Miloseski v Chiquita Mushrooms Pty Ltd
[2009] VCC 534
•28 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-06-04769
| NADA MILOSESKI | Plaintiff |
| v | |
| CHIQUITA MUSHROOMS PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 and 20 April 2009 |
| DATE OF JUDGMENT: | 28 April 2009 |
| CASE MAY BE CITED AS: | Miloseski v Chiquita Mushrooms Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0534 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered injury to her lower back – identification of the injury – whether the impairment of the function of her lower back had consequences for pain and suffering and loss of earning capacity which were at least very considerable – whether other medical conditions resulted in similar consequences – disentangling – leave granted for pain and suffering and loss of earning capacity - whether the plaintiff suffered a permanent severe mental or severe behavioural disturbance or disorder : section 134AB(38)(c) and (d)
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Lewis SC with | Patrick Robinson & Co |
| Mr M Ruddle | ||
| For the Defendant | Mr P Jens | Wisewoulds |
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 22 December 2006 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of his employment with the defendant on 13 December 2001.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr G Lewis SC appeared with Mr M Ruddle of Counsel for the plaintiff and Mr Jens of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined •
The plaintiff tendered her Court Book (“PCB”) pages 7-118 and 121-142: Exhibit A
• The defendant tendered the following evidence:
ƒ film taken of the plaintiff on 2 and 3 May 2008: Exhibit 1 ƒ film taken of the plaintiff on 14 December 2007: Exhibit 2 ƒ film taken of the plaintiff on 19 February 2009: Exhibit 3 ƒ film taken of the plaintiff on 30 March 2007: Exhibit 4 ƒ the Defendant's Court Book (“DCB”) pages 1-111c: Exhibit 5.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
7 The 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 the course of her of employment on or after 20 October 1999.[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, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(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 fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(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)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsections (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, 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 subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE 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 and the Incident
9 The plaintiff was born on 18 May 1952. She is almost fifty-seven years of age. She is a married woman with two adult children and several grandchildren.
10 The plaintiff arrived in Australia in 1970 from Macedonia. She followed a number of types of employment within a month of arriving in Australia before commencing employment with the defendant in the mid 1990s. The plaintiff worked as a picker for the defendant which conducted a business growing mushrooms.
11 On 13 December 2001, the plaintiff was seated on a stool. Each leg of the stool had a castor wheel attached to it enabling the plaintiff to move while still seated on the stool as she needed to. The stool on which the plaintiff was seated was defective, in that one castor wheel tended to stick.
12 The plaintiff attempted to move the stool, and as a result of the defective castor wheel, became stuck, resulting in the plaintiff being tipped off the stool. She landed heavily on the concrete floor on her buttocks.[5]
[5] PCB 8
The Plaintiff's Medical Treatment
13 The plaintiff experienced pain in her lower back and left elbow, which also hit the concrete floor when she fell off the stool.
14 On the following day the plaintiff saw Dr Baglar, general practitioner. The plaintiff complained of pain in her lower back. On examination, Dr Baglar found extreme tenderness in the plaintiff's sacral bones centrally; flexion and extension were very limited and straight leg raising of both legs was much diminished due to pain. He prescribed her non-steroidal anti-inflammatory medication and advised her to rest.[6]
[6] PCB 19
15 The plaintiff attempted to continue working. She said that she struggled on for a couple of weeks, working about three or four days per week, before being put off work by Dr Baglar on 28 December 2001.
16 Dr Baglar referred the plaintiff to have an x-ray and a CT scan. The CT scan was taken on 27 December 2001.[7] Dr Baglar concluded that the plaintiff had a little diffuse posterior disc bulge at L3-4 and a small central posterior disc herniation at L4-L5, and also at L5-S1.[8]
[7] PCB 40
[8] PCB 19
17 Dr Baglar referred the plaintiff to have physiotherapy and hydrotherapy, which the plaintiff said she had for about one year.[9]
[9] PCB 9
18 Dr Baglar then referred the plaintiff to Mr Thien, neurosurgeon, who first saw her in March 2002. He had the CT scan available for his inspection. He referred the plaintiff to have an MRI scan which was taken on 27 March 2002. Mr Thien then reviewed the plaintiff on 9 April 2002.
19 Mr Thien provided a medical report dated 17 March 2004 which appears to summarise his treatment of the plaintiff. In that report, he expressed the opinion that the plaintiff had sustained an axial load to her spine when she fell from the stool onto her buttocks.
20 He diagnosed that she had degenerative spinal disease from L3 to S1, and a disc protrusion at L4-5 which was consistent with the axial load on her spine, and was also consistent with her long history of work as a mushroom picker. On examination, he found limited straight leg raising to about 30 degrees, but no neurological deficits. He did not consider that surgery was indicated.[10]
[10] PCB 37-39. Letters written by Mr Thien to Dr Baglar dated 19 March 2002 and 9 April 2002 reproduced at DCB 11-12.
