Nielsen v VWA
[2015] VCC 1013
•31 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-00407
| SINEAD NIELSEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 & 22 July 2015 | |
DATE OF JUDGMENT: | 31 July 2015 | |
CASE MAY BE CITED AS: | Nielsen v VWA | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1013 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Pain and suffering only - causation - whether back injury involved unresolved aggravation of pre-existing degeneration in lumbar spine.
Legislation Cited: Accident Compensation Act 1986
Cases Cited: Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I. Fehring | Ryan Carlisle Thomas |
| For the Defendant | Mr J. Batten | Hall & Wilcox |
HER HONOUR:
Introduction
1 I propose to grant leave to the plaintiff to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for aggravation injury to her lower back arising out of or in the course of her employment with Western Health. My reasons for so ordering are set out in the paragraphs that follow.
2 The plaintiff is a 59-year-old registered nurse. From 2002 she was employed by Western Health as a Division 1 Nurse. The circumstances in which she suffered compensable injury were described in the first of three affidavits sworn by the plaintiff on 27 September 2013, 25 June 2015 and 16 July 2015 respectively.
3 On 28 January 2007, assisted by another nurse, the plaintiff moved a very heavy patient at the Sunshine Hospital. While undertaking this manoeuvre the plaintiff experienced severe pain in her low back (the back injury).
4 Leave was sought under paragraph (a) of the definition of “serious injury” to recover damages for pain and suffering only for permanent serious impairment of the plaintiff's spine.
5 The defendant conceded compensable injury. The defendant further conceded there now existed a substantial organic basis for the plaintiff’s lower back symptoms, the pain and suffering consequences of which would ordinarily constitute a serious injury. However, the defendant submitted the back injury had involved transient exacerbation of symptoms of pre-existing multi-level disc degeneration in the plaintiff’s lumbar spine. In short, the defendant submitted the employment injury no longer contributed to the plaintiff’s current condition.
6 The plaintiff impressed me as a straightforward and careful witness. Her credit was not directly challenged. Instead, the defendant submitted poor memory rendered some parts of her evidence and the histories obtained by some doctors, unreliable.
7 Both parties tendered extracts from their Court Books.[1]
[1] Exhibits P1 (PCB) and D1 (DCB)
8 The plaintiff relied on the affidavits to which I have already referred. In addition to these and medical and radiological reports contained in the Court Book, the plaintiff tendered two pages from the records of treating general practitioner, Dr Kavanagh recording the prescription of the strong painkilling medication, Panadeine Forte on 7 February 2007, 16 February 2007, 13 March 2007 and 30 March 2007;[2] and a Notice dated 6 August 2013 from the insurer to the plaintiff notifying the plaintiff of her entitlement to an impairment benefit under section 98C of the Act in respect to impairment of her spine.[3] The latter document was tendered as confirmation of compensable injury.
[2] Exhibit P2
[3] Exhibit P3
9 The additional documents tendered by the defendant comprised a copy letter of referral dated 7 February 2007 from treating general practitioner, Dr Kavanagh to a physiotherapist, noting, among other things, a long history of neck and low back pain;[4] extracts from the medical records of the Point Cook Medical Centre for the period commencing 5 February 2009 to August 2013;[5] and extracts from the medical records kept by another general practitioner, Dr Anita Ritter for the period 23 October 2007 to 23 October 2012.[6]
[4] Exhibit D2
[5] Exhibit D3
[6] Exhibit D4
Background matters
10 Save for about a year out of the workforce after the birth of each of her children in 1979 and 1986 respectively, the plaintiff has a long history of working in the health and aged care sectors. She holds a Bachelor’s degree in Health Sciences. As mentioned, from 2002 the plaintiff was employed as a Division 1 Nurse at Western Health’s Sunshine Campus. The plaintiff was employed in the Geriatric Evaluation and Management Palliative Care Ward. In about 2005, she was promoted to the position of clinical nurse specialist. The latter meant the plaintiff participated in clinical training of other Division 1 Nurses. When she suffered the back injury the plaintiff was working four, eight-hour shifts, totalling 32 hours per week.
