Obestar v Greythorn Pty Ltd
[2013] VCC 6
•14 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-06138
| SONYA ELIZABETH OBESTAR | Plaintiff |
| v | |
| GREYTHORN PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2013 | |
DATE OF JUDGMENT: | 14 February 2013 | |
CASE MAY BE CITED AS: | Obestar v Greythorn Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 6 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right Achilles tendon – aggravation – pain and suffering only – whether consequences to the plaintiff are “serious”
Legislation Cited: Accident Compensation Act 1985, ss134AB(16)(b), 134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti (1994) 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Bezzina v Phi & Anor (2012) VSCA 16; Dressing v Porter & Anor (2006) VSCA 215; Humphries v Poljak [1992] 2 VR 129; Dwyer v CalcoTimbers Pty Ltd No 2 [2008] VSCA 260.
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Slater & Gordon Ltd |
| For the Defendants | Mr B McKenzie | Lander and Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant on 28 February 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on is the right lower leg.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti.[2]
[1] (2005) 14 VR 622
[2] (1994) 1 VR 436
10 The plaintiff relied upon two affidavits and was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Background
11 The plaintiff was born in 1973 and is presently aged thirty nine. She has been employed at IT Com as an IT recruitment consultant since June 2012.
12 The plaintiff commenced employment with the first defendant, an internet recruitment company, as a principal consultant in September 2006. Prior thereto, she had had a variety of jobs after completing Year 12, including working in retail and real estate.
13 On 2 November 2007, the plaintiff injured her right Achilles tendon playing netball (“the netball injury”). The plaintiff was initially seen at The Alfred Hospital (“The Alfred”) where an ultrasound was carried out.
14 It was reported the ultrasound of the right leg showed a complete rupture of the right Achilles tendon 8 centimetres proximal to the calcaneal insertion. There was associated 2 centimetres of tendon retraction. It was noted there was significant surrounding free fluid and no intramuscular tear. There was no obvious calcaneal irregularity.
15 The plaintiff was later taken to Sandringham Hospital on 6 November 2007 where she underwent a tendon repair (“the first surgery”). Hospital notes of that date indicate the plaintiff then weighed 103 kilograms.
16 On discharge, the plaintiff had physiotherapy treatment from Mr Zucker weekly for about a month and then spasmodically for about another two months. His notes detail attendances on 22, 25 and 30 January, and 6 and 11 February 2008.
17 The plaintiff deposed that following the netball injury, she had recovered sufficiently to no longer require treatment. In cross examination, she described mobilising freely, “walking normally absolutely” at that time without the assistance of aides.[3]
[3]Transcript (“T”) 27-28
18 When asked in cross examination whether she was still recovering as at the said date, the plaintiff said a rupture does take a little bit of time. However, she was certainly on the way to recovery. Everything was as expected as far as she was aware and had been advised.[4]
[4]T27
19 In re examination, the plaintiff described being at a point where everybody was happy with her progress and the tendon had healed well. There was no indication that she would not be able to participate in any sports or run or do anything.[5]
[5]T56
20 On the said date, whilst exiting the elevator at the first defendant’s premises, the plaintiff stepped onto the floor, which unbeknownst to her, was not level with the elevator, and tripped on the raised floor (“the incident”). She deposed she injured her right leg and back and she later suffered psychiatric injuries.
21 In re examination, the plaintiff described the pain was like someone had got a knife and cut through her Achilles.[6]
[6]T57
22 The incident occurred two weeks after removal of her CAM walker, she had been using following the netball injury.[7]
[7]T29
23 The plaintiff set out in the Claim Form signed by her on 11 April 2008 that she had a “complete rupture of the Achilles back in November 2007” and was “in recovery/ physio – re‑rupture was above original injury”. In re-examination, the plaintiff denied there was a retear in the incident.[8]
[8]T58
24 The plaintiff’s claim for medical and like expenses was accepted on 30 April 2008.
The Plaintiff’s Medical Treatment
25 Having tried to treat herself at home after the incident, the pain in the plaintiff’s right heel increased substantially, and she attended The Alfred where she was admitted to Emergency.
26 An ultrasound showed the plaintiff had torn the right Achilles tendon about an inch over where she had injured the tendon in the netball injury.
27 The report of that ultrasound of the right leg of 1 March 2008 set out that the medial and middle fibres of the Achilles tendon had ruptured, with surrounding oedema. There were some lateral fibres remaining intact. The fibres were in keeping with partial rupture of the Achilles tendon approximately 11 centimetres from the calcaneal insertion.
28 Conservative treatment was suggested by way of a CAM walker and crutches. The plaintiff used crutches for about eight weeks, and the CAM walker on its own for another month. The plaintiff came out of the CAM walker on 30 May 2008.
29 The plaintiff had weekly physiotherapy but did not notice very much improvement in her right Achilles and calf.
30 Mr Zucker’s notes indicate the plaintiff first attended after the incident on 5 May 2008, with a number of other attendances later that month, with the last visit in June 2008.
