Moore v Victorian WorkCover Authority
[2015] VCC 1002
•23 July 2015
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-00610
| SHARON MOORE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 and 30 June, 1 and 2 July 2015 | |
DATE OF JUDGMENT: | 23 July 2015 | |
CASE MAY BE CITED AS: | Moore v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1002 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – pain and suffering damages and economic loss damages – aggravation of pre-existing degenerative change
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(a), (b), (c) and (e)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Dahl v Grice [1981] VR 513; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted to issue proceedings for pain and suffering damages. Application for leave to proceed for economic loss dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A E A Macnab with Ms R Dal Pra | Maurice Blackburn Lawyers |
| For the Defendant | Mr R H Stanley with Mr M K Clarke | Wisewould Mahony |
HIS HONOUR:
1 By way of Originating Motion dated 12 February 2013, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring common law proceedings for the recovery of damages for injuries to her lumbar spine suffered in the course of her employment with Hays Personnel Services (Australia) Pty Ltd (“the employer”) in or about May and June 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The application is pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There “serious injury” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon three affidavits sworn on 18 July 2012, 19 August 2014 and 19 May 2015, and gave viva voce evidence. She was cross-examined. In addition, the plaintiff’s treating general practitioner, Dr Garra, and treating physiotherapist, Mr Shay McLeod, attended to be cross-examined on their reports. Further, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[1]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph 33
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB impose specific burdens in relation to claims for loss of earning capacity.
8 By ss(38)(c) of the section, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being “more than significant or marked” and as being “at least very considerable”.
9 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Sub-section (38)(g) requires questions of rehabilitation and retraining to be considered in determining whether the 40 per cent loss has been established.
12 Sub-section (38)(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2]Supra
The Plaintiff’s case
14 The plaintiff’s case of serious injury is that the work performed in the course of her employment in May and June 2008 placed such a strain on her lumbar spine that damage was caused to one or both of the lower lumbar discs at L5‑S1 and/or L4-5, and that such damage has produced permanent consequences which meet the statutory threshold with respect to pain and suffering and loss of earning capacity. Further, it is conceded by the plaintiff that there was pre-existing degenerative change at the two levels cited and therefore the injury consists of an aggravation of those pre-existing degenerative changes. Accordingly, a comparison must be made between the condition of the plaintiff’s spine immediately before May 2008 with her condition thereafter, and assessment made of the extent of the additional impairment, such that the additional impairment must, of itself, be assessed as “serious”.[3]
[3]Petkovski v Galletti [1994] 1 VR 436 at 443
15 The plaintiff further alleges that in identifying the injury which results in the additional impairment, that additional injury is described in the CT scan of the lumbar spine taken 9 July 2008 and the MRI scan of the lumbar spine taken on 20 December 2008.[4] The CT scan of the lumbar spine discloses:
[4]Exhibit D, Plaintiff’s Court Book (“PCB”) 41.4, 41.5 and 41.2 respectively
“L4/5 Level:
There is a mild broad-based bulge producing a minor compression of the anterior theca. There also appears to be minor compression of the traversing L5 nerve roots bilaterally.
…
L5/S1 Level:
There is an increase in soft tissue in the left L5/S1 foramen and lateral recess and there is definite swelling of the exiting left L5 nerve root. I suspect a small left lateral disc protrusion with mild to moderate compression of the nerve root at this site.”[5]
[5]PCB 41.4 – 41.5
16 The MRI investigation discloses:
“L4/5
Grade 1 degenerative anterolisthesis of L4 and L5 and a mild broad based disc bulge. No evidence of … nerve root compression … .
L5/S1
There is a mild broad based disc bulge with a more focal left paracentral disc extrusion which has migrated superiorly and lies in contact with the exiting left L5 nerve root at the origin of the foramen … .”[6]
[6]PCB 41.2
17 These investigations, it is said, are to be compared with the state of the lumbar spine pre-existing the relevant injury and represented by the CT scan of the spine dated 14 June 2005.[7] This in turn discloses:
“At L3/4 level a mild annular bulge with minimal effacement of the thecal sac. …
At L4/5 level a moderate annular bulge, but good preservation of the epidural fat at this level. … .”[8]
[7]Exhibit D, PCB 41.6
[8]PCB 41.6
18 According to the plaintiff’s treating general practitioner, Dr Garra, the CT scan in July 2008 shows incremental damage by way of a disc prolapse or disc protrusion.[9]
[9]Transcript (“T”) 138, Lines (“L”) 14 and 15
19 The plaintiff concedes that the post-injury impairment is also contributed to by an event at the plaintiff’s home on 8 June 2008 when she was vacuuming. Although this incident produced a dramatic increase in lumbar pain and left leg pain, it is submitted that the relative innocuousness of this event leads to the inference that the disc prolapse had three causes, being the pre-existing degenerative change as disclosed by the June 2005 CT scan, the weakening of the disc degeneration at the lower two lumbar levels caused by the nature of the work in May and June 2008 – which in turn caused back pain and left leg pain – and, finally, the vacuuming incident, being the “tip, the last thing”[10] contributing to the prolapse. In other words, the plaintiff alleges that the vacuuming injury would not have occurred but for the injury caused by the work in May and June 2008, or, alternatively, the effects of the vacuuming injury were more severe because of the work injury, such that the consequences after the vacuuming injury are consequences of the work injury and may be taken into account in considering whether the work injury produced a severe long-term impairment of the body function.[11] Also, see Dr Garra’s cross-examination.[12]
[10]Plaintiff’s evidence at T30, L6‒14
[11]AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; 34 VR 309 at paragraphs 10‒12
[12]T139, L1‒T145, L24
The Defendant’s submissions
The issues
20 Defence counsel identified the issues as follows:
(i)Credit: The plaintiff has a number of convictions for dishonesty, in particular stealing from employers. She served a period of imprisonment of between five and six months between November 2010 and April 2011 for Social Security fraud. Accordingly, the defendant submits the plaintiff requires corroboration for the essential elements of her case.
(ii)Causation: The defendant questions whether there was any injury suffered by the plaintiff in the period May and June 2008 and, if so, what is the identity of same? Secondly, what is the relationship of that injury to the 10 June 2008 vacuuming incident and is the work injury a significant contributing factor to the resultant impairment?
(iii)Aggravation: Given the plaintiff has a prior history of back pain/degenerative disc disease, does any aggravation on its own give rise to “very considerable” serious injury consequences?[13]
(iv)Have the consequences of any organic physical injury been sufficiently “disentangled” from any psychological/psychiatric consequences?
(v)Has the plaintiff satisfied the 40 per cent loss of earnings test?
(vi)Do the pain and suffering consequences of the injury meet the “very considerable” test?
(vii)Are there other injuries – for example, a left knee injury and/or a benign brain tumour – which produced consequences similar or identical to the lumbar spine consequences?[14]
[13]Petkovski v Galletti (op cit)
[14]Peak Engineering & Anor v McKenzie [2014] VSCA 67
Impairment of the spine prior to May 2008
21 The plaintiff is aged sixty years, having been born in November 1954 in Dusseldorf in Germany. She migrated to Australia at an early age and completed the equivalent of Year 12 at Boronia High School. She has been married and divorced on three occasions and has four adult children. She now lives alone and only now has contact with her youngest child.
22 After leaving school, she undertook further training by way of a medical receptionist and a secretarial course. Thereafter, her work has largely been administrative type work, including receptionist and secretarial duties, together with accounting and bookkeeping.
23 The plaintiff has also had a history of depression going back to the mid-1980s and she has required medication from time to time since then.
24 On 4 November 1999, the plaintiff suffered injury to her left knee and back. She underwent two surgical procedures on her left knee and had a number of injections into both knees. She also suffered from some back pain from time to time. She claimed a serious injury certificate in relation to the knee injury and eventually, settled that claim in late December 2006 for $75,000 for pain and suffering damages only.
25 The plaintiff attended her general practitioner on 16 June 2004 on account of back pain said to be suffered in a motorcar accident. She further attended on 3 November 2004, again complaining of back pain. She was given medication for depression on 31 January 2005. On 15 April 2005, she attended her general practitioner, complaining of back pain following a fall. On 6 June 2005, her general practitioner noted that she was complaining of back pain and left leg pain. A CT scan taken 14 June 2005 revealed mild bulges at two levels, as referred to above. The plaintiff underwent some physiotherapy for her knee and back between August and October 2005.
26 The plaintiff was examined by orthopaedic surgeon, Mr Keith Elsner, on 30 June 2005 in relation to her injury on 4 November 1999.[15] He examined the general practitioner’s notes from 23 December 1999 up until November 2004 and noted treatment for the left knee, but was unable to see any reference to a back problem.[16] At that time, she was undertaking administrative work for 20 hours per week. Mr Elsner took a history with respect to the lumbar spine as follows:
“The lower back continues to trouble her and she indicated the pain was mainly in the right lower back area and radiated into the right buttock, but there are no referred symptoms into the lower limbs. The back pain is intermittent and seems to be aggravated by sitting for long periods of time. She claimed it is no better now than it was in November 1999. The back pain seems to worry her more while she is working than when she is relaxing over the weekend.
