Morgan v Victorian WorkCover Authority
[2020] VCC 910
•26 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05722
| ANNE THERESE MORGAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 June 2020 | |
DATE OF JUDGMENT: | 26 June 2020 | |
CASE MAY BE CITED AS: | Morgan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 910 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Lower back injury – significant past impairment of the lower back – whether the pre-existing lower back condition was aggravated by a discrete incident – whether the consequences of the aggravation meet the statutory test for pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB; Evidence (Miscellaneous Provisions) Act 1958
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin QC with Ms S C Bailey | Arnold Thomas & Becker |
| For the Defendant | Mr N J Dunstan | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff was employed by the Seymour Elderly Citizens Hospital (“the hospital”) as a personal care assistant. On 17 February 2017, she suffered injury to her lower back. A resident fell. The plaintiff assisted her to stand and in the course of doing so, took the resident’s weight. The resulting strain which the plaintiff suffered caused her to develop “back discomfort”.[1]
[1]Plaintiff’s Court Book (“PCB”) 9
2 The plaintiff abandoned her application for leave to bring a proceeding for loss of earning capacity consequences. The application then proceeded by reference only to the pain and suffering consequences which she contended meet the statutory test of seriousness.
Appearances
3 Mr T P Tobin QC appeared with Ms S C Bailey of counsel for the plaintiff. Mr N J Dunstan appeared for the defendant.
4 The parties consented to the trial of the application being conducted by audio-visual link pursuant to the relevant provisions of the Evidence (Miscellaneous Provisions) Act 1958.
Executive summary
5 After considering all of the evidence, I am not satisfied that the pain and suffering consequences contended for by the plaintiff meet the statutory test of seriousness.
The issues
6 The plaintiff readily conceded that she had been troubled by lower back pain for some decades prior to the incident. She submitted that the incident aggravated the pre-existing pathology in her lower back with pain and suffering consequences of that aggravation which meet the statutory test.
7 The defendant disagreed. It submitted that when a comparison is made between the extent of the problems endured by the plaintiff before the incident and the problems endured by her after the incident, that there is not much difference to be seen. In effect, the defendant submitted that the incident was little more than coincidental.
8 The defendant relied on the opinion of Mr Rodney Simm, orthopaedic surgeon, who considered that the onset of more significant pain and disablement two days after the incident led him to conclude that the incident was not causative of the lower back injury.
9 The defendant had previously received a claim lodged by the plaintiff. It admitted liability for no fault payments, and not only paid her what she deserved in that respect, but also admitted liability for an impairment assessment which resulted in the plaintiff obtaining further sums of no fault compensation.
10 Despite Mr Simm’s opinion on causation, the defendant did not resile from its earlier no fault admissions. Its reliance on Mr Simm’s opinion was directed to his consideration of whether the plaintiff was incapacitated to any material degree. I think this will become more evident as I summarise the evidence relied upon by the plaintiff and the defendant.
The injury
11 After the occurrence of the incident, the plaintiff did not experience any significant lower back problems until two days later. Although, she described a deterioration in her lower back condition over the next two days in her first affidavit,[2] it was not a description which the plaintiff maintained as being accurate. She was at her home dressing, making herself ready to go to work. She bent over to do up her shoelaces, which resulted in her suffering significant lower back pain. She did not refer to the occurrence of that significant pain in her first affidavit.
[2]PCB 9
12 Both parties accepted that this is an accurate chronology of the initial incident and the circumstances under which the plaintiff experienced more significant pain in her lower back. A comparison with what the plaintiff said about the incident and the onset of lower back pain in her first affidavit and in some of the histories recorded by treating and medico-legal assessors, does not refer to the onset of more significant pain in her lower back occurring in the way in which I have just described.
13 The defendant was prepared to concede that the contrast in accounts was rather more a matter of the plaintiff’s reliability than it being a question of creditworthiness.