31 As she continued to have problems weight bearing and had no strength in her right calf, the plaintiff started to see another physiotherapist, Mr Varigos. He organised an MRI scan and referred the plaintiff to orthopaedic surgeon, Dr Tymms.
32 The MRI scan of 27 July 2009 organised by Mr Varigos showed diffuse thickening of the proximal and central Achilles tendon consistent with chronic tendinopathy and previous repair. There was a small 2.8 centimetre laminar intrasubstance tear centrally. There was diffuse hyperintense signal distal muscle bellies soleus, and gastro cnemius muscles, which it was noted, may reflect a small muscular strain at the musculotendinous junction; however, given the diffuse nature of the signal change relative to the adjacent posterior compartment muscles, it was noted the signal change may reflect a degree of atrophy.
33 In his letter of referral to Dr Tymms, Mr Varigos noted the initial rupture and a re‑tear of the Achilles with a tear in a different spot in the incident when the plaintiff tripped.
34 Mr Varigos noted the plaintiff, in May 2008, commenced physiotherapy for six sessions and had five osteopath sessions. He reported that prior to the 2009 MRI scan the plaintiff was complaining her Achilles tendon did not feel right and she could only weight bear 60 per cent, and pain with walking was her main concern. Mr Varigos noted the plaintiff’s Achilles was very thickened, but range of movement of her foot and ankle was adequate.
35 Having seen the plaintiff post operatively in September 2009, Mr Varigos advised Dr Tymms that the plaintiff was “over the moon” with the outcome of surgery. She was walking with a CAM walker, there was adequate plantar and dorsiflexion, very little pain and reduced strength and proprioception.
36 Dr Tymms first saw the plaintiff in August 2009. He then reported to Mr Varigos that the plaintiff had eight weeks in plaster after the surgery for the netball injury and then a re‑tear within a few weeks.
37 Noting the conservative treatment that followed, Dr Tymms reported that the plaintiff’s ankle had never fully recovered, and she had had pain since that time with ongoing swelling, tenderness and weakness of her calf.
38 On examination in August 2009, there was wasting, and the plaintiff could not rise on her right side. There was numbness over the distribution of the sural nerve, and the Achilles tendon felt thickened. There seemed to be a defect in the proximal tendon with tenderness in that area. Her right foot was hanging in a neutral position compared to the left in 20 degrees plantar flexion. There was weakness of ankle plantar flexion.
39 Noting the MRI, Dr Tymms concluded that, unfortunately, the plaintiff had had an elongation of her Achilles following the re‑rupture, and subsequently developed ongoing tendinopathy. He thought the only option was to consider further surgery requiring the excision of scar tissue and degenerate tissue with reconstruction of the Achilles and most likely augmentation with a tendon transfer from the FHL tendon. He expected that would improve the plaintiff’s calf strength and power; however, that would never be normal.
40 Surgery in the form of a right Achilles tendinopathy and elongation following previous rupture and repair took place on 29 September 2009 at Epworth Hospital (“Epworth”) (“the second surgery”).
41 Following the second surgery, the plaintiff was ordered to be non weight bearing for six weeks, on a back slab for two to three weeks, and then use a CAM walker with a double heel wedge for a further three weeks. At six weeks, she was to begin weight bearing with a single heel wedge, reducing to neutral over the following four weeks.
42 Dr Tymms reported to Mr Varigos in October 2009, three weeks after the second surgery. He noted the Achilles looked fairly unhealthy and was quite stretched out, and he had partly debrided then shortened and repaired it with a tendon graft to augment and help strength in the Achilles area. He noted the plaintiff’s wounds had healed well and she had been placed in a CAM walker, and he would review her in a further four weeks to let her start weight bearing.
43 On review on 11 November 2009, Dr Tymms advised the Achilles looked good with no pain and good mobility. He thought the plaintiff could now start fully weight bearing, initially in a walker boot with two wedges, reducing every second week by one wedge. He thought she could start some gentle physiotherapy and gradually increase this as tolerated, and he would review her in two months.
44 On review on 25 January 2010, Dr Tymms noted the plaintiff was extremely happy with her result. She was walking well with no pain, and her ankle had a good range of movement. She had reasonable strength in her Achilles, but that would obviously take some time to fully recover. He noted there was some thickening through the Achilles, which was to be expected.
45 Dr Tymms advised the plaintiff was very happy with the result of surgery and he suggested she gradually increase her activities as she gained more strength in that area over the next six to nine months.
46 In cross examination, when asked about the history recorded by Dr Tymms on 25 January 2010, the plaintiff asked rhetorically – “When is there no pain after a rupture?”. At the time of that examination, her heel was so much better than prior to the second surgery, but there was always going to be a certain amount of pain.[9]
[9]T31
47 The plaintiff agreed she made no mention to Dr Tymms of any problem with her back but explained that was because she was seeing him for her heel. She did not think Dr Tymms or other doctors could do anything else for her.[10]
[10]T32
48 The plaintiff felt she had a bad back after all the limping she had been doing. She had some massage and just thought, “You know that’s life”.[11]
[11]T35
49 The plaintiff did not tell Mr Varigos or any doctor about her back problem.[12] She described herself as probably a bit of a martyr and she certainly did not expect her back to get to the level it had reached. She thought it would just get better.
