Oldfield v Warrnambool City Council
[2016] VCC 1956
•21 December 2016
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-01125
| DELISE OLDFIELD | Plaintiff |
| v | |
| WARRNAMBOOL CITY COUNCIL | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 24 November 2016 | |
DATE OF JUDGMENT: | 21 December 2016 | |
CASE MAY BE CITED AS: | Oldfield v Warrnambool City Council | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1956 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the back or lumbar spine – psychological or psychiatric injury of Chronic Pain Syndrome –disentanglement of consequences between physical and psychiatric injury – pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Thomson Geer |
HIS HONOUR:
1 This is an application by the plaintiff commenced by Originating Motion seeking leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to commence a proceeding for damages for pain and suffering only against the plaintiff’s former employer.
2 The plaintiff asserts she has suffered a serious injury within sub-paragraphs (a) and/or (c) of the definition of “serious injury” in ss37 of s134AB.
3 So far as sub-paragraph (a) of the definition is concerned, the impairment or loss of body function is said to have arisen from an ongoing physical injury to the back or lumbar spine.
4 So far as sub-paragraph (c) of the definition is concerned, the plaintiff’s case is that she has developed a Chronic Pain Syndrome sourced from the physical injury, or as a consequence of the physical injury.[1]
[1]Transcript (“T”) 3
5 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of, or in the course of, or due to the nature of, her employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities in addition to the general burden imposed by ss(19)(a) and ss(19)(b) of s134AB.
(d) Subsection (38)(c) provides that the impairment suffered as a result of a physical injury must have consequences in relation to pain and suffering which, “when judged by comparison with other cases in the range of possible impairments or losses of a body function, … may be, fairly described as being more than significant or marked, and as being at least very considerable’”.
(e) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury”, and not otherwise.
(f) Sub-paragraph (c) of the definition of “serious injury” applies to injuries which produce psychological or psychiatric consequences. To succeed under this part of the definition of “serious injury”, the plaintiff must prove that she has suffered a permanent severe mental, or permanent severe behavioural disturbance or disorder.
(g) Subsection (38)(j) provides that the assessment of “serious injury” is to be made at the time of the hearing of the application.
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.
(i) The Court must identify the injury, and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
6 The Court is required by s134AE to give detailed reasons which are as extensive and complete as a Court would give on the trial of an action, and in doing so, the judgment must disclose a pathway of reasoning in dealing with the evidence and the issues raised by the application.
7 The plaintiff filed a Court Book which included copies of two affidavits sworn by her on 20 November 2015 (“the first affidavit”) and, 26 October 2016 (“the second affidavit”). I admitted into evidence as Exhibit A, pages 6-49 and 50(a)-82 of the Plaintiff’s Court Book (“PCB”).[2] The defendant also filed a court book. I admitted into evidence as Exhibit 1, pages 1-72 and 76-89 of the Defendant’s Court Book (“DCB”).
[2]T58
8 In her first affidavit, the plaintiff set out something of her background and education. She is now aged fifty-three and was born in December 1963. The plaintiff said that when she was nineteen years of age, she was involved in three separate motor vehicle accidents during the course of a period of about twelve months. She said that she sustained whiplash injuries to her neck for which she required intermittent massage therapy, and muscle relaxant medication for a period of about twelve months before making a full recovery. She said that she had suffered from chronic fatigue many years ago which took her some years to overcome.
9 The plaintiff said that during her employment at the National Gallery in Canberra, she suffered a right shoulder injury which did not require surgery.
10 In her first affidavit, the plaintiff deposed to having suffered from “infrequent episodes of low back pain especially during pregnancy and following childbirth, and when doing activities like prolonged gardening”.[3] She underwent pelvic surgery in 2010 to correct a vaginal prolapse, and she had further surgery related to this in 2013. The plaintiff said “prior to the accident that is the subject of this claim I have not had back pain or (sic) such a nature or severity as I have now”.[4]
[3]PCB 7, paragraph [2]
[4]PCB 7, paragraph [2]
11 The plaintiff commenced employment with the defendant around January 2008. She carried out administrative functions and duties and progressed to the level of manager of the defendant’s Flagstaff Hill Maritime Village before undertaking the role as an education officer at the Warrnambool Art Gallery.
12 At the time the plaintiff claims that she was injured, she was working 24 hours per week over three days.
13 In her first affidavit, the plaintiff said that on 5 November 2013, she was in the back loading dock at the Warrnambool Art Gallery performing various tasks. The area was said to be untidy and disordered and she was cleaning up. She said that she proceeded to open the metal resource cabinet near the door to reorganise its contents. She was attempting to lift what she described as a large plastic tub which turned out to be much heavier than she anticipated. She said she felt a sharp pain in her low back. She said she continued on with her work and finished her shift “but my back was increasingly painful”.[5]
[5]PCB 8, paragraph [4]
14 The plaintiff said that although she kept working, her back was painful. She had massage treatment from Belinda Quinn, and osteopathic treatment from Peter Lim and Kelly King and she saw her treating general practitioner, Dr Slattery. She deposed that she reduced her hours of work and had periods off work because of ongoing back pain. She said that she returned to work in January 2014 “on restricted hours but my back was not improving”.[6]
[6]PCB 8, paragraph [5]
15 The plaintiff deposed to having been sexually harassed at work upon her return in 2014 for which she had psychological counselling. For this reason, she said she could not return to work with the defendant.[7]
[7]PCB 8, paragraph [6]
16 When the plaintiff swore her first affidavit in November 2015, she said that she was then consulting her general practitioner, Dr Slattery, on a weekly basis and also attending an osteopath for clinical Pilates. She said that she was having osteopathic treatment every eight weeks, as well as acupuncture on a weekly basis. The plaintiff said that on regular occasions, she had received treatment from psychologists, Susan Hook and Andrea Haas, and she tried to go swimming regularly. She said that she engaged in a gym program to try to lose weight gained since the accident and to strengthen her back. This was in early 2015 but the plaintiff said it caused her increased pain and so she ceased doing this.