She is having no treatment now for her back, indeed I could not pinpoint any definite treatment that she has had for her back.”[17]
[15]Exhibit 18
[16]Exhibit 18, Defendant’s Court Book (“DCB”) 128
[17]Exhibit 18, DCB 129 – 130
27 The physical examination of the lumbar spine was essentially normal.[18] Mr Elsner’s ultimate analysis was:
“… even accepting her history, I note that she now has a full range of lumbar movements, there are no localised symptoms or signs to suggest a specific disc or facet joint injury, and there is no evidence of a radiculopathy. She clearly has long standing lumbar scoliosis with degenerative changes. I can find no current evidence of injury to the lower back.
In my opinion, you do not need to accept liability for any lower back injury.”[19]
[18]DCB 130
[19]DCB 131
28 Clearly, Mr Elsner did not have the CT scan of 14 June 2005 or the general practitioner’s notes of 6 June 2005.
29 The plaintiff attended her general practitioner again on 26 May 2006 with a complaint that the back was “sore”. On examination, he noted:
“Tender lumbar spine.”
30 Dr Garra also issued a WorkCover Certificate from 1 June until 31 August 2006.
31 Thereafter, the plaintiff attended her general practitioner on numerous occasions over the next two years, but on no occasion did she complain of back pain. On 8 April 2008, the general practitioner’s only note is “Well”. On that date, however, there was a prescription for Temazepam, one tablet once a day, and a prescription for Orudis, one capsule once a day. The former medication was for anxiety and the latter was for pain (unspecified). In any event, the previous prescription for Orudis was 24 July 2007. The only other relevant note is on 13 October 2006 to the effect:
“Not working full-time, starts part-time.”
32 Accordingly, given that the doctor’s note on 8 April 2008 was “Well”, I would accept that his assessment of the plaintiff’s back, as at 26 May 2006 and leading up to the work with the employer, would be to the effect that the pain and tenderness was referrable to the bulges that he had seen on the scan the year before, in the sense that:
“The back’s got a bit of possibly age-related wear and tear and it’s a bit sore now and it’s just aching a bit because of that.[20]
…
Her back seems to have symptomatic spikes through the years from 1999 through to 2006”.[21]
[20]T130, L27-30
[21]T131, L2-3
33 There was no specific treatment required for her back after 26 May 2006.
34 Thereafter, the plaintiff was employed as an administrative/clerical employee by the employer and was placed at Victoria University in the administration and finance department in late April 2008. She was working a 38-hour week, Monday to Friday. She alleges that she was not suffering any lumbar pain at the commencement of this employment and had not done so for some time, and her general practitioner’s evidence appears to corroborate this evidence.
Aggravation injury
35 The plaintiff was cross-examined at some length as to the interrelationship between the pre-existing degenerative change, the work injury and the vacuuming injury. Her duties in the two-month period were to clean up a new kitchen and stock it and clean out a stationery area and restock it. In performing these tasks, she said:
A:“… I had to constantly bend over to unpack boxes on the floor, and if the item was too heavy for me, I would push it with my foot or bend down or drag the item. …
Q:It was that – the nature of doing that work which you say caused your injury?---
A: Yes.”[22]
[22]T24, L1-12
36 Further, the plaintiff was asked:
Q:“It was from, as you say, ‘bending over to unpack boxes from the floor, and if the item was too heavy, push it with my foot or bend down and drag the item’?----
A:... Yes, that’s right. But I carried – I did carry reams of paper in the boxes. There’s about five reams of paper.”[23]
[23]T24, L16-20
37 The plaintiff conceded she first reported an injury to her supervisor on 9 June 2008, and it was put to her:
Q:“You continued to work from 2 May 2008 until 9 June … without problem?---
A:I was getting pain in my lower back and down my – down my left into the buttock. During that time it gradually got worse, but I thought it would – it would pass like it has in the past.”[24]
[24]T25, L2-7
38 It was then put to the plaintiff that she had had quite a severe bout of back pain whilst vacuuming on the Queen’s Birthday weekend in June 2008, and she replied:
“Yes, that right.”[25]
[25]T25, L19
39 Further, the plaintiff confirmed a history taken by Dr Clayton Thomas, a pain medicine and rehabilitation specialist, to the effect that she was at home using an upright vacuum cleaner, when her back pain dramatically worsened and she collapsed. She confirmed that she fell into a chair. She suffered sudden spasming. The pain was “awful”.[26]
[26]T25, L24 – T26, L5
40 The plaintiff then confirmed the pain was in the centre of her low back and in her leg. It was of greater severity than the pain that she had experienced when she had been at work:
“It was more intense, but there … [were] plenty of nights I went home from work in agony (during May and June).”[27]
[27]T27, L24-25
41 The plaintiff confirmed she reported to her boss, Christine Mountford, the following day, and she stated:
“My left leg and my knee – my foot was numb and I was in a lot of pain.”[28]
[28]T28, L4-6
42 The plaintiff confirmed that she related the vacuuming incident to her boss but did not mention the problems with her back in May of 2008.[29]
[29]T28, L17
43 The plaintiff then confirmed she attended her physiotherapist, Mr Shay McLeod, on 10 June 2008. She had previously attended him for her back in 2000 to 2005. The plaintiff confirmed the accuracy of the history, to the effect:
“Today low back pain after housework.”[30]
[30]T29, L26-27
44 That was consistent with the vacuuming episode.
45 Further, the plaintiff confirmed the history:
“And previous night seven to eight hours in truck increased pain.”[31]
[31]T29, L7-8
46 Further, the plaintiff confirmed she had not told Mr McLeod about the pain moving the boxes as she did not think it was relevant.[32]
[32]T30, L4
47 It was then put to her:
Q:“And I suggest you didn’t think it was relevant because the pain that you may have had in May 2008 while at work was insignificant pain?---
A:No, it wasn’t insignificant pain.
Q:Whereas it compared, I’d suggest, with the significant pain that you had when vacuuming?---
A:Yeah, when I had the vacuuming it was like it was just the tip, the last thing, but the – leading up to it, the four weeks, I was still in pain, where I was going home lying on the couch taking painkillers.
Q:I suggest, Ms Moore, if that was accurate you would have told your physiotherapist that?---
A:I was in that much pain that day I went to see him and he asked me what I’d done and then a couple of … sessions later we were talking – and – how a physio and client talk, and I – and he asked me, ‘Is there anything else that you’ve done’? so I told him about the box – moving boxes and he said, ‘That’s what would’ve done to your back’.”[33]
[33]T30, L6-22
48 Further, the plaintiff confirmed that she first attended her general practitioner, Dr Garra, on 22 June 2008 with a history that she had injured her back two weeks prior, which would have taken her back to approximately the vacuuming incident.[34] She confirmed that at that time, in her own mind:
“… I still wasn’t aware that the boxes had anything to do with it.”[35]
[34]T32, L1-6
[35]T32, L11-12
49 When pressed that the pain that came from any movement of boxes at work was insignificant, the plaintiff replied:
“No, that’s not right … No, I’m sorry that’s wrong.”[36]
[36]T32, L20-23
50 Thereafter, the plaintiff was asked:
Q:“When do you say that you appreciated the relevance of any problems associated with work? … Why didn’t you tell the doctors about problems you were having at work?---
A:I didn’t think it was relevant at the time [because] I thought it was just, you know, having – I thought my back was just sore and aching, that’s all I thought at the time from being overworked.
Q:When do you say that the relevance of the work to your condition became apparent?---
A:When I was discussing it with the physiotherapist a few sessions in, and he mentioned that my back – there was no way known vacuuming would have caused this to my back.”[37]
[37]T33, L12-24
51 The plaintiff’s treating physiotherapist, Mr Shaye McLeod, attended Court and was cross-examined. He confirmed he treated the plaintiff in August of 2005 for her left knee condition, and noted her lower back pain as part of her history rather than treating it.[38]
[38]T175, L1-4
52 On 24 October 2005, Mr McLeod wrote to the treating general practitioner with respect to the left knee as follows:
“Progress has been quite slow and somewhat disrupted by a flare-up of Sharon’s low back pain (L3-/4 and L4/5 annular bulges) which has now settled following treatment.