[12](supra)
50 In his November 2012 report, following a further referral by Dr Kotler after the plaintiff’s complaints to her of cramping in both legs, Dr Tymms noted the plaintiff’s current and longstanding issues were certainly a result of the re‑rupture, but also on the background of the previous rupture and surgical repair which would have caused pre-existing weakness in the tendon.
51 Dr Tymms noted that following the second surgery the plaintiff had had a prolonged period of immobilisation then gradually rehabilitation and recovery with further physiotherapy, and there were no further plans for treatment.
52 Dr Tymms advised that on his latest review in November 2012, the plaintiff still had ongoing issues with her calf and Achilles. She had general aching and soreness in the calf muscle with activity, and was unable to stand on her tiptoes easily. Her leg got tired most days, particularly after prolonged walking. He noted she rated pain at five out of ten and she was doing physiotherapy and Pilates to help maintain calf strength.
53 Dr Tymms thought the plaintiff currently had, and would have, ongoing restrictions in relation to high level exercise and recreational activities. She would have difficulty running or participating in sports socially or competitively, and would not be able to do any work involving prolonged standing, walking or carrying heavy objects. This was on a permanent basis, and he could not foresee significant improvement in the plaintiff’s condition, which was stable and permanent.
54 Dr Tymms wrote to Dr Kotler in November 2012. He noted that although the plaintiff initially seemed to have made a good recovery from the second surgery, she told him that since then she had had some ongoing issues with her calf and some degree of difficulty and pain which she felt present most days. She generally felt a tired sensation and ache in the leg, and felt her calf muscle was tight and weak. The Achilles tendon area itself was okay and much improved compared to before the second surgery.
55 On examination, there was some calf wasting and some slight elongation through the Achilles tendon complex. There was some nerve sensitivity over the proximal end of the scar relating to the sural nerve which was present from the first surgery. The tendon itself showed minimal tenderness, and the calf muscle was also minimally tender with no obvious focal areas of pain. Calf power was satisfactory, but the plaintiff had difficulty with a single leg heel raise.
56 Dr Tymms concluded the plaintiff had ongoing issues with her calf and Achilles. He thought these issues may be related to the general weakness of the calf muscle and dysfunction which was causing general fatigue and aching in the calf muscle itself. He recommended an MRI scan to assess the future situation, but was not sure what he could do.
57 The plaintiff returned to see Dr Tymms later that month with the MRI. It showed the previous FHL tendon transfer was intact and healed well with some secondary muscular hypertrophy. The tendon showed some scarring as expected through the area of the previous surgery and rupture. Dr Tymms noticed, interestingly, there were some inflammatory or oedema changes in the more proximal calf muscle correlating to the area of soreness.
58 Having discussed the situation with the plaintiff, Dr Tymms thought there did not seem to be any easy or reliable solution to improve the situation. He noted she seemed happy to continue on, as she was managing her leg with her activity levels. If there was a deterioration in the future, he advised she could come back for further review.
The Lumbar Spine
59 The Epworth notes set out the plaintiff attended 31 October 2010 complaining of lower lumbar pain intermittently experienced over a few months, with pain worsening. A t the time, the plaintiff rated her pain at nine out of ten.
60 Mr Peter Turner, orthopaedic surgeon, saw the plaintiff at Epworth following this overnight admission in Emergency. He noted she presented with quite severe pain in the lower back of the leg. He took a history of the pain having been building up over the past few months, but over the weekend, it became so severe the plaintiff could no longer manage and her left leg was giving way.
61 In cross examination, the plaintiff confirmed this was the situation and the back pain got subsequently worse until that last few months when she realised she had sciatica. In that couple of months, the pain was quite excruciating, until the episode in relation to which she presented to the Epworth when the pain was unbearable.[13]
[13]T36
62 The plaintiff confirmed she had severe back pain for a few months before attending the Epworth. She would not have ended up where she is today if that was not the case.[14] She did not go to the doctor when the pain was severe. She was stupid to seek medical assistance so late. The pain when she attended Epworth was like someone literally had a knife in her vertebrae.[15]
[14]T49
[15]T50
63 In re examination, the plaintiff said that back pain came on from about the second week she was on crutches following the second surgery. She found using crutches really difficult and the pain was certainly worse when walking in the CAM walker.[16]
[16]T60
64 An MRI scan following the initial admission to Epworth, showed a sequestrated disc prolapse on the left side.
65 It was reported an x‑ray of the lumbar spine of 8 November 2010 showed lumbarisation of the first sacral vertebra with a false joint articulating between the large left transverse process and left sacral alar. Elsewhere the vertebral bodies and disc spaces were normal, with only mild loss of disc space height at L5‑L6.
66 Mr Turner then suggested conservative treatment in relation to the disc prolapse. Unfortunately, the plaintiff’s pain did not settle, and a foraminal injection made no difference, and in the end it was decided surgery was appropriate. Mr Turner thought, and discussed with the plaintiff, that there was perhaps a 90 per cent chance of relief of left leg symptoms, and she decided to go ahead with the operation.