17 At the time of swearing her first affidavit, the plaintiff said that she was taking medications, Endone and Advil, occasionally “when the back pain is quite bad”.[8] She also said that she takes a range of herbal medications.
[8]PCB 9, paragraph [8]
18 In her first affidavit, the plaintiff said that she wakes a lot because of low back pain and she is “quite restricted in activities”. She said that she could not go back to her old duties with the Council because they involve physical activity, particularly being on her feet for prolonged periods and standing and walking, “all of which now cause me too much trouble”. The plaintiff deposed that she used to ride a bicycle 5 to 6 kilometres but since she was injured, she had only been bike riding once or twice “and found it too painful”. Prior to being injured, she enjoyed bushwalking but since her injury, whilst she has done some bushwalking, “I am restricted and have to be very careful where I go and I get increased pain”. She said any sort of lifting is difficult and she finds cooking difficult, especially where it involves reaching into an oven or to lift anything heavy and away from her body. This causes her back pain. The plaintiff said her gardening activities are restricted and she cannot sit for a long time reading, which is something she has always enjoyed in the past. Vacuuming is difficult and she has stopped doing this altogether. She deposed “I can’t sit for more than 30-40 minutes or be on my feet for more than 30-40 minutes without having increased pain, and bending and squatting are now very difficult”. Sewing is a problem for the plaintiff, as is meditation, which the plaintiff deposed she used to carry out on a daily basis whilst sitting on the floor for extended periods of time.[9]
[9]PCB 9-10, paragraph [9]
19 As to driving, the plaintiff said that she can drive locally for, “perhaps, 30-40 minutes but then I would notice increased pain from the sitting”. The plaintiff said she is restricted in her activities with her eleven-year-old daughter.
20 The plaintiff is attempting to retrain herself, undertaking studies in the discipline of psychology, and at the time of swearing her first affidavit, she was pursuing voluntary activities at Southwest Health Care two days a week. The plaintiff said “I have noticed an increase in my lower back pain since undertaking my voluntary activities and I am careful in what I do in terms of any physical activity in this role and I take regular breaks and I don’t overdo it”.[10]
[10]PCB 10, paragraph [11]
21 The plaintiff swore her second affidavit on 26 October 2016. She said she had continued to have treatment, and she was having Pilates weekly, having recommenced in October, I assume in 2016. The plaintiff said that she continued to have osteopathic treatment monthly, and acupuncture every two weeks, and she had received massages on probably three or four occasions in 2016. The plaintiff says that she exercises twice a day and she had recently commenced Tai Chi to strengthen her back muscles. She said that she attends upon psychologists on a regular basis and she continues to attend upon her general practitioner, Dr Slattery, monthly. He prescribes Endone, which the plaintiff said she takes every two weeks. She takes Advil weekly, and she uses herbal medications on a weekly basis. She said that she consulted Mr Arogundade, a surgeon, in October 2016 but he did not recommend any treatment or follow-up.[11]
[11]PCB 11-12, paragraph [2]
22 The plaintiff completed a Graduate Diploma of Counselling in September 2016. She is now employed on a permanent basis by South West Health, working 32 hours per week, providing palliative care counselling. Her work requires her to drive from Warrnambool to Hamilton on a fortnightly basis and, on occasions, to Portland. The plaintiff said that she can do the driving, provided she breaks up the journey. Driving generally increases her back pain.[12]
[12]PCB 13, paragraph [3]
23 In her second affidavit, the plaintiff said that she is restricted to lifting no more than 3 to 4 kilograms, and standing and walking for prolonged periods of time causes her increased back pain. She said that she has not been able to go back to either riding bicycles or doing a significant amount of cooking, but she said that she can make light meals. Her cleaning and gardening activities are restricted and she must be careful about what activities she undertakes “otherwise I will get increased back pain”. The plaintiff said that she could not go back to bushwalking or meditation. Her sexual relations with her husband have been affected.[13]
[13]PCB 13, paragraph [4]
24 The plaintiff said that she could not complete a walk along the beach with her husband a few months ago because of the back pain she experienced. “I get flare-ups like that on occasions and they can last for some weeks and I take medication.”[14] The plaintiff went on to say, “the back pain never goes away and it continues to affect my sleep and all of my day to day activities particularly anything that involves moving around, squatting, bending, twisting or being seated for prolonged periods of time.”[15]
[14]PCB 13, paragraph [5]
[15]PCB 14, paragraph [6]
25 The plaintiff’s husband, Jeremy Lee, swore an affidavit in support of the plaintiffs proceeding on 26 October of this year. He was not called for cross-examination.
