Olaes v VWA

[2024] VCC 1066

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-06024

Gloria Olaes	Plaintiff
v
Victorian Workcover Authority	Defendant

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JUDGE:	HER HONOUR JUDGE CLAYTON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2024
DATE OF RULING:	17 July 2024
CASE MAY BE CITED AS:	Olaes v VWA
MEDIUM NEUTRAL CITATION:	[2024] VCC 1066

REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
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Subject:WORKPLACE INJURY COMPENSATION

Catchwords:              Serious injury application - back injury – application for leave to pursue a common law claim for pain and suffering damages

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act (Vic) 2014

Cases Cited:Stijepic v One Force Group Aust. Pty Ltd & VWA [2009] VSCA 181

Ruling:  Leave granted for the plaintiff to commence proceedings for pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Smietanka	Zaparas Lawyers
For the Defendant	Ms S Manova	MinterEllison

HER HONOUR:

1Ms Olaes seeks leave to bring common law proceedings pursuant to s325(1)(a) of the Workplace Injury Rehabilitation and Compensation Act (Vic) 2014 for pain and suffering damages. She claims injury to her spine sustained during the course of her employment with Allied Pinnacle. She must establish that she has sustained an injury that meets the test of more than significant or marked and at least very considerable.

2There is no real contest on the medical evidence about the plaintiff's diagnosis which is an aggravation of an underlying spondylosis. The main issue in dispute is whether the consequences for the plaintiff, when compared with the range of cases, meet the test of “at least very considerable”.

3The plaintiff is 47 years old. She went to school until year 11 and migrated to Australia in 2012, having previously lived in New Zealand and the Philippines. She worked largely in hospitality and food production and started work with the defendant on 27 April in 2017 and became a full-time production team leader. She sustained back pain, on her evidence, from heavy and repetitive lifting.

4From time to time she would use over-the-counter medications and had intermittent symptoms but could sleep and work. Then in May 2020 she gives evidence that she had a deterioration of her symptoms, particularly in the context of stacking products on pallets and moving those pallets. The pain was focused largely on the left side of her lumbar back and radiated down the back thigh. It was constant and was impacting her sleep.

5On 14 May 2020 she noticed a very substantial increase in that pain and on the 18th, had an appointment with her general practitioner. He prescribed Norgesic and referred her for a CT of her lumbar spine which occurred on 19 May 2020. She also at that time was referred for physiotherapy. In mid-June 2020 she resigned from work and on 26 August 2020 she attended a neurosurgeon, Mr Awad.

6On 17 September 2020 she had an MRI and was referred to Symon McCallum for pain management. She saw him on 27 November 2020. In May 2021 she had a medial branch nerve block at L4/5 and L5/S1. The results of that indicated that there was no role for surgical intervention,  as there was no nerve impingement. She was then referred to Dr Kilner Brasier to look at prospects for returning to work.

7She saw him in February 2021. She did not continue to see him after that attendance and was not asked to return. In August to October 2021 she attended an online pain management course. At that time she was being prescribed Norgesic, Brufen, Endep and Mobic. In 2023, Amitriptyline was added to her pain regime, and she now takes Mobic and Norgesic intermittently. She takes Panadol and Nurofen, on her evidence,  daily,  and Amitriptyline every night.

8In May 2024 she was referred for psychiatric treatment or assessment but as yet has been unable to book an appointment and she has not obtained any treatment for any emotional symptoms or the irritability that she describes in her affidavit material, and she gave some evidence about the waiting list involved. It is submitted by the defendant that Ms Olaes is focused on getting a job and has no real plans for psychological treatment, and I generally accept that submission.

9The consequences that Ms Olaes claims are that she has back pain most or all of the time. She describes the pain as a pinching, gripping sensation which can be sharp and that radiates to the back of the left thigh. She has flares of pain when bending, on flexion and twisting. She finds it difficult to walk for long periods, or to sit for long periods in one position. She has limitations when lifting heavy objects or pushing a heavy trolley. She finds long drives difficult.

10She was required, she says, to rehome her German Shepherd because she could not walk the dog any more due to her back pain, and she is generally less active as a result of back pain and this has caused her to gain weight. She says she struggles to vacuum. She has purchased a robot vacuum and for rental inspections when she was still renting she had to hire a cleaner when previously she would have been able to manage the cleaning herself.

