McIsaac v Fuji Xerox Document Management Solutions Pty Ltd
[2024] VCC 447
•15 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-03404
| TAMIE ELIZABETH McISAAC | Plaintiff |
| v | |
| FUJI XEROX DOCUMENT MANAGEMENT SOLUTIONS PTY LTD (ABN 74 000 553 284) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2023 | |
DATE OF JUDGMENT: | 15 April 2024 | |
CASE MAY BE CITED AS: | McIsaac v Fuji Xerox Document Management Solutions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 447 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the lower back and psychiatric and psychological condition – chronic pain syndrome – chronic adjustment disorder with depressed and anxious mood – disentanglement of consequences between the physical and psychiatric injury – pain and suffering damages – loss of earning capacity damages – causation of physical injury to the plaintiff – whether the plaintiff has satisfied the statutory standard in respect of a serious injury application.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: The plaintiff’s application for serious injury certificate in respect of both physical and psychological/psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick with Mr M A Belmar | Shine Lawyers |
| For the Defendant | Mr C A Miles | Lander & Rogers |
HIS HONOUR:
1The plaintiff brings this application by Originating Motion dated 22 August 2022.The plaintiff applies for leave pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising from, and in the course of, her employment with the defendant.
2In respect of the physical injury, the plaintiff seeks certification for both pain and suffering and loss of earning capacity concerning injury to her spine. There was no frank injury date nominated by the plaintiff regarding that application.
3The plaintiff also alleges that she suffered a psychiatric injury as a result of her employment with the defendant, and seeks leave to bring proceedings for damages in respect of pain and suffering and loss of earning capacity.
4The plaintiff gave evidence and was cross-examined.
5The plaintiff tendered the following exhibits:
· Exhibit “A” ꟷ Plaintiff’s Court Book (“PCB”), pages 8 to 42, pages 54 to 58, pages 67 to 68, page 71, page 81, pages 92 to 121, pages 128 to 182, pages 193 to 194 and page 202.
6The defendant tendered the following exhibits:
· Exhibit 1 – Plaintiff’s Court Book, pages 51 to 53, pages 63 to 66 and pages 78 to 81.
· Exhibit 2 – Defendant’s Further Amended Court Book (“DCB”), pages 5 to 12, pages 22 to 188 and pages 196 to 257.
7At the commencement of the proceeding, Mr Miles, on behalf of the defendant, identified the following issues as relevant in this application:
(a) the defendant does not accept the claim for injury made by the plaintiff;
(b) the causation of any back, neck or right shoulder condition complained of by the plaintiff is disputed;
(c) the plaintiff must disentangle the consequences of the physical injury alleged by her from the psychiatric aspect of the claim in this case;
(d) the psychiatric and psychological injury does not satisfy the statutory test of being “severe”;
(e) the plaintiff is capable of performing four jobs identified by CoWork Pty Ltd (“CoWork”) and approved by Dr Joseph Slesenger and Dr David Vivian. There is no loss of work capacity to the extent of 40 per cent.
The statutory scheme
8The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of body function”.
9The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 1 July 2014;[1]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than ‘significant’ or ‘marked’”, and as being “at least very considerable”;
(e) subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) in conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1]See s1 of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [11]
[2]Barwon Spinners (ibid) at paragraph [33]
[3] Supra
10I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
11The plaintiff was born in Melbourne and at the time of the hearing was forty-five years of age.[4]
[4]PCB 8
12The plaintiff was educated to Year 12 and gained a place at Deakin University, studying a Bachelor of Commerce degree. The plaintiff only completed her first year at university and did not return to finalise that study.[5]
[5]PCB 10
13At the age of twenty-nine, the plaintiff was married. She was divorced at the age of thirty-five. The plaintiff has no children and lives on her own.
14The plaintiff commenced working with the defendant or its predecessors in 1997. There have been many company takeovers, but the plaintiff has remained in that data-entry work for the defendant. Her final time of employment was in April 2017.
15The plaintiff had previously suffered a neck injury in 1999.[6] The results of that injury resolved after a successful claim for worker’s compensation.
[6]PCB 9
16In 2009/2010, the plaintiff underwent a LAP-banding procedure at the hands of Associate Professor Peter Nottle, laparoscopic general surgeon.[7] The plaintiff had subsequent procedures concerning her excess skin and adjustments to her LAP-banding procedure in 2015. In late 2015, the plaintiff had further medical intervention in respect of the LAP-band port location and the pain resulting from it.
