Morse v The Trustee for the Seth and Kapoor Bendigo Unit Trust, trading as Bendigo Quest (ABN 57 287 045 700)
[2020] VCC 703
•26 February 2020
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05159
| AMANDA SKYE MORSE | Plaintiff |
| v | |
| THE TRUSTEE FOR SETH AND KAPOOR BENDIGO UNIT TRUST (trading as BENDIGO QUEST (ABN 57 287 045 700)) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 5 and 6 February 2020 | |
DATE OF JUDGMENT: | 26 February 2020 | |
CASE MAY BE CITED AS: | Morse v The Trustee for the Seth and Kapoor Bendigo Unit Trust, trading as Bendigo Quest (ABN 57 287 045 700) & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 703 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the lumbar spine – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] 17 VR
Judgment:Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendants | Mr A J McG Moulds QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury the plaintiff suffered during the course of her employment with the first defendant in July 2017.
2The relevant body function is the lumbar spine.
3The plaintiff bears an overall burden of proof upon the balance of probabilities.
4By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
5I 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.
6Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2][2010] VSCA 69
8The plaintiff swore two affidavits and was cross-examined. Further, she relied on an affidavit sworn by her husband, Jason Taylor, on 22 January 2020. Also in evidence were medical reports and other material. I have read all the tendered material.
9 The defendants accepted the plaintiff suffered injury to her back at work. The issue in dispute is range.[3]
[3]Transcript (“T”) 49
The Plaintiff’s evidence
10 The plaintiff is presently aged forty-one, having been born in December 1978. She is married with three children aged sixteen, eighteen and twenty-three.
11 The plaintiff completed Year 9 in Bendigo. She left school partway through Year 10 and did a mechanics course at Bendigo TAFE, but did not work in that trade. She has worked in hospitality and as a cake decorator and also been employed as a truck detailer.
12 The plaintiff recalled having some back pain in about 2005 and saw her general practitioner two or three times, but did not recall having ongoing back pain after that time.
13 The plaintiff had knee pain on and off over the years, and had some physiotherapy in 2015 and an x-ray and MRI scan of her knees.
14 The plaintiff suffered from depression in the past and was prescribed antidepressants from time to time. She was diagnosed with epilepsy as a child, but currently had no treatment for that condition. She had also been diagnosed with sleep apnoea and psoriasis and had suffered from headaches and migraines in the past.
15 The plaintiff had taken regular painkilling medication for various ailments for many years before her back condition. She was seen by Dr Chan, who initially practised at Bridge Street, then La Trobe University.[4]
[4]T4
16 In Dr Chan’s notes in mid 2012, there were a number of entries detailing prescription of Mersyndol Forte and Temaze. These were prescribed for knee, migraines, and stomach problems. In the early part of 2013, Panadeine Forte, Temaze and Mersyndol Forte were prescribed and in May 2013, Endone. Mersyndol Forte was for pain and Temaze to help her sleep.[5]
[5]T6
17 The plaintiff agreed she was having multiple prescriptions of painkillers and sleeping medication during 2013. She agreed that this pattern continued through to the time of her back injury in 2017. As of July 2017, she was a regular taker of prescription painkilling medication and sleeping tablets. She agreed taking sleeping medication was a feature of her life before her injury and taking of regular prescribed painkillers was a fact of life.[6]
[6]T7
18 The plaintiff was taking Mersyndol Forte before the back injury for migraines. It has not been prescribed for anything else, and she takes it only when needed, maybe one tablet two times a week.[7]
[7]T46
Work with the First Defendant
19 The plaintiff worked as a full-time cake decorator at the Cheese Shop in Dandenong for six months. She started work with the first defendant three months later. Prior to working at the Cheese Shop, she worked at Country Cakes full time. There was about a two-month break between those cake decorating jobs.[8]
[8]T8
20 The plaintiff commenced employment as a housekeeper with the first defendant in about March 2015 on a casual basis, working from about twelve to thirty-eight hours per week. She was paid about $23 gross per hour.
21 Later, the plaintiff went permanent part time and then back to casual, organised by the first defendant, not at her request. In the year before her back injury, she worked roughly between twelve and thirty-eight hours a week.[9]
[9]T8
22 The plaintiff’s duties included pushing trolleys, cleaning showers and bathrooms, changing bedlinen, and mopping and vacuuming. It was heavy, repetitive manual work. She was also required to carry baskets containing cleaning products and other items, including up and down stairs (“the duties”).
23 In August 2015, the plaintiff developed lower back pain in the course of her work and saw Dr Chan on 26 August 2015. She had a lumbar CT scan, but did not believe she had any time off work at that stage.
24 The plaintiff developed increased lower back pain at work on 9 July 2017 while picking up a cleaning basket. She felt immediate sharp pain in her back. She stopped what she was doing and rested briefly. She went to start cleaning, but her back pain was so bad she stopped work and reported her injury to her team leader.
25 The plaintiff attended Bendigo Hospital Emergency, where she was examined and given painkillers, and discharged home. She took a couple of days off on advice from the Hospital.
26 A week or two later, the plaintiff saw Dr Rewani at Primary Care Clinic. She did not go back to Dr Chan at that stage because he told her he did not deal with WorkCover. He did, however, treat her for back pain and sent her for a couple of scans, one of which was in 2015.[10]
[10]T5
27 The plaintiff took only a couple of days off work, then went back to work and did her normal duties. On 24 July 2017, she hurt her back a second time climbing stairs at work carrying her cleaning basket. She again saw Dr Rewani, and was put off work for two weeks and prescribed Panadeine Forte.[11]
[11]T9
28 On 27 August 2017, the plaintiff lodged a WorkCover claim which was accepted and payments made.
29 In October 2017, the plaintiff went back to Dr Rewani and was sent for a lumbar x-ray, which was carried out on 18 October 2017.
30 On 15 November 2017, the plaintiff started physiotherapy at Healthy Mates in Bendigo and also did hydrotherapy. Later that month, she had a lumbar CT scan.
31 In around November 2017, the plaintiff returned to work, working one hour per day, two days a week. By January 2018, she increased to one-and-a-half hours per day, two days a week.
32 The plaintiff worked through to October 2018. She returned to full-time work towards the end. She agreed, as her physiotherapist reported, she returned to pre-injury duties and hours by 21 August 2018.[12] When she first went back, she only worked a couple of hours per week. They then jumped up her hours and she was doing nearly seven hours a day and that was when it started to get too much.[13]
[12]T10
[13]T11
33 On 6 April 2018, the plaintiff had a lumbar MRI scan.
34 The plaintiff agreed, for about a year, from April 2018, she did not see Dr Rewani. In that time, she was not receiving any general practitioner treatment whatsoever for her back. She was then taking medications for other ailments, prescribed by Dr Chan, including Mersyndol Forte and Temaze. Those prescriptions have pretty much continued on for those other ailments, as they have in the past.[14]
[14]T18
35 In May 2018, the plaintiff started seeing a counsellor, Jenna Abbott, on referral from Dr Chan.
36 The plaintiff developed constipation from the painkillers she was taking for her back, so she stopped Panadeine Forte and she took Lactulose for constipation.
37 On October 2018, the plaintiff resigned from her employment with the first defendant due to back pain. In the lead up to resigning, she had been struggling with back pain.
38 The plaintiff agreed that when she resigned from the first defendant she was then working more hours than she worked pre-injury. She disagreed that had she not tried to increase her hours beyond her pre-injury workload, she would still be working with the first defendant.[15] She denied she stopped working because she wanted to start up a business, which she had registered as Miss Apple Poison in 2016.[16]
[15]T11
[16]T12
39 In late October 2018, the plaintiff started work with her current employer, Bolton Office National (“Bolton”). She was employed as a machine operator performing embroidery and alterations, and generally worked five days a week, five hours a day. In mid 2019, she had been working eight hours a day.