11 For more than six years between February 2006 and April 2012 the plaintiff was also employed performing casual theatre work at The Royal Australian Air Force Base at Laverton.
12 Each position held prior to the back injury involved hands-on nursing duties.
13 In both 1988 and 1995 the plaintiff was involved in motor vehicle accidents. On each occasion the plaintiff suffered whiplash injury.
14 Medico-legal specialists, orthopaedic specialists, Mr Kossmann and Mr Simm each obtained a history of investigation of back pain in 2005. In the case of Mr Simm he obtained a history of occasional backache requiring chiropractic treatment prior to the back injury.
15 Whilst, at hearing she was not able to recall having also had lower back problems prior to the back injury, the concession made by the plaintiff when seen by Mr Simm and the various records made before and since the back injury, indicated likely earlier periods of lower back pain.
16 At hearing, the plaintiff recalled treatment from chiropractor, Dr Karagiannis for mainly her neck condition and headaches but not her back. She also recalled having x-rays. An x-ray report for the plaintiff’s full spine and pelvis ordered by the chiropractor on 10 February 2005, among other things, relevantly contained the following information:[7]
· a reference to clinical notes which indicated: “Chronic history of neck and lower back pain. MVA in 1988. Whiplash injury”; and
· radiological evidence of mild spondylosis at the cervical, thoracic and lumbar levels of the spine as well as mild-to-moderate degenerative changes of the lower lumbar facet joints and mild osteophytic lipping of the lumbar spinal region.
[7] PCB 37a
17 Moreover, as mentioned, Dr Kavanagh’s referral of the plaintiff for physiotherapy some 10 days after the back injury, had noted a long history of neck and low back pain.
18 I proceeded on the basis that there was evidence of widespread but mild pre-existing degenerative disease in the plaintiff’s spine, with evidence that in 2005 spinal pain had warranted radiological investigation as well as treatment by a chiropractor.
Investigation, treatment and employment subsequent to the back injury
19 The plaintiff’s case was that she never fully recovered from the back injury. She put up with pain and persisted with her work because she was committed to nursing. Essentially, the plaintiff distinguished any impairment arising before the back injury, on the basis that any pre-existing condition had not been disabling or required ongoing treatment or prevented her from engaging in her usual working and domestic activities.
20 The plaintiff deposed that following the back injury she took a few days off work and then consulted Dr Kavanagh. He certified the plaintiff unfit for work, prescribed medication and, as mentioned, referred the plaintiff for physiotherapy treatment.
21 Under cross-examination, the plaintiff agreed that neck and back pain had been treated by a physiotherapist until May 2007 but said that any improvement in back pain was short lived. The plaintiff further agreed that when treated by musculoskeletal pain specialist, Dr Jensen, she had complained of both neck and lower back pain. It appears that whilst not tendered, Dr Jensen’s findings were summarised in the first of Mr Simm’s reports.
22 I was told the only radiology ordered before May 2012 was CT scan of the plaintiff’s cervical spine in 2007. Dr Jensen evidently treated the plaintiff in or about June 2007 for chronic neck and back pain, which the plaintiff attributed to the incident at work on 28 January 2007. At the time, he noted a past history of whiplash injury in 1998, which left the plaintiff with left-sided neck pain. According to Mr Simm’s summary of the content of Dr Jensen’s report, CT investigation of the cervical spine in May 2007 had returned a normal result. Apparently, Dr Jensen diagnosed mechanical dysfunction of the right cervical and right thoracolumbar junction regions. He also reported what he believed to be voluntary restriction of movement on passive joint motion. Mr Simm subsequently inferred from the latter observation that this was evidence of some amplification of pain and illness response. I will discuss Mr Simm’s evidence in more detail shortly.
