Mazzarella v Transport Accident Commission
[2015] VCC 1105
•19 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01879
| ELISABETTA MAZARELLA (MARTINO) | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June and 1 July 2015 | |
DATE OF JUDGMENT: | 19 August 2015 | |
CASE MAY BE CITED AS: | Mazzarella v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1105 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Damages – transport accident – serious injury – impairment to the spine
Legislation Cited: Transport Accident Act 1986, s93(4)(d)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering & Ors v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Galpin | Verduci Lawyers |
| For the Defendant | Mr S Smith | Solicitor to the Transport Accident Commission |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident which occurred on 19 May 2008 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long-term impairment or loss of a body function”.
4 The body function pursuant to subparagraph (a) relied upon by the plaintiff is the spine.
5 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long-term.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, “can the injury, when judged by comparisons with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?” – see Humphries & Anor v Poljak.[1]
[1][1992] 2 VR 129 at 140–1
7 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[2]
[2](2000) 1 VR 79
8 The plaintiff swore three affidavits and was cross-examined. She also relied on affidavits of her sisters, Antonella Scifo and Elvira Martino, sworn on 2 March 2015. Both parties relied on medical reports and other material which was tendered in evidence.
The Plaintiff’s evidence
9 The plaintiff is presently aged forty-five, having been born in June 1970. She is married with a year-old baby.
10 Following completion of Year 12, the plaintiff then worked at various times as a sales person, store manager and retail assistant. She was working as manager with a footwear retailer, Comfort and Fit, in 2008, when that store closed down. She was seeking alternative employment when she was involved in the transport accident.
11 On the said date, the plaintiff’s vehicle was stationary behind traffic when a vehicle travelling behind her at a fast rate of speed collided with the rear of her vehicle, pushing it into the car in front (“the accident”). The plaintiff’s vehicle was a write-off.
12 The plaintiff could not recall a conversation with the ambulance officer who attended the accident scene. She was in pain and shock. She denied she was taken last in the ambulance because she was the least seriously injured.[3]
[3]Transcript (“T”)16
13 The plaintiff was taken to The Alfred hospital, where she was examined, had x-rays of her back, and was discharged at her request. She could not remember describing some vague lower back pain at the hospital. She could not move at that stage and was in pain. She did not know whether she refused analgesia as the hospital notes set out.[4]
[4]T30
14 As a result of the accident, the plaintiff sustained neck, head and back injuries, and was very shocked. The following day, she had severe pain to her neck, back, shoulders and arms, and was suffering from headaches.
15 The plaintiff also injured her left foot, knee and ankle and suffered from numbness to her fingers and the sole of her foot. With later treatment and exercise, she also experienced back pain, and felt a pulling down her right leg.
16 The plaintiff attended Dr Roziel at MedicalOne on 20 May. Panadeine Forte, anti-inflammatories and Valium were prescribed. The next day, the plaintiff’s headache worsened, and she returned to The Alfred where she had a CT scan.
17 The plaintiff was treated at MedicalOne by a number of doctors. She also had physiotherapy for about three or four months. She was referred to Maria Mercuri, psychologist, whom she saw between mid-2008 and 2 September 2009, and recommenced seeing on 3 December 2009.
18 The plaintiff also had chiropractic treatment for a year after September 2008, and she attended a rehabilitation program at Dorset Rehabilitation Centre, where she was treated by Dr Clayton Thomas, pain management specialist.
19 The plaintiff deposed in September 2011 that she had had been unable to obtain suitable employment because of her injuries. She then continued to suffer from pain and limited neck movements. She suffered from constant headaches, which prevented her concentrating. She had memory loss and was irritated by noise. She had a fear of driving, and was anxious and depressed. Back pain was also an issue as she could not sit or stand for long periods of time.
20 The plaintiff suffered as a result of her injuries on a daily basis, and even though she had attempted to return to work, she was unable to continue due to the pain she was experiencing.
21 The plaintiff could not tolerate loud music or noise and did not like being around too many people, and often had to wear earplugs to cope.
22 The plaintiff was then experiencing right shoulder and neck pain, and a recent shoulder ultrasound had shown calcific tendinopathy of the infraspinatus and subacromial bursitis with bursal bunching.
Post-accident work
23 The plaintiff acknowledged that in fact there was an improvement, enabling her to get back to work at the time she swore that affidavit. She had worked in a number of roles after the accident, including working for six months as a greeter at Coles in 2011, working for four hours, four days a week,[5] and also working as a mystery shopper for the same employer for an hour or so a week.[6]
[5]T34
[6]T36
24 The plaintiff agreed that the greeting job involved being on her feet in the course of a full shift and as the day progressed, she felt worse.[7] The work was not demanding, it was shorter shifts and she had a break.[8]
[7]T41
[8]T58
25 Post accident, it was a positive thing to try and look for work, thus the plaintiff did the mystery shopping for one or two hours, to try something. She knew that whenever there was an opportunity to start looking for work and get out there and give it a go, that is what she did. Work is important to her and part of her lifestyle that she is always used to having.[9]
[9]T59
26 The plaintiff did not know why this post-accident work was not mentioned in her affidavit.[10]
[10]T37
27 In her third affidavit, the plaintiff deposed that as part of her rehabilitation, she was encouraged to become self-employed and set up a business and work within her restrictions. She planned to sew and make things such as reversible bags, drawing on her previous experience. She was really enthused about the prospect of that work; however, she found sitting at a machine leaning forward or doing other sewing tasks was too hard and aggravated her back, and the business did not go ahead.
28 The plaintiff confirmed her involvement in the NEIS program post injury. She had hoped to start up a business, following her passion to do sewing but was not successful due to her injuries and back pain.[11] She could not sit at the sewing machine and that was definitely an issue.[12]
[11]T39
[12]T41
29 The plaintiff would like to get back into dressmaking and sewing, just part time, to make baby clothes, but she did not think she could do so because of her pain.
30 Having worked for a short time as a merchandiser, in early 2012, the plaintiff returned to work at Payless Shoes, at two of their stores. Whilst working at Sunshine, she had a significant relapse in her condition during early 2013 and required four weeks off work. She found that if she placed undue strain on her spine, she was likely to suffer significant increase in her level of symptoms.
31 As well as time off for that relapse in 2013, the plaintiff took days off because of back pain and had pretty much used up all her sick leave. The only time she has needed a certificate was early in 2013.[13]
[13]T25
32 In her March 2015 affidavit, the plaintiff described a good deal of standing and handling stock in her job, as she was responsible for demonstrating stock to customers, changing price tags and generally running the store.
33 The plaintiff found that she tended to suffer increasing pain levels as the day wore on. She took Nurofen Back, Panadol and Voltaren sparingly, depending on the level of pain.
34 By the end of the day, the plaintiff was quite sore, and when she arrived home she usually tried to relax a little bit and go to bed early, by about 9.30pm, so that she could rest her back. Frequently, she was troubled by increased spinal pain during the night which kept her awake.
35 At work, the plaintiff delegates what she can, but it is unavoidable that she has to reach up high and she suffers neck pain most days. It is almost inevitable that she will need to stoop and bend and get stock, causing the onset of back pain, despite medication, as she is largely on her feet, and after about an hour, the pain sets in.
36 The plaintiff sits for a few minutes every now and then to limit the increasing pain and, by the time she gains relieved by another staff member, she is desperate to get off her feet. Back pain extending down the back of her left leg progresses most days later in the day, and sometimes on the right.
37 The plaintiff cannot do as many things as she would like to. She has pain mainly in the lower back and it goes into her legs, mainly the left. By the end of the working day, she is struggling to walk to the station or even to drive.[14]
[14]T10
Medication since the accident
38 As at September 2011, the plaintiff was taking Coversyl for high blood pressure due to anxiety that she was unable to control. She then stopped taking it as she was pregnant; however, she lost the baby. She felt that if she did not have anxiety due to the accident, she would not need that medication.
39 The plaintiff deposed that she was then taking Panadol or anti-inflammatories and Panadeine Forte daily to cope and have some sort of life, and she also needed to take Pramin, 10 milligrams, due to nausea. That took a toll on her, as she could not work and could not live life like she would have but for the accident.
40 The plaintiff in fact took Panadeine Forte when she needed it, not daily as she had deposed.[15]
[15]T21
41 The plaintiff agreed that following the original prescription of Panadeine Forte in May 2008, it was not again prescribed until 2010. She did not take it regularly. That medication knocked her out and she still needed to function. It was something she mainly took before going to bed to make her relax more. She would mainly take Voltaren, Nurofen and Panadol, or Panadeine. There was probably one more recent prescription since August 2010 which may not have been on record.[16]
[16]T20
42 The plaintiff explained that she had basically taken over-the-counter medication because she had other ways of managing her pain with heat, TENS and massage, without the need to take Panadeine Forte.[17]
[17]T21
43 The plaintiff takes medication daily to try and avoid pain coming on, and to reduce the increase in pain that occurs on activity. She cannot get through a day if she does not take it.
44 In general, the plaintiff takes separate paracetamol and an anti-inflammatory medication every four to six hours daily. At times, she has used Voltaren. A couple of times a week she has a massage, and she uses a heat pack or a TENS machine to relieve pain if it gets really bad after a day at work.
45 If the plaintiff does not take regular medication the pain is always present. Even with medication, she has pain, unless she spends the day with minimal demands on her spine, taking care to avoid aggravating actions and mobilising as much as possible. It is difficult to spend a day being so inactive and she invariably develops pain, particularly during work, in spite of taking preventative medication.