40 The plaintiff occasionally did sewing at home. She made men’s shirts and women’s dresses and sold her clothes at local markets. She had not been to the markets for a couple of months because of back pain.
41 As of June 2019,[17] the plaintiff suffered variable constant fluctuating lower back pain. It was made worse by sitting or standing for prolonged periods and repetitive bending and twisting. She had severe back pain at times and on those occasions was often in tears. When she had flare ups, she generally laid down and waited for the pain to settle. She usually got her husband, Jason, to rub Deep Heat into her lower back. Flare ups occurred about once or twice a fortnight, during which she experienced shooting pain into her buttocks.
[17]First affidavit
42 The plaintiff got down and depressed due to the constant back pain and the resultant restrictions on her life. She was generally more stressed and anxious than she was pre injury.
43 As of mid-2019, the plaintiff was seeing Dr Chan, as needed. She continued to do exercises at home, which she had been taught by her physiotherapist. She used Deep Heat once or twice a day. She took Mersyndol Forte as needed for lower back pain and also, at times, for headaches.
44 As a consequence of her back pain, the plaintiff had restricted mobility to perform tasks requiring heavy lifting, sitting or standing for long periods, repetitive bending or twisting, and driving for long distances. She had had to take one or two days off work with Bolton due to back pain. After a day at work, she usually rested at home.
45 The plaintiff had broken sleep every night due to back pain and she often struggled to get back to sleep after being woken by it. She had had issues with her sleep in the past, but it was significantly worse now than before her injury. She got far less sleep now than before and generally felt tired during the day because of disrupted sleep.
46 Because of her back pain, the plaintiff was restricted in what she could do around the house. She struggled with heavy housework duties, such as cleaning the bathroom, mopping and vacuuming. Jason now did those tasks. The plaintiff generally relied on family members a lot more to help out than she did before, a situation she found upsetting and frustrating.
47 In the past, the plaintiff enjoyed gardening, but she was now restricted in what she could do in the garden because of her back. Gardening tasks requiring her to get down on her hands and knees, like weeding, caused her increased back pain and Jason basically looked after the garden now.
48 The plaintiff had enjoyed sewing as a hobby for many years. She was not able to enjoy it like before because of her back. Sitting at the machine caused increased pain. She still did some sewing but could not sit for long periods, and whenever she sewed, she was in pain.
49 Prior to her back injury, the plaintiff regularly went out with friends and socialised. Since her injury, she was generally tired and sore after a day at work and did not feel like going out and rarely did so now. She had lost contact with friends because she did not socialise as much as before.
50 Prior to her back injury, the plaintiff enjoyed Tai Chi two nights a week. She continued to attend; however, some weeks she was not able to because of back pain. She reduced to once a week, but had not been to Tai Chi for about six months. She was careful to avoid aggravating her back.
51 The plaintiff then worried about how her back would be in the future and about increased pain and greater restrictions as she got older. She worried whether she would be able to continue working into the future if her back got worse.
52 The plaintiff continues to suffer constant fluctuating lower back pain which radiates into her buttocks and she continues to experience flare ups of severe pain on occasions.[18]
[18]8 January 2020 affidavit
53 For back pain, the plaintiff takes over-the-counter Panadol Osteo, about six every day, and Circadin every night to help her sleep.[19] She also uses physiotherapy cream and Deep Heat packs on her lower back.
[19]T4
54 The plaintiff now sees Dr Singh at Bendigo Primary Care Centre.
55 The plaintiff agreed Dr Rewani did not think there was any major problem with her back and when she went back to see her in April 2019, the plaintiff got a referral to a pain management specialist. It was her solicitor’s idea that she go for pain management.[20] The plaintiff first saw pain specialist, Dr McCallum, in July 2019.
[20]T18
56 Dr McCallum changed the plaintiff’s medication regime. She was off Temaze by then, but he put her on Circadin, on Dr Chan’s recommendation, as she was sick of being drowsy after taking Temaze. The plaintiff took Mobic once a day for roughly about a month after she saw Dr McCallum.[21] After that, she has just been taking Panadol Osteo.[22]
[21]T19
[22]T20
57 The plaintiff agreed she was taking no painkilling medications for her back before she saw Dr McCallum. He wanted her to go to a pain management course at the St John of God, and approval was obtained from the insurer. The plaintiff started that program in about September 2019. She attended roughly a day a week for half a day. One day she would have occupational therapy and another private physiotherapy, and then hydrotherapy, and she saw also a pain psychologist. She attended the program for about twelve weeks until November last year. The physiotherapist recommended another twelve weeks of physiotherapy, which continues, twice a week.
58 Dr McCallum suggested medial branch blocks might help. In late November 2019, he gave the plaintiff had about six injections into her lower back in one session. They gave her some temporary improvement in her symptoms. She had improvement for a couple of weeks and then it went back to normal. When it was suggested to her she said that she had a fifty per cent improvement for about six hours, she agreed,[23] and it then went back to normal.[24]
[23]T21
[24]T22
59 When asked about the recovery from the blocks, the plaintiff said there was no pain for about two to two-and-a-half weeks after, and since then she has had pain. She has had the radiofrequency because she thought it would help her back.[25]
[25]T47
60 Early this year, Dr McCallum recommended a procedure involving nerves in her lower back. Approval had been given by WorkCover. The plaintiff underwent radiofrequency denervation on 23 January this year because she thought it would help her back.[26] At this stage, it has not caused any alteration to her lower back condition.[27]
[26]T49
[27]T3
61 The plaintiff will be seeing Dr McCallum again on 27 February.[28] She last saw him on 23 January, when she had the procedure. It had not helped her back at this stage, no.[29]
[28]T44
[29]T45
Current work
62 The plaintiff has continued to work as a casual machinist with Bolton. Her employer allows her to take breaks and sit and stand as necessary because of her back condition. Her hours vary. In the lead up to Christmas, her hours temporarily increased and she mostly worked five hours a day, five days a week.
63 The plaintiff was no longer able to work as a housekeeper as that job caused her too much back pain. Her current employer knew about her back problems and is very accommodating. She was currently able to sit and stand as needed.
64 The plaintiff’s current job is more embroidery using machines, and at home, her sewing is more in the way of a seamstress. At home, she has a sewing machine, an overlocker and a hemming machine, which she keeps in the shed.
65 The plaintiff currently works five hours a day, five days a week at Bolton, less than her hours with the first defendant. She applied for this job, which was advertised in the paper, before she left the first defendant. She puts a hoop into garments – like a uniform – and then she puts them into a machine and types in what has got to go on them, what design is involved, and then the process starts. The embroidery is done by machine. She does not have to unpack the garments; she gets them in their plastic wrappers as individual garments.[30]
[30]T14
66 On average, the plaintiff does about fifty garments in an hour, as does her co-worker.[31]
[31]T15
67 In recent times, the plaintiff has been working more hours and is pretty much full time only around Christmas and at the start of the year. The week before the hearing, she only worked three days, five hours a day. Generally, they are five-hour shifts. She worked pretty much through Christmas and did not have any time off, apart from public holidays. She returned to three days a week only a couple of weeks ago and the lead up to Christmas probably started about mid December. She worked Fridays, and that was pretty well without exception. That extra work included school uniforms.[32]
[32]T17
68 The plaintiff agreed her taxation return showed she earned considerably more on a weekly basis at Bolton than with the first defendant, maybe something like 40 per cent more. She has moved to a job she enjoys, earning considerably more.[33]
[33]T42
Consequences
69 Since her first affidavit, the plaintiff has continued to experience broken sleep every night due to back pain. She remains restricted in what she can do around the house and in the garden and as a consequence of her back pain, she now does very little sewing at home compared to before.
