Mildren v Alfred Health
[2013] VCC 1865
•21 November 2013
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06260
| DANIELLE MILDREN | Plaintiff |
| v | |
| ALFRED HEALTH | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 26 September 2013 | |
DATE OF JUDGMENT: | 21 November 2013 | |
CASE MAY BE CITED AS: | Mildren v Alfred Health | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1865 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the low back – pain and suffering only – disentanglement from psychiatric condition – range case
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Grech v Orica Australia Pty Ltd [2006] 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti SC with Mr R Morrow | Nevin Lenne & Gross |
| For the Defendant | Mr R Middleton SC with Ms L Glass | Wisewould Mahoney |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant, in particular late July 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the low back.
6 The plaintiff relied upon two affidavits, sworn 1 August 2012 and 20 May 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or her evidence. I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“The injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant;[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of her impairment to the low back in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6]Ibid at [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.”[8]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]s134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
14 Sub-section 38(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors Podolak[10] and in Grech v Orica Australia Pty Ltd.[11]
[10][2005] VSCA 33
[11][2006] 14 VR 602
The Issues
16 Counsel for the defendant informed the Court that there is an issue of disentanglement. Further, counsel said that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
Investigations
17 On 9 August 2007, an x‑ray of lumbosacral spine x‑ray showed the lumbar spine was normal.
18 On 6 September 2007, an MRI scan of the lumbar spine showed:
“At L5-S1, superimposed on a broad based disc bulge, is a large central and left paracentral disc extrusion/sequestrated disc fragment (with a 2.1 centimetre caudal migration). There is resultant severe mass effect upon the traversing left S1 nerve root. Mild indentation of the adjacent thecal sac. Mild bilateral neural foraminal stenosis at this level without neural compromise.”
19 On 9 December 2008, an MRI scan of the lumbar spine showed:
“At L5-S1, there is only a very small residual left paracentral disc protrusion with minor abutment to the left S1 nerve root. There has been marked improvement from prior imaging. There is a small focus of left sided inflammatory end plate oedema at this level. Mild posterior disc bulge at L4-5 with annual fissure, but there is no evidence for neural impingement.”
20 On 26 October 2010, an ultrasound of the pelvis showed
“The bladder volume was 320cc. The patient was unable to initiate micturition. No bladder lesion noted.
The uterus is not enlarged and is anteverted and anteflexed. No intrauterine mass evident. The endometrial layer measured 10mm in thickness which is at the upper limits of normal.
The right ovary has a volume of 14cc, containing several follicles. There is a dominant follicle in the left ovary. No adnexal masses or free fluid.
The right kidney measures 10.5cm and the left kidney 10.7cm in length. There is a satisfactory cortical thickness. A corticomedullary cyst was noted in the mid pole of the left kidney, measuring 14mm in diameter. No solid lesion or hydronephrosis evident.
The Plaintiff’s medical evidence
Dr Jane Wadsley
21 In October 2010, Dr Wadsley, general practitioner, reported that she first saw the plaintiff on 29 August 2007 while at the staff clinic at The Alfred hospital. Subsequently, she treated the plaintiff as general practitioner from the St Kilda Road Medical Centre.
22 Dr Wadsley confirmed that the plaintiff reported that she had gradually developed lower back pain which was referred into her left groin. She reported there was no specific incident. The plaintiff saw an osteopath and took Nurofen for her pain. On 7 August 2007, she sneezed and developed acute lower back pain with burning pain across her pelvis and into her left leg with numbness in her fourth and fifth toes. Dr Wadsley diagnosed a large L5‑S1 disc prolapse with sequestrated fragment and pressure on the S1 nerve root, secondary depression and now neurogenic bladder, likely resulting from lumbar disc prolapse.
23 She treated the plaintiff over three years and said that during flare ups of the plaintiff’s pain she had suffered quite severe pain, become depressed and struggled to perform the usual tasks she took for granted. She said the plaintiff was unable to work unrestricted in her chosen present career of an intensive care nurse. She imposed restrictions: no lifting, repeated bending and twisting and lifting more than 10 kilograms for the foreseeable future.