46 Taking anti-inflammatories stops the plaintiff getting spasms.[18] Even when she takes painkilling medication, the pain is constantly there – it is a “constant niggle”.[19] She has tried, but she cannot go for a day without medication. She literally cannot do anything.[20]
[18]T45
[19]T46
[20]T58
Current symptoms
47 The plaintiff suffers constant variable levels of lower back pain, and most days, the pain extends down the right leg. Most days, she develops pain, which is then constant and fluctuating in intensity, but generally worse as the day progresses.
48 Dr Stockman, rheumatologist, was incorrect when he reported in April last year that the plaintiff did not have pain every day. It may not be a relapse but she has some kind of pain every day.[21] There is pain if she does not take the medication. She takes medication to prevent flare ups.[22]
[21]T43
[22]T44
49 Professor Helme, Dr Stockman, Dr Thomas and Dr Boys had not got it wrong when they noted the plaintiff’s complaints of pain were less frequent than daily, explaining – “If you are taking medication every four to six hours perhaps you do not feel pain all the time.”[23]
[23]T44
50 A couple of times a week, the plaintiff still gets spasms when she is doing things and gets a weird feeling in her back and just needs to stop what she is doing and stretch.[24]
[24]T55
51 Standing in the one spot for a couple of minutes brings on and increases back pain, and the plaintiff tends to shuffle to prevent it.
52 During the day, the pressure builds up when the plaintiff is standing. As the day goes on, she starts to get pain in her legs. She walks and moves slowly and has to be very careful. She tends to stiffen up.[25] All she wants to do is sit down and rest but she has to get the job done before she can go home and go to bed.[26]
[25]T57
[26]T56
53 The plaintiff’s back pain is brought on by sustained posture, holding her child and many other routine things. The pain is across her lower back and, at times, into her hips and legs, more to the left.
54 Sitting for about half an hour to an hour brings on or increases back pain, and frequently results in foot numbness which makes the plaintiff feel uncertain about the use of her legs. When that happens, she finds it very difficult to walk confidently until numbness and pain ease. The pain and numbness make it difficult to drive longer distances.
55 If the plaintiff goes to the movies with her husband, extended sitting means she has to get up and move around once or twice and it is no longer an enjoyable experience.
56 Neck pain is brought on or increased by the plaintiff looking up or raising her arms to do tasks but is not as common as the back pain. She gets frequent headaches she feels relate to neck pain.
57 In recent months, the plaintiff’s pain was more problematic, as she continues to work and attempts to look after baby as best she can.
58 The plaintiff deposed she currently sees Dr Hardy at the Campbellfield Medical Centre at least monthly. She also has intermittent physiotherapy and massage treatment. She continues to take medication and has suffered some anxiety and depression, although she did not have medication for those conditions.
59 The plaintiff agreed that she would not have complained to a doctor at all about back pain between 4 August 2011 and 21 January 2013, as the clinical notes indicated. During that time, she may still have been doing some swimming and other things that alleviated some of the pain.[27]
[27]T26
60 The plaintiff might not have complained about her spine because it might have been slightly better at that point. Medication was working and she was coping better. Similarly, it was accurate if there was no record of spinal complaints between 31 March 2010 and 14 June 2011 and 18 February 2013 to 23 October 2014.[28]
[28]T26. There was mention of lower back pain to Dr Hardy at the Campbellfield Medical Centre on 19 July 2013
61 The plaintiff explained that she did not see her doctor a lot about her accident injuries because she takes medication every day to manage, and lived day to day. She would have last seen the doctor about a year and a half ago when she had a really bad episode and was off work for quite a few weeks.[29]
[29]T9
62 The plaintiff does not see a doctor because there is nothing else she can do. The plaintiff might get a Panadeine Forte here or there. She takes Voltaren every day and Panadol to try and manage everything and get though the day to get her job done.[30]
[30]T9-10
63 The plaintiff agreed that she had had a good relationship with her doctors and there was no difficulty seeing them and talking to them about her condition. She did a lot of rehabilitation including physiotherapy and hydrotherapy and exercise and the medication was managing it, so there was no point going to the doctor over and over as there is not much more that they can do to help her and she was doing everything she could to help herself.[31]
[31]T24
64 The plaintiff agreed that she had occasionally mentioned back pain to her doctors in early 2013.[32]
[32]T24
65 The plaintiff does not go to the doctor to talk about what is happening with her back. She goes to talk about other things she has to deal with because her back is something that she has to deal with every day and she has to take medication for it.[33]
[33]T26
66 There is no point whinging and wining to doctors about her back condition. The plaintiff has to try and get through the day and get on with things. There is no miracle to fix her problem. With surgery, her back condition would probably get worse.[34]
[34]T57
67 It might have been possible that the plaintiff had complained a bit about back pain after lifting her child in October 2014. She agreed that after an attendance in November 2014, the next time there was a complaint of back pain was after her solicitor had asked Dr Hardy for an appointment to specifically discuss the plaintiff’s back problem. However, Dr Hardy was aware of the plaintiff’s back problems prior to June 2015 and aware of the relapse in 2013.[35]
[35]T27
68 Even though she was having ongoing back problems, the plaintiff did not go back to see Dr Hardy because she managed day to day with the medication, even though she was having problems.[36]
[36]T29
Lifestyle and activities
69 The plaintiff finds with most activities she undertakes, she is safer and better off in terms of the level of pain if she paces herself and tries not to do too much. She takes care when going up and down stairs because she is concerned her legs, or one of them, might give way under her.
70 The plaintiff restricts herself in walking and outdoor activities because she finds the further she walks, the greater her back pain.
71 The plaintiff tends to walk slowly and carefully and has trouble walking over uneven ground. She used to enjoy walking for recreation, going on long walks a couple of times a week, frequently in the country. She is now unable to sustain longer walks because of increasing back pain and the need to rest.
72 Now the plaintiff is back living in a rural area she would love to be able to walk around again. She is reluctant to try as she knows pain levels will increase too much. She has not undertaken any long walks for a long time because of her back.
73 The plaintiff agreed that in 20 November 2008, as clinical notes indicated, she had been doing short walks daily. She also agreed that in March 2010, she was walking to try to lose weight.[37]
[37]T17
74 Prior to her injury, the plaintiff could go shopping for extended hours, which was an enjoyable pastime with her friends or family. It is now a chore, with increasing back pain whilst on her feet. The plaintiff’s back gets aggravated with significant grocery shopping, so she usually gets her husband to help or she limits how she shops.
75 The plaintiff has to sit when shopping because of back pain. This was the case before her ankle pain worsened and she now also has to rest when shopping because of her left ankle pain. Problems with the ankle really set in after she started working full time.[38]
[38]T54
76 In terms of housework, the plaintiff needs to stop and start to get things done. Largely, housework is manageable, but she has to go slowly, pacing herself before the pain gets bad. Bending is more of a problem.
77 Whilst the plaintiff has to stand to vacuum, it is more of a problems because of her back. She could not say how she would cope with the housework if just her ankle was a problem.[39]
[39]T52
78 The plaintiff was very keen to have a child after several miscarriages. In August 2014, she had a son. She found, during her pregnancy, the level of spinal pain continued to be a major concern, and increased significantly.
79 Earlier this year, the plaintiff’s need to frequently lift her baby caused her to suffer increased back pain as he was getting heavier. She is restricted in caring for her baby, and after five minutes holding him, her back gets very sore. She tries to avoid aggravating her condition and she cannot behave instinctively with him. Sometimes, her back is too sore to pick him up and she has to leave him where he is, which is heartbreaking for her.
80 The plaintiff would also like to get down on the floor and play with her baby, but she is largely restricted to sitting on the couch. The baby is washed in the shower as he is too heavy for her to hold, and the plaintiff’s husband is greatly involved in this role. The plaintiff is worried about further interaction with her son as he gets bigger.
81 Pre injury, home cooking was a feature of family life and the plaintiff used to bake pasta. She can no longer stand and apply herself to the task long enough to cook.
82 There is quite a large garden at the plaintiff’s home and an area for a vegetable patch. She would love to grow vegetables but knows bending, digging and general care would make her pain much worse.
83 Prior to her injuries, the plaintiff enjoyed going out dancing. She went rock and roll dancing once or twice a week. It was a fantastic hobby, great exercise and fun, and a good social outlet.
84 After her injury, the plaintiff thought about resuming dancing. She had a lesson which aggravated her back and she realised she was not able to keep going. She is also limited in how she dances at family events and pays for it with a lot of back pain the following days. The plaintiff does not enjoy socialising as she used to because of her back pain.
85 The plaintiff had not been dancing for years. Her ankle would have been a major problem in that regard in the last year or two but she had not been able to rock and roll dance since the accident.[40]
[40]T53
86 At times, the plaintiff’s sleep is disturbed by pain. Of course her sleep is also disturbed by the baby, but that situation is just an additional problem now. The plaintiff tries to go to bed early and get enough sleep to manage the following day.
87 The plaintiff’s social and recreational activities remains curtailed. She has increased pain if she has to stand or sit for long periods. Social events tend to tire her out and cause her increased pain, and that results in her reducing involvement in such events. The best way to try and limit the pain is simply to limit her activities and lifestyle.
88 The plaintiff can still socialise when there is something important on, otherwise she generally holds off because there is too much going on. There is the newborn child plus the pain. She needs more time to get things done.[41]
[41]T52
89 About four or five years ago, the plaintiff went to Italy to attend a family funeral. She struggled with the plane trip because of her back injury.[42]
[42]T14
90 The plaintiff’s intimate relations have been severely affected by spinal pain. The frequency of intercourse and variety has been adversely affected.
91 The plaintiff feels that she is psychologically affected by the accident. She tends to get irritable and frustrated, and is depressed at times, as she cannot do what she wants without pain. However, overall, as the personal aspects of her life are more positive at present, these psychological issues do not seem as bad as they used to be.