26 Mr Lee deposed that since the plaintiff injured her back at work, he has been required to do the grocery shopping because the plaintiff’s back prevents her from carrying heavy shopping bags. The plaintiff previously undertook the shopping tasks.[16]
[16]PCB 15-16, paragraph [3]
27 Mr Lee confirmed that since suffering her injury, the plaintiff’s work in the garden is now restricted and he has taken over most of the heavy task. The couples’ social life has been affected and they now rarely entertain. He now performs the heavier cooking tasks. He also attends to loading and unloading the dishwasher and washing of the clothes and to making the bed and changing the bed linen.[17]He also confirmed that the plaintiff is now more restricted in her walking and bushwalking activities.[18]
[17]PCB 16, paragraph [5]
[18]PCB 17, paragraph [6]
28 Mr Lee deposes to complaints made by the plaintiff to him of back pain and her embarrassment and frustration at not being able to contribute physically to normal household tasks at the level that she used to.
29 The plaintiff was cross-examined by Mr Middleton QC, who appeared with Ms Manova on behalf of the defendant. The plaintiff was asked about the location of back pain experienced by her prior to the incident on 5 November 2013. It took Mr Middleton some persistent questioning to have the plaintiff address this matter. She eventually said that she suffered “mid back or generalised lower back pain”. When asked what is different about her back pain today, she said “it’s very specific and unrelenting”. She said at times she experiences low back pain 24/7.[19]
[19]T16
30 The plaintiff was asked to stand and demonstrate that part of her lower back where she says she suffers back pain. She agreed that she was demonstrating the right side of her upper buttock just below her belt. She said that prior to suffering the injury, she had not suffered pain in that area before.[20]
[20]T16
31 The Plaintiff’s Court book contains a report from Dr Peter Lim, an osteopath, who practices at Woodford Osteopathy. In his report dated 6 February 2015, Dr Lim says, inter alia:
“Mrs Delise Oldfield had been seeing me for some time prior to the stated injury date at work of 5/11/2013. Prior to November 2013, Mrs Oldfield had been previously diagnosed having multiple chronic conditions affecting the musculoskeletal system namely fibromyalgia and chronic fatigue. These together with multiple surgeries to areas around the low back namely in and around the abdominal pelvic area contributed to a situation of weakness in the surrounding back musculature and an increased vulnerability to musculoskeletal injury. In my notes I have recorded multiple times of aggravation of her back, hip and pelvis after periods of over exercising or prolonged sitting and standing etc. I have also noted increased periods of stress contributing to aggravation of her back pain. Increased stress from a deteriorating work situation may have contributed to the increased vulnerability for injury to her low back.”[21]
[21]PCB 41
32 The plaintiff was asked about what Dr Lim had reported in cross-examination. She said that the joints affected were her elbows and knees and it was a generalised muscular pain. The plaintiff was asked about clinical notes prepared by Dr Lim after consultation with the plaintiff on 28 August 2007 in which it was recorded that the plaintiff had complained of back pain and she had previously been taking anti-inflammatory medication.[22]When asked about this, the plaintiff said that she would have been taking “maybe Voltaren … [or] some Ibuprofen”.[23] Dr Lim had also recorded that the plaintiff complained of her back locking up “usually R[ight] sided”.[24] The plaintiff was asked about this and she agreed that she had told Dr Lim these things but the pain was not specifically in the area where she now suffers pain. She said the pain she then suffered was more generalised.[25] When asked for more detail, she said the pain was more generally through her hip and back and it was not a specific pain.[26]
[22]DCB 89
[23]T24
[24]DCB 89
[25]T24
[26]T25
33 The plaintiff was asked about other clinical notes prepared by Dr Lim of visits to him on 31 July 2012 and 31 August 2012 in which he has recorded as having treated her for a diagnosed back complaint prior to 5 November 2013. The plaintiff agreed that she had previously suffered from back pain but she said it was more generalised and not specific, unlike the pain that she now suffers. She said that previously it was possible that she had referred pain into her leg in 2012.[27]
[27]T25
34 Whilst the plaintiff agreed that she had consulted Dr Lim on many occasions for pelvic pain and back pain, she disagreed with a suggestion put to her by Mr Middleton that she was being treated prior to 5 November 2013 for the same injury that she now makes complaint.[28]Mr Middleton went through a number of clinical notes relating to treatment by Dr Lim where he had recorded complaints made by the plaintiff which included back pain.[29]
[28]T27
[29]DCB 78-89
35 On 12 August 2013, the plaintiff began to consult with Belinda Quinn, a remedial massage therapist. This was before the date of the alleged injury and the purpose of the plaintiff visiting Ms Quinn was to receive treatment for post-operative fluid retention.
36 In her notes of treatment, Ms Quinn recorded the plaintiff as having told her on 10 October 2013 “having a lot of pain throughout lower back and lower abdomen into pelvis. Sitting for long periods and walking increased her pain.”
37 On 7 November 2013 (two days after the injury at work), she recorded, inter alia, “Delice reported that she had been in shocking pain over the last two weeks from her middle lower back region travelling across her hip. Turning her head to the left was pulling into her lower back, and noticeable fluid retention in her lower legs”.[30]When Mr Middleton asked the plaintiff about what she was recorded as having said to Ms Quinn, she gave evidence “It [is] different - a different pain to what this is”.[31] This exchange then followed:
[30]PCB 44
[31]T29
Q:“Then on 7 November 2013, you go - so this is two days after the event: ‘Delise reported a positive response to the previous treatment. Delise reported that she had been in shocking pain over the last two weeks.’ That’s taking you back to about 23 October - 24 October?‑‑‑
A:M’mm.
Q:That’s prior to the 5th, of course. ‘From her middle lower back region travelling across her hip. Turning her head to the left was pulling into her lower back and noticeable fluid retention in her lower legs’?‑‑‑
A:M’mm.
