Miller v Victorian WorkCover Authority
[2017] VCC 1035
•4 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04318
| Charmaine Miller | Plaintiff |
| V | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18-21 July 2017 | |
DATE OF JUDGMENT: | 4 August 2017 | |
CASE MAY BE CITED AS: | Miller v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1035 | |
REASONS FOR JUDGMENT
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Subject: Common Law
Catchwords: Serious Injury Application
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC Ms M Tait | Zaparas Lawyers |
| For the Defendant | Ms A Magee QC Mr P Bourke | Russell Kennedy |
HER HONOUR:
1 Ms Miller applies under s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) for leave to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in relation to an injury to the lumbar spine sustained at work on 1 July 2013 when she slipped on a set of stairs.[1] She says that the soft tissue injury she suffered to the lumbar spine has resulted in the development of fibromyalgia with ongoing symptoms in the lumbar spine and elsewhere and restrictions which make her permanently incapacitated for all employment.
[1] The plaintiff abandoned her claim under sub-paragraph (c) at the conclusion of the hearing.
2 The defendant says that Ms Miller displayed non-organic signs when examined by some specialists, that there is a significant psychological component to her presentation, and that the medical opinion which concludes that her condition is organic is heavily dependent on the what the defendant says is the questionable reliability of the histories and accounts of symptoms given to those experts. When closely examined, the picture painted by Ms Miller to various doctors in relation to her restrictions and lifestyle is said to contrast sharply both with the surveillance footage tendered, and with the Facebook entries showing that she has frequented nightclubs, attended rock concerts, celebrated birthdays, and had sexual intercourse. In addition, the defendant says that on the full history of various soft tissue injuries suffered by Ms Miller to various body parts, any one of these injuries could have been the incident that sparked the fibromyalgia she now suffers and that she has failed to show the extent of contribution, if any, of the incident in July 2013 to her current presentation. In these circumstances, the defendant contends that she has not discharged the onus she bears to establish serious injury.
The plaintiff
3 Ms Miller is 49 years old and divorced, with two adult daughters who have left home. She left school at the end of Year 11 and worked in various administrative and office based roles. She was diagnosed with bipolar disorder in the late 1990’s and has been taking daily medication for the condition since then. She also takes medication for asthma. She was able to work full-time.
4 After the workplace incident on 1 July 2013, she suffered persistent back pain. She saw her general practitioner, Dr Mazid, in August, and was referred to pain physician Dr Robert Gassin, neurologist Dr Simon Bower, and rehabilitation specialist Dr Clayton Thomas. Dr Thomas referred her to a pain management program in March 2015 but she was unable to complete this program due to the increase in pain she experienced.[2] She returned to work with the defendant on reduced hours, both from home and in the office, up until her employment was terminated in May 2015 due to her inability to perform her pre-injury duties. She then attempted to do some administrative work as a contractor but could not manage even 2.5 hours per week. She ceased that work in June 2016.
[2] Plaintiff Court Book (PCB) 3
5 As at late August 2016, the insurer ceased her weekly payments, but continues to pay her reasonable medical and like expenses relating to her lower back and fibromyalgia. She now receives a disability support pension. She would love to return to work but does not think there is any job she would be able to do on a consistent and reliable basis because of the “unpredictability and severity” of her “back and fibromyalgia symptoms”. She struggled to work even 1 hour per week from home before ceasing work completely, and even then made many mistakes.
6 Ms Miller reported a number of subsequent discreet episodes of onset of pain in different parts of the body. A few weeks after the relevant fall, she slipped on the same stairs and hurt her left ankle, for which she took anti-inflammatories. In around early 2014, she experienced right heel pain for a number of months which was diagnosed as plantar fasciitis. This pain has gradually lessened and is “nowhere near as bad” as her back and fibromyalgia pains.[3] In late 2014 she fell onto her right hip, and continues to have pain in that hip from time to time. In early 2015, she experienced bilateral shoulder pain. Radiological investigation revealed a left supraspinatus tear. She had an injection into the left shoulder which did not provide long term relief. The shoulder pain has gradually improved and now feels like her “fibromyalgia pain”.[4]
[3] PCB 19
[4] PCB 19
7 Ms Miller acknowledged a number of attendances to her family doctor between 2005 and 2013 including occasions during which she complained of back pain, finger pain, joint pain and neck pain as recorded in the practice’s clinical notes, but did not recall these attendances. She insisted that in the few years prior to her fall she did not have ongoing problems with her back, neck or joints.
8 Prior to her fall, Ms Miller enjoyed going out for dinner and to the movies with her daughters, as well as dating, walking and going to the gym. She worked full time. She was able to cook and clean without restrictions.