21 It was at around the time when the plaintiff first saw Mr Thien that she returned to work on light duties. In about March 2002, she returned to work over a two-week period, performing about seven days’ work in total before she was unable to continue. She has not worked since.[11]
[11] PCB 9-10
22 Dr Baglar referred the plaintiff to Mr Brazenor, neurosurgeon. In a report to Dr Baglar dated 25 October 2002, he referred to his inspection of the CT and MRI scans and said that the plaintiff had suffered a mild injury to her L4-5 disc. He provided her with a Workers’ Compensation Certificate. He considered it appropriate that her return to work be without bending and he forecast that she probably would not return to work mushroom picking because of the necessity to bend at the waist in that job.[12]
[12] DCB 1-2
23 Mr Brazenor reviewed the plaintiff on 25 November 2002 and 6 February 2003.[13] In a report to Dr Baglar dated 6 February 2003, he noted that the changes on the scans at L4-5 and L5-S1 “were pretty mild”. He certified the plaintiff fit for full-time work without bending at the waist, noting on the certificate that the plaintiff would never get back to work picking mushrooms.[14]
[13] DCB 3-4
[14] DCB 4
24 In a report dated 18 February 2004, Mr Brazenor was of the opinion that the changes were a cumulative injury to the lower three discs in her lumbar spine and that it was likely that her work picking mushrooms had contributed to those injuries. He noted a discrepancy in the results of the examinations he conducted on her, but added that whilst being fit for full-time employment, she would never again be fit for a job involving repeated bending at the waist, repeated picking up of objects from ground level or lifting weights in excess of 15 kilograms, and that he would restrict her in that regard for work, which restrictions he considered would be permanent.[15]
[15] DCB 6-7
25 The plaintiff then saw Mr Jensen, neurosurgeon. The plaintiff had spoken to friends who recommended him. She first saw him in April 2003. Mr Jensen referred the plaintiff to have a further CT scan which he considered showed minor degenerative changes, but nothing warranting surgical intervention. He suggested that she have an epidural or facet joint injection, which she declined.[16]
[16] PCB 39a-39b
26 Dr Baglar then referred the plaintiff to Dr Myers, physician, who saw her on one occasion in March 2005. The purpose of the referral was for Dr Myers to advise Dr Baglar regarding the plaintiff's rehabilitation. Dr Myers’ letterhead describes his specialty as geriatric and elderly rehabilitation medicine.
27 There was significant debate concerning the history which Dr Myers recorded when the plaintiff saw him. Mr Jens cross-examined the plaintiff at length about that history. I accept the plaintiff’s evidence that much of what was recorded by Dr Myers is inaccurate, for example, he recorded that the plaintiff had been a retail shop assistant for fifteen years, which is contrary to the plaintiff’s evidence.[17]
[17] PCB 14 - to be contrasted with what the plaintiff said in her affidavits at PCB 8 in which he described undertaking mainly factory work apart from working in the delicatessen which she and her husband owned and ran: Transcript (“T”) 39, when the plaintiff described running the delicatessen from 1989 to 1991
28 I accept the plaintiff’s evidence that she had difficulty communicating with Dr Myers. She said that she did not have an interpreter to assist her when she saw Dr Myers; that the combination of her poor English and his accent made communication difficult, and that she struggled to communicate with him.[18] I am fortified in reaching the conclusion that I can accept the plaintiff's explanation because I did not find the plaintiff to be other than a straightforward witness who I think was endeavouring at all times to give a good account of herself and to answer questions put to her directly and responsively.
[18] T 100
29 Dr Myers was of the opinion that the plaintiff was suffering from lumbar spine disc pathology, together with degenerative changes and a full thickness tear in the right supraspinatus muscle. He recommended that the plaintiff undergo hydrotherapy and posture management to improve her lower back pain, and a repair of the right supraspinatus muscle or at least an orthopaedic review to determine whether that recommendation should be followed through.
30 Dr Myers was of the opinion that the plaintiff was not fit for employment because of the impairment caused by both of the injuries he identified. He was of the opinion that the plaintiff would not be employable unless she underwent lumbar stabilisation, and that was unlikely to occur spontaneously. He suggested a multilevel fusion. He added that the relatively greater disc pathology suggested to him that the disc changes were recent rather than having been present for years at the least at the levels of L2-3 and L5-S1 and that the fall was a major cause of the plaintiff’s condition and symptoms.[19]
[19] DCB 17
31 Subsequently, the plaintiff has been treated by Dr Baglar. Dr Baglar provided two reports. The last two, dated 19 November 2007[20] and 23 March 2009,[21] appear to summarise the plaintiff's present situation with the other reports providing the historical detail of her treatment.