I would be most grateful of your opinion if you have any suggestions regarding rehabilitation of Sharon’s knee.”[39]
[39]Exhibit 7, DCB 18
53 Further, Mr McLeod confirmed an appointment on 10 June 2008, where he took a history of:
“To over seven days … of low back pain after housework and previous night. Seven or eight out of 24 hours in a truck. There is increased pain rapidly. Now difficult moving. Movements and symptoms down to buttock and leg and past history previous lumbar disc bulge.”[40]
[40]T177, L12-18 and Exhibit 7, DCB 16
54 Mr McLeod further confirmed that activities aggravating the pain were bending, walking, sitting and from sitting to standing. In the last 24 hours, there was difficulty sleeping and she was stiff in the morning.[41]
[41]T177, L22-28
55 Mr McLeod further confirmed the plaintiff re-attended on 12 June 2008 for treatment to the lumbar spine, and thereafter, again on 17 June 2008. His diagnosis, at that stage, was “likely recurrent disc L5”.[42]
[42]T178, L30
56 Thereafter, Mr McLeod treated the plaintiff on 24 June 2008 and 2 July 2008, and on the latter date, he wrote to the treating general practitioner as follows:
“As you know Sharon re-injured her back on 8/6/08. She continues to suffer from L5 distribution leg pain particularly in her lateral lower leg which is making it difficult for her to sleep and function normally.
She is making progress, however this has been very slow and she remains restricted especially in lumbar flexion with a SLR of 35o.
On her slow progress, I would greatly appreciate your opinion particularly as to whether you feel investigations are warranted at this stage.”[43]
[43]Exhibit 7, DCB 19
57 Thereafter, Mr McLeod treated the plaintiff on 8 July and 14 July 2008, and then there was a gap until 6 October 2009.
58 Thereafter, there are attendances on 21 October, 13 October, 16 October and 27 October 2009. He confirmed that in his notes, he could not identify any history of the plaintiff having difficulties at work.[44]
[44]T182, L31
59 Mr McLeod then was shown a letter he had received from the plaintiff dated 2 March 2009.[45] It recorded as follows:
[45]Exhibit 32
“Hi Shay
Allianz have rejected my claim for my back (see attached letter). Mr Ian McInnes their independent doctor has confirmed that the back injury was definitely an aggravation and indeed work related. (see attached report).
Could you possibly write something up stating that my back injury arose from all the moving of offices at Victoria University and not when I was vacuuming at home please?
I’m now on the waiting list at St Vincents for surgery, I had the cortisone injection with no success if anything it was worse. Apart from this I’m still at VU on contract ending on 28th March I’ve applied for an extension until the end of December then hopefully fingers crossed they realise they do need me.
Hoping all’s well with you.”[46]
(sic)
[46]DCB 338
60 Mr McLeod confirmed he did not reply to the letter and cannot recall receiving it, but his attitude now was:
“Look, only from my then reading the subsequent letters I can (sic) make some assumptions, but over the course of treating her I was happy with that as an explanation because we’ve discussed it in the past and then subsequently I provided a conciliation report stating that.”[47]
[47]T184, L4-9
61 Mr McLeod was then taken to another letter he received from the plaintiff dated 16 July 2009.[48] It in turn recorded:
[48]Exhibit 32, DCB 339
“Hi Shay,
Please find attached / following a request for a medical report relating to my back injury first reported in June 2008. I’m not sure if you recall but during the course of one of our many talks whilst manipulating my poor back I asked you if my injury would have been from vacuuming and you said NO.. I then asked you about when I carried out the move at Victoria University & you said YES MOST DEFINITELY. That’s when I went to see Dr Garra & consequently followed through with a Workcare claim.
I am currently working full-time with the flexibility of moving around as often as I need to along with having time off also when required to attend hospital appt’s etc. I’ve had 2 (two) lots of cortisone injections in my back with very little relief and will be looking at surgery. Apparently the last doctor I saw at St Vincents said it’s also the disc above the L5 as its compressed so you can imagine that I have good & bad days with sitting on my butt too long causing discomfort.
I know you’re extremely busy but is there any way you could possibly supply the relevant information & then fax it … no later than next Tuesday 21st July as conciliation is on Wednesday 22nd July … .”[49]
(sic)
[49]DCB 339
62 In cross-examination, Mr McLeod stated the letter was familiar once he sighted it and that it was quite unusual to get this sort of letter.
63 Mr McLeod was then asked if he recalled the talks he was having whilst manipulating the back and whether he had said “no” to the question concerning the vacuuming causing injury. He replied:
“From the letter, I’ve recollections of the discussion, but not the specifics, or discussing it a few times.”[50]
[50]T185, L8-10
64 Further, he did not have a specific recollection of saying that the injury could not be caused from vacuuming. Further, he confirmed that an activity like vacuuming is something that could exacerbate the disc problem.[51]
[51]T185, L11-21
65 When asked if he had said “Yes, most definitely” with respect to the work at the Victoria University, Mr McLeod said he could not recall saying that and he would usually state such a thing, “not quite as directly as that. May be glossed up a little bit more.”[52]
[52]T185, L27-28
66 Ultimately, Mr McLeod stated:
“If I’d written the letters that I’ve written we must have talked about it at that stage otherwise I wouldn’t have written them.”[53]
[53]T186, L8-10
67 Mr McLeod then confirmed he wrote to the Accident Compensation Conciliation Service on 19 July 2009, to the following effect:
“Sharon presented to physiotherapy on 10 June 2008 complaining of severe low back and left sided leg pain in an L5 distribution, worsening for the two previous days. This was first noticed by Sharon while assisting with a shift at her workplace with symptoms increasing and exacerbated by household duties including vacuuming.
Her presentation was consistent with L5 disc pathology causing L5 nerve root irritation.
Physiotherapy included techniques such as massage, mobilisation and exercise, attempting to settle symptoms but this was not overly beneficial and I subsequently referred her to her GP for assistance with management.
I understand Sharon has since seen a specialist and CT scans have confirmed L5-S1 disc protrusion causing left sided nerve root compression.
I have not seen her since this time so cannot comment on her current status, work capacity or recommend treatment.”[54]
[54]Exhibit 38
68 When cross-examined about the letter, Mr McLeod was asked:
Q:“… you don’t mean to be saying do you that on 10 June 2008 Ms Moore complained to you of first noticing pain when she was assisting with a shift at her workplace?---
A:No. We potentially discussed that later.
Q:So if the reader got that impression that would be incorrect?---
A:Based on my notes, yeah, yeah, based on my notes.
Q:And you have put that in at the suggestion of Ms Moore - well you’ve put that in because at some point Ms Moore---?---
Q:We’ve discussed it.”[55]
[55]T187, L6-16
69 Further, he stated:
“We may have discussed it at the first session but I neglected to put it down but we must have discussed it at some stage if I’ve been happy to write that in there.”[56]
[56]T187, L19-22
70 Mr McLeod then confirmed he wrote a report in similar terms on 8 December 2009.[57]
[57]Exhibit J
71 In re-examination, Mr McLeod was taken to his letter of 19 July 2009 and particularly, to the paragraph which stated:
“This was first noticed by Sharon whilst assisting with a shift at her workplace, with symptoms increasing and exacerbated by household duties including vacuuming.”[58]
[58]T187, 2-5
72 When asked where he got that history from, he replied:
“We must have discussed it at some stage, I can only assume.”[59]
[59]T189, L14-15
73 And when referred to the cross-examination when he had said that he would not have written it unless it was discussed, he was asked why that was so, and he replied:
“Just professional standards. … It’s just unethical to … put together a legal document … that isn’t … . Fairly important, yeah, it’s a career. Professionalism.”[60]
[60]T189, L21-29
74 Having seen Mr McLeod in the witnessbox, I am prepared to accept that he would not have written those reports if in fact he had not had the discussions with the plaintiff during the course of his treatments of her in 2008 and 2009.
75 In view of the plaintiff’s preparedness to be dishonest with previous employers, it is perhaps not unreasonable that the defendant should seek corroboration for the material facts relating to her claim. To put it bluntly, the defendant asserts that it would not be beyond the plaintiff to at least reconstruct the scenario that the work performed in May and June of 2008 had produced symptoms of back pain and left leg pain prior to the vacuuming incident. In this regard, I would make the following comments.
76 First, if the plaintiff’s criminal past had not been a feature of this case, I would have considered that she gave her evidence in a fairly straightforward manner and made concessions when they should be made. For example when it was put to her that despite her present claim she could have returned to work for Victoria University on a full-time basis, she replied:
“For financial reasons, yes I would.”[61]
[61]T97, L28
77 However, I should state that when challenged that she had never personally benefited from the thefts from her employers and asked about a $55,000 sum spent on a Saab automobile, she merely replied:
“It was complicated.”[62]
[62]T104, L18
78 Secondly, I accept that it was Mr McLeod who suggested that the vacuuming incident would not, of itself, have prolapsed her disc, and that the back must have been in a weakened state just prior to that incident. This is, of course, consistent with the pain coming on in the course of her employment as alleged and with there being no complaint since May of 2006.
79 Thirdly, a workmate, one Dion Robyn Makowski, has sworn an affidavit dated 22 May 2014,[63] in which she annexes a statement that she made on 29 August 2008. Within that statement, she stated:
“I declare that all of the information provided in this witness statement is, to the best of my knowledge, true and correct.