24 Dr Wadsley’s prognosis in the short term was that the recent severe exacerbation would settle and she hoped that the plaintiff’s neurogenic bladder would also resolve. She said the plaintiff may require surgery on her L5-S1 disc if it fails to settle. In the longer term, she would expect that the plaintiff will continue to be restricted in most of her daily activities and her work. Dr Wadsley said the plaintiff will continue to suffer from recurrent episodes of lower back and left leg pain, requiring time off work and intermittent treatment. She will need to undertake an ongoing exercise program to assist with management of her condition.
Dr Chris Constantinou
25 In September 2008, in a letter to Dr Wadsley, Dr Constantinou, musculoskeletal and sports physiotherapist, confirmed he treated the plaintiff on her referral. He suggested the plaintiff undergo a program of Pilates. He said the plaintiff had resumed equestrian riding, riding regularly and when she completes her riding, notes her back feels very good. He wondered whether she was stimulating some of her deep unit stabilisers with the riding and whether there is some effect on her pelvic mechanics.
Mr Paul S D’Urso
26 In July 2010, Mr D’Urso, neurosurgeon, reported that he medically examined the plaintiff in September 2007. It was his view the plaintiff had suffered a lumbosacral disc prolapse, causing left S1 nerve root compression. He said it would appear that a precipitating factor in the development of her symptoms was heavy lifting, bending activity performed in the duties as an intensive care nurse. He had not seen the plaintiff since December 2007 and was unaware of her current status.
27 In September 2007, he requested authority from the defendant’s insurer to perform a micro surgical discectomy, rhizolysis and possibly a dynamic stabilisation procedure if her anatomy permits.
28 In July 2010, he thought the plaintiff would have the capacity to perform full-time light duties employment. He placed restrictions of avoiding repetitive bending, lifting and twisting or stooping activity. The plaintiff should not lift weights above 10 kilograms and should not be required to lift weight from below the knee or above the shoulders. He placed restrictions on her ability to perform overhead activities which would be permanent. He said the plaintiff will suffer a permanent partial incapacity related to her condition and that this could well prevent her from returning to pre-injury employment. He accepted that to make a more accurate assessment of the plaintiff’s current status, he would need to take a further medical history and examine the plaintiff.
Dr Bruce Mitchell
29 In September 2008, Dr Mitchell, pain medicine specialist, saw the plaintiff on referral from her general practitioner. He said the two most likely sources of the plaintiff’s pain are her sacroiliac joint or lower lumbar facets. The other possibility is internal disc disruption of the L4-5 or L5-S1. Dr Mitchell sought permission from WorkCover for injections at posterior column blocks to see if her sacroiliac joint or facet joints are the source of her pain. On 28 October 2008, a left sacroiliac joint injection was administered. The pain charge was reviewed by Dr Mitchell and showed a positive result. Accordingly, a controlled sacroiliac joint injection was scheduled. On 16 December 2008, a further left sacroiliac joint injection was administered, which did not assist the plaintiff.
Dr Jonathon Lewin
30 On 15 June 2011, Dr Lewin, urologist, confirmed that he had been treating the plaintiff on referral since October 2010 because of an acute episode of painless retention, which he said may be related to the history of the plaintiff’s spinal problems. He said the plaintiff’s bladder issues seemed to resolve and it was unlikely that she would require further treatment. He said there was a small possibility that in old age she may end up with further issues with Detrusor failure, although this can happen with or without any degree of prior neurological deficit.
Mr Darrel H Nye
31 In August 2010, Mr Nye, neurosurgeon, medically examined the plaintiff at the request of the defendant’s insurer. Mr Nye reported on 31 July 2007, while working, the plaintiff was required to transport a patient pushing a bed and supporting a ventilator into a lift. The manoeuvre was associated with the development of pain in her back. The shift was completed, an analgesic was taken and later in the week she consulted an osteopath. Soon after, and after coughing, the pain became severe in the lower back area and radiated to the left posterior.
32 Mr Nye concluded the plaintiff had sustained an injury during the course of her employment, with deterioration of two-level lumber disc degeneration and complicated by disc prolapse at the L5-S1 level, a cause of sciatica and S1 radiculopathy. He said the plaintiff’s injury was an aggravation of a pre-existing condition, namely two level lumbar disc degeneration. On examination, he noted an impairment of pin prick appreciation affecting the lateral calf of the left side and extending onto the lateral foot, consistent with an S1 distribution.