[7]PCB 14
17In March 2016, the plaintiff’s relationship of one year ended. It was at about this time that the plaintiff had a further LAP-band port procedure performed.[8] Throughout 2016, the plaintiff was experiencing abdominal “tummy” pains resulting from the LAP-band port relocation.[9] The plaintiff, in the period of 2015 and 2016, had been prescribed Endone and Targin to deal with her stomach pains.[10]
[8] PCB 15
[9] Transcript (“T”) 33
[10] PCB 15
18The plaintiff has a complex and complicated psychological and mental health history in respect of an incident which precipitated the cessation of her university studies and her long-term relationship with her mother. The plaintiff also has a complex history of physical ailments relating from her morbid obesity and treatments that she has received as a result of that condition. The plaintiff has been a long-term user of prescribed opioid medications.
The injury with the Defendant
19The plaintiff worked as a data-entry operator for the defendant.[11] The plaintiff’s claim is that she was injured as a result of her poor ergonomic set up of her desk and chair in combination with the amount of work she was required to perform as a supervisor. This is set out in her affidavit dated 29 March 2022.
[11]PCB 10
20In respect of the psychological/psychiatric claim, the plaintiff alleges, as a result of the pain to her lower back in particular, she is now suffering from Depression and an Adjustment Disorder.
Psychiatric injury
21The plaintiff ceased work as a result of the injuries received in her employment with the defendant in April 2017. In November 2017, the plaintiff was seen by Dr Singh, psychiatrist. In the Plaintiff’s Court Book, there was a report from a Dr Indrapal Singh dated 22 November 2017.[12] This report was not tendered or relied upon by the plaintiff.
[12]PCB 78-80
22Dr Husam Al-Harafi, a pain physician, took a history from the plaintiff in respect of her mental health. In his report dated 30 April 2018, he records the plaintiff complaining to him of anxiety and depression from two years ago and that she was on Lexapro. The plaintiff, at that time, had been seeing a psychologist. The plaintiff stated that she did not have any suicidal ideologies or tendencies, but had panic attacks on some occasions.[13] The mental health history given to Dr Al-Harafi clearly indicates the plaintiff had pre-existing mental health issues that are unrelated to the case before this Court.
[13] PCB 94
23The plaintiff relied upon six reports from Dr Lucy Verwey, psychologist, dated 30 September 2018, 11 December 2018, 19 December 2018, 5 February 2019, 19 February 2019 and 15 September 2019. Dr Verwey has been treating the plaintiff since April 2017.[14] Dr Verwey took a history from the plaintiff, stating she experienced pervasive symptoms of depressed mood, panic attacks, feelings of helplessness and hopelessness, frequent worrisome thoughts and disturbed sleep. The plaintiff complained of nightmares about experiences in the workplace.[15] Dr Verwey then went on to describe the precipitators of these complaints and conditions as being stressors relating to her history of sexual harassment by a manager in the plaintiff’s workplace. The application in this case is nothing to do with any allegations of sexual harassment against a previous manager at the plaintiff’s place of employment.
[14]PCB 96
[15]PCB 100
24Dr Verwey’s reports refer to pain management treatment that the plaintiff was also receiving from The Royal Melbourne Hospital. Throughout all of Dr Verwey’s reports, she attributes the psychological symptoms to the allegations of sexual harassment by the plaintiff’s manager. Dr Verwey acknowledges that the pain and physical disabilities the plaintiff complains of has some impact on her psychological wellbeing, but does not separate that matter from the principal complaint of sexual harassment.
25The plaintiff has been treated by her general practitioner, Dr Summera Munir, over a period of time. The general practitioner has prescribed the plaintiff with Diazepam and Lexapro.
26In the plaintiff’s initial affidavit dated 29 March 2022, she acknowledges prior mental health difficulties. She states:
“I acknowledge that I have in the past had considerable mental stress both in my private life prior to commencing work with the defendant and also throughout my period of employment with them for both private and work-related reasons. I have had some difficult events in my life which I do not propose to go through at this stage.”[16]
[16]PCB 9 at paragraph 6
27In opening, Mr Fitzpatrick, on behalf of the plaintiff, stated that the support for the psychiatric claim was contained in the reports of Dr David Weissman, consultant psychiatrist.[17] He acknowledged that the plaintiff had a secondary psychiatric reaction because of the pain she suffers from physical injury. He also noted that the plaintiff had made a claim for stress and harassment in the workplace.[18] That claim is not before this Court.
[17] T1
[18] T2
Dr David Weissman, consultant psychiatrist
28Dr Weissman examined the plaintiff for the purposes of this application. He prepared two reports, dated 24 August 2022 and 8 June 2023. In Dr Weissman’s report,[19] he notes the report of Dr Singh dated 22 November 2017. Dr Weissman notes that the report also refers to non-work-related psychosocial and relationship stressors that were impacting the plaintiff:
“… Further, that report refers to a four-year history of depression and anxiety prior to November 2017, without significant, or any, reference to physical pain and symptoms … .”[20]
[19]PCB 150
[20]PCB 150
29In the diagnosis section of Dr Weissman’s report, he states as follows:
“There may well be discrete, identifiable, acquired, organic pathology in this case. However, in addition to this, there is most probably some additional pain and symptom-focus and preoccupation and elevated health concerns due to so-called psychological, functional and ‘non-organic’ factors.