67 Surgery took place on 8 November 2010 in which a lot of sequestrated disc fragment was found in front of the dural sac adjacent to the L5 pedicle on the left side (“the back surgery”).
68 On examination two days later, Mr Turner noted the plaintiff’s early post-operative progress had been satisfactory. He reported she was already aware of significant improvement in her leg pain and had started to mobilise, and, all being well, she would be ready to go home on the weekend. He planned to see her four weeks after discharge.
69 On review on 13 December 2010, Mr Turner thought the plaintiff had recovered well from the back surgery and had returned to work a few days earlier. The plaintiff still had some residual symptoms, but overall they were greatly improved on what she had been experiencing pre-operatively. He gave her the all clear to start gradually increasing exercise and activities, and planned to see her in three months for a final check.
70 Mr Turner reviewed the plaintiff on 2 March 2011. She then continued to be happy with the outcome of the back surgery. Her back pain was definitely much better and there was no return of leg pain. The plaintiff still had a floppy foot, but that did not affect mobility.
71 Mr Turner encouraged the plaintiff to keep up regular exercises, and noted she was planning to lose weight, which he thought would be quite helpful. He made no plans to see her further.
72 Mr Turner advised Dr Sakowsky of these findings by letter dated 2 March 2011.
73 In cross examination, the plaintiff confirmed improvement following back surgery.
74 Mr Turner noted in his May 2011 report that he did not recall the plaintiff mentioning her incident ankle injury specifically, and his notes made no specific mention of that problem. In his view, an injury to the ankle obviously can change the gait pattern, but could at least in theory have some negative impact on the lower back. He would not dismiss the possibility of a link between the need for a laminectomy and the ankle injury, but, equally, the greater the time interval between the onset of the ankle problem and the need for a laminectomy, the less credible that link would be.
75 Mr Turner re examined the plaintiff on 23 August 2012 at the request of Dr Kotler. The plaintiff then advised she had had quite severe back pain at Christmas 2011 which subsequently eased off a little, but she was still feeling quite restricted.
76 An up-to-date MRI scan was recommended and carried out in August 2012. Mr Turner noted it showed the original prolapse had clearly been removed. He advised he thought the symptoms the plaintiff had been experiencing were almost certainly predominantly muscular in origin. He encouraged her to try to persevere with things as best able, and she was encouraged to do physiotherapy and try to return to Pilates.
77 Mr Turner confirmed in his supplementary report dated 31 October 2012 that his notes made no reference to the plaintiff’s earlier ankle injury and surgery. He thought the link between the incident injury and the development of a disc prolapse in late 2010 was “at best tenuous.”
78 Mr Turner considered the back injury and subsequent persistent pain would have some impact on the plaintiff’s ability to pursue social, domestic, recreational and employment activities, but not preclude some fluctuating ongoing involvement in those activities.
79 The plaintiff has seen Dr Kotler on and off since May 2009.
80 Dr Kotler reported in November 2012 that the plaintiff presented on 4 July that year with bilateral cramp over the last six months. She also complained of right Achilles tendon pain since the second surgery four years earlier.
81 Dr Kotler referred the plaintiff back to Mr Turner and Dr Tymms for opinions on management. Dr Kotler noted Mr Turner felt physiotherapy and Pilates was the best treatment for the plaintiff’s back. Dr Tymms felt ongoing issues with the Achilles may be due to general weakness of calf muscle and dysfunction, and he felt a new MRI may help.
82 A number of entries in Dr Kotler’s notes were tendered by the defendants. The plaintiff attended on two occasions in 2009 for unrelated matters. In 2010, she attended following the laminectomy in November and was prescribed Endone and Panadeine. She attended earlier that year for an unrelated matter. The next visit was in November 2011 when Panadeine and Endone were ceased,
83 The plaintiff agreed in cross examination that Dr Kotler did not prescribe anything for her heel. The plaintiff does not fare very well on medication and has a high pain threshold.[17] Since Endone was ceased, the plaintiff has taken Pandol and Difflam for her back.
[17]T45
84 After an unrelated visit in April 2012, the plaintiff then attended on 4 July, it was noted:
“Back; bilateral full range of movement without pain or restriction. Tender to palpation. Spasm. Reason for contact was bilateral pain – leg cramps lower legs for six months, occasional. Right Achilles tendon pain. Management - physiotherapy controlled weekly and Pilates.”
85 On 3 October 2012, there was a further attendance. The plaintiff again complained of bilateral cramps for six months up to three times a week, lasting minutes to hours, resolving spontaneously. A referral was made to Dr Tymms.
86 On 10 October 2012, it was noted:
“? cramps related to gait following surgery to follow-up with specialist.”
87 In cross examination, the plaintiff agreed she attended the doctor quite rarely.[18] From about 2004 up to August 2010, she was treated by Dr Sakowsky at Whitehorse Medical Centre (“Whitehorse”).
[18]T41
88 When the plaintiff attended Whitehorse in March 2007, it was noted she was concerned about her weight, at which time she weighed 100 kilograms.