11She attends church once a month, where she says prior to her injury she used to go every week.  She says her back pain is a significant part of her decreased church attendance, and that if her back is bad, she will not go. She says that sleep is difficult and that she takes strong medication each night to deal with this and she says that she needs assistance from her husband or family members from time to time when she is having a pain flare-up. She has given an example of the type of assistance she needs as tying shoelaces but explained in oral evidence that she now tries to avoid shoes that require shoelaces. She has bought shoes that are slip-on but when her back pain is bad, she sometimes requires assistance even with those.

12She gave evidence in her affidavit material that the back injury has affected her sexual life, her enjoyment of life,  she socialises less, she is more irritable and that the care of her daughter has been impacted. She gave examples in oral evidence that she previously would assist her daughter in activities like roller blading or skating, but now does not do that because she does not want to do things that might exacerbate her pain. She said before her husband was made redundant she  was the person mainly responsible for running the house but she has learnt to modify her domestic work to cope.

13A significant consequence she claims is the impact on her employment. She has been unable to continue in her pre-injury employment. She says she liked her job, she misses it. She enjoyed learning about food quality and safe food production and she liked working the night shift, and the family arranged themselves around this. She says she loved her colleagues and her supervisors. The pay was decent, the hours suited her schedule, and she said if she could turn back the clock, she would go back to that job and that she saw herself retiring in that job.

14After her injury she was unable to maintain that work and the medical opinions are universally in agreement that the pre-injury work is no longer suitable. She tried to return to McDonald's where she had previously worked as a night shift manager, but this did not work out and she quit shortly thereafter.

15She was then able to obtain work in a call centre in customer service and she was in that job for a little over a year. She gave evidence that the job provided her with less job satisfaction and she did not like it as much as her previous work, but from the perspective of her back pain, she was able to do that work. She was able to work partly from home and that afforded her the opportunity to be able to walk around and sit and stand as she needed to accommodate her back pain, but she left that position because she needed a higher salary.

16She was able to obtain work at Crown Hotels as a reservation agent. She started there in February 2023, working full-time doing shift work. She explained that if she drove, the drive was at least 40 minutes and that period of time would cause her some additional back pain. She would often take the train but there were difficulties with the shift work in relation to the hours that she would have to work. Sometimes she would not finish work until midnight, sometimes she would have to start work at 7 and the train timetable did not always line up.

17The result of this is that sometimes she would have a 13 hour day, including travel. There was inconvenience for the family in that if her husband needed to pick her up, he would have to wake up the daughter to bring her and ultimately, she finished that work because of the difficulties that were presented by the travel, as well as the impact of the travel on her back condition.

18She has recently started working, in June 2024, doing administration at a medical centre as a receptionist. This is a full-time job working 40 hours and it is permanent. She says that she finds the work hard with her back pain but it is a very new job. It is a 20 minute drive away. Her partner is able to drive her to and from the work; because they only have one car, that is a necessity. It is mainly sitting at a desk but  she is “learning to enjoy it”.[1]

[1]        Trancript page (“T”) 46 Line (“L“) 13

19She says that location is a significant factor in her choice of work because of her back injury and the difficulty she has travelling a far distance from home and her ability to drive comfortably. She would struggle to drive up to an hour. She says that when they visited friends in the Yarra Valley, they have had to pull over and have a break so that she can manage her back pain. Other than yearly trips to the Yarra Valley, she has not gone on any other road trips, which used to be something that she enjoyed doing.

20She says she would prefer to work night shifts because night shifts work for her family, as  she can bring her daughter to and from school and her body clock is used to the night shift.

Medical Records

21A CT scan shows decreased disc height and facet joint arthropathy at L4/5 and L5/S1 with no nerve impingement. Dr Awad has noted some L4/5 spinal canal stenosis secondary to hypertrophy at L4/5 facet joints which may be the cause of her back pain, and some lateral recess narrowing. He opines that the problem was not surgical but would benefit from pain management.

22Kilner Brasier, the occupational physician, noted an aggravation of a severe lumbar spondylosis.  The injury was consistent with the stated cause, that is, the employment, and he noted that the plaintiff was also very deconditioned. He considered that at the time of his assessment in 2021, the plaintiff had no current work capacity for her pre-injury duties and considered that being a medical receptionist would be a good option, which, I note, was the path that the plaintiff ultimately pursued.