92 Before the accident, the plaintiff had very little issues with her left ankle and it would not have been a major concern.[43] She thought ankle problems started when she started working full time.[44]
[43]T47
[44]T46
93 The plaintiff’s left ankle is swollen. Her back, not her left ankle, causes problems going up and down stairs but she agreed that she had to walk sideways up stairs because of her ankle.[45]
[45]T46
94 The plaintiff then said difficulty walking on stairs would be caused by her leg rather than just the ankle. She agreed that her ankle caused her a problem climbing ladders and when she stood for a long time. It would have been correct, when the plaintiff saw Dr Stockman in April 2014, that she had ongoing pain in her left ankle, aggravated by prolonged standing, pressing down on the clutch when driving, or walking for too long.[46]
[46]T49
95 Now, when walking for long periods, it is the numbness under the plaintiff’s foot that is more the issue. It depends on the type of walk, as walking on uneven ground would be a major issue with her back and obviously that is what aggravates her ankle.[47]
[47]T50
96 Even if there were no problems with her back, the plaintiff would have problems with her ankle after half an hour, depending on the day.[48]
[48]T50-51
97 The plaintiff agreed that with her ankle problems, she could not do rock and roll dancing. She could not undertake long walks. If her back was completely well, her ankle would not necessarily stop her going shopping.[49]
[49]T52-53
98 The plaintiff has a referral to another specialist about her ankle because of swelling and the ankle was getting progressively worse.[50]
[50]T49
Progress of the Plaintiff’s condition
99 There was intense ongoing pain for several weeks straight after the accident, after which there was treatment which started to help.[51]
[51]T31
100 The plaintiff could not recall telling Professor Helme in September 2013 that she was about 80 per cent better than at the time of injury. She agreed that there had definitely been some improvement. She did not know what percentage. She is a lot more mobile than when the accident happened. She struggles every day.[52]
[52]T10
101 The plaintiff’s condition is probably consistent now and she does not think there is much room for improvement. She has pain most days so she does not know if she can improve. She just keeps her posture correct and does all that she has been taught.[53]
[53]T12
102 The plaintiff is certainly not a hundred per cent and she is not what she was before the accident.[54] It seems sometimes she was going backwards not forwards, because the heavier the workload when she is trying to be more active and live life every day, it feels like she has not improved at times. She just struggles to get through every day. Without medication she could not get through the day working on her feet. She would hardly be able to do anything at all. There were times when the plaintiff feels like she is struggling for days and days, so it does not feel like there is an improvement.[55]
[54]T22-23
[55]T23
Lay evidence
103 The plaintiff’s sister, Antonella Scifo, swore an affidavit on 2 March 2015 confirming that prior to the accident, the plaintiff was working, socialising and had no issues. Since the accident, she seemed uncomfortable and limped when walking.
104 They do not go to the movies as much, as the plaintiff is unable to sit for too long in a chair. Now, the plaintiff is constantly in pain when Ms Scifo sees her twice a week. Simple things like getting up the stairs and normal household duties are difficult. The plaintiff has to take medication to get through the day. It feels as though the plaintiff is a completely different person, and she can see it is hard for the plaintiff to deal with things every day.
105 Ms Scifo helps the plaintiff look after the baby while she is at work. The plaintiff is struggling when she drops him off, even before going to work.
106 At family functions, the plaintiff does not do as much as she used to, and tends to rest and limit herself. Even when she and the plaintiff go for a walk, the plaintiff has to take rests and they do not walk as far. Since the accident, whatever the plaintiff does is extremely uncomfortable for her.
107 Ms Martino, the plaintiff’s sister, swore an affidavit on 2 March 2015.
108 Prior to the accident, the plaintiff was a generally happy person who was sociable and did the housework and never had any problems. The plaintiff often looked after and cared for Ms Martino’s son, who was living at her mother’s house.
109 Since the accident, the plaintiff’s whole attitude has changed. She gets easily frustrated. She is extremely moody, except for looking after her baby, which causes her to lose control and snap. It is difficult for the plaintiff to pick up the baby and she looks in pain when she does so. She has limitations as a mother.
110 The plaintiff now walks with a limp and struggles to stand for a long time, because the pain in her leg will play up. On family occasions such as Christmas, she tends not to do much or move much because of pain.
111 The plaintiff often takes pain medication just to cope. Her social life has died down a great deal, although she has got married and had a baby. Her injuries affect her quality of life as she gets angry and frustrated with her limitations. She is mostly housebound. She goes to and from work, and tries to tackle the day as best she can.
112 Ms Martino can also see how the plaintiff struggles mentally, and she does not appear to be in the right frame of mind. Physically, she seems to have no energy. She needs painkillers to carry out her daily tasks and she now limps.
Medical evidence
Investigations
113 There was an x-ray taken of the lumbar spine at The Alfred hospital on the accident date. It was noted there were small marginal osteophytes throughout the lumbar spine, no fracture or malalignment and no widening of the sacroiliac joint.
114 There was a CT scan of the brain taken at The Alfred hospital on 21 May 2008. It was reported there was no acute intracranial abnormality. There was a likely small frontal parafalcine meningioma.
115 An MRI scan of the cervical spine and the right brachial plexus was performed on 14 October 2011 at the request of Dr Ting from the Taylors Lake Clinic.
116 It was reported there was broadbased posterior disc extrusion at C5-6 and C6-7, resulting in moderate to severe central canal stenosis, most severe at C5-6. There was mass effect on the cord at both levels, worse at C5-6, but no abnormal cord signal. There was right C5-6 and C6-7 foraminal stenosis, and there was no brachial plexus abnormality.
117 Dr McCarthy organised an x-ray of the full spine and pelvis in October 2008.
118 It was reported there were mild degenerative changes present adjacent to C6-7, and no other abnormalities in the cervical spine.
119 There were minimal degenerative changes present adjacent to the mid and lower thoracic discs, and no significant abnormalities demonstrated in the thoracic spine. There were mild degenerative changes present adjacent to the upper lumbar disc, and no other abnormalities demonstrated in the lumbar spine.
120 Dr Ting organised a CT scan of the cervical spine in February 2009. It was reported there was no fracture and no disc prolapse. Disc degenerative disease was noted at C5, C6 and C7 and, otherwise, the examination was normal.
121 Dr Frost organised at CT scan of the lumbar spine on 25 August 2009. It was reported there was mild broadbased disc bulging at several levels and foraminal stenosis at L4-5, mild on the right, moderate on the left.
122 There was an ultrasound of the right shoulder organised by Dr Ting on 8 July 2011. It was reported there was calcific tendinopathy of the infraspinatus. There was subacromial bursitis with bursal bunching.
123 Dr Hardy organised an MRI scan of the lumbar spine in June 2015.
124 It was reported there was degenerative disc disease, particularly at L2-3, L3-4 and L4-5. There was narrowing of the subarticular recess at L3-4 and L4-5, more marked at the latter level, where there appeared to be distortion of the left L5 nerve root sheath origin. There was also moderate facet joint degeneration at L4-5.
125 It was reported there were significant disc protrusions at C5-6 and C6-7 causing cervical spinal cord compression, foraminal narrowing, minor disc protrusion and right-sided foraminal narrowing at C3-4.
Treatment
126 The plaintiff was a patient of Medical One Taylors Lake at the time of the accident. She also attended the Sunshine Medical One Clinic in early 2013. In October 21012, the plaintiff commenced seeing D Hardy at Campbellfield Medical Centre.
127 The plaintiff was referred by her general practitioner to Maria Mercuri, psychologist, who first saw her in May 2008. When she last reported in late 2010, Ms Mercuri thought the plaintiff continued to experience many of the symptoms associated with Post-Traumatic Stress Disorder with Mixed Anxiety and Depression.
128 Dr Adam McCarthy, chiropractor, first treated the plaintiff in October 2008. When he last reported in June 2009, he noted treatment had given relief from headaches, dizziness and nausea, with some reduction in pain and improvements in mobility. However, the plaintiff continued to suffer as a consequence of her injuries.
129 The plaintiff was referred to Professor Helme, consultant neurologist, by Dr Ting at MedicalOne in October 2008.
130 Professor Helme noted the plaintiff’s major problem had been headache of three different types.
131 The plaintiff advised that since the accident, she had also had some central low back pain, aching in type, which may be associated with some right leg pain, increased by activity or prolonged postures. She originally had numbness in the feet but that had resolved.
132 On examination, there was a mild reduction of cervical movement and no tenderness. Neurological examination was entirely normal.
133 Professor Helme thought the plaintiff had a whiplash injury which was improving and suggested review prior to Christmas. He then noted that the plaintiff had improved considerably in two and a half months with respect to her cervicogenic headaches. She was doing physiotherapy and exercises and attending a chiropractor. Her tension headaches persisted to a mild degree. She was still attending a psychologist.
134 On re-examination on 11 December 2008, the range of the cervical spine was mildly restricted by 10 degrees on rotation, and other movements were full and there was no tenderness.
135 Again, Professor Helme thought the plaintiff was recovering from a whiplash injury and reassured her that that would continue as long as she continued to exercise. He then regarded her prognosis to be excellent from the point of view of any neurological injuries, as none had been demonstrated.
136 The plaintiff was examined by Professor Helme for medico-legal purposes in February 2012. He had earlier reported to the plaintiff’s solicitors in 2009.
137 On the 2012 examination, the plaintiff continued to complain of intermittent headaches, low back pain extending on occasions to the right leg, and dizziness. She had anxiety.
138 Professor Helme noted all the symptoms had improved over the last two years and the plaintiff said she was 70 per cent better overall.