I am aware that to provide any false or misleading information in this witness statement may be punishable by law.”[64]
[63]Exhibit B, PCB 26-31
[64]Exhibit B, PCB 28
80 Therein, she states:
“I met Sharon at Victoria University, she had already been working there for about a week when I started. … Sharon is an officer with the Rotary Club in Wyndam Vale, and she helps to run the club and produces the club’s newsletter. I would say that Sharon is community-minded, generous and a good listener. She had a good work ethic in my opinion.”
81 Ms Makowski further stated:
“… I noticed that she would not use stairs if possible as she was tired. …
When I started working at the Marketing Department of Victoria University, they had only just recently moved. Sharon told me she had a assisted with the move and she was still bringing boxes up to the office from the old premises. As my main task was to mind the reception desk and the help phonelines, so I could not leave my desk to assist with the move. She used a trolley to bring the boxes into the office, she was expected to empty the contents of a box, inspect the contents and either keep the contents and place them in the correct area or put it in the rubbish. I saw her manually lift some of these boxes from the floor and she would carry them to another part of the office, anywhere from 2 metres to 30 metres (which is where the back storage room is).
… I would offer to move it [a box] for her but she told me she would go through the box and empty it. I would say there were at least half a dozen large boxes each day that Sharon was lifting, if only for a short distance, and I saw her dragging one along as well. She was told she had to move them out of the way, … as these boxes were in the walkways cluttering up the space. Some of these boxes would weigh at least 10kg in my opinion, as they were packed with various stationery items such as folders, files, paper etc. I also saw Sharon spend a lot of time bending over the boxes on the floor and sorting the contents, as there was no where for her to do this.
I think that even after a few days she complained to myself that Terry (our manager) kept bringing up more boxes that she would have to deal with, she would empty some boxes but then discover there would be more to do, and she complained to me that this was physically tiring for her. I recall that she told me soon afterwards that she was experiencing back pain, at the time I told her that she should mention it to Terry the manager, and I felt it was no surprise given that I had prior back trouble myself from doing a lot of lifting, and I had seen her do a lot of either lifting and/or bending down. She would occasionally ask me to assist her, but most of the time I was busy with my own job.
I know that since then Sharon has told Terry about it and other management at the Victoria University. In my opinion Sharon’s injury resulted from the tasks she was doing in regards to emptying the boxes, and in my opinion the workspace provided was insufficient as she had to do most of this work on the floor or bending down over boxes on the floor, and there should have been a workspace at a more convenient height provided.”[65]
[65]Exhibit B, PCB 29-31
82 Although this statement contains some opinion evidence that technically should be excluded, the fact that the witness corroborates the complaints of back pain, and the type of work that she was performing, corroborates the plaintiff’s version of the work injury. I also note that the witness was not asked to attend for cross-examination.
83 Fourthly, although it is perhaps understandable that the defendant’s insurer was not keen to accept the claim, they nonetheless had the plaintiff examined by general surgeon, Mr Ian McInnes, on 9 October 2008.[66] On this occasion, he took a history of prior back complaints dating from 1999, together with the putative work injury in May and June of 2008. His reference to the vacuuming incident is perhaps a little oblique.[67] In any event, on this occasion, his opinion was as follows:
[66]Exhibit S
[67]See DCB 74
“In my opinion, this lady is suffering from intervertebral disc degeneration at the L4/5 and the L5/S1 intervertebral disc levels. I believe this is causing pressure on her L5 nerve root which is giving her a degree of paraesthesia and sciatica in the left leg.
I believe that this probably relates to her initial injury in 1999, but has certainly been aggravated by the injury she describes in May 2008. I believe that it is therefore work related, at least on the grounds of aggravation of a previous injury.
I believe that at the present time she is capable of continuing with the work she does, but she may have occasional exacerbations of severe pain and she will be guided by her medical officers regarding treatments such as intrathecal cortisone injections etcetera.
…
The contributing factors to the worker’s condition are the type of work that she was doing in 1999 and the present type of work that she is doing has caused intervertebral disc degeneration of L4/5 and L5/S1 and this has been aggravated by her injury in 2008.
…
… The condition in 2008 is an aggravation of a previous injury in 1999.
…
… The work-related component has not resolved.”[68]
[68]DCB 75-77
84 The insurer asked for a further opinion, having provided further material to Dr McInnes prior to him reporting on 23 July 2009. He stated:
“After perusal of all the information and my previous report, my opinion voiced in my original report does not change in any major way.”[69]
[69]Exhibit S, DCB 79
85 On this occasion, no doubt assisted by the information forwarded by the insurer, he provided a more complete history as follows:
“The first instance regarding Sharon Moore is stated in my report when she was working with Southern Food Management during 1999. She was climbing onto a platform, slipped on chicken fat and twisted her back, and at the same time, she injured her left knee. She made a point that she initially injured her back at this stage and as I understand, did have some trouble with her back subsequent to this, and in fact, in her statement stages that she had pain in her back, had physiotherapy treatment and a rehabilitation program. As I understand it, no x-rays were taken at that stage. She did make a point in her history however to me stating that she had an initial trouble with her back at that stage.
The second injury of incidence is the one dated 02.05.2008 whilst she was at work. She stated to me that on 02.05.2008 she was lifting boxes during an office move. Perusal of the documentation shows that on occasions she may have been lifting boxes, but a lot of it was due to loading and unloading the boxes, bending forward, and in fact, sometimes moving the boxes with her leg. It is my opinion that this activity could have caused or certainly aggravated any back injury.
The third instance she relates is to when she was vacuuming at home on the Queen’s Birthday weekend, ie. Monday 09.06.2008, when she states that she had pain in her back following an episode of vacuuming.
In her statement to me, she stated that she had gross difficulty with domestic duties, including vacuuming, because she had an aggravation of the pain in June 2008.
It is my opinion that this was an aggravation of a previous injury.”[70]
[70]DCB 79-80
86 Mr McInnes went on to say:
“There are no previous x-rays available prior to the CT of the lumbar spine dated 09.07.2008 where the disc degeneration of L4/5 and L5/S1 was diagnosed with significant nerve root swelling affecting the L5 nerve root.
This would confirm my diagnosis of L5 sciatica pain caused by disc degeneration of L4/5 and L5/S1 intervertebral disc spaces.
In my opinion, her clinical history and examination are consistent with an injury to her lumbosacral spine which could have been caused at work on 02.05.2008 and was aggravated by her episode of vacuuming on 09.06.2008.
This significance of the initial injury she complained to me about in 1999 is uncertain but I believe that it could be of significance in the overall picture and could possibly have been the initiation of the back problem.
I therefore reiterate my opinion as stated in my report that this lady is suffering from intervertebral disc degeneration at the L4/5 and L5/S1 intervertebral disc levels. I believe this is causing pressure on her L5 nerve root which is giving her a degree of paraesthesia and sciatica in the left leg.
I believe that this probably relates to her injury in 1999, but has certainly been aggravated, if not caused by the injury she describes on 02.05.2008.
Although it is not my position to make the final decision, I believe that the injury is consistent with a work-related episode.”[71]
[71]Exhibit S, DCB 79-80
87 This analysis by Mr McInnes is, in my view, corroborated to a large extent by the treating general practitioner, Dr Garra, when the sequence of events similar to those recorded by Mr McInnes was put to him in cross-examination. It was put to him:
Q:“I suggest to you that the likelihood is that really what you’re seeing there in your patient is just a continuation of what you saw in your patient back in May 2006, two years before, that is an ongoing symptom of a degeneration that we saw earlier. Would that be right or wrong?---
A:Well not ongoing. Probably a new, a new event because she hadn’t come in for a while with a sore back.
Q:And that new event on that history, if the patient says to you, ‘Look the event that I’m complaining to you today about, Doctor, is vacuuming’, the new event is vacuuming isn’t it?---
A:If that’s what was said, yeah.”[72]
[72]T137, L4-14
88 Further, Dr Garra stated that the CAT scan in July 2008 was:
“When we had the disc prolapse rather than a disc bulge.”[73]
[73]T138, L14-15
89 When pressed as to any relationship from the work injury, he was asked:
Q:“Because on 8 April you've got her as ‘well’, haven't you?‑‑‑
A:Yeah, and then - yeah, so there’s no mention of any back pain back then, so ‑ ‑ ‑
Q:But after that, on 8 May you’ve got her agitated and on Zoloft and with depression?‑‑‑
A:And with her depression, and again no mention of back.