33 It was his opinion the condition had improved with conservative treatment, short of complete resolution. He foresaw a continuing requirement for treatment into the future. He said the plaintiff had returned to employment but not to full pre-injury duties and that would not be possible having regard to the physical demands of her former position. He imposed modification and restrictions in work practices and said the plaintiff should not be required to engage in repeated bending or twisting movements of the spine. Lifting limits of 5 kilograms would be appropriate and lifting should not be conducted from below waist level. Unassisted lifting and turning of patients should be excluded. He said a mild psychological condition may be associated with her condition.
Mr Rodney R A Syme
34 In February 2012, Mr Syme, urologist, examined the plaintiff at the request of the defendant’s insurer. Mr Syme reported that the plaintiff had worked as a nurse in the Intensive Care Unit at The Alfred hospital and that she had ceased work on 31 July 2007 as a consequence of back pain, which developed as a consequence of lifting heavy patients in the course of her employment. He noted that there was no acute event at work, rather, the development of lower back pain in the later period of employment. On 7 August 2007, she developed more severe pain following a sneeze, and the pain radiated into the left leg, with numbness involving the fourth and fifth toes. This event occurred while she was on holiday in New Zealand.
35 Mr Syme diagnosed a very severe L5-S1 disc prolapse with S1 radiculopathy. He noted that the pain was of sufficient level for the plaintiff to require regular OxyContin medication for its control. He was aware that the plaintiff had urinary symptoms. He agreed with Dr Lewin that there is a reasonable probability that the retention may be related to a history of spinal problems, although the clinical picture in support is incomplete. He concluded the neurological damage is the cause of the acute retention. He said it was difficult for him to arrive at a satisfactory diagnosis in the absence of an up to date urological review.
Mr Jonathon Hooper
36 In February 2012, Mr Hooper, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s insurer. He said there was little in the way of objective findings on examination. He diagnosed degenerative disc disease with disc prolapse at L5-S1 which was precipitated by the incident of 2007. He thought the plaintiff’s prognosis was satisfactory. He noted she was back working as a nurse and that she was self managing her situation satisfactorily.
Mr Rodney J Simm
37 In November 2012, Mr Simm, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s solicitor. Mr Simm obtained a history that in July 2007 the plaintiff developed onset of pain in the lower back and buttocks, worse on the left side. At that time, the plaintiff was working nightshifts. Her working involved wheeling patients with heavy equipment on hospital beds. On one particular night, a week or so after she became aware of her pain, she was pushing a patient on a bed with heavy equipment into a lift, when she experienced acute pain in the lower back and was initially unable to complete the manoeuvre. She continued working with pain. She sought treatment from an osteopath. She took Nurofen and Panadol. She sneezed and experienced severe pain extending down the left leg to the arch of the foot. Mr Simm noted that the plaintiff was taking Lexapro, Amytriptaline and Lorazepam for her associated emotional disturbance.
38 On physical examination, Mr Simm said the movements of the thoracolumbar spine were mildly restricted. There was mild non-specific tenderness in the lumbar spine. She was not reactive to palpitation. Neurological examination of her lower limbs revealed brisk symmetrical reflexes, sensation to pin prink in the left leg was mildly decreased compare with the right, but this was not in the S1 distribution.
39 It was his opinion that there were no clinical signs of residual left S1 neural tension or radiculopathy. The second MRI scan of December 2008 showed that the disc extrusion/sequestration had largely resolved.
40 He diagnosed L5-S1 lumbar disc degeneration with an associated left-sided lumbar disc extrusion. There was nerve root irritation and possibly radiculopathy at the time of the lumbar disc extrusion in 2007. There were no residual signs of S1 neural tension or radiculopathy and the more recent MRI scan showed resorption of the lumbar disc protrusion.
41 He said the pathology of lumbar disc degeneration is constitutional. Whether or not her lumbar disc extrusion is work related, depends upon her ability to authenticate her history of a significant incident of acute pain as a result of trying to push a patient on a bed with heavy equipment into the lift in either July or August 2007. He noted that her history to him was the pain was severe after this injury, which suggested there was some annular disruption. The lumbar disc protrusion/extrusion actually occurred at home as a result of sneezing. He says this is not uncommon to occur as a result of this mechanism of injury. He noted that there was an associated emotional disturbance requiring medication and psychological counselling which he said needed to be assessed by a psychiatrist.