139 The plaintiff complained of similar headaches and some episodes of dizziness related to stress. She also continued to have low back pain associated with intermittent right leg pain but that only occurred approximately four monthly – shooting down her leg. She also described intermittent neck and arm pain with two episodes, one leading to presentation at Sunshine Hospital in July 2011.
140 The plaintiff then undertook exercises from the physiotherapist. She treated her pain with Panadol, Panadeine and Nurofen, rarely taking Panadeine Forte.
141 On questioning, it was apparent the only activity the plaintiff was unable to undertake was rock and roll dancing, because she could not spin and the noise upset her.
142 On examination, cervical movement was full in flexion and extension but reduced to 80 degrees in rotation and there was end of range discomfort with movements.
143 Professor Helme confirmed the diagnosis of a whiplash-type injury. The plaintiff’s major symptoms continuing from that time had been headaches, low back pain, with right radicular leg pain, but no abnormal neurological findings, non-specific dizziness and anxiety. She experienced limited cervical spine movement associated with discomfort and mild right leg radicular discomfort. He classified her post-traumatic headache as cervicogenic in origin but thought she might have some post-traumatic migraine, although she did not satisfy the clinical criteria.
144 Professor Helme noted the plaintiff’s symptoms had improved greatly with the variety of interventions and the passage of time and there had been no objective neurological findings when examined. He noted her anxiety state persisted but appeared well controlled.
145 Whilst Professor Helme had previously considered the prognosis as excellent from a neurological point of view, with the lapse of a further three years, he found the plaintiff still mildly symptomatic and the prognosis should be tempered to some degree. Nevertheless, he would still regard her prognosis as being very good, as she continued to improve with the minimum of external interventions and continued without objective neurological signs. He noted she may, however, continue to suffer mild infrequent relapses of her condition over the next several years, especially if subject to minor neck trauma.
146 There was a further medico-legal examination in September 2013.
147 In order of priority on that day, the plaintiff’s symptoms were:
§ continuing low back pain, extending on occasion to the right leg;
§ numbness under both feet;
§ diminished strength in the upper arms;
§ continuing headache;
§ dizziness; and
§ anxiety.
148 Professor Helme noted, despite an exacerbation of the plaintiff’s back pain shortly after returning to work eighteen months ago, her symptoms had overall continued to improve such that she is now approximately 80 per cent better than she was at time of injury.
149 The plaintiff described her low back pain as aching in nature and intermittent, and it had tended to occur weekly to monthly and lasted a few days, precipitated by movement. It was not present on that examination. At worst, it was nine out ten.
150 The plaintiff’s pain was diminished by medication and an exercise program. Her right leg pain was described as an intermittent pulling sensation which may last a few days and may reach eight out of ten. It was not present on examination. However, when present, it tends to come and go for a few minutes at a time and is exacerbated by various postures.
151 The plaintiff’s numbness occurs intermittently in the soles and toes of both feet, more on the right, and lasts for minutes. The strength in her arms is noted to be diminished, particularly when working, as she extends her arms above her head. She did not become appreciative of this problem until she returned to work. She believed her arm symptoms had settled by about 50 per cent in the last eighteen months, which she credited to physiotherapy.
152 Professor Helme confirmed the plaintiff can describe three types of headaches. He described her dizziness as “light headedness” but only lasting a few seconds. Headaches and anxiety were exacerbated by the onset of loud noise and sudden movement.
153 On examination, lumbar movement was full and there was no tenderness. Cervical movement was full without end of range discomfort and no tenderness. The neurological examination was normal.
154 Professor Helme concluded the plaintiff was 80 per cent improved, by her own estimate, from the time of the injury. Her major continuing symptoms had been intermittent low back and right lower extremity pain, with sensory disturbance on the sole of the right foot, suggestive of an S1 radiculopathy; a mild right-sided cervical radiculopathy with sensory signs suggestive of C6 nerve root irritation, which Professor Helme noted had been more symptomatic over time; cervicogenic occipital headache associated on occasion with brief episodes of visual disturbance with neck extension, and non-specific dizziness.
155 Professor Helme noted that although the plaintiff claimed an improvement of about 80 per cent and had been stable over the last year, he was concerned there was a subtle progression of spinal cord pathology since the February 2012 review. If that was substantiated by imaging, he thought the plaintiff’s prognosis may be more limited than would otherwise apply; thus, she needed reassessment by MRI scan.
156 Professor Helme noted the plaintiff’s overall prognosis, however, was dictated by comorbidities that were not related to the accident, including severe obesity and hypertension, both of which needed medical review.
157 Professor Helme noted the plaintiff was currently fully functional in her own view and was able to work full time in her preferred occupation and the only limitation was dancing.
158 There was a further re-examination in December 2014.
159 At first, the plaintiff was inclined to say there had been no change since the previous examination, but Professor Helme noted it became apparent that two changes had occurred which represented increased symptomatology and two which represented decreased symptomatology largely because of a change in activity. Dragging of the left leg seemed to be slowly increasing, having developed ten months earlier. There were headaches, dizziness and visual disturbance when turning her head to the left feeding her child. Because she was not currently working, there was not the problem with weakness in the arms.
160 The plaintiff remained of the view her lower back pain was the same. She had no recall now of numbness in the feet. She no longer had headaches with neck extension and her other headaches continued as before. Her anxiety continued and any dizziness was not precipitated by a loud noise.
161 Professor Helme thought the difficulties with feeding the baby to the left were hard to explain.
162 On examination, there was no abnormality of the lumbosacral spine or tenderness, and range of movement was full. There was normal neurological examination of the upper and lower limbs.
163 Observed range of movement of cervical spine spontaneously was normal. However, formal examination revealed a mild diminution. There was no cervical tenderness.
164 Professor Helme concluded the plaintiff’s symptoms had undergone a subtle change with time, with the new problem being left leg dragging, which he noted was of some concern despite limited abnormalities on examination. He noted the evolving of the symptomatology associated with turning her head to the left had evolved to be more suggestive of a possible vascular cause for visual disturbance and dizziness. He noted the plaintiff had continuing recurrent low back pain without prominent radiculopathy. Her headaches had partly settled and her anxiety was under control with self-initiated techniques.
165 Professor Helme repeated his major concern was there may have been some progression of the degenerative disease in the cervical spine, leading to the dragging of the left leg and subtle changes of symptomatology. Imaging of the cervical spine without head turning to the left was required.
166 Noting the plaintiff had remained much the same clinically since the accident, he thought her prognosis appeared to be good, noting the further investigations he had suggested.
167 Professor Helme noted Mr Kudelka’s report of February 2015 was essentially similar to his and that differences may well be attributable to minor natural fluctuations in the plaintiff’s condition.
168 Professor Helme reported again in June 2015, having been given a report from Dr Hardy and the MRI scan report of June 2015 of the cervical and lumbar spine.
169 Professor Helme noted Dr Hardy also recorded the left leg dragging in late 2014. He thought the plaintiff’s other fluctuating limb symptoms were not associated with objective abnormal signs and appeared non progressive and likely to be due to her degenerative disease of the spine, which cannot be associated with the accident, as it is constitutional and aggravated by her morbid obesity, recent pregnancy, as well as increased activity from return to work.
170 Professor Helme was still concerned about the subtle progression of spinal cord compression but there was no indication for surgery. He thought the plaintiff required three to six months review by a neurologist to ensure progression is not overlooked. Thus, he did not think the plaintiff was clinically stable from the perspective of any litigation.
171 In Professor Helme’s view, the plaintiff’s widespread symptoms in her arms and legs were not associated with focal signs or imaging abnormality and she did not require surgery in that regard, even though it was likely they were manifestations of degenerative disease, which cannot be attributed to her injury.
172 When Dr Thomas saw the plaintiff on 1 July 2009 on referral from Dr Frost, she complained of pain in the neck and lower back, and pains in both arms and legs, and of cervicogenic headache.
173 The plaintiff rated her pain at nine out of ten, at worst, and three out of ten at best. She reported 60 per cent improvement with chiropractic care, and a similar level of improvement with Panadol or Panadeine. She nominated her neck pain as possibly the worse area of complaint.
174 On examination, the plaintiff was morbidly obese. She had mild limitation of cervical and lower back movements. Neurologically, she was intact.
175 Dr Thomas initially thought there was a whiplash and associated disorder. He suggested the plaintiff try medication for cervicogenic headache. He recommended a multidisciplinary rehabilitation program along function restoration lines. The plaintiff struck him as someone who was motivated to improve and get better, and he thought that program was reasonable to assist her. He thought she had a work capacity and was applying for work, but then had not been successful. He referred her to Dorset Rehabilitation.
176 Dr Thomas then thought the prognosis was for persistent symptoms. He considered it likely imaging changes were present at the time of the accident and were unrelated to the plaintiff’s overall current symptomatology.
177 In a discharge summary from Dorset of 9 November 2009, a homebound exercise and a gym program was recommended.
178 It was noted the plaintiff had eight physiotherapy sessions between September and November 2009 with a mixed profile of results. She reported, overall, she was managing her pain better, remained more active overall and was less anxious about her symptoms. However, her headaches continued to trouble her daily and tended to be triggered by noisy environments rather than physical factors.
179 The plaintiff had six individual psychology sessions, learning a number of coping techniques, and she attended exercise physiology.
180 The plaintiff attended the Emergency Department at the Western General Hospital at Sunshine on 13 July 2011. Neck pain was diagnosed, and she was given a prescription for stronger pain relief.
181 The plaintiff was re-examined by Dr Thomas on 24 October 2011 for medico-legal purposes.
182 The plaintiff then complained of lower back and neck pain. She had to alter her posture frequently. She complained of headache, and that she simply had to cope with the nature of her pain. Medication included over-the-counter analgesia primarily, and occasionally, Panadeine Forte when the pain was particularly bad.