Q:Back pain. Then on 22 May you’ve got ‘bit better on Zoloft’ but you’re going to increase it, are you?‑‑‑
A:Yeah, I increased the dose and then ‑ ‑ ‑
Q:Then it’s on 22 June when you got the history of sore back for two weeks, that’s when you prescribed some Panadeine Forte tablets?‑‑‑
A:And some - yeah, and she had some Orudis, plus she had some Orudis at home from a previous script, which I’ve said take some Orudis you’ve got at home already.”[74]
[74]T140, L20 – T141, L2
90 It was then put to Dr Garra that the disc protrusion could occur as part of the natural evolution of the degenerative disc disease:
Q:“That is, they don’t necessarily have to occur with an acute episode. They can occur naturally as part of the evolution of a degenerative spine. Would you quarrel with Mr Dooley’s opinion in relation to that?‑‑‑
A:I don’t quite agree. … .”[75]
[75]T141, L18-25
91 Further, Dr Garra stated that a degenerative spine:
“… could possibly make you more prone to a disc prolapse if you’ve got a degenerative back.”[76]
[76]T142, L3-4
92 Dr Garra was then asked:
Q:“So it’s your understanding that to have a disc prolapse, there should have been an incident?‑‑‑
A:That’s my general understanding.”[77]
[77]T142, L5-7
93 Further, when asked if the prolapse would happen from a frank incident, Dr Garra replied:
A:“Generally speaking but then you can get swelling of the prolapse which can make symptoms worse over a few weeks.
Q:It’s likely, isn’t it, that if your theory is preferred over Mr Dooley’s theory, that is Mr Dooley says that it’s likely that it’s just been a natural evolution and you say no, I think it’s more recent and it’s come about, it’s likely, looking at your notes, that it came about during that vacuuming episode because that's what she said to you on that day?‑‑‑
A:I can’t recall the vacuuming episode.”[78]
[78]T142, L23 – T143, L1
94 Further, it was put to Dr Garra that:
Q:… if that vacuuming incident was, as the plaintiff says, a dramatic incident that caused her to collapse, spasm, of greater severity than any of the pain that she had had from any of the work duties, it’s likely that if your theory is correct that was when the prolapse occurred, isn’t it?‑‑‑
A:It’s possible.”[79]
[79]T144, L14-19
95 When put to him that the prolapse said to be shown in July 2008 would happen immediately with the (vacuuming) incident, Dr Garra replied:
A:“Not always. Sometimes I’ve seen people over the years where they - the leg pain gets progressively worse and they sort of …
Q:Wouldn't that, doctor, be part of what Mr Dooley is saying?‑‑‑
A:No, no, no. If they’ve injured themselves they might then find over a period of a couple of weeks they get increasing leg pain and you go, ‘Oh, what's happening here? Why are you suddenly getting more leg pain?’
...
Q:It would happen from a frank incident?‑‑‑
A:Generally speaking but then you can get swelling of the prolapse which can make symptoms worse over a few weeks.”[80]
[80]T142, L5-25
96 The contrary view on behalf of the defendant was put by Mr Michael Dooley, orthopaedic surgeon, in three reports dated 11 October 2012, 2 July 2013 and 11 June 2015[81] following examinations of the plaintiff on 13 September 2012 and 6 June 2013. In his first report, Mr Dooley stated:
“Ms Moore has naturally occurring degenerative disc disease of the low lumbar spine. Based on the information available, it is possible that she has been symptomatic from this condition prior to the work related episode of 2008. Ms Moore said that she noted the onset of low back pain during the course of cleaning and packing type work in 2008. Based on the history that she presented, this sort of work could have aggravated her underlying degenerative disc disease of the low lumbar spine. Similarly, the vacuum cleaning would be a well recognised mechanism of aggravating naturally occurring degenerative disc disease of the low lumbar spine. Ms Moore describes ongoing low back pain. In time, this pain has become constant. It is associated with some left buttock pain but no sciatica. … .”[82]
[81]Exhibit 11
[82]DCB 30
97 At this point, it would appear that Mr Dooley’s opinion is consistent with there being three causes of impairment after June 2008, being the naturally occurring degenerative disc disease, the cleaning and packing type work in 2008 and the vacuuming incident shortly thereafter.
98 Further, in the first report, he states:
“3.In my view, the radiology reports are consistent with naturally occurring degenerative disc disease. MRI scanning in December of 2008 and May of 2009 notes a focal disc protrusion on the left hand side at the L5/S1 level. In my view, this protrusion is part of the natural evolution of underlying degenerative disc disease. Ms Moore does not have sciatica and therefore this disc protrusion is not causing symptoms.”[83]
[83]DCB 30
99 Mr Dooley does not comment as to whether the two aggravating incidents are also consistent with the MRI scanning in December of 2008 and May of 2009.
100 Further, the plaintiff’s complaints at that time were of –
“… constant ongoing low back pain. … She tries to go for short walks. She takes Tramal and Nurofen Plus for pain. Ms Moore said that occasionally she takes anti-inflammatory medication. She said that she struggles with household activities including vacuuming. She struggles with her garden. Ms Moore said that she receives assistance from her daughter in regards to this. She does her grocery shopping in short spurts. Ms Moore said that she has become socially withdrawn. She notes specifically that she is unable to wear shoes with heels.”[84]
[84]DCB 29
101 It should be noted Mr Dooley also recorded that the plaintiff had ongoing problems with her left knee, and that he considered the constancy and intensity of her ongoing pain were greater than he would have expected to see. However, I note he states:
“… There are no overt clinical signs of excessive psychological reaction on examination.”[85]
[85]DCB 31
102 At his second examination on 6 June 2013, Mr Dooley took a history that the plaintiff’s symptoms had remained the same but that her doctor had started her on Lyrica in addition to her other analgesic medication. The plaintiff stated that prior to starting on Lyrica, much of her rest time involved her in having to lie down. She noted ongoing low-back pain that radiated into the left buttock, but there was no sciatica pain. She was living by herself but did receive assistance in the home from her daughter. She had also been referred to a pain management and rehabilitation specialist. On this occasion, there appears to have been a change in the physical examination to the following effect:
“Straight leg raising on the right is ninety degrees and on the left is to seventy-five degrees. At this level, on the left hand side, Ms Moore notes some left buttock pain.
…
The ankle reflexes are symmetrically reduced.
...
There is wasting of the left quadriceps muscle.”[86]
[86]DCB 33
103 It would appear that this latter finding is more referrable to left knee pathology in Mr Dooley’s tacit opinion. On this occasion, Mr Dooley stated he remained of the view that the plaintiff’s back condition has been symptomatic prior to the onset of her low-back pain in 2008. He does not, however, state whether it was symptomatic immediately prior to the relevant injury or indeed, for some time prior to that injury. The uniform history would suggest otherwise. In any event, he stated:
“… She described the onset of pain after doing cleaning and packing boxes etc in the course of moving offices at Victoria University. She then noted a more acute low back pain after vacuum cleaning at home. Regular bending, cleaning, lifting and manoeuvring etc could aggravate underlying degenerative disc disease of the low lumbar spine. Equally, it is well recognised that vacuum cleaning, because of the mildly flexed position of the lumbar spine that is required to carry it out, can aggravate underlying degenerative disc disease of the low lumbar spine and certainly can precipitate acute episodes of low back pain in this setting.”[87]
[87]DCB 34
104 In my view, this is consistent with the history advanced by the plaintiff in this case. Although considering that in late 2008, the prolapse may have caused sciatica, he considered that, by this stage, there had been resolution of the sciatica pain, along with absence of neurological deficit on clinical examination. Although noting that the work involved could have aggravated the underlying degenerative disc disease, Mr Dooley was of the opinion that if a significant aggravation had occurred:
“… then one would have expected her to have noted significant symptoms with the reporting of these, and the relationship of these symptoms to the work episode, to her general practitioner, physiotherapist etc.”[88]
[88]DCB 35
105 Mr Dooley then stated:
“6.Clearly, a more accurate chronological history in relation to the onset of symptoms during the course of Ms Moore’s work in May/June 2008 would be helpful.
7.On clinical examination, there are no overt signs of exaggeration etc.”[89]
[89]DCB 35
106 Finally, in a short report dated 11 June 2015, without further examination, Mr Dooley stated:
“It is my view that on the balance of probabilities the pathology noted in the CT scan of 2008 reflects naturally occurring degenerative disc disease. As outlined in the previous reports it is possible that a small disc prolapse occurred in May / June 2008.”[90]
[90]DCB 35a
107 Once again, Mr Dooley does not appear to address whether the relevant CT scan could also reflect the two subsequent aggravations.
108 In any event, on balance, I consider that the scenario expressed by Mr McInnes is the more likely to have occurred. To an extent, the “more accurate chronological history in relation to the onset of symptoms during the course of Ms Moore’s work in May/June 2008”, addressed by Mr Dooley, has been assisted by the evidence of Ms Makowski referred to above.