The prior lower back problem
14 The defendant commenced its cross-examination of the plaintiff by referring her to histories recorded by two medico-legal assessors in which she provided a potted history of her prior lower back problems.
15 The first of those assessors was Mr Roger White, surgeon, who examined the plaintiff for the defendant on 31 March 2017. He recorded the following relevant past medical history:
“She has had trouble with her back for many years. She attended a chiropractor for 10 to 20 years some time ago. She also attended a myotherapist ‘until it became too expensive’ and a podiatrist.
She said she has arthritis of her hip, right knee and left foot for which in the past she has seen a podiatrist.
With a previous employer she fell and landed on her coccyx. She was off work for one month. … .”[3]
[3]Defendant’s Court Book (“DCB”) 7
16 Under cross-examination, the plaintiff agreed that the history recorded by Mr White is an accurate history.
17 The next relevant history that was put to her was one recorded by Mr Simm. He examined the plaintiff for the defendant on 10 October 2019. He recorded the following relevant past medical history:
“There was an extensive past history relevant to her claimed back injury. She developed low back pain after the birth of her son, over 30 years ago. She commenced attending a Chiropractor, who continued to see her at monthly intervals for ‘maintenance treatment’ for the next 10 years. During this time, her husband and her children also attended. The regular chiropractic treatment ceased when the chiropractor moved away from the district. She was reluctant to see another practitioner. Following that she had intermittent backache over the years, but she said today this did not lead to any period of time off work. …
She had a past history of a fall onto her buttocks and was off work for one month, some years ago.”[4]
[4]DCB 23-24
18 Under cross-examination, the plaintiff said that she remembered giving that history to Mr Simm; however, she added that the back pain that she was referring to was “ … not in the same area. I had back pain between the shoulders.”[5]
[5]Transcript 13
19 The plaintiff agreed that there were two incidents of some significance relating to her lower back. In her first affidavit, she referred to suffering a fall at her then place of employment, landing on her coccyx. She was off work for about a month before returning to her normal duties. The other incident of significance was about a month and a half before she started work with the hospital in 2012. She was taken to hospital by ambulance because of the development of back spasm. The plaintiff was referred to an inpatient record recording back pain.[6] Under cross-examination, the plaintiff said that the pain she experienced on that occasion was between her shoulder blades.[7]
[6]DCB 115
[7]Transcript 15
20 The plaintiff was then taken to the clinical notes of a number of treating paramedical practitioners. The first of those was Mr Joshua Ekberg, myotherapist. The plaintiff was taken to a number of entries in those clinical notes which I will summarise briefly:
21 On 16 March 2012 – the plaintiff completed a form which called on her to identify her current problems by marking the form with a letter “c” against a medical condition denoting that it was a current problem. She marked the letter “c” against “lower back pain”.[8] Under cross-examination, the plaintiff said that she remembered having lower back pain at that time.[9]
[8]DCB 162
[9]Transcript 16
22 On 29 July 2014 – Mr Ekberg made a note that “Anne has got P in her lower back + R sh + neck”. Under cross-examination, the plaintiff said, presumably from that note, that she obtained treatment from him for her low back pain.[10] She was also referred to a note that she was given “Exercise - stretching” by performing “low back rocking”. She described that as a stretching exercise which involved sitting on her bed with her knees up and rocking to try to stretch her lower back to deal with lower back pain.[11]
[10]Transcript 16
[11]Transcript 16
23 On 8 January 2015 – Mr Ekberg made a note that in addition to a left shoulder problem that the plaintiff experienced “Also low back P”.[12] Under cross-examination, the plaintiff said that the entry was correct, and she was experiencing lower back pain at that time.[13]
[12]DCB 171
[13]Transcript 17