183 Since last seen, the plaintiff had gained work at Coles as a front-end greeter which she found within her physical tolerances. She did that work for six months.
184 On examination, the plaintiff was morbidly obese. There was no evidence of over-reaction or non-organic signs. She had a full range of lumbar movement and a mild limitation of neck movement and, neurologically, was normal.
185 Dr Thomas noted whiplash and associated disorder, cervicogenic headaches and non-specific lower back pain. He thought the prognosis was for persistent pain and associated disability.
186 The plaintiff was re-examined by Dr Thomas for medico-legal purposes on 13 March 2015.
187 The plaintiff then reported, from the physical perspective, her symptoms had continued. She complained more of back than neck pain, and that was the worse problem for her. The pain was not constant but present most days, and she had to alter her posture frequently. She had difficulty with prolonged sitting, and functional activities took longer.
188 The plaintiff still complained of neck pain and had headaches and dizziness and tried to avoid noises and noisy environments.
189 Medication then included Nurofen, or Panadol, or Voltaren, which the plaintiff would take one or so most days, and often six hourly.
190 On examination, the plaintiff had good general mobility. There was 70 per cent of normal lumbosacral spine movement and mild limitation of neck movement. Neurologically, the plaintiff was normal.
191 Dr Thomas noted, when he had last seen the plaintiff, she had well-preserved lumbar spine movements but upon re-examination, those movements had been restricted. He thought that may have been due to her ongoing obesity problems.
192 Dr Thomas noted the nature of the plaintiff’s injuries had had an impact upon her capacity for work and domestic duties. He saw it hard to foresee her continuing to work in her current condition, having deteriorated since the last assessment. Part of that would be due to her injury related condition, and part due to her weight. He noted that in her job as a manager of a retail store, the plaintiff had considerable flexibility to alter her posture. He thought the prognosis was for persistent pain and increase in disability, albeit, slowly over the medium to longer term.
193 Dr Hardy, at Campbellfield Medical Centre, first saw the plaintiff in October 2012 with a flare up of postural dizziness which Dr Hardy thought was likely to be cervicogenic. She prescribed medication and referred the plaintiff for physiotherapy.
194 In January 2013, the plaintiff presented with back pain, worse on the left, and also reported a known left-sided disc bulge. Neurological examination was normal and there was local back tenderness. A short rest from work and ongoing conservative treatment was recommended.
195 On 25 January 2013, the plaintiff reported improved pain symptoms following physiotherapy; however, she found work with bending and climbing ladders provoked her pain. She requested a restricted duties certificate. On 18 February 2013, the plaintiff reported feeling only a pinch in her back on waking, and a certificate supporting her return to full duties was given.
196 The plaintiff first reported left ankle pain on 6 June 2013, noting it as being sore since back at work, but also reporting a slip and drop fall to her knees two weeks earlier. There was then minimal swelling of the left ankle with a full range of movement and a sprain was diagnosed.
197 On review in July 2013, the plaintiff reported ankle pain was worse at the end of the day and she had seen a podiatrist.
198 On 8 August 2013, the plaintiff’s left lateral ankle pain was persisting and she was referred to Mr Brett Jackson, orthopaedic surgeon, who made a provisional diagnosis of subtalar osteoarthritis and advised a CT scan.
199 Since August 2013, Dr Hardy had seen the plaintiff only once on 25 November 2014, directly relating to a Transport Accident Commission related injury, with her having attended regularly to discuss other injuries, including her pregnancy. The plaintiff then reported her left leg was still numb and she stumbled sometimes when falling. Dizziness was still intermittent.
200 Since that time, the plaintiff attended for other medical issues and they have discussed her ongoing regular analgesics for back pain and self management, only in passing. She tended not to complain of or report stable persistent issues which she was able to manage and, clinically, Dr Hardy thought that was completely appropriate.
201 At the request of the plaintiff’s solicitors, Dr Hardy reviewed the plaintiff on 11 June 2015 in respect of her headaches, cervical canal stenosis, lower back pain and disc prolapse and related symptomatology.
202 Dr Hardy advised that the plaintiff continues to have pain in her neck and shoulders and she has been having left arm pain since the birth of her son. Her right arm also goes numb throughout the whole hand but this is much less frequent.
203 The plaintiff notices the bottom of the left foot is frequently numb and she has shooting pain down the back of the leg to knee. Her lower back also hurts at the same time. It is sore centrally and para spinally.
204 The plaintiff experiences headaches regularly and she is sometimes dizzy on looking upwards.
205 The plaintiff cannot walk far without resting, which she estimates is about 200 metres; cannot stand for more than five minutes; she sleeps poorly and can wake due to pain. She can drive her own car and can manage most housework assisted by her husband, excluding gardening. She can look after her child independently, although some of her pains and symptoms have worsened since the birth.
206 On examination, range of motion of the lower back seemed mildly reduced and the cervical spine examined well.
207 Dr Hardy noted in her job as store manager at Payless, the plaintiff was able to perform most duties, though she found looking up ladders et cetera and long hours provoked some worsening of symptoms. She performed reasonably well in domestic duties, though relied on her husband for assistance. She had been able to care for her baby successfully but that seemed to have caused an exacerbation.
208 Dr Hardy thought the plaintiff was able to interact socially if she wanted to through all this and that was due at least in part to her excellent ongoing self management.
209 Dr Hardy was not able to comment on the plaintiff’s prognosis independently at this time. She noted Professor Helme’s suggestions for further investigations.
210 Dr Hardy agreed with Mr Kudelka’s opinion, though she felt the plaintiff now had left leg and arm symptomatology worthy of further assessment and that injections or surgical management may need to be considered.
211 In January 2013, Dr Zawalinska, Dr Hardy’s partner, certified that the plaintiff, because of back pain, would need to avoid static postures for more than 30 minutes; no heavy lifting anything more than 3 kilograms or repetitive lifting; no bending or climbing on ladders.
212 In February 2013, Dr Hardy certified that the plaintiff had to have rest breaks if necessary (“If standing or sitting in one place for less than 30 minutes may need to move and stretch for a minute”); no heavy lifting anything more than 10 kilograms; or repetitive lifting from below waist height; bend from the knees, lift with the knees; and limited climbing on ladders.
213 Dr Hardy certified the plaintiff could work upwards from three hours a day to increase gradually over the next week, returning to full-time eight hours a day from 11 February 2013 (“four to six hour shifts are not unreasonable during the period 4 February to 8 February”). It was thought likely normal duties could be recommenced on 15 February 2013.
214 Dr Hardy noted on 18 February 2013, the plaintiff’s back pain had greatly improved and she could resume normal and full-time work as of that date.
Medico-legal examiners
215 Dr Paul Kornan, psychiatrist, examined the plaintiff in February 2011.
216 The plaintiff gave Dr Kornan a more extensive history of her post-accident employment than she deposed to.
217 The plaintiff told Dr Kornan that following the accident, she started a small business course for six weeks, then started her own small business from home. It was not going all that well. She was working on the mystery shopping about two hours a week, and she was now doing work as a greeter for Coles for three months, working sixteen hours a week. She would be at the front end of the store handing out baskets and, if necessary, report to the manager if she was uncertain about them.
218 The plaintiff told Dr Kornan her ongoing symptoms were of lower back pain which needed Panadol, or Panadeine or Panadeine Forte. She had pain every day, there were daily headaches, and there was neck and shoulder pain, but not every day.
219 Dr Kornan thought, from a psychiatric point of view, the plaintiff presented with an Adjustment Disorder with Mixed Anxiety and Depressed Mood and specific phobia, fear of cars and a further car accident.
220 Mr Kudelka, orthopaedic surgeon, first examined the plaintiff in January 2012. The plaintiff was then taking Nurofen, Panadeine and Panadeine Forte for pain. She was under the care of Dr Ting, general practitioner.
221 On examination, the cervical spine had a normal range of movement. The shoulders, elbows, wrists and fingers appeared clinically normal.
222 Mr Kudelka believed the plaintiff’s neck symptoms were related to degenerative changes shown on investigations which, on the history, were mechanically aggravated by the accident, with symptoms of neck pain and restricted movement, and some right arm pain which had not resolved.
223 On examination, Mr Kudelka noted neck pain and stiffness and headaches, but could find no abnormal physical signs. He thought the capacity for work and social and domestic lifestyle had all decreased.
224 Mr Kudelka then thought the prognosis was guarded, noting neck stiffness and tendency to headache may persist indefinitely. He thought the plaintiff should be encouraged to lose at least 40 kilograms, and continue with home-based exercise, and continue under the care of a general practitioner.
225 On review in November 2013, the plaintiff advised Mr Kudelka that she continued to receive tablets for persistent neck stiffness, back pain, pain in the right leg, numbness in the right leg, tingling in the left foot and occasional dizzy spells. Medication was Panadol, four to six hourly, and Voltaren as required.
226 On examination, there was some hesitancy in moving the cervical spine to a full range of movement. There was complaint of back stiffness. There was a full range of thoracolumbar spine movement, and there was no neurological abnormality.
227 In view of the fact it was five years since the accident and the plaintiff was still having symptoms in her neck and back, Mr Kudelka thought the prognosis was that she would always have some neck stiffness and back weakness. She would have some difficulty with work involving physical exertion, and there would be some interference with her domestic and recreational activities.
228 Mr Kudelka re-examined the plaintiff on 17 February 2015.
229 The plaintiff said she could not walk far. She slept poorly, could not carry any heavy weights and occasionally, as well as back pain and stiffness, had some neck aching. She developed numbness in the left foot and occasionally the right.
230 On examination, there was a full range of cervical movement. There was good movement at the shoulders. There was restriction of lumbar movement and straight leg raising.
