Nutting v Goodstart Early Learning Ltd
[2022] VCC 823
•24 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05707
| EMILY KATE NUTTING | Plaintiff |
| v | |
| GOODSTART EARLY LEARNING LTD (ACN 139 967 794) | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 26 July 2021 | |
DATE OF JUDGMENT: | 24 June 2022 | |
CASE MAY BE CITED AS: | Nutting v Goodstart Early Learning Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 823 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar and thoracic spine – causation – whether progressive injury caused over the period of employment – whether multiple injuries – reliability – disentanglement – impairment consequences – pain and suffering only
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s5, s325(1), s335(2)(d); Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Gholizadeth v Victorian WorkCover Authority [2020] VCC 142; Hunter v Transport Accident Commission [2005] VSCA 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Humphries and Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; O’Neill v T D Williamson Aust Pty Ltd [2008] VSC 398; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Accident Compensation Commission v Tilley (1992) 2 VR 499; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; Harvey v Methodist Ladies College [2008] VSC 425; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; Transport Accident Commission v Zepic [2013] VSCA 232; Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 267; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Demmler v Transport Accident Commission [2018] VSCA 284
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr P Haddad | Dimitra Panagopoulos |
| For the Defendant | Ms B A Myers | MinterEllison |
Table of Contents
Introduction
Evidence
Background
Employment with the Defendant
5 June 2014 incident
10 December 2014 incident
Subsequent employment with the Swim Factory
Medical history and treatment
Chronic fatigue/fibromyalgia, endometriosis, depression
Lumbar and thoracic spine condition
Bilateral shoulder bursitis and tendonitis
Medico-legal expert opinions
Clinical Associate Professor Bruce Love, orthopaedic surgeon – Melbourne Joint Replacement
Dr Jurie Snyman, occupational and environmental physician
Dr Graeme Doig, orthopaedic surgeon
Mr Thomas Kossmann, orthopaedic surgeon
Dr Dominic Yong, occupational physician
Medical Panel Certificates of Opinion
The issues and submissions
Is Ms Nutting credible and reliable?
Chronic fatigue/fibromyalgia condition
Increase in prescription of Zoloft medication
Injury and relationship breakdown
Conclusion on credibility and reliability
From what injuries/medical conditions was Ms Nutting suffering at the date of the application?
What are the impairment consequences of Ms Nutting’s spine injury?
Disentanglement
Are the consequences of Ms Nutting’s spine injury “serious”?
Conclusion
HER HONOUR:
Introduction
1By Originating Motion dated 21 December 2020, Ms Nutting, who was employed as a childcare worker with the defendant, Goodstart Early Learning Ltd (“Goodstart”), from 2007, sought leave pursuant to s335(2)(d) of the Workplace Injury, Rehabilitation and Compensation Act 2013 (“the Act”) to commence proceedings for damages for pain and suffering.
2On 5 June 2014, and during the course of her employment, she claimed to have suffered a “serious injury” to her lumbar and thoracic spine, as per the definition in paragraph (a) of s325(1) of the Act, being a permanent[1] serious impairment or loss of a bodily function.
[1] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 (“Barwon Spinners”) at paragraph [11]
3The body function relied upon as being impaired was the spine.
4The foreshadowed claim of suffering from a “serious injury” within the meaning of sub-paragraph (c) of s134AB(37) of the Accident Compensation Act 1985 or s325(1) of the Act in respect of psychological injuries was not pursued at trial.[2]
[2] Plaintiff’s Submissions, at paragraph [3]; Transcript (“T”) 82; Line/s (“L”) 20-25
5According to s5 of the Act, where a plaintiff seeks compensation for an injury arising out of, or in the course of employment by way of gradual process over a period beginning before and continuing after 1 July 2014, the Act (as opposed to the Accident Compensation Act) will apply. For the reasons which follow, I am satisfied that Ms Nutting’s injury can properly be characterised as occurring through the course of employment over a period beginning before and continuing after 1 July 2014. Accordingly, I shall treat the application as operating under the Act.[3]
[3]Gholizadeth v Victorian WorkCover Authority [2020] VCC 142, where Judge Bowman held that despite the plaintiff relying on a particular date of injury in the course of employment, the Accident Compensation Act should apply as the plaintiff placed particular emphasis on the incident occurring before 1 July 2014
6In determining the application Ms Nutting has the burden of proof on the balance of probabilities. The psychological or psychiatric consequences of the back injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.[4] The Court must make the assessment of “serious injury” at the time the application is heard.[5] The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[6]
[4] Section 325(2)(h) of the Act
[5] Section 325(2)(j) of the Act
[6] Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33] to [36]
Evidence
7At trial, Ms Nutting gave evidence and was cross-examined.
8Three affidavits were sworn by Ms Nutting respectively on 18 August 2020, 2 July 2021 and 9 July 2021. These were tendered together with the balance of the Plaintiff’s Amended Court Book dated 9 July 2021 and the Defendant’s Amended Court Book dated 12 July 2021.
9Each court book contained various documents, medical and radiological reports, other materials from Ms Nutting’s claim file as well as taxation and financial documents. I shall refer only to those parts of the evidence and tendered documents which are most relevant and which I have relied on in reaching my decision.
Background
10Ms Nutting was born in November 1984 and is currently thirty-six years old.
11She was previously married but separated from her husband in 2013. She has two children, currently aged eight and eleven years old.
12Following completion of Year 12, Ms Nutting worked as an attendant at a chicken shop, a labourer, a nanny and as an assistant in a retirement home.
Employment with the Defendant
13Ms Nutting commenced employment at ABC Learning Centre in Narre Warren as a childcare worker in 2007.
14ABC Learning Centre was subsequently taken over by Goodstart.
15Save for periods of maternity leave with both of her children, Ms Nutting usually worked a total of 22.5 hours per week over three days in the kinder room. Her daily activities included assisting children with toileting, changing nappies, undertaking play activities with the children, serving food and supervising feeding. She said the tasks were repetitive and required her to adopt ergonomically unsafe postures regularly throughout the day while lifting, carrying and holding children.
5 June 2014 incident
16On 5 June 2014, Ms Nutting says while she was bending over to pick up a toy from the ground, following a lot of lifting and carrying of young children, she suffered an injury to her lower back.[7] She was in a lot of pain, and she was unable to work for approximately a month.
[7] Exhibit A, unsworn affidavit of Ms Nutting dated 18 August 2020 at paragraph [2](a)
17She made a worker’s compensation claim on 17 June 2014 which was accepted, and she received weekly payments of compensation and medical expenses, including for physiotherapy.
18Ms Nutting sought treatment and was certified unfit for work.
19In mid-July 2014, Ms Nutting returned to work on reduced hours. She said that there was no return-to-work plan provided for her and the job requirements were not properly assessed, given her low-back injury. She gradually increased her hours over the following months to her pre-injury hours.[8]
[8] Exhibit A, unsworn affidavit of Ms Nutting dated 18 August 2020 at paragraph [18]
10 December 2014 incident
20On 10 December 2014, Ms Nutting was lifting small children throughout the course of the day when she suffered a further injury to her lower back.[9]
[9] Exhibit A, unsworn affidavit of Ms Nutting dated 18 August 2020 at paragraph [2](b)
21On 22 December 2014, she made a second worker’s compensation claim which was accepted. She again received weekly payments of compensation and medical expenses as a result of the claim.
22Ms Nutting was off work for many months, resuming employment in late April/early May 2016 at the defendant’s premises in Pakenham, working four hours a day, two days per week.
23Ms Nutting managed to increase her hours to about 20 hours per week; roughly the hours she worked before her first injury.
24Ms Nutting received top up WorkCover payments until January 2017.
25In June 2017, Ms Nutting ceased work with the defendant because of her lower back pain.
Subsequent employment with the Swim Factory
26In August 2018, Ms Nutting commenced employment as a swim teacher at the Swim Factory in Cranbourne, where she continues to work. Her duties include a combination of desk work and conducting swimming lessons in the pool.
27Ms Nutting works 18 to 20 hours per week. Between Monday and Thursday, Ms Nutting works two to three hours per day conducting swimming lessons in the pool. On Saturdays and Sundays, Ms Nutting works four-and-a-half hours in the pool conducting swimming lessons. On Fridays, Ms Nutting works two hours at the desk.
Medical history and treatment
Chronic fatigue/fibromyalgia, endometriosis, depression
28Prior to 2014, Ms Nutting had a range of pre-existing medical conditions.
29There was no real dispute between the parties that in approximately 2001, Ms Nutting contracted glandular fever. She subsequently developed symptoms of tiredness and Chronic Fatigue Syndrome/fibromyalgia.[10] She reported these to her general practitioner, Dr Paul Shire, including on 13 March 2014 when she was struggling to stay awake and was having poor sleep.
[10] Exhibit A, third affidavit of Ms Nutting sworn 9 July 2021 at paragraph [3]
30It was also accepted that Ms Nutting suffers from longstanding depression. She was admitted as an inpatient to Southern Health Mental Health from 13 to 28 February 2013 for post-natal depression. She reported poor sleep, anxiety and an inability to complete her daily tasks. She was prescribed anti-depressant medication and said this adequately treated her condition.
31Ms Nutting also suffers from endometriosis.
32Ms Nutting had some temporary back pain around the time of the birth of her children, but otherwise said she had not had any symptoms consistent with a spinal condition prior to 5 June 2014.
Lumbar and thoracic spine condition
33On 5 June 2014, Ms Nutting said she saw Dr Linda Head, general practitioner, complaining of mid and lower back pain with no radiation, numbness or weakness. She described experiencing some back discomfort after having children but gave no history of other past trauma. Dr Head referred Ms Nutting for x-rays and scans.
34On 10 June 2014, Ms Nutting underwent x-rays of the lumbar and thoracic spine.
35On 2 July 2014, Ms Nutting had CT scans of her lumbar and thoracic spine. The report of the CT lumbar scan revealed a small central disc-bulge at the L4-5 disc-level. It also described minimal left lower thoracic scoliosis, mild thoracic disc degenerative changes in the mid thoracic region with minor osteophyte formation.
36Dr Head recommended conservative physiotherapy and chiropractic treatment and certified Ms Nutting unfit for work.
37Ms Nutting attended her local chiropractor for three sessions in June and July 2014.
38Ms Nutting said that by mid-July 2014, her lower back pain was no better and she returned to see Dr Head.