[20] PCB 27-29
[21] PCB 29a-29b
32 Dr Baglar has remained of the opinion that the plaintiff had evidence of degenerative changes at L3-4, L4-5 and L5-S1 and also a central and right paracentral disc protrusion at L4-5, and furthermore, that the protrusion was indenting the ventral sac without causing any neural impingement.[22]
[22] PCB 29a
33 Dr Baglar described in significant detail the impact that the plaintiff's injury has had upon her non-working and working life, and he considered that she was not exaggerating her condition, but rather was genuine and modest and that he was in a good position to reach that conclusion given his prolonged involvement with her.[23] Dr Baglar was not optimistic about the plaintiff's future and said that it was highly unlikely that she would improve beyond the point she had reached when he wrote his last report on 23 March 2009.[24]
[23] PCB 28-29
[24] PCB 29b
34 Dr Baglar continues to treat the plaintiff. He said that he is unable to prescribe her medication prescribed earlier because of the side-effects on the plaintiff’s digestive system, and that it caused her dyspepsia. He has prescribed her a lighter form of non-steroidal anti-inflammatory medication.[25]
[25] PCB 29b
35 The plaintiff said that she takes medication when the pain is more serious, with episodes of that degree occurring sometimes twice a week and sometimes once a fortnight. She presently uses Panadeine Forte, although she said she has problems using it for pain relief, and I infer that the problems are those referred to by Dr Baglar in the preceding paragraph. She also uses Movalis, Panamax and Nurofen for pain relief.[26]
[26] T 62-63
The Plaintiff's Other Medical Evidence
36 The plaintiff has been examined by no less than eleven specialists on a medico-legal basis for the purpose of assessment of the injury she says she suffered to her lower back.
37 It is my strong impression from my reading of the reports of those eleven specialists that they are broadly ad idem that the plaintiff suffered an injury to her lower back, however, some accept that the plaintiff suffered a disc injury with consequences of some magnitude; some accept that the plaintiff suffered an injury, but not of a discal nature; some accept that the plaintiff suffered an injury, but the symptoms from which the plaintiff now suffers are a consequence of age-related degenerative changes, and at least one is of the opinion that the dominant feature of the plaintiff's presentation is of non- organic factors.
38 The following is a summary of the opinions of the specialists who examined the plaintiff on a medico-legal basis in support of her case:
•
Mr Bittar, neurosurgeon, examined the plaintiff in May 2005[27] and November 2008.[28] In his second report dated 28 November 2008, he was of the opinion that the plaintiff was suffering discogenic lower back pain and musculoligamentous lower back pain with somatic referral. This opinion was expressed in the context of the MRI scan of June 2004 which Mr Bittar considered demonstrated mild intervertebral disc prolapses at L4- 5 and L5-S1 without any significant neural compression. He was of the opinion that the plaintiff was totally incapacitated for work and that degree of incapacity was likely to last into the foreseeable future.[29]
•
Mr Brownbill, neurosurgeon, examined the plaintiff on 11 March 2008[30] and 21 January 2009. He was of the opinion that the fall resulted in axial forces on the plaintiff’s lumbar spine, resulting in lumbar intervertebral disc damage superimposed on likely pre-existing and essentially asymptomatic degenerative changes. In that regard, he was referring particularly to a disc protrusion at L4-5. He did not consider she was fit to return to her work as a mushroom picker, although he considered that she had a theoretical capacity to return to work.[31]
•
Mr Simm, orthopaedic surgeon, examined the plaintiff on 9 July 2008[32] and 19 November 2008.[33] He was of the opinion that the plaintiff suffered an internal disruption of a disc in one or more of the degenerative lumbar intervertebral discs, and I infer that he was referring to the degenerative discs shown up in the MRI scan of June 2004. He was also of the opinion that she had a permanent physical injury which would restrict her ability to sustain static postures, bend, lift and undertake physically demanding occupational and recreational activities, although he considered she had the physical capacity to undertake light semi-sedentary office work.[34]
[27] PCB 30
[28] PCB 33
[29] PCB 34-35
[30] PCB 44
[31] PCB 47-48 and 51-52
[32] PCB 70
[33] PCB 77
[34] PCB 73-74 and 78-79
39 Mr Jens submitted that I should not accept the opinions expressed by Mr Brownbill and Mr Simm because on the occasions on which they examined the plaintiff she demonstrated greater movement when unconscious of being observed than when formally examined.[35] However, despite the contrast in the plaintiff's movements, it did not prevent Mr Brownbill and Mr Simm from expressing opinions as I have summarised them above.