This raises the possibility, if not probability, of an additional diagnosis of a chronic pain disorder associated with psychological factors and a general medical condition (DSM-4) in this case, now known as a somatic symptom disorder with predominant pain, persistent (DSM-5). It is probably due to a mixture of organic and psychological/emotional factors, though I make no comment regarding the former, which is outside my area of expertise. I will move on.
At the outset, this is a very complex case and assessment.”[21]
[Emphasis in original.]
[21]PCB 159
30Dr Weissman went on to state that the plaintiff had not-insignificant premorbid psychological and emotional vulnerability factors. It is possible that she had some premorbid borderline and dependent maladaptive personality traits. But he noted that the plaintiff had only been seen on one occasion by himself.[22]
[22]PCB 159
31In an attempt to separate the relevant work stressors causing the psychological condition of the plaintiff, Dr Weissman stated as follows:
“On the other hand, there are other significant contributing factors to her psychiatric conditions/mental injuries. Further, after careful consideration, I think that other work-related stressors, as well as unrelated psychosocial stressors, represent the major significant contributing factors in this case and not her lower back pain/condition. Her lower back pain condition is not the major, significant contributing factor.”[23]
[Emphasis in original.]
[23]PCB 160
32Dr Weissman stated his diagnosis as follows:
“… moderate to moderately-severe Persistent Depressive Disorder with anxious distress and Chronic Adjustment Disorder with depressed and anxious mood, in part, relevant to her employment and, in part, relevant to her lower back pain/condition.”[24]
[24]PCB 161
33Dr Weissman’s diagnosis and opinion does not make a finding, first of all, that the plaintiff’s condition is of such a level to satisfy the statutory test of “severe”. He has qualified it by referring to it as moderate-to-moderately severe. Secondly, Dr Weissman has not separated out the relevant conditions for symptoms relating the plaintiff’s lower back pain or condition.
34In a later report dated 8 June 2023, Dr Weissman addresses the issue of the plaintiff’s employment as a result of her psychological and psychiatric condition.
35In his report, he states that the plaintiff has a partial psychiatric incapacity for work, which he estimated to be “0.6 EFT”, to perform suitable duties which had been outlined in the CoWork Vocational Assessment Report. Dr Weissman referred to this assessment as being artificial and hypothetical because the plaintiff has to be considered as a whole person, which included all of her psychiatric incapacities and related incapacities, and the physical incapacities.[25]
[25]PCB 169
36In consideration of the psychiatric and psychological injury claim in this case, I also note that Dr Clayton Thomas, consultant in rehabilitation and pain medicine, in his report dated 15 June 2023, stated that:
“She has comorbid mental health problems which are adding to the complexity and generally act as a pain magnifier.”[26]
[26]PCB 141
37This statement by Dr Thomas further complicates a proper assessment of the psychiatric injury resulting from the pain generated by the physical condition to the plaintiff’s lower back.
Dr Timothy Entwisle, consultant psychiatrist
38Dr Entwisle was engaged to examine the plaintiff on a medico-legal basis for the defendant. Dr Entwisle prepared three reports, dated 16 May 2017, 19 September 2017 and 2 January 2018. Dr Entwisle stated that the plaintiff’s claim is “indeed complex and difficult to unravel”.[27] Dr Entwisle took a history from the plaintiff that her stress claim is multifaceted and includes allegations involving a manager, someone senior to her who would send the plaintiff sexualised emails and texts, and other sexually-related matters.[28] The plaintiff also described the workplace as being “toxic” and “secretive and underhanded”.[29] Dr Entwisle’s opinion, in the first report, was that the plaintiff had symptoms of:
“… adjustment disorder with depressed and anxious mood, secondary to pain and incapacity, alleged workplace stressors and work overload.”[30]
[27]DCB 174
[28]DAB 175
[29]DCB 175
[30]DCB 177
39Dr Entwisle went on to state as follows:
“Work and non-work factors appear relevant in Ms McIsaac’s case. She indicated that her treatment involved discussion with her relationship with her mother, but then attempted to dismiss this, preferring to focus on work-related events. (Workplace stressors and her back injury). Her treatment involves management of those various aspects in combination and it is difficult to tease out their relevant contributions. As such it is difficult to know exactly when the illness arose, in what form, and when.”[31]
[31]DCB 177
40In his second report dated 19 September 2017, Dr Entwisle took a history from the plaintiff that her anxiety problems date back to 2014.[32] Dr Entwisle diagnosed the plaintiff with an Adjustment Disorder with Depressed and Anxious Mood. He went on to state that:
“On this occasion … [the plaintiff] indicated that she has been troubled by anxiety and panic attacks for over three years predating the claimed injury date. As such it appears that her current symptoms would be regarded as an aggravation of pre-existing psychiatric condition.”[33]
[32]DCB 180
[33]DCB 183
41In his final report dated 2 January 2018, Dr Entwisle stated that:
“… [The plaintiff’s] original work related condition has been overtaken by non work related factors involving … [her] perception of her childhood and the development of a now strongly entrenched, passive lifestyle.”[34]
[34]DCB 188
42Dr Entwisle went on to state that he had assessed the plaintiff on three separate occasions and regarded her condition as no longer being related to her original work injury. In Dr Entwisle’s opinion, the barriers relating to the plaintiff’s employment relate to the development of a marked abnormal illness behaviour. In short, Dr Entwisle states that the plaintiff’s inability to work is not related to her claimed injury.[35]
[35]DCB 188
43The plaintiff, during cross-examination, gave evidence that she had not attended any psychiatric or psychological treatment from psychologists or psychiatrists for a few years up until the present time.[36] The only treatment the plaintiff has had in terms of psychological or psychiatric treatment is from a general practitioner by way of prescription for Lexapro. The lack of ongoing psychological or psychiatric treatment for a number of years prior to the date of the hearing is indicative that the level of psychiatric or mental health disorders not qualifying as being “severe”.