109 Further, on accepting that the vacuuming incident did produce acute “awful” pain, it is likely to have occurred in a setting of a particularly weakened degenerative condition, consistent with the complaint of symptoms by the plaintiff in the weeks leading up to the vacuuming incident caused by the work performed, and in the setting of the back being relatively asymptomatic since at least May of 2006. In this sense, both the work injury and the vacuuming incident are co-existing causes of the impairment that ensues from June 2008.[91]
[91]See AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraph [2] per Mundie JA
110 Finally, I am assisted in this regard by the dicta of Ashley J in Jayatilake v Toyota Motor Corporation Australia Ltd,[92] to the effect that ultimately, the findings are judicial rather than medical. In addition, I would rely on the decision of the Full Court of the Supreme Court of Victoria in Dahl v Grice,[93] to the effect that a possible relationship raised by medical evidence is capable of being found as a probable fact if the contemporaneous evidence points in that direction.
[92](2008) 20 VR 605
[93][1981] VR 513
111 Accordingly, I find that the plaintiff has established, on the balance of probabilities, that the aggravation injury consists of a worsening of a degenerative condition in the plaintiff’s lumbar spine, such that the work in May and June of 2008 was a significant contributing factor to that aggravation as evidenced by the presence of a prolapse/protrusion, particularly at the level of L5-S1.
Impairment after June 2008
112 The plaintiff has sworn three affidavits, being 18 July 2012, 19 August 2014 and 19 May 2015.[94] In the first affidavit, she swore that the pain developed over the course of a few weeks in May and early June 2008. She swore it gradually got worse, becoming more constant and more severe. The pain started to spread down into the left thigh. She swore that most days, she was going home from work in significant pain, that would build up during the course of the working day. On some days, the pain was severe enough and she would have to lie down when she got home. After the vacuuming incident, she took little time off work and continued working. She underwent a course of physiotherapy, hoping the pain would pass. She stated that, unfortunately, the pain became worse.
[94]Exhibit A
113 Thereafter, the plaintiff had a series of cortisone injections at St Vincent’s Hospital, including on 30 October 2008. She stated the cortisone injections helped for a while and, as a result, she decided not to go ahead with the surgery.
114 Further, the plaintiff swore:
“20.I have constant pain in the lower back. The level of pain varies but there is always at least a base level of pain present. Prolonged periods of sitting or standing make the pain worse as do also most bending or twisting type movements. Sometimes the pain flares up to a quite severe or extreme level to the extent that there is little more I can do but to lie down and rest.
21.I also experience pain that radiates down into the left buttock area and sometimes down the leg to below the knee. My left foot often becomes numb and I also sometimes get cramps in the left leg. This often makes me somewhat unsteady on my feet.
22.I can walk for about half an hour before pain builds to a point where I have to stop to rest. My sitting and therefore driving tolerance is similar although sometimes I have little choice and simply have to put up with the pain as best I can. When driving, I do try to get out of the car and break up journeys in an attempt to keep pain levels under some control.
23.I am still relying on a range of medications to try to keep the pain under control. I am taking Nurofen, Orudis (an anti-inflammatory), Mersyndol/Strong Pain Plus, Panadol Osteo and Tramal. Some of these medications are particularly strong and I find they leave me feeling vague and somewhat distant from what is happening around me. I don’t like feeling like this but it is a matter of either putting up with severe pain or feeling this way. I also take Zoloft and Zyprexa to deal with feelings of depression and anxiety that I experience.
24.I am very worried about my working future as medical treatment so far has failed to improve things much, if at all. I have tried different medications and also had the abovementioned nerve root injections. Nothing has giving me any lasting relief from the pain.
25.I am left in a predicament where I simply have to do the best I can with the pain. I have to be slow and careful about my movements and always conscious of the back. Having said that, I sometimes have little choice but to carry out some domestic tasks and then have to deal with significantly increased pain that can last from an hour or two up to a few days. I would say that I generally have 2 or 3 bad days of pain each week.
26.The unpredictability of my pain makes it very hard to plan much at all and I therefore tend to structure what I do on a day to day basis depending on my pain levels. I also sleep very badly due to pain and this makes it even harder to cope with the pain due to tiredness. This is not the person I was. I was previously very active and coping with the rigours of basic housework was never a concern.
27.Unfortunately, I feel that I am now limited to part time work at best. It remains to be seen whether I will even be able to cope with that, however I am keen to try as I am not in a financial position to be out of work.
28.My social life is now extremely limited. I still try to get out occasionally as I am determined that my injury will not stop me from doing so but simple outings like going to the movies or going out for a meal can now be very painful and it is often easiest just to stay at home rather than deal with the inevitable pain.”[95]
[95]Exhibit A, PCB 19‒21
115 In her second affidavit sworn 19 August 2014, the plaintiff swore:
“2.I continue to suffer from severe low back pain. The pain is always there. However, the intensity of the pain varies from one day to the other. I also suffer from left leg pain. The leg pain comes and goes and is largely determined by how active I have been. However, I suffer from leg pain every day. The level of the pain varies during the day. At times my leg pain is severe. When this occurs I am stopped in my tracks. I suffer from severe leg pain on about four days per week. The pain down my left leg travels through my buttock region and at times it goes down as far as my foot.
3.I also suffer from numbness in my left ankle and my left ankle feels weak.
4.There are times when I suffer from worse back and leg pain for no apparent reason. It is hard for me to predict how my back is going to be from one day to the next.
5.Bending, twisting, stooping and lifting are the types of activities that cause me worse pain.
6.I also have difficulty sitting and standing for lengthy periods. I find that if I sit for longer than 15 minutes I suffer from worse pain. I also find that after standing for about 10-15 minutes, my pain becomes worse. I generally need to change my position and posture on a regular basis.
7.Sleep for me continues to be a problem. The pain in my back and leg often prevents me from falling asleep. During the night I am often woken by pain. Generally I am woken by pain at least twice a night. However, when the pain is bad there are times when I am woken every couple of hours. Most days I need to have a sleep during the day.
8.My ability to walk over rough and uneven ground or up and down stairs remains restricted.
9.I continue to attend Dr Garra, my treating general practitioner, on a regular basis. I am currently prescribed the following medication:
-Tramadol;
- Gabapentin;
- Voltaren;
- Panadol Osteo;
- Nurofen;
- Strong Pain Plus;
- Zoloft;
- Zyprexa;
- Movicol; and
- Nexium.
10.Often the medication that I am taking affects my memory and concentration.
11.As a result of suffering injury, I have become anxious, depressed and frustrated. I have withdrawn socially. I have low self esteem and my motivation is poor.
12.When I try and undertake activities around the home I have to pace myself. At times I overdo it and have to rest and take extra pain relief medication. I often need to get help from my daughter with the heavier cleaning and domestic chores.”[96]
[96]Exhibit A, PCB 22‒24
116 In her third affidavit sworn 19 May 2015, the plaintiff has sworn:
“2.I continue to suffer from severe low back pain and left leg pain as discussed in my Affidavit sworn on 19 August 2014 paragraphs 2, 3 and 4.
…
4.I continue to attend for treatment with my general practitioner, Dr Garra, on a regular basis.
5.I am currently prescribed the following medication:
(a) Tramadol;
(b) Gabapentin;
(c) Endep;
(d) Zyprexa;
(e) Movicol,
(f) Nexium.
6.I also take medication for pain relief including:
(a) Voltaren;
(b) Panadol Osteo; and
(c) Nurofen,
(d) Strong Pain plus
as well as other pain relief medication obtained from the pharmacy.
…
12.I refer to paragraph 4 of my affidavit sworn 18 July 2012. I confirm that following that incident in 1999 I had some symptoms in my low back from time to time for which I had treatment. I also had low back symptoms following a car accident in 2004 and a fall in 2005.
13.On or around early 2013 I was diagnosed as suffering a non‑cancerous tumour in my brain. I am advised that the tumour is small and that I do not require treatment apart from check-ups. I recently saw a neurologist in relation to the tumour and he recommended I come off Zoloft and commence Endep as the Zoloft was causing headaches.
14.I refer to paragraph 17 of my previous affidavit sworn 18 July 2012. I confirm that I had prior convictions for theft before the Centrelink Fraud.
15.I continue to suffer from anxiety and depression and issues with memory loss. As discussed above I have come off Zoloft and now take Endep to assist with these symptoms. I have suffered from depression prior to this injury in 2008. I had treatment for that depression including treatment and medication.”[97]
[97]Exhibit A, PCB 31.1‒31.4
117 The assertions referred to above have been largely adhered to in cross-examination or unchallenged.
118 With respect to her left knee pain, the plaintiff was asked:
Q.“In terms of your current problems with your knee, how often do you experience them?”
A.It depends. Only sometimes I – it depends on how – if my back’s, you know, it all works in together.
Q.I see. So it all works in together so there are some days when your knee will be worse than your back?
A.No.
Q.What do you mean by it all works in together?
A.With my back pain being worse than my knee pain, and because I’ve had my knee pain and that for so long, your body adapts to the pain.
Q.The pain in your knee, I think you touched on it, causes problems with sitting, is that right?
A.Sometimes, yes.