[35] Mr Brownbill, at PCB 46 and 51, and Mr Simm, at PCB 72 and 78
40 Mr Jens made the same submission, relying upon the way in which the plaintiff behaved when examined by Mr Brownbill and Mr Simm and when examined by other medical practitioners, which I will deal with in more detail below.
The Defendant’s Medical Evidence
41 The following is a summary of the opinions of the specialists who examined the plaintiff on a medico-legal basis for the defendant:
•
Dr Wyatt, physician, examined the plaintiff on 10 April 2002. She had the first MRI scan available for her inspection. She was of the opinion that the plaintiff had ongoing lower back pain for which her work was a significant contributing factor. She did not consider that the plaintiff had suffered any features of a disc prolapse or sciatica. She considered that the plaintiff was fit for suitable employment with restrictions on bending, twisting, heavy manual handling and lifting, and that she should be encouraged to change her posture over the course of a day.[36]
•
Mr Nye, neurosurgeon, examined the plaintiff on 24 September 2002. He was of the opinion that the abnormalities identified on the first MRI scan were not a consequence of the minor injuries suffered by the plaintiff in the incident, and he added that the consequences of the aggravation of pre- existing degenerative changes in her lumbar spine had ceased and that there was a significant functional component to the plaintiff's presentation. However, he considered that it was appropriate to impose restrictions on the plaintiff and that she should avoid repeated bending and twisting of the spine and lifting of objects in excess of 5 kilograms in weight.[37]
•
Mr Chamberlain, orthopaedic surgeon, examined the plaintiff on 14 January 2003. He was of the opinion that the plaintiff had suffered a lumbar disc strain; was unable to undertake her normal work, but was fit for suitable work not involving repeated bending and with a restriction on lifting over 5 kilograms. He considered it likely that there would be some permanent impairment.[38]
•
Mr Moran, orthopaedic surgeon, examined the plaintiff on 6 August 2003. He was of the opinion that the plaintiff damaged her L3-4, L4-5 and L5-S1 discs and that she was incapacitated for work and only fit for light work not involving repeated bending and/or heavy lifting.[39]
•
Mr Troy, surgeon, examined the plaintiff on 1 April 2003[40] and 23 September 2003.[41] On the first occasion he examined the plaintiff he considered that she had suffered an aggravation of degenerative changes in her lumbar spine and that she was fit for suitable work commencing at two hours per day, three days per week with restrictions on bending, twisting and lifting. On the second occasion he examined the plaintiff he contradicted his earlier opinion saying:
[36] DCB 18-20
[37] DCB 23-24
[38] PCB 54-55
[39] PCB 57
[40] DCB 35
[41] DCB 42
“She has degenerative changes in her back and in my view [they] have not been aggravated or accelerated by the nature of the fall she had two years ago".
I assume that he meant to give a similar opinion to Mr Nye that the consequences of the aggravation of pre-existing degenerative changes in her lumbar spine had ceased. However, whilst being of the opinion that the plaintiff was fit for suitable work, he was of the opinion that it was appropriate to place restrictions on the plaintiff and that she avoid repetitively lifting and bending.[42]
[42] DCB 46-47
•
Mr Dooley, orthopaedic surgeon, examined the plaintiff on 2 August 2002. He was of the opinion that the plaintiff had sustained a lower back strain with aggravation of disc degenerative changes in her lumbosacral spine. He did not consider that the plaintiff had suffered any significant disc prolapse or spinal canal stenosis that might explain her symptoms.[43]
•
Mr Elsner, orthopaedic surgeon, examined the plaintiff on 3 August 2005. He was of the opinion that the plaintiff had aggravated some mild lumbar degenerative changes and may have suffered a very small disc protrusion at L4-5 for which work was a significant contributing factor. It was his impression that there was a significant degree of embellishment by the plaintiff of her symptoms.[44]
•
Ms Lewis, neurosurgeon, examined the plaintiff on 2 April 2008. Ms Lewis obtained the incorrect date of the incident, describing it as having occurred on 13 or 14 December 2000, however, it is clear enough that the plaintiff described the relevant incident to her of 13 December 2001. Ms Lewis was of the opinion that the plaintiff had not suffered a specific injury and had aggravated degenerative changes from which she had not made a good recovery. She added that the plaintiff was not capable of undertaking work which involved prolonged bending and twisting, but that she was fit for suitable work.[45]
•
Mr O'Brien, orthopaedic surgeon, examined the plaintiff on 9 April 2008. He was of the opinion that there was no indication that the plaintiff had suffered severe lumbar pathology; that the plaintiff had sustained a non- specific lower back injury, and that there were non-organic factors influencing her ongoing clinical course. He considered that the plaintiff's physical activities were only very mildly restricted by the presence of ongoing chronic lower back pain and that there were a number of non- physical barriers which would preclude her from undertaking work.[46]
[43] DCB 59
[44] DCB 70-71
[45] DCB 75-76
[46] DCB 91
42 In addition to making the submissions which are referred to in paragraph 40 above, Mr Jens referred me to the way in which the plaintiff behaved when examined by Mr Nye,[47] Mr Dooley,[48] Mr Elsner[49] and the conclusions reached by Mr O'Brien in submitting that I should not accept the opinions of the medical practitioners who examined the plaintiff, and, secondly, that it was likely that Mr O'Brien was correct in describing the presence of non-organic factors being present rather than the plaintiff having suffered an injury to her lower back which has been and is now responsible for the consequences of which she complains.