9 According to her affidavits,[5] she experiences constant pain in the lower back, at a level of 6 out of 10, even on good days, which fluctuates in intensity and increases with activity. At its worst, her low back pain is at a level of 10 out of 10. She has similar but slightly less intense pain in the mid-back, which is usually about 3 out of 10 but can increase to about 8 out of 10 at times. Her back pain is aggravated by bending, lifting, twisting, and by extended periods of sitting, standing, or remaining in a fixed position. She also regularly experiences pain in her arms, neck, knees, hips and legs, but on good days she has little if any pain in these areas. This pain comes and goes. She takes the following pain medication: 1 15mg tablet of Mobic daily; up to 4 tablets of Endone or Panadeine Forte twice per week; when her pain is unbearable: up to 2 tablets of Targin, up to 3 times per week. She also takes Temazepam to help her sleep. Her back pain also interferes with sexual activity and this was one of the reasons her relationship with her boyfriend broke up after six months in August 2015. She has not been on a date or had sexual relations for about two years[6] – the last occasion being in November 2015.
[5] PCB 1-21
[6] PCB 14
10 She had physiotherapy for about 8 months from late July 2013, myotherapy for around 2 years from early 2014, and a few sessions of psychological treatment. She attended a pain management program in late 2015 on referral from Dr Thomas, but was discharged from that program. She had a back injection from Dr Thomas in early 2016 which gave her short term relief. She has not seen Dr Thomas since then.
11 She socialises rarely because she is unable to predict her pain levels. On good days, she can walk, sit or stand for 30 minutes to an hour, does little housework and only light cooking and can take her dogs for a walk at the park. She is able to bend when she has to, such as when picking up after her dog, even though doing so causes her pain. On bad days, her back severe back pain and pain in other areas of her body makes it difficult for her to get out of bed, and she will stay in bed all day and not even shower. On such days, she struggles to walk for more than a few minutes because of back pain. She only drives on short trips. A typical day consists of her going to the park with her dogs, lying down and watching television, doing some light chores, and spending some time on social media, where she tries “to appear happy and okay”.[7]
[7] PCB 13
12 In cross-examination, Ms Miller said that she did not complete the pain management program because of ongoing flare ups of pain. She agreed that on occasion when seeing her doctor she cannot sit or stand for long due to back pain and sometimes kneels on the floor to manage that pain.
13 Some surveillance footage was shown of Ms Miller standing on the street and walking around before and after she saw Dr Findeisen on 29 December 2015[8]. It was put to her that her presentation outside his rooms was inconsistent with what she did at his rooms, which was to lie on the floor. She denied this and said that after spending time in a taxi getting there she was in pain and she needed to do lie down and did so. She agreed that she has been out a couple of times since August 2015, including to a rock concert; that she had her right forearm tattoo completed in 2016 in two two-hour sessions while lying on her back; and that she has portraits of her daughters tattooed between her shoulder blades.
[8] Exhibit 1
14 Ms Miller was cross-examined at length about a number of Facebook entries which were relied upon by defendant.[9] She admitted frequenting a particular nightclub and said that she sometimes went there alone. She admitted that in October 2015, she attended a rock concert, as well as a ball, and that she hosted her own birthday party. She agreed that she attended another rock concert in December 2015. She said that she had sex twice in November 2015 but has not had sexual relations since that time. She denied overstating her restrictions for the purpose of this case.
[9] Defendant’s Court Book (DCB) 147-161
The plaintiff’s daughter
15 Illana Miller, one of the plaintiff’s daughters, swore an affidavit[10] in which she confirmed that when the plaintiff worked at home between mid-2014 and mid-2016, she was not productive, made frequent mistakes, and struggled to complete tasks on time. Illana Miller confirmed that prior to her fall, the plaintiff was her best friend, socialised with her, walked and went to gym with her. She was houseproud and hardworking. Since her fall, the plaintiff “is a shell of her former self”[11], no longer going out, complaining of pain, unable to manage household chores, often unable to do the grocery shopping or cook for herself. Her house is a mess and she is often unkempt. Her daughter moved out 18 months ago because she could not cope living with her anymore.
[10] PCB 21.1
[11] PCB 21.3
Treating doctors
16 In her four reports,[12] Dr Farzana Mazid, the plaintiff’s treating general practitioner, diagnosed a soft tissue injury to the mid and lower back at work on 1 July 2013 which triggered or gradually developed into fibromyalgia, and concluded that the plaintiff “denies her fitness to perform any work at this stage” and “mentions her physical symptoms are very unpredictable”, she was unfit for any employment, and has an “uncertain” prognosis.