39On 15 July 2014, Ms Nutting was referred to see Mr Asokarajan, physiotherapist. Mr Asokarajan noted that Ms Nutting had undergone spinal manipulative therapy with a chiropractor “for the last few weeks with no real change in symptoms”. She was reporting left-sided lower back pain with aching pain in her hip, knee and ankle joints. There were no neural symptoms. She was observed to have good range of movement in her lumbar spine, with a slight list to the right side.
40On 28 July 2014, Dr Mark Overton, general practitioner, prepared a letter of referral for Ms Nutting for physiotherapy. On 30 July 2014, Ms Nutting was assessed for a physiotherapy management plan by Mr Voronov. At the time she presented, she reported 8 out of 10 back pain.
41On 26 August 2014, Ms Nutting saw Clinical Associate Professor Bruce Love, orthopaedic surgeon, at the request of Gallagher Bassett Services for an independent medical examination.
42On 5 November 2014, Dr Head wrote to the defendant and outlined that Ms Nutting had suffered from Chronic Fatigue Syndrome for several years. It had been reported to be much worse over the previous few months. She was consistently tired. By this time, Ms Nutting was working Tuesday, Wednesday and Thursday each week for 7.5 hours per shift.
43Ms Nutting saw Dr Andrew Foote, rheumatologist, at the Rheumatology Clinic at Casey Hospital on 18 November 2014. Dr Foote did not diagnose her condition and instead referred her for further tests.
44On 16 December 2014, Ms Nutting was reviewed by Monash Health in relation to her fatigue and polyarthralgia. A history of endometriosis, tonsillectomy and eczema were noted. Ms Nutting was regarded as having polyarthralgia with a mildly elevated CRP and low ferritin. Her prescription of Lyrica was increased to 75 milligrams nocte.
45After Ms Nutting developed further symptoms of pain in her lower back on 10 December 2014, she returned to her general practitioner complaining of ongoing lower back pain. She returned for physiotherapy treatment with Mr Voronov, who also provided Ms Nutting with a home exercise program.[11]
[11] Exhibit A, unsworn affidavit of Ms Nutting dated 18 August 2020 at paragraph [20]
46On 27 January 2015, Ms Nutting was seen at Monash Health for consideration of the diagnosis of fibromyalgia or inflammatory arthritis. Monash Health wrote to Narregate Medical & Dental Centre in relation to Ms Nutting’s attendance. The letter noted that a bone scan had been taken which was negative and inflammatory markers were revealed as remaining largely normal. Ms Nutting considered that her symptoms had improved. Fatigue and mild arthralgias remained largely unchanged.
47A letter from Mr Voronov dated 29 January 2015 referred to the earlier CT scan which had revealed a small central disc bulge at the L4-5 disc-level. It then noted that he had later discovered that Ms Nutting also suffered pain in both wrists and ankles simultaneously. This had led him to suspect a cervical spinal cord compromise. Ms Nutting had also reported to him that she had suffered chronic fatigue for eight to nine years and had experienced GIT disturbances and frequent headaches. Mr Voronov considered that the symptoms pointed to a diagnosis of dysautonomia. He considered Ms Nutting’s main problem was extreme fatigue in her spine with standing posture as she reported having a tolerance for 5 to 10 minutes before needing to sit down or lean on something. He thought this was caused by her neck and thoracic region.
48Ms Nutting ceased her physiotherapy sessions on 25 March 2015.
49A further letter from Mr Voronov dated 14 May 2015 opined that the injury on 5 June 2014 had caused the central L4-5 disc-bulge, scoliosis and degeneration of the mid-thoracic spine because Ms Nutting had not been suffering any symptoms of pain in her back before the injury. Ms Nutting was noted to have deteriorated since she ceased physiotherapy and had increased mid and lower back pain most days, requiring her to take the anti-inflammatory Mobic every morning.
50By July 2015, Ms Nutting said her back had not improved. She consulted Dr Neil McCann, general practitioner, at Pakenham Family Health on 7 July 2015 complaining of pain in the dorsal and lumbar regions of her back.
51Dr McCann referred her for an MRI scan of her thoracolumbar spine which was performed on 21 July 2015. The report described mild left facet degeneration at L3-4, a desiccated disc with a prominent posterior annular fissure and a small focal central posterior disc protrusion, as well as mild facet degeneration at L4-5. There was no canal or foraminal stenosis. The report also described right T3-4 facet arthrosis and features within the thoracic spine suggestive of Scheuermann’s disease.
52On 8 October 2015, Ms Nutting consulted Dr McCann, who prepared a letter of referral to Ms Dianne Abrahams. The letter noted that Ms Nutting had depression in 2009 and in 2014 and had been prescribed Zoloft tablets 100 milligrams, two mane. A further letter of referral was prepared to Dr Clayton Thomas, pain specialist, requesting assessment and management of Ms Nutting’s pain related to her work injury.
53On 13 December 2015, Dr Overton prepared a letter to Ms Nutting’s solicitor. After noting his consultations with Ms Nutting on 28 July 2014, 30 June 2015 and 11 September 2015, he referred to Ms Nutting’s initial chiropractic, and consequent physiotherapy, treatment following the 5 June 2014 incident. He said Ms Nutting had improved substantially by October 2014; however, she developed further pain in December 2014 after working in the babies’ room for two days and had experienced pain “most of the time since then”.[12] On examination, he noted that there was lumbar tightness with a good range of movement.
[12] Exhibit A, p 29
54On 22 February 2016, Dr McCann prepared a letter, noting that Ms Nutting had not worked since December 2014, apparently for reasons unrelated to Ms Nutting’s back injuries.
55On 19 July 2016, Ms Nutting had plain x-rays performed of the full spine and pelvis. The thoracic spine showed minimal scoliosis with convexity to the right, and spondylosis in the mid-lower thoracic spine. There were also multiple compression fractures in the mid-thoracic spine with more than 20 per cent reduction in height. There was a loss of normal cervical lordosis of the cervical spine with a lordotic angle of 14 degrees. There was no indication of significant spondylosis or loss of disc height.
56On 11 August 2016, Ms Nutting saw Mr Etherington, spine surgeon, on referral from Dr McCann. Mr Etherington took a history and noted the persistence of Ms Nutting’s symptoms. Ms Nutting was reporting that her symptoms were worse than they had been when she was injured two years previously.
57Mr Etherington noted that Ms Nutting had two independent areas of pain. The first area was in the mid-thoracic spine along the midline. The pain there was described as “virtually constant” but did fluctuate slightly. Ms Nutting reported that the pain was made worse when trying to extend her spine, but that she also found prolonged standing and sitting could be uncomfortable. The second area of pain was in the midline in the low lumbar area. That pain was said to be usually present after activities and was usually not quite as bad. However, when it was bad it could radiate to the buttocks on both sides and down the posterolateral aspect of both thighs to the knees.
58On 18 August 2016, Ms Nutting had a non-contrast CT scan of the thoracic and lumbar spine. The report described degenerative spine disease with a mild narrowing of the T4-T5, T5-T6, T6-T7 and T7-T8 disc spaces, as well as moderate degenerative changes at the right T4-T5 facet joints and bilateral L4-L5 facet joints. There was moderately active right T4-T5 facet joint arthropathy and mildly active T7-T8 degenerative disc disease. The CT scan showed some disc irregularity from T5 through to T8 and there were some arthritic changes at T8-T9.
59On the same day, Ms Nutting had a CT-guided injection to her thoracic and lumbar spine.
60A bone scan dated 18 August 2016 showed increased uptake at the T7-8 disc, the right T4-5 facet joint and at the costovertebral joints. There was mildly increased osteoblastic activity in the bilateral sacroiliac joints in keeping with sacroiliitis. It was concluded that there was moderately active right T4-5 facet joint arthropathy, mildly active T7-8 degenerative disc disease and mildly active presumed degenerative sacroiliitis.
61On 25 August 2016, and on 5 September 2016, Ms Nutting consulted Mr Etherington again.
62A letter dated 5 September 2016 from Mr Etherington to Dr McCann identified that Ms Nutting’s imaging studies demonstrated an increased uptake at the T7-8 disc and at the right T4-5 facet joint and costovertebral joints. The CT scan was abnormal and showed some disc irregularity from T5 to T8 and some arthritic changes at T8-9. There was no spinal cord compression. Mr Etherington said he had referred Ms Nutting for a T4-5 facet joint injection to avoid surgery.
63Mr Etherington also prepared a further letter dated 5 September 2016, referring Ms Nutting to Dr Dan Bates, sports medicine registrar at the Metro Pain Group. The letter referred to the L4-5 disc-segment as the most likely segment to be causing Ms Nutting’s problems; although it was stated not to be her main issue. It also suggested several possible sources of pain in the thoracic spine. The discs between T5 and T8 were noted to be abnormal and there was facet arthropathy on the right at the T4-5 level. Ms Nutting had also been referred for a T4-5 facet injection.
64On 13 September 2016, Ms Nutting was admitted to Monash Health for paraspinal myositis and a paraspinal abscess. She underwent an MRI study which identified that there was an abnormal enhancement consistent with osteomyelitis and a small abscess at the T4-5 facet joint associated with the facet joint injection.
65On 6 October 2016, Dr Bates wrote to Mr Etherington following a consultation with Ms Nutting. He said that Ms Nutting had presented predominantly with somatic thoracic pain, likely arising from her right-sided T4-5 facet joint at the T4-5 and T5‑6 regions. The pain had been exacerbated by an infection after a facet joint injection in the setting of some lower back pain at the L4-5 disc. She reported the pain as 7 out of 10 at its worst and ranging from 2 to 5 out of 10 on average. It regularly radiated through to her chest wall and was aggravated by walking, standing and lifting. Ms Nutting had no paraspinal tenderness over the lower lumbar spine and her thoracic spine was also non-tender when examined.
66By 14 October 2016 a further MRI scan showed that the small abscess at the T4-5 facet joint had resolved.
67Dr Bates saw Ms Nutting again on 22 December 2016. She reported gradual improvement. On examination, she had pain on extension and right-sided quadrant pain with associated paraspinal tenderness over her lower lumbar facets. He noted that he had recommended Ms Nutting receive physiotherapy and discussed addressing her recti divarication.
68On 10 January 2017, Mr Etherington prepared a further letter for Ms Nutting’s solicitor. He noted that based on the history provided by Ms Nutting and Dr McCann, the initial lumbar symptoms began in June 2014 and were exacerbated in December 2014 following incidents at work. He opined that Ms Nutting’s lumbar symptoms probably related to the L4-5 degenerative changes. The thoracic symptoms were harder to define but could be related to the minimal disc changes seen from T5 to T8. In Mr Etherington’s opinion, Ms Nutting’s symptoms were consistent with an aggravation of previously asymptomatic pre-existing minor degenerative changes in the lumbar and thoracic regions of the spine. While he noted that it is not possible to predict the course of symptoms with degenerative problems, as it had been over two years since the onset of symptoms, it would seem that they were not going to spontaneously resolve.