[47] DCB 23
[48] DCB 59
[49] DCB 70
43 I reject that submission for the same reasons for which I rejected that submission earlier in these reasons. Leaving aside the opinion of Mr O'Brien, all of the other examining medical practitioners found that the plaintiff had suffered an injury, and with the exception of Mr Nye and Mr Troy, were of the opinion that the plaintiff continued to suffer from the injury.
44 Even though Mr O'Brien was convinced that there were non-organic factors at work, he nonetheless found that there was an injury because he went on to describe the plaintiff's physical activities as being only very mildly restricted, and by inference, that very mild restriction is causally connected to the injury.
The Plaintiff's Other Injuries
45 Mr Jens submitted that the plaintiff had suffered medical conditions affecting her left shoulder, right shoulder, neck and right wrist and that some or all were responsible for the plaintiff experiencing pain and limitation of movement and were productive of consequences which were equally the cause of her pain and suffering and loss of earning capacity.
46 The plaintiff said that she developed pain in her left shoulder in the late 1980s as a result of working as a sewing machinist and that the problem recurred when she subsequently worked at a shoe factory.[50] The plaintiff said that she essentially recovered from the left shoulder problem to the extent that she was able to work and only suffered problems with it when she suffered tiredness at the end of the working day and in those circumstances she also suffered some problems with her right shoulder. The plaintiff said that she sometimes obtained treatment for the problems with her shoulders. She said she had some physiotherapy and massage and used medication.[51]
[50] PCB 8 and T 39-40
[51] T 44-45
47 The plaintiff said that she did not have any other active treatment for her left shoulder. Mr Jens asked the plaintiff whether she had undergone an ultrasound. She said she had not.[52]
[52] T 100
48 Mr Jens cross-examined the plaintiff at some length about the problems that she encountered with her right shoulder. The plaintiff said that she did not have any significant problems with her right shoulder until some time in 2005. She described that when she was asleep she experienced pain in her right shoulder, which presumably woke her, and then one day she pulled a doona from a bed, following which she experienced difficulty lifting up her right arm.[53]
[53] T 52-53
49 The plaintiff then saw Dr Baglar who referred her to Mr Salmon, orthopaedic surgeon. He saw the plaintiff in early 2005 and probably in March of that year. Mr Salmon referred the plaintiff to have an ultrasound which demonstrated a rotator cuff injury. He also referred her to have a plain x-ray which demonstrated longstanding rotator cuff disease with subacromial spurring and acromioclavicular joint degeneration.
50 It is not clear what treatment Mr Salmon recommended. In a report dated 2 March 2005 directed to Dr Baglar, he merely referred to the plaintiff not being keen on interventional management. Mr Salmon was content to advise the plaintiff to have physiotherapy and to undertake exercises which, if that failed, she would need to consider surgery.[54]
[54] DCB 10
51 In the course of Mr Jens’ cross-examination, the plaintiff demonstrated the extent to which she was able to move her right shoulder. On my observation it was when she extended her right arm from her body and raised it to about 20 degrees above the horizontal that she indicated, by facial grimacing, that she could not move it any further.
52 Mr Jens cross-examined the plaintiff about an injury to her right wrist and referred the plaintiff to an ultrasound which was conducted on her right wrist on 21 June 2005.[55] The plaintiff said that she experienced problems with her right wrist in 2004 and was referred to have an x-ray followed by the ultrasound. She said that the pain in her right wrist lasted for a few days and then gradually dissipated, and from time to time would return.[56]
[55] DCB 111c
[56] T 81-83
53 Mr Jens also cross-examined the plaintiff about a problem she was experiencing with her neck. He referred the plaintiff to an x-ray taken of her neck on 22 April 2004.[57] The plaintiff said that she experienced pain in her neck in 2001 after undertaking a long day's work.[58] She said that she had the same treatment and used the same medication as she was using at that time for her shoulders.[59] She said that she experienced neck pain thereafter when she stood or walked for too long, and she added that she now experiences pain in her neck when she experiences severe pain in her lower back.[60]
[57] DCB 111a
[58] T 48
[59] T 48
[60] T 49, 63 and 79
54 The plaintiff denied that she was told by Dr Baglar that she had suffered a disc injury in her neck.[61]
[61] T 79
The Issues
55 Mr Jens submitted that the issues raised by the defendant in response to the plaintiff's proceeding are as follows:
• The plaintiff's injury is no longer materially contributed to by her work. •
If the plaintiff's injury is materially contributed to by her work then the consequences of the impairment of the function of her lower back are contributed to by both the physical injury and an ensuing psychological/psychiatric problem.