Q.So when you sit for long periods you get aches in your left knee?
A.Yes.
Q.And you have to get up and move about?
A.Sometimes.
Q.You get pain in your right knee?
A.A little bit in my right knee.
…
Q.So back in 2005, you had to cease your employment because your employer wanted someone full-time and you were only able to do that part-time because of your knee pain?
A.Yes, just be.
Q.So did your knee pain also affect your ability to walk?
A.A little bit.
Q.These days do you get knee pain when you walk?
A.Sometimes.
Q.Did your knee pain cause you difficulties with sleep?
A.Sometimes.
Q.Does your knee still cause you problems with sleep?
A.Sometimes but my back is more.
…
Q.Walking down stairs do you have pain in your knees?
A.Sometimes. But I avoid stairs if I, you know, if I can.
Q.Does your knee ever give way?
A.No.
Q.In 2005 was it the case that your knee would give way on one occasion?
A.Maybe, maybe.
Q.Dr Honey saw you, as I think I indicated, in 2005 to speak about primarily your knee pain. He said, and this is 2005, ‘She said that she can’t be bothered with her social life. She’s lost interest in that and similarly reading’. Did your knee pain interfere with your ability to socialise in 2005?
A.Yeah, because I couldn’t dance anymore. I couldn’t dance anymore.
Q.And that maintains the position, you can’t dance anymore because of your knee?
A.I haven’t tried.
Q.He says, he continues, ‘That she did enjoy gardening but can’t do much of that now’?
A.Yes.
Q.Your gardening was restricted in 2005 because of your knee pain?
A.M’mm.
Q.And is restricted today because of your knee?
A.No, because of my back.”[98]
[98]T72, L1 ‒ T74, L11
119 The plaintiff was then taken to an affidavit she swore on 25 October 2005[99] with respect to her knee injury. She was questioned as follows:
[99]Exhibit 30
Q.“You said that you have constant aching pain in your knee every day?
A.Yes.
Q.‘At times, particularly when I do too much, the pain increases. I drive a manual car. I’m often in agony the day after visiting Mum’?.
A.Yeah.
Q.‘My knee interferes with my sleep. At night I tend to get an aching, throbbing pain in my knee’?
A.Yes.
Q.‘As a result I take Dolased tablets before I go to bed’?
A.M’mm?
Q.‘On average I have interrupted sleep about four nights a week because of knee pain’?
A.Correct.
Q.You note your restrictions on housework because of the knee pain?
A.Yes.
Q.You no longer jog because of the knee injury?
A.M’mm.
Q.You have a dog and previously you would’ve walked that dog but you no longer jog with your dog, is what you were saying in October 2005?
A.Right.
Q.… I suggest to you that those problems continue with respect to your knee injury?
A.No, my knee has – because I’ve had three – two operations on it my knee is no – was, again – not as bad as my back. Those conditions now refer to my back and more. I’m a lot more painkillers now. … I’ve had the pain for so long my body has adapted to that pain. It wasn’t as bad as what my back is.”[100]
[100]T74, L17 ‒ T75, L18
120 When it was put to her that:
Q.“…when we read this affidavit that you wrote in 2005, the same could apply to 2015 with respect to your knee symptoms, just in the same way as it did then?
A.No, not – because my back is worse. The level of pain has gone up.
Q.Ms Moore, again I suggest that what you are doing is changing the emphasis to suit your claim?
A.No, I’m not, sorry.
Q.In relation to your treatment for your left knee, have you had any treatment recently?
A.No.
Q.When was the last time you had treatment for your left knee?
A.I can’t remember. I can’t remember. I do exercises at home to strengthen the kneecap.
Q.So other than some exercises, do you see your general practitioner about your knee?
A.No.”[101]
[101]T75, L19 ‒ T76, L1
121 However, the plaintiff confirmed that in recent times, she had seen her knee surgeon, Mr Hayden Morris, who proffered that a future knee replacement may occur.[102]
[102]T76
122 The plaintiff was also asked about her recent diagnosis of meningioma tumour. She confirmed that that causes headaches, but when her medication was changed from Zoloft to Endep, the Endep now controls the headaches. She further confirmed that watching television can be a bit hard when you have got a headache and reading.[103] The plaintiff then confirmed that she told Dr David Barton in March 2014 that the meningioma gave her “rotten headaches”. This in turn led her to cease driving in May 2013, some eight months after it was first diagnosed.[104]
[103]T77, L21‒24
[104]T78, L16‒18
123 Further, the plaintiff confirmed she had been diagnosed with diverticulitis a couple of months ago, which condition causes bleeding and a little bit of pain but “not [anything] I can’t control”.[105]
[105]T79, L31
124 Defence counsel submits that the pain-relief treatment attested to by the plaintiff with respect to her back is masked by the pain that she suffers from a number of other conditions, such that the Court is unable to attribute exactly which pain relief is associated with the lumbar back pain.[106]
[106]See Peak Engineering & Anor v McKenzie (supra)
125 Dr Garra referred the plaintiff to the St Vincent’s Neurosurgical Outpatient Clinic on 7 October 2008. Upon examination:
“… she was advised to try a nerve root sleeve injection first, before thinking of surgery and this was attempted to be organised in Werribee Hospital Radiology. She had a further review appointment made following the injection. She was seen on 11 November 2008, which confirmed there was no real improvement with the nerve root injection. She had an MRI scan performed, confirming the persistent small disc protrusion at the L5 level; and after further discussion, it was deemed that she should have a further CT guided injection to the nerve root. It would seem that this was undertaken for her, but with continued symptoms subsequently.
After a conservative course was deemed initially appropriate because of the small disk protrusion. It was deemed that the disk protrusion was so small she was unlikely to do well with surgery. In August 2009, she was referred to the Pain Management Clinic for assessment and treatment as deemed appropriate.”[107]
[107]St Vincent’s Hospital Report dated 18 January 2010 – Exhibit F, PCB 44-45
126 Dr Garra then referred the plaintiff to orthopaedic surgeon, Mr Peter Wilde, who saw her on 11 December and 16 December 2009. He took the following history of injury:
“When Ms. Moore first attended my office on 11/12/2009, she told me she was a fifty-five-year-old singe woman who worked in an office job in administration and finance at the Victorian University. She injured her back in the first week of May 2008 when she was required to move her office. This involved lifting and packing boxes. Her back felt sore and gradually became worse. As she vacuuming at home on 9/6/2008 she [felt] something ‘give way’ in her back. She was ‘temping’ at the time of the time of the injury and continued to work in this capacity albeit with pain. … .”[108]
[108]Exhibit G, PCB 48.3
127 Her symptoms at that time were:
“lumbosacral pain 80% and pain in her left buttock 20% and numbness, cramping and pain in the dorsum of her left foot. She told me that her buttock swells and she experiences a burning sensation in her left ankle. She rated pain levels at 7 out of 10 on the visual analogue scale. … .”[109]
[109]Exhibit F, PCB 47
128 Further:
“... Neurological examination of the lower limbs revealed the left straight-leg raising test was restricted to 40 degrees and there was sensory change on the dorsum of the left foot. … .”[110]
[110]Exhibit F, PCB 47
129 Mr Wilde suggested a review by Dr Clayton Thomas, a pain medicine and rehabilitation specialist, at the Melbourne Pain Group. His diagnosis was one of:
“… aggravation of lumbar spondylosis without radiculopathy. The injury at work has been contributory.”[111]
[111]PCB 48
130 Mr Wilde consulted the plaintiff again on 18 October 2011. By that stage, he had received correspondence from Dr Thomas regarding his review of the plaintiff on 19 May 2010. He had suggested she attend a six-week spinal rehabilitation program. He also recommended alterations to her medications to better control her symptoms. He confirmed his previous diagnosis and considered that the condition had stabilised. By this stage, the plaintiff had told Mr Wilde that:
“… her back was too tired and too sore to continue working.”[112]
[112]PCB 48.5
131 However, he felt that she still possessed a physical capacity for full-time office employment. Indeed, he noted that she continued to work in this capacity for two years after the injury and was coping “quite well”.[113]
[113]PCB 48.5
132 Dr Clayton Thomas had examined the plaintiff on 19 May 2010 and 14 December 2011. On the latter occasion, she reported persistent pain in her left buttock, she had numbness in the left buttock and pain in her left hip. She had radiation of pain down the left leg to the ankle and she had some numbness below the left knee. Medications included Tramadol, 150 milligrams at night and 100 milligrams in the morning. She also took Panadol Osteo and Nurofen. She also related she had returned to studying and was doing a Diploma in Accounting and had one subject left to complete. At that stage, she was hoping to work in the area of counselling. His opinion, at that stage, was as follows:
“Diagnostically, I think that she does have some evidence of L5 nerve root involvement. She has soft signs of L5 radiculopathy. She has wasting of her left calf, numbness confined to the L5 dermatome and weakness to the left big toe extensor and some restriction of straight leg raising on the left but this is very mild only.”[114]
[114]Exhibit H, PCB 51
133 Dr Thomas thought the plaintiff had a partial incapacity which could be assessed as being permanent. He also thought she could work for short periods of time full time.[115]
[115]PCB 52
134 When seen again on 19 August 2013, Dr Thomas noted the plaintiff had ongoing residual left leg pain which she described in terms of “burning pain”.[116] She was taking Lyrica, 75 milligrams at night time. Dr Thomas suggested that she swap this over to Gabapentin, as he thought this may be more effective.