23 The medical records show that in each of the years between 2007 and 2013 the plaintiff attended treating general practitioners in the treatment of, among other things, fluctuating levels of low back pain. The strong painkilling medication, Panadeine Forte was frequently prescribed in association with complaints of flare-ups in low back pain. The plaintiff deposed that in addition to physiotherapy, she had undergone chiropractic treatment on five or six occasions. None of these treatments, the plaintiff said, led to sustained improvement in the condition of her lower back.
24 The plaintiff deposed that following the back injury she had up to 2 weeks off work. The plaintiff returned to light duties working 24 hours per week until June 2007, when she resumed working her normal duties and hours.
25 The plaintiff deposed that, despite being careful about how she performed her work, she struggled to cope with her normal hours on full duties. In January 2008 the plaintiff applied to reduce her hours to 24 hours per week to allow more time for rest and to facilitate ongoing employment.
26 It appears that between March 2008 and August 2012 the plaintiff continued to perform her normal duties, albeit on reduced hours. The plaintiff did so in circumstances where in each year since March 2008 she has been obliged to take extensive periods of sick leave. One consequence of this was that in October 2011 the plaintiff was called upon by her employer to explain the amount of sick leave taken and to explain what she proposed to do about this circumstance.[8] The plaintiff’s response had been to indicate she would continue to manage as best she could by resting between shifts and taking the pain killing medication prescribed and, if needed, by using her sick leave entitlement.
[8]PCB 10d
27 There have been numerous flare-ups in lower back pain since the back injury, some more significant than others. The clinical notes generally confirm this. The plaintiff was not able to recall the circumstances giving rise to each occasion on which it was recorded she complained of a flare-up in back pain. When reminded of this, she did, however, recall an episode prior to attending a doctor on 5 February 2009.
28 On that occasion, the plaintiff was assisting a patient to move from a bedpan when she experienced lower back pain with pain radiating to the left lateral aspect of her left thigh. The entry made in the clinical record indicated, among other things, prescription of Panadeine Forte and that physiotherapy and lower back strengthening exercises had been recommended.
29 Whilst under cross-examination the plaintiff agreed that the sharp left-sided pain experienced in February 2009 was in a different location to the pain experienced in January 2007, I could see no proper basis for concluding that the later episode was other than one of many flare-ups in low back pain experienced since the back injury, often in association with the plaintiff’s work activities.
30 For instance, a previous flare-up was treated by another general practitioner, less than two months earlier, on 1 December 2008. The record shows the plaintiff reported a history of the back injury and complained of a recent flare-up in pain with lumbar spine pain radiating to her buttocks, in association with the need to wheel a lot of heavy patients in lifting machines. On that occasion, the plaintiff reported taking Mersyndol (every night) and Panadol, having occasional acupuncture and doing exercises from her physiotherapist. As far as I can tell from the record made, prescriptions for Panadol Osteo Modified Release and Panadeine Forte tablets were renewed together with the antidepressant medication, Avanza. The last mentioned medication has been prescribed for many years in the treatment of depression and symptoms of menopause.
31 The plaintiff deposed that her condition worsened and by May 2012 she decided she could not continue to perform hands on nursing duties.
32 On 9 May 2012, the plaintiff experienced severe back pain as she tried to rise from a sofa on which she had been seated and thereafter had difficulty in moving. The plaintiff said the last shift worked by her before this episode had been some days earlier, on 5 May 2012.
33 The plaintiff cancelled her work shift on 9 May 2012 and when her condition failed to improve with rest, she cancelled her work shifts for 10 and 11 May 2012. However, when her condition had not improved on Monday, 14 May 2012 the plaintiff attended her general practitioner, Dr Jayatilake. Panadeine Forte was prescribed and CT investigation of the plaintiff’s lumbar spine was obtained on the same date.