89 The plaintiff agreed she made no complaint of back pain to Whitehorse and only attended once for her heel condition in August 2009 as she was being seen at the Alfred.[19]
[19]T42
90 On that one attendance, the plaintiff complained of ongoing pain and poor gait, and needed a referral to an orthopaedic surgeon. A letter to Dr Tymms was printed. The last consultation noted at Whitehorse was 22 June 2012.
91 Simon Nelson, physiotherapist at Melbourne Sports Medicine Centre, commenced seeing the plaintiff in September 2010 when she reported calf fatigue with walking, and difficulty walking on uneven surfaces. Mr Nelson noted it followed those factors would affect functional gait patterns and have some influence on lumbar function.
92 In re-examination, the plaintiff said, on questioning, Mr Nelson told her the back problem was absolutely linked to the altered gait.[20]
[20]T64
93 The plaintiff returned to Mr Nelson on 17 December 2010, six week post laminectomy, with significant left lower limb numbness, resolving low back pain, and restrictions on sitting.
94 Mr Nelson noted on initial assessment in September 2010, there were significant limitations to right calf and Achilles tendon function, and the plaintiff was only seen for that condition prior to returning post laminectomy. He thought the right calf weakness on the initial examination was yet to fully resolve.
95 The plaintiff was seen nineteen times for physiotherapy treatment to her lumbar spine and related hip symptoms from 17 December 2010 to 15 November 2012. In cross examination, the plaintiff agreed that during that time, primarily treatment was focussed on her back.
96 Mr Nelson thought the plaintiff had had a good overall recovery from back surgery with some ongoing restrictions of lumbar movement, but generally her low back was relatively stable if provocative activities were avoided. He noted, combined with the limitations from incomplete recovery from the heel reconstruction, it was likely functional limitations would continue and further episodes of low back pain would recur.
97 Mr Nelson noted recent examination showed ongoing weakness in the right calf with limited ability to actively repeatedly heel raise. There was also limited muscular function of the right first metatarsal phalangeal joint, limiting active movement and control of the great toe, thus having implications to affect normal gait pattern, noting the plaintiff reported right calf and low back symptoms related to prolonged walking. He suggested light exercise including walking and cross training with interspersed periods of rest was appropriate, and that more active activities be avoided.
Medico-Legal Examinations
98 Professor Myers, general surgeon, examined the plaintiff in December 2012.
99 Having told him of the incident, the plaintiff also told Professor Myers that early in 2009, she developed pain in the low back which was attributed to poor gait while weight bearing in the CAM boot and as a result of wasting of the leg requiring a walking stick. She told him her back problems gradually worsened and she attended Epworth.
100 Professor Myers noted that in the incident, the plaintiff ruptured her tendo Achilles higher up than the earlier rupture with the netball injury.
101 The plaintiff weighed 107 kilograms on examination. The measured circumference of her right calf was 2 centimetres greater than the left because of wasting. There was absent plantar flexion of the right first toe. There was restriction of inversion and eversion of the hind foot.
102 Professor Myers concluded the disability in the plaintiff’s back resulted from aggravation of pre-existing previously asymptomatic degenerative intervertebral disc disease as a result of poor gait and non weight bearing over a prolonged period of time with the various operations. He thought it remained uncertain what treatment could be given to reduce inflammation in the tendon and calf muscles, and that may require cortisone injections, but conservative management was more likely. He thought there was a distinct possibility that worsening troubles in the plaintiff’s back would require a two level fusion.
103 Professor Myers noted that the plaintiff’s injuries (back and heel) restricted social, domestic, recreational and employment activities on a permanent basis.
104 Mr Michael Dooley, orthopaedic surgeon, reported in January 2013, having been asked to comment as to the link, if any, between the plaintiff’s lower back condition and the 2007 tendon injury and 2008 heel injury.
105 Mr Dooley was provided with Mr Varigos’ report of August 2009; Dr Tymms’ progress notes and reports dated 10 August 2009, 21 October 2009, 11 November 2009 and 25 January 2010; selected Epworth notes, including the discharge note of 1 November 2011; reports of Mr Turner dated 2 November 2010, 10 November 2010, 13 December 2010, 2 March 2011, 2 May 2011 and 2 October 2012; Mr Nelson’s report of 27 November 2012, and Professor Myers’ report.
106 Mr Dooley’s history was that after the netball injury, the plaintiff was immobilised in a CAM walker for about eight weeks following surgery, and mobilised gradually. She then had the work injury, which he considered probably involved a re‑rupture of the tendon.
107 Mr Dooley had a history of conservative management, later surgery, and then a steady recovery. He noted the plaintiff then presented to Epworth in October 2010 complaining of low back pain, with reference to the casualty notes, where the plaintiff described intermittent low back pain over a several month period. There was a suggestion initially of conservative treatment, but then the plaintiff underwent laminectomy and discectomy, with definite improvement in her left sided sciatica. Mr Dooley noted the 2012 MRI showed no evidence of disc prolapse or nerve root compression.