24 On 26 March 2015 – Mr Ekberg made a note that “Anne has P low back pain & midthoracic”.[14] Under cross-examination, the plaintiff first said that the entry was correct, in that she experienced pain between her shoulder blades, and then when it was put to her that is also referred to lower back pain, she agreed.[15]
[14]DCB 176
[15]Transcript 16-17
25 On 23 July 2015 – Mr Ekberg made a note “Anne has P around shoulders + sh blades. Low back is tight, ‘as always’.”[16] Under cross-examination, the plaintiff agreed that she was experiencing pain and tightness in her lower back at that time. She also agreed that the tightness in her lower back had been a problem “for a long time” which she related to the work she was doing.[17]
[16]DCB 179
[17]Transcript 18
26 On 28 January 2016 – Mr Ekberg made a note “Anne has P in lower back ...”.[18] Under cross-examination, the plaintiff agreed that she continued to obtain treatment for her lower back pain at that time.[19]
[18]DCB 181
[19]Transcript 18
27 On 3 February 2016 – Mr Ekberg made a note “Anne has been lifting and P has returned to lower back”.[20] Under cross-examination, the plaintiff agreed that she had been engaged in lifting, which resulted in her suffering pain in her lower back. She said that there was sometimes a pattern that if she did any kind of strenuous work or heavy lifting that she would experience pain in her lower back, but that did not happen “all the time”.[21]
[20]DCB 182
[21]Transcript 18
28 At this juncture in the cross-examination, the plaintiff was pressed regarding whether her experience of lower back pain was a pattern, that is, that it was produced by strenuous work or heavy lifting. She was referred to some hospital records and a note made in those records in December 2011 in which reference was made to the plaintiff performing lifting, resulting in pain in her lower back. She agreed that if she engaged in that level of lifting, that she would experience pain in her lower back.[22]
[22]Transcript 18-19
29 On 22 July 2016 – Mr Ekberg made a note “Anne has P in lower back …”.[23] Under cross-examination, the plaintiff said that she would use hot and cold packs on her lower back when she experienced pain and tightness in her lower back. She had been using that as a treatment method as far back as July 2016. She added that if the pain was really bad, that she would use Panadol.[24]
[23]DCB 184
[24]Transcript 19
30 On 30 August 2016 – Mr Ekberg made a note “Anne has P in R RC lower back”.[25] Under cross-examination, the plaintiff agreed that she was having treatment for her lower back at that time, was using Panadol occasionally, hot and cold packs, doing exercises, and having occasional massage therapy.[26]
[25]DCB 185
[26]Transcript 20
31 Under further cross-examination, the plaintiff said that she was provided with massage therapy on a couple of occasions by Ms Merrilyn Sanderson. Her clinical records dated 10 October 2016 referred to her reason for visit as being “lower back, hips, R leg” and her physical related job duties as being “lifting patients, bending, squatting”. The treatment she provided the plaintiff was massage of her neck, back, back of her legs and back of her arms.[27]
[27]DCB 190
32 The plaintiff was then asked about whether the main treatment she was having was provided by Mr Ekberg, and whether it included massage therapy. She said that it did not, but involved dry needling of her lower back and hips.[28]
[28]Transcript 20
33 The plaintiff was next taken to her Worker’s Injury Claim Form which she signed on 20 March 2017. In particular, she was taken to the first page and a part which asked her to describe “What happened and how were you injured?” The handwritten answer to the question is as follows:
“Finished work at 3pm on 13/2/17, was limping & usual pain in back. Cancelled shift 16/2/17 due to the pain. RTW on 17/2/17 - assisted resident who fell. No pain at time. Worked 18/2/17. On 20/2/17 back went when dressing at home for work. Pain down back & stuck.”[29]
[29]PCB 44. The plaintiff was also referred to a similar entry in her Worker’s Claim for Impairment Benefits Form signed 23 August 2018 for the same purpose as she was referred to the other form - Transcript 24-25
34 Under cross-examination, the plaintiff was asked about 13 February 2017 and whether she usually got pain in her back before the incident. She said that she would, and that she would sometimes experience tightness and soreness.[30] Under cross-examination, the plaintiff agreed that on 13 February 2017, she was in pain and was suffering her usual pain in her back.[31]
[30]Transcript 23