34 The plaintiff disputed the accuracy of the history recorded by Dr Jayatilake in his clinical notes on 14 May 2012. This was described as: “c/o lower back pain was liting at home on the weekend; had same few times last years; she works as a RN lifing a lot at work; radiated to R) buttock & upper leg post no pins or needles / app ok. no B&B problems (sic)”.[9] However, in a report dated 10 August 2013 the doctor appeared to contradict this account when he indicated that on 14 May 2012 the plaintiff’s back pain: “got aggravated as results of work she was doing as a registered nurse on previous days (sic)”.[10] Notably, the clinical notes recorded in the radiologist’s report made on 14 May 2012 did not resolve the conflict in the doctor’s accounts: (“Lower back pain for many months radiates to right lower leg buttock”[11]).
[9] Exhibit D3, 35-36
[10] PCB 12
[11] PCB 38
35 The plaintiff was adamant that the flare-up in pain occurred on Wednesday, 9 May 2012, not during the weekend before the consultation and had occurred in the circumstances described by her. As we now know, some but not all of the specialists who have reported on the plaintiff’s condition were left with the understanding that the episode of immobilising back pain on 14 May 2012 had occurred as a result of lifting. Be that as it may, the plaintiff was not given to exaggerating her predicament and, allowing for the conflict between the accounts recorded by the doctor, I was satisfied the plaintiff’s recollection of how and when the episode of pain had occurred was probably reliable. In all, this episode did not lead to a further non-work-related injury.
36 The CT scan obtained was from the L1 to the upper sacrum. The radiologist’s report relevantly found evidence of degenerative lumbar disc disease and reported as follows:
· reduced disc heights, vacuum effect and end plate bony spurs at the L3/4, L4/5 and L5/S1 levels, mildly reduced disc height at the L2/3 level and mild L3/4 facet joint osteoarthritis; and
· a minor posterior disc displacement at the L2/3 level, a small posterior disc protrusion and mildly thickened ligamentous flavum at the L3/4 level and small posterior disc protrusions at the L4/5 and L5/S1 levels with minor indentation of the theca at each of these levels.
37 The plaintiff was referred by the general practitioner to neurosurgeon, Mr Han. As his correspondence addressed to the general practitioner shows, in July 2012, the neurosurgeon took a history of the back injury. Apparently, the plaintiff complained of occasional sciatica down the right leg but indicated the majority of her pain was in her back. Mr Han diagnosed discogenic back pain arising from the lower three discs. He did not consider surgical intervention warranted at that stage. Instead, Mr Han’s advice in July 2012 was for the plaintiff to persist with a regime of using oral analgesia and rest periods to control pain, for the plaintiff to avoid repetitive bending and twisting of her lower back and for the plaintiff to be encouraged to pursue swimming and walking exercise.
38 In the meantime, Mr Han ordered MRI investigation of the plaintiff’s spine on 20 July 2012. Among other things, this investigation revealed multilevel disc degeneration from L2/3 downwards involving broad-based disc bulges at the L2/3, L3/4 and L4/5 levels with the lateral extension of these discs causing mild exit foraminal stenoses bilaterally, as well as a right paracentral disc protrusion at the L5/S1 level indenting the ventral aspect of the thecal sac.[12]
[12] PCB 39-40
39 As his letter to the general practitioner in September 2012 shows, in addition to reiterating his earlier findings and advice, Mr Han recommended the plaintiff remain on light duties in the same capacity rather than perform any manual handling which he believed could aggravate back pain.[13]
[13] PCB 37
40 The plaintiff remained off work until 20 May 2012 and, having already booked this, took annual leave between 21 May 2012 on 5 August 2012. However, until the employer was able to find suitable light duties to which the plaintiff could return, the plaintiff remained on leave (a combination of sick leave and annual leave) until about 24 August 2012. On that date the plaintiff returned to light duties, working 24 hours per week.
41 Apparently, the plaintiff took long service leave between April 2013 and August 2013. She resumed work until July 2014 performing light duties for 24 hours per week.
42 The plaintiff deposed that by July 2014 she struggled to cope with even light duties due to back pain. She applied for and was allowed to decrease her hours to 16 hours per week in light duties.
43 As I understood the evidence, the plaintiff has continued working these hours and performing light duties, the latter consisting of administrative and data entry tasks.