[12] PCB 23-27.1. The reports are dated 11 March 2015, 28 August 2015, 28 April 2017, and 14 July 2017
17 Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine, first saw the plaintiff in September 2014, and reviewed her on 7 occasions, the last of which was in mid-February 2016. He provided 3 reports.[13] In his first report, dated 29 September 2014, he noted that Ms Miller had four specific complaints, in descending order of seriousness: right foot pain, left lower back pain, pain between the shoulder blades, and numbness in her left hand. The left lower back pain was described by Dr Thomas as “constant and stops her from sitting or standing for any length of time. The pain worsens if she tries to do things”. On examination, he found specific tenderness in the left lower lumbar spine, as well as in the anterior shoulder girdles, the elbows, the hips and the knees. He diagnosed fibromyalgia as a consequence of the workplace injury, and recommended that she undertake a pain management program.
[13] PCB 29-40
18 On 22 August 2015, Dr Thomas reported similar conclusions, to the effect that she had developed a “low back pain syndrome but an overriding fibromyalgic pain syndrome”.[14] He wanted to wait until she had completed a rehabilitation program before commenting on her level of work capacity.
[14] PCB 34-35
19 Dr Robert Gassin saw the plaintiff 4 times between October 2013 and mid-April 2014. He reported[15] that at the first visit, the plaintiff’s main complaint was left sided mid back pain radiating to the neck which was constantly present and increased with movement. She also reported stabbing pain on twisting and deep breathing. Her second main complaint was numbness and tingling in the left arm, radiating from her neck to her hand. She stated that her low back pain was of minor concern. He noted that thoracic spine movement was somewhat restricted and reproduced her left back pain, especially on rotation. She was tender to palpation along the thoracic erector spinae muscles bilaterally. When he saw her on the second occasion, he reviewed the CT scan and x-ray of the thoracic spine and felt that they “did not reveal any specific pain source”.[16] He recommended an exercise-based physiotherapy treatment.
[15] PCB 41
[16] PCB 42
20 On the third visit, the plaintiff reported a worsening of symptoms after a sneeze, with widespread pain affecting the lumbar, thoracic and cervical regions, which significantly affected her lifestyle, and which was worsened by prolonged sitting and standing. He found that she was positive for more than 11/18 fibromyalgia tender points. He felt that her symptoms were highly suggestive of fibromyalgia. On the final visit, he noted that her blood tests were normal, and that “this provided increased weight for my diagnosis of fibromyalgia”.[17] He recommended that she undertake a pain management program. He felt that she had the capacity to do non-physical work “for at least several hours each day”. He considered that she would permanently suffer from “ongoing pain and associated mild to moderate disability”.[18]
[17] PCB 42
[18] PCB 43
21 In his final report, dated 22 June 2017, Dr Thomas noted that the plaintiff had attended a rehabilitation program but was discharged from it “partly because of poor attendance and lack of engagement in the program but she also reported ongoing flareups and unable to apply any strategies taught. She presented as being resistant to strategies suggested as she already felt that she had adapted her lifestyle”.[19] He noted that the program’s psychiatrist had recommended that she see a pain psychiatrist. He gave her a steroid injection in February 2017 for her right sciatic pain but had not seen her since. He felt that she had a guarded prognosis given that she had not improved with conservative management.
[19] PCB 39
Plaintiff’s medico-legal reports
22 Dr Richard Sullivan, interventional pain specialist and anaesthetist, provided two medico-legal reports, dated 28 June and 18 July 2017. In his first report, he noted on examination on 28 June that there was no pain behaviour demonstrated, and that “her presentation came across as very believable and genuine”.[20] He noted “positive findings included easily inducible allodynia on modest palpation around limb joints and around her spinal axis consistent with a diagnosis of widespread pain and fibromyalgia”.[21] He diagnosed fibromyalgia subsequent to the workplace injury in July 2013 which was a soft tissue injury resulting in subacute left-sided lower back and mid back pain. He concluded that it was “plausible” that the work-related injury was “an inciting or trigger event” although “there is no firm cause and effect association”. [22] He felt that the fibromyalgia was of such severity that Ms Miller was permanently incapacitated for all employment.