42 It was Mr Simm’s view that the plaintiff had an established pattern of symptoms extending over a number of years and that her condition will persist. She will suffer from chronic pain, mostly in the lower back and buttocks with occasional left lower limb pain. The intensity of the pain will fluctuate. At times she will have severe pain, which may necessitate increased levels of analgesia, rest and more intensive conservative treatment.
43 He said the plaintiff had a limited physical capacity for employment as a result of the lumber disc injury. She is no longer able to carry out unrestricted physical demands of work as a nurse. She is now confined to nursing which does not require physically assisting patients or carrying heavy equipment. He said there is a substantial loss of function as a result of the lumbar disc disruption and associated protrusion/extrusion of the degenerative L5-S1 invertebral disc. He said the sneeze episode, in conjunction with her advanced pre-existing L5-S1 lumbar disc degeneration was the main injury.
Mr Gary D Grossbard
44 In April 2013, Mr Grossbard, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported that at the time of the injury she was pushing a patient into the lift, which was awkward because she had to hold ventilation tubes at the same time. The bed hit the edge of the floor of the lift which was at a different height to the ground. She felt her back jolt. She had immediate back pain which radiated into both buttocks. She reported episodes of back pain but these were never severe and she never required time off work. She reported sneezing and subsequently developed increased low back pain and pain into her left leg. She consulted her general practitioner and was prescribed Tramadol and Panadol. She noted numbness in the right leg.
45 Mr Grossbard said the plaintiff had some intermittent low back pain as a result of general nursing duties but had a significant disc injury which probably occurred as a result of the incident in July 2007. This subsequently resulted in an extrusion of the lumbosacral disc with evidence of sciatica. He noted that the sciatica has subsequently improved and is now intermittent in nature. He said there was no evidence of radiculopathy and the MRI scans do not reveal any cause for short lived cauda equina symptoms. These have largely resolved and there appears to be some resolution of the disc protrusion in the fifteen months between the two MRI scans.
46 He said the plaintiff’s symptoms are mechanical and possibly relate to facet joint arthropathy. He said this is particularly true of the intermittent nature of acute episodes of pain and the intermittent sciatica. He said there was nothing to suggest the plaintiff was suffering with any obvious sacroiliac issues. He did not recommend surgical intervention. He said if it were to be required, it would probably involve a two-level spinal fusion and decompression. He said the plaintiff’s ability to return to her pre-injury work is restricted. She should not undertake activities which involve a great deal of bending and lifting or involve repetitive movements, particularly those which would involve manual handling of patients. He said the plaintiff had an associated emotional disturbance requiring medication and psychological counselling which needed to be assessed by a psychiatrist.
Dr Ron Brooder
47 In May 2013, Dr Brooder, neurologist, examined the plaintiff at the request of the plaintiff’s solicitor. It was his view that as a result of the plaintiff’s work duties with the defendant in 2007, the plaintiff, at a relatively young age, had significant degenerative changes involving her lumbosacral spine and she had sustained a significant intervertebral disc injury at the L5-S1 level. As a consequence of her back injury and the associated pain disability, she had developed depression. He said the plaintiff’s long-term prognosis was guarded. He thought she was going to remain subject to persistent pain and associated functional disability to some degree indefinitely. He said, in the long term, she is at risk of developing a recurrent intervertebral disc protrusion associated with further neurological complications that may require surgical intervention. He said the exact risk of this occurring is not able to be predicted.
48 Dr Brooder considered the plaintiff’s associated impairment, excluding any functional overlay, and said the plaintiff was precluded from undertaking domestic activities that are of a generally heavy physical nature and particularly those that involve prolonged and repetitive forward bending or attempts at heavy or repetitive lifting. He said the plaintiff is precluded from returning to recreational activities that include attending a gymnasium and running on a regular basis; competitive horse riding involved in show jumping and eventing. He said, excluding any functional overlay, the plaintiff was restricted in relation to her employment or activities generally which included activities involving performing manual labour and manual handling; prolonged sitting and standing; walking and/or running; squatting; getting in and out of vehicles; driving a vehicle; going up and down steps and ladders. He said the plaintiff is suited for limited part time work as a registered nurse which involves work activities that are of a generally lighter physical nature. He thought the maximum hours the plaintiff could work would be approximately 24 to 30 hours per week, which he thought would continue for the foreseeable future.