44 Dr Jayatilake diagnosed lower lumbar disc prolapse (“as per CT scan”[14]). Whilst none of the other medical evidence has suggested the back injury involved frank prolapse, Dr Jayatilake’s evidence indicated he linked the ongoing condition of the plaintiff’s back with the back injury as described by her in January 2007.
[14] PCB 12 and 13b
45 In his final report, dated 10 July 2015 Dr Jayatilake relevantly confirmed a number of matters.[15] Firstly, in his opinion his patient remained unfit for her pre-injury duties for the foreseeable future. Secondly, she attended his surgery on a monthly basis to obtain a WorkCover certificate for suitable light duties. Thirdly, the plaintiff was, this doctor believed, fit to perform light duties not involving manual handling of patients and with restrictions on performing more than two shifts in succession, on lifting to 5 kilograms and on standing and sitting for more than 30 minutes. Fourthly, that the plaintiff still took Panadeine Forte on a daily basis in the treatment of back pain. Lastly, in this doctor’s opinion work-related impairment of the plaintiff’s back also restricted the plaintiff’s social, domestic and recreational activities for the foreseeable future.
[15] PCB 13b-c
The nature of the injury
46 The plaintiff satisfied me that following the back injury, there had been a significant and likely enduring change in the level and frequency of low back pain and in the treatment received. On the available evidence, I was satisfied the back injury involved an aggravation and, objectively speaking, a worsening of the underlying pathology. In short, I rejected the defendant’s submission that this had been a temporary symptomatic increase in the pre-existing degenerative disease.
47 The defendant placed particular reliance on Mr Simm’s reports submitted in January 2014 and April 2015 and to a lesser extent on the reports of occupational physician, Dr Baynes in 2013 and 2015. I concluded that, at the very least, both these specialists had not fully apprehended the history of the plaintiff’s treatment for low back symptoms after the back injury when, in 2015, they each opined the back injury had temporarily increased symptoms in the plaintiff’s low back and the underlying disease pathology was now responsible for the current level of impairment of the lower back.
48 I do not propose to repeat in detail the content of lengthy reports produced by Mr Simm and Dr Baynes.
49 Mr Simm was well acquainted with the circumstances in which the back injury arose and the circumstances in which the flare-up in lower back pain occurred in May 2012. He was also familiar with the results of the radiology obtained before and since the back injury.
50 In these reports, Mr Simm relevantly recorded the following matters:
· he diagnosed severe long-standing constitutional multilevel lumbar disc degeneration resulting in increasingly severe pain in the lower back with referred pain into the plaintiff’s left lower limb without clinical signs of radiculopathy in the lower limbs;
· a history of medication in the treatment of depression associated with menopause since the back injury. Notably, Mr Simm appears to have relied on this history, various clinical signs such as a positive Waddell’s vertex compression response as well as Dr Jensen’s reported observations when he further concluded there was a chronic adverse pain response in association with depression. This was, Mr Simm said, additional to the severe multilevel organic disease. In my view the plaintiff’s counsel was correct in his submission that Mr Simms had not provided any proper explanation for the additional diagnosis of chronic adverse pain response with a non-organic component;
· evidence of significant low back pain immediately after the back injury which remained disabling for a period of time could support the contrary argument that the back injury had caused sufficient damage to an already compromised lumbar spine to accelerate the established pathology. I understood this and other statements made by Mr Simm to similar effect to mean that, had the history of likely unresolved injury as disclosed at hearing been available to Mr Simm, he would have viewed the plaintiff’s case differently;
· in his first report, Mr Simm attributed a substantial loss of function of the spine to the underlying pathology yet, somewhat confusingly, appeared to accept that the back injury had not resolved and was causally linked to the consequences alleged when he added: “It may be accepted that there is a small contribution to this loss of body function of the back from the claimed compensable injury”;[16]
· the incident which occurred at home in May 2012 was consistent with spontaneous disruption of degenerate lumbar intervertebral disc and had initiated a deterioration in the clinical course of the degenerative lumbar pathology. In his final report Mr Simm added: “This opinion relies on the history that from the time of that injury on 28 January 2007 she has consistently reported worse symptoms than she had prior to that injury. There is a substantial component to her chronic lumbar symptoms from constitutional advanced multilevel degenerative pathology. Her clinical course has also been modified by the development of a chronic adverse pain response”.[17] In my view, the plaintiff’s counsel correctly noted the confusion involved in this evidence. I was not satisfied that this evidence was capable of an interpretation which advanced the defendant’s case that the back injury was simply a temporary exacerbation of symptoms of underlying degenerative disease.