[36]T57
44In conclusion, I do not accept that the plaintiff has satisfied the Court, on the balance of probabilities, that there is an impairment for a mental or behavioural disturbance or disorder that could be described as “being more than serious to the extent of being severe”. The plaintiff’s application for a serious injury certificate for both pain and suffering and loss of earning capacity in respect of an impairment to her mental or behavioural disorders is dismissed.
Physical Injury with the Defendant
45The plaintiff worked for the defendant as a data-process operator. The plaintiff also had a role as supervisor of other data-entry operators. The plaintiff, in her evidence or affidavits, does not allege there was any frank injury or incident which was the cause of her alleged injuries to her lower back and/or spine.
46The defendant contests any physical symptoms or injuries the plaintiff alleges have been caused as a result of her employment. The plaintiff’s last day of work was on 4 April 2017. On that day, the plaintiff was called into a meeting at her work to deal with her absenteeism leading up to the meeting date. On the day immediately prior to the meeting on 4 April 2017, the plaintiff sent an email to Leigh Elliott, an employer of the defendant, setting out that she had had difficulties with her LAP-band after a visit to her surgeon.[37] This email was the last of a long line of emails dating back to 11 February 2016, where the plaintiff has set out difficulties about attending work.[38] After the meeting of 4 April 2017, the plaintiff has not returned to work.
[37]DCB 172
[38]The emails form part of the DCB from pages 143 to 172
47The plaintiff relied on a visit to her general practitioner, Dr Munir, complaining of back pain, on 7 March 2017; and Dr Fayaz Wani on 30 March 2017, complaining about ongoing back pain.[39]
[39]DCB 244-245
48In the entry made by Dr Munir on 7 March 2017, the plaintiff was suggesting that the surgeon – who is Professor Nottle – stated that the lower back pain is not referred pain from her abdominal port site. The plaintiff attended her physiotherapist, Mitchell Schwenke, on 22 March 2017, complaining of a flare-up in lower back pain and shoulder pain. In his report dated 10 July 2017, Mr Schwenke stated that the plaintiff’s diagnosis was non-specific lower back and shoulder pain, which is complicated by ongoing psychosocial factors.[40] Mr Schwenke went on to say that the plaintiff’s condition is a result of, or severely influenced by, her ongoing psychological state, which he said was materially contributed to by her employment.[41] The opinion of Mr Schwenke, the physiotherapist for the plaintiff, has linked the alleged symptoms of lower back and shoulder pain with the plaintiff’s psychosocial factors.
[40]PCB 67
[41]PCB 68
49The plaintiff attended at the Werribee Mercy Hospital on 20 April 2017. On that occasion, she attended hospital for acute chronic back pain. At the time, she gave a history of an exacerbation of lower back pain for the past four days. The plaintiff complained of lower back pain radiating down to her left lower leg. On 21 April 2017, an MRI scan was performed, showing no evidence of nerve root compression.[42] The plaintiff was discharged from hospital on 22 April 2017 with the assistance of a wheelie walker and medications.
[42]PCB 56
50In the course of the hearing, it was clear the plaintiff had had three separate MRI scans on her lumbar spine. The MRI scans were taken on 21 April 2017, 18 May 2018 and 10 June 2020. The MRI reports were not tendered as part of the plaintiff’s case. However, the medical practitioners I will refer to in the course of this judgment, in their opinion say there is no demonstrated cause for the pain to the plaintiff’s lower back that supports her complaints.