Q:So again, it’s a complaint about your lower back, but what’s missing here is you attributing any of this to an event that occurred on 5 November 2013?‑‑‑
A:M’mm.
Q:Why is that?‑‑‑
A:I thought I had discussed that with her.
Q:If I read the note accurately, it’s not in there?‑‑‑
A:M’mm.
Q:You believe you thought you might of, but you may not have?‑‑‑
A:No, I’m fairly certain I did discuss with her.”
HIS HONOUR:
Q:“What did you say to her?‑‑‑
A:That I had exacerbated the pain and that I had lifted something at work, and I remember being in like ‑ ‑ ‑
Q:Two days earlier?‑‑‑
A:Like, yeah.”
MR MIDDLETON:
Q:“You just used the word, ‘That I had exacerbated the pain’. If we take that at its meaning, it would be suggesting that the pain that you had prior to 5 November had been exacerbated by what happened on the 5th?‑‑‑
A:It was a different pain.
Q:Well it doesn’t sound like it when you say, ‘I had exacerbated the pain’, does it?‑‑‑
A:Well, I’m referring to the note. If she’s talking about pain I’d had before, but I fairly - I’m fairly - like I can pretty much distinctly remember, I would have discussed with her what had happened.
Q:You said you were referring to me. His Honour asked you what you said to Ms Quinn, and you said, ‘I think, I was fairly certain that I told her I ‘exacerbated’ the pain’?‑‑‑
A:M’mm.
Q:Two days earlier. So implicating what you said to His Honour, is that this is a pre-existing problem that got worse on 5 November?‑‑‑
A:No, it was different.
Q:Why did you use the word, ‘exacerbate’, when you believe you spoke to Ms Quinn?‑‑‑
A:Because the note’s saying that I had previous pain.
Q:But you are reporting the fact of what you said?‑‑‑
A:M’mm.
Q:Not what you are interpreting. And you say the fact is, ‘I told her I believe’?‑‑‑
A:Well, I - I believe ‑ ‑ ‑
Q:I haven’t finished?‑‑‑
A:Sorry.
Q:‘I told her I believe’?‑‑‑
A:Yep.
Q:‘I exacerbated the pain two days earlier.’ That’s what you told her?‑‑‑
A:M’mm, but ‑ ‑ ‑
Q:Why use the word ‘exacerbate’ if it’s different?‑‑‑
A:I don’t know, that’s what I’ve just said. I can’t ‑ ‑ ‑
Q:You are not making it up, are you?‑‑‑
A:No I’m not making it up, but I would have said to her, ‘I had lifted something that had increased pain’.”[32]
[32]T30-31
38 This exchange speaks for itself. I formed an adverse view of the plaintiff as a witness because she was, in my view, overly willing to give any evidence that she thought would advance her case. In this exchange, the plaintiff said that she had told Ms Quinn that she had injured her back at work two days earlier, yet there is no record of this having occurred in Ms Quinn’s note. I find this most surprising. Had the plaintiff in fact told Ms Quinn that she suffered a new back injury causing pain in a different location than previously only two days earlier, I would have expected Ms Quinn to have recorded that fact. The court book contains notes of a number of attendances where Ms Quinn has recorded what she has been told by the plaintiff. I do not accept the plaintiff’s evidence that she told Ms Quinn what had occurred two days earlier. Also, the plaintiff did use the word “exacerbate” when referring to what she told Ms Quinn, the clear inference being that in her mind, the pain that she was experiencing as a result of the injury at work was an exacerbation of the same back pain she had for a long time previously been complaining.
39 Ms Quinn’s notes record that on 5 December 2013, the plaintiff complained of pain in her “lower back region pain and nerve pain travelling down her left leg”. On 9 January 2014, Ms Quinn recorded: “A sore right hip, middle back and pain referring down her right leg.” On 11 February 2014, she recorded “reported a lot of pain travelling from lower back region to right hip and down right leg and soreness to the lower back region”.[33] The notes did not record anything about the plaintiff having been injured at work on 5 November 2013.