•
The plaintiff's other medical problems have resulted in an impairment and are to some extent responsible for the pain and suffering and loss of earning capacity consequences experienced by the plaintiff.
•
Ultimately, the plaintiff's proceeding for pain and suffering and loss of earning capacity does not meet the standard required for her to succeed.
The Plaintiff's Injury
56 Mr Jens placed considerable emphasis upon the opinions of Mr Thien, Mr Brazenor and Mr Jensen, submitting that they were treating neurosurgeons who had found little pathology to support the complaints made by the plaintiff.
57 I reject that submission. Mr Thien considered that the axial load resulting from the fall was of significance and he diagnosed that the disc protrusion at L4-5 was consistent with that axial load.
58 Mr Brazenor, whilst observing that both he and Dr Baglar needed to be reminded that the changes at L4-5 and L5-S1 were pretty mild, nonetheless considered that the mild changes in the lower three discs in the plaintiff’s lumbar spine deserved the description “injury” and he placed upon her significant work restrictions to which I have already made reference to above.
59 Mr Jensen based his opinion on whether the plaintiff was a candidate for surgical treatment on the subsequent CT scan which he ordered. Despite his description that it showed some minor degenerative changes, he nonetheless recommended that she continue with the conservative form of treatment which she was undergoing at that time.
60 The conclusion I have reached is that each of them found that the plaintiff had suffered an injury to her lower back. None of the observations and opinions which they expressed in their reports are as conclusive as Mr Jens submitted, that there was essentially little to be found radiologically and clinically.
61 That brings me to the medico-legal examinations. Firstly, I reject the opinions of Mr Nye and Mr Troy that the incident and the aggravation of the degenerative changes resulting from the incident had ceased. Neither chose to provide any analysis for that opinion. It was simply stated blandly and blithely, and is in the face of a large body of other medical opinions to the contrary.
62 The recent medical opinions which support the submission made by Mr Lewis that the plaintiff suffered a disc injury and also an aggravation of degenerative changes have been provided by Mr Bittar, Mr Brownbill and Mr Simm.
63 The medical opinions of the remaining medical practitioners, they being Dr Wyatt, Mr Dooley, Mr Elsner and Ms Lewis, essentially paint a picture of a rather more modest injury, whereas Mr Chamberlain and Mr Moran’s opinions are more consistent with those of Mr Bittar, Mr Brownbill and Mr Simm.
64 I reject the opinion of Mr O'Brien. Whilst Mr Nye, Mr Dooley and Mr Elsner also observed the plaintiff to behave in a conflicting way when clinically examined in contrast to occasions when she was unconscious of being observed, none of them have gone to the extent that Mr O'Brien has to conclude that there is very little physically wrong with the plaintiff.
65 Furthermore, I am fortified in reaching that conclusion because Mr Brownbill and Mr Simm were asked to put to one side any apparent non-organic factors. They did so and were able to identify the nature of the plaintiff’s injury and its consequences without any obvious difficulty.[62]
[62] Mr Brownbill, at PCB 48, and Mr Simm, at PCB 74
66 The conclusion I have reached is that it is more likely than not that the plaintiff suffered the axial load on her lower spine referred to by Mr Thien, Mr Bittar and Mr Simm, and that it produced a discal injury at L4-5, together with an aggravation of previously asymptomatic degenerative changes in the plaintiff’s lower back.
The So-Called ‘Disentangling’
67 Shock Records Pty Ltd v Jones,[63] Zivolic v Hella Australia Pty Ltd[64] and Jayatilake v Toyota Motor Corporation Australia Ltd[65] demonstrate that the approach that I must take in determining whether any so-called ‘disentangling’ is required is to ask whether the plaintiff’s lower back injury arose as a result of the incident and whether it is the major contributor to the pain and suffering and loss of earning capacity consequences which she contends have arisen as a result of the injury and the impairment of the function of her lower back.