51I note for completeness that there was no report from Professor Nottle dealing with the issue of lower back pain complained of by the plaintiff, nor any connection it had with the port site, or for any other demonstrable reason.
Dr Clayton Thomas, consultant in rehabilitation and pain medicine
52Dr Thomas has seen the plaintiff for the purposes of medico-legal reporting. He prepared three separate reports dated 17 November 2020, 18 July 2022 and 15 June 2023.
53In his first report, dated 17 November 2020, on examination he found the plaintiff was non-tender to palpation in her lower back. He noted that the plaintiff’s lumbosacral movements were about half of normal. The neurological lower limb reflexes were brisk and symmetrical, and power and sensation was intact. He noted that the straight-leg raising was unremarkable.[43] This examination has taken place some three-and-a-half years after the plaintiff ceased employment. At that time, Dr Thomas’ opinion was that the plaintiff suffered from non-specific lower backache with referred pain, without any evidence of radiculopathy clinically, nor on imaging, and therefore the leg pain represented a referred phenomenon not due to neurological compromise.[44] He went on to state that, in his opinion, the plaintiff was suffering from a Chronic Pain Syndrome, which was organic in nature.[45] As early as November 2020, Dr Thomas was saying the plaintiff had no capacity for employment.
[43]PCB 130
[44]PCB 130
[45]PCB 130
54From the second assessment of the plaintiff in July 2022, Dr Thomas noted that the plaintiff was tender in her lower lumbar spine on examination. He noted that, at this stage, the plaintiff’s BMI was 44. Dr Thomas took a history from the plaintiff that she was on Targin, 10 milligrams twice per day. She had been on that medication for a period of four years and prior to that, had been on buprenorphine topical patches. The plaintiff was also taking Oxycodone immediate release 5 milligrams, which she takes every six hours or so.[46] Dr Thomas was of the opinion that the plaintiff’s Chronic Pain Syndrome was a result of her employment and that the Chronic Pain Syndrome would preclude her from any employment in the future.
[46]PCB 134
55In his report dated 15 June 2023, Dr Thomas noted that the worsening of the plaintiff’s back injury coincided with the plaintiff’s difficulty with her laparoscopic surgery for bariatric weightloss. He noted that the plaintiff had been seen by a neurosurgeon in 2019, who recommended that no operative care be undertaken. The plaintiff was attending at The Royal Melbourne Hospital Pain Clinic from 2020.[47] Dr Thomas noted that, in respect of the MRI report dated 10 June 2020, the imaging was reasonably unremarkable. He stated the plaintiff suffered from non-specific lower backache with referred pain to the legs, but with no evidence of radiculopathy.[48]
[47]PCB 139
[48]PCB 140
56Dr Thomas noted that the plaintiff has comorbid mental health problems which are adding to the complexity and generally acts as a pain magnifier.[49] Dr Thomas confirmed his opinion that the plaintiff was suffering from a Chronic Pain Syndrome involving her lower lumbar spine. He went on to state that, trying to untangle the plaintiff’s mental health and behavioural disturbance was complex. He noted that, from a physical perspective, if the mental health aspects were taken away, she would still be limited in her ability to function in the manner in which she has previously described.[50]
[49]PCB 141
[50]PCB 141
57Dr Thomas has accepted the plaintiff’s description of her work and the cause of the symptoms to her lower back. The radiological examinations do not give an explanation as to the severity of the plaintiff’s back complaints. Dr Thomas has accepted the plaintiff’s explanation as to why her back is painful due to the manner in which she was required to sit at work, and the ergonomic set up of her chair and desk.
58The two significant findings or statements of opinion from Dr Thomas, as far as this Court is concerned, is that it is difficult to disentangle the mental health problems and psychosocial difficulties the plaintiff has from the alleged backache symptoms. The second issue is that the radiological examinations do not support a finding or opinion consistent with the plaintiff’s allegation of her symptoms to her back.
Dr Peter Blombery, vascular disease and pain medicine specialist
59Dr Blombery took a history from the plaintiff which stated as follows:
“… [The plaintiff] had last worked in April 2017 when her back pain became extremely severe and she was unable to continue.”[51]
[51]PCB 173
60The history taken by Dr Blombery is inconsistent with the known facts in this case. The plaintiff had been called into work due to her absenteeism relating to her psychological and bariatric issues, which had been the cause of her absenteeism on a regular basis for the past year. Dr Blombery was unaware of the gap in time between the last attendance at work on 4 April 2017, and her presentation to the Werribee Mercy Hospital on 20 April 2017. Dr Blombery gave an opinion that, due to the plaintiff’s long history of working at a desk between 2001 and 2013, and further into 2016, that the plaintiff’s workstation supplied her with no back support.[52] Dr Blombery noted the imaging showed she had significant degenerative changes in the lumbar and cervical spine. Dr Blombery’s opinion was that the work situation had aggravated, and rendered symptomatic, the plaintiff’s pain to her lower back. In his opinion, Dr Blombery stated, in respect of the plaintiff’s lower back, as follows:
“Aggravation of pre-existing degenerative changes in the lumbar spine complicated by a pain syndrome. The pain syndrome and the degenerative changes have an organic basis. She has developed a pain disorder as a consequence.”[53]
[52]PCB 174
[53]PCB 175
61Dr Blombery’s opinion was the plaintiff could not return to her pre-injury employment as it was described to him.
