Peterson v VWA
[2016] VCC 850
•23 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-00059
| EBONY PETERSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2016 | |
DATE OF JUDGMENT: | 23 June 2016 | |
CASE MAY BE CITED AS: | Peterson v VWA | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 850 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – Injuries to the spine and the right shoulder as a result of repetitive work – Application in respect of pain and suffering only – Reliance upon paragraph (a) of the definition – Comparatively patchy work record of plaintiff – Other problems suffered by her before and after the relevant injuries – Whether statutory test satisfied – Factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garnham | Hounslow Lawyers |
| For the Defendant | Mr D Myers | IDP Lawyers |
HIS HONOUR:
General Background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. In so doing, she relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. There are two relevant injuries. One is to the right shoulder. The plaintiff is right hand dominant. The other is to the spine, and in particular the lumbosacral spine. The injuries are said to have occurred in the course of the plaintiff’s employment as a “picker and packer” for an entity called GV Independent Packers Pty Ltd in the Shepparton region. This involved the packing of fruit (hereinafter referred to as “the GV work”). The plaintiff was employed in the GV work for a comparatively short period of about seven weeks in March and April 2010. In relation to statutory benefits, the defendant seems to have paid for some medical expenses and also accepted a claim for permanent impairment pursuant to s98C of the Act — see Transcript (hereinafter referred to as “T”) 7‒8. The issues raised by the defendant could be summarised as being that there have been a number of further incidents; that the organic problems are being overwhelmed by a psychiatric response which will have to be “disentangled”; and that the consequences of each injury do not satisfy the statutory test.
2 Mr M Garnham of counsel appeared on behalf of the plaintiff. Mr D Myers of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, which included the adopting of three affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature, including a Joint Court Book prepared in accordance with the Practice Note, and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, training and employment prior to injury
3 The plaintiff is aged 32 years, she having been born on 9 May 1984. She is a single woman, but has had a somewhat complex social life. As I understand it, she is currently engaged, but her fiancé is in jail. Apparently, this is the result of an incident involving the plaintiff to which I shall return.
4 The plaintiff has not received a great deal of education, leaving school before completing Year 10 level. Her employment has been somewhat sporadic. She worked briefly for a lighting wholesaler and in a bar. She worked as a trainee driver, also involved in storage and warehousing work. This employment seems to have occurred in approximately 2004. She was unemployed for a period and undertook a Certificate II course in Automotive Studies. She subsequently moved to Maitland, New South Wales, with her then partner for approximately two years and, whilst there, briefly performed some telemarketing work. She returned to her home town of Shepparton in approximately mid-2008. In mid-2009, she found work as a cashier for a few months, followed by a couple of brief periods in sales for a plumbing entity and then for a menswear store. In early 2010, she worked for SPC Ardmona for approximately a month and then, on 9 March 2010, commenced the GV work. The GV work involved the packing of fruit from a bin into crates and also as a grader, sorting fruit which went past on a roller. She also occasionally made cartons. She alleges that the GV work was difficult, involving standing, bending and constant stretching and use of the arms.
(b)The plaintiff as a witness
5 I found the plaintiff to be a somewhat unusual witness. She had had a number of problems in her life, including difficulties with relationships and problems with alcohol. In his closing address on behalf of the defendant, Mr Myers made no real attack upon the credit of the plaintiff and I do not think that it could be said that the plaintiff’s credit has been damaged. I note that Mr Rodney Simm, orthopaedic surgeon, examining the plaintiff at the request of her solicitors, described her as presenting in a pleasant and co-operative manner, but also referred to her as being a “symptom-focussed historian”. Associate Professor Paoletti, similarly examining on behalf of the plaintiff, also described her as being pleasant and co-operative. Dr Norman Rose, psychiatrist, who examined the plaintiff at the request of the defendant, also described her as pleasant and having no abnormalities of intelligence. Dr Dush Shan, consultant psychiatrist, similarly examining, thought that she described her situation in a somewhat flustered fashion, giving long and unnecessary information in response to simple questions.
6 Whilst, as I have said, she was a somewhat unusual witness, I have no reason to doubt the plaintiff’s credibility. I am not of the view that she was evasive or in any way tried to mislead the Court. I accept her evidence.
(c)The state of the plaintiff’s health prior to the injuries
7 I am not of the view that the plaintiff suffered from any symptoms of spinal injury or injury to the right shoulder prior to performing the relevant work. She had suffered from meningitis shortly after leaving school. She has apparently had marked problems with alcohol over the years. Perhaps, for a variety of reasons, this has been a greater problem in more recent times, subsequent to, but not necessarily related to, the relevant work. She had previously suffered briefly from depression following the death of a relative and had suffered from asthma. However, as stated, she does not seem to have had any spinal or right shoulder problems prior to the GV work. I note that Associate Professor Paoletti took a history of the plaintiff suffering from some anxiety since the age of approximately 19 years. This seems to have followed the meningitis. The plaintiff believed that she saw a psychologist, but was not clear as to whether she had seen a psychiatrist.