[63] [2006] VSCA 180, per Bell AJA at paragraphs 69-70
[64] [2007] VSCA 142, per Redlich AJA at paragraph 64
[65] [2008] VSCA 167, per Ashley JA at paragraphs 20-24
68 Apart from Mr O'Brien, there has been no evident problem in the examining medical practitioners arriving at a conclusion that the plaintiff did suffer an injury to her lower back, and based upon the opinions of the medical practitioners whose opinions I prefer, they have had no difficulty in separating the physical consequences from the psychological/psychiatric consequences, which leads me to conclude that there is no necessity for the so-called ‘disentangling’ step to be undertaken here.
The Other Medical Conditions
69 I reject Mr Jens’ submission that in some way, individually or collectively, the other medical problems which the plaintiff has encountered affecting her shoulders, neck and right wrist are medical problems which are the cause or the major cause of her pain and suffering and loss of earning capacity consequences.
70 There is no current medical evidence which points to any of those medical conditions being productive of consequences of any significance. The fact that the plaintiff was unable to move her right shoulder fully is indicative of her having a problem of some significance, however, and interestingly, when Mr O'Brien examined the plaintiff he found a full range of movement in both shoulders and could not detect any specific abnormality associated with either of the plaintiff’s upper limbs.[66]
[66] DCB 90
71 I am, therefore, left with the evidence of the plaintiff which impressed me that she does not have any significant problems with her left shoulder, neck and right wrist, save for neck pain which seems to be associated with increased pain in her lower back, and as far as her right shoulder is concerned, there was insufficient evidence to point to it being a medical condition perhaps of much more than mild to moderate consequence to the plaintiff.
72 Furthermore, it is beside the point that some other condition unrelated to the plaintiff's work might also satisfy the serious injury test. What I must consider is whether the consequences of the compensable injury meet the requirements of that test.[67]
[67] Dressing v Porter [2006] VSCA 215 per Ashley JA at paragraph 47
73 I do not consider that there is any evidence of any real consequence which suggests that the other medical conditions displace the consequences of a compensable injury to the plaintiff’s lower back.
Serious Injury - Paragraph (a)
Pain and Suffering
74 The plaintiff is now fifty-seven years of age. Despite the onset of other medical conditions, which I have just referred to, she was otherwise able to work in an uninterrupted way for a very significant period of time up until she was injured in the subject incident.
75 In her affidavit sworn 23 August 2006, she describes having an actively painful lower back which is often stiff and sore and productive of muscle spasm and a feeling of tightness. She has pain affecting both of her legs. The pain in her lower back is worse when she sits or stands for too long, and on bending, twisting and lifting. Her sleep is affected by pain and she is restricted in her capacity to engage in activities such as shopping, going to the movies, the beach, on picnics and socialising with friends, as well as affecting her in her ability to engage in domestic activities, such as vacuuming, cleaning her home and her capacity to work.[68]
[68] PCB 12-13, and confirmed in her second affidavit sworn 30 July 2008, at PCB 14-15, and in the affidavits sworn by her husband, Alex Miloseski, on 30 July 2008, at PCB 16-17
76 For the purpose of making the basis upon which I have made the following findings clear, I reiterate that I find that the plaintiff has suffered the injury which I have described in paragraph 66 above and that there is no requirement to undertake the so-called ‘disentangling’ nor paying any significant heed to the other medical conditions referred to in paragraphs 69- 71.
77 I find that the plaintiff has suffered an injury to her lower back which has impaired the function of her lower back and has caused her the consequences which I have summarised in paragraph 75 above. I find that the impairment is permanent, and I see no evidence in the medical opinions which I prefer to suggest otherwise.
78 The question that remains to be considered is whether the consequences to the plaintiff are at least very considerable when regard is had to the comparison which I am obliged to make which I have referred to in my discussion of the statutory scheme.
79 It must be remembered that the plaintiff had worked for a very significant period of time in relatively hard labour without any significant difficulty until she suffered the injury on which this application is based. It was only thereafter that she was unable to work. This is a matter of relevance and consistent with the observations made by Ashley JA in Jayatilake (supra).[69]
[69] at paragraph 29
80 Mr Jens submitted that the filmed activity of the plaintiff is inconsistent with her having suffered a serious injury; however, I reject that submission. None of the films showed the plaintiff engaged in any activity of a physically provocative nature:
•
The film taken on 30 March 2007 showed the plaintiff shopping and walking to and from a car park and placing her granddaughter into the rear seat of her car.
•
The film of 14 December 2007 showed the plaintiff attending a library with her granddaughter.
•
The film of 2 May 2008 showed the plaintiff placing her granddaughter in the rear seat of her car.
•
The film of 3 May 2008 showed the plaintiff at a swimming pool with her granddaughter. She stood and moved about in the water.
•
The film of 19 February 2009 showed the plaintiff entering a shop and crossing a road with her husband.
81 Mr Jens cross-examined the plaintiff extensively about the plaintiff's relationship with her son, daughter and her granddaughter, Caitlin, and the occasions on which her granddaughter stays overnight and is minded by the plaintiff.