69On 9 February 2017, Ms Nutting was reviewed again by Mr Etherington at the Spine clinic.
70On 22 February 2017, Mr Etherington reported to Dr McCann that Ms Nutting had been reviewed and he had ordered a T4-5 facet injection as the pain was “definitely arthritic”.[13] Ms Nutting was subsequently taken to hospital with an infection. Her lumbar and buttock pain seemed to be more of an issue for her. Previously he had been suspicious of the L4-5 segment, and he had organised repeat thoracic and lumbar MRI scans.
[13] Exhibit A, p 43
71On 13 March 2017, Ms Nutting had a further MRI scan performed on her lumbar and thoracic spine. In relation to the thoracic spine, there was a minor anterolisthesis of T2 on T3. There was mild thoracic kyphosis scoliosis with convexity to the right centred at T5. There were endplate Schmorl’s nodes demonstrated at T5, T6 and T7. A mild broad-based disc bulge at T1-T2 and minor disc protrusions at T2-T3, T3-T4, T4-T5 and T5-T6 had contacted but did not compress the spinal cord. There was sclerosis and joint space narrowing at the right T4-T5 facet joint which had resulted in moderate bony narrowing of the right neural exit foramen. This had mildly displaced, and was potentially compressing, the exiting T4 nerve root.
72In relation to the lumbar spine, at L3-L4, there was a minor degree of facet arthropathy. At L4-L5, there was mild loss of intervertebral disc height associated with disc desiccation. A small central disc protrusion was superimposed on a mild broad-based disc bulge. There was a mild degree of facet-ligamentum flavum hypertrophy. The report identified the right T4-T5 facet joints as mildly sclerotic and irregular. This had resulted in moderate narrowing of the right T4-5 neural exit foramen. The exiting right T4 nerve root was contacted, displaced and potentially mildly compressed. Since the MRI scan performed in September 2016, there had been a resolution of the marrow signal abnormality, surrounding soft tissue oedema and right paraspinal collection. Mild multi-level degenerative changes of the lower-level spine were also present with no neural compromise.
73On 6 April 2017, Ms Nutting was reviewed by Mr Etherington with respect to her persistent paravertebral pain as well as her low lumber pain. The MRI scan showed degenerative changes in the L4-5 disc. There was no disc protrusion, and the central canal and foramina were also good. Disc height was reasonable. There were three darker discs in the mid-upper thoracic spine, but the central canal was good, and the cord signal was normal. It was hard to say if there were any degenerative changes in the thoracic facets; although Mr Etherington thought that there were some in the L4-5 segment.
74Mr Etherington noted that Ms Nutting was last seen by the Metro Pain Clinic in January 2017. He recognised that Ms Nutting had divarication of the recti and identified that it had been suggested that it needed to be treated to help with her lumbar pain, but he was not sure that getting that perfect would help with the lumbar pain. Mr Etherington referred Ms Nutting to Dr Murray Taverner, pain medicine physician, at the Pain Medicine Clinic, as he was located closer to Ms Nutting’s home.
75On 29 June 2018, Ms Nutting presented at Physioworks Health Group for physiotherapy. She saw Ms Amanda Robertson and reported gradually worsening back pain.
76A report was prepared by Matthew Lynagh, musculoskeletal and sports physiotherapist, at Physioworks. Mr Lynagh considered that Ms Nutting’s symptoms represented mechanical low-back pain and postural thoracic pain. There was also likely a central sensitisation component. In his view, repetitive lifting and bending were common causes of lumbar and thoracic injuries. Ms Nutting’s employment was considered to be a material cause of her injuries. Ms Nutting likely had protective muscle spasm and decreased muscle activation due to pain which would have increased her risk of a secondary injury. In his view, this was common, because the lumbar and thoracic areas share many of the same muscles and are intimately connected. Ms Nutting’s chronic pain almost certainly developed as a result of her initial injuries.
77On 3 October 2018, Ms Nutting had a repeat MRI scan of the thoracic and lumbar spine which revealed it had not changed since 2015.
78On 17 October 2018, Mr Etherington reviewed Ms Nutting again. She had undergone some chiropractic treatment in 2017 and some physiotherapy in 2018. She remained on Lyrica and Nurofen and had not consulted a pain management specialist as previously recommended.
79Ms Nutting reported that her lumbar and thoracic pain were about equal to what they had been, however, she said the pain fluctuated on a day-to-day basis. It was worse when sitting and moving around and when bending and engaging in sudden movements. There was pain in the mid-thoracic and low-lumbar regions. There was also pain going down both legs including the buttocks and the lateral thigh; although there was no thoracic radiculopathy.
80Mr Etherington referred to the repeat MRI scan on 3 October 2018 and said that the L4-5 disc was unchanged from the previous scan. There was a modest protrusion but no definite central or foraminal stenosis. There was some possible wear and tear in the corresponding facet joints. In the thoracic spine, there were some Schmorl’s nodes at T6-8 and T7-8. His view was Ms Nutting’s condition remained the same. He suggested that she may benefit from a rheumatology opinion.
81On 25 October 2018, Ms Nutting saw Ms Robertson at Physioworks Health Group.
82In a further letter dated 16 April 2019, Mr Etherington noted that there were some abnormalities in the thoracic endplates (T5 to T9). It was difficult to say if those were a cause of Ms Nutting’s pain. She did not have inflammatory arthropathy, significant disc protrusions, Scheuermann’s disease or any other easily defined diagnoses. There was some mention of fibromyalgia, but Mr Etherington was unable to say whether that had ever been confirmed by a rheumatologist. As Ms Nutting was then five years from the onset of her problems, Mr Etherington considered that although the diagnoses were still not defined, because interventions had not resolved her problems, those were the likely consequences for Ms Nutting.
83On 11 July 2019, Ms Nutting consulted Mr Lynagh at Physioworks Health. Ms Nutting had developed persistent or chronic pain that had not settled. He opined the chronic pain was a result of Ms Nutting’s initial injuries. He considered that the focus of Ms Nutting’s treatment should shift in line with current chronic pain management.
84Ms Nutting ceased taking Lyrica for her back condition in early 2020 when she did not experience any improvement or relief from her symptoms. She continues to take over-the-counter medication including Nurofen and Panadol for back pain, two or three times per week.
85On 20 April 2020, Ms Nutting commenced receiving treatment from Dr Cheryise Ngawaka, osteopath, at Central Osteopathy. She presented with chronic right lower back and pelvic pain. Ms Ngawaka referred to Ms Nutting’s diagnosis of chronic mechanical lower back pain with associated hypertonic quadratus lumborum, right quadriceps and right psoas, predisposed by thoracic and lumbar degeneration.
Bilateral shoulder bursitis and tendonitis
86In February 2021, while working at the Swim Factory as a swimming instructor, Ms Nutting developed bilateral shoulder pain. She underwent ultrasound investigation, MRI scans and was referred for cortisone injections in each of her shoulder joints. She was diagnosed with bursitis and tendonitis of both shoulders. She continues to suffer pain in both shoulders, although her right shoulder is better than her left shoulder.
87Ms Nutting submitted a claim for compensation to her current employer in respect of her shoulder condition. The claim was accepted. She is currently in receipt of weekly payments of compensation.
Medico-legal expert opinions
Clinical Associate Professor Bruce Love, orthopaedic surgeon – Melbourne Joint Replacement
88On 26 August 2014, Ms Nutting was examined by Clinical Associate Professor Bruce Love, specialist in problem joint replacement. He obtained a history of the incident on 5 June 2014 and recorded that prior to the event, she had occasional backache and had attended a chiropractor for neck and upper back pain following delivery of her first child. When seen by Associate Professor Love, Ms Nutting said she had lower back pain every day. She found sitting and lying flat aggravated her pain. She was being treated with Nurofen.
89On examination, Associate Professor Love recorded that there was mild tenderness in Ms Nutting’s lumbar spine, but the lumbar spine was mobile. There were no distal neurological signs. The CT scan report revealed no significant abnormalities. He diagnosed a ligamentous soft tissue injury in the absence of any specific clinical or radiological findings.
Dr Jurie Snyman, occupational and environmental physician
90Dr Jurie Snyman examined Ms Nutting on 30 January 2015 and provided a report at the request of Gallagher Bassett Services. Dr Snyman took a history from Ms Nutting of back pain in February 2013. It was noted that Ms Nutting’s back was sore following the birth of her two boys.
91Dr Snyman then considered Ms Nutting’s activities as a childcare worker and the development of further back pain in July 2014 and deterioration with sharp pain in her central lower back by December 2014. There were no changes in bladder or bowel function noted. Her prior history included a diagnosis of depression in 2001, glandular fever in 2003 and subsequent chronic fatigue which had been variable ever since.
92On examination, Dr Snyman recorded that the lower spine showed no evidence of scarring or abnormality. There was some tenderness reported in the upper gluteal areas, but no specific pain or discomfort was reported to be radiating from the spine into the legs or down into the feet. There were no signs or symptoms to suggest any localising lesion. There was no specific injury or event to support tissue damage or failure. Ms Nutting had chronic, non-specific back pain.
93Dr Snyman noted that Ms Nutting had been provided with various diagnoses on her WorkCover Certificates of Capacity including lumbar and thoracic back pain; lumbar back pain mainly; fibromyalgia and dysautonomia. In addition, Chronic Fatigue Syndrome had been proposed as secondary to glandular fever. He said that current and ongoing treatment included, in simplistic terms, an antidepressant.
94The reporting of disc bulges of the lower and middle back was incidental to, but not outside, what was expected. He said that the scientific literature surrounding disc bulges and herniated discs was that they are generally not accepted as a complication of even strenuous work. In the absence of any pre-existing condition, the activities Ms Nutting had described did not translate into a cause for disc bulges or disc pain. Accordingly, he attributed her increase in pain to stress at work along with stress elsewhere in her personal life. He otherwise noted that he was unable to diagnose or attribute a particular injury of a physical nature, to work.
95Ultimately, Dr Snyman considered that Ms Nutting could return to her work in her pre-injury role and hours. There was no physical reason for her not to return to her work duties as they had been described.