70 Jason does the cooking at home because he is a home husband. He does the washing of the clothes, and she does not do any of that. She can do the washing, and she hangs up the clothes. She does not clean the bathroom, but cleans the sinks. She does not do some of the vacuuming.[34] She does not sweep because it hurts to sweep.[35]
[34]T40
[35]T41
71 The plaintiff helps with a little bit of gardening. Sometimes she has trouble bending when gardening, and other times she does it without any problem.[36]
[36]T41
72 The plaintiff regularly goes shopping with Jason at IGA, maybe two or three times a week.[37]
[37]T42
73 The plaintiff worked on cars in the past and did a pre-apprenticeship. She now could not bend over a bonnet for long periods. She could not change the oil because she would have to get underneath the car and she could not lie on anything hard.[38]
[38]T43
74 The plaintiff agreed she had a few friends over the years. Her children love camping. They do not go now because all the boys have Asperger’s.[39] They do not go camping because she cannot sleep in the camper or a tent.[40]
[39]T43
[40]T46
75 The plaintiff agreed she has had problems with sleeping for many years and that she had not slept very strongly before she hurt her back. Before her work injury, she could not get to sleep and that was why she takes Temaze. Now, she keeps waking up through the night with pain in her lower back.[41]
[41]T46
76 Since the work injury, the plaintiff’s intimate relationship with her husband has been affected.[42]
[42]T41
77 The plaintiff’s embroidery interest has probably come on in the last five years or so. She has her own business making clothes from home. In the last twelve months she has been to the market twice and sold things. In February there was a market in Ballarat and in December there was a market at the Bendigo RSL. She also sells clothes online. She confirmed she had only made one dress in the last twelve months because of her difficulties sitting sewing. She has a stock of clothes at home which she has made.[43]
[43]T22
78 Probably once or twice a month in the last two years the plaintiff has used her machine to make dresses.[44] She denied there was active advertising on Facebook in the last twelve months for her business.[45]
[44]T22
[45]T23
79 At the Ballarat market last February, the plaintiff had a marquee and tables to put out all her wares. They were taken to the market in the back of a car and a trailer, with Jason’s help. Most of the clothes were made in the first year that she started the business.[46]
[46]T24
80 The plaintiff was taken to her June 2019 affidavit, where she deposed that as a consequence of her back pain she was restricted in her ability to perform tasks requiring heavy lifting, sitting or standing for long periods, repetitive bending or twisting and driving for long distances. This is still the case now. She agreed that anything that required repetitive bending was going to be a problem for her. She is unable to undertake repetitive bending or undertake deep bending on multiple occasions over about an hour-and-a-half. She would not be able to do that.[47]
[47]T25
81 The plaintiff was then shown about an hour of film of her attending the Moonlight RSL Market in Bendigo in December 2019.[48]
[48]T26
82 The first film started at 2.21pm. The plaintiff was dressed in one of the brightly coloured dresses she had made. She was first shown at home near her car and trailer with Jason getting ready for the market.[49]
[49]T27
83 The plaintiff was then shown at the site securing the tarpaulin on the marquee to the framework and then unloading all the clothes. The trailer was out of the picture, but it contained all her paperwork and her cashbox. She was shown lifting a bag which contained handbags she had made. She was then shown lifting up the legs of the trestle table. She was shown squatting.[50] She was shown putting up the bunting around the marquee and also moving a screen, behind which customers changed.[51] She hung up about forty or fifty items of clothing on hangers in the middle of the marquee until the coatrack to put them on had been set up.[52]
[50]T28
[51]T29
[52]T30
84 The plaintiff’s clothes sell for under $100. They range from little bolero jackets at $40 to $50, shirts about the same price, and dresses about $89; nothing over $100. She also makes headscarves that she put out on a display.[53]
[53]T30
85 Clients started to come a bit before the market started, about 5.00 or 6.00pm. Whilst film of this was not shown, the plaintiff agreed customers came and had a look, she chatted with them and she was sitting down in the main over that period. She agreed she was picking one thing up or another, or from one place to another, but mainly serving customers.[54]
[54]T31
86 Film was then shown from 4.25pm.[55] In this part of the film, vision of the plaintiff was largely obscured by other people as she folded up and packed up the site. Jason, who had left the market some time earlier, returned to help. The plaintiff agreed she would have got home at 9.10pm that night.[56] She had only sold one headscarf that evening.[57]
[55]T32
[56]T34
[57]T33
87 The plaintiff agreed the film started with her and Jason setting up the marquee and her undertaking various activities, including hanging up clothes. Items had to be obtained from boxes and containers and they were often at floor level. She agreed she was bending regularly to do those tasks. She did not disagree that she was shown on about twenty-five occasions bending during the film, and that was necessary for her to do to carry out her activities.[58]
[58]T35
88 When it was suggested to the plaintiff that she had sworn she could not do this level of activity, she explained she could repetitively bend on that occasion, because she had not long had the branch blocks, so she was not in as much pain.[59] She must have misheard counsel when she agreed earlier in cross-examination that she only has improvement for six hours after the blocks. She agreed she had spoken to Dr McCallum about that procedure. She was pretty sure she did not say the improvement was only six hours. She knew the surveillance films were taken a week or more after the blocks.[60]
[59]T35
[60]T36
89 The plaintiff first registered for the Bendigo market over a year ago, but the first market did not go ahead. She was not completely sure whether she was going to go. She was waiting to see how the facet-joint injections went.[61]
[61]T37
90 The plaintiff could not remember having worked on 6 December 2019 before going to the market. When taken to her earlier evidence in cross-examination that she worked most Fridays,[62] she had no idea whether she worked that Friday or not.[63]
[62]T38
[63]T39
91 The plaintiff was moving differently at the end of the evening than earlier in the evening at the market. She was a little bit slower and she was not able to lift a lot of things. She was lifting a little bit more when she set up the site. At the end, she did lift a perspex box containing materials, that was handbags and headscarves.[64] That box was light. The mannequin she lifted was hollow and plastic.[65]
[64]T40
[65]T47
Lay evidence
92 The plaintiff’s husband, Jason Taylor, swore an affidavit in January 2020. He has known the plaintiff for twenty-eight years and they were married in 2016 and have three children, aged twenty-three, nineteen and seventeen.
93 Jason was well aware of the plaintiff’s injury in July 2017, having been told by her that she had hurt her back and was going to Emergency, where he attended with her.
94 The plaintiff’s injuries have had a severe impact on her life in terms of what she can and cannot do, and have had a severe impact on family life.
95 The plaintiff wakes through the night with lower back pain and has broken sleep. Before the injury, she did not wake up during the night, and would sleep strong right through. They have had little or no sex since the injury.
96 Since the injury, Jason usually cooks every night, because by that time the plaintiff is very sore. She used to cook the evening meal and they often took turns to cook it. All three sons are still at home, so they usually cook an evening meal for five people every night. On the weekends, they cook together, but he does most of the cooking. The plaintiff appears to have difficulty standing for long periods of time.
97 The plaintiff can do little jobs, like wiping down benches. He does the vacuuming, mopping and cleaning of bathrooms and toilets. She does very little gardening, but is mostly restricted to watering the garden using a hose.
98 The plaintiff does not have baths, because it is too difficult to get in and out, and she has showers.
99 If the plaintiff drives, she only goes on short trips before a break. Since her injury, she has done very little driving of her manual car. The nerve pain in her lower back is made worse by having to use the clutch and brakes.
100 Since the plaintiff’s injury, he has driven her to and from work, and picks her up at lunchtime and takes her back to work. He drives her to her mother’s house and to medical and physiotherapy appointments. If they go shopping, he drives.
101 They do the shopping together, but he does the lifting and driving and usually unloads most of the shopping when they get home. Before her injuries, the plaintiff used to drive herself to and from work and used to be able to drive long distances, including to and from Bendigo to Shepparton to do a cooking course.