82 To the extent that the plaintiff is active in caring for her granddaughter and having a relationship with her own children, does not impinge upon the foundation upon which application to serious injury is based. There was nothing in the cross-examination of the plaintiff which impressed me as contradicting the loss which the plaintiff has suffered as a result of the injury to her lower back.
83 I find that the plaintiff has suffered a disabling injury to her lower back which is productive of significant pain and restriction of movement requiring the use of painkilling medication and has deprived her of her capacity to have the full, free and unrestricted use of her lower back and the ability to engage in social, domestic and recreational activities which were formerly an essential part of her life prior to suffering injury.
84 Therefore, I find that the plaintiff has suffered an injury to her lower back, as I have summarised in paragraph 66 above, and that as a result of the injury, the plaintiff has suffered a permanent impairment of the function of her lower back which, for all of the reasons set out above, deserves the description “at the least very considerable” after the relevant comparison is made as I have described it in my discussion of the statutory scheme.
Loss of Earning Capacity
85 I reiterate that the plaintiff worked for a very significant period of time in relatively hard labour without any significant difficulty until she suffered the injury on which this application is based.
86 I find that it was the injury which prevented the plaintiff from working in her former capacity as a mushroom picker, and prevented her from successfully returning to that work with the defendant.
87 Irrespective of whether the examining medical practitioners considered that the injury materially contributed to the consequences now suffered by the plaintiff, it is clear enough that all of the examining medical practitioners would place significant work restrictions upon the plaintiff.
88 I infer from the foregoing that the plaintiff is unfit for factory work because inherent in factory work is a necessity to engage in significant physical labour which would inevitably involve long periods of work and amounts of bending, twisting and turning sufficient to throw stress and strain on the spine. That is the sort of work which the plaintiff appears to have undertaken through her working life, save perhaps for the work she did when running the delicatessen.
89 At fifty-seven years of age with poor English, limited work skills and a disabling lower back injury, the plaintiff is put in a position where the prospects of her being able to obtain a job is very unlikely. The plaintiff said that she could probably work in a delicatessen for a short period of time each day with difficulty because it involves standing for long periods of time and lifting.[70]
[70] T 99-100
90 I find that the plaintiff has no transferable skills and in all respects is a factory or labouring worker who is no longer fit to engage in that type of work. That issue was well canvassed by Ms Leitch in her assessment of the plaintiff’s capacity to engage in alternative employment, and indeed, suitable employment.[71]
[71] PCB 81-112
91 Therefore, I find that the plaintiff has no capacity to engage in suitable employment and that the injury to her lower back has so impaired the function of her lower back that the loss of earning capacity consequences to the plaintiff are at least very considerable when the relevant comparison is made as I have described it in my discussion of the statutory scheme.
Serious Injury - Paragraph (C)
92 It is unnecessary for me to consider whether the consequences of the adjustment disorder with anxious and depressed mood and chronic pain disorder are serious because the findings I have made with respect to the compensable injury suffered by the plaintiff to her lower back provide her with leave entitling her to recover damages for all of the injuries which she can prove causally connected to the incident.
93 However, and only for the sake of completeness I find that the mental or behavioural disturbance or disorder are not severe despite the opinions expressed by Dr Nathar, psychiatrist.[72]
[72] PCB 58-69
94 I find that the plaintiff has suffered the psychiatric injury described by Dr Nathar, however, to be severe the consequences to the plaintiff must be something more than serious, and in order to be satisfied that they are severe there must be characteristics in the consequences which satisfy that standard.
95 Although the plaintiff has a psychiatric injury she is not presently having any treatment for that injury from a psychiatrist or psychologist, and if that was necessary I would have expected Dr Baglar to have said so and to have referred the plaintiff to have that treatment. He was of the opinion that the plaintiff was suffering from chronic depression, but the nature of the opinion he expressed in his last report dated 23 March 2009 was to refer to the plaintiff’s state of chronic depression almost in passing concentrating more heavily on the nature and extent of the injury to her lower back.[73]
[73] PCB 29b
96 The plaintiff is not taking any medication for chronic depression according to Dr Baglar, and of the medication presently taken by the plaintiff none were said to be for chronic depression.
97 The plaintiff has not said much about the consequences of the psychiatric injury in either of her affidavits, and in particular, in her second affidavit she said that she thinks she would benefit from some further psychological treatment for the purpose of helping her deal better with the pain she is experiencing from her lower back.[74]
[74] PCB 15
98 The foregoing description together with the fact that the plaintiff is not having any treatment does not persuade me that the characteristics of the psychiatric injury bring it within the range of consequences which are severe.
Conclusion
99 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant on 13 December 2001.
100 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
- - -
0
6
0