62In his supplementary report dated 9 May 2023, Dr Blombery had obviously been asked about the causation of the plaintiff’s injury. He stated as follows:
“Considering separately the postural and ergonomic complaints between 2001 and 2017 as I outlined in my report, particularly related to her posture at the curved desk from 2001 onwards and the non-functioning gas-lift chair that she used after 2013, it is my opinion that those postural and ergonomic complaints that she had were a cause of her spinal injuries, excluding the handling of archive boxes.”[54]
[54]PCB 179
63In his final report dated 16 June 2023, Dr Blombery was asked to comment on the four jobs outlined in the CoWork report, which was dated 26 May 2023. Dr Blombery’s opinion was that the plaintiff would be able to work on a part-time basis as an audio typist from her home, but would otherwise be unfit for any alternative employment. One of the reasons is due to the significant doses of opiates the plaintiff is currently taking, would limit her ability to work.[55]
[55]PCB 182
Dr Helen Maroulis, neurosurgeon
64Dr Maroulis was the treating neurosurgeon for the plaintiff. She prepared a report dated 28 March 2019 to the plaintiff’s general practitioner, Dr Munir. Dr Maroulis noted that the plaintiff had an antalgic gait, but at the end of the consultation, when she left her practice, the gait was normal.[56] Dr Maroulis noted that the active lower back movements were normal and her straight leg raised to 60 degrees bilaterally. Dr Maroulis had difficulty assessing the reflexes of the plaintiff, as the plaintiff was quite jumpy and had extremely exaggerated responses. Dr Maroulis noted that the lumbar spine showed no nerve root compression and no canal stenosis.[57] Dr Maroulis’ report finished with the following:
“… When I explained the lumbar spine MRI results she immediately started talking about the neck problems and how the pain in the neck was so bad and the right arm goes numb and that she loses power and it is just dead.
This was quite curious given that she had underplayed and even gone so far as to say that this cervical spine was not causing her much of a problem at the moment and it was in fact her lower back that was the main issue. When I explained that there was no real significant cord or nerve root compression she burst into tears. I showed her the MRI scans and we had a long conversation about what this might mean and that I cannot really explain her symptomatology based on the imaging that was in front of me. I recommended weaning off all of her medications and using simple analgesia only when required. I also recommended that she try and lose some weight and also walking lapse in swimming pool.
I have not made an appointment for … [the plaintiff] to see me again at this stage but I would be happy to see her in the future should anything change, however I have serious reservations about what this ladies motivations may be.”[58]
(sic)
[56]DCB 196
[57]DCB 196
[58]DCB 197
65I note the plaintiff has not returned to see Dr Maroulis. The plaintiff has not been to see any further neurosurgeon on the recommendation of Dr Munir. This is unusual, given the amount of opiate-based medications and alleged pain symptoms that the plaintiff continues to complain about.