231 Mr Kudelka noted the recent investigations, Dr Stockman’s report and the reports from Professor Helme, neurologist, dated February 2012 and December 2014.
232 Mr Kudelka noted he had seen the plaintiff three times, and found restricted movement of the lumbar spine and previously some restriction of movement in the cervical spine which now moved freely. He noted the plaintiff’s treatment had been conservative and supportive, and she could now not only work as a store manager, but had a six-month-old son.
233 Mr Kudelka strongly recommended the plaintiff reduce her excess weight by dieting, as obesity would perpetuate strains in her spine. He thought the prognosis was generally favourable, despite neck and back symptoms causing intermittent interference with social, domestic and recreational activities. He noted the accident occurred nearly seven years ago, and the plaintiff had been working as a store manager for three years and had now started a family.
234 Dr Stockman, rheumatologist, first examined the plaintiff in August 2009.
235 The plaintiff then continued to complain of frequent headaches, mainly confined to the occipital region, with radiation to the frontal area. They were present daily, but could fluctuate in severity. They were associated with nausea. There were no visual disturbances.
236 The plaintiff complained of neck pain and pain in both shoulders aggravated by movement, and she had been complaining of a rather unsteady gait and some ringing in her ears since the accident. She had also been complaining of lower back pain, with radiation down the back of the right leg to just below the knee, aggravated by prolonged posture. She had been feeling quite anxious.
237 The plaintiff was then taking Voltaren daily, and four Panadol or Panadeine a day.
238 On examination, the plaintiff was considerably overweight, with a fairly good range of cervical movement with somewhat limited movement in the lumbar spine, a slight reduction of straight-leg raising, and some tenderness in the lumbar spine.
239 Dr Stockman thought the headache seemed migrainous in nature, and was probably caused by cervical spondylosis, which could have been aggravated by the accident. He noted Professor Helme, who was more experienced in that area, labelled those as tension headaches and did not suggest any specific treatment. Meningioma was an incidental finding.
240 The second problem was lower back and right leg pain, and Dr Stockman thought lumbar disc prolapse bulge as seen on the CT scan was the most likely cause of pain. He noted, finally, the plaintiff had some flattening of the longitudinal arches and hyperpronation of the left foot, which was likely related to her obesity.
241 Dr Stockman endorsed the Dorset plan, and specific headache treatment, although not suggested by Professor Helme.
242 Dr Stockman expected the plaintiff’s symptoms would improve with time with treatment, but thought she could be well left with some residual pain and disability with regard to headache, neck and lower back pain. He thought her condition had not stabilised.
243 Dr Stockman reviewed the plaintiff in October 2013. She then had ongoing lower back pain with radiation down the right leg, pain in the left ankle, commencing six months prior to the visit, and some weakness in her arms. She also complained of headache.
244 The plaintiff weighed 133 kilograms and there was some limitation of lumbar movement on examination.
245 On review in April 2014, the plaintiff advised that she had continuing lower back pain radiating down the left leg to the ankle aggravated by prolonged sitting which could wake her from sleep. The lower back pain was not present daily. She had ongoing left ankle pain aggravated by prolonged standing, pressing down the clutch, or walking too long. There was also swelling of the ankle, and she felt the pain and swelling was getting progressively worse. She complained of intermittent numbness in the right sole of her foot. Her neck pain was infrequent, and she avoided quick rotation of her neck.
246 Dr Stockman noted the plaintiff continued working 38 hours a week and was allowed to sit and stand as required, and in this respect, co-workers were understanding of her disability and assisted her.
247 The plaintiff could do all the housework, but had some difficulty in putting on her left sock. Although her back pain was not present daily, she took Panadol regularly, as she felt it may prevent bad flare ups.
248 On examination, the plaintiff weighed 138.5 kilograms and was pregnant. Lumbar spine movement was painful and reduced. Straight-leg raising was slightly reduced. There was slight limitation of cervical spine movement associated with slight pain.
249 Dr Stockman noted the plaintiff continued to suffer from lower back pain and some radiation down the left leg. She had occasional neck pain and, in addition, she had had pain and swelling in the left ankle, which seemed to have arisen over the last few years.
250 Dr Stockman thought the plaintiff’s pain was caused by a lumbar disc prolapse bulge at L3-4 and L4-5, and it was likely to continue into the foreseeable future.
251 Dr Stockman noted the plaintiff’s neck pain had improved since seen in 2009. He thought the symptoms were likely to be due to disc degeneration prolapse. He noted the plaintiff complained of some weakness in her arms, which could be referred from her neck, because shoulder examination was normal.
252 The MRI findings of the cervical region showed quite significant disc prolapse pressing on the spinal cord, yet the plaintiff’s symptoms in the cervical region were quite mild, but could explain weakness in the arms. Dr Stockman thought the plaintiff could well have arthritis in the left ankle; however, there were no x-rays available, and it was unlikely to be related to the accident.
253 Dr Stockman thought the plaintiff’s neck and lumbar back pain was likely to continue into the foreseeable future. He thought she may have to have reassessment of her neck pain with a further MRI scan, given the severe nature of the findings.
254 Dr Stockman last examined the plaintiff in February 2015.
255 The plaintiff told him she struggled to get her job done at work and particularly had difficulty moving the stock and being on her feet all day. She continued to have pain across the lower lumbar region, radiating to the right thigh, and there was frequent numbness in the sole of the left foot. Pain was aggravated by prolonged standing, sitting and when laying supine.
256 The pain fluctuated from day to day, with the level varying between two and eight out of ten. She also complained of recurrent numbness in the hands, particularly the left, and had some stiffness, but no neck pain. The numbness in her hands had been there since the birth of her son.
257 The plaintiff also complained of pain and swelling in the left ankle, which was worse when walking up or down stairs, and she tended to step on the stairs sideways, which was less painful. The plaintiff was then taking about six Voltaren and six Panadol a day, occasionally substituting Voltaren for Nurofen. She felt she would not be able to cope without those medications. She did all housework but had frequent breaks.
258 The plaintiff’s weight of 133 kilograms was the same as prior to pregnancy.
259 On examination, there was reduced forward flexion, extension and lateral movement. There was slight reduction of straight-leg raising on the right. There were no neurological abnormalities. The left ankle was slightly swollen and painful with movement. The cervical spine was slightly reduced on lateral flexion, and movement caused discomfort. There were no upper limb neurological abnormalities.
260 No recent investigations had been reported.
261 Dr Stockman concluded the plaintiff continued to have fairly constant lumbar back pain, with some radiation into the right thigh, and numbness in the left foot. He noted that the symptoms somewhat differed to last year, when she had more pain in the left leg, while currently there was the foot numbness. However, she now has pain in the right thigh.
262 Nevertheless, Dr Stockman felt that back pain and leg symptoms were still caused by the lumbar disc prolapse bulge at L3-4 and L4-5, as seen on the 2009 CT scan. He thought the change in site of the leg pain suggested the disc may have moved since the last examination.
263 Dr Stockman thought the symptoms were likely to continue into the foreseeable future, the plaintiff’s condition being aggravated by excessive weight, which had remained unchanged since October 2013.
264 Dr Stockman thought the numbness in the arms, especially the left, would be consistent with a large disc prolapse in the cervical region shown in the 2011 MRI scan. That pathology was likely to have been aggravated by the plaintiff nursing her baby and should improve when she refrained from that activity.
265 Dr Stockman also noted the plaintiff had ongoing pain and swelling in the left ankle, which he thought was unlikely to be related to the car accident and noted it seemed to be causing less disability than the cervical pathology.
266 Dr Stockman concluded the plaintiff’s condition had remained unchanged since last seen and it was likely to improve with weight reduction, less standing and less lifting.
267 Dr Stockman confirmed the plaintiff may not be fit to remain in a job full time because of ongoing symptoms. He thought she should continue with analgesia and anti-inflammatories, and substantial weight reduction was likely to ease her lower back pain. As a result of her injuries, the plaintiff was slower in performing daily activities and although she tackled all tasks, she struggled to complete them and needed frequent breaks.
The Plaintiff’s earnings
Financial Year Gross Earnings 1 July 2004 – 30 June 2005 $39,690 1 July 2005 – 30 June 2006 $37,100 1 July 2006 – 30 May 2007 $32,219 1 July 2007 – 30 June 2008 $21,604 1 July 2008 – 30 June 2009 $23,366 1 July 2009 – 30 June 2010 $23,770 1 July 2010 – 30 June 2011 $23,283 1 July 2011 – 30 June 2012 $16,693 1 July 2012 – 30 June 2013 $39,425
The Defendant’s medical evidence
The Plaintiff’s treaters
268 The MedicalOne notes indicate that on 31 March 2010, the plaintiff attended with a flare up of back pain and it was suggested she return to physiotherapy, exercise et cetera. The next note of spinal pain was on 14 June 2011 when back pain was simply noted.
269 On 4 August 2011, there was a note at MedicalOne of neck pain (and Panadeine Forte). The next mention of spinal pain was on 21 January 2013 when Dr Hardy at Campbellfield noted “since Friday back pain – Voltaren or Nurofen and Panadeine Forte and still woke up this morning in pain”. On examination, the plaintiff’s back and paraspinal muscles were not tender and there was a reasonable range of movement.
270 Dr Hardy noted on 18 February 2013 – “back much better – still wakes up with a pinch in back – when constipated pain gets worse on normal duties at present already and coping well”.
271 The next entry of spinal pain was on 23 October 2014, when Dr Hardy noted – “upper back playing up with baby- pulling but managing ok”.