102 Now, the plaintiff has no social life and stays at home most of the time.
103 Pre-injury, the family went bushwalking in national parks and often went to Daylesford on Sundays. They went camping and had a pop-top caravan and camped for two or three days at a time. They had not been camping since her injuries. While he was not all that keen on camping, it was something she loved doing.
104 As a result of her injury and ability to do things, the plaintiff’s mood and personality had changed. She gets depressed a lot and her memory is not as good as it used to be. Her back pain prevents her from doing a lot of things she used to do. She is limited in the distances she can walk.
105 The injuries have meant the plaintiff is restricted to a very short time sitting and sewing. She enjoyed that activity most of the time he had known her. She set up a business from home, where she would sell vintage clothing she had made. She used to have stalls at Daylesford, Ballarat Beat, RSL Bendigo, and other places. Since the injury, she had done very little sewing, and if she did, she had to stop and get up and walk about. Pre-injury, she used to be able to sit up at a sewing machine and sew for long periods without interruption.
106 The plaintiff cannot do Wushu Kung Fu as a result of her back injury.
107 The plaintiff cannot work on cars, as she finds it difficult to bend over on the cars. Before injury, she had completed some sort of mechanic’s course at Bendigo TAFE, and used to do minor things on their cars, like changing the oil and changing the tyres.
108 The plaintiff does not go to the movies now, as she cannot sit in one position for the length of a movie.
Medical evidence – treaters
109 The plaintiff attended the Emergency Department of Bendigo Hospital on 9 July 2017 with lumbar back pain after lifting 15 to 20 kilograms. The clinical impression was lumbar MSK. She was discharged with analgesia and recommended gentle exercises.
110 The plaintiff presented to Dr Rewani on 31 July 2017. She gave a history of the lifting incident at work and subsequent treatment.
111 Dr Rewani noted the plaintiff went back to normal duties on 14 July 2017. On 24 July 2017, she developed lower back pain in another lifting incident. Prolonged sitting and standing made it worse. Simple analgesia like paracetamol did not control the back pain. On examination, she was very tender in her lower lumbar paraspinal muscles, with limitation of lateral flexion bilaterally.
112 The plaintiff was treated for mechanical back pain and was given stronger analgesics and was advised to rest for two weeks. On review after two weeks, she still had ongoing back pain and was given a further two weeks off.
113 The plaintiff was advised to start modified duties on 28 August 2017. On review on 6 October 2017, she complained of ongoing back pain, which was not improving. A lumbar x-ray was normal, with no disc space narrowing or bulge. As there were no modified duties, she started with normal duties on reduced hours. Her CT scan of the lumbar spine revealed mild annular disc bulge at L4-5 and minor osteoarthritic changes at L5-S1. She continued with Tai Chi, physiotherapy and hydrotherapy for her back pain.
114 The plan was to slowly increase her hours of two hours of normal hours of twice a week, which still caused her back pain, when seen on 29 January 2018. When seen in April 2018, the plaintiff advised she had not gone to work for over a month, and had seen an independent medical examiner who ordered an MRI scan, which showed circumferential disc bulge with no canal stenosis or neural impingement at L4-5 and an L5-S1 small annular tear with facet arthropathy.
115 That was the last visit.
116 Dr Rewani diagnosed mechanical back pain. She thought the back pain caused a significant impact. It caused persistent lower back pain, and limited the plaintiff’s mobility at work. He was uncertain of the prognosis, having not seen the plaintiff since April. In her view, the plaintiff’s MRI scan of the spine did reveal facet joint arthropathy, but she was uncertain how much that contributed to the plaintiff’s acute back pain at work.
117 In her February 2018 report, Dr Rewani advised the plaintiff had always wanted to go back to work since the beginning. There had been two return to work meetings. She had advised some restrictions due to the plaintiff’s back pain. Unfortunately, her employer did not have work suitable to her needs which require no bending and lifting, so she had gone with less hours at present. She did not believe there were barriers from the plaintiff’s perspective to go back to work as long as suitable work was available.
118 In Dr Rewani’s clinical opinion, recovery timeframe was uncertain due to the nature of injury. She thought the plaintiff had mechanical back pain, which had a good prognosis in the median term, and, in her opinion, the plaintiff would improve with ongoing physiotherapy and a structured rehabilitation program.
119 The plaintiff was assessed at Healthy Mates Physiotherapy on 15 November 2017, following a workplace injury on 9 July 2017. She had previously received treatment at that clinic for knee pain in 2015.
120 In a report of 1 November 2018, physiotherapist Jake Pallpratt from Healthy Mates noted that the plaintiff currently experienced lower back pain and stiffness that was not previously experienced prior to her injury. She had been well educated regarding her condition in order to self manage any exacerbations.
121 It was reported the plaintiff had no pain referral or symptoms that would indicate a serious medical pathology. On the attendance, the plaintiff had taken time from work due to her injury and had no specific return to work arrangements made, despite having arrangements in place with Recovre.
122 The plaintiff was diagnosed with non-specific lower back pain, meaning that the injury was not due to any specific underlying disease that could be detected and usually pertained to an injury to a joint ligament or muscle of the lower spine. The plaintiff further underwent a CT scan which revealed an L4-5 disc bulge with no canal stenosis or nerve root impingement which may be related to her pain and acquired injury.
123 The plaintiff had returned to her pre-injury hours and duties by 21 August 2018; however, when she increased her workload beyond pre-injury hours, she experienced an exacerbation of her lower back pain, which was managed through physiotherapy treatment and the use of her already established home exercise program. Her condition was stable and he did not think it would impact on her capacity for employment and daily life.
124 Dr Chan provided a general practitioner mental health care plan for the plaintiff in May 2018. He noted the presenting issues were anxiety and depression. The plaintiff had recurring symptoms of despair, frustration, headaches, issues with work, trying to start a business and trying to rent a house. The goal of the plan was to be for the plaintiff to be able to cope with life’s issues.
125 Dr Chan reported on 16 May 2018 that the plaintiff suffered from constipation. She had been taking Panadeine Forte for her WorkCover injury and he believed that was the cause of her constipation. The July 2018 mental health plan was similar to that in May 2018. There was also a referral to a psychologist, Ms Abbott.
126 The plaintiff first saw Dr Symon McCallum, pain physician and specialist anaesthetist, in July 2009. She then had central lower back pain, which may be muscular in origin. Norflex had been shown to help with muscle spasm pain and also help with sleep.
127 The plaintiff got extremely poor sleep due to the pain and also made her experience of pain worse. She had been prescribed benzodiazepine in the past and so Circadin was a much safer and better option to help her with sleep.
128 Dr McCallum was unaware of the reason it took so long for the plaintiff to come and see a chronic pain specialist when she had been suffering with chronic pain for a long time noting, unfortunately, that is extremely common.
129 Dr McCallum last reported on 8 January 2020.
130 Dr McCallum noted the plaintiff had lower back pain in the central lumbosacral area. It was sharp, aching and constant. It was difficult for her to walk around the supermarket. She could sit and stand for about half-an-hour to an hour. The pain goes to the buttocks occasionally and changes. She has no leg pain. Medications were then Panadeine Forte, one occasionally, with a maximum of two at night; Temazepam and vitamins.
131 The plaintiff reported her sleep was poor, she was independent with self-care, she struggled to work for more than an hour, and driving was very difficult. She struggled to vacuum, clean and sweep. She was depressed and tired, with a decreased level of concentration and was anxious about her pain. She had had some recent suicidal thoughts, which she discussed with her psychiatrist.
132 Dr McCallum noted the CT and MRI scans.
133 On examination, the plaintiff had normal reflexes and power in her lower limb. Flexion was to about 90 degrees and extension and rotation were minimal. She was tender in the lower lumbar spine and she had negative sacroiliac joint pain.