Dr Graeme Doig, orthopaedic surgeon
96Ms Nutting was examined by Dr Graeme Doig on 11 December 2017, and Dr Doig prepared a report dated 20 December 2017. The history described by Ms Nutting was consistent with her report of the June 2014 incident and the December 2014 incident.
97Dr Doig reported that Ms Nutting had suffered from a soft tissue injury to her spine, on a background of early degenerative change. A recent MRI scan had revealed a minor disc protrusion at L4-5.
98Ms Nutting told Dr Doig that she used Nurofen for her back pain and was also using Gabapentin, 300 milligrams three times per day. In Dr Doig’s opinion, this was inappropriate, as there were no neurological symptoms. He also noted she continued to see a chiropractor fortnightly, which he thought should be curtailed off to self-management.
99Dr Doig found that Ms Nutting was not fit for pre-injury duties but was fit for alternative duties with restrictions.
Mr Thomas Kossmann, orthopaedic surgeon
100Mr Thomas Kossmann prepared a medico-legal report dated 7 June 2021. He examined and took a history from Ms Nutting of suffering injuries to her lumbar spine on 5 June 2014, while lifting and carrying children and picking up a toy from the ground. Ms Nutting described undergoing a CT scan on 2 July 2014 which revealed a small central disc bulge at L4-5 level and mild disc degenerative changes in the mid-thoracic region. Ms Nutting said she suffered an aggravation of her lower back pain while performing repetitive work in the childcare centre.
101Mr Kossmann reviewed the radiology scans, and noted an x-ray performed on 21 July 2016. The radiologist described minimal scoliosis with convexity to the right, and spondylosis in the mid lower thoracic spine as well as multiple compression fractures in the mid thoracic spine with more than 20 per cent reduction in height. In the lumbar spine, the radiologist described no significant pathology.
102He diagnosed Ms Nutting as suffering from an aggravation of pre-existing thoracic and lumbar spondylosis. He attributed the aggravation injury to her employment as a childcare worker with the defendant. He opined that Ms Nutting had a work capacity, however, she had limitations. He considered her incapacity arising from her thoracic and lumbar spine conditions would last most likely for the foreseeable future.
Dr Dominic Yong, occupational physician
103Dr Yong examined Ms Nutting at the defendant’s request on 24 February 2021 and prepared three reports dated 24 February 2021, 18 May 2021 and 27 May 2021. He took a history from Ms Nutting and noted her current symptoms and treatment.
104Ms Nutting informed Dr Yong that she had no previous back conditions. She had been diagnosed with depression approximately ten years ago and said that after the onset of her back condition, her Zoloft medication was increased in dosage. She had also seen a psychologist since the onset of the back condition.
105Ms Nutting had a history of glandular fever fifteen years ago and symptoms of fatigue and tiredness. These were investigated by a doctor and a rheumatologist, but she was not provided with a diagnosis or specific treatment. She said she still experienced some fatigue symptoms.
106Dr Yong examined Ms Nutting and noted tenderness to palpation in the low back and low thoracic area in the midline. He reviewed some of her radiological investigations and diagnosed Ms Nutting with a soft tissue injury in the thoracic and lumbar spine, with persisting dysfunction, but without evidence of radiculopathy. Her condition had been complicated by an infection after an injection to the thoracic spine, requiring hospitalisation. That had resolved.
107Dr Yong opined that Ms Nutting’s conditions had occurred while performing the inherent requirements of her role, and her employment had contributed to the onset of her back conditions. She had incapacity to perform her pre-injury role, which would continue in the future, but she had some residual capacity with restrictions. He considered that her prognosis should not be unreasonable, assuming Ms Nutting was able to continue to participate in a graduated activity-based recovery program.
108Dr Yong prepared a supplementary report dated 18 May 2021, analysing Ms Nutting’s capacity to perform roles as a pre-kindergarten and kindergarten room worker. He considered that she did not have current capacity to work in either role for six to twelve months or into the future.
109Dr Yong provided a further supplementary report dated 27 May 2021 following receipt of three Medical Panel Opinions. He recorded that there was still some tenderness in Ms Nutting’s lower back and lower thoracic area in the midline. The range of movement was good, but mildly reduced. Dr Yong maintained his opinion that Ms Nutting had sustained a soft tissue injury of the lumbar and thoracic spine with persisting dysfunction, without evidence of radiculopathy. He agreed with the Medical Panel that the lumbar and thoracic conditions had not resolved.
Medical Panel Certificates of Opinion
110Ms Nutting was referred to the Medical Panel several times, and the defendant tendered the Medical Panel Certificates of Opinion dated 4 September 2015, 19 July 2017, 29 May 2018 and 3 August 2018.
111The Medical Panel Certificate of Opinion dated 4 September 2015 was directed at ascertaining the nature of Ms Nutting’s medical condition, the extent to which it was contributed to by any of the claimed injuries, whether Ms Nutting had an incapacity for work as a result of the claimed injuries and whether Mobic medication, weekly physiotherapy or clinical Pilates were appropriate. The Panel concluded that Ms Nutting had a largely resolved soft tissue injury of the low back in the setting of constitutional degeneration at L4-5 which resulted from, and was still materially contributing to, Ms Nutting’s mid and low-back injuries. In the Panel’s opinion, the injuries rendered her incapacitated for work. The Panel approved a supervised clinical Pilates program.
112The Panel’s Reasons dated 4 September 2015 noted that Ms Nutting was treated during her pregnancies by a physiotherapist for “pelvic separation”. She had no other history of back injury prior to the claimed injuries. Ms Nutting also had a history of ongoing fatigue since she had glandular fever. She had no specific treatment for that and managed it herself.
113The Panel referred to the history given by Ms Nutting of her injury on 5 June 2014 while working. The Reasons noted the certificate of capacity dated 9 September 2014 signed by Dr Head certifying Ms Nutting fit for normal duties from that date. They also referred to Ms Nutting’s comment that by October 2014, she had noted “a lot of improvement” in her back symptoms and felt about 80 per cent better, but after working in the babies’ room at the childcare centre on 10 December 2014, had experienced mid to low-back pain again.
114The Panel noted the continuous symptoms described by Ms Nutting since the first incident until the time of the Panel’s assessment. On examination by the Panel, Ms Nutting indicated thoracolumbar discomfort on standing. She displayed tenderness to palpation of the left iliac region and described a generalised reduced sensitivity involving all of the left lower limb.
115The Panel reviewed the medical imaging. The MRI dated 21 July 2015 was noted to demonstrate a disc bulge at L4-5 with some loss of disc height but no major protrusions. There were Schmorl’s nodes in the thoracic spine consistent with old, mild Scheuermann’s disease.
116After noting the radiology, the Panel accepted that medical imaging changes noted in Ms Nutting’s spine may have predated the first incident but may not have been causing restriction or dysfunction of the spine then. The Panel reasoned that at the time of the June 2014 incident, Ms Nutting had an onset of backpain, which had incompletely resolved and then worsened again at the December 2014 incident.
117The Panel noted that its finding on physical examination was not indicative of any ongoing back dysfunction and concluded that Ms Nutting was suffering from a largely resolved soft tissue injury of the low back in the setting of constitutional degeneration at L4-5 attributable to the claimed mid and low-back injuries. However, in the Panel’s opinion, the injury had persisted since the first incident and was made worse by the second incident. It therefore resulted from, and was still materially contributed to by, Ms Nutting’s claimed mid and low-back injuries.
118After considering the reports of Dr Snyman and Professor Love, the Panel concluded that Ms Nutting was not able to return to her pre-injury employment as a childcare worker. It then considered the treatment required.
119The Panel provided a subsequent opinion dated 3 November 2017, in response to a referral from the Magistrates’ Court on 19 July 2017. On that occasion, the Panel found that Ms Nutting was suffering from:
(a) residual symptoms including pain in her lumbar spine due to a largely resolved soft tissue injury relevant to the June 2014 incident;
(b) residual symptoms including pain in her lumbar spine due to a largely resolved soft tissue injury relevant to the December 2014 incident; and
(c) residual symptoms including pain in her thoracic spine due to a largely resolved soft tissue injury relevant to the alleged aggravation of the thoracic spine injury on 10 December 2014 incident.
120The Panel opined that Ms Nutting had no medical condition relevant to the alleged thoracic spine injury as a result of the June 2014 incident. Ms Nutting’s employment was not a significant contributing factor in the June 2014 incident, but it was for the December 2014 incident.
121The Panel again assessed Ms Nutting on 5 July 2018. The principal question asked was Ms Nutting’s degree of permanent whole person impairment resulting from the accepted injuries. The Panel concluded that Ms Nutting had a zero per cent whole person permanent impairment resulting from the accepted aggravation of the lumbar spine. Residual symptoms included pain in the thoracic spine/soft tissue injury when assessed in accordance with s54 of the Act. Ms Nutting reported constant lower back pain and stiffness at the L4-L5 region which was aggravated by prolonged sitting, standing and repetitive bending. She also reported thoracic pain at the region T7-T9, which was more pronounced on the right side and of lower severity than her lower back pain. Ms Nutting said that since late 2017, the lower back pain had been worsening.
122The Panel assessed Ms Nutting’s lumbosacral spine and concluded that she was suffering from residual symptoms including pain in her lumbar and thoracic spine due to a largely resolved soft tissue injury. Ms Nutting’s condition had stabilised and was unlikely to remit.
123In terms of the thoracic spine, Ms Nutting continued to experience thoracic back pain in the region of T7 to T9, less frequently and more pronounced on the right side, and of lower severity than her lower back pain. The Panel concluded that despite the complaint of persistent symptoms, Ms Nutting had no significant clinical signs of thoracic injury, with a normal range of motion.
124The Panel reviewed the medical imaging available. The MRI of the thoracolumbar spine dated 14 October 2016 was noted to demonstrate Schmorl’s nodes, minor wedging and thoracic kyphosis compatible with Scheuermann’s disease, small disc bulges at T3-4 and T4-5, mild disc desiccation at L4-5 and no nerve root compression. The MRI of the thoracolumbar spine dated 13 March 2017 revealed minor disc desiccation at L4-5, Schmorl’s nodes in the upper to mid thoracic spine, and a small disc bulge at T4-5. Earlier medical imaging reports and clinical findings were also noted.
125The Panel referred to the Reasons for Opinion of the second previous Panel in relation to the MRI of the spine dated 13 March 2017. This noted that the right T4‑5 facet joint was mildly sclerotic and irregular, which had resulted in narrowing of the right T4-5 exit foramen. The exiting right T4 nerve root had contacted, displaced and was potentially mildly compressed. There had been resolution of the marrow signal abnormality seen on the MRI of 13 September 2016. Mild multilevel degenerative changes of the lower lumbar spine were also observed without neural compromise.