23The general practitioner notes record numerous attendances for back pain. In 2020 there were 17 attendances for back pain or where back pain was noted. Likewise, in 2021 there were 17 attendances where back pain was the primary or a noted cause of the attendance. In 2022 there were nine attendances and in 2023, up until July, there were three attendances and then no further attendances.

24The plaintiff has explained that she stopped attending her general practitioner when the general practitioner stopped bulk billing. Money was tight and she could not afford the out of pocket component. She was unaware that WorkCover would meet those expenses.

25Since becoming so aware, she has resumed seeing her general practitioner. I accept that explanation generally and I accept that her lack of attendance from 4 July 2023 until March 2024 does not demonstrate that there was a sudden or magic resolution in her back pain and it is not put that way by the defendant.

26She gave evidence that since about 2022 she has generally attended her general practitioner when she has either needed a medical certificate for work or when the medication that she had at home ran out and she needed a script, but otherwise she largely managed on her own. She had attended a pain management course and she deployed those strategies. She took medication when she needed it and otherwise coped.

27She also gave evidence that during the period when she was not attending her usual general practitioner at Manor Lakes Medical Centre she had attended twice for medical certificates to an old clinic that she used to attend at Laverton, and that would indicate that approximately twice a year she has required a medical certificate for time off work because of back pain.

28The medicolegal opinion of Hazim Akil, neurosurgeon, from May 2024 diagnoses an aggravation of lumbar spondylosis, and no prior medical history that contributes. He noted that repetitive bending and lifting of heavy objects was a significant contributing factor. He considered the prognosis was guarded and that she was not fit for pre-injury work and considered that she could physically do work where she could alternate between sitting and standing in a job that did not have repetitive bending, lifting objects heavier than 5 kilograms, or repetitive lifting, pushing and pulling.

29Pain specialist, Dr Ramaswamy, considered that she had a diagnosis of an exacerbation of a lumbar spondylosis as a consequence of employment and that she had chronic post traumatic pain. He considered no current capacity for a pre-injury role and that it was likely to persist for the foreseeable future given how long she had had the pain for at the time of his assessment in June 2024.

30He noted that she may be a candidate for a spinal cord  stimulation sometime in future. I note that nobody else has commented about the prospect of this and I put it no more highly than that she may be a candidate, in the same way that almost anybody with back pain could potentially be considered a candidate for such a device. It has not been discussed or mentioned by any of her treaters. Dr Ramaswamy said that it would be difficult for her to be a consistent and reliable member of a team due to the likelihood of flare-ups of her back from simple tasks and that she would be precluded from some aspects of social, domestic and recreational activities for the foreseeable future.

31Eman Awad, an occupational physician, provided a report in June 2024. He noted her history that she had variable severity of pain ranging from 2 out of 10 to 7 out of 10 and that the pain radiated down the left buttock and knee. He noted left pain into the left arm. That has not been a feature of the way that the case has been put. He, like the others, diagnosed an aggravation of lumbar spondylosis. He noted that she had residual capacity for a sedentary role full-time but would need workplace adjustments, and that she would be likely to have higher absences because of her condition and recurrent flares which would impact on her reliability and he noted various restrictions in pushing, pulling, lifting, kneeling, squatting, crouching, use of ladders, walking up and down inclines, fixed prolonged positions and he considered that she had a permanent partial incapacity.

32Bruce Love, orthopaedic surgeon, who provided an opinion in 2021, diagnosed age related degenerative changes of a moderate degree in the lumbar spine and  considered that the employment had produced the symptoms. He considered that she could not return to her pre-injury duties but did have a capacity for modified duties.

33Timothy Gale, a general and trauma surgeon who gave an opinion in June 2022 noted mild ongoing symptoms and considered that she may have suffered aggravation of an age related, constitutionally based, degenerative changes in her lower back and considered that she had a work capacity and should avoid bending, twisting and lifting of heavy objects.