The Defendant’s medical reports
Dr Alan Jager
49 In March 2012, Dr Jager, forensic psychologist, medically examined the plaintiff at the request of the defendant’s insurer. Dr Jager said the plaintiff reported being depressed, anxious and angry and had reduced enjoyment, energy, libido and concentration and had experienced suicidal thoughts. He said the plaintiff had a Chronic Adjustment Disorder with Anxiety and Depressed Mood. He said her condition is chronic; that is, long term and requires treatment. He said that her mental disorder does not interfere with her activities of daily living but her reduced enjoyment in life, affects social functioning.
Dr James Rowe
50 In July 2013, Dr Rowe, occupational physician, examined the plaintiff at the request of the defendant’s insurer. He noted that the plaintiff had a long and complicated history. He was aware that until recently she was riding horses and does exercise. She had attended a gym and participated in one-on-one Pilates class. He said the pain is low in the back and radiates to her groins, both the right and left sides. She sometimes has tingling about the arch of the left foot. Her legs sometimes feel weak. It was his opinion the plaintiff had a two-level disc degenerative disease and possible prolapse/sequestration at the lumbosacral level. He said her condition was ongoing, it had not resolved and it would be reasonable to have a repeat MRI scan as she had not had one for three years. He said it was difficult to relate her condition to the incident in 2007 given the incident occurred six years ago and since that time she has been working, part time; riding horses, mainly dressage and has continued to exercise. He said there is a possibility of surgery in the future. He said a sequestrated disc does not resorb or resolve and that is why it would be reasonable to repeat the MRI scan.
Mr Ian R Jones
51 In August 2013, Mr Jones examined the plaintiff at the request of the defendant’s solicitors. Mr Jones obtained a history that on an unspecified date in July of 2007; the plaintiff was pushing a bed into a lift. The levels of the floor and lift were not compatible and the plaintiff reported she suffered a jar to her lower back when the wheels of the bed hit the raised edge of the lift floor. It was his opinion that the plaintiff suffered from the effects of an acute L5-S1 disc prolapse manifesting initially as lumbar back pain and severe left sided sciatica. He said it had substantially resolved with the passage of time and conservative treatment. He noted that the plaintiff continues to experience lumbar back pain and has some residual sciatic symptoms without any supporting clinical signs. He said the plaintiff’s lower back complaint and history of back injury renders her unfit for work which requires repeated bending or heavy lifting. He believed she was fit to continue to undertake her work as an Accident and Emergency nurse working on a sessional basis six times a fortnight, as is currently being performed. Mr Jones was provided with a copy of Professor Dennerstein’s report.
Professor Lorraine Dennerstein
52 In May 2013, Professor Dennerstein, psychiatrist, medically examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff reported injuring her lower back while at work in July 2007, pushing a patient on a ward bed into a lift. Her back was severely jarred when pushing the bed into the lift.
53 Professor Dennerstein diagnosed a Chronic Pain Disorder due to physical factors. The plaintiff developed symptoms of anxiety and depression which would have initially met the diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood. The depression and anxiety worsened and she was diagnosed with a Major Depressive Disorder. The plaintiff’s depressive disorder has improved and her current diagnosis is major depressive disorder in remission with treatment, with residual features.
54 Professor Dennerstein said the plaintiff is suited to her current employment as a triage and supervising nurse in the emergency department at the Albury Base Hospital. However, she is incapacitated from time to time by flare ups in pain. The depression has improved with her current treatment and she is no longer incapacitated by depression. The plaintiff has not been able to increase her shifts past 6 x 8 hour shifts a fortnight because of her chronic pain disorder. Professor Dennerstein said the plaintiff will continue to require treatment with antidepressant medication. However, if her pain improves, this may be able to be further reduced. Professor Dennerstein’s prognosis was that the depression has improved with treatment and is likely to continue with current symptomology unless pain flares up further.