272 The plaintiff was seen by orthopaedic surgeon, Mr Brett Jackson, on 29 October 2013. He noted she had longstanding problems with pain over the lateral aspect of her left hindfoot. This was not significantly worsened by the accident. There was minimal improvement with medication. She also had longstanding weight issues.
273 The plaintiff had difficulty climbing the ladder at work, and standing on her feet for long periods in retail exacerbated her pain. Towards the end of the week on her feet, she had aching.
274 Mr Jackson’s assessment was of probable subtalar osteoarthritis, confirmed on later CT scan. A non-operative period was suggested but if there was deterioration, he thought the plaintiff may require a subtalar fusion.
Medico-legal examiners
275 Dr Mutton, occupational physician, examined the plaintiff in February 2009.
276 On examination, there was a full painless range of cervical movement except for in extension. There was little tenderness and no muscle spasm. There was a reasonable range of lumbar movement. There were no neurological abnormalities.
277 Dr Mutton diagnosed soft-tissue injuries to the spine including the neck and thoracolumbar spine; pain and discomfort in the left ankle and both knees by way of soft-tissue injuries and headaches. There was an unrelated meningioma. He noted, at the time of that examination, the plaintiff was currently asymptomatic beyond headaches. Treatment had been related to hypertension which had developed since the accident. He thought the plaintiff would then have a current capacity to return to full-time unrestricted employment in retail sales including footwear.
278 Following examination, Dr Mutton thought the plaintiff’s symptoms were likely to have an organic basis but there was considerable sensitivity to pain and disability. He then considered the plaintiff suffered from symptoms in the form spinal musculoskeletal difficulties and headaches. He noted they appeared to be relatively mild and there was little in the way of incapacity and believed that the plaintiff had a current capacity to return to pre transport accident and retail sales.
279 Dr Mutton thought there was little or no impact on activities of daily living, noting, however, the plaintiff had not returned to her recreational activity of rock and roll dancing as regularly as previously. She had not returned to all household functions, including lawn mowing, and she was not currently back at work. He thought she was unlikely to suffer harm by engaging in occupational or daily living activities, and restrictions were not indicated.
280 Dr Mutton thought the plaintiff then had a current capacity for full employment of a light to moderate type as previously undertaken. He thought she had little in the way of significant clinical findings in relation to the musculoskeletal system.
281 Noting the plaintiff’s previous sales experience, Dr Mutton thought she could alternatively undertake a range of semi-skilled, unskilled activities such as process work, including bench work, light assembly work, container filling and the like, in addition to a range of clerical and administration tasks, as well as light to moderate retail sales.
282 Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff in June 2011.
283 On examination, there was some limitation of thoracolumbar movement and no neurological abnormality. There was a satisfactory range of cervical movement.
284 Mr Fogarty thought the injuries resulting from the accident were soft-tissue injury to the neck, probably aggravating early degenerative disc disease at C5-6 and soft-tissue injury to the low back, probably aggravating very early degenerative disc changes in the lower part of the lumbar spine.
285 Mr Fogarty noted the plaintiff was then working part time in retail. She could manage activities of daily living but reported she was rather slow in most activities.
286 At that stage, Mr Fogarty thought the pre-existing degenerative disc disease in the lower neck, spine and lower lumbar spine probably influenced the course of the current injury, although the neck condition seemed to have settled almost fully and he did not think any other form of treatment was appropriate.
287 Dr David Weissman, psychiatrist, first examined the plaintiff initially in June 2011 when she was doing 20 hours a week merchandising, which she told him she found quite physically demanding.
288 Dr Weissman noted the plaintiff had been seeing a clinical psychologist regularly shortly after the accident. She did not take antidepressants per se.
289 Dr Weissman thought the plaintiff had been suffering from mild to moderate generalised anxiety, irritability and frustration, as well as accident specific mild post-traumatic stress and anxiety symptoms and features of traumatisation directly due to the accident circumstances. He thought she had also been suffering from mild to moderate mixed reactive anxiety and depressive syndrome as a consequence of, or secondary to, the accident-related pain, injuries and disabilities with a degree of pain focus.
290 Overall, the plaintiff was then suffering from a mild Chronic Post-Traumatic Stress Disorder (“PTSD”) associated with symptoms and features of traumatisation, as well as a mild or perhaps mild to moderate Chronic Adjustment Disorder with Anxious and Depressed Mood. He could not say there was clear evidence that the plaintiff was suffering from a Chronic Pain Disorder (associated with psychological factors and a general medical condition) at present. He thought her psychiatric prognosis should be relatively good.
291 On re-examination in March 2015, Dr Weissman noted the last examination had been three and a half years ago and the plaintiff was now married and working full time, having recently had a baby.
292 Having carefully considered the plaintiff’s situation, Dr Weissman decided that there is no psychiatric, psychological or emotional symptoms relevant to her current presentation.
293 Overall, Dr Weissman thought the plaintiff was suffering from mild residual PTSD and anxiety symptoms. She was currently suffering from symptoms and features of a mild Chronic Adjustment Disorder and he thought her psychiatric prognosis was good.
294 Dr Boys, orthopaedic surgeon, examined the plaintiff on 24 April 2015.
295 On examination, the plaintiff’s predominant symptoms related to her lumbar spine and left ankle regions. She complained of postural neck pain and was generally free in her cervical region although on occasions she would experience front occipital headache. She was not conscious of limitation of neck movement. She described dizziness at times, with extension and related occasional sensations of paraesthesia of the fingertips of the left hand.
296 Dr Boys noted the plaintiff’s shoulder is now asymptomatic and she exercises care with loaded over shoulder use of the arm. There is a complaint of intermittent low back pain experienced about twice a week and when present, is noted at the lumbosacral junction. That is associated with periods of protracted standing positioning of the spine.
297 The plaintiff reported a walking tolerance of about half an hour. She could bend routinely working as a shoe salesperson and she avoided a squat or stooped position.
298 The plaintiff described intermittent left anterior lateral ankle pain. She was conscious of swelling and loss of movement but not conscious of mechanical symptoms when moving the ankle. She related a degree of insecurity of the left lower limb but the ankle did not give way. She described difficulties walking across sloping or uneven surfaces and was not able to wear heels.
299 On examination, the plaintiff was morbidly obese. The right shoulder was normal. The cervical and lumbar spine was non tender. Active spinal movements of the thoracolumbar spin were to half normal. Neurologically, the plaintiff was normal.
300 Dr Boys thought the plaintiff had evidence of pre-existing lumbar spondylosis. She appeared to have suffered a soft-tissue injury to her neck and cervical spine in the accident. He thought there were no inconsistencies between his findings and the plaintiff’s history.
301 Dr Boys thought the plaintiff had experienced recovery following a soft-tissue injury to her neck. Minor residual symptoms were evident, consistent with the degree of documented age-related degenerative change evident radiologically. He thought ongoing complaints of central low back pain were described in a morbidly obese individual with changes within the lumbar spine so the complaint referrable to the lumbar would appear to be stable. He thought there was no surgically remedial lesion evident.
302 Dr Boys was unable to find any physical injury which would give rise to the protracted period of incapacity between February 2008 and an ultimate resumption of full-time employment in 2011 or 2012, as it would normally be four or six weeks for a normal period of incapacity for that sort of injury.
303 Dr Boys noted the plaintiff had a propensity to low back strain in the course of activities requiring protracted static positioning of the spine. That reflected her body habitus and degenerative changes within the lumbar spine. He thought that type of discomfort, however, did not give rise to limitation in the capacity to work as a shoe store manager or engage in routine activities of daily life.
304 Dr Boys noted the plaintiff was currently undergoing investigative treatment directed to a painful ankylosis of the left ankle and subtalar joint. This condition is unrelated to the accident. Similarly, he noted the plaintiff experiences no symptoms at this time but has experienced discomfort associated with calcific tendinosis of the right shoulder which is also unrelated to the claimed injury.
Overview
305 There is no dispute that the plaintiff suffered injury to her spine in the transport accident. The consensus of medical opinion is that she suffered a soft tissue injury to her neck and lumbar spine and also aggravation of pre-existing degenerative changes at those levels.
306 Whilst it is the impairment not injury which is the relevant consideration,[56] although the plaintiff’s spine is not pristine,[57] investigations have not revealed significant pathology requiring other than conservative treatment.[58] More recent clinical findings and investigations findings have been attributed by Professor Helme to factors unrelated to the accident injury.
[56]Richards & Anor v Wylie (supra), per Winneke P
[57]T81
[58]T65
307 Although the plaintiff had some minor back pain in the year before the accident, it was not submitted this was an aggravation case where the principles in Petkovski v Galletti[59] apply. Further, there is no suggestion that the plaintiff’s spinal condition lacks an organic basis.
[59]Supra
Issues in dispute
308 The issue is seriousness and within that heading, whether the consequences of any spinal impairment at the date of hearing meet that criteria, excluding the consequences of any unrelated left foot injury.
309 It was conceded that, to some extent, the plaintiff has some pain and restriction but the level thereof was very much towards the mild-moderate end of the spectrum rather than anything within the realms of seriousness.[60]
[60]T65
Credit
310 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[61]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[61](2010) 31 VR 1 at paragraph [12]
311 I had some concerns about the plaintiff’s credibility.
312 At times, the plaintiff overstated her level of incapacity and need for treatment. Clearly, she has not taken Panadeine Forte on a daily basis, as she earlier deposed, with very few prescriptions of that medication. As at early 2015, she was not seeing Dr Hardy at least monthly for treatment related to her accident injuries as she deposed earlier this year.
313 Further, the plaintiff could not explain why she positively deposed in her September 2011 affidavit to not being able to work since the accident because of her injuries when she had in fact worked as a greeter, a mystery shopper and merchandiser after the accident.