[33]PCB 44-45
40 The plaintiff’s general practitioner, Dr Slattery, referred the plaintiff to Dr Murray Grave, a musculoskeletal physician, who has provided a report dated 21 August 2016.[34] He saw the plaintiff the first time on 20 May 2014 and then on 1 July 2014 and finally, on 14 October 2014. He gives a description of what it is that the plaintiff told him as to how she was injured on 5 November 2013. In his report, he says:
“She went to lift it out and she stated that she felt something ‘pop in her right lower back’. She stated that her back was extremely painful straight away. Not to be deterred she dragged and pushed the crate. Delise stated that her back was sore but she kept going in order to finish the job.”[35]
[34]PCB 31
[35]PCB 31
41 Dr Grave took a detailed past history from the plaintiff but there is no record of her having suffered from back pain prior to injury on 5 November 2013.[36]
[36]PCB 33
42 Dr Grave reported that he had reviewed an MRI scan of the plaintiff’s lumbar spine which he said demonstrated:
“… quite a reasonable lumbar spine with a patent canal without evidence of any stenosis. There was changes of minor disc degenerative change without neural compression in the spine and there was no evidence of modic changes in the vertebral bodies. There was loss of bulk of the lower lumbar multifidus at the L4 and L5 levels.”[37]
[37]PCB 33
43 Dr Grave recommended the plaintiff pursue exercises that he discussed with her and that she continued to engage with her psychologist regarding issues at work. He reported that he reassured her that there appeared to be no sinister disease in the spine itself and that the problem with her spine was likely due to muscle imbalance and myofascial pain with sensitisation.[38]
[38]PCB 34
44 When Dr Grave reviewed the plaintiff on 1 July 2014, he found that she had made positive progress. He said:
“I was delighted to see that she had ceased taking the Endone which she had been using for analgesic relief. She did state that she may use Advil as a … [pain] medication but overall there was a significant improvement in her pain. She stated that she could feel an improvement in her strength and that there were times where there was absolutely no pain at all. She had stated that she had been building her hamstring strength and that she has been doing water exercises as well as walking and cycling.”[39]
[39]PCB 34
45 When Dr Grave reviewed the plaintiff finally on 14 October 2014, she told him that she had been overseas on a European holiday. She told him that whilst away, she did a lot of walking up to 5 to 10 kilometres per day. The plaintiff told Dr Grave that associated with this, she did develop some ache in her lower back and also in her knees. She struggled to climb the tower at Notre Dame. She also stated that she missed being able to do her swimming and Pilates and her usual exercise regime. He diagnosed the plaintiff as suffering from chronic non-specific low back pain with central sensitisation associated with workplace-related Stress Disorder.[40]
[40]PCB 35
46 The plaintiff was cross-examined about some aspects of Dr Grave’s report. She denied having told medical practitioners “that she had a ‘popped disc’”. She said Dr Grave told her that she had a prolapsed disc.[41] I do not accept this evidence, which is at odds with what is contained in the report of Dr Grave where there is no mention of the plaintiff having suffered a prolapsed disc. In my view, it is most unlikely that Dr Grave would have told the plaintiff she had suffered a prolapsed disc.
[41]T33
47 In this context, the plaintiff was asked about the content of a report from clinical psychologist, Susan Hook. In her report dated 9 December 2014, Ms Hook reported that the plaintiff had said to her “that she popped a disc in her back (L3-4) on November 5 2013 after she picked up an unexpectedly heavy box”.[42] When asked about this in cross-examination, the plaintiff denied having use the words “popped a disc”.[43] This is a further example of the plaintiff asserting that the notes or reports of practitioners that have treated her have misquoted what she has said to them. Of itself this is not a big point, but when viewed in light of the plaintiff’s earlier evidence that I have referred to, it has led me to the view that I should not accept the plaintiff’s evidence on critical points.
[42]PCB 28
[43]T33
48 Mr Middleton pressed the plaintiff about what she had been told by Dr Grave. The plaintiff maintained that Dr Grave had told her that she had definitely injured her back when lifting. This is at odds with his report. This exchange followed:
Q:“What is the injury to your back that occurred when you lifted, that he told you?‑‑‑
A:From what I remember of what he said, was that there was some protrusion and that there was – it was definitely attributed to lifting of the crate and that there was – I don’t know what sort of medical terms that he put it into, but yeah, he definitely said to me, without doubt, that there was nerve – like, an injury attributed to lifting the crate and we had quite a discussion about that.
Q:What was the injury?‑‑‑
A:As I’ve just explained, he said something about, like, a protrusion and I can’t really recall what else he said, but he said that my pain was in relation to unattributably – or, you know, unequivocally in relation to having sustained an injury when lifting the crate or the box.”[44]
[44]T35
49 The plaintiff said that she could not recall having told Dr Grave that there were times when she had absolutely no pain at all.[45]The plaintiff said that she did not know if she had told Dr Grave about her past history of low back pain.[46] Given the trouble that Dr Grave went to in his report to detail the plaintiff’s past history, I very much doubt that he would have failed to ask the plaintiff if she had suffered from low back pain prior to 5 November 2013. I infer that the plaintiff did not tell Dr Grave of her previous low back pain.
[45]T37
[46]T37-38
50 The plaintiff was pressed in cross-examination about her European holiday. She said her back pain impacted upon her ability to enjoy the holiday. When asked about this, she said:
Q“I gather that your back pain would have imposed upon you and impacted upon your ability to enjoy yourself?‑‑‑
A:Yes.
Q:In what ways?‑‑‑
A:I was unable to do certain rides and activities. When we went to Euro Disney, I was unable to climb a lot of the stairs at churches and those sorts … [of] things. I was unable to walk extensively with the family. It was difficult to sit on the plane and to travel. It was difficult to lift and pull my suitcase.”[47]
[47]T38
51 It will be recalled that the plaintiff in her affidavits had referred to the fact that she was having a great deal of difficulty at the time of swearing those affidavits walking the long distances. Her answer to the question from Mr Middleton that she was unable to walk extensively with the family whilst in Europe is at odds with what Dr Grave reported, which was that the plaintiff had told him that she was walking 5 to 10 kilometres per day during her European holiday. She was pressed about this by Mr Middleton. She was cautious with her answer:
Q:“You just said to His Honour that you couldn’t do the walking?‑‑‑
A:No.
Q:A lot of it?‑‑‑
A:I said that I couldn’t do, like extended long-term walking all the day.
Q:Five to ten ‘k’ a day takes quite a piece of the day, doesn’t it, when you are stopping and looking at things?‑‑‑
A:It - no, it may but I did not walk as much as my family did. Like, there were times I could not participate in things they were doing.”[48]
[48]T38
52 Dr Slattery is the plaintiff’s general practitioner who has been treating her both before and after 5 November 2013. He has provided three medical reports, two of which relate to this claim.