[16] DCB 31
[17] DCB 23
51 Having read Dr Baynes reports, I was not satisfied his opinion on the issue of causation assisted the defendant’s case. Whilst Dr Baynes also found some evidence of illness behaviour, which he attributed to an unconscious attempt to act protectively, he diagnosed an organic condition namely: “…a chronic pain syndrome associated with chronic lower back pain in association with degenerative changes to the L2/3 to L4/5 disc levels with disc degeneration and facet joint degenerative changes. The pain is likely a combination of discogenic pain with a facet joint component”.[18]
[18] DCB 4
52 In his first report Dr Baynes concluded that work had likely been a contributing factor to the aggravation of a pre-existing asymptomatic injury and, notwithstanding the circumstances the plaintiff said caused a flare-up in pain in May 2012, in Dr Baynes opinion the problem had continued since 2007. In short, when examined by Dr Baynes in March 2013, he considered the back injury was a cause of the plaintiff’s current condition.
53 Having subsequently examined Dr Jayatilake’s clinical notes, on 4 April 2013 Dr Baynes advised that he no longer considered the plaintiff current condition to be related to the back injury. He also appeared to accept, wrongly as it turned out, that the May 2012 incident as recorded by Dr Jayatilake had occurred as a result of some lifting incident at home.
54 By March 2015, Dr Baynes had received a number of additional documents, Dr Jayatilake’s report dated 10 August 2013, Dr Jensen’s report dated 6 June 2007, Mr Han’s correspondence in July and September 2012 as well as the CT and MRI investigations obtained in 2012.
55 As far as I could tell, none of the additional material contained any detailed medical summary of the plaintiff’s progress following the back injury. In fact Dr Jayatilake’s report simply recorded having seen the plaintiff for back pain on various dates commencing from 6 August 2012. The reports of Dr Jayatilake and Mr Han, nonetheless, linked the plaintiff’s condition to the back injury.
56 From my reading of Dr Baynes’ final report, he selected various entries from the general practitioner’s medical records, which involved complaints of back pain in association with gardening activities or, as in May 2012, with what he wrongly accepted involved a lifting incident. Apparently, based on these events and the other materials available to him, Dr Baynes concluded that the back injury had involved an aggravation of a pre-existing back condition and the incidents reported to the general practitioner had involved further aggravation injuries: “There were further injuries aggravating the back by lifting at home and gardening. This has aggravated pre-existing degenerative change in the lumbar spine and I believe the ongoing symptoms are now related to pre-existing degenerative lumbar disease rather than a work-related injury”.[19]
[19] DCB 5
57 I was at a loss to understand from reading his reports and the materials on which he relied how Dr Baynes arrived at the conclusion that the back injury had fully resolved.
58 None of the doctors have found the plaintiff fit to return to her pre-injury duties for the foreseeable future. Indeed, it was common ground that plaintiff’s capacity for employment was limited to sedentary duties with restrictions on her lifting capacity and prolonged sitting, standing or walking. Where considered by them, the data entry and administrative duties currently performed by the plaintiff have met with the doctors’ approval. The plaintiff believed she was working to her full capacity, that is to say two shifts or two days per week. On the other hand, Dr Baynes, concluded the plaintiff had a capacity to increase her hours to 4 days per week. Again, his report was unclear about why this increase in her hours was feasible given the plaintiff’s current medication regime and the evidence that her condition has likely deteriorated.