134 Dr McCallum thought the plaintiff had central lower back pain which would be muscular and may be related to the facet-joint arthropathy. She had decreased levels of function and was depressed and anxious. Dr McCallum recommended the plaintiff would benefit from seeing a psychologist. He asked her to try Norflex. He asked her general practitioner to refer her to a psychiatrist. He thought she should avoid opioids and stop benzodiazepine, and had asked her try Circadin. He thought she was a candidate for diagnostic medial branch blocks in the lower back. He asked her to walk twice a day and restart Tai Chi. He thought she would benefit from active physiotherapy and hydrotherapy and referred her to St John of God Department of Rehabilitation, for pain management.
135 The plaintiff was next seen on 4 October 2019. There were some problems with the insurer funding treatment and the plaintiff’s mood was not good. She was very tired and exhausted. She had no suicidal ideation, but her mood was down and she was anxious. She had been diagnosed with bursitis. She was still struggling with central lower back pain. The medication had helped her sleep a lot. The Norflex was of no benefit. She had been working full time for two weeks and it was going well.
136 At that stage, Dr McCallum recommended continuing with the pain rehabilitation program and sleeping medication, and advised he was going to proceed with diagnostic medial branch blocks.
137 Those were undertaken on 28 November 2019 at L4-5 and L5-S1 bilaterally.
138 The plaintiff had a positive response when seen on 6 December 2019. It decreased the pain by more than 50 per cent in the first six hours. She was having physiotherapy and hydrotherapy and seeing a psychologist. Her work was going well. Her hours varied and she could sit if she needed to. Medication, then, was Circadin, Mobic once a day, probiotic and Panadol Osteo. Her mood was much better and she was walking more. He recommended she was a candidate for radiofrequency neurotomy at L4-5 and L5-S1 bilaterally and that she should continue with other treatment he had previously suggested.
139 Dr McCallum confirmed the plaintiff had central lower back pain which would be muscular in origin and probably related to the facet-joint arthropathy.
140 Dr McCallum thought it unlikely the plaintiff would ever be totally pain free in her back. The natural history is that it will increase and decrease. This would be affected by her mood, level of fitness, understanding the pain and its causes, her type of employment and response to the radiofrequency neurotomy. If she continued with the treatments she is currently on and has a good response to that procedure, he thought the prognosis was quite good with respect that her sleep, mood and level of function will be significantly improved. He believed the injury had stabilised.
141 Dr McCallum thought it extremely unlikely the plaintiff would be able to do a job that involved heavy lifting, bending and twisting in a regular and reliable manner and this would be the indefinite situation.
142 Obviously the facet-joint arthropathy had been pre-existing, but it did seem to be made much worse by the workplace injury. The plaintiff has had problems with anxiety and her mood in the past, and that is a poor prognostic factor for the pain and recovery and will increase distress and disability from the pain. Her pre-existing problems are predictors of a poorer outcome.
The Plaintiff’s medico-legal evidence
143 The plaintiff was seen by Mr John O’Brien, orthopaedic surgeon, in May 2019.
144 Having told Mr O’Brien of the history of the incident, the plaintiff said she was off work until about November 2017, when she returned to modified duties; however, she continued to experience constant back pain and had a lumbar CT scan, following which she was advised to continue with physiotherapy. The plaintiff reported the physiotherapy resulted in only temporary symptomatic benefit and she continued to require regular analgesic medication.
145 The plaintiff advised that she did in fact continue with light duties, returning to normal duties in March 2018. She stated, that resulted in aggravation of constant lower back pain and as a consequence, she had increasing difficulty in coping with continuing employment and that resulted in her resigning from work in October 2018.
146 The subsequent job was not heavy work and the plaintiff was able to change her position from sitting to standing during the course of that work. She advised she still experiences constant back pain, which she does find is aggravated by a day’s work. She in fact reported that recently following review by her doctor, a pain management program was suggested, and currently arrangements were being made for her to attend.
147 The plaintiff reported that she now experiences constant lower back pain which extends into the back to approximately the lumbosacral junction. She rates it at 4 to 5 out of 10. That pain is accompanied by intermittent pain which extends into both buttocks, aggravated by prolonged postures, and bending and lifting causes aggravation of pain, as does heavy physical domestic work, such as vacuuming and mopping. She stated that back pain does cause disturbance of sleep and she wakes in the morning with significant back pain and stiffness, which improves with some gentle activity, although she reports that pain does tend to increase during the course of her working day.
148 The plaintiff was doing her own exercise program. She applied Deep Heat to the painful area and used Mersyndol Forte when the pain became severe. Sleeping tablets had also been prescribed.
149 The plaintiff reported being capable of activities of daily living and doing lighter domestic tasks, but had difficulty with heavier ones.
150 On examination, lumbar flexion and extension was associated with aggravation of back pain. There was some tenderness around the lumbosacral region. There was no evidence of any neurological deficit in the lower limbs.
151 Mr O’Brien noted an x-ray of 18 October 2017 described normal appearance of the vertebra with no disc space loss or subluxation. A CT scan of November 2017 was reported as demonstrating a mild annular bulge at L4-5 with no focal protrusion. There was described minor L5-S1 facet-joint arthritis, with no other abnormality noted. An MRI scan of 6 April 2018 was reported as demonstrating an L4-5 circumferential bulge and there was reported at L5-S1, a small annular tear with bilateral facet arthropathy.
152 Mr O’Brien noted that the severity of the pain resulted in the plaintiff ceasing her work as a cleaner and subsequently taking on less physically arduous employment despite constant pain.
153 Current physical signs were subjective, with very definite restriction of movement of the lumbar spine, although no accompanying evidence of nerve root compromise. Indeed, investigations demonstrate minor degenerative change.
154 Mr O’Brien considered the plaintiff presented with chronic non-specific lower back pain. The history indeed, suggested mechanical back pain, there being no symptoms or signs which would suggest an inflammatory basis. Indeed, currently, the signs do not allow a precise pathological diagnosis of the underlying pain degeneration.
155 Given this history, Mr O’Brien considered employment is a significant contributing factor to the plaintiff’s current clinical condition. He thought the condition could now be regarded as stable as she reported no substantial change in relationship to the nature, distribution or severity of localised lower back pain, which was unaccompanied by referred lower limb pain.
156 Mr O’Brien thought conservative treatment was appropriate and it would seem, now, appropriate to continue a multidiscipline chronic pain program. A somewhat prolonged history of chronic back pain suggested a poor prognosis.
157 Mr O’Brien noted the plaintiff reported moderate disability associated with chronic back pain. She did, in fact, report aggravation of pain by mechanical factors, which limit activities and, indeed, were the basic cause of the plaintiff ceasing her original work, which did involve heavy physical duties, including bending and lifting. He noted the plaintiff was obviously highly motivated and had indeed found appropriate employment, where she reported she could avoid heavy lifting and change positions regularly to accommodate the severity of ongoing pain. He thought it would be necessary for the plaintiff to continue with what he would regard as modified duties, as he would consider her now physically incapable of undertaking unrestricted manual duties and thus would be incapable of a return to her pre-injury employment. Overall, he thought she was moderately limited in her general, domestic and recreational activities, and that was likely to be ongoing.
158 Professor Richard Bittar, neurosurgeon, examined the plaintiff in August 2019. The plaintiff told him that after the incident and subsequent treatment, she returned to work on modified duties; however, she experienced ongoing back pain. She required ongoing analgesic medication and was able to get back to normal work by early 2018, and did so until 20 October 2018, ceasing work as a housekeeper at that time due to pain. She commenced her current role as an embroidery machine operator in October 2018 and remained in that role, which was less physically arduous than her role as a housekeeper.