108 Mr Dooley commented that generally a rupture of the tendon is a significant injury. Whether it is managed conservatively or surgically, most patients need around eight weeks of immobilisation initially, often with a heel raise slowly, then mobilisation, often with a heel raise slowly for the next six to eight weeks. Gradually they resume greater activity, and, if appropriate, return gradually to jogging and running.
109 Mr Dooley stated that most patients will take six to nine months to make a reasonable recovery from the injury. Following recovery, they would be left with some calf wasting and may have difficulty with propulsive activity, and usually they do not complain of any significant pain. They might note an ache when they mobilise after periods of immobility.
110 Mr Dooley noted one of the well recognised complications of a rupture was after treatment, there is re‑rupture, most commonly in the first month or two after the patient begins to mobilise without aid. Re-rupture generally occurs when someone gets a sudden dorsiflexion force to the ankle. The rupture may be managed conservatively or surgically.
111 In the plaintiff’s case, initially treatment was conservative, and then the tendon healed in an elongated fashion. This led the plaintiff to experience weakness and lack of propulsive activity, and it was therefore decided to reoperate and reconstruct the tendon.
112 Mr Dooley noted following recovery, one would hope that a patient would note improvement in their symptoms based on their symptoms in the re‑ruptured state; however, one would not expect full recovery in terms of function, and most patients would still note weakness and probably some occasional pain. They would note limitation in terms of impact activity and prolonged walking.
113 Noting the L4‑5 prolapse with which the plaintiff presented at Epworth in October 2010, Mr Dooley commented that prolapses occur in degenerating lumbar discs, and it was evident that the plaintiff had naturally occurring degeneration at L4‑5 and L5‑S1. He thought a significant episode of low back pain around Christmas 2011 would not be unexpected in that situation.
114 Mr Dooley noted that after both Achilles tendon operations, the plaintiff would initially have had to walk non weight bearing, then partially weight-bearing, before gradually increasing. He thought it feasible during those periods from time to time that the plaintiff, who is in early middle age with underlying degenerative disc disease, could note some intermittent low back pain, and that altered gait and awkwardness of crutches would be theoretical reasons as to why a patient could note some low back pain in the early stages when mobilised.
115 On the material with which he had been provided, Mr Dooley noted that the plaintiff was experiencing intermittent low back pain around nine months following the second surgery, and then presented with the acute presentation thirteen months after surgery. As far as he could tell, the plaintiff was not describing low back pain or left sided sciatica during her recovery from the second surgery in September 2009, and began fully weight bearing in November 2009. He noted the comments about improvement made by Dr Tymms in January 2010.
116 On the information with which he had been provided, Mr Dooley thought there was no association between the development of acute lumbar disc prolapse and the re‑rupture and the subsequent back surgery. As with all medical situations, he noted one needed to examine all possibilities. He accepted there was a possibility there was a connection, but he would agree with Mr Turner that overall, such a possible link would be tenuous at best.
117 Mr Dooley commented that in ordinary clinical practice it is evident that some patients have degeneration of their soft tissue structures at a faster rate and greater degree than others of a similar age, noting that was why footballers had different results from knee reconstructions.
118 Mr Dooley concluded the reality of the situation was that the plaintiff presented with two coincidental but not uncommon clinical conditions for a woman of her age.
Overview
119 It is not disputed the plaintiff suffered a compensable injury in the incident, suffering a tear of the right Achilles tendon which had previously been ruptured in the netball incident. Liability was accepted for the payment of medical expenses.
Credit
120 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[21] at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[21](2010) 31 VR 1
121 I found the plaintiff to be a credible witness. There was no video or lay evidence challenging her claimed level of pain and restriction, nor did any medical practitioner report inconsistencies or exaggeration on examination.
122 Although I am not satisfied that the plaintiff’s back problem is a consequence of her incident injury, I do not consider the plaintiff making this attribution is a credit issue. As Mr Dooley noted:
“Ordinary clinical practice told us that many patients, following a compensable injury, tend to link the development of subsequent conditions either directly or indirectly to the compensable injury, which is human nature and understandable.”
123 In this case, where there is a pre-existing right leg condition, I must consider what the evidence discloses as to the plaintiff’s prior condition in this regard and determine whether the additional impairment resulting from the incident is serious and permanent.
124 In Petkovski v Galletti[22] at 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
[22](supra)
125 The approach in Petkovski[23] was recently approved and followed by the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz.[24]
[23](supra)
[24][2012] VSCA 60
126 Counsel for the defendant also relied upon the Court of Appeal decisions in Bezzina v Phi and Anor[25] and Dressing v Porter & Anor.[26] In both cases, the Court held that the consequences of the subject injury had to be considered in determining whether the impairment was “serious”.
[25](2012) VSCA 161
[26](2006) VSCA 215
127 The issue in this case is whether the aggravation of the Achilles tendon condition resulting from the incident is serious.
128 The onus is obviously on the plaintiff in this regard to establish that the consequences relating to the incident meet the statutory test.
129 Whilst my focus is on the impairment not injury,[27] there is little medical opinion in relation to which tendon injury results in the consequences relied upon by the plaintiff as at the date of hearing.