59 In determining this application, I have preferred particularly the conclusions expressed by Mr Kossmann in reports submitted in 2013 and 2015. He was well informed as to relevant background factors, including the circumstances attendant on the May 2012 episode of disabling low back pain when Mr Kossmann advised as follows:
· the back injury had aggravated the underlying pathology leaving the plaintiff with discogenic and mechanical back pain;
· the episode of severe back pain in May 2012 represented a deterioration of the back injury in circumstances where Mr Kossmann accepted that since the back injury the plaintiff had never been free of pain and had never regained her full work capacity;
· the plaintiff was permanently incapacitated from performing her pre-injury duties;
· the plaintiff’s capacity for suitable employment was permanently limited to light duties. Mr Kossmann appeared to accept the plaintiff’s claim that 16 hours per week represented the limit of her residual capacity;
· there were permanent restrictions on the plaintiff’s social, domestic and recreational activities;
· ongoing conservative treatment was appropriate. In this regard, Mr Kossmann appeared to endorse the approach recommended by the treating neurosurgeon, Mr Han in 2012, namely medication with access to other supportive therapies such as physiotherapy, hydrotherapy or acupuncture.
60 Occupational physician, Dr Horsley examined the plaintiff at the request of her solicitors on 26 March 2015. She too concluded that the back injury involved unresolved aggravation of underlying pre-existing lumbar spondylosis.
61 Dr Horsley confirmed that the plaintiff was permanently unfit to resume her former role as a Division 1 Nurse working on a ward. In effect, she accepted that the current duties performed over two days, involving data entry with an ability to alter posture regularly, represented suitable employment and the extent of the plaintiff’s capacity. Indeed, in Dr Horsley’s opinion, any increase in the hours worked would likely increase back irritability and impact on the plaintiff’s reliability as an employee. In this case, the last mentioned statement assumes some significance given the plaintiff’s historical dependence on using sick leave and other leave entitlements to rest and recover from periods of back pain.
62 The plaintiff placed particular reliance on Dr Horsley’s report insofar as this doctor’s evidence helped establish the extent of the work and functional restrictions applicable to the plaintiff. It goes without saying that the work and functional restrictions applicable in the workplace probably apply across areas of activity other than in the workplace.
63 Dr Horsley envisaged work restrictions involving avoidance of repetitive overreaching, repetitive pushing and pulling, static postures involving the lumbar spine, repetitive bending and lifting, truncal rotation, lifting items exceeding 8 to 10 kilograms except on an occasional basis and lifting items up to 5 to 8 kilograms on a repetitive basis and the adoption of good handling techniques even when lifting light items.
64 Dr Horsley found that the plaintiff’s functional tolerances were quite poor. For instance, her sitting tolerance ranged between 10 and 30 minutes depending on whether it was a good or bad day, her static standing tolerance was 10 minutes, her dynamic standing and walking tolerances were 10 to 15 minutes and her driving tolerance was 20 to 30 minutes in an automatic vehicle with power steering.