[31]Transcript 25
35 The balance of the cross-examination was directed to the answer to the question and concerned whether the plaintiff worked on 18 February 2017. The defendant submitted that she did, by reference to its work roster which shows that the plaintiff did work that day. The plaintiff said the roster was wrong. She referred to a diary which she kept which showed that she did not work that day. The defendant conceded that whether the plaintiff worked that day or not was of marginal significance, and I gathered from that concession that is was not something which the defendant relied on in any material way. In any event, I prefer the plaintiff’s evidence, because she referred to her diary which I understood from the nature of her evidence to be a contemporaneous record of the shifts that she worked.[32]
[32]Transcript 25, 31 and 32
36 The defendant then wrapped up the cross-examination of the plaintiff relevant to her prior lower back condition with a series of questions which demonstrated the following - the plaintiff admitted that before the occurrence of the incident she saw a myotherapist, a masseur, used hot and cold packs, used the occasional Panadol and that on an earlier occasion, the pain was so significant that she required hospital treatment. She accepted that she had been having twinges in her lower back for years.[33]
[33]Transcript 26
37 Lastly, under re-examination, the plaintiff was asked about her evidence in her first affidavit of being troubled by sciatica. She said that she had experienced leg and hip pain before the occurrence of the incident. She said that one of the medical practitioners who had treated her at Boort Hospital referred to her leg pain as sciatica.[34]
[34]Transcript 46
The Plaintiff’s consequences
38 The plaintiff adopted the contents of her two affidavits in which she deposed to the impairment consequences resulting from the impairment of function of her lower back. The following is a distillation of what she deposed to in that respect in the order in which she referred to the impairment consequences:[35]
[35]PCB 10-12 and 14-17
· Daily lower back pain.
· Interference with activities of daily living which require rotation of the lower back.
· Difficulty undertaking domestic tasks in the kitchen and domestic chores.
· Difficulty undertaking gardening.
· Limitation on bending and twisting of the lower back.
· Inability to sit for long periods of time.
· Interference with sleep reduced to four to five hours a night.
· Difficulty using pain medication because of an abnormal liver function.
· Use of Panadol a few times per week, and the application of heat packs, pain cream and the use of home exercises for pain relief.
· Inability to drive long distances.
· Interference with her social life; no longer going out as often as she previously did.
· Absence from work with the hospital for six months.
· Return to work as permanent part time working 24 hours per fortnight in a lifestyle role not requiring any physically strenuous work.
The relevant medical evidence
39 The plaintiff was initially treated by Dr John Newton, general practitioner. She did not obtain a medical report from him. The only record of his treatment of the plaintiff is contained in the clinical notes of the Seymour Medical Centre where he worked as a general practitioner.[36]
[36]DCB 31-43
40 The plaintiff first saw Dr Newton on 21 February 2017. His notes are cryptic. He made no note of the incident of 17 February 2017. The best I can make of the clinical notes is that the plaintiff told Dr Newton that she had put her back out. She woke with pain during the previous week. She was involved in twisting and bending work with the hospital. She reported pain across her lower back, worse with sitting for a long period of time, worse with bending and twisting. On examination, her movements were limited. I am not sure I can make much more of that clinical note.
41 The plaintiff subsequently saw Dr Newton on 23 and 27 February 2017, 9 and 20 March 2017, 3 and 19 April 2017, 3 and 17 May 2017, 7 and 28 June 2017, 26 July 2017, 23 August 2017, 24 October 2017 and 18 October 2018 for treatment for her lower back. I should sound a caution here that I was left to read the clinical notes which, I repeat, are typically cryptic general practitioner’ clinical notes, to interpret occasions of consultations when the plaintiff sought treatment for her lower back. I think the dates I have isolated are the only dates upon which she sought such treatment.