126The Panel carried out an assessment of Ms Nutting’s lumbar and thoracic spines in accordance with Table 70 of Chapter 3 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. It considered that a range of motion assessment of the thoracic and lumbar spines was inappropriate as the impairment could be assessed adequately using the Diagnosis Related Estimates Model.
127In response to an amended referral lodged on 13 June 2018, the Medical Panel provided a further Certificate of Opinion dated 3 August 2018. The Opinion was provided as part of an impairment assessment for a claimed lumbar spine injury. It concluded that there were no clinical signs of ongoing lumbar injury resulting in a whole person impairment of zero per cent. There was also no other medical condition or impairment attributable to the accepted physical injury.
The issues and submissions
128Counsel for Ms Nutting submitted that Ms Nutting was a credible witness who sustained a single organic repetitive strain-type injury to her lumbar and thoracic spine on or about 5 June 2014 and during the course of her employment duties from the lifting and carrying of young children on a regular and repetitive basis. As Ms Nutting’s injury was a single repetitive strain-type injury, counsel submitted no issue of aggravation arose and the consequences of the incidents on 5 June 2014 and 10 December 2014 could be aggregated. This case was distinguishable from AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[14]
[14] (2012) 34 VR 309 (“Filipowicz”)
129Further, because neither Ms Nutting’s bilateral shoulder condition nor her chronic fatigue/fibromyalgia condition produced ongoing restrictions, counsel for Ms Nutting submitted disentanglement of those conditions was not required.
130It was argued the injury to Ms Nutting’s lumbar and thoracic spine generated permanent impairment consequences which were “more than ‘significant’ or ‘marked’” and “at least very considerable” when judged in comparison with other cases in the range of possible impairments or losses.[15] Accordingly, Ms Nutting suffered a “serious injury”.
[15]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
131Counsel for the defendant submitted that Ms Nutting suffered two separate injuries to the spine: the first injury occurring on 5 June 2014 and a further injury occurring on 10 December 2014. It was submitted that because each injury arose from a separate event, even though the same body function – the spine – was involved, the consequences had to be considered separately in accordance with Petkovski v Galletti.[16] In arguing the aggravation injury had to itself qualify as a “serious injury”, the defendant relied upon Filipowicz[17] to support its argument. Counsel for the defendant also suggested that this was consistent with the way Senior Counsel for Ms Nutting had opened her case and meant that the consequences of each incident of injury could not be aggregated.
[16] [1994] 1 VR 436
[17] Supra
132Further, it was submitted the consequences of Ms Nutting’s spinal injury had to be disentangled from the consequences of Ms Nutting’s pre-existing chronic fatigue/fibromyalgia and her subsequent bilateral shoulder condition.
133Finally, the defendant contended Ms Nutting was an unreliable witness who overstated the effects of her work-related injuries or minimised the effects of her non-work-related difficulties. The long-term impairment consequences were not “more than ‘significant’ or ‘marked’” and not “at least very considerable” when judged in comparison with other cases in the range of possible impairments or losses. Consequently, Ms Nutting did not suffer a “serious injury”.
Is Ms Nutting credible and reliable?
134The defendant submitted that Ms Nutting was an unreliable witness, and her evidence demonstrated a willingness to overstate the effect of her work-related injuries or to minimise the effects of non-work-related difficulties. Three principal matters were relied upon by the defendant in advancing this argument.
135First, that the plaintiff did not mention her pre-existing history of suffering from chronic fatigue/fibromyalgia in her affidavits sworn on 18 August 2020 or 2 July 2021 when she was aware that those conditions caused her to suffer from back pain. Even when the chronic fatigue/fibromyalgia condition was mentioned in her third affidavit sworn on 9 July 2021, Ms Nutting made no mention of the effect of the condition on her. Further, Ms Nutting suggested that her chronic fatigue/fibromyalgia condition did not cause her any pain when in fact it did.
136Second, Ms Nutting incorrectly suggested in paragraphs 25 and 32 of her affidavit sworn 18 August 2020, and paragraph 12 of her affidavit sworn 2 July 2021, that her psychological condition had been aggravated by reason of her spinal injury, requiring an increase in her Zoloft medication to 150 to 200 milligrams, compared to 100 milligrams. In fact, Ms Nutting had been prescribed 200 milligrams of Zoloft for some years prior to the incidents on 5 June 2014 and 10 December 2014.
137Third, that Ms Nutting had suggested that her spinal injury had affected her intimate relationship with her husband, placing strain on the relationship, when in fact Ms Nutting’s husband had been unfaithful more than eighteen months before the first incident of 5 June 2014.
Chronic fatigue/fibromyalgia condition
138When cross-examined, Ms Nutting was asked to explain why she had omitted her chronic fatigue/fibromyalgia condition in her affidavits. Her response was “because it’s not related to my back”;[18] however, she later agreed that she had mentioned her endometriosis condition which was also unrelated to her back. It also became clear, contrary to Ms Nutting’s denial, that her chronic fatigue/fibromyalgia condition caused her back pain. Ms Nutting agreed that in March 2014, she was seen by Dr Shia for her chronic fatigue/fibromyalgia condition complaining of back, neck and knee pain.[19] She accepted that she was referred to see Dr Foote, who reported in December 2014 that Ms Nutting “still has tenderness to her back and neck and both wrists”.[20]
[18] Transcript (“T”) 45, Line (“L”) 5-8
[19] T41, L21-29
[20] T43, L31 – T44, L7
Increase in prescription of Zoloft medication
139In paragraph 12 of Ms Nutting’s second affidavit, she stated that “before my injury I was prescribed 100 milligrams of Zoloft per day …”. It was put to her in cross-examination that in fact this was not correct. She had been prescribed 200 milligrams of Zoloft prior to her spinal injury; 100 milligrams twice in the mornings by a doctor in Dingley[21] and by Dr Pravin Kapadia on 22 July 2013.[22] She had also received the same prescription on 24 January 2014.[23] Ms Nutting agreed that she had been prescribed 200 milligrams of Zoloft prior to her injury in June 2014.[24]
[21] T31, L14-25
[22] T31, L22 – T32, L8
[23] T32, L17-21
[24] T32, L22-28
140Ms Nutting was asked whether she was trying to give the impression in her affidavit that her psychiatric condition had got worse, and that she was taking more antidepressant medication at the date of the hearing than she had been taking before. Her initial response was “I’m not sure”. When Counsel for the defendant took her again to each of the relevant entries demonstrating that she had been prescribed 200 milligrams of Zoloft, Ms Nutting’s response was variously that she “may have only been taking 100 milligrams per day,”[25] and that “I can’t recall”[26] and “I don’t know what to say”.[27]
[25] T36, L14 – T37, L1
[26] T36, L24-26
[27] T36, L27-29
Injury and relationship breakdown
141The third matter relied upon by the defendant to support its contention that Ms Nutting’s evidence was unreliable was her evidence in paragraph 33 of her affidavit to the effect that her injury had affected her intimate relationship with her husband, leading to their separation on 3 May 2018. When initially questioned in cross-examination about this, Ms Nutting said that her husband had moved out of home in February 2014, well before the incident on 5 June 2014. This followed a period of eighteen months during which he had been having an affair with Ms Nutting’s friend.[28] However, when the difference between paragraph 33 of Ms Nutting’s affidavit and the timing of her husband’s infidelity and their separation were later put to her, Ms Nutting suggested that the reference to separation on 3 May 2018 was probably meant to be a reference to divorce.[29] Ms Nutting sought to revisit the date of separation and the date when her husband left the matrimonial home.[30]
[28] T51, L29 – T53, L5
[29] T53, L4-5
[30] T53, L6 – T54, L19
Conclusion on credibility and reliability
142In my view, the failure to mention the chronic fatigue/fibromyalgia condition in her affidavits revealed an attempt by Ms Nutting to minimise the effects of the condition on her, including the pain it caused her, and that she had reduced her work hours because of the chronic fatigue/fibromyalgia condition.[31] Similarly, I am satisfied that Ms Nutting’s evidence about how much Zoloft medication she was prescribed, and when, was at odds with what was included in her affidavit material. Finally, Ms Nutting’s affidavit evidence with respect to the effect of her spinal injury on her intimate relationship with her husband was inaccurate and opaque. On balance, I have formed the view that while Ms Nutting was not deliberately dishonest, she exaggerated, or minimised aspects of her evidence to paint her case in the most favourable light possible. Because of this, her evidence was unreliable.
[31] T47 – T48
From what injuries/medical conditions was Ms Nutting suffering at the date of the application?
143As set out above, there was no real dispute between the parties that at the date of the hearing of the application, Ms Nutting suffered from Chronic Fatigue Syndrome/fibromyalgia, longstanding depression, endometriosis, and a bilateral shoulder condition of bursitis and tendonitis.
144It was also accepted by the parties that in determining the application, the psychological or psychiatric consequences of Ms Nutting’s back injury were to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury”. Accordingly, Ms Nutting’s longstanding depression is not an existing injury which I am permitted to take into account in this application pursuant to paragraph (a) of the definition of “serious injury”.
145It was also accepted by the parties that Ms Nutting suffers from a spinal injury. The issue which arose between the parties was whether Ms Nutting’s spinal injury was one repetitive strain injury or two discrete incidents of injury. Resolution of that issue affects whether the consequences of the incidents on 5 June 2014 and 10 December 2014 can be aggregated, or whether properly, the injury on 10 December 2014 is an aggravation of the earlier injury on 5 June 2014.
146The defendant submitted that the case was run by Ms Nutting on the basis of two separate incidents of injury, with the incident on 10 December 2014 being itself an aggravation injury of the earlier incident on 5 June 2014. I do not agree with that characterisation of how the case was run by the plaintiff.
147Ms Nutting’s case was identified as a course of employment case in the Originating Motion, which alleged that Ms Nutting suffered a serious injury in the course of her employment and as a result of an incident on 5 June 2014. It was not asserted by Senior Counsel for Ms Nutting in opening the case, that the case involved an initial injury on 5 June 2014 and an aggravation injury on 10 December 2014. What was said was that “there are two incidents relied upon”[32] – the incident on 5 June 2014 and the incident on 10 December 2014.[33] Additionally, the final written submissions filed on behalf of Ms Nutting (which the defendant had time to consider) made it plain that Ms Nutting’s claim was a course of employment claim and also a claim as a result of particular incidents. Finally, when final oral submissions were made, Senior Counsel for Ms Nutting again identified that at no point in the opening had the course of employment case been abandoned.[34] I am satisfied that the case was run on the basis that Ms Nutting suffered injury to her lumbar and thoracic spine in the course of her employment and as a result of an incident on 5 June 2014.