[20] PCB 54
[21] PCB 54
[22] PCB 55
23 In his supplementary report, Dr Sullivan indicated that fibromyalgia is a clinical diagnosis of a disease with an organic basis and is to be distinguished from the psychiatrist’s diagnosis of “chronic pain disorder”. He considered that, on the balance of probabilities, it is a “sound and reasonable hypothesis that the injury of July 2013, if not causative, was likely to have perpetuated or accelerated a predisposition to the development of the fibromyalgia condition.”[23]
[23] PCB 56.2
24 In cross-examination, Dr Sullivan said that from reading the materials provided with the letter of instruction from the plaintiff’s solicitor, he expected to see some pain behaviours by the plaintiff but did not see any during his consultation with her. He agreed that he did not have a full history of events or injuries which occurred after July 2013, but said that he had enough history to be comfortable with his diagnosis of fibromyalgia. In re-examination, in the light of information that the plaintiff’s left shoulder and left hip no longer troubled her, he reaffirmed his opinion that the injury to the back in July 2013 caused or precipitated the development of fibromyalgia.
25 Dr Joseph Slesenger, occupational physician, reported on 19 June 2017[24] his conclusion that Ms Miller’s lumbar spine impairment, a chronic pain disorder, resulted from a soft tissue injury to the lumbar spine sustained in the fall in July 2013, but stated that he was not qualified to comment on the causal link between her widespread musculoskeletal symptoms and the incident of July 2013. Based on her back injury alone, he felt that she was permanently unable to return to her pre-injury duties. He felt that she was physically capable of working 12 hours per week with restrictions: no pulling, pushing or lifting more than 5 kg; no repetitive bending or twisting; ability to sit and stand and alter posture as required; but had concerns with regard to her medication side effects that she was “unlikely to be able to return to work on a consistent and reliable basis”.[25]
[24] PCB 68-69
[25] PCB 69
Defendant’s medico-legal reports
26 Professor Geoffrey Littlejohn, rheumatologist, reported on 30 September 2014[26] that when he examined Ms Miller “she gave a clear history exhibiting no abnormal pain behaviour”. He felt that she had the clinical features of firbromyalgia (widespread pain, abnormal tenderness in soft tissues accompanied by high levels of fatigue, cognitive dysfunction and sleep disturbance) and that, based on the history obtained from her, the condition was triggered by the fall at work on 1 July 2013. He stated that without the triggering soft tissue injury caused by her fall at work, it was unlikely that she would currently have fibromyalgia. He felt that she did not have any ongoing soft tissue disc injury or other somatic injury in the spine or elsewhere, but felt that other psycho-social issues were contributing to her fibromyalgia as well. He felt that she required a proactive pain management approach.
[26] DCB 9
27 On 29 December 2015, Dr John Findeisen, rheumatologist, reported[27] a complaint from the plaintiff of chronic widespread pain, worst in the thoracic and lower lumbar spine. He diagnosed fibromyalgia after a fall which caused soft tissue injuries. Those soft tissue injuries had resolved but had led to the development of fibromyalgia, which is a chronic musculoskeletal pain condition. He felt that she would be permanently unable to work in any employment as she was not coping with one hour’s work from home doing the wages. She was unable to sit for more than 10 minutes or drive any distance, suffered chronic pain which flared up intermittently, and had impaired memory and concentration. He noted that during the consultation she stood up, moved around, or lay on the floor. At home she struggled with the activities of daily living. He felt that her work capacity should be reviewed in 6 months.
[27] DCB 16
28 Dr Findeisen was provided with surveillance video[28] and reported on 30 March 2016 that it showed her moving, bending, standing and twisting “without any sign of distress or restriction”[29] which contrasted with the marked restriction of thoracic and lumber spine movement he noted when he examined her. However, he did not consider that the surveillance footage clarified her ability to sit for a considerable length of time. He still felt that she was suffering from fibromyalgia, but considered on the basis of the surveillance material that she was physically capable of “a significant increase in her working hours and nature of duties”[30] and capable of a graduated return to work duties.
[28] Exhibit 1
[29] DCB 24
[30] DCB 24
29 Dr Alan Jager, psychiatrist, provided two reports. In his first report, dated 30 December 2015[31] he diagnosed Ms Miller with Bipolar II Disorder, current episode depressed. In his second report, dated 29 May 2017,[32] he noted her complaints of widespread body pain which influenced all aspects of her daily living, including her socialising. She told him she did not go out to dinner, movies or nightclubs now. He noted that “if there is no adequate organic explanation for that pain”, her widespread body pain would represent a Chronic pain Disorder associated with Psychological Factors.[33]
[31] DCB 29
[32] DCB 34
[33] DCB 36-37
30 Roy Carey, orthopaedic surgeon, reported on 17 May 2017[34] that Ms Miller had chronic pain essentially involving the whole body. He noted that the second component of the video surveillance taken in late 2015 and early 2016 showed her bending and squatting near her small dogs. He noted that this activity was at considerable odds with his examination, where her movements were grossly restricted and she was unable to touch her knees. He found no clinical or radiological evidence of acute injury, acknowledged that the diagnosis of fibromyalgia was outside his expertise, and deferred to the opinions of Professor Littlejohn and Dr Thomas to the effect that fibromyalgia is an organic condition and that her condition was triggered by the workplace incident on 1 July 2013. He concluded that she was unfit for all work but would require expert assessment of her residual work capacity.