Mr Clive Jones, orthopaedic surgeon
66Mr Jones examined the plaintiff for medico-legal purposes. He prepared a report date 16 May 2017 after examining the plaintiff on 11 May 2017. Mr Jones took a history from the plaintiff that she developed non-specific lower back pain last year (2016), which did not cost her any time from work, but remained essentially untreated. The history continued that the plaintiff had awoken on 18 April 2017, with severe lower back pain. The plaintiff attended her family practitioner, Dr Munir, and a CT scan was performed. The plaintiff subsequently attended at the Werribee Mercy Hospital on 20 April 2017. Mr Jones detailed a presentation by the plaintiff on severe disability and complaint of pain, and requiring assistance to climb up on the examination couch.[59] On examination, Mr Jones noted that the plaintiff held her back stiffly in the standing position, however, sensation was normal and reflexes were normal, and the plaintiff almost had a normal slump test.[60] Mr Jones went on to state his opinion as follows:
“I was unable to come to a diagnosis in physical terms as to the cause of these allegedly severe symptoms. I understand that over the past two or three years, … [the plaintiff] has exhausted all leave entitlements due to other medical issues, and her work performance has been unsatisfactory in consequence. There are issues of depression, which I did not go into.”[61]
[59]DCB 24
[60]DCB 24
[61]DCB 25
67Mr Jones went on to state that there does not appear to be any relationship between the plaintiff’s current back problem and her employment. He described the onset of symptoms in April 2017 as “rather nebulous”.[62] Mr Jones went on to state that he suspected the psychological problems are a major difficulty with the plaintiff and that a report from a psychiatrist might be helpful.[63]
[62]DCB 25
[63]DCB 26
Dr David Fitzgerald, occupational physician
68Dr Fitzgerald also examined the plaintiff for medico-legal purposes and this was done by way of Zoom. He prepared a report dated 5 November 2021. Dr Fitzgerald’s opinion was that the current symptomatology and complaint by the plaintiff was degenerative and constitutional in nature and her largely-sedentary work activities are likely to have been significantly causative of what appears to be the plaintiff’s present complaints. Dr Fitzgerald stated that the plaintiff has been away from her work for the best part of five years (at the time of his examination) and it seems her symptoms have not resolved. This would suggest a constitution aetiology, rather than any substantial work-related component.[64]
[64]DCB 31
Dr Joseph Slesenger, occupational physician
69Dr Slesenger prepared two reports, dated 14 June 2022 and 8 May 2023. These reports are of a medico-legal nature. Dr Slesenger took a history from the plaintiff that she had developed lower back pain in 2011 and that she attributed that pain to her role at work.[65] He noted the plaintiff complained of residual pain in her lower back that was severe, constant and radiating pain into both lower limbs, and weakness in both lower limbs. He noted there was no associated numbness in her lower limbs.[66]
[65]DCB 36
[66]DCB 37
70Dr Slesenger noted that the plaintiff was no longer attending a physiotherapist, nor Associate Professor Malcolm Hogg, who was a pain specialist at The Royal Melbourne Hospital. The plaintiff was no longer seeing a psychologist. At the time of his initial examination on 14 June 2023, he noted the plaintiff was taking the following medications:
“● Targin 15/7.5 mg twice daily
● Endone 5 mg twice daily
● Lexapro 40 mg
● Clonidine 100 mg
● Panadol and Nurofen during the course of the day as required.
●Valium for exacerbation of anxiety and back pain. She was using 50 tablets over 2 months.”[67]
[67]DCB 38
71In the “opinion” section of his report, Dr Slesenger stated that the plaintiff suffered from soft-tissue injury and chronic lower back pain to her lumbar spine. He then went on to state as follows:
“However, I had concerns with regard to the continuum of symptoms subsequent to the injury as the clinical records did not support a continuum of symptoms.
I also noted a number of inconsistencies, namely:
● Improved range of lumbar spinal and cervical spinal movements upon distraction.
● Absence of wasting around the right shoulder despite the weakness and restricted range of movements identified.
● Non-myotomal weakness throughout the upper limbs.
● Inconsistent seated to supine straight leg raise.”[68]
[68]DCB 40
72In Dr Slesenger’s opinion, the plaintiff would be able to engage in a graduated return-to-work plan, commencing four hours a day, four days week, ultimately returning to full-time hours in six to eight weeks[69] in relation to the specific jobs set out by the CoWork report dated 26 May 2023, for the following jobs:
(a) English teacher online;
(b) teacher English tutor speakers of other languages;
(c) bookkeeper (working from home);
(d) audio typist/transcriber.
[69]DCB 40
73In the opinion of Dr Slesenger, the plaintiff was able to perform each and every one of those forms of work on a full-time basis after the initial four hours a day, four days a week, becoming full-time employment in a six-to-eight-week period. He noted that this opinion relates to the organic physical impairment alone.
74In his earlier and far more complete report dated 8 May 2023, Dr Slesenger stated, after reviewing the radiological examinations of the plaintiff, there was very little correlation between the radiological findings and the level of the symptoms complained of by the plaintiff.[70] He stated as follows:
“I have concerns with regard to causation. Whilst in particular, I note that the clinical records do not support a continuum of cervical spinal symptoms and … [the plaintiff’s] lumbar spinal symptoms appear to have developed in 2016, although the records relating to both these areas of impairment do not appear to show consistent symptoms until 2017. Her symptoms also appear to develop in parallel to deterioration of her psychological wellbeing, and there also appears to be a number of workplace issues presenting around the same time.
In addition, the imaging findings are reassuring.
[70]DCB 60
Furthermore, as noted above, there are multiple clinical examination inconsistencies, and I am of the opinion that there is a significant functional element to her presentation. Indeed, this appears to be the most significant element to her disability.”[71]
[71]DCB 61
75Clearly, the plaintiff did not impress Dr Slesenger as a straightforward and accurate historian as to her spinal complaints.