(d)The injuries, their treatment and diagnoses
8 The plaintiff alleges that she became aware of pain in the back, neck and shoulder whilst doing grading as part of the GV work. This pain worsened until early April 2010. On approximately 4 April 2010 she attended at the Goulburn Valley Hospital in Shepparton. She was suffering from pain and muscle spasm in the neck and low back. It would appear from the records of that hospital that the plaintiff had previously seen a physiotherapist. In any event, she was prescribed painkilling medication. Apart from her neck and back pain, she was complaining of upper arm pain. The presenting complaint at the Goulburn Valley Hospital is difficult to read, but appears to refer both to work in a fruit company and to the moving of furniture “in house yesterday”. After a period of rest and the consumption of some painkillers, she returned to the GV work. Her problems persisted. On approximately 15 April 2010, she attended upon her general practitioner, Dr Albatat. A questionnaire completed on this occasion indicates that the plaintiff was suffering from right shoulder bursitis and lower back pain, with a particular reference to the L4-5 level.
9 Dr Albatat organised for the plaintiff to have an ultrasound of her right shoulder, this being conducted on 16 April 2010. The conclusion of the radiologist was that the plaintiff had subacromial-subdeltoid bursitis. All components of the rotator cuff were intact and normal. There were no tears and the long head of the biceps tendon was normal. In addition to the ultrasound, physiotherapy was organised. It would appear that the plaintiff attended physiotherapy on a few occasions. Dr Albatat also seems to have prescribed Panadeine Forte and Endone.
10 On 23 April 2010, the plaintiff had an ultrasound-guided right subacromial bursal injection, a procedure which was described as being uncomplicated. She also received a right shoulder steroid injection. She undertook some hydrotherapy, in the form of swimming.
11 The plaintiff ceased work on approximately 28 April 2010, although she asked whether there were any light duties available. She heard nothing in this regard. According to the plaintiff’s affidavit of 8 August 2013, during 2010, 2011 and 2012, she had physiotherapy treatment “on and off” and some hydrotherapy between August 2011 and late September 2011, this ceasing because of an accident in which she broke her right wrist.
12 At the request of Dr Albatat, a CT scan of the lumbar spine had been performed on 27 May 2010. The conclusion of the radiologist was that, at the L4-5 level, there was a moderate circumferential annular disc bulge slightly indenting the thecal sac.
13 In approximately April 2012, Dr Albatat referred the plaintiff to Dr Talib Tahir, general physician and rheumatologist. Dr Tahir noted that the plaintiff still suffered from back pain and was also complaining of pain in the right shoulder and interscapular pain. She was undergoing physiotherapy and strengthening exercises. A cortisone injection was contemplated. Apparently the plaintiff previously had an injection some 12 months prior to Dr Tahir seeing her.
14 Departing from the chronological sequence of events, which, in this case, is not easy to follow, Dr Tahir reported again to Dr Albatat on 31 May 2013, having again seen the plaintiff at the request of that doctor. Dr Tahir described the plaintiff as having complex health issues, including generalised muscle aches and pains with features of fibromyalgia, bilateral knee pain, right shoulder pain with features of subacromial bursitis and chronic back pain. His report then reads “… all this problem started since she had a motorcar accident in 2010”. This seems to be patently incorrect and, in any event, does not sit at all with the earlier report of Dr Tahir in which he specifically referred to an accident at work in 2010, which involved the lifting of weights. There is then a reference to an MRI scan of both knees. Dr Tahir went on to say that non weight-bearing exercise is the cornerstone treatment of degenerative joint disease. Treatments of this kind, along with lifestyle modification, were considered to be important. There is no report from Dr Tahir after that of 31 May 2013.
15 Dr Albatat reported to the plaintiff’s solicitors on 9 December 2013. This is a somewhat confusing report, which seems to deal with a diagnosis of severe stress and anxiety following a robbery on 8 February 2013. All that can be gleaned from it is that, in the opinion of Dr Albatat, it had no impact upon the plaintiff’s problems with her back, neck and shoulders.
16 Dr Albatat again reported to the plaintiff’s solicitors on 26 April 2016. The plaintiff was described as suffering from severe, recurrent low back pain, together with pain and limitation of movement of the right shoulder. Dr Albatat thought that the plaintiff would need more painkillers and physiotherapy and was only fit for very light work. Dr