[27]See Humphries v Poljak [1992] 2 VR 129 at 134
130 There is no medical opinion as to the significance, if any, of the initial tear being eight centimetres from the calcaneal insertion and the tear post incident being eleven centimetres from that insertion. Nor is there any comment on there being a complete tear in the netball injury and a partial tear involved in the incident.
131 Further, whilst counsel for the plaintiff relied upon the operation report which set out the second surgery involved a reconstruction, there is no medical comment as to any particular significance of that procedure.
132 The only medical practitioners who have commented on the two injuries are Dr Tymms and Mr Dooley.
133 In this regard, Dr Tymms considered that the plaintiff’s current and longstanding issues were certainly a result of the re‑rupture, but also on the background of the previous rupture and surgical repair which would have caused pre-existing weakness in the tendon.
134 Further, Mr Dooley noted one of the well recognised complications of a rupture was after treatment there is re‑rupture, most commonly in the first month or two after the patient begins to mobilise without aid. It generally occurs when someone gets a sudden dorsiflexion force to the ankle.
135 Neither practitioner suggested however that there is any permanent impairment of the plaintiff’s heel relating to the netball injury. Further, there is no other evidence to this effect.
Consequences
136 I accept that, at the time of the incident, the plaintiff was weight bearing, having ceased using the CAM walker two weeks earlier. She did not require the use of any walking aids and was walking absolutely normally.
137 The plaintiff described being well on the way to recovery and everything was as expected as far as she was aware and had been advised.
138 The plaintiff last had physiotherapy treatment on 11 February, having had a total of five attendances after the netball injury. There is no suggestion from Mr Zucker’s clinical notes that further treatment was planned after 11 February.
139 Further, there is no evidence from the plaintiff’s surgeon at Sandringham Hospital that she was receiving ongoing treatment at the time of the incident, although the plaintiff said she would have attended the hospital after the first surgery. There is also no evidence that the plaintiff was having any difficulties with her recovery at that stage.
140 Unlike after the netball injury when the plaintiff’s heel was recovering and progressing after surgery, the plaintiff’s heel condition did not improve with conservative treatment after the incident.
141 As Dr Tymms described, the plaintiff had ongoing pain, swelling, tenderness and weakness of her calf. Further, she had had an elongation of her Achilles following the re‑rupture, and subsequently developed ongoing tendinopathy.
142 Mr Dooley also noted that after the incident, the tendon healed in an elongated fashion which led to the plaintiff complaining of weakness and lack of propulsive activity, and it was therefore decided to reoperate and reconstruct the tendon – a course described by Dr Tymms as the only option.
143 Whilst in early 2010 both Mr Varigos and Dr Tymms noted significant improvement in the plaintiff’s condition following the second surgery, problems with her heel and calf have persisted.
144 I accept the plaintiff’s explanation of the history taken by Dr Tymms in January 2010. Her pain had not resolved at that time, but compared to the level of pain before the second surgery it had significantly improved.
145 I accept that the plaintiff is not a person who frequently attends the doctor. The small number of attendances both in relation to two heel operations and the back surgery is somewhat remarkable. I accept in these circumstances that the plaintiff is somewhat of a stoic and as such should not be treated less favourably than some one who is less resilient – see Nettle JA in Dwyer v CalcoTimbers Pty Ltd No 2.[28]
[28][2008] VSCA 260 at 4
146 Clearly, the plaintiff’s heel had not recovered by early 2010. In September that year, she required physiotherapy treatment with Mr Nelson as she was experiencing calf fatigue with difficulty walking on uneven surfaces
147 In July 2012, the plaintiff again required treatment, having experienced cramping in her calves for the previous six months and also complaining of Achilles tendon pain. This led to a referral to Dr Tymms, who saw the plaintiff most recently in November 2012.
148 Dr Tymms then found there was some calf wasting and some slight elongation through the Achilles tendon complex. There was minimal tenderness of the tendon and calf muscle. Whilst calf power was satisfactory, the plaintiff had difficulty with a single leg heel raise. Further, he noted that interestingly the inflammation shown on MRI correlated to the area of soreness.
149 On recent examination, Mr Nelson found ongoing calf weakness with limited ability to actively repeatedly heel raise. There was also limited muscular function of the right first metatarsal phalangeal joint, limiting active movement and control of the great toe, thus having implications to affect normal gait pattern.
150 Professor Myers found calf wasting, absent plantar flexion of the right first toe and restriction of inversion and eversion of the hind foot.
151 Mr Dooley did not examine the plaintiff.
152 I accept the plaintiff continues to suffer constant calf pain of a burning nature when walking and at times even when sitting, there is quite a sharp stabbing pain.[29] She described her pain as a consistent five out of ten – her leg was always tired and sore. Her heel pain and back pain were equal.[30]
[29]T65
[30]T66
153 The plaintiff continues to experience numbness in her right foot, aching around her right ankle and hypersensitivity around the scars at the back of her right calf. She can also feel weakness in her right leg and finds it extremely difficult to get up on her toes.
154 The plaintiff is cautious when attending supermarkets or busy public events for fear of having her calf and heel knocked.