159 Professor Bittar noted the referral to Dr McCallum, whom the plaintiff saw in July 2019, and had recommended a functional rehabilitation program and also diagnostic medial branch blocks. Current treatment comprised of Norflex, 100 milligrams twice a day, and Circadin, 2 milligrams at night. The plaintiff was due to commence physiotherapy and hydrotherapy the following week and to commence review by a psychologist in the next fortnight. He thought, overall, her symptoms were stable.
160 Professor Bittar noted the plaintiff’s recreational activities were significantly restricted with walking limited to 1 to 2 kilometres and she could not go camping or take long car trips, and she experienced increased back pain on attempts of bike riding. Heavy household activities were restricted, as was gardening and, to a lesser extent, shopping and cooking. Her sleep was severely disrupted and she experienced daytime tiredness. Overall, her quality of life was severely diminished.
161 On examination, the plaintiff walked with a normal gait. She had moderate restriction of lumbar flexion and severe restriction of lumbar spine extension, the latter being more painful than flexion. She had bilateral lumbar paravertebral tenderness with no palpable muscle spasm. Neurological examination was normal.
162 Professor Bittar noted the x-ray, CT scan and MRI scan diagnosed an aggravation of lumbar spondylosis. He thought the facet joints were the most likely generators of the plaintiff’s back pain.
163 Professor Bittar considered work with the first defendant had been the dominant contributing factor.
164 Professor Bittar thought the plaintiff should participate in a rehabilitation program and have physiotherapy, hydrotherapy and a review by a psychologist. He thought she should be considered for diagnostic blocks targeting the facet joints, and if they were positive, she should consider having radiofrequency denervation. He thought her prognosis was guarded and it was likely she would begin to experience a significant degree of lower back pain into the foreseeable future and would require ongoing medications, physical therapies and intermittent radiofrequency denervations to manage her pain.
165 Professor Bittar thought the plaintiff was permanently incapacitated for her pre-injury work as a housekeeper. She was currently working in a suitable role and worked flexible hours, typically twenty-five to forty per week, depending upon the level of her symptoms. He thought her partial incapacity for work was permanent.
166 The nature of the organic physical injury from which the plaintiff continued to suffer, in his view, was an aggravation of her pre-existing but asymptomatic lumbar spondylosis. He thought she had most likely injured the facet joints during work and those structures were generating her back pain.
167 While the plaintiff was permanently incapacitated for her full pre-injury duties as a result of her injury to her lower spine, she did have the capacity to work in a sedentary role as long as flexible hours were available, and as long as she could change postures frequently.
The Defendants’ medico-legal evidence
168 Dr Majid Rahgozar, occupational physician, examined the plaintiff in March 2018 to assess her current capacity for work, the reasonableness of medical and like expenses and whether her condition was still materially contributed to by the compensable injury.
169 At that stage, the plaintiff had been able to return to near normal work on restricted hours about six hours a week and avoiding lifting baskets and not doing vacuuming.
170 The plaintiff then reported constant pain in her lower back, which was band like, across the lower spine, more on the left, radiating to the left buttock. The pain worsened from prolonged sitting, static standing, bending and twisting. She was then taking Mersyndol Forte, one tablet twice a day, and Temazepam, one at night. She was having physiotherapy once a week and hydrotherapy.
171 Dr Rahgozar noted a CT scan reported an L4-5 mild disc bulge but no focal protrusion, facet-joint arthropathy of L5-S1, but no foraminal or spinal narrowing or spinal instability.
172 On examination, there was no abnormal gait, posture or behaviour. The plaintiff reported pain on end of extension. She had mild tenderness on the lower lumbosacral spine and lumbosacral junction, and left-sided paraspinal areas.
173 Dr Rahgozar thought the plaintiff’s chronic lower back pain was likely to have been caused by a musculoligamentous injury and/or aggravation of facet-joint arthropathy of the left lumbosacral spine. On examination, a degree of mechanical dysfunction of the lumbosacral spine likely related to left-sided facet-joint arthropathy could not be ruled out
174 Obesity, untreated sleep apnoea and the possibility of a concurrent systemic inflammatory arthropathy were also likely to have been contributing to the plaintiff’s overall pain and disability.
175 In Dr Rahgozar’s opinion, the plaintiff was not fit for unrestricted pre-injury work. After a further MRI scan, if it failed to reveal any significant pathology, he thought a gradual return to normal hours of normal duties of over a period of four to eight weeks was reasonable.
176 Dr Rahgozar thought the plaintiff’s management at that stage was not appropriate and she should avoid using opioid medication and stop using benzodiazepines which, in combination, were particularly problematic in the development of chronic pain.
177 In the time being, in his opinion, the plaintiff should avoid frequent bending, twisting, lifting, pushing and pulling more than 10 to 15 kilograms below shoulder level and no more than 5 kilograms above shoulder level.
178 Dr Graeme Doig, orthopaedic surgeon, examined the plaintiff in January 2019.
179 The plaintiff reported activity related to lower back pain which would deteriorate if she sat for long periods, with occasional radiation into her buttocks. The pain could wake her from sleep.
180 At that stage, the plaintiff was using Advil and Deep Heat for her back pain, and was still having physiotherapy occasionally.
181 The plaintiff reported being only able to drive for short distances and she avoided heavy lifting and repetitive bending through the spine.
182 On examination, the plaintiff remained tender in the lumbosacral region, able to forward flex slowly to her lower shins. She had only 15 degrees of spinal extension with guarding and reduced lateral flexion to the left, demonstrating dysmetria.
183 Dr Doig’s diagnosis was of an intervertebral disc injury at the L4-5 region, with aggravation of her pre-existing degenerate L5-S1 segment in the lumbosacral spine. The plaintiff continued to suffer from pain and restrictions.
184 Dr Doig thought the plaintiff’s prognosis was reasonably good, in that she did upgrade to pre-injury status in her previous position. She was now working in a less physically demanding job and should avoid lifting any more than 10 kilograms, including pushing and pulling and limited bending and twisting through the spine. She required breaks from prolonged sitting, standing and driving.
185 Dr Doig re-examined the plaintiff in October 2019.
186 The plaintiff reported constant lower back pain with radiation to her buttocks. There were no leg symptoms.
187 On examination, the plaintiff was tender in the lumbosacral region and only able to forward flex to her mid shin level with 20 degrees of lateral flexion and 10 degrees of spinal extension. Thoracic rotation was preserved.
188 Dr Doig noted there had been a slight deterioration since his last assessment. The diagnosis based on the medical imaging was of an intervertebral disc protrusion at L4-5 with early facet-joint degeneration at L5-S1 level of the lumbosacral spine. He thought ongoing issues appeared to be related to the incident in July 2017.
189 Dr Doig considered the plaintiff was not fit for her pre-injury employment as a housekeeper cleaner, as that would be too physically demanding and would result in symptomatic deterioration in her back condition.
190 Dr Doig noted the plaintiff is currently working on a casual basis and accepts the hours that are allocated. She does work up to normal hours on a casual basis, therefore may be able to upgrade to a full-time basis, but not as a machine operator.
191 Dr Doig thought the overall prognosis must be guarded with respect to a resolution of her condition, as it is now over two years since the back injury. She would most likely require the ongoing prudent use of analgesics and a self-managed exercise program. He noted she was attending a pain specialist and possibly having facet-joint injections in the coming weeks. It remained to be seen whether that would be helpful from a symptomatic perspective.
192 Dr Doig provided a supplementary report in January 2020, having been given the plaintiff’s 19 June 2019 affidavit and material relating to her business.
193 Dr Doig confirmed the plaintiff appeared to have suffered an aggravation of her lower back condition while doing cleaning duties at Quest. Unless there was evidence to the contrary, the lower back condition had failed to fully resolve, although had improved since the initial incident.
194 Dr Doig thought the slight deterioration between his two examination dates simply related to the degree of movement in her spine where there did appear to be a slight worsening on re-examination. This functional movement, however, will vary on a day-to-day basis and will be dictated upon by physical activity and driving long distances, in addition to whether analgesics have been taken or withheld.