Credit
55 The plaintiff was university educated. She was articulate and provided the Court with a comprehensive history of her condition and its consequences.
56 The plaintiff answered all questions in a clear and forthright manner. In answering questions, she made concessions; for example, she was able to ride her horse. Mr Simm described the plaintiff as straightforward and cooperative. He said there was no elaboration of physical signs. No doctors challenged her credit.
57 Overall, I formed the impression that she was an honest witness.
Analysis of the evidence
58 It was accepted by the defendant that the injury was work related.
59 All doctors accepted the plaintiff suffered a lumbosacral disc prolapse causing left S1 nerve root compression. Some doctors said the plaintiff suffered radiculopathy.[12] Mr Nye said the plaintiff’s injury was an aggravation of a pre-existing condition. Mr Hooper said it was a degenerative disc disease with disc prolapse brought about by the 2007 injury. Dr Brooder said the plaintiff had degenerative changes in the lumbosacral spine and had sustained a significant invertebral disc injury at the L5-S1 level. Mr Simm said the path of the lumbar disc degeneration is constitutional.
[12]Mr Syme and Mr Nye
60 Mr Jones said the effects of the L5-S1 disc prolapse had substantially resolved, yet said the plaintiff continued to experience lumbar pain and has some sciatic symptoms without any supporting clinical signs. He accepted the plaintiff’s back complaint and history of back injury renders her unfit for work which requires repetitive bending or heavy lifting. He said she was fit to continue her work as a nurse on a sessional basis, six times per fortnight. This view was supported by Dr Brooder, Mr Grossbard and Mr Simm.
61 Dr Rowe said the plaintiff’s current condition was unrelated to the incident in 2007. He based that opinion on the fact that six years had passed since the incident, during which time the plaintiff worked part time; continued to ride horses, albeit mainly in dressage; and continued to exercise. Dr Rowe was the only medical witness to express this view.
62 The plaintiff’s evidence was that she suffered some back pain in about 2002, which was short lived and she returned to an active lifestyle without the need for for ongoing treatment. The plaintiff denied prior existence of back pain to Mr Nye. Mr Syme recorded no significant past history. Mr Grossbard reported some intermittent low back pain as a result of general nursing duties. Mr Jones said the plaintiff reported not experiencing any back problems while nursing, but stated that as a student while waitressing she suffered back strain, was off work for one day and received no treatment. The plaintiff’s evidence was that prior to her work injury she jogged and attended a gym regularly, rode a horse in competitions and engaged in snowboarding. I accept that any back pain the plaintiff suffered was minor and did not interrupt her active lifestyle. Accordingly, on a Petkovski v Galletti[13] analysis, the impairment extant at the hearing was referable to the work injury.
[13][1994] 1 VR 436
63 I accept the majority view of the medical evidence that the low back impairment is related to her employment with the defendant.
Disentangling
64 Counsel for the defendant submitted some of the medical evidence suggested a significant psychological component.
65 In essence, the issue is whether and to what extent I can be satisfied that the plaintiff’s current pain and disability in the low back has an organic basis, or whether the symptoms are due to the non-organic overlay. The real issue is the nature and extent of the organic component.
66 In Meadows v Lichmore Pty Ltd[14] Maxwell P said:
“… serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
[22] If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[14][2013] VSCA 201
67 Accordingly, it is necessary for me to determine whether based on the medical evidence there is a substantial organic basis for the pain and suffering consequences relied on by the plaintiff.
68 All doctors accepted the plaintiff suffered a lumbosacral disc prolapse causing left S1 nerve root compression.
69 I must make the assessment at the time of hearing the application. Accordingly I place greater weight on the most up to date medical evidence of Mr Simm, Mr Grossbard, Dr Brooder, Dr Rowe and Mr Jones.
70 The medical witness who expressed the majority view confined their diagnosis, opinions and prognosis to the physical injury.
71 Mr Jones said the effects of the L5-S1 disc prolapse had substantially resolved, yet said the plaintiff continues to experience lumbar pain and has some sciatic symptoms without any supporting clinical signs. He accepted the plaintiff’s back complaint and history of back injury rendered her unfit for work requiring repetitive bending or heavy lifting. He said she was fit to continue her work as a nurse on a sessional basis, six times per fortnight. This view was supported by Dr Brooder, Mr Grossbard and Mr Simm, all of whom were aware that the plaintiff was receiving psychological counseling.