34Kevin Siu, neurosurgeon, provided an opinion on 27 February 2024 and noted that she provided a history of constant pain varying between 5 to 10 out of 10, that she had a normal neurological exam and no signs of nerve root compression. He considered that the employment likely would have aggravated a pre-existing mild spinal spondylosis, that she likely had a soft tissue injury and aggravation which was work related and that she would be capable of employment that was appropriate.  He opined that should avoid repetitive bending and lifting more than 5 kilograms. He considered that the pre-existing spondylosis was quite mild and he did not believe that three years of work had entirely contributed to her present symptomatology.

35For completeness, Dush Shan, psychiatrist, provided an opinion in March 2024 and diagnosed an adjustment disorder with mixed anxiety and depressed mood and from a psychiatric perspective, there was no incapacity for work and he did not consider that she needed treatment.

36There is no real dispute in regards to the medical records. The agreement generally is that she has suffered an aggravation of a pre-existing spondylosis. To the extent that Mr Siu raises a causation question, I do not consider that this is sufficiently identified or that there is a path of reasoning to explain why her current symptoms are not attributable to the employment and for that reason, I accept the general consensus that the injury is work related.

37There is no real suggestion in the medical material of any role for surgery and in terms of the issues that are frequently raised in cases of this nature, there is no real credit issue. I found the plaintiff to be a very impressive witness. She gave frank and honest answers to questions. The defendant points to some potential overstatement in the plaintiff's evidence about the need for assistance, for example, from her husband. The defendant does not make much of this and I do not think that there was any significant attack on her credit or the reliability of her evidence, notwithstanding that there might be some slight discrepancy in the degree to which she requires assistance in putting on shoes and things of that nature.

38In general, I am satisfied that her evidence accorded with the medical records and I consider that she made no attempt to exaggerate her symptoms.

39This can be squarely described as a range case. The defendant made a submission that, at its highest, it is a borderline case, and I accept it is a case where it is necessary to very carefully consider the consequences for Ms Olaes. Other cases, of course, must be considered for the application of legal principles but they can only provide limited assistance in the assessment of this case because, as in all of these cases, it is the consequence for the individual that must be considered.

40What must be considered for Ms Olaes is whether, when compared with others in the range of possible cases, she meets the test for at least very considerable. There are a number of different ways that the task before the court can be articulated. I have to consider not just what the plaintiff says about the pain but what she does about the pain.

41In that regard, the defendant points to the following: That she has had very limited treatment, one nerve block injection; one or perhaps two attendances on a neurosurgeon; a handful at most sessions with a physiotherapist and that she has been able to get back to full-time work in a number of different occupations since her injury. I also have to consider both what she has lost and what she has retained.  The defendant notes that she has retained the capacity for full-time work which tends against a conclusion of serious injury.

42The defendant cites the formulation that where a worker has returned to full-time employment, unless there is some other evidence of significant pain or significant suffering from the injury, ordinarily it would be difficult to conclude that the pain and suffering consequences are at least very considerable.

43The defendant submits that there has been significant retention of social and domestic capacity and that while she has a residual impairment that is not trivial, it falls short of the statutory threshold. The case of Stijepic v One Force Group Aust. Pty Ltd & VWA[2] establishes that it is not just by comparison to the other cases that come before the courts, but by comparison with the range of all of the other injuries that arise that the assessment must be made.

[2][2009] VSCA 181

44The plaintiff, it is true, has not required surgery, and is not likely to require any surgical intervention, or any other active treatment. She has been able to manage her pain with the use of medication and she has been able to return to full-time employment. She has had no, in the defendant's submission, significant mobility issues, aside from some limitation on walking for too long, but the defendant submits that her pain specialist has encouraged her to do more walking.

45The findings on clinical examinations show minor subjective complaints of pain or tenderness on movement, and there is no real evidence of any significant gait or mobility disturbance.

46So the question is how the injury, which is not really contested, translates into consequences for the plaintiff. The defendant submits that the evidence about the pain is a somewhat confusing picture, that the recent general practitioner reports intermittent recurrent back pain, that Dr Gale had noted intermittent mild discomfort, but that the plaintiff's evidence was different and she gave evidence about constant pain, albeit that her affidavit referred to pain 'most of the time'.