195 In Dr Doig’s opinion, the plaintiff can perform full-time work as a machine operator in a self-employed capacity. She was working up to eight hours a day, five days a week during busier times. An ergonomic set up in her place of employment would be advisable, with the ability to sit and stand as required.
196 It would not be wise for the plaintiff to return to her pre-injury employment as a housekeeper/cleaner in view of the physical demands of that type of work, as there was a strong possibility of symptomatically exacerbating her spinal condition.
197 Dr Doig suggested the plaintiff’s other medical condition could be taken up with her general practitioner.
198 Dr Richard Prytula, psychiatrist, examined the psychiatrist for an AMA assessment in February 2019. He diagnosed a Mild Adjustment Disorder with Mixed Anxious and Depressed Mood as a secondary consequence of physical injury, pain and restrictions.
199 Current limitations on activities attributed to injury included ongoing lower back pain, which was aggravated by periods of standing, sitting or lying. He noted the plaintiff continued to have mild reduction in memory and concentration, severely disturbed sleep with fatigue and had variable mood.
200 Dr Prytula noted the plaintiff had not received specialist pain management and advice, and currently was still having pain and severely disrupted sleep. He thought pain management was likely to assist her.
Overview
201 There is no dispute that the plaintiff suffered an organic injury to her lumbar spine as a result of work duties with the first defendant in 2017. Her claim was accepted and benefits paid.
202 In terms of diagnosis, counsel for the defendants submitted almost all practitioners found non-specific back pain or facet-joint arthropathy aggravation, or both. Mr O’Brien thought, currently, the signs did not allow a precise pathological diagnosis of the underlying pain generation.[66]
[66]T50
203 Professor Bittar and Dr McCallum considered the facet joints were the most likely generators of the pain, but there was no particular pathology that had been settled upon as being change one would expect to find on investigations, like some sort of disc bulge or prolapse upon which reliance was placed as a diagnosis. There was evidence of a circumferential disc bulge, but it was not suggested that was the pain generator.[67]
[67]T50
204 Counsel for the plaintiff submitted the suggestion by the defendants all the evidence was soft tissue, maybe with some facet joint, “really was not entirely the full story”.[68]
[68]T60
205 Dr Doig, who had seen the plaintiff most recently and twice last year, thought she had a disc injury consistent with the radiology. He also noted the deterioration in the level of the plaintiff’s function from examinations in February to October last year.[69]
[69]T60
206 Professor Bittar did not diagnose soft tissue injury with solely facet-joint problems. He thought the plaintiff presented with an aggravation of lumbar spondylosis,[70] with the facet joints being the most likely generator of the plaintiff’s pain. He also noted that the MRI scan showed an annular tear at L5-S1.
[70]T68
Credit
207 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[71]
“… 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.”
[71](supra) at paragraph [12]
208 Counsel for the defendants submitted that the plaintiff’s explanation for the level of her activity in the film at the market – improvement post nerve blocks – was a “story developed in relation to the film and was no excuse for it”. Further, the “real point” in terms of the film was that the plaintiff was capable of performing what appeared to be normal activities, and the thrust of her case is that she has trouble doing so.[72]
[72]T63
209 In response, counsel for the plaintiff submitted the plaintiff gave her evidence in an honest and frank manner and made a number of admissions, really, against interest. Secondly, there are no doctors of the view that the plaintiff has presented in a functional manner or attempted to exaggerate or mislead her presentation.[73]
[73]T65
210 Thirdly, it was submitted the film really did not disclose heavy lifting or heavy and very repetitive activities. It involved some bending over quite a lengthy period of time.[74]
[74]T66
211 Further, to the plaintiff’s credit, since suffering the injury, it could not be said she lacked motivation or sat at home attempting to maximise her position for the benefit of litigation. It was submitted she presented as a motivated individual, who returned to work with the first defendant.[75] She increased her hours until eventually having to leave because of back pain, and then successfully obtained alternative employment.
[75]T66
212 So far as there was an attack on the plaintiff’s credit by the defendants, weighed against that, there was evidence of really quite active treatment, with the six injections in the medial branch block procedure.[76]
[76]T66
213 Also, the plaintiff’s evidence was corroborated substantially by her husband’s affidavit, that was unchallenged.
214 As I indicated during the hearing, I did not consider what the plaintiff was shown doing on the film at the market was inconsistent with her affidavit evidence of her restrictions. Whilst she was shown bending on numerous occasions, in my view, that was not repetitive bending, it was bending on a number of occasions over an extended period.[77] There was no heavy lifting involved and no particular strain placed on her lower back when carrying out the various activities shown on the film.
[77]T63
215 Further, I accept the plaintiff was a credible witness who did not exaggerate her level of pain and restriction. She is a motivated young woman who has shown a good work ethic, returning to work after her July 2017 injury.
Pain
216 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[78]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[78](supra) at paragraph [11]
217 The plaintiff continues to suffer constant fluctuating lower back pain which radiates into her buttocks. On occasions, she also experiences flare ups where the pain is more severe.[79]
[79]8 January 2020 affidavit
218 As counsel for the plaintiff submitted, the totality of the medical evidence was strongly consistent with the plaintiff’s complaints of ongoing mechanical lower back pain.[80]
[80]T69
219 All recent examiners have been told by the plaintiff of her constant low back pain and experience of flare ups. They all accept her complaints of restricted mobility and difficulty with prolonged postures. On examination, most examiners have found restricted lumbar movement, at times associated with pain.
Treatment
220 Although the plaintiff had taken painkillers on a long-term basis pre injury,[81] especially Mersyndol Forte for migraines, she presently requires an additional six Panadol Osteo per day for relief of back pain.
[81]T55
221 As Dodds-Streeton JA noted in Kelso v Tatiara Meat Co Pty Ltd,[82] where chronic pain was a feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication must, according to human experience, raise a real prospect of a very considerable consequence.
[82][2007] 17 VR 1
222 The plaintiff also uses Deep Heat packs and physio creams on her back.
223 The plaintiff has undergone a range of treatment for her back since July 2017. Initially, she had physiotherapy at Healthy Mates and also hydrotherapy at that time. She was finally referred for pain management last year, a course earlier suggested by a number of practitioners.[83] More recently, she underwent facet blocks in November last year and a radiofrequency denervation a matter of weeks before the hearing.