155 The plaintiff does not take significant medication for her heel condition, taking three Mersyndol a day for both her back and leg pain. She uses a wheat bag on her leg in the winter months three to four times a week. She needs to put her right leg up on a pillow to make herself more comfortable in bed.
156 The plaintiff continues to undergo Pilates and physiotherapy for both her heel and back conditions.
157 As a result of her leg pain and restriction, the plaintiff is precluded from engaging in a number of activities.
158 Prior to her injury, the plaintiff was very active, enjoying social tennis, netball and water skiing. She began water skiing as a young teenager, skiing at Lake Eildon and other locations frequently. She has not skied since the netball injury and is unsure if she would ever have the ability or confidence to ever try water skiing again.
159 In re-examination, the plaintiff described enjoying snow skiing and that she would try everything that she could possibly try. She loved playing with the kids, rolling down hills and getting on the ski biscuits.[31]
[31]T55
160 As a result of her heel injury, the plaintiff has also had to stop dancing, which was a pastime she enjoyed, involving tap and jazz classes on weeknights after work and dancing when she was a child.
161 Following her second surgery, the plaintiff tried to go back to tap dancing again, hoping it would strengthen her calf muscle and help her recover; however, it only made her right leg pain worse and she cannot get up onto her right toes. She now avoids dancing all together. She is still not allowed to run or perform any kind of exercise that has any type of impact.
162 The plaintiff’s inability to resume these impact sporting activities is supported by her treater.
163 Dr Tymms thought the plaintiff currently had and would have ongoing restrictions in relation to high level exercise and recreational activities. She would have difficulty running or participating in sports socially or competitively, and would not be able to do any work involving prolonged standing, walking or carrying heavy objects.
164 Mr Dooley shared this view.
165 In cross examination, whilst the plaintiff agreed driving, sitting for prolonged periods caused her back pain, she also experienced right leg pain with her right leg extended to drive.[32]
[32]T51
166 The plaintiff has some interference with her sleep due to right leg pain but predominantly her sleeping problems relate to her back.
167 I am not satisfied that the plaintiff has experienced any significant weight gain following the incident. Whilst she may have been more toned prior to her heel injuries, the plaintiff had concerns about her weight in match 2007 when she weighed 200 kilograms. On admission to Sandringham her weight was 103 kilograms and she has recently been weighed at 107 kilograms by Professor Myers.
168 In her first affidavit, the plaintiff deposed the incident injury caused her to alter her gait due to years of weakness and limping, combined with the walker, which was very difficult and uncomfortable to walk in, which in turn caused disc damage to her back. She then had back pain radiating down into her left leg.
169 The plaintiff deposed in December 2012 that she continued to experience constant back pain and floppiness in her left foot. She had difficulty with prolonged sitting, standing and driving and had some problems bending.
170 The plaintiff described problems with sleep due to back pain and some limitation driving. She continues Pilates and physiotherapy for both her back and her heel problems.
171 Whilst I accept the plaintiff is a non-complaining person, she did attend her general practitioner at various times after the second surgery for non related matters and made no complaint of back pain or any problems with altered gait.
172 The plaintiff’s first report of back pain was the attendance at Epworth in October 2010. The plaintiff then gave a history recorded by Epworth of severe pain at that time and intermittent back pain in the months before.
173 As the plaintiff did not seek treatment for her back or mention it to a doctor before this date, I do not accept that she experienced excruciating back pain in the months before she attended Epworth as she described in cross examination, nor do I accept that she has experienced back pain since being on crutches weeks after the second surgery.
174 Further, there is very limited medical evidence linking the plaintiff’s altered gait after the incident injury with her subsequent back problem and need for surgery.
175 When asked to comment on the ultimate need for laminectomy when the plaintiff’s back condition was not treated successfully conservatively, operating surgeon, Mr Turner, thought the link between the need for that surgery and the work incident was at best tenuous, having noted the greater the time interval between the onset of the ankle problem and the need for laminectomy, the less credible the link would be.
176 Whilst Mr Dooley considered it a possibility, he did not accept that there was a causal link between the two.
177 The only medical support in this regard is from vascular/general surgeon, Professor Myers, who, having been told by the plaintiff that she had had back pain pretty much since the second surgery, accepted there was a link between the two.
178 Professor Myers did not explain however why the plaintiff’s altered gait was such that it resulted in the need for back surgery as opposed to causing any discomfort as would usually be expected.
179 Similarly, whilst Mr Nelson made the connection between altered gait and the need for surgery, he did not provide any detailed explanation of his opinion.
180 In those circumstances, I am not satisfied that any back problems of which the plaintiff presently complains are a consequence of the incident injury.
181 Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to her right lower leg injury suffered in the incident.
182 The ongoing pain and soreness and the resulting inability to participate in a wide range of activities she previously enjoyed including high impact sports and dancing are consequences which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
183 As the plaintiff’s condition has persisted for nearly five years, despite surgery without significant improvement, I am satisfied her impairment is permanent – a view shared by her treating orthopaedic surgeon Dr Tymms.
184 Accordingly I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
- - -
0
5
0