72 Dr Brooder specifically excluded any functional overlay and said the plaintiff was precluded from undertaking domestic activities that are of a general heavy physical nature and particularly those that involve prolonged or repetitive forward bending or attempts at heavy or repetitive lifting. He said the plaintiff is precluded from returning to recreational activities including attending a gymnasium; running on a regular basis; and competitive horse riding involved in show jumping and eventing. Further, he said she was restricted in relation to her employment or activities which involve bending or twisting, lifting and carrying objects, performing manual labour and manual handling, prolonged sitting and standing, walking and/or running, squatting, getting in and out of vehicles, driving vehicles, going up and down steps and ladders. He said she was suited for limited part time work as a registered nurse, involving activities of a lighter physical nature. He considered the plaintiff’s maximum hours would be approximately 24 to 30 hours per week, which he thought would continue for the foreseeable future.
73 On the basis of the up to date medical reports, I accept that there is a substantial organic basis for the pain and suffering consequences relied on by the plaintiff.
74 It is now necessary for me to consider whether the pain and suffering consequences satisfy the statutory criteria.
Pain and suffering consequences
75 It is now necessary to for me to consider whether the pain and suffering consequences satisfy the statutory criteria.
76 The plaintiff said the pain is constant although it fluctuates in severity. Over the past 12 months there has been no improvement in the level of the pain. In addition to the back pain, she has left leg pain including pain into the arch of her left foot and intermittent paresthesia and numbness in her left foot. She also gets right-sided buttock and leg pain and pain into both her hips. The plaintiff’s evidence is she takes medication of Lexapro, Amitriptyline (Endep), Targin, and Voltaren as needed together with Indocid and Nurofen. The medication is prescribed by her general practitioner whom she sees regularly. Until the defendant’s insurer terminated treatment in May 2013, the plaintiff was attending physiotherapy three times per week which involved one to one Pilates. The plaintiff reported to medical witnesses that she had reapplied for further physiotherapy treatment on a twice weekly basis. She performs home exercises daily.
77 The current medical witnesses accepted the level of pain and treatment the plaintiff reported. Mr Simm said the plaintiff will suffer from chronic pain, mostly in the low back and buttocks with occasional lower limb pain. The intensity will fluctuate. At times she will have severe pain which may necessitate increased levels of analgesia, rest and more constant treatment. Mr Grossbard described the plaintiff’s pain as “intermittent, varying with intensity, worse with activity.” He said the plaintiff had ongoing sciatic pain and pain in the arch of her foot. Dr Brooder said the plaintiff was subject to “persistent pain and associated disability which she would remain subject to indefinitely.” He said in the long term she was at risk of developing a recurrent invertebral disc protrusion associated with further neurological complications that may require surgery.
78 I accept the plaintiff’s evidence in relation to her description of the pain that she experiences as a result of the injury to her low back. The plaintiff was consistent in reporting to the medical witnesses the level of pain she suffered. All medical witnesses accepted the level of pain the plaintiff reported. All doctors were aware of her medication and thought it appropriate.
79 I accept that the experience of pain for the plaintiff is a consequence I can take into account.
80 The plaintiff’s evidence to the Court was that she received treatment by way of physiotherapy, Pilates, undertakes a home-based exercise program and consults her general practitioner on a regular basis. None of the medical witnesses suggested that her treatment was inappropriate. Dr Brooder was the only doctor to suggest the plaintiff may ultimately require surgery.
81 I accept that the level of treatment that the plaintiff receives is a consequence I can take into account.
82 The plaintiff’s evidence was that at the time of the injury she worked in the intensive care unit at The Alfred hospital while studying to complete her critical care nursing course. Given the extent of her back injury, she was unable to undertake normal everyday nursing tasks which involved manual lifting and handling of patients. In 2010 she moved to Albury and commenced work at the accident and emergency department of the Albury Hospital. The work in that department was easier than in intensive care. Currently she works as a triage nurse which allows her to avoid activities that place stress on her back. In her current role she is able to sit and stand alternately and to decline to perform any activity if it will cause further pain to her back.