47The defendant says that if the flare-ups are more frequent than every few months, then I ought to find that they are not of a severity that would prevent her from attending work because that is in accordance with the incapacity certificates that she has obtained. The defendant also points to some inconsistency in the evidence about the frequency of taking the prescription medications, Norgesic and Mobic. In affidavit material and in other medical material it is described as being taken rarely or intermittently, but in oral evidence the plaintiff said that she takes it two to three times a week.

48The defendant correctly submits that the use of daily medication is not determinative of the question in the plaintiff's favour, just as the fact that she has returned to work is not determinative against her.

49I am not persuaded though, that her evidence was contradictory or unreliable in relation to her reports about pain. Generally, her history to doctors was consistent, which was that the pain is constant or near to constant and that it flares up from time to time. She gave evidence about what she means by “time to time” in her oral evidence today.[3] I am satisfied that it is enough to require prescription analgesic and anti-inflammatory medications, at least weekly if not more frequently, and that she also takes non-prescription medication every day.

[3]        T 46 L 3

50I formed the impression from her evidence that she has frequent smaller flare-ups which require the analgesia, and then less frequent, significant flare-ups which may require time off work. She described the frequent flare-ups that occur on a roughly weekly basis as like a lightning strike. The pain itself lasts only a few seconds. That very lightning strike type pain might last only a few seconds, but the effects might take a day or two to resolve.

51I accept her evidence that she is always or nearly always in some degree of pain. She gave convincing evidence that the moment she steps out of bed, she is “just hoping it won’t go really strong”.[4] I accept that when she talks about intermittent or noticeable pain, what she is talking about is something over and above that constant, ever-present level of pain which she has learned to manage. I accept she has flare-ups which a few times a year are severe enough to require time off work which is demonstrated by the work incapacity certificates.

[4]        T 61 L 24

52In terms of work, the defendant submits that she has not needed any particular special set-up at her work, that she has been able to work full-time pretty much since the injury and that she has been able to retrain. Although she gave evidence that she really preferred to work a night shift, there is nothing about the injury that prevents her from doing a night shift and she does not claim that she hates her present job or that she has hated any of the post-injury work.

53However, I also note that her evidence and all of the evidence is that she is not able to continue in her pre-injury occupation and I am persuaded that this is a consequence that is very serious for her. The impact on her and her family life has been profound. It has meant that she has lost a job that she says, and I accept, that she loved and a job that fit the bill in terms of the hours, the pay, her colleagues, the interest she had in the job. She saw herself retiring in that job. She said she liked the job, she knew the job, she enjoyed being a team leader and she enjoyed learning and implementing the rules about quality and safe food production and she liked the hands-on nature of the work and being unable to return to that job has meant that she has moved through a number of jobs that are less convenient, less enjoyable and have had other impacts on her and her family life.

54Day shifts do not work as well for her family because it means that sometimes her daughter has to take the bus to school and the bus has some significant past trauma that makes taking the bus more difficult.  That fact has been, as the plaintiff describes it, a big blow to the family. It is understandable that this presents an impact that is a consequence for the plaintiff as well.

55She has had to learn a new set of skills at a time in her life when she might otherwise be expecting to consolidate her skill set. It is to her credit that she has retrained but it does not mean that not being able to perform the old job does not have a significant consequence in her life. She explains that she has to work, she has a mortgage, she has got bills and expenses and her husband has been made redundant.

56She is, I find, a person who copes and puts up with pain in order to work because she needs to work. This is not a case where the plaintiff is able to work because she is not really in any significant pain. To that extent I consider she is a stoic plaintiff. While she retains a work capacity, her work capacity is not without restrictions.

57I accept her evidence about her sleep disturbance and the need for nightly prescription medication to deal with that and this is a significant factor in my assessment. She has restrictions that result from her pain. Those restrictions are physical in terms of her ability to undertake long drives or go on long walks, as well as restrictions on bending, twisting, squatting and so on, and those restrictions have inevitably caused limitation on her social and domestic activities.

58Each of these things taken on their own would be likely insufficient to meet the threshold. However, combining the pain I have found, the medication she requires, and her ongoing restrictions, in particular, her preclusion from a job that she loved in an industry she was familiar with and which is now no longer available to her, I am persuaded that the whole of the evidence does demonstrate a very considerable pain and suffering consequence and accordingly, leave is granted to the plaintiff to commence proceedings for pain and suffering damages.

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