[32] T3, L4-6
[33] T3, L8-19
[34] T82, L9-25
148The real issue is the identification of the injury in respect of which leave is sought and its impairment consequences. It is a question of fact whether various events produce a single injury or must be treated as separate aggregations of the one injury.[35]
[35] O’Neill v T D Williamson Aust Pty Ltd [2008] VSC 398 (“O’Neill”) at paragraph [107]
149I accept that generally, the Court is confined to assessing the consequences of an injury sustained as a result of a single event, separately from the consequences arising from injury from other events.[36] Where a plaintiff is injured on several discrete occasions, components of the injury on each occasion must be identified and cannot be aggregated, even if caused to one body part across several incidents. The plaintiff, in those circumstances, must identify the extent of any aggravation arising from a claimed injury and, in accordance with Petkovski v Galletti,[37] demonstrate that the aggravation of the pre-existing injury is itself a “serious injury”.
[36]Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 at paragraph [72]; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Filipowicz (supra)
[37] Supra
150An exception may arise however, where there is a gradual onset of injury over time[38] or where a worker suffers injury to the same body part in successive and similar incidents, close in time and while working at the same job with the same employer.[39] Often that will be as a result of the performance of regular, repetitive and similar tasks. A common example is a process worker who sustains injury while working on a production line where it would be impossible to analyse each small task undertaken to individually determine what consequence arose from each particular task and how a serious injury arose. The exception is not limited to process workers.
[38] Accident Compensation Commission v Tilley (1992) 2 VR 499
[39] Barwon Spinners (supra) at paragraph [89]
151In Grech v Orica Australia Pty Ltd & Anor,[40] the question for determination was whether the worker had suffered identifiable compensable injury to his wrists and hands on or after 20 October 1999 which resulted in, or materially contributed to, the consequences that he claimed constituted serious injury. The case raised causation issues in the context of a single ongoing condition - bilateral carpal tunnel syndrome – which had commenced prior to 20 October 1999, and which had evolved and continued after that date. The plaintiff had sustained discrete injuries to his hands and wrists attributable to one incident – his employment – in two discrete periods.[41] Work was a significant contributing factor, over the years, to the evolution of the condition. It was not a case, correctly characterised, as involving two separate injuries, arising out of two discrete incidents, where the subsequent injury aggravated the earlier injury.
[40] (2006) 14 VR 602 (“Grech”)
[41] Grech (ibid) at paragraph [67]
152In Ronchi v Alcoa Portland Aluminium Pty Ltd,[42] leave was granted to the plaintiff to bring proceedings in respect of injuries to his lower back suffered in the course of his employment from 1 December 1992 to 12 November 1997. The defendant’s employer argued that the leave only applied to injuries sustained by the plaintiff when driving a hauler on a specific date in September 1995. Osborn J considered the material before him to determine the nature of the injury. It was noted that there had also been earlier incidents on 22 January 1995 when the plaintiff unblocked a spillage conveyer, and a further incident on 2 April 1995 when the plaintiff was lifting a bucket of cast scrap material.
[42] [2007] VSC 340 (“Ronchi”)
153Osborn J determined that leave had been granted in respect of an injury to the plaintiff’s lower back suffered during the course of employment throughout 1995.[43] He said that the evidence was directed to events in 1995 and the “subsequent development” of a condition after the commencement of that year.
[43] (Ibid) at paragraph [49]
154Similarly, in Harvey v Methodist Ladies College,[44] the plaintiff had been granted leave to commence proceedings in respect of an injury to the lumbar spine on or about 25 October 2001. By her statement of claim, the plaintiff alleged that different aspects of her employment were alternative or cumulative causes of the injury in respect of which she had been granted leave to bring proceedings. Specifically, she alleged that she performed tasks involving lifting, bending and manoeuvring of heavy and awkward weights and trolleys. Upon an application for leave to amend both the statement of claim and the defence, Beach J gave an ex-tempore ruling and concluded that:
“… there is nothing impermissible, in appropriate circumstances, in a plaintiff alleging that different aspects of her employment with the defendant were alternative or cumulative causes of an injury in respect of which such a plaintiff has been given leave to bring proceedings. … .”
[44] [2008] VSC 425
155The cause of action was not limited to work performed on or about 25 October 2001. The plaintiff was at liberty to assert that work prior to that time was a cause of injury suffered on or about 25 October 2001.
156Where an exception arises, as the Court of Appeal in Barwon Spinners[45] observed, it is not necessarily the case that such a fine analysis of before and after each incident is required. It may be possible to aggregate the individual incidents.[46] To do otherwise might result in an unfortunate outcome to the worker. The concept of injury is to be understood in a broad common-sense way.[47]
[45] Supra
[46] Grech (supra), Ronchi (supra), and O’Neill (supra) at paragraph [107]
[47] Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
157In my view, these cases assist Ms Nutting, because they show that the effects of related, repetitive insults to her spine can in effect be aggregated for serious injury purposes.
158Adopting a common-sense approach to the analysis of what has caused Ms Nutting’s symptoms, it would be impossible to pinpoint a particular incident of lifting or bending as the sole cause of the lower and middle back lumbar and thoracic spine injury. The overall spinal degeneration was productive of consequences. The fact Ms Nutting experienced symptoms on 10 December 2014 does not mean she suffered a separate aggravation injury. The experiencing of pain and symptoms did not so much aggravate Ms Nutting’s condition as demonstrate the extent of it.
159In my view, the back pain and symptoms experienced by Ms Nutting on 5 June 2014 and 10 December 2014 were manifestations or consequences of compensable injury attributable to previous employment strains over a period of years. They developed during the performance of Ms Nutting’s employment duties as a childcare worker including regular lifting and bending; such strains having contributed to spinal degeneration.
160I have reached this conclusion for the following reasons.
161First, it is consistent with Ms Nutting’s affidavit, where she made clear that she sustained a significant injury to her spine during the course of her employment, as well as because of incidents on 5 June 2014 and 10 December 2014. Her claim was not limited to two separate events and the injury claimed was not confined to the lumbar spine. Ms Nutting relied on the repetitive lifting and carrying of children in the course of employment, as well as the events on 5 June 2014 and 10 December 2014, as causing her injury. Her reliance upon injury to the spine as a whole reflects the fact that the lumbar spine and the thoracic spine are so closely connected as to have been recognised as a single function.[48]
[48] Transport Accident Commission v Zepic [2013] VSCA 232
162Second, this conclusion is consistent with the radiological evidence which suggested that Ms Nutting already had a degenerative back condition of both her lumbar and thoracic spine when she experienced the pain in her lumbar and thoracic spine on 5 June 2014. For instance, the x-ray of the thoracic spine dated 10 June 2014 referred to by Mr Kossmann was noted to reveal wedging of at least three mid-thoracic vertebral bodies with loss of up to 25 per cent vertebral body height associated with endplate changes. Further, the CT scan taken on 2 July 2014 of Ms Nutting’s lumbar and thoracic spine revealed a small central disc bulge at the L4-5 disc. It also described left lower thoracic scoliosis – albeit minimal – as well as mild thoracic disc degenerative changes in the mid thoracic region, with minor osteophyte formation. The findings on the imaging studies were not specific with respect to any underlying cause or source of pain and consequently, are not inconsistent with Ms Nutting’s work as a whole having materially contributed to her lower and middle back condition.
163Third, the medical opinions, from treating practitioners, tend to this conclusion. Dr Overton noted in his letter dated 13 December 2015 that Ms Nutting had no prior history of trauma, and, prior to 5 June 2014, the only back pain Ms Nutting had suffered was some back discomfort after having children. Mr Etherington, although noting that he did not have documentation which was contemporaneous with the injuries in June and December 2014, considered that both incidents occurred at work. His view was based on what he was told of Ms Nutting’s history of increasing pain in June and December 2014 by Dr McCann in the referral, and by Ms Nutting herself, as well as the two separate areas of pain which Ms Nutting experienced. He diagnosed an exacerbation of pre-existing degenerative disc changes in the lumbar and thoracic regions and an aggravation of pre-existing minor degenerative changes. Mr Lynagh, in his report dated 26 August 2019, diagnosed mechanical low-back pain and postural thoracic pain. He noted that repetitive bending and lifting are common causes of lumbar and thoracic injuries, and concluded that Ms Nutting’s employment was a material cause of her injury. Dr Ngawaka provided a report dated 7 July 2021. He diagnosed mechanical lower back pain with associated hypertonic quadratus lumborum, right quadriceps and right psoas, predisposed by thoracic and lumbar degeneration.
164Fourth, the reports from the medico-legal experts support a conclusion that Ms Nutting had pre-existing, but asymptomatic, degenerative changes in her lumbar and thoracic spine which were rendered symptomatic in the course of her employment, including on 5 June 2014 and 10 December 2014.
165Mr Kossmann, in his report dated 7 June 2021, opined that Ms Nutting suffered from an aggravation of pre-existing thoracic and lumbar spondylosis in the course of her employment with the defendant. In reaching that view, he took into account Ms Nutting’s history of “lifting, carrying and holding children on a regular basis”.
166In his report dated 24 February 2021, Dr Yong diagnosed Ms Nutting with a soft tissue injury of the thoracic and lumbar spine with persisting dysfunction, without evidence of radiculopathy. He referred to the description given by Ms Nutting of the first incident in June 2014 and the second incident in December 2014 and opined that her conditions had occurred while performing the inherent requirements of her job. Her employment had contributed to the onset of her back conditions. He maintained that diagnosis in his two subsequent supplementary reports.
167Further, while Associate Professor Love, in his report to Gallagher Bassett Services dated 26 August 2014, opined that there were no specific clinical or radiological findings, and that it was reasonable to expect that the lifting incident of 5 June 2014 was the cause of Ms Nutting’s condition, he nevertheless also stated that the injury arose out of the course of Ms Nutting’s employment.
168Fifth, Ms Nutting’s affidavit outlines that she submitted a claim for an impairment benefit of her spine, as a whole, dated 10 April 2016. The affidavit outlines that on or about 24 April 2018, Allianz, on behalf of her employer, accepted liability for “injuries sustained whilst at work at Goodstart in 2014 in respect of my lumbar spine, thoracic spine and also psychological condition”. The defendant accepted in its written submissions that Ms Nutting had sustained injury to her spine, being “soft tissue injuries of the spine or an aggravation of minor degenerative changes”. The acceptance of claims of compensation for physical injuries suffered by Ms Nutting in the course of her employment in June 2014 and December 2014 is inconsistent with a submission that the incidents on 5 June 2014 and 10 December 2014 should be treated as two separate incidents of injury.