83 In August 2012, the plaintiff accepted a position in both the emergency and intensive care units at Alice Springs. She was unable to cope with the physical demands of the job because she could not sit down and rest. She was classified as “casual” which meant that she worked where she was required. She suffered a significant increase in back pain. She realized the position was not viable and returned to Albury in November 2012. She had one month off work completely because of her back injury, after which she resumed her former position in accident and emergency. Currently she works six shifts per fortnight.
84 The plaintiff said that she chose nursing as a career as she believed there would be opportunities for promotion, and for her to travel both overseas and within Australia. She was particularly interested in volunteer work. As a result of her unsuccessful attempt to work in Alice Springs, she believes her career opportunities are limited as a result of her injury.
85 The plaintiff’s evidence was that prior to her injury she had travelled in Third World countries backpacking but now could not do that because of the physical nature of that type of travel. She had undertaken nursing and wanted to be able to use her skills in Third World countries but now cannot perform that physical type of work.
86 The medical evidence was that the plaintiff cannot return to her pre-injury employment. All of the current medical witnesses imposed restrictions upon her work activities and hours. Mr Simm said the plaintiff was no longer able to carry out unrestricted physical demands of work as a nurse. She is confined to nursing which does not require physically assisting patients or carrying heavy equipment. Mr Grossbard said the plaintiff’s ability to return to her pre-injury work is restricted. He imposed restrictions on bending, lifting and repetitive movements, particularly those that would involve manual handling of patients. Dr Brooder imposed restrictions and said the plaintiff was suited for limited part time work as a registered nurse with activities of a lighter physical nature. He said she could work approximately 24 to 30 hours per week, which he said would continue for the foreseeable future. Mr Jones imposed restriction of no bending or heavy lifting and said she could work on a sessional basis six times per fortnight, which she currently performs.
87 I am satisfied that the plaintiff cannot return to her pre-injury work. The medical evidence is that she can work part time but in less physical work as a registered nurse. I accept that this represents a significant loss to the plaintiff with respect to her enjoyment of her profession and self esteem, particularly given her age of 35 years. No doctor has suggested that the plaintiff’s injuries will improve. The effect upon her employment and career is a significant consequence which I can take into account.
88 The plaintiff said that prior to the injury; she was extremely active and fit. She regularly jogged, between three to five times per week, around Princes Park and later around Albert Park Lake. She had entered a number of fun runs. Currently she is unable to perform this activity. She reported this to a number of the medical witnesses who commented on her inability to run. She also said that she used to snowboard and every winter she travelled to the Victorian Alps for day or weekend trips with friends. Snowboarding is a very physical and enjoyable sport in which she can no longer participate. I accept that the plaintiff’s sporting activities have been limited by her back injury. Again for a woman of 35 years, this is a significant consequence that I can take into account.
89 The plaintiff said that ever since she was a young child she has ridden horses. Prior to her injury she enjoyed show jumping and eventing. Her ability to ride horses is now restricted. She participates in dressage, which she found assisted in strengthening her core stability. She rides her horse slowly, mainly walking with a little trotting. She told the Court that she maintains her horse, but not very well. I accept that the plaintiff’s horse riding activities have been affected by her injury, which is a consequence I can take into account.
90 The plaintiff’s evidence was that she performs gardening including working in a vegetable garden and mowing the lawns. She finds these activities bring on an increase in back pain after ten or twenty minutes. However, she does persevere and wears a back brace and takes medication afterwards. The plaintiff said she has difficulty in performing housework activities such as vacuuming, mopping, making beds and cleaning windows. Her mother assisted her with the heavier housework activities. Recently she employed a house cleaner once a fortnight as she can no tolerate the severe fluctuations in back pain. I accept that these are consequences I can take into account.
91 Taking all the evidence into account, in particular her age, the fact that the plaintiff has lived with the consequences of the injury for 6 years and that no medical witness suggested that her back injury was likely to improve, I am satisfied that it is fair to describe the pain and suffering consequences of the plaintiff’s back injury as being “more than significant” or “marked” and properly regarded as “very considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test for pain and suffering. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.[15] No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)h of the Act.
[15]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [44]
92 I am satisfied that the low back injury is permanent, given the evidence from all medical witnesses.
93 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the back is successful.
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