[116]PCB 53
135 When reviewed on 25 September 2013, she was taking Gabapentin, 300 milligrams in the morning and 600 milligrams at night, and had reported the pain had improved to a certain extent.
136 The plaintiff’s solicitors had the plaintiff examined by neurosurgeon, Mr Paul D’Urso on 20 January 2014. He was provided with the affidavit of the plaintiff sworn 18 July 2012, the medical report of Dr Garra dated 17 May 2010 and reports from Dr Clayton Thomas and Mr Peter Wilde. Her current capacity, at that stage, was described as follows:
“… Sharon is able to perform light shopping, cooking and cleaning but not in an unrestricted capacity. Sharon is able to perform washing. Prior to Sharon’s injury she stated that she was able to actively garden, socialise, sew and perform quilting. She states that she can no longer perform these activities.”[117]
[117]Exhibit K, PCB 57
137 Mr D’Urso further noted that the plaintiff was currently taking 250 milligrams of Tramadol, 700 milligrams of Gabapentin, Voltaren, Panadol Osteo and Nurofen, combined paracetamol and codeine Strong Pain Plus, Zoloft, Zyprexa, Crestor, Deralin and Movicol.
138 On examination, Mr D’Urso noted that the plaintiff displayed mild weakness in her left lower limb, “but nothing clearly focal”. Her left knee reflex was absent. Other reflexes were present. Plantar responses were downgoing. Sensation was slightly altered in the left ankle region.
139 Mr D’Urso’s opinion was that:
“… workplace activity in May/June 2008 has contributed to the development of a lumbosacral disc prolapse causing left L5 nerve root compression.”[118]
[118]PCB 58
140 Mr D’Urso thought, at that stage, it was likely that the plaintiff would have a capacity to perform the majority of her pre-injury employment but that part-time employment up to 20 hours a week would appear suitable and indeed, if this was manageable, a greater increase in hours and intensity of employment could then be considered.[119]
[119]PCB 59
141 Despite the materials with which Mr D’Urso had been provided, he has not recited a history of the vacuum incident. Nor has he referred to the history of injury to the back prior to May 2008. In this regard, his opinion as to the aetiology of the developing condition is of limited value but is relevant to the plaintiff’s current condition at the time he saw her.
142 Dr Robyn Horsley, occupational physician, saw the plaintiff for medico-legal purposes on 28 November 2013. She took a history of the three putative causes of the impairment. She considered that the plaintiff had sustained a significant injury to her lumbar spine on the history provided in May-June of 2008. She states:
“I note that she sustained an injury in 1999 and then again in 2005, however in the materials attached, the CT scan from the 14th June 2005 is basically normal. … .”[120]
[120]Exhibit L, PCB 73
143 Dr Horsley considered her capacity for work is likely to be part time, in the vicinity of 15 to 20 hours per week, with variation in posture and a flexible employer.
144 On examination, Dr Horsley considered that there was a reduction of muscle bulk in the left limb, particularly in the thigh and the calf.
145 When re-examined on 3 July 2014, Dr Horsley’s opinion was essentially unchanged.[121]
[121]PCB 76
146 The defendant has had the plaintiff examined by a number of doctors, all of whom attest to a degenerative condition of the back, resulting in symptoms and disability, but there is a disagreement as to the prospect of the work playing a significant contributing factor in her symptomatology.
147 Mr Michael Dooley, as already discussed, is at the furtherest end of the spectrum, where he does not consider that there is any work relationship in the plaintiff’s presentation. He is also the surgeon who has seen her last in time for the defendant, being 11 June 2015.[122]
[122]Exhibit 11
148 Upon physical examination on that occasion, he noted that straight-leg raising on the right was to 90 degrees and on the left it was to 75 degrees. At this level, on the left-hand-side, the plaintiff noted some left buttock pain. He further noted that the ankle reflexes were symmetrically reduced and there was wasting of the left quadriceps muscle. Of particular note is that on clinical examination, there were no overt signs of exaggeration.[123]
[123]Exhibit 11, DCB 35
149 Mr Dooley further stated:
“It is now five years since the onset of Ms Moore’s pain. I remain of the view that the constancy and intensity of her ongoing pain in this regard are greater than one would expect to see for either the aggravation that occurred or for the degree of underlying degenerative disc disease. I believe that the appropriate treatment for her remains a self managed low impact exercise and fitness programme, combined with sensible modification of activity. Although initially it had been suggested to her that she should consider an operation on the lumbar spine, I do not believe that there is any indication to consider such surgery.”[124]
[124]DCB 34
150 As earlier stated, I consider that the plaintiff’s answers to questions in the witnessbox were basically responsive and straightforward, notwithstanding her unfortunate criminal background. As already stated, I was impressed that she conceded that she was probably able to return to full-time work at the Victoria University because of financial pressure, which was inconsistent with somebody trying to mislead the Court. I also note that she has embarked upon at least two programs of tertiary study involving accounting and counselling. I further note that she was able to work virtually full time right up until the time that she went to prison in November of 2010. During that six-month period, she was first prescribed Tramadol to cope with her lumbar pain and, following her release, her general practitioner placed her on a Disability Support Pension on account of a number of medical conditions. Nonetheless, he has continued to provide her with WorkCover Certificates on a monthly basis on account of her lumbar spine since August of 2008.
151 In all the circumstances, I consider that the plaintiff has not recovered from the prolapse/protrusion injury diagnosed in July of 2008 and of which I have already found that the work in May and June of 2008 was a significant contributing factor.
152 There is evidence of ongoing impairment with respect to the knee.[125] The plaintiff maintains that the pain relief being prescribed is for her back and little or none for her knee. I am required to assess pain and suffering consequences, if any, with respect to the left knee such that there can be no accumulation of consequences with the lumbar spine.[126] With respect to the left knee, the plaintiff was assessed as “well” as at April 2008. It is possible that the prescription of Orudis capsules on 8 April 2008 may have been, at least in part, due to left knee pain. However, the previous prescription was on 24 July 2007 and there was no mention of knee pain at or about the time the plaintiff was complaining of back pain in 2006. There was a prescription for Orudis on 22 December 2005 and Panadeine Forte on 6 October 2005. The last reference to knee pain prior to May 2008 was in fact 28 July 2005 where the general practitioner recorded “knee sore”.[127] The prescriptions for Panadeine Forte tablets from 14 June 2008 onwards would appear to relate directly to the lumbar spine. There is thereafter consistent reference to the lumbar back pain and the need for pain-relief tablets until 17 January 2012 when the general practitioner records “knee playing up”.[128] There is no specific prescription given for pain relief on that day. Thereafter, there is no further mention of knee pain and the only mention of headaches appears to be on 27 February 2013. In all the circumstances, the clinical notes would appear to corroborate the plaintiff’s assertion that the left knee and the meningioma are producing minimal ongoing consequences for the plaintiff compared to the lumbar spine.
[125]See paragraphs 26, 52, 85, 101, 102, 103 and 118-121
[126]See Peak Engineering & Anor v McKenzie (supra) at paragraphs 24-25
[127]Exhibit Q
[128]Exhibit Q
153 Although I consider in all probability that at the very least her left knee pain is contributing to the need for ongoing pain relief, the nature of the pathology in the back and the complaints of constant daily pain lead me to the conclusion that the physical consequences of the aggravation injury, when considered alone, could be considered as “more than significant or marked” and “at least as very considerable”. Although it is clear that on the plaintiff’s own admission she is suffering from a degree of consequential depression and anxiety as a result of the aggravation injury, I do not believe that any disentangling is required, basically because of the assessment of Mr Dooley that there is no overt signs of exaggeration on examination. This is consistent with my impression of the plaintiff in the witnessbox, notwithstanding her chequered past.[129]
[129]See also Jayatilake v Toyota Motor Corporation Australia Ltd (supra) and Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraph 21
154 That being said, because the plaintiff worked full time basically up until November 2010 and has admitted that, in all probability, she could have continued in her pre-injury employment after being released from prison, I am unable to find that she has discharged the onus of proof with respect to a permanent 40 per cent loss of earning capacity.
155 In all the circumstances, leave will be granted to the plaintiff to issue proceedings at common law for pain and suffering damages arising out of a low-back injury suffered in the course of her employment in May and June of 2008.
156 I will hear the parties as to any consequential orders.
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