169Finally, Filipowicz,[49] relied on by the defendant, is distinguishable from the current claim on the basis that although there was injury to the same body part in that case, unlike the present circumstances, Filipowicz involved aggregation of two compensable conditions of the same body function sustained on different occasions with two different employers. That is a different scenario to the case currently before the Court involving injury to a single body function sustained over time, with the same employer and as a result of the same event or circumstances – that is, work duties involving lifting and carrying of children on a regular and repetitive basis.
[49] Supra
170After considering the evidence, I am satisfied that at the date of the hearing, Ms Nutting was suffering from endometriosis, Chronic Fatigue Syndrome/ fibromyalgia and a bilateral shoulder condition of bursitis and tendonitis. I also find that Ms Nutting had pre-existing, but asymptomatic, degenerative changes in her lumbar and thoracic spine which were rendered symptomatic in the course of her employment including on 5 June 2014 and 10 December 2014.
171Having determined that Ms Nutting’s injury occurred in the course of her employment, as a matter of commonsense, the consequences of each of the incidents arising on 5 June 2014 and 10 December 2014 are able to be aggregated.
What are the impairment consequences of Ms Nutting’s spine injury?
172Ms Nutting alleges that the following consequences have arisen as a result of her lumbar and thoracic spine injury:
(a) she has ongoing significant pain on a daily basis, at an average of 5 out of 10, with some days worse than others;[50]
(b) lower back pain at night, which causes her to wake up regularly, on average once every two hours during an eight-hour sleeping period; [51]
(c) she was able to return to work in mid-2016 but was subsequently assessed as unsuitable for the job and she said she was forced to stop working.[52] She has consequently lost her pre-injury employment as a childcare worker[53] and has had to find alternative work as she is not up to working with young children;[54]
(d) Ms Nutting avoids social contact due to her pain, and misses out on invitations to social engagements;[55]
(e) she struggles to do things around the house, finding it difficult to do the vacuuming, cleaning and laundry. She finds it difficult to mop and undertake the housework, and even though her children attempt to help, their assistance is limited.[56] She described her house as having a “fair bit of mess” because she finds it physically difficult to keep up with the housework;[57]
(f) she has struggled with relationships since her injury;
(g) she separated from her husband on 3 May 2018, as her injury placed a lot of pressure on her relationship. She said that her husband had an affair with her best friend.[58]
[50] Exhibit A, unsworn affidavit of Ms Nutting at paragraph [26]
[51] Exhibit A, second affidavit of Ms Nutting sworn 2 July 2021 at paragraph [20](a)
[52] Exhibit A, unsworn affidavit of Ms Nutting at paragraph [27]
[53] Exhibit A, unsworn affidavit of Ms Nutting at paragraph [12]
[54] Exhibit A, unsworn affidavit of Ms Nutting at paragraph [30]
[55] Exhibit A, unsworn affidavit of Ms Nutting at paragraph [29]
[56] Exhibit A, second affidavit of Ms Nutting sworn 2 July 2021 at paragraph [20](c)
[57] Exhibit A, unsworn affidavit of Ms Nutting at paragraph [31]
[58] Exhibit A, unsworn affidavit of Ms Nutting at paragraph [33]
Disentanglement
173As set out above, I am satisfied that at the date of the hearing, Ms Nutting had a pre-existing history of Chronic Fatigue Syndrome/fibromyalgia. She also had a lumbar and thoracic spine injury which had arisen because of pre-existing, but asymptomatic, degenerative changes in her lumbar and thoracic spine that had been rendered symptomatic in the course of her employment including on 5 June 2014 and 10 December 2014. She had also been diagnosed with bilateral shoulder bursitis, a tendinosis condition and endometriosis.
174This raised the issue of whether the Chronic Fatigue Syndrome/fibromyalgia, the shoulder bursitis and tendinosis conditions or the endometriosis were productive of impairment consequences. If so, a further issue arose, whether the plaintiff, who had the onus to disentangle the consequences not only of the spine injury, but also in relation to the other injuries suffered by Ms Nutting, had done so adequately.
175In respect of the Chronic Fatigue Syndrome/fibromyalgia condition, it was submitted on behalf of Ms Nutting that no disentanglement was required. There was no expert medical opinion that suggested that the Chronic Fatigue Syndrome nor any fibromyalgia condition was contributing to Ms Nutting’s current levels of back pain, and Ms Nutting had rejected the suggestion that the Chronic Fatigue Syndrome was associated with pain during cross-examination. Reliance was placed on the plaintiff’s evidence in her third affidavit about when she worked.
176I do not accept that Ms Nutting rejected the suggestion that the Chronic Fatigue Syndrome was associated with pain during cross-examination. In cross-examination, Ms Nutting said that her fibromyalgia and Chronic Fatigue Syndrome had contributed to her back condition in the past. She accepted she complained of back, neck and knee pain[59] to Dr Shia, who she consulted in respect of her Chronic Fatigue Syndrome/fibromyalgia condition in March 2014.[60]
[59] T41, L21-29
[60] T41, L25-29
177Further, the fact that the Chronic Fatigue Syndrome was associated with pain was supported by the opinion of Professor Love dated 26 August 2014 who noted that Ms Nutting had suffered from Chronic Fatigue Syndrome which had been present for six years. He opined that the Chronic Fatigue Syndrome was influencing Ms Nutting’s capacity to cope with her activities of daily living and work arrangements. It was also supported by the subsequent referral to Dr Foote, who reported in December 2014 that Ms Nutting “still has tenderness to her back and neck and both wrists”.[61]
[61] T43, L31 – T44, L7
178I accept that there was no current medical evidence establishing that the Chronic Fatigue condition or any fibromyalgia condition was contributing to Ms Nutting’s current levels of back pain. Equally though, there was no evidence establishing that it was not. In my view, because Ms Nutting had experienced pain in the past, she had the onus of disentangling the consequences of her various injuries.
179It was open to Ms Nutting to call medical evidence in respect of this issue to disentangle the effects of her Chronic Fatigue Syndrome/fibromyalgia from her lumbar and thoracic spine injury, but none was adduced. In circumstances where, in my view, the defendant has successfully challenged the reliability of Ms Nutting’s evidence, I am not satisfied that Ms Nutting has discharged the onus she bears to disentangle the consequences of the Chronic Fatigue Syndrome/fibromyalgia. I am consequently not satisfied that the back pain suffered by Ms Nutting is only the result of her spine injury.
180In respect of the right shoulder bursitis and tendinosis, it was submitted on behalf of Ms Nutting that disentanglement of her shoulder condition was not required because the condition was not productive of any significant ongoing restrictions. I accept this submission.
181In cross-examination, Ms Nutting said she was only off work for a “couple of weeks probably out of lockdown”.[62] She said she had treatment for her shoulder[63] and was not taking any ongoing medication, just heat and exercises.[64] Further, she had returned to work as a swim instructor, albeit on reduced duties.[65] Further, in re-examination, Ms Nutting said, in relation to her shoulders, “[t]hey’re getting better”.[66]
[62] T26, L19-22
[63] T27, L7-11
[64] T27, L12-13
[65] T27, L2-3
[66] T65, L7-9
182I am satisfied that there is no need for Ms Nutting to disentangle any consequences of her right shoulder injury.
183No submissions were made in respect of the endometriosis condition. Although Ms Nutting said in cross-examination that she still suffered from symptoms of endometriosis,[67] the defendant did not contend that the condition was resulting in back pain or other symptoms at the date of the hearing. I am satisfied that there is no need for Ms Nutting to disentangle any consequences of her endometriosis.
[67] T45, L16 – T46, L2
Are the consequences of Ms Nutting’s spine injury “serious”?
184Ms Nutting was questioned extensively in cross-examination about the impact of her injuries and the restrictions they had placed on her.
185In relation to her pain, Ms Nutting told Mr Kossmann when seen by him for the purpose of preparation of his report dated 7 June 2021, that she suffered from pain in her back, radiating into both her hips and intermittently into her feet. Similarly, she identified for Dr Yong in 2021, that she was troubled by pain in her low back which was a constant ache and could radiate into her right hip. She also had mid-back pain and some intermittent pain down her right leg. She described pins and needles down her legs and into her feet to both Mr Kossmann and Dr Yong and said to Dr Yong this occurred when she was doing some tasks such as prolonged driving.
186When cross-examined about the intensity and severity of her claimed back pain, Ms Nutting agreed that she had an ache in her low and mid back which was present most of the time.[68]
[68] T26, L4-10
187She said she had not been prescribed any medication for the pain in her back “not for a very – I couldn’t give you a date. … Probably years, yeah.”[69] She said she took on average six Nurofen a week, two at a time,[70] and agreed that she took Nurofen when her back was a bit more than an ache.[71] Ms Nutting also told Mr Kossmann, Dr Yong and Dr Doig that she took Nurofen for her back pain.
[69] T25, L26-29
[70] T25, L30 – L26, L1
[71] T26, L10-12
188Since 2018, Ms Nutting said that the only treatment she had received for her back was from her osteopath and also possibly some physiotherapy treatment in 2019.[72] More recently, she had also received physiotherapy treatment for her shoulders and some exercises for her back again.[73] Ms Nutting also told Dr Yong she attended physiotherapy and used heat packs as required. She had not been referred to a specialist such as an orthopaedic surgeon or a neurosurgeon, or a pain management clinic.[74]
[72] T21, L6 – T24, L23
[73] T23, L6 – T24, L25
[74] T25, L10-13
189By the time Ms Nutting was reviewed by the Medical Panel for the 4 September 2015 report, she said she was sleeping reasonably – typically seven hours of unrefreshing sleep per night and occasional naps during the day. Ms Nutting subsequently described to Mr Etherington on 11 August 2016 being woken through the night by pain and said that the pain first thing in the morning was variable. She later informed Dr Bates, who referred to it in his letter to Mr Etherington dated 6 October 2016, that the pain “did not wake her at night, but she had trouble getting to sleep”. To Mr Kossmann, she said she “tosses and turns in bed. She wakes during sleep”.