53 In his first report of 16 June 2014, he said:
“… She had alot (sic) of back pain which radiated into her right leg at times.
… She require[s] ongoing treatment in the form of physiotherapy and hydrotherapy.
She currently does not have the capacity to return to work although she is showing some improvement in this regard from the back. Currently she has ongoing back pain which functions as an impediment.”[49]
[49]PCB 21
54 In his third report dated 12 July 2016, Dr Slattery said that the plaintiff suffers from sciatica which is low back pain radiating down her right leg at times. He said the plaintiff’s back is improving slowly and she is able to work in a supportive environment for three to four days, as long as she avoids lifting and has frequent breaks.[50] From an evidentiary viewpoint, Dr Slattery’s reports do not give a great deal of assistance.
[50]PCB 23
55 In general cross-examination, the plaintiff agreed that she had been on a holiday to Europe in 2014 and that she still socialises with people and that she is active socially. The trip to Europe included travel to the United Kingdom, France, Finland, Barcelona in Spain and Hong Kong. There was a lot of getting on and off aeroplanes. [51]
[51]T52
56 The plaintiff agreed that she has been on a holiday to the Sunshine Coast in 2015 travelling by aeroplane. She was away for two weeks but could not remember whether she had any treatment for her back whilst on that holiday. In July 2015, she had an overnight stay in Yackandandah. She said this was a family thing. I infer she travelled to and from Warrnambool by car. In October 2015, she went on a holiday to Southport in Queensland for three days, flying first to Brisbane and then driving to Southport. She did not require treatment whilst she was there. In June 2016, she travelled to Newcastle by aeroplane for a family bereavement.[52]
[52]Generally T46-48
57 The plaintiff agreed with Mr Middleton that she goes out and visits friends and she goes on social outings. She agreed that she is currently working 32 hours over four days per week. She agreed that she had undertaken a course in 2013 to become a birth attendant and she does some sewing. In August 2015, the plaintiff had worked on a voluntary basis three days a week at the Centre Against Sexual Assault on a voluntary basis where she was supervised as part of her training to be a counsellor.[53]
[53]T53
58 The plaintiff said that she was a member of Airbnb and she puts part of her house up for rental. She said her husband prepares the house. She agreed that even before her pelvic problems requiring pelvic surgery, she had experienced low back pain, including referred pain into her legs. She was vague about when this had occurred, saying that she had experienced sciatica “possibly through my pregnancy” which was more than twelve years ago.[54] She agreed her low back problems had been exacerbated by her pelvic problems.[55] She said she was not currently taking any antidepressant medication.[56]
[54]T54
[55]T54
[56]T55
59 The plaintiff underwent a CT scan of the lumbar spine on 7 December 2013. The reported conclusion was that the plaintiff suffered lumbar degenerative changes with what appears to be moderate narrowing of the spinal canal at L4‑5 level.[57] On 23 January 2014, the plaintiff underwent MRI examination which reported minor multi-level disc base degenerative changes without evidence of neural compression.[58]
[57]PCB75
[58]PCB 74
60 Before turning to the submissions, there is other medical evidence that I need to consider.
61 The plaintiff was medically examined by Mr Thomas Kossmann, an orthopaedic surgeon, at the request of her solicitors in September of this year.[59] Mr Kossmann took a brief history from the plaintiff, who told him of her past history with car accidents with whiplash symptoms in the past and a prior shoulder injury. There is no mention of her having had extensive treatment from osteopaths for pre-existing low back pain, although Mr Kossmann had been provided with copies of their reports.[60]There is mention of her taking pain medication in these terms: “She is a non-smoker and consumes no alcohol. She occasionally takes Advil and Endone.”[61]
[59]PCB 51
[60]PCB 53-54
[61]PCB 52
62 Mr Kossmann diagnosed the plaintiff as suffering from pain in the lumbar spine radiating into the left leg more than the right leg on the basis of degenerative changes of the lower levels lumbar spine. He thought that she had the capacity to perform her pre-injury duties but she should avoid work where she has to walk for long distances, on uneven ground or up and down stairs.[62]
[62]PCB 55
63 The plaintiff was also seen by Dr Christina Manu, a consultant physician in rehabilitation medicine, who saw the plaintiff on referral from Dr Slattery for assessment and management of her chronic low back pain. According to her report of 15 November 2016, Dr Manu saw the plaintiff on one occasion on 21 October this year.[63]In her diagnosis, Dr Manu said:
“I believe that Ms Oldfield has sustained a lifting low back injury on 5.11.2013. Ms Oldfield developed a chronic low back pain, likely depression and significant psychological trauma as a result of her injury and subsequent work environment.”[64]
[63]PCB 50C
[64]PCB 50E
64 Dr Manu was asked by the plaintiff’s solicitors to leave aside the psychological or psychiatric consequences and to give an opinion as to whether the plaintiff would be unfit for pre-injury duties because of the physical injuries alone. In answer to the question, she said:
“It is difficult and impractical to separate any physical and psychological consequences of chronic pain. I use a biopsychosocial model in assessing and managing chronic pain, which incorporate psychological assessment and management. I believe that leaving aside psychological or psychiatric consequences when managing chronic pain is a recipe for failure.