42 Through February, March, April and May 2017, the plaintiff reported continuing problems with her lower back. She was referred to have an MRI scan. She was also referred to have treatment by paramedical practitioners to whom I will refer shortly. By early May 2017, she was continuing to have treatment with a view to returning to work. By early June 2017, she had returned to work on a trial basis. There are a number of subsequent consultations relevant to the plaintiff’s return to work, but nothing to suggest that she was unable to return to work successfully.
43 Under cross-examination, the plaintiff was taken through relevant parts of the clinical notes. She agreed that by about mid April 2017, she was in receipt of a WorkCover certificate relevant to return to work, and she was working light duties, doing four three-hour shifts.[37] She also agreed that by early June 2017, she was trialling a return to full duties.[38] She agreed that by the end of August 2017, she was pushing for a clearance to return to full pre-injury duties.[39]
[37]Transcript 36
[38]Transcript 36
[39]Transcript 38
44 The plaintiff was referred to Mr Rhys Saultry, physiotherapist. The plaintiff first saw him for treatment on 28 February 2017. He treated her until 6 July 2017. In a report dated 9 March 2018,[40] he described treating the plaintiff with massage, dry needling and instruction regarding exercises to rehabilitate her lower back injury. He noted that she made good progress and returned to work on light duties which he understood were gradually increased over time. The plaintiff was to see him in the week following 6 July 2017, but she cancelled the appointment. He assumed that her injury had resolved and that she had returned to full function and normal work duties.
[40]PCB 20-22
45 Under cross-examination, the plaintiff did not cavil with Mr Saultry’s account of his treatment of her nor that she did not pursue any further physiotherapy treatment after he left her care. She added that she had not sought nor obtained any further medical or paramedical treatment for her lower back, but had attended the Seymour District Memorial Hospital for massage treatment through its ambulatory care section.[41]
[41]Transcript 33-34
46 Under cross-examination, the plaintiff agreed that she had not seen a general practitioner for treatment for her lower back since late 2017 nor a physiotherapist, and was taking occasional Panadol and having occasional massage as her only treatment.[42] She also agreed that before the incident, she was seeing a myotherapist for massage treatment, applying Deep Heat cream and using hot and cold packs. She was asked to compare her treatment before the incident and afterwards, and agreed that there had been very little change in her treatment since the incident when making that comparison.[43]
[42]Transcript
[43]Transcript 39-40
47 Under cross-examination, the defendant referred to opinions of treating medical and paramedical practitioners and medico-legal assessors who the defendant submitted portrayed the plaintiff’s injury as mild.
48 Firstly, I think it is reasonably plain that Dr Newton considered that the plaintiff was making, and indeed had made, a reasonable recovery. The defendant pointed to the clinical note of 26 July 2017 at which Dr Newton recorded the following “lower back is behaving largely symptom-free”.[44] That would appear to be consistent with subsequent occasions when he saw her, as she returned to work on light duties and was able to gradually increase her work and work hours over time.
[44]DCB 38
49 Secondly, Mr Saultry considered that the plaintiff’s prognosis “was positive”, and although he considered that she would be susceptible to further injury, he made the point that she was capable of continuing her current employment with minimal issues as long as she followed correct lifting and manual handling protocols.[45] I should pause to observe that the plaintiff returned to suitable work which she has maintained without incident up to the present time.
[45]DCB 289
50 Thirdly, Mr Graeme Doig, orthopaedic surgeon, examined the plaintiff on 22 October 2018 specifically to undertake an impairment assessment. He provided a report dated 29 October 2018.[46] He considered that she had suffered an intervertebral disc injury at L1-2 consistent with appearances on the MRI scan. He considered that her prognosis was guarded to the extent that he thought it appropriate to place a permanent restriction on her of lifting of no more than 10 kilograms and limitations on pushing and pulling and bending and twisting through the spine and the implementation of appropriate breaks. He understood that she was working and had more recently obtained a job in a nursing home as a “diversional therapist”. He did not offer any opinion on the plaintiff’s capacity for work, and perhaps that was because it was not part of the process of an impairment assessment; however, it is noteworthy he made no comment about her being incapacitated for work, just that there should be restrictions on her generally, and no doubt from the work point of view.
[46]PCB 26-30
51 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff on 28 April 2020. He provided a report dated 28 April 2020.[47] His report is curious in many ways. He undertook a lifestyle evaluation, including activities of daily living, many of which have little or nothing to do with an assessment of the plaintiff’s lower back injury and its consequences. Despite having the MRI scan, and the report of Mr Doig, he did not provide a diagnosis of the plaintiff’s injury. Under the heading of Diagnosis, he merely said “New on old injuries of the lumbar spine”. He considered that she had the capacity for non-physical work which was, indeed, the work she was performing at the time when he examined her. He considered her prognosis to be poor and recommended that she undergo a series of other investigations and assessments which have not been undertaken.
[47]PCB 33-39. His examination was conducted through a videoconferencing system due to the restrictions on social distancing resulting from the COVID-19 pandemic
52 One of the serious absences in the opinions expressed by Mr Doig and Mr Kossmann is that neither understood the extent of the plaintiff’s prior history of lower back problems as I now understand them through material that neither of them were given, and, of course, they did not have the benefit as I have had of the cross-examination of the plaintiff. I do not think their opinions advance the plaintiff’s case very much.
53 Mr Roger White, consultant surgeon, saw the plaintiff within about two months of the incident. He recorded that the plaintiff told him that at the time he examined her, that she was “95% better and wants to return to work”. That is broadly consistent with what happened. The plaintiff returned to work within a matter of months, and has continued working in her current job without incident. He considered that she had suffered an aggravation of the degenerative disease in her lumbar spine against a background of “many incidents in the past”. He considered that she had the capacity to return to work, and in fact the history shows that in fact she did just that.
54 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 10 October 2019. He provided a report dated 14 October 2019.[48] He diagnosed the plaintiff as suffering from chronic non-specific mechanical low back pain with referred pain into the left buttock and left lower limb without clinical signs of radiculopathy. He was unable to establish a cause for her chronic mechanical lower back pain. He analysed the incident and when the plaintiff suffered the more significant pain in her lower back, but I need not go into that because the defendant does not rely upon Mr Simm’s opinion to mount a causation argument. On the basis of the history he obtained that the plaintiff had a history of lower back problems going back over thirty years, he described her prior lower back injury as a history of “relapsing low back pain” which did not necessitate modification of her occupation or domestic activities. He noted that her lower back pain had worsened following the occurrence of the more significant lower back pain. [DCB 28] He considered that she was confined to light employment with a lifting restriction of 5 kilograms between knee and chest height. He also noted that she had found suitable employment, and he considered that she could do additional hours in that work if provided.
[48]DCB 22-30
55 The difference between the opinions of Mr Doig and Mr Kossmann when compared with the opinions of Mr White and Mr Simm is patent. The latter were provided with a fairly accurate history of the plaintiff’s prior lower back problems, which is a matter of very real significance in assessing the nature and extent of the plaintiff’s lower back injury and its consequences before the incident, and the nature and extent of the aggravation of that pre-existing lower back injury and the consequences of the aggravation.
56 Under cross-examination, the plaintiff described the work that she is currently undertaking. It was not controversial that it is work which is absent any stresses and strains on her lower back when compared with the work she did prior to the incident. She is rostered to work 24 hours per fortnight. She picks up extra shifts when other employees call in sick. She was referred to her affidavit in which she said that she was earning $860 gross per fortnight, and then was referred to her gross income for the year ending 30 June 2019 which demonstrated that, on average, she was earning $715 gross per week (or $1,430 gross per fortnight). She agreed that she was earning more than what she initially stated.[49]
[49]Transcript 40-41. A comparison was also made with the current financial year - Transcript 42
57 Under re-examination, the plaintiff was asked to describe the difference between what she was like before the incident and after it occurred. She described the pain that she experienced beforehand as having changed to becoming more severe in the middle of her back, with occasional pain in her left leg. She wakes every morning with back pain and pain in her hip. She changed jobs to the non-manual job she is doing now to take the pressure off her lower back and shoulders. She has not been recommended any other treatment for the injury.[50]
[50]Transcript 43-45
Disposition
58 Earlier in these reasons I said that I am not satisfied that the pain and suffering consequences contended for by the plaintiff meet the statutory test of seriousness. I will now set out my pathway of reasoning in support of that disposition.
59 Firstly, there is little doubt in my mind that the plaintiff suffered from prior intermittent lower back problems of sufficient significance to resort to the treatment which I have summarised. Those lower back problems continued to trouble the plaintiff in the month of February 2017 and before the incident. That appears to be confirmed by what was noted on the Claim Form.
60 Secondly, the preponderance of the medical evidence is that the plaintiff demonstrated significant degenerative changes in her lower back at the time of the occurrence of the incident. I think the better assessment of that is contained in the opinion of Mr White, who described the plaintiff as having degenerative disease in her lower back which was aggravated by the incident. He did not conclude that the plaintiff suffered a discal injury consistent with the opinion of Mr Doig, and in that respect, Mr Doig is alone, because none of the other surgeons who examined the plaintiff consider that the appearances at L1-L2 are consistent with a discal injury resulting from the incident. I prefer the preponderant view of diagnosis over that of Mr Doig.
61 Thirdly, the factors which resulted in the plaintiff suffering the intermittent lower back problems in the past appear to be related to strenuous work and heavy lifting. It would appear that it was that sort of work setting which saw the plaintiff resort to treatment and the use of Panadol. It is noteworthy that the incident comprised strenuous work and heavy lifting. It would appear that the incident aggravated the pre-existing condition of the plaintiff’s lower back and probably produced more pain and incapacity.
62 Fourthly, the plaintiff’s resort to treatment following the incident was relatively short lived. The treatment she obtained from Dr Newton and Mr Saultry, for example, demonstrate that she required simple conservative treatment at a relatively low level of intensity in order to return to a point where she was able to return to alternative and suitable work within a few months following the incident. Her treatment bears some real consistency with the sort of treatment she obtained for her troublesome lower back prior to the occurrence of the incident.
63 Fifthly, the plaintiff has been able to work in alternative and suitable employment. She has been very well motivated, and indeed, so well motivated that she has taken extra work when it has been made available to her. Whilst I accept that the work she is now performing is absent strenuous work and heavy lifting, the fact that she is working nonetheless demonstrates that what effort is required for her to get to work, undertake a day’s work, and then return to her home and get on with her domestic routine, is a demonstration that she is functioning at a reasonable level.
64 Sixthly, all of the foregoing demonstrates that the plaintiff’s level of pain and the incapacity caused by it is at a relatively low level, and certainly at a tolerable level. Whilst I accept that the plaintiff suffers some interference with sleep and with domestic activities, gardening, sitting and driving, she does not say that she cannot engage in those activities. Furthermore, apart from describing the hours that she sleeps, she has not elaborated much on the nature and extent of the interference to allow me to gauge just how significant that interference is. For example to say that she suffers interference with gardening and cannot drive long distances, begs a number of questions. How much gardening did she do and how much does she do now? Did she drive long distances, and how often?
65 Lastly, when the plaintiff’s impairment consequences are judged by comparison with other cases in the range of possible impairments of a body function, then it is difficult to describe it as being “more than significant or marked”, and certainly not reaching the standard of being “at least very considerable”. I think the impairment consequences are mild, and perhaps approaching moderate.
Orders
66 For the foregoing reasons, I order that the plaintiff’s Originating Motion be dismissed with costs.
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