Dr David Vivian, musculoskeletal physician
76Dr Vivian prepared two medico-legal reports, dated 5 April 2023 and 31 May 2023. Dr Vivian reviewed the radiological reports, and the medical reports from the general practitioners and Dr Blombery. He also had access to the general practitioner’s notes and the report of Dr Maroulis. Dr Vivian examined the plaintiff on 5 April 2023. Dr Vivian noted that an MRI scan performed on 10 June 2020 had shown only minor mild lumbar spine degenerative changes, without any pressure on existing nerve roots or physical cause for her ongoing lower back pain.[72]
[72]DCB 68
77At the time of the April 2017 cessation of work, Dr Vivian noted as follows:
“… [The plaintiff] saw her local doctor in regard to the ongoing pain and was referred for a CT scan of the lumbar spine which was performed on 19 April 2017. That showed some degenerative changes in the lumbar spine with mild to moderate central canal stenosis at L4-5. After she had the CT scan, she went home but had increasing weakness in her legs and took herself to Werribee Mercy Hospital. She was assessed there and then was referred for an MRI of the lumbar spine which was performed on 21 April 2017. That confirmed the degenerative changes but there was no evidence of nerve root compression, and she was reassured.”[73]
[73]DCB 69
78Dr Vivian diagnosed the plaintiff as suffering from chronic non-specific lower back pain with minimal referred pain, opining she has an organic lower back problem, best labelled as non-specific lower back pain.[74]
[74]DCB 76
79On the issue of causation, Dr Vivian stated as follows:
“In my view, the major risk factor for her chronic LBP is obesity. Also, she has many risk factors for chronic pain of any structure; these include anxiety and depression, lack of exercise and, again, high BMI.
Her previous work is not a factor in her chronic LBP.”[75]
[75]DCB 76
80Dr Vivian went on to state as follows:
“She does not have any back injury; she has chronic LBP, which is constitutional but temporarily exacerbated when she sits or stands.
She would need to find a job with postural versatility. Perhaps she could only work from home. Unfortunately, this would not improve her social fitness.”[76]
[76]DCB 78
81Dr Vivian went on to state:
“I consider that her physical, and perhaps her overall, presentation now is independent of her work. … .”[77]
[77]DCB 78
82Dr Vivian prepared a supplementary report dated 31 May 2023 and was asked for his opinion in respect to the CoWork report dated 26 May 2023. In Dr Vivian’s opinion, the plaintiff was physically capable of performing the roles of online English tutor, teacher of English to speakers of other languages, bookkeeper and audio-typist/transcriber.
The CoWork Vocational Assessment and Labour Market Analysis Report dated 26 May 2023
83The following chart identifies the roles of employment that plaintiff could perform, and the relevant gross average weekly earnings.
| JOB DESCRIPTION | GROSS AVERAGE WEEKLY EARNINGS |
| English tutor | $1,642 |
| Teacher of English to speakers of other languages | $1,820 |
| Bookkeeper | $1,375 |
| Audio typist/transcriber | $1,340 |
84In respect of the plaintiff’s “without injury” earnings, the accepted 60 per cent of previous “without injury” earnings is a figure of $750 gross per week. Clearly, the four jobs outlined by CoWork exceed that 60 per cent barrier of
“without injury” earnings figure.
Conclusion
85I am not satisfied that the plaintiff’s employment is the cause of her lower back pain and consequences to her lower back pain and/or spinal pain. The plaintiff has, unfortunately, completely decompensated, either due to mental health or psychological issues unrelated to anything to do with her employment, and now lives a lonely, isolated life on her own, with minimal social contact outside her own home. She continues to take very large amounts of opioid-based medications. Each of the medical practitioners have attempted to get her to reduce those amounts of medications.
86I am not satisfied, on the balance of probabilities, that her employment has caused any ongoing injury to her lower back. I prefer the opinions of Dr Vivian, Dr Slesenger, Dr Fitzgerald and Mr Jones in this regard.
87Dr Thomas is a well-known and respected rehabilitation physician, in this case, he has failed to take into account that the plaintiff has been doing very little in a physical sense since 2017 and continues to complain of symptoms, even increasing symptoms, without any activity related to them. The radiology reports, as viewed and assessed by the medical practitioners in this case, do not support the level of complaint and symptomology made by the plaintiff.
88I am not satisfied that the plaintiff’s employment with the defendant is a cause of her current problems. Further, the plaintiff has failed to establish the level of aggravation to her pre-existing lower back complaints (minimal as they were) are attributable to her employment.
89The plaintiff is capable of engaging in employment, as set out in the CoWork report. The plaintiff, on her own evidence, has made no effort to engage in any employment since leaving her work in April 2017. The plaintiff has failed to discharge her onus of proving her loss of earnings capacity as required under the Act.
90The plaintiff’s application for leave to recover damages for pain and suffering and loss of earning capacity as a result of the injury to her spine and, in particular, her lower back is dismissed.
91I will hear the parties on costs.
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