I believe that chronic pain has potential to preclude Ms Oldfield from performing her pre-injury duties or current duties.”[65]
[65]PCB 50E
65 Mr Rodney Simm, an orthopaedic surgeon, saw the plaintiff at the request of the defendant on 27 October 2016. Prior to his examination, Mr Simm was provided with the plaintiff’s affidavits and the reports of the treating osteopaths, Ms Quinn and Dr Lim, and the treating physiotherapist, Mr Prichard, and the treating psychologist, Ms Hook, and the medical reports of the general practitioner, Dr Slattery.[66]
[66]DCB 66
66 Mr Simm carried out a physical examination. He said the plaintiff’s gait was normal. She could walk on her toes and heels and adopt a semi-squatting position and stand on each leg. He found that there was mild restriction of thoracolumbar movement with complaints of pain on movement, particularly extension. Flexion was to 60 degrees, extension to 20 degrees, lateral flexion and rotation to each side to 30 degrees. Waddell’s compression sign was positive. He found the plaintiff was not particularly tender to palpation in the lower back. Neurological examination of the lower limbs showed no signs of radiculopathy. The plaintiff had normal knee reflexes, depressed but symmetrical ankle reflexes and the plantar responses were minimal. The plaintiff had normal pinprick sensation. There was probably normal power, but there was a slight tendency to collapsing weakness on resistance testing of toe strength on the left.[67]
[67]DCB 69
67 Mr Simm was asked to diagnose the nature of the plaintiff’s injury. He gave this opinion:
“I was not able to establish a precise diagnosis. She has chronic relapsing lumbar back pain with referred symptoms into the lower limbs without clinical signs of radiculopathy. The lower limb symptoms are not radicular in nature and could not be explained on the basis of the MRI scan, which showed only minor degenerative changes. There are features of a chronic spinal pain syndrome in the setting of somebody who, according to her Osteopath Dr Lim, was prone to fibromyalgia and chronic fatigue, as well as multiple reports of back, hip and pelvic symptoms aggravated by over exercising and prolonged sitting and standing. The events that followed the exacerbation of back pain in November/December 2013 included an unsatisfactory return to work, with the perception of being over pressured and sexually harassed. These factors led to her ceasing work and possibly contributed to an enhanced pain perception and the onset of a chronic spinal pain syndrome. It is evident from the information that chronic back pain and referred lower limb pain had been quite problematic prior to the claimed work injury. There were no contemporaneous details within a short time of that injury to confirm the nature and extent of symptoms occurring as a direct result of that injury.”[68]
[68]DCB 70
68 The plaintiff was seen by Mr Michael Troy, a surgeon, at the request of the defendant on 18 March 2014. He was of the opinion that the plaintiff’s low back problem related to degenerative change in the lumbar spine and mild left sacroiliac joint strain. Mr Troy thought that the plaintiff’s condition would rapidly improve if she lost weight.[69]
[69]DCB 5-6
69 Dr Lange, an occupational physician, saw the plaintiff at the request of the defendant on 11 February 2015.[70]He was then of the opinion that the plaintiff suffered a soft tissue injury to her back in November 2013 and he was “at a loss to explain her current constellation of symptoms”.[71]He was unable to provide an organic diagnosis for the plaintiff’s pain, which he said is not related to a physical condition.
[70]DCB 22
[71]DCB 26
70 Mr Timothy Gale, a surgeon, saw the plaintiff at the request of the defendant on 6 March 2015. In his report, Mr Gale said, inter alia, “I understand that in the past she has also been troubled with low back pain but this was denied by the worker today”.[72] Mr Gale’s diagnosis was as follows:
“As a result of a lifting incident at work in November 2013 the worker is likely to have suffered symptomatic aggravation of pre-existing age-related and constitutionally-based degenerative changes in the low lumbar spine area, without positive features of a physical radiculopathy. The worker does continue to experience low back pain and some pain radiating down the right leg, but current physical examination does not demonstrate any abnormal neurological findings affecting the lower limbs.
…
I would consider the worker does continue to suffer from effects of the subject incident of injury. There are probably secondary psycho-social issues confounding the clinical presentation due to unresolved factors related to her employment.”[73]
[72]DCB 29
[73]DCB 30
71 In his submissions, Mr Middleton relied upon the principles enunciated by the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd.[74] Mr Middleton submitted that a very clear indicator of the fact that the plaintiff does not suffer from an injury to her low back which has serious injury consequences is the fact that whereas at the time of her accident at work on 5 November 2013 she was working 24 hours per week over three days, she now works longer hours, being 32 hours per week over four days of the week.
[74][2009] VSCA 181
72 Mr Middleton also relied upon Peak Engineering & Anor v McKenzie.[75] He argued that at best, from the plaintiff’s point of view, there was a combination of factors, both physical and psychological, at play in relation to the plaintiff which may have contributed to the consequences which she claims from her back injury on 5 November 2013. He argued, correctly, that it is the obligation of the plaintiff to disentangle this combination of factors in order to determine which consequences can be attributable to the physical injury and which consequences can properly be attributable to any psychological or psychiatric injury.
[75][2014] VSCA 67
73 Mr Middleton submitted, despite what Dr Manu said in her report, I have to apply the law as set out in the Act and applied by the Court of Appeal. He submitted Dr Manu was of no assistance to the plaintiff in disentangling the physical and psychological consequences in this case.
74 Mr Middleton submitted that there were two components of the plaintiff’s psychiatric condition. The first relates to the consequences that emanate from the experience of the plaintiff at work that has resulted in her bringing a claim for sexual harassment. The second relates to her Adjustment Disorder or Chronic Pain Syndrome relating to her low back injury. Mr Middleton submitted, correctly, that the plaintiff bears the onus of separating the consequences of these two psychiatric or psychological components and then these must be separated from the consequences that relate to the plaintiff’s physical injury.
