, and I will expand upon this when I refer to the pain and suffering consequences relied upon by the plaintiff to demonstrate that she has met the statutory threshold.
34I am satisfied that the plaintiff is an entirely creditworthy and reliable witness. I do not see that there is anything in what she has sworn to in her affidavits, said under cross-examination, and recorded in the histories taken by the medical practitioners who have provided reports, that suggests she is other than an entirely creditworthy and reliable witness. It is because of that creditworthiness and reliability that I am prepared to accept the plaintiff’s evidence that the reason why there was an apparent gap in her medical treatment between about 2013 and 2017 is because of her husband’s predicament which required her full attention. After the passing of her husband, it is clear that she was psychologically troubled, to the extent that she required treatment. While all of this was going on, her lower back condition was deteriorating to the extent that she had some physiotherapy treatment in 2016, but by 2017 her lower back condition had deteriorated to such an extent that she was on the inevitable course to surgery.
35It is plain from my reasoning so far, that I do not accept the thesis advanced by Dr Barton. His reasoning is absent the full evidence which I now have before me, tested through cross-examination. Furthermore, I have the benefit of far more evidence than Dr Barton had, for example, the medical reports acquired by the parties subsequent to the occasion when Dr Barton examined the plaintiff. I am also fortified in reaching this conclusion and preferring the other medical evidence, because three surgeons of the highest rank have obtained sufficient understanding of the plaintiff’s history to be confident in expressing opinions relevant to causation. I prefer their evidence.
36I consider that the plaintiff’s consequences are “at least very considerable”. The following is a short summary of the consequences which she contends meet the statutory threshold, and I should add that these consequences also satisfy me that the additional impairment resulting from the aggravation meets the statutory threshold:
· Pain in her lower back, which comes and goes, and on occasions there are days when she has no pain. When she does have pain, it can be disabling.
· The pain can extend to a throbbing-type of aching pain in her right thigh.
· She deals with the pain by altering her posture constantly.
· She experiences pain if she does too much. She exercises care to avoid activities which she knows will result in her suffering pain.
· She uses a pick-up stick to pick up things, to avoid having to bend over. She avoids lifting heavy objects.
· Vacuuming and sweeping are domestic tasks which will cause the onset of pain. She tends to undertake housework in short bursts as a result, and undertaking cleaning can take her considerably longer than it would without her experience of back pain.
· She is limited in standing for about fifteen minutes, walking for about ten minutes, but can sit comfortably for a couple of hours.
· She finds it difficult to do her grocery shopping and now tends to do her shopping online, except where there is some urgency in the need to go shopping.
· She now drives only short distances.
· She misses not being able to pick up her grandchildren.
· She is no longer able to engage in tenpin bowling.
· She is no longer able to engage in gardening, which she found relaxing and enjoyable, and has now engaged someone to do her garden.
· She continues to seek medical treatment. She now uses Voltaren and Panadol for pain relief. She sometimes uses Endone from a stockpile obtained through her husband’s treatment, although it was my impression that her resort to Endone is very infrequent.
37Additionally, Mr D’Urso considered the plaintiff is now vulnerable to further deterioration in her lower back, and with the risk of further disc prolapse. What is clear from the plaintiff’s evidence, is that despite the relief she obtained from the surgery, she continues to be plagued by lower back pain, and the vulnerability to pain on effort which interferes with her capacity to function on a daily basis engaging in simple social, domestic and recreational activities. Despite the fact that her pain is not persistent, in an overall sense, her life has been reduced to modesty in the activities in which she can engage.
38In the circumstances I consider that the pain and suffering consequences contended for by the plaintiff easily satisfy the statutory threshold. I will grant the plaintiff the leave that she seeks.
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