[83]T56
224 As counsel for the defendants conceded, the recent procedures undertaken would not be pleasant and that the Court could certainly look at the question of the necessity of the administration of those procedures.[84]
[84]T56
225 When I indicated I thought it was the highpoint of the plaintiff’s case, it was submitted that was correct, “because nothing else got anywhere near it in terms of consequences”.[85]
[85]T57
226 However, counsel for the defendants submitted Dr McCallum’s evidence was in an unsatisfactory state, mainly because his most recent report predated the last attendance on 23 January this year. As far as he was concerned, the branch blocks late last year were sufficiently diagnostically proven to him that a neurotomy would be useful to the plaintiff and improve her situation.[86]
[86]T57
227 Counsel raised concerns as to permanence in the absence of any report of Dr McCallum post the radiofrequency denervation procedure. It was submitted that it was incumbent on the plaintiff to prove that this procedure was not going to significantly improve the situation or put evidence to the Court about what the situation is likely to be, given that procedure has taken place, so the Court could see whether there was going to be any significant improvement.[87]
[87]T58
228 The plaintiff had simply said that there had been no improvement at this stage.[88] It was submitted it was unsatisfactory for her from the witness box to try and persuade the Court in terms of improvement or non-improvement. A credible witness did not overcome that problem, although it was not conceded the plaintiff was one, in deciding whether there was going to be significant improvement or not.[89]
[88]T58
[89]T59
229 Nor was this problem overcome by Dr McCallum’s view that the position was stable. Counsel for the defendants submitted a person who had terminal cancer may have a stable condition as their future was certain.[90] It does not establish what the level of disability there is going to be and it was submitted when one looked at the film, the plaintiff’s excuse for fluid bending was the improvement after the medial branch blocks, when it was clear she had earlier accepted that any improvement was limited to a matter of hours. There was no misunderstanding, she knew what she was being asked, and that was the answer she gave the first time, although she changed it the second time in cross-examination.[91]
[90]T59
[91]T60
230 It was submitted Dr McCallum’s comments that it was unlikely the plaintiff would ever be totally pain free in her lower back was a nebulous statement, but it was the best he could do.[92]
[92]T57
231 As counsel for the plaintiff submitted, the treatment the plaintiff had undergone was consistent with a woman who had experienced ongoing chronic pain, consistent with her evidence, because she would not have the procedures if she did not have to.[93]
[93]T67
232 Counsel for the plaintiff criticised what was described as a “convoluted” submission in terms of stability.[94] Any problems in terms of establishing permanency were denied. Two or three weeks after the radiofrequency there was no improvement. It was submitted it “defied belief” in those circumstances that at some point in the future there was going to be improvement and Dr McCallum “did not hang his hat on this potential miracle cure”. He was not saying in his report he was going to do that treatment and it was going to lead to some miraculous recovery. It was not the difficult situation where the plaintiff had experienced some improvement and then it would be a problem as to permanency.[95]
[94]T66
[95]T67
233 It was submitted there was no evidence to suggest the plaintiff’s medical condition had not stabilised, such as her saying she had had a good response to the procedure.[96]
[96]T69
234 It was submitted all the doctors in this case accept the plaintiff suffered, and continues to suffer, the effects of a lower back condition, all think it is going to continue, and while not all of them use the word “stabilised”, it is going to be permanent.[97]
[97]T60
Work
235 Counsel for the defendants submitted any employment consequences were not “serious”. The loss of amenity associated with the loss of a vocation or a trade is not present in this case. The plaintiff said she is happy in her job and enjoys it, working twenty-five hours a week and earning more than she did with the first defendant. It is not as if she had a passion to be a cleaner.[98]
[98]T50
236 It was submitted, on the defendants’ behalf, the plaintiff did not leave the first defendant because of her back condition. The plaintiff said had she not increased her duties beyond what she was doing before injury with the first defendant, she would still be there. It was submitted, in those circumstances, one was left with a situation where the plaintiff was really fit for her pre-injury duties as a cleaner.[99] This proposition was buttressed by the physiotherapist’s comments in August 2018.[100]
[99]T51
[100]T52
237 Further, the plaintiff knew what the job at Bolton entailed. It was advertised, and she applied for it while she was still with the first defendant. It was submitted the plaintiff’s evidence was she was able to do the duties with the first defendant until it tried to increase her hours to those worked pre-injury hours.[101]
[101]T65
238 However, as I pointed out during the hearing, the pre-injury hours were variable, ranging between twelve and thirty-eight hours per week.[102]
[102]T53
239 It was submitted that the plaintiff found a job that would be better for her, but she was not unfit for pre-injury work with the first defendant. She found a job she enjoyed at Bolton so she decided to resign from the first defendant. At that stage, there were no certificates of incapacity. There was no doctor who said that the plaintiff was not fit to continue work with the first defendant at her pre-injury hours. In fact, the only evidence was that from the physiotherapist who thought she would be ok.[103]
[103]T54
240 It was submitted Dr Rewani was not very helpful as she dealt with returns to work in early 2018, having last seen the plaintiff that April. So, at the end of the day, it was submitted there was no medical support for the proposition, certainly contemporaneous, that the plaintiff was actually unfit to perform her pre-injury duties with the first defendant. She made a call to leave, which may or may not have had an influence in relation to back problems, but there is no evidence it was a definitive factor.[104]
[104]T54
241 It was submitted the plaintiff was fit for a broad range of work and she has chosen a job quite naturally and reasonably that she enjoyed, in which she earned more than she was making with the first defendant. In those circumstances, on the basis of loss of occupation, it was “quite the opposite” to a serious consequence.[105]
[105]T55
242 As counsel for the plaintiff submitted, on the basis of all the medical evidence, there are restrictions on the sort of employment the plaintiff is capable of undertaking in the future.[106]
[106]T69
243 Counsel relied on the plaintiff’s affidavit evidence that she resigned from her employment with the first defendant due to her back pain, having struggled leading up to that time.[107] There was not an inconsistency in her viva voce evidence in this regard, although it was a bit confusing. She denied she left the first defendant because she wanted to start up a business. It was submitted the evidence was she left because of back pain. There was no evidence she left for any other reason. Further, all the medical evidence is to the effect the plaintiff cannot do her previous work, which was heavy repetitive cleaning work in the motel requiring heavy lifting, and that seemed to be unchallenged.[108]
[107]T52
[108]T65
244 I accept that the plaintiff resigned from the first defendant’s employ due to her back pain performing heavy work as she deposed. She had worked up to thirty-eight hours per week before injury and on her return to work post injury, she was unable to keep working when her hours were increased to seven hours a day.
245 Whilst the plaintiff is earning more in her job at Boltons, the consensus of medical opinion[109] is that she will be unable to return to unrestricted physical work of the type she carried out with the first defendant. That is a relevant consequence, although cleaning was clearly not the plaintiff’s vocation.
[109]Professor Bittar, Dr Rahgozar, Dr McCallum and Mr O’Brien
246 As Dr Doig explained, it would not be wise for the plaintiff to return to her pre-injury employment as a housekeeper/cleaner in view of the physical demands of that type of work, as there was a strong possibility of symptomatically exacerbating her spinal condition. In Dr Rahgozar’s opinion, the plaintiff was not fit for unrestricted pre-injury work. Professor Bittar thought she was permanently incapacitated for her pre-injury work as a housekeeper.
247 The plaintiff’s incapacity for her pre-injury duties is obvious given her difficulties with heavier housework just in her own home.
248 Further, the plaintiff is in a good position at Boltons where her job is not particularly arduous and she can sit and stand at will. Employment in the future may not be as accommodating to her condition.
Other consequences
249 I accept that following her back injury, the plaintiff‘s sleep has been interrupted in a different way to previously.[110]
[110]T55
250 Before mid 2017, the plaintiff had been prescribed Temaze for years to assist her to get to sleep. Post injury, the problem is being woken during the night because of back pain. Her sleep medication is now Circadin as it makes her less drowsy than Temaze.
251 I accept that the plaintiff is limited in her ability to sew and make clothes at home because of back pain associated with prolonged sitting. Before injury, she was able to make a range of items of clothing to sell in her business, as her husband confirmed. The business involves a different type of sewing to that undertaken at Boltons, where the plaintiff can sit and stand at will and simply puts a garment in a machine and then presses a button which applies the embroidery/logo to it.
252 While the plaintiff still enjoys attending markets to try to sell her clothing, she does not do so as frequently as before her injury.
253 The plaintiff is unable to do heavy housework such as sweeping because of her back pain. Her ability to enjoy gardening is reduced at times. She no longer enjoys camping with her sons as it is too uncomfortable sleeping on the ground and they now go in a caravan.
254 The plaintiff has a keen interest in cars, having obtained qualifications in that field pre injury. She now has difficulty working on her car because of back pain associated with bending over the bonnet or lying/bending down trying to work under the car.
255 Taking into account all the evidence, I am satisfied the consequences of the plaintiff’s lumbar impairment are “serious”. I accept, as counsel for the plaintiff submitted, there is unlikely to be any improvement, let alone significant improvement in the plaintiff’s back condition in the foreseeable future as a result of the recent procedure, given her early lack of response and, as such, her impairment is permanent.
256 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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