65 In summary, I was satisfied that the back injury involved an unresolved aggravation injury to the lower back, one likely consequence of which was that the plaintiff had lost her career as a Division 1 Nurse. The last mentioned loss as well as the plaintiff’s undoubted frustration in not being able to return to a career to which she had been committed over many years was relevant to my assessment of the pain and suffering consequences.[20]
The comparison between impairment consequences of the pre-existing condition and the impairment consequences of the back injury
[20]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 [35]
66 The evidence identifying and contrasting the impairment consequences of pre-existing degenerative disease in the lower back with the impairment consequences of an aggravation injury from which I have accepted the plaintiff never recovered, was to the following effect:
· until the back injury, medication had not been prescribed for pain affecting the low back whereas Panadeine Forte, which the plaintiff currently uses, has been prescribed in the treatment of low back pain since the back injury. The records extracted from the clinical records of various general practitioners on whom the plaintiff attended for treatment of low back pain following the back injury (including Dr Kavanagh, Drs Siddique and Jayatilake from the Point Cook Medical Centre and Dr Ritter), among other things, verified repeated prescription of this strong pain killing medication (at times in conjunction with other medication for pain relief and on one occasion on 13 August 2012 a different codeine and paracetamol based medication, Prodeine Forte) in association with the back injury in each year between 2007 and 2015. Whilst under cross-examination the plaintiff accepted Panadeine Forte was prescribed on 17 March 2010 in treatment of neck pain, based on the plaintiff’s evidence and the records kept,[21] I was satisfied that on other multiple occasions this strong pain relief medication was prescribed for relief of lower back pain. The medical evidence indicated an ongoing need for the use of strong pain killing medication;
[21] TN34-35
· the same clinical notes recorded attendances throughout this period with complaints of pain and disability due to low back pain and restrictions subsequent to the back injury, with referral for physiotherapy at different times. The medical evidence indicated the need for ongoing conservative treatment with access to additional therapies;
· before the back injury, in addition to her usual day to day activities, the plaintiff had been able to perform her normal nursing duties and hours. I have already set out the changes that have occurred since the back injury as well as the evidence that the plaintiff has effectively lost her career and is now permanently limited to performing light administrative-type duties she deposed she just coped with for two days per week;
· before the back injury the plaintiff apparently coped both at work and in other spheres of activity without regular prescription of pain killing medication or regular attendances on her doctor for treatment of lower back pain. Under cross-examination the plaintiff conceded she suffered daily neck pain with headaches once or twice a week. However, the plaintiff now described chronic and progressively worsening levels of lower back pain (Dr Horsley recorded pain varying from 5/10 to 10/10, the latter a couple of times each week until the plaintiff took pain killing medication[22]) as well as intermittent sharp shooting pains radiating down her leg which could occur several times daily and at night;
· since the back injury the plaintiff has reported significant disturbance of her sleep. She deposed she was lucky to get 3 to 4 hours sleep nightly and woke with back pain;
· I have already summarised the work and functional restrictions Dr Horsley explained were impacting on the plaintiff’s capacity to engage in unrestricted work or to drive more than 20 to 30 minutes. These restrictions also impacted her domestic and recreational environments. I had no difficulty in accepting that since the back injury the plaintiff, who lives alone, has needed assistance in performing particularly heavier domestic tasks such as vacuuming and shopping or cleaning the bathroom. Whilst the plaintiff has a garden and lawnmower, she told the Court she was no longer capable of sweeping the paths much less working in the garden or mowing the lawn.
[22] PCB 32
Conclusions
67 To summarise, the plaintiff has satisfied me that:
· she suffered a compensable aggravation injury to her lower back as a result of the back injury on 28 January 2007; and
· the impairment consequences of the aggravation injury were as described above.
68 In assessing whether the pain and suffering and loss of enjoyment consequence of the back injury met the test I was required to consider globally all of the pain and suffering experienced by the plaintiff to which the back injury materially contributed. In my view the consequences summarised, the intensity of the pain described and the interference of pain with the plaintiff’s functioning and way of life indicated a serious aggravation injury for the purposes of the Act. I found the plaintiff’s approach to particularly her work indicative of a high level of fortitude in the face of likely work-related exacerbations of lower back pain.
69 The test requires that the court compare the pain and suffering consequence of the back injury with other cases in the range of possible impairments or loss of a body function to determine whether these are fairly described as being more than significant or marked and as being at least very considerable. The test involves a value judgement in which matters of fact and degree and of impression all play a role.
70 My summary of the pain and suffering and loss of enjoyment of life consequence, bearing in mind the significance of what was lost, was in my view consistent with a finding that the consequence in respect to the back injury was at least very considerable. This conclusion was reached having considered all of the pain and suffering consequences relating to the back injury at the date of hearing and, in so far as this was necessary, having also separated these consequences from the consequences of any ongoing unrelated complaints of, and treatment for, neck pain and headaches.
71 The plaintiff has met the requirements of the narrative test. As earlier indicated I propose to make an order granting leave to institute proceedings for pain and suffering damages only.
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