314 Significantly, there was no mention of the plaintiff’s left foot problem in her affidavits, the most recent of which was very detailed. Further, in her viva voce evidence, the plaintiff attempted to minimise what appears to be quite a significant ongoing foot problem, predominantly blaming her restrictions on her spinal injury.
315 I do note however that there was no doctor who suggested that the plaintiff was exaggerating or embellishing her condition. Further, there was no surveillance film or other evidence contradicting her stated level of incapacity.
Pain
316 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]
[62](supra) at paragraph [11]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
317 In her most recent affidavit, the plaintiff described constant variable levels of lower back pain, and most days, pain extending down the right leg. Most days she develops pain, which is then constant and fluctuating in intensity, but generally worsens as the day progresses.
318 Whilst the plaintiff attempted to explain the histories given by her to a number of doctors, constant daily pain was not noted by Dr Thomas, Professor Helme, Dr Boys or Mr Kudelka.
319 Of recent times, the plaintiff has not complained of ongoing significant, neck pain advising examiners that her neck pain and related headaches have improved. She described neck stiffness but no pain when seen by Dr Stockman this year. In September 2013, the plaintiff did not mention her neck in her list of symptoms to Professor Helme. Range of cervical movement was full when examined by Mr Kudelka earlier this year and only a slight reduction in lateral flexion found by Dr Stockman.
320 The plaintiff has reported to a number of examiners improvement in her cervical pain, such that any ongoing problems are described principally as lumbar spine related.
321 Only after having been requested to comment specifically on the plaintiff’s accident-related complaints in March 2015 did her treating general practitioner, Dr Hardy, mention any spinal complaints as having any significance in the plaintiff’s ongoing presentation.
What the Plaintiff did about her pain
322 I accept that the plaintiff’s presentation at the hospital following the accident was not suggestive of a serious spinal injury.[63] Whilst she attended her general practitioner on a number occasions for spinal pain in 2008, there was only one prescription of Panadeine Forte on 27 May that year. The next prescription was over two years later, in November 2010. There were further prescriptions in July and August 2011. The last prescription was in January 2013.
[63]T65
323 Whilst the plaintiff has regularly taken over-the-counter medication, I do not accept this medication regime comes within that described by Dodd-Streeton J in Kelso v Tatiara Meat Company Pty Ltd [64] as the plaintiff’s counsel submitted.
[64][2007] VSCA 267
324 After March 2010, the plaintiff rarely attended her general practitioner with accident-related complaints, although she frequently attended for unrelated complaints. Post 31 March 2010, there were ninety six visits, of which only eleven related to spinal pain.
325 Dr Hardy’s treatment of the plaintiff for any accident-related complaints has been minimal. Having first seen the plaintiff on 18 February 2012, she next saw her only once, on 25 November 2014, directly relating to her Transport Accident Commission related injuries, although the plaintiff attended regularly for other issues, including management of pregnancy.
326 The next attendance with Dr Hardy was in June 2015 at the request of the plaintiff’s solicitors, having been provided with details of her accident injuries. In more recent times, Dr Hardy had focused on the plaintiff’s left foot injury and not really paid much attention at all to the plaintiff’s accident injury.[65]
[65]T67
327 The lack of attendances are consistent with the plaintiff’s reported improvement post injury. After the initial improvement following which the plaintiff agreed she was able to return to full-time work in February 2012, she continued to improve such that by September 2013, she described herself as back to 80 per cent of her pre-injury condition.
328 As Professor Helme noted in 2012, the plaintiff continued to improve with the minimum of external interventions. In September 2013, nine months after the relapse, the plaintiff described her low back to him as intermittent and aching in nature.
329 Specialist referral to Professor Helme was in relation to the plaintiff’s headache rather than specific complaints of spinal pain.
330 I do not accept the plaintiff did not seek medical attention because she was a stoic, as her counsel submitted. In my view, the plaintiff was able to function in both her work and daily activities with the assistance of over-the-counter medication and did not require more significant treatment or prescription medication. As the plaintiff described, she managed well with physiotherapy, chiropractic treatment and hydrotherapy.[66] Further, the plaintiff acknowledged some improvement following pain management in 2009 to 2010.
[66]T21, T31
331 Whilst it is apparent there was some deterioration in the plaintiff’s lumbar condition in January 2013, the following month, she was certified fit for normal duties, having “greatly improved” according to Dr Hardy and she has not reported any ongoing problems with work to Dr Hardy save for when seen by her in June this year in a medico legal context.
332 However, in recent times, the plaintiff has sought medical attention on a number of occasions for her left foot pain and two specialist referrals have been made.[67]
[67]T68
Consequences
333 In Dwyer v Calco Timbers Pty Ltd (No 2),[68] Ashley, JA stated:
“… in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. 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 consequences, may be informed, to an extent, by what is retained.”
[68][2008] VSCA 260 at paragraph [27]
334 Counsel for the defendant submitted, post accident, if anything, the plaintiff now leads a more active lifestyle than before. She continues to work full time, also caring for a young baby. She is able to do all activities of daily living and housework albeit with modifications such as taking breaks.[69]
[69]T70
Work
335 The plaintiff was not working at the time of the accident, as she had recently taken a redundancy package from her sales job.
336 Whilst she deposed to the contrary, the plaintiff returned to work not long after the accident involved in the NEIS Scheme, trying to start her own business making handbags. She had difficulty doing that, as was noted by her general practitioner.
337 The plaintiff then had a two jobs with Creative, undertaking mystery shopper work one or two hours a week and, for a six-month contract, she worked four hours a day, four days a week as a greeter at Coles. She then worked as a merchandiser for twenty hours a week.
338 In my view, the plaintiff would not have been able to undertake the greeter role or that of merchandiser, both which would have required prolonged standing, if she had a significant spinal problem. The ability to do those jobs was at odds with someone who was, in any sense, significantly troubled by functional restrictions, as the plaintiff claimed.[70]
[70]T80
339 Since those earlier roles, the plaintiff has been employed full time as a sales person in a shoe shop since February 2012. Whilst she claims to have some ongoing problems at work being on her feet all day, climbing ladders and accessing stock, I am not satisfied any work related consequences are serious.
340 Save for a flare up in January 2013, the plaintiff has not required time off work in relation to her accident injuries. No work restrictions have been certified since that time. I do not accept as the plaintiff recently reported to Dr Hardy that she cannot stand in the one position for more than 5 minutes.
341 Although medico-legal examiners, Dr Stockman and Dr Thomas, thought the plaintiff will not be able to continue in full-time employment, so far this has not been the case and she has had had no significant problems carrying out her work duties in the last two and a half years.
342 In any event, the plaintiff’s ankle is also a relevant factor as to her work capacity, having complained to Mr Jackson in September 2013 of problems standing at work and climbing ladders.
Activities
343 The plaintiff claims her spinal condition impacts on her ability to undertake a range of activities.
344 I accept that the plaintiff’s spinal condition has caused her difficulty with prolonged sitting and bending and it interferes with her sleep. Further, she has been unable to engage in her hobby of dressmaking.
345 Whilst the plaintiff may have had some difficulty caring for her baby because of her back condition, Dr Hardy noted she can look after the baby independently and successfully, although some of her pains and symptoms have worsened since the birth.
346 The plaintiff has been unable to continue the pastime of rock and roll dancing, which she previously enjoyed weekly. Whilst the plaintiff cannot dance because of her back, she acknowledged that her ankle condition also affects her ability to dance. Her evidence in relation to her capacity to go on long walks is to a similar effect.
347 Neither of the plaintiff’s sisters who swore affidavits earlier this year deposing as to the plaintiff’s problems walking, made any mention of her ankle condition.
348 In my view, the plaintiff’s problems climbing ladders or stairs is related solely to her ankle condition.
349 The plaintiff is able to undertake a full range of housework, although she has to pace herself. As Dr Hardy noted, the plaintiff performed reasonably well in domestic duties although she relied on her husband for assistance. Dr Stockman’s history was the plaintiff could do all housework
350 The plaintiff is limited in the amount of traditional Italian cooking she can undertake and also limited in her gardening activities.
351 In my view, any restrictions resulting from the plaintiff’s spinal condition are moderate, not more than significant or marked, hence they do not meet the high threshold of serious. Treatment has not been significant, nor has there been the requirement for strong painkilling medication other than for short bursts.
352 The plaintiff continues to work full time in a relatively physical sales job in which she has to be on her feet all day. Save for a short period of restricted duties in early 2013, she has been unable to work full time without significant time off or the need for treatment or any restriction in duties.
353 Whilst I am entitled to take into account the expected emotional consequences of the plaintiff’s physical injury,[71] her own description of these factors in her most recent affidavit does not take her impairment into the serious definition.
[71]Richards & Anor v Wylie (supra)
354 Further, other co morbidities unrelated to the accident, namely severe obesity and hypertension have played a significant role in the plaintiff’s overall prognosis as Professor Helme and other examiners have noted.
355 Taking into account all the evidence, I do not accept the consequences of any spinal impairment are serious.
356 I also find that the plaintiff’s left foot condition presently contributes to a number of the restrictions she claims are spinally based - in particular relating to her work, her ability to dance and also to enjoy recreational walking.
357 Although Mr Jackson suggested conservative treatment of the plaintiff’s ankylosis of the left ankle joint and subtalar joint in 2013, the plaintiff acknowledges this condition is getting progressively worse and she is awaiting a further specialist examination.[72]
[72]T88
358 However, having found any present spinal impairment is not serious, it is not necessary to decide which of the pain and suffering consequences are attributable to which injury as Maxwell P set out in Peak Engineering & Ors v McKenzie.[73]
[73][2014] VSCA 76 at para [24]
359 Accordingly, the plaintiff’s application is dismissed.
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