[34] DCB 49
31 Dr Dominic Yong, occupational physician, reported on 30 May 2017[35] that when examined Ms Miller displayed some Waddell’s signs suggesting magnification of symptoms. However, he concurred with the diagnosis of fibromyalgia. He noted Ms Miller’s stated physical tolerances, and concluded that while she was permanently physically incapable of returning to her pre-injury duties, she would have a capacity to work in alternative duties “for significantly reduced hours per week”[36] with the following restrictions: no repeated bending and twisting of the back; no repeated firm pushing and pulling; no repeated lifting more than 3 kgs; regular varying of posture between sitting, standing and walking and no repeated reaching.
[35] DCB 65
[36] DCB 66
FINDINGS AND REASONS
32 Whilst Mr Carey and Dr Yong have noted non-organic examination findings, they each expressly deferred to the diagnosis of an organic condition, fibromyalgia, made by the rheumatologists.
33 I accept the evidence of those qualified to diagnose fibromyalgia, namely, Professor Littlejohn, Dr Findeisen, Dr Sullivan, Dr Gassin and Dr Clayton Thomas, to the effect that the soft tissue injury to the thoracic and lumbar spine suffered in the fall on 1 July 2013 – at minimum on the balance of probabilities - triggered the onset of fibromyalgia in Ms Miller. I further accept Dr Sullivan’s evidence to the effect that knowledge of subsequent injuries to various body parts would not have detracted from the diagnosis he made.
34 I acknowledge that some experts have acknowledged the possible presence of psycho-social issues contributing to Ms Miller’s presentation on examination. I consider that the presence of such issues does not affect the conclusion stated in the previous paragraph, namely, that the work-related fall caused the soft tissue injury to the lumbar and thoracic spine and triggered the development of fibromyalgia.
35 I note the attack on Ms Miller’s credit made by the defendant. I found Ms Miller to be a straightforward witness. She acknowledged painting a cheerful picture of herself on Facebook. She acknowledged hosting a birthday party and befriending some patrons of a nightclub she has attended. I do not consider that these activities, nor the pain behaviour demonstrated to some doctors, nor the apparent ability to squat or bend on one snapshot of video surveillance, detracts from the reliability of the evidence given by her concerning her pain and restrictions.
36 On the question of pain and suffering, it is clear that the plaintiff’s fibromyalgia causes her chronic pain which is not fully relieved by the substantial volume of pain medication she takes on a daily basis. Her physical tolerances are very limited, her activities of daily living are seriously affected, and the impact on her social, recreational and occupational activities is profound. I am satisfied that in terms of pain and suffering, the consequences of the impairment of the lumbar and thoracic spine are more than considerable when compared with other cases in the range of permanent impairments of the spine.
37 I turn to the question of Ms Miller’s work capacity. There appears to be consensus among the experts that by reason of her lumbar spine injury with consequential fibromyalgia, Ms Miller is permanently incapacitated for her pre-injury full-time employment. At best, Dr Glassin referred to a capacity to work several hours each day, while Dr Slesenger concluded she has the capacity to work 12 hours per week with the restrictions outlined above at paragraph 26, and Dr Yong imposed similar restrictions and referred to “significantly reduced hours per week”. At the time he saw her, Mr Carey felt that Ms Miller was totally incapacitated for all work. Dr Findeisen felt in late 2015 that Ms Miller was permanently incapacitated for all employment, but in the light of the brief video surveillance material reversed his opinion in March 2016 and stated, without explaining why, that the plaintiff was physically capable of a graduated return to work duties. I reject his conclusion, as it is unexplained. I prefer the more recent conclusions of Dr Mazid and Dr Sullivan to the effect that Ms Miller is unfit for all work and I accept Dr Sullivan’s assessment that the severity of her fibromyalgia is such that she is permanently incapacitated for all employment.
38 I am therefore satisfied that Ms Miller has established that as a result of her impairment she will permanently suffer a loss of earning capacity of 40% or more. It follows that the loss of earning capacity consequences of her permanent impairment of the function of the spine are more than considerable when compared with other cases in the range of permanent impairments.
CONCLUSION
39 It follows from the above that leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of the injury to the spine sustained at work for the defendant.
40 I reserve the question of costs.
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