75 Mr Middleton submitted that it is impossible on the evidence to identify precisely what the low back injury is and in this context, it is impossible to separate the consequences that flow from it given the fact that at the time of the occurrence of the injury, the plaintiff was already receiving treatment for chronic low back pain from osteopaths, Ms Quinn and Dr Lim, for what he submitted was the same back pain of which the plaintiff presently complains.
76 Prior to the injury on 5 November 2013, the plaintiff was already taking the medication, Endone, and according to the evidence, was already suffering consequences from persistent low back pain. He submitted the plaintiff’s condition and lifestyle both before and after 5 November 2013 is no different. He argued that the plaintiff’s health has in fact improved and the consequences to her from low back pain would appear to have diminished. Mr Middleton submitted that the plaintiff leads a relatively normal lifestyle which includes socialising and travel and she has, by study, improved her qualifications and obtained a new career with increased work hours and she is now able to work four days per week. Mr Middleton argued that, on the evidence, the consequences to the plaintiff as a result of her physical impairment related to her injured low back cannot be said to be either marked or very considerable when compared with other cases of similar injury.
77 Mr Fehring, who appeared with Mr Pierorazio for the plaintiff, in submissions referred to the medical reports of Dr Slattery which he submitted clearly demonstrated that the plaintiff suffered from low back injury at work on 5 November 2013. Mr Fehring also relied upon the diagnosis of Dr Grave that the plaintiff suffered from chronic non-specific low back pain. He also relied upon the opinion of Dr Grave that if plaintiff returned to work (which she has), that she would have to be careful in the way she goes about her work, avoiding repetitive lifting, bending, pushing and pulling. Mr Fehring submitted that these are the kind of precautionary steps that need to be taken with a person who has suffered a serious injury to the low back with resultant chronic low back pain. In this regard, he also relied upon the report and recommendations of the physiotherapist, Mr Prichard.[76]
[76]PCB 38
78 Mr Fehring submitted that on 5 November 2013, the plaintiff suffered an aggravation of a previously existing low back injury.[77] He appropriately conceded that there is no evidence of the plaintiff having suffered from a prolapsed disc as a result of what occurred on 5 November 2013.[78] Mr Fehring relied upon the diagnosis of Mr Kossmann as supportive of the plaintiff’s claim that she has suffered a serious low back injury.
[77]T76
[78]T77
79 Mr Fehring conceded that Dr Manu is of the opinion that the plaintiff suffered an organic injury to her back on 5 November 2013 and she then developed psychological consequences as a result of that organic injury, including chronic pain and depression. He conceded, appropriately, that what is contained in the opinion of Dr Manu is the high point of the plaintiff’s case.[79] Mr Fehring was unable to point to any evidence that the plaintiff suffers psychological or psychiatric consequences that could be described as “severe”.[80] He submitted that I should accept the plaintiff’s evidence as to the consequences to her of her physical injury to her lumbar spine and that those consequences are marked and very considerable for a woman of her age and I should grant her application.
[79]T80
[80]T81
80 I have concluded that this application must fail.
81 In my opinion, the evidence shows that on 5 November 2013, the plaintiff was injured during the course of her work with the defendant when she attempted to lift and move a container with heavy objects in it at her place of work. The plaintiff suffered an aggravation of a pre-existing low back injury or lumbar disc degeneration which produced initially a sharp pain in her lower back on the right-hand side near the hip and above her buttock. The evidence also shows that the plaintiff had been receiving treatment for low back pain in the same area for a considerable period of time before 5 November 2013. I do not accept that what occurred on 5 November 2013 produced a new injury with symptoms of a different kind from that which the plaintiff had previously experienced.
82 As I have said above, on critical issues I do not accept the evidence of the plaintiff who, in my opinion, was given to exaggerating her symptoms and overstating the consequences for her of her low back injury. There were inconsistencies between her evidence and what she is recorded as having told various doctors.
83 The plaintiff has failed to demonstrate that the consequences to her of an aggravation of her pre-existing low back injury or lumbar disc degeneration which occurred on 5 November 2013 are consequences that could be regarded as marked or, at least very considerable. In my opinion, the evidence shows clearly that since the occurrence of the injury on 5 November 2013, the plaintiff has been able to return to work, working longer hours than she previously did, and she is able to lead a relatively normal life, enjoying socialising with others, travel and holidays. Many of the consequences that she claims to have been caused by the aggravation injury on 5 November 2013 are in fact the same consequences that she is recorded in the various medical reports of the osteopaths as having complained of prior to 5 November 2013. In that sense, I accept nothing has changed for the plaintiff.
84 I accept that the evidence shows that in addition to an aggravation of her pre-existing back injury or lumbar disc degeneration, the plaintiff has developed psychological consequences in the form of a Chronic Pain Syndrome with some Depression. The plaintiff has failed to disentangle consequences for her caused by her physical injury in the form of an aggravation of her pre-existing back injury or lumbar disc degeneration from the consequences to her caused by the psychological consequences that she has developed.
85 Further, there is no evidence that the plaintiff has suffered a psychological or psychiatric injury as a result of the incident of work on 5 November 2013 that have produced severe psychological or psychiatric consequences.
86 The Originating Motion is dismissed.
87 I will hear the parties on costs.
- - -
0
2
0