190Ms Nutting explained that prior to her spine injury, she had been working part time, three days a week, from 8.00am to 4.30pm with the defendant.[75] When cross-examined, she stated that she was still able to work. She had taken some time off work at the date of the hearing[76] because of her shoulder condition but was returning to work on Wednesday that week, resuming her duties as a swimming teacher,[77] and would be working every day teaching small children aged four to twelve how to swim. Apart from Friday, when she performed administrative duties, she said she worked two to three hours each weekday after school in the pool, and then again on Saturday and Sunday.[78]
[75] T28, L31 – T29, L6
[76] T26, L13 – T28, L8
[77] T64, L30 – T65, L13
[78] T26, L13 – T28, L8
191With respect to her activities of daily living and domestic duties, Ms Nutting told the Panel at the time it was preparing the 4 September 2015 report, that she was independent in all activities of daily living and showered and dressed each day. She said she was responsible for all household chores including cooking, cleaning and washing, and continued to drive and use public transport.
192In cross-examination, Ms Nutting explained that she lived alone with her children in a three-bedroom townhouse. She said she is responsible for the housework. Her children sometimes help, but because they are only eight and eleven, she said it is mostly her. She said she does the shopping, the washing, and when necessary, she mows the small strip of grass in the courtyard, although, as she explained to Dr Yong, she has trouble doing the garden, and mows the lawn infrequently.
193She is able to drive.
194She has also had to have some modifications done to her house including installing a dishwasher drawer, so she does not have to bend down when using the dishwasher. She told Dr Yong she does domestic tasks at her own pace but struggles with them. She has changed the way she does things.[79]
[79] T28, L9-30
195She expanded on her evidence in re-examination. She explained that because her house has stairs, and the washing machine is upstairs, she finds it difficult to carry washing downstairs to the clothesline. She says she mainly hangs the washing on airers upstairs. Her children help with vacuuming, mopping, wiping down surfaces and carrying washing up or down stairs and they make their own beds and help her with her bed.[80] This was consistent with what she described to Dr Yong.
[80] T63, L13 – T64, L3
196Professor Love had opined in his report dated 26 August 2014 that Chronic Fatigue Syndrome was influencing Ms Nutting’s capacity to cope with her activities of daily living and her work arrangements. However, by the time Ms Nutting saw Dr Snyman in January 2015, she was able to take care of all activities of daily living and was not having any difficulties. She was able to cook, clean and do the tasks around the home, including taking care of herself and her two children. She was also able to drive and could use public transport.
197Dr Doig noted in his report dated 20 December 2017 that Ms Nutting would have difficulty undertaking her activities of daily living and returning to work if her analgesics were stopped. When seen by the Medical Panel on 5 July 2018, Ms Nutting said she was experiencing significant difficulties with housework. She was unable to change the linen on her children’s bunkbeds and the beds had to be replaced. Ms Nutting identified for Mr Kossmann that she had difficulty putting on her socks and shoes and cutting her toenails. However, by the time Ms Nutting saw Dr Yong on 24 February 2021, she told him that she was independent in her activities of daily living, although she sat down to dress.
198Prior to her spine injury, Ms Nutting said that she was not a person with many hobbies. Her family and friends were her main focus.[81] This was consistent with what Ms Nutting told Dr Yong. Post the incidents on 5 June 2014 and 10 December 2014, Ms Nutting told the Medical Panel that she was able to enjoy socialising. She was visited by a friend twice a week and she saw her sisters each fortnight. She also occasionally does activities with her children[82] and takes them to extracurricular activities.[83] She later said to Dr Yong she participated in fewer social activities (although she did not provide any detail about this) and she told Mr Kossmann that her injuries had profoundly impacted her social, domestic and recreational activities. Ms Nutting did not expand on this evidence, other than to say that since her spine injury, she has not enjoyed socialising to the same extent.
[81] T29, L12-15
[82] T29, L12 – T29, L25
[83] T30, L11 – T30, L21
199For the reasons above, I have aggregated the consequences of the 5 June 2014 and 10 December 2014 incidents. I have formed the view that Ms Nutting does have some pain in her mid and lower back – best described as an ache. I do not consider that she has disentangled the extent to which her back pain results from her spinal condition as opposed to her Chronic Fatigue Syndrome/fibromyalgia.
200Regardless of this though, even if I were to accept that all her pain is the result of her spinal condition, I do not consider that the pain she claims to suffer, is at least “very considerable”. In reaching my decision, I have considered the nature and the severity of the pain and its description by her as an “ache”. I have also considered what Ms Nutting did in response to the pain.
201Ms Nutting does not take prescription medication for her pain. At most she takes Nurofen three times a week. Her general practitioner’s records from August 2020 to July 2021 (the date range available) do not refer to her back condition at all, and any treatment Ms Nutting received during that period was in respect of her shoulder condition.[84] She has not seen a specialist about her spinal condition since she last saw Mr Etherington in October 2018.[85] Nor has she been receiving pain management treatment.[86] The only treatment she has been receiving in the past three years is osteopathy,[87] some intermittent physiotherapy,[88] home exercises[89] and the application of heat packs. In my opinion, this level of treatment is not consistent with an injury of the seriousness claimed by Ms Nutting.[90]
[84] Exhibit 1, p 133-143
[85] Exhibit A, p 48
[86] T25, L11
[87] T24, L29 – T25, L13
[88] T23, L28 – T24, L18
[89] T24, L5-6
[90] Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 267
202Further, even though Ms Nutting claims that she wakes on average once every two hours during an eight-hour sleeping period, I consider her evidence in this regard to be exaggerated. Because of the view I have taken about the reliability of her evidence overall, and after considering the differing accounts given to different doctors, the most that I think can be concluded is that she has had some interruption to her sleep due to pain. I do not consider that the evidence supports a finding that there was always pain or that the pain was of such an extent or severity as she claims or that it should be considered “serious”.
203In reaching a conclusion as to the seriousness of Ms Nutting’s injury, I have also considered the fact that Ms Nutting has retained a capacity to work. While not always conclusive, this provides some evidence that the consequences of her spinal injury are not “serious”,[91] even if she can no longer undertake her pre-injury childcare work. In any event, it is difficult to give substantial weight to the fact that Ms Nutting can no longer work in childcare given that she has failed to separate the extent to which her concurrent Chronic Fatigue Syndrome/fibromyalgia condition was responsible for her inability to perform that work.
[91]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [15] (per Maxwell P); Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67 at paragraph [38]; Demmler v Transport Accident Commission [2018] VSCA 284 at paragraphs [59]-[60]
204I accept that Ms Nutting is limited to some extent in the performance of her domestic duties. She has trouble doing the garden and mowing the lawn and has had to have some modifications done to her house including installing a dishwasher drawer so she does not have to bend down when using the dishwasher. Nevertheless, she remains able to perform the majority of her domestic tasks, albeit at her own pace and with some changes to the way they are done. She is also largely able to perform her activities of daily living and attend to her personal care.
205Similarly, although Ms Nutting may socialise less now, she is still able to enjoy seeing her friends and family.
206Ms Nutting claimed in her affidavits that she has struggled with relationships since her injury. Beyond that statement, the only evidence of relationship difficulties was her evidence about the breakdown of her relationship with her husband. For reasons already articulated, I do not accept that the breakdown of her relationship with her husband was a consequence of her spinal injury. Ms Nutting separated from her husband in 2013 and he moved out of the family home in February 2014. This was well before the incidents arising in either June or December 2014.
207Overall, while I accept that Ms Nutting does have some pain in her low and middle back and some minimal restriction in her domestic and recreational activities, I do not consider the consequences of Ms Nutting’s injury satisfy the “very considerable” test required by the Act.
208For completeness, if the approach I have adopted of aggregating the consequences of Ms Nutting’s lumbar and thoracic spine injury is not correct, and the lumbar and thoracic spine symptoms which Ms Nutting experienced on 10 December 2014 should be regarded as a separate aggravation injury, the consequences of the aggravation injury must still be considered “serious”.[92] Even if the second incident arising on the 10 December 2014 were to be considered a separate aggravation injury, I am satisfied that the conclusions I have reached would remain the same.
[92] Petkovski v Galletti (supra)
209On 5 August 2014, Dr Head certified Ms Nutting fit to return to work from 9 September 2014 and Ms Nutting returned to her pre-injury duties and hours on that date.[93] By October 2014, Ms Nutting said that she had noted a “lot of improvement” in her back symptoms and felt about 80 per cent better.[94] In my view, immediately prior to the further manifestation of pain and symptoms on 10 December 2014, Ms Nutting was substantially better, although she was still experiencing some pain and restriction from the 5 June 2014 injury. As Associate Professor Love identified in his report dated 26 August 2014, following the 5 June 2014 symptoms, Ms Nutting experienced difficulties with some aspects of her daily living. She reported lower back pain every day. She found sitting and lying flat aggravated her pain. She was being treated with Nurofen. She had mild tenderness in her lumbar spine. There were no distal neurological signs, and the CT scan revealed no significant abnormality. No imaging was available. Her activities of daily living and work arrangements were compromised.
[93] Exhibit 1, p 60; T47
[94] Exhibit 1, p 26
210After 10 December 2014, I accept that Ms Nutting continued to experience pain and restriction, however, the pain continued to be treated by Nurofen, suggesting that it was no more severe than the pain Ms Nutting was previously experiencing, although perhaps more frequent. By January 2015, when Ms Nutting saw Dr Snyman, she was able to take care of all activities of daily living without experiencing difficulties. This was still the situation when she was seen by Dr Yong in 2021; although I accept that after 10 December 2014, Ms Nutting had trouble doing the gardening and mowing the lawn and has had to have modifications to her house, including installing a dishwasher drawer so she does not have to bend down.
211When a comparison is made of Ms Nutting’s impairment consequences immediately prior to the 10 December 2014 incident to what they were at the date of hearing, in my view, the impairment consequences of the 10 December 2014 injury considered in isolation have not been shown to be at least "very considerable” when judged in comparison with other cases in the range of possible impairments or losses.
212Finally, the onus remains on Ms Nutting to disentangle the consequences of her course of employment or aggravation spinal injury from those arising from her shoulder condition and her Chronic Fatigue Syndrome/fibromyalgia. As I have explained, I do not consider that onus has been discharged with respect to the Chronic Fatigue Syndrome/fibromyalgia. There is no clear medical evidence which separates the consequences arising from the Chronic Fatigue Syndrome/fibromyalgia from the consequences arising from Ms Nutting’s spinal injuries.
Conclusion
213For all the above reasons, I have concluded that Ms Nutting’s impairment consequences do not satisfy the statutory threshold. She has not suffered a “serious injury”. Her application should consequently be dismissed.
214I shall hear the parties as to costs.
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