Moroney v Victorian WorkCover Authority
[2022] VCC 116
•15 February 2022
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02666
| ELEANOR MORONEY (aka MERCER) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 1 and 2 February 2022 (e-hearing) | |
DATE OF JUDGMENT: | 15 February 2022 | |
CASE MAY BE CITED AS: | Moroney v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 116 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – spinal impairment – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr A Macnab SC with Mr S Scully | MinterEllison |
HER HONOUR:
1By Originating Motion, leave was sought to bring proceedings for damages for pain and suffering pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) for injury suffered by the plaintiff in the course of her employment with Aldi Wonthaggi (“the employer”) in November 2018 (“the period of employment”).
2The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” for a lumbar impairment. An application pursuant to clause (c) was withdrawn after the plaintiff’s evidence.[1]
[1] Transcript (“T”) 97
3Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
4The impairment of body function must be permanent, in the sense it is likely to continue for the foreseeable future.
5Under the WIRC Act, the impairment must have consequences in relation to pain and suffering which are “when judged by comparison with other cases, in the range of possible impairments ... fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.[2]
[2]Section 325(2)(c) of the WIRC Act
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7The plaintiff bears an overall burden of proof upon the balance of probabilities. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd and Ors v Podolak[3] and Stijepic v One Force Group Aust Pty Ltd[4] in reaching my conclusions.
[3](2005) 14 VR 622
[4] [2009] VSCA 181
8The plaintiff swore two affidavits and was cross-examined on Zoom. In addition, she relied on an affidavit sworn by her former husband, Steven Mercer, on 5 January 2022. The parties also relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
9The defendant’s case was the injury that just did not meet the threshold, there were issues of permanence and “a disentangling problem.”[5]
[5]T98
10The plaintiff’s case was that pre injury, she was an active twenty-five-year-old who was doing well in her job and had been promoted. Her complaint of pain since that time could be unreservedly accepted.[6] While consequences by themselves might not be “serious”, looked at globally, they met the definition of “serious”.[7]
[6]T104
[7]Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; T105
The Plaintiff’s evidence
11The plaintiff is presently aged twenty-eight, having been born in March 1993. Her daughter, Zoe, is one.
12The plaintiff left school after Year 11. She then worked as an operations administrator while completing a Diploma in Special Effects Make-Up in 2013. In 2014 and 2015, she was a cleaner and trolley collector at Coles.
13In January 2016, she started work with the employer as a store assistant at Aldi in Wonthaggi (“the supermarket”). Her contract was for 20 hours a week, but with overtime she often worked up to 40 hours. Her contract was later increased to 25 hours a week.
14In March 2018, she was promoted to deputy manager of the supermarket, and in that role, spent less time on the registers, and more time organising, lifting, and moving stock. She was ordering stock, giving directions to staff, counting the money in the safe and closing the store and “things like that”.[8]
[8] T44
15Prior to commencing work with the employer, she believed she was in good health and did not recall any problems with her back.
16Between the ages of fifteen and twenty, she suffered from anxiety and depression, and when about sixteen, was prescribed medication for her mental health. She was admitted to hospital for one night during that time. In 2016, she was again prescribed anti-depressants for about six months before her mood lifted and she came off the medication.[9]
[9]T16,T23
17She first began suffering back pain at work on 27 October 2018, having worked a long 13‑hour physically demanding shift. The store’s chiller was broken, with the heavy steel door having come off its tracks. The truck delivering refrigerated stock was unable to load it directly into the chiller, so she had to run the stock straight into the store on her own and could not leave the store until that was complete. She used an electric forklift to move the stock, but also had to lift some of the crates, weighing up to about 15 kilograms, overhead manually. She spent the entire shift lifting and manoeuvring the heavy stock. By the end of the day, her lower back was sore.
18She next worked two days later when she was still suffering from weakness and lower back pain, which she reported to the deputy manager, and she was put on registers to rest. She told her manager about her back pain and was advised her manager would talk to the area manager to arrange for her to have some early intervention physiotherapy.
19When the plaintiff arrived at work on 1 November 2018, the chiller door was still not working, and her manager directed her to use the forklift to lift and lower the door so they could keep using the chiller; however, when she tried to lower the door with the forklift, it became jammed. The manager told her to help her to get the door closed again, but when the plaintiff pulled the handle it would not budge. The manager then asked another worker to pull the handle. The manager then told the plaintiff to help lift the door above their heads from the inside as the other worker tried to pull it into position from the outside.
20In the course of holding the steel door over her head as the manager struck the front part of it with a hammer trying to push it into place, the plaintiff felt pain in her back and was shaking. She told the manager she could not hold the door up any more. They gave up trying to fix it.
21The plaintiff became upset and was angry that the manager had asked her to perform such a physically demanding job when she knew of her back pain and was trying to organise treatment for it.
22Although upset, the plaintiff managed to complete her shift on the register, but over the next few days, her pain worsened, and she saw a general practitioner in Cowes.[10] She did not have her own general practitioner at the time.[11]
[10] Dr Natalia at Cowes on 5 November 2018 – Dr Gilbert’s report dated 7 March 2019
[11]T12
23On 16 November 2018, the plaintiff attended the employer’s doctor, Dr Toohill at Leongatha, who recommended massage. She also attended a physiotherapist suggested by the employer.[12] Two weeks later, the plaintiff began physiotherapy at Gippsland Physiotherapy Group, and also started taking Panadeine Forte.
[12]T14
24In addition to lower back pain, she began experiencing pain in her bottom, hips, pelvis and both legs. Before injuring her back, she had previously suffered from some urinary incontinence, which became more frequent after the injury.
25Following the injury, the plaintiff had three days off work when the pain was really bad, but she otherwise worked normal hours on restricted duties – no heavy lifting and doing mainly register work.[13]
[13]T14
26After a 13‑hour shift on 13 December 2018,[14] she lost feeling in her right leg, and walking became very difficult. At that stage, her symptoms were getting progressively worse, and she was not having time to rest or have treatment.[15]
[14] Working at Cowes Aldi
[15]T80
27In January 2019, at the employer’s suggestion, she started to see Dr Hugh Chisholm at Wonthaggi.[16] She had a lumbar MRI scan, which she understood showed disc desiccation at L4‑5 with mild disc protrusion and an annular tear.
[16]T15
28On 10 February 2019, pain from the injury and stress from her workplace became too much, and she tried to take her life.
29She tried to keep working, but the pain persisted. Before he saw Dr Gilbert for the insurer, there was no suggestion from any doctor that she stop work.[17] After being put on light duties, she had to stop work in March 2019 because of her injuries and mental health. Her WorkCover claim was accepted.
[17]T81
30She became depressed by her ongoing pain and restrictions, and in March 2019, began treatment with psychologist, Charles Huson, whom she saw three or four times.[18] She later saw psychologist, Jason Crestani, a few times.[19]
[18]T19
[19]T27
31In March 2019, she consulted orthopaedic surgeon, Mr Michael Johnson, who did not recommend surgery and referred her for pain management to Dr Bruce Shirazi. When seen by Mr Johnson, the tolerances she reported were on the basis of her limitations “without significant pain”.[20] She started hydrotherapy that month.
[20]T21
32In June 2019, she consulted Dr Shirazi at St John of God Rehabilitation Hospital, who recommended that she continue physiotherapy and undertake strengthening exercises at a gym. She also started Pilates.
33In June 2019, the employer offered a return to work plan, supported by Dr Chisholm; however, the plaintiff did not return to work as she did not feel up to it emotionally.[21] She was not happy that Dr Chisholm was trying to get her back to work “based on her injury and how [she] was at the time”.[22]
[21]T25
[22]T26
34In July 2019, she started seeing general practitioners at the Wonthaggi Medical Group.
35In August 2019, she began a return to work, with 10 hours per week on light duties, mainly on the registers, with lifting restricted.
36She was married on 17 August 2019, having just returned to work. Her back had improved to the point where she was able to return to light duties gradually.
37She was married in a park close to her home. She agreed that on her wedding day, she was able to carry two chairs at the same time as shown on the surveillance film.[23] She spent five weeks on her honeymoon overseas travelling to a number of European cities, visiting a range of tourist destinations. She was able to wheel her suitcase and lift it at times.[24]
[23]T72
[24]T32
38Before going on her honeymoon, the plaintiff saw her general practitioner and requested sleeping tablets and anti inflammatories.[25] She agreed she next asked her doctor for pain relief medication in May 2021.[26]
[25]T36
[26]T37
39The plaintiff returned from her honeymoon in mid-September. Over the following months, she gradually increased her work hours, and increased up to about 25 hours per week by June 2020. As time went on, her restrictions were not as strict. She could sit for a bit longer and was allowed to lift up to 5 kilograms.[27]
[27]T38
40It was a struggle, but she kept on working, despite complaints to her employer, as she needed to make a living and just wanted things to go back to normal.[28]
[28]T84
41However, her low back pain persisted and, scanning items repetitively on the registers, the pain started extending up to her mid and upper back, especially under her right shoulder blade.[29] On 12 May 2020, she had a lumbar MRI scan which she understood showed a radial tear at L4‑5 and damage to T8-9.
[29]T38 - January 2020 Dr Maxfield - working 4 x 4 hours shifts
42She became extremely depressed and frustrated by ongoing pain and restrictions, and in June 2020, consulted psychiatrist, Dr Mina Tolat at the Pine Lodge Clinic. Around that time, she found out she was pregnant. She attended Wonthaggi Hospital for management of her pregnancy, where she came under the care of psychologist, Viviane Lebnan, who referred her to psychiatrist, Dr Cathryn Alexander.[30]
[30]T40
43As at September 2020, the plaintiff was working 25 hours per week and still receiving certificates for light duties.[31]
[31]T42
44Post injury, she worked doing deputy manager duties maybe once or twice if there was nobody else to do that role.[32]
[32]T44
45On 6 October 2020, the plaintiff’s job with the employer was terminated. She was accused of submitting false WorkCover certificates, and it was put to her that her presentation in surveillance footage was inconsistent with her stated restrictions. She strongly denied this allegation, and, having viewed the surveillance, maintained that her presentation was in keeping with the advice she had received from her specialists, general practitioners, and physiotherapist, Mitchell Wheeler.
46Her treaters had advised her to undertake light exercise and continue with daily activities, carefully and gradually, and she understood she should try to live as normal a life as possible to regain strength in her spine, but she needed to restrict repetitive bending and lifting at work to prevent re-aggravation and pain.
47Although she strongly disagreed with the grounds of her dismissal, she did not take legal action as she was extremely upset about the matter and fell into a depressed state after the employer’s treatment, and she understood that the cost of challenging the termination would be prohibitive. She did, however, try to fight it and received a letter from her physiotherapist. At the time of the termination, her mental health did not affect her ability to work 25 hours a week.[33]
[33]T44
48As at February 2021,[34] she continued to suffer from daily pain in the mid to lower back, the level and frequency of which varied depending on her activities.
[34] First affidavit
49When she stood for longer than about 15 minutes, she started shifting her weight from one foot to another to relieve pain and stiffness in her back. The pain worsened after she had been sitting for half an hour or walking for about 20 minutes.
50Undertaking daily tasks, she developed symptoms down her legs, pain into her buttocks, and pain under her right shoulder blade.
51She found pregnancy to be particularly difficult and uncomfortable because of her back pain. She did not cope with the back pain during childbirth, and an epidural and other medical assistance was required to deliver Zoe safely.
52Since injuring her back, she had often felt depressed, anxious, and stressed, and lacked energy, and was frequently tearful. She had experienced suicidal thoughts and considered self-harm.
53Prior to her back injury, she had hoped to remain with the employer long-term and to move up to a full-time training store manager role; however, post-injury, she was never able to return to her full pre‑injury duties. Even when on light duties, standing at the registers scanning items caused her back pain and symptoms to worsen.
54As at February 2021, she wanted to return to work when Zoe was between six and twelve months old but was worried about what she would be able to do, as most of her experience was in supermarkets. She was worried that it would be harder for her to find suitable work because of her back injury and its limitations.
55Since injuring her back, she had found housework more difficult, and had to rest doing lighter tasks, and her husband did more at home because of her restrictions. She no longer mowed the lawn or changed the sheets, as these activities aggravated her back pain. Her inability to do these tasks left her feeling less independent.
56She still did light shopping and sometimes walked the dog. Her doctors and physiotherapist had told her it was important to keep moving and do what she could to strengthen her back, but she had to be careful, because if she pushed herself too hard, she paid for it later.
57Activities such as “date nights” involving ten-pin bowling and dinner or other activities including hiking and going to concerts had not been open to her since injuring her back. She had tried lawn bowls once, but could not last long. Leaning down was too painful.
58Regular trips around regional Victoria and travelling overseas, and visits every few months to somewhere new to explore and go hiking, stopped after she hurt her back. Car trips to doctors’ appointments aggravated her back.
59Boating activities were restricted. Other than spreading her Pa’s ashes in November 2018, she had stopped going out in their boat, because getting in and out of the boat and maintaining it aggravated her back pain.
60She was restricted in her ability to play outdoors with her stepson, niece and nephews.
61She was worried about how her back injury would affect her ability to care for her newborn baby.
62She visited her family, who lived in Melton, about two-and-a-half hours’ drive from her home, much less than before her injury, as it was too painful to drive.
63Her sexual relationship with her husband had been affected by her injury. They were not physically intimate for over a year after the incident and were less physically intimate than they used to be because of her pain.
64She had difficulty falling asleep and getting comfortable, and usually woke a few times during the night with back pain, and often had nightmares about her work and back injury. Her back was particularly bad first thing in the morning, and she felt extremely stiff when she got out of bed and needed to stretch.
65She had previously been prescribed Panadeine Forte and Lyrica for her back pain, but Lyrica caused side effects. Dr Chisholm referred her for a cortisone injection at Baw Baw Radiology, but she was scared of having the procedure while pregnant.
66Since falling pregnant, she had been limited in what she could take for pain, and over-the-counter medications did not give her significant relief. She regularly used heat packs and applied Deep Heat to her back a few times a week for short-term relief. Since September 2019, she had taken the anti-depressant, Loxalate, at a daily dosage of 20 milligrams.
67As at February 2021, she continued to consult general practitioners at Wonthaggi Medical Group and had physiotherapy and Pilates with Mitchell Wheeler at Gippsland Physio Group weekly. She regularly consulted psychologist, Ms Lebnan, at the Latrobe Regional Hospital and psychiatrist, Dr Cathryn Alexander, as well as the doctors at the Wonthaggi Hospital in relation to her pregnancy.
68The plaintiff agreed that in May 2021, she told her general practitioner about knee pain, and she was prescribed prednisolone. Her knees came good. She also had an issue with her right ankle. A month later, she requested testing for rheumatoid arthritis. Her joint issues at that time also included her back, for which she was prescribed Celebrex.[35]
[35]T47
69The plaintiff swore a further affidavit on 15 December 2021.
70She continues to see her general practitioner, Dr Candy-Watson, at Wonthaggi, about every three weeks. She takes Voltaren and Celecoxib – depending on the level of pain. She is presently taking two Voltaren twice a day. She has had a flare up for the last month.[36]
[36] T74
71She has physiotherapy weekly, and fortnightly supervised Pilates with her physiotherapist. She had been referred to a psychologist, Ms Gallagher, pursuant to a mental health plan, with her first appointment on 31 January 2022.
72She walks regularly and does home-based exercises every second day for about 20 minutes. She uses heat packs a few times a week, and also rubs Deep Heat into her back a few times a week.
73Her pain level varies, and it increases with activity. About two or three times a week, the pain is really bad, and lasts for hours or up to a day. The pain is sharp, aching and stabbing, and when it is bad, it travels into her hips.
74If she sits for too long, she suffers increased pain, and has a lot of pain when lying in bed. She still has difficulty getting to sleep because of pain and thoughts racing through her head, and she often wakes during the night with pain. She agreed she had problems with sleep after Zoe’s birth.[37]
[37]T62
75After she sits for a period of time, she needs to move around. Sitting is probably her biggest issue. She can sit for about an hour-and-a-half, but she is still in pain.[38] Standing still in one position is painful, and she needs to sway and move to manage her back pain. After walking for about half-an-hour, she develops pain. She is able to bend, but any repetitive bending causes an increase in her pain.
[38]T59 - she was filmed sitting for an hour and 22 minutes
76She struggles to lift heavy weights or any weights below waist level, and if she picks up Zoe, who is now ten months, she finds it painful.
77The plaintiff separated from Steven in March 2021. He visits Zoe about twice a week and helps the plaintiff with housework and other household tasks, including big shops. She now pays someone to mow the lawns for her.
78She paces herself when doing the housework, as she struggles with tasks such as vacuuming, mopping and cleaning the bathroom.[39] She has difficulty getting the clothes out of the washing machine and unloading clothes a bit at a time.
[39]T76
79She had difficulty caring for Zoe as a baby and has problems lifting her as she becomes bigger. She struggles to use the change table because of the constant bending, and generally changes Zoe on the floor. Bathing her is difficult, as is getting her in and out of the crib. Sometimes bending over just to put in her dummy causes pain. It has been a struggle, particularly as she is now on her own.
80Psychologically she continues to struggle. Particularly if her back gets bad, she feels depressed.
81She has a flare-up of back pain if she does too much or does not get enough rest. She can be bedridden with pain, maybe up to once a fortnight. Sometimes she does not have the chance to rest, and her pain increases. A bad flare-up can last two days or longer. Her back pain is severe and travels down into her hips and sometimes into the front of her pelvis.
82She is presently doing a preliminary course to do a Bachelor in Education for secondary school. She is now doing her second subject through Curtin University and the Open University. She needs to complete four subjects to get into the Bachelor Degree. At times, she struggles with sitting for prolonged periods of time on the computer. She spends about 10 hours per week studying.[40]
[40]T62
83Once she has finished her present subject, she has 25 more to complete. She had to get an extension to complete her first assignment.[41]
[41]T79
84Her thoracic pain radiates to her right shoulder-blade, making it painful to study, and she sometimes experiences headaches and neck pain.
85The plaintiff has had pelvic pain “in the centre” since she had Zoe, but since her back injury, she experiences pain in her hips and the sides of her pelvis – hence she had a pelvic scan.[42]
[42] T64
86Her neck may have been hurting when she saw her general practitioner on 4 January this year, but it is not hurting now. Her back, not her neck, gives her problems lifting Zoe.[43] Neck pain was “coming and going” and she also had some headaches.[44] She had experienced an electric shock type pain and weakness in her left hand. She experienced arm pain for a few days. She had an MRI scan of her brain and neck on 28 January 2022 and expected to find out the results the following day.[45]
[43]T70
[44]T66
[45]T68
87She also had had some chest pain on and off since April 2021.[46]
[46] T68
88She denied these other health issues would impact on her ability to do a range of recreational activities.[47]
[47]T76
89She believes her injury contributed to her marriage breakdown. Their intimacy was affected, and having no income put financial stress on them. They had just built a house. She became depressed and was in pain. Steven was upset, and her injury dominated their lives.
90She struggles with driving, and if she drives more than an hour, she needs to stop and rest to relieve the pressure on her back.
91She is open to considering sports medicine and or pain referral. She is “in the middle” of trying to organise this now. She is keen to find treatment to improve her symptoms, with Mr Johnson having said if there is no improvement in three years, to come back to him. She was due to see her general practitioner the following day.[48]
[48]T51
92She thought the treatment options suggested by Professor Bittar had been discussed with her. She would be open to having diagnostic blocks, seeing a pain specialist or having surgery if that was recommended. Her focus is being fit to care for Zoe.[49]
[49]T77
93She disagreed there was no obvious sign of discomfort when she was filmed carrying out a range of activities. She thought in a few films, she might have been holding her back or had her hand on her hips. She is able to shop independently and push a trolley and take the shopping to the car and load and unload it herself.[50]
[50]T72
94She helped home school Steven’s children who were in Year 7 and 10 during the pandemic.[51]
[51]T73
95Steve moved back to live with her before Christmas to help. They had not had an “official conversation” as to how long he would stay.[52]
[52]T74
Lay evidence
96The plaintiff’s former husband, Steven Mercer, swore an affidavit on 5 January 2022. He has known her for six to seven years, having met at work when she was working at Coles, before she left and commenced with the employer.
97Prior to her injury, she was a very active and energetic person, and he used to say he could not keep up with her. She enjoyed working and was very ambitious. She was fit and healthy and was an optimistic type of person.
98They married in August 2019. He believed that her injury contributed to the breakdown of their marriage in March 2021.
99As a result of her injury, he had to take on a lot more at home, and he effectively took over all the chores, which he was happy to do. When her back was really bad, he helped her dress. On multiple occasions, he had to take time off work to drive her to appointments, as she could not sit up in the car.
100Their intimate relations were affected as a result of her injury.
101In 2019, he witnessed her try to commit suicide because she could not handle the pain any more, and luckily he was there to intervene.
102He presently sees her a few times a week. He looks after Zoe on his two days off and visits the plaintiff on other days to help her and give her a break. He used to mow the lawn, but she now pays someone else to do it. He also does some housework so she can have a rest, and his mother helps from time to time.
103He knows her well, and observes she is in pain, as shown by her demeanour. She groans and moans when she gets up from a sitting position, and sometimes when he goes over to her house, he finds her lying down, which she has told him she needs to do when her pain is especially bad. She tells him her pain increases when carrying Zoe, and she complains to him of pain in her back, referred into her legs, hips, pelvis and right shoulder, and often he has been her in tears and not able to get out of bed.
104Her mood is up and down. She has problems with prolonged posture. She has difficulty caring for Zoe.
105It seems to him she is always in pain. If they go out, they cannot do so for too long. If they go out for a whole day, she comes home “wrecked”, which is so different from how she was pre‑injury. Not long before she was hurt they went to the United States for five weeks, and she was like an “Energizer Bunny” and did not stop the whole time.
106The plaintiff is a completely different person as a result of her injury. She has told him she is worried about the future and if her back will deteriorate. What she is capable of now is very far from what she was capable of before her injury.
Treaters
Mr Mitchell Wheeler, physiotherapist
107The plaintiff has had physiotherapy at Gippsland Physiotherapy Group since November 2018.
108Mr Wheeler provided a letter on 10 September 2020 in response to allegations against the legitimacy of the plaintiff’s WorkCover claim, commenting on photographs taken from surveillance in March, July and August 2019, and June and July 2020.
109He thought that the plaintiff’s behaviour aligned accurately with her corresponding certificate of capacity documents as well as the medical advice she had been given. He supported the legitimacy of her claim.
110In his May 2020 report, he noted that the plaintiff experienced fortnightly moderate to severe episodes of low back pain and occasional somatic referral to her thighs. In October 2019, she had reported insidious onset right-sided thoracic pain which she believed had been caused by her work on registers.
111He then thought the plaintiff should return to work on no more than 5-hour shifts with a range of restrictions and the need for breaks.
112In his October 2021 report, he noted that from early on, the plaintiff’s recovery has been slow, stagnant and poor, and that her future recovery is also likely to be poor.
Dr Hugh Chisholm, Leongatha Healthcare
113The plaintiff was first seen at Leongatha by Dr Toohill on 16 November 2018 complaining of back pain from her duties wait the supermarket. He gave her a certificate for four weeks with modified duties and prescribed pain relief.
114Dr Chisholm first saw the plaintiff on 16 January 2019 when she complained of persisting low back pain and bladder problems. He last saw her in April 2019.
115He referred the plaintiff to Mr Johnson and also discussed her condition with Dr Gilbert, following which he certified her unfit for work for a week. He referred the plaintiff to psychologist, Mr Huson, in March.
116He suggested the plaintiff have an epidural under CT, but she had declined to do so. There was some dispute about WorkCover paying for a pain-management program at Clayton, and the plaintiff had no money, so they did not pursue it any further. Because of her ongoing pain and poor emotional health, he continued to give her off-work certificates.
117Since then, with rest from work, the plaintiff’s back had improved a little, and the pain was mostly in the lower back with less radiation down her leg. Her activity remained restricted. She was able to walk and was trying to walk 3 kilometres a day. She was still very emotionally fragile and upset and frustrated about the injury (the WorkCover process and her future). He kept her off work after the conciliation as she felt she could not cope with the return to work under the current circumstances.
118In summary, Dr Chisholm thought the plaintiff had a work-related lumbar disc injury at L4‑5 which had not responded as quickly as expected. Her recovery had been complicated and delayed in part from her anxiety and depression and her frustration as to her current situation and lack of hope for the future.
Dr Lucy Candy-Watson, Wonthaggi
119The plaintiff’s current general practitioner, Dr Lucy Candy-Watson, has treated her since 26 July 2021.
120In her November 2021 report, she noted they had addressed a few issues including chronic back pain related to the work injury. The diagnosis was disc injury/herniation on MRI. There were small disc protrusions throughout the thoracic spine.
121Current treatment consisted of regular physiotherapy, regular walking, and PRN anti-inflammatory medication.
122They were currently trying to organise psychology in the setting of other medical conditions and stressors, but also to help the plaintiff manage chronic pain. She had also encouraged the plaintiff to consider recommencing Pilates, ideally through her physiotherapist, and to consider seeing a sports physician and/or pain specialist.
123She hoped the plaintiff’s injuries would gradually improve with time if she continued with regular physiotherapy, Pilates, and other exercise, and considered seeing a pain specialist or sports medicine physician. Current treatment was appropriate.
Mr Michael Johnson, orthopaedic surgeon
124The plaintiff was seen by Mr Johnson in March 2019.
125She then complained of continuous low back pain at variable intensity that radiated into both anterior thighs. Symptoms were worse with prolonged sitting, standing, and walking, and were relieved by lying down.
126She reported the pain was worse than two months ago, and her walking and driving was then limited to 20 minutes and sitting to 10 minutes. Her sleep was interrupted, and she was unable to lift.
127She had been troubled with depression in the past but had not required anti-depressants after 2016. She was also having some trouble with urinary urgency. She was then taking between one and six Panadeine Forte per day for pain relief.
128On examination, the plaintiff was a pleasant young lady with no deformity. The range of thoracolumbar movement was 30 per cent of normal. Straight leg raising was full, and there was no neurological abnormality.
129The recent MRI scan demonstrated a non-compressive L4‑5 disc degeneration with a posterior annular tear.
130He told her that it would seem likely that her symptoms were related to her L4‑5 pathology. He explained that that is not a situation that reliably responds to surgery, and conservative management would be best if possible. He reassured her that in the majority of patients the symptoms generally improve, although recovery can be prolonged. He explained also that patients who have it tend to get better, and he would encourage her to do some form of regular light exercise.
131He noted she was, however, clearly struggling with her problem, and he suggested that she see Dr Bruce Shirazi, pain management physician.
Mr Charles Huson, psychologist
132The plaintiff first saw psychologist, Mr Charles Huson, in March 2019.
133In his report of that date, he noted he had assessed her anxiety as extreme. She had severe depression, her pain experience was extreme, and her pain had had a severe impact.
Dr Minashi Tolat, psychiatrist
134Dr Tolat reported in August 2020, having first seen the plaintiff in June 2020 on referral from Wonthaggi Medical Group.
Medico-legal
Dr Barry Gilbert, occupational physician
135Dr Gilbert examined the plaintiff on behalf of the insurer in March 2019.
136He noted that due to the plaintiff’s presentation and clinical condition, he had referred her back to Dr Chisholm at Leongatha, who arranged an urgent appointment to see her on 8 March 2019.
137Due to back pain and car travel, the plaintiff asked to lie down whilst giving her history.
138Following the incident at work on 1 November 2018, Dr Gilbert noted the plaintiff was initially assessed by her normal general practitioner, Dr Natalia, at Cowes on 5 November 2018 and was certified unfit for work for one day, then to return to work on lighter duties.
139She then saw Dr Toohill, general practitioner, at Leongatha, on 16 November 2018, who gave a certificate of capacity to 14 December 2018, with a diagnosis of low back pain, constant for about three weeks, lumbar muscle strain. Lifting and bending restrictions were imposed, and NSAID, analgesia, massage and heat were recommended. Physiotherapy commenced on 28 November 2018.
140By 14 December 2018, the pain was called “acute”, and the plaintiff was certified unfit for work to 16 December 2018. Weight restriction was reduced from 6 to 5 kilograms, and the plaintiff was not to bend, squat or kneel. By 17 December 2018, her sitting/standing restriction was reduced to 15 minutes, and it was estimated that she could return to pre-injury duties in three weeks.
141A return to work plan dated 21 December 2018 nominated the date of injury as 27 October 2018, with a diagnosis of acute lower back pain.
142The Claim Form dated 14 February 2019 recorded that the plaintiff had a degenerated L4‑5 disc, disc bulge, bladder incontinence, and leg pain. It was also noted that “initially thought was wear and tear, then got worse after lifting chiller door”.
143On examination, the plaintiff complained of ongoing pain in the low back which was constant, variably radiating towards her pelvic area and the front of both thighs. She could not sit in one position for more than 15 to 30 minutes without exacerbating the pain, but could walk, but tended to bend forward as she did so. She had become distressed and depressed about her condition and was very worried about its impact on her life. She had become so distressed that she had recently tried to self-harm with medication but was stopped by her partner.
144He thought the plaintiff was a pleasant and cooperative person, but emotionally labile at times through a long interview. She chose to lie on the couch whilst recounting her history. She did not appear to be exaggerating her symptoms, nor was there any apparent abnormal illness behaviour. She presented well and communicated in a coherent manner.
145All active lumbosacral movements were restricted by muscle spasm and guarding. Straight leg raising was restricted.
146In his view, the plaintiff had what is best described as mechanical lumbar back pain without radiculopathy. He thought the most likely explanation for her bladder dysfunction was the regular and ongoing use of high-dose codeine.
147He would be most interested in Mr Johnson’s opinion, but he thought the plaintiff’s underlying pathology was relatively benign and should respond to active management. There was no significant disc injury.
148The initial mechanism of injury as described would suggest non-specific musculoskeletal strain of the lumbar spine with a brief pre-morbid period of backache, followed by a more severe pain when lifting at work on 1 November 2018.
149The plaintiff’s condition had not been helped by the duration of apparent lack of improvement, subsequent urinary symptoms, and events that led to delays in her initial physiotherapy and then specialist opinion when it was required. That had had a considerable psychosocial impact on her.
150This was a new injury that had an initial insidious onset, and corresponded to a period of increased manual handling, then exacerbated by the physical handling of the chiller door. She subsequently developed secondary mood disorder and urinary symptoms that may well be related to current medication intake.
151Given her presentation, her secondary but very important psychological issues and lack of physical progress, he thought that until the situation was dealt with, she did not have a current work capacity. With a change in her medical management, he would expect her incapacity to be relatively short-lived.
152He thought a physical rehabilitation program was required and Mr Johnson had recommended the plaintiff see Dr Bruce Shirazi.
153In addition, he had urgently referred the plaintiff to Dr Chisholm to certify a brief period of total work incapacity, and to assist in developing the physical rehabilitation locally, and to initiate suitable mental health care.
154He would be confident that with strong reassurance that she does not evidence of any serious lumbar spine pathology, and change to her therapeutic program, the plaintiff may improve quite rapidly.
155The radiological descriptions on MRI sounded terribly important or even threatening to some patients, but in reality the MRI changes are common, often seen, and do not correlate well with the physical findings.
156The plaintiff may benefit from some brief clinical psychological intervention.
Dr Gary Davison, occupational physician
157Dr Davison examined the plaintiff on behalf of the insurer in October 2020. At that stage, she was late in the second trimester of her first pregnancy.
158The plaintiff then reported she experienced centrally located lower back pain which extended into both buttocks, and she had also been experiencing some pain in the mid-thoracic region.
159The plaintiff was then having weekly physiotherapy and Pilates. She did not take any medication but had some assistance with the use of a heated wheat bag.
160He thought the plaintiff was a pleasant and cooperative historian who gave a good account of herself, and no pain or illness behaviours were observed. The range of active movement of the thoracolumbar spine was globally restricted to about two-thirds of the expected normal range.
161He thought it reasonable to accept that the plaintiff’s ongoing incapacity was materially contributed to by the accepted injury. Symptoms had persisted since the day of injury, and there were no pre-existing low back symptoms.
162There was no reason why the plaintiff could not participate in occupational rehabilitation services, provided that the recommended physical restrictions were adhered to, namely avoiding prolonged sitting or standing, frequent bending or twisting, manual handling greater than 4.5 kilograms or weight between mid-chest and mid-thigh height.
Mr Roy Carey, orthopaedic surgeon
163Mr Carey examined the plaintiff on behalf of the insurer in May 2020 for the purposes of an AMA assessment.
164On examination, he noted the plaintiff seemed a pleasant and straightforward witness to her problem.
165A lumbar spine MRI scan of January 2019 showed normality of the discs at all levels apart from L4‑5, where there was long-term loss of height and signal, but a small posterior protrusion/extrusion passing behind the upper L5 body. This effaced the cauda, but there was no other neurocompression.
166Following a thoracolumbar MRI scan on 12 May 2020, the images confirmed the above findings, but there seemed to be now a radial tear evident at L4‑5 which he did not see previously. This extrusion was no longer seen.
167Mr Carey thought the plaintiff sustained low back pain and referred discomfort into both lower limbs as a result of the work injury. She had substantially but not completely recovered and had ongoing low back and now thoracic (since cash register work in June 2019) discomfort, but with intermittent lower limb symptoms in the absence of radiculopathy or myelopathy, due to aggravation of a pre-existing largely asymptomatic L4‑5 disc degeneration.
168The prognosis was for continued discomfort into the foreseeable future.
The Plaintiff’s medico-legal evidence
Professor Richard Bittar, neurosurgeon
169Professor Bittar examined the plaintiff at the request of her solicitors in October 2021.
170The plaintiff then complained of intermittent lower back pain which tended to occur three to four times a day, lasting up to two hours on each occasion. It varied in character between sharp and aching, and was bilateral, with an average severity of 6 out of 10 and a maximum of 9.
171The plaintiff was currently taking daily paracetamol and nonsteroidal anti-inflammatory medications and having physiotherapy twice a week with benefit.
172She socialised moderately, and her recreational activities were moderately impacted, no longer playing sport and having difficulty attending concerts and theme parks, no longer going to the gym, and having difficulty playing with her daughter. Her sleep was moderately impacted, as were her domestic activities, and overall, her quality of life was severely diminished.
173On examination, the plaintiff had mild restriction of lumbar flexion and extension, with the latter being more painful. She had bilateral lumbar paravertebral tenderness in the lower lumbar region, more right-sided. Neurological examination was normal, and there was no evidence of abnormal illness behaviour.
174He thought she presented with L4‑5 intervertebral disc injury and aggravation of lumbar spondylosis.
175The repetitive and heavy physical activities undertaken in October 2018 had been a significant contributing factor, and her employment remained a significant contributing factor to her lumbar spine condition.
176The plaintiff should be reviewed by a qualified pain specialist and be considered for a series of diagnostic blocks to determine the source of her pain. If they offered a significant benefit, she may be a candidate for radiofrequency denervations. If this was not the case, surgical intervention could be considered, and the treatment options in that situation would include spinal cord stimulation, an L4‑5 anterior lumbar interbody fusion, and an L4‑5 disc arthroplasty. Otherwise, she should continue with her current treatment regime.
177The plaintiff had been significantly symptomatic for three years and had developed a significant chronic pain condition. He recommended she be assessed by a pain specialist to determine the impact of her chronic pain on her long-term outcome and work capacity.
178He thought she was permanently incapacitated for full pre-injury duties, and had, in theory, a physical capacity to do light work, and could probably work three or four days a week in a sedentary role where she was able to change postures frequently and avoid prolonged sitting or standing as well as bending, twisting, or lifting more than light objects. He recommended an assessment by an occupational physician.
179He reviewed surveillance material of the plaintiff in 2020, which showed her undertaking fairly sedentary activity, including walking into, around, and out of various shops, carrying a box which appeared to be filled with light objects, and doing some shopping in a supermarket. There was nothing in the video material that was inconsistent with the symptoms she complained of.
180There was an organic basis for her condition. She most likely injured the L4‑5 intervertebral disc, and some of her pain may be facet joint related. She developed a chronic pain condition, the organic basis of which would be best commented on by a qualified pain specialist.
181The restrictions imposed by her back injury are likely to be permanent. Without surgical intervention, he would consider her condition had substantially stabilised, in that no significant improvement could be expected. In his opinion, she did not have the capacity to perform her pre-injury duties due to her back injury only.
Dr Richard Sullivan, pain specialist
182The plaintiff was examined by Dr Sullivan via Telehealth in January 2022.
183The plaintiff then reported constant low back pain which had increased in severity progressively over the previous three months.
184He diagnosed a post-traumatic chronic pain condition presenting as chronic lower back pain and chronic thoracic pain. The plaintiff had functional limitations associated with that which were likely to be permanent. In addition, she had a secondary psychological injury consistent with precipitation of Chronic Affective Disorder with features of Major Depression and Generalised Anxiety.
185He thought the plaintiff could not return to her pre-injury employment as a supermarket worker or deputy manager as a consequence of her work-related injuries.
186His diagnosis was aggravation of lumbar spondylosis, aggravation of thoracic spondylosis, L4‑5 disc injury, post-traumatic chronic pain condition with hallmark features of central sensitisation and precipitation of Chronic Affective Disorder as a secondary injury. There was a clear organic basis to the condition.
187The plaintiff’s back injury is a direct result of her work with the employer. She has significant functional limitations, including limitations pertaining to walking, standing, driving, lifting and carrying, and also her ability to engage in a range of social, domestic and recreational pursuits on a permanent basis.
188He believed the plaintiff’s condition had substantially stabilised and did not believe there was likely to be substantial improvement into the foreseeable future.
189He thought she should have access to an appropriately resourced chronic pain management unit. She should be seeing a psychiatrist regularly for management of her substantial mood disturbance that had developed secondary to her work-related injury. She should be considered for appropriate interventional procedures to assist with her pain management and have access to supports to help her manage as a solo mother.
The Defendant’s medical evidence
Clinical notes of Wonthaggi Medical Group
190The notes from 6 November 2015 were tendered.
191In his certificate of capacity following an examination on 27 June 2019, Dr Chisholm recorded:
“Back pain has improved but ongoing mental health issues with anxiety and depression.
Wants to meet with lawyer before returning to work. She is currently away.”
192He thought the plaintiff would need some ongoing physiotherapy and a rehabilitation exercise program. The clinical diagnosis was:
“Lumbar disc degeneration with low back pain.
MRI shows some disc dehydration and desiccation at L4‑L5.”
193He certified the plaintiff had no capacity for employment from 1 July 2019 to 5 July 2019. He noted she could sit with modifications, squat, kneel, reach above shoulder height and lift.
194On 23 September 2020, Dr Chisholm certified 5-hour’ shifts with a lifting limit of 5 kilograms, register – one-hour sessions, and no repetitive lifting or bending.
The Defendant’s medico-legal evidence
Dr Clayton Thomas, rehabilitation physician
195Dr Thomas examined the plaintiff via Zoom on 17 November 2020.
196He thought she had non-specific backache, was able to perform pre-injury work hours, and had the capacity for suitable employment. She was able to return to modified/alternate duties and pre-injury hours up until being made redundant.
197In terms of suitable employment, the plaintiff had worked in administrative-type duties in the past. She was young and would be able to access occupational rehabilitation services.
198She was fit for a number of suitable employment options set out in a vocational assessment in August 2020. If she were to work in retail, the objects she would need to be involved in would have to be light and easily lifted between waist and chest height. She effectively should avoid bending, lifting and twisting below waist and above chest height, with a lifting limit of 5 kilograms.
199She was not taking any medication and was continuing with an exercise program, and that she had had a significant improvement over the last twelve months.
200Her current medical condition was still materially contributed to by the claimed injury, the pain having settled and improved but not fully abated.
201He thought the plaintiff’s seating tolerance comfortably in a car was for 30 minutes, standing in one position for 10 minutes, and walking for 30 minutes.
202Dr Thomas reviewed five USB sticks with surveillance and provided a report in February 2021. He noted they showed her walking with a normal gait and bending forward to pick up a collapsible chair into a trailer and decanting the trailer one chair at a time. They showed her going to shopping centres.
203In his view, there was certainly nothing that was of surprise to him. She had non-specific, fairly minor low backache, and good active coping skills.
Associate Professor (“AP”) Peter Doherty, psychiatrist
204The plaintiff was examined by AP Doherty in October 2020.
205He thought there were then very few psychiatric symptoms present. There was some reported anxiety, and she appeared clearly prone to deteriorate emotionally when under stressful life circumstances.
206Her psychiatric condition of Adjustment Disorder did not then stop her working part-time hours and undertaking restricted duties. She had a capacity for suitable employment, at usual part-time hours. He thought ongoing psychiatric treatment was not necessary, nor did she require urgent ongoing treatment by a psychologist for any work-related psychiatric condition.
Overview
207The plaintiff suffered a compensable injury to her back in the incident and work leading up to and on the said date.
208There is no dispute that the plaintiff suffers from an aggravation of the lumbar and thoracic spine. I am satisfied that this condition is organically based.
209There is no suggestion in this case that the plaintiff has any pre-existing back issues.
210Her initial claim for compensation was accepted in relation to the incident injury. However, in October 2020, her employment was terminated when the defendant alleged she had submitted false WorkCover certificates, and her employment was terminated. This allegation was denied.
Credit
211As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[53]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”[54]
[53](2010) 31 VR 1
[54]At paragraph [12]
212It became apparent during the hearing that the plaintiff had been under surveillance at various times. Snapshots and film were provided to Dr Clayton Thomas; physiotherapist, Mr Wheeler, and Professor Bittar – none of whom thought the level of activity shown was inconsistent with the plaintiff’s reported complaints; however, counsel for the defendant submitted this film showed little disability or restriction.
213Counsel for the plaintiff submitted the plaintiff was a witness of truth, a frank witness who showed an ability to make concessions against interest, certainly not someone who was exaggerating – a view corroborated by Dr Davison, Dr Gilbert, Mr Carey, and also, Professor Bittar.[55]
[55]T102
214I agree with this submission. The plaintiff did not overstate her level of disability and I found her to a credible, truthful witness.
Pain
215As Maxwell P said in Haden,[56] “The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors)”.[57]
[56] Supra
[57]At paragraph [11]
216I accept that the plaintiff has suffered lumbar pain of varying degrees since the said date for which she has required medication and ongoing physiotherapy. Her pain is activity related and at times, it is sharp aching and stabbing and goes into her hips. She also experiences flareups and can be bedridden with pain up to once a fortnight.
217In Stijepic v One Force Group Aust Pty Ltd,[58] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[58] (Supra) at paragraph [43]
218The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
219The plaintiff is only twenty-seven and has years to endure the level of pain she has described in her affidavit and to medical examiners.
Treatment
220Counsel for the defendant described the plaintiff’s treatment as “low level”, with some Celebrex “on and off” and physiotherapy and Pilates.[59]
[59]T94
221However, while the level of treatment is not significant, the plaintiff requires ongoing painkilling medication in the form of Voltaren and Celebrex, which gives her limited relief.[60] She was earlier prescribed Lyrica and Panadeine Forte but ceased Lyrica because of its side effects.
[60]T105
222In 2019, the plaintiff was referred to orthopaedic specialist, Mr Michael Johnson, who recommended conservative treatment.
223Dr Chisholm suggested a referral to have a cortisone injection at Baw Baw Radiology, but she was hesitant and fearful of that procedure.
224Physiotherapy has continued since November 2018. The plaintiff continues to do home-based exercises and she uses heat backs and Deep Heat a few times a week.
Work
225In my view, the most significant consequence of the plaintiff’s spinal impairment is her inability to undertake pre-injury, manual employment as a result of an aggravation of a lumbar spondylosis – a view shared by all medico-legal examiners.
226After being put on light duties, the plaintiff had to stop work in March 2019 because of her injuries and her mental health, and her WorkCover claim at that time was accepted.
227In August 2019, she began a return to work on 10 hours a day on light duties and gradually increased her hours to 25 by June 2020 but in October 2020, her employment was terminated.
228When her employment was terminated, although working a maximum of 25 hours per week, she was unable to perform a full range of her pre-injury duties with restrictions on bending and twisting. Pre injury, while her contract was for 25 hours per week, she was able at times to work up to 40 hours per week and undertake heavier duties in her role as deputy manager. Post injury, she only did deputy manager duties on two occasions when another manager was unavailable.
229While the plaintiff has shown great initiative in taking on study to be a teacher, this will be a long road for her, having only completed Year 11.[61] She has completed only one of 25 subjects and done so with difficulty, requiring an extension because of difficulty studying due to back pain.
[61]T106
230She has lost her planned career in supermarkets where she had risen to the role of deputy manager pre injury and aspired to take on a more senior management role in this field, where her former husband also worked as a manager.[62]
[62]T97
231The loss of career is a relevant factor when assessing the plaintiff’s pain and suffering.[63]
[63] Haden Engineering (supra) at paragraph [15], Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35], Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38].
Other consequences
232The plaintiff is still a relatively young woman and her ability to engage in physical and social activities has been significantly curtailed by her spinal issues.
233She is no longer able to engage in the more physical activities she previously enjoyed such as boating and hiking, and travel is also limited by her back pain as her former husband, Steve, confirmed.[64] His evidence was unchallenged.
[64]T104
234The plaintiff struggles to look after Zoe, having difficulty carrying her, bathing her and attending to tasks involved in her care.
235She needs help in this regard, presently being provided by Steve, who has temporarily moved back in with the plaintiff.[65]
[65]T107
236Housework is also a struggle, and the plaintiff paces various lighter tasks and is unable to do heavier domestic duties. Bending and lifting causes increased back pain. She now pays someone to mow the lawn.
237Prolonged sitting is an issue for the plaintiff, and she has difficulty driving two-and-a-half hours to Melton to visit her family.
238Although Zoe causes some problems with the plaintiff’s sleep, the plaintiff has also had sleep difficulties since her injury due to back pain.
239While the plaintiff admits she has had a range of other health issues as detailed by her general practitioner in her notes and recent report, I accept the plaintiff’s evidence that any difficulties have been short lived and do not play an ongoing significant role in her current life where back pain is her major complaint.[66]
[66] Peak Engineering (supra)
240Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s spinal impairment are “serious”, more than significant or marked, as at the date of hearing.
241There has been no improvement following over two years of conservative treatment.
242However, counsel for the defendant submitted to plaintiff has not established that her impairment is permanent – she has yet to have a conversation with her general practitioner about a range of potential treatment, including pain management and sports medicine referral, and Professor Bittar’s suggested treatment and she had yet to be advised of the results of a recent MRI scan.[67]
[67]T88
243While I accept the plaintiff’s evidence was clear, and she is eager to have further treatment and hopeful that that would increase her functionality, she followed the conservative path suggested by orthopaedic surgeon, Mr Johnson.
244While there have been a number of suggestions as to further treatment that might assist, no examiner has stated specifically that the plaintiff’s condition has not stabilised.[68]
[68]T90
245The plaintiff has been referred to a pain specialist, Dr Shirazi, and also seen medico-legal pain specialist, Dr Richard Sullivan, who thought the consequences were permanent.[69]
[69]T99
246In any event, pain management is not curative but management of pain.[70]
[70]T90
247Taking into account all the evidence, I am satisfied that that the plaintiff’s condition has substantially stabilised and the consequences thereof are likely to continue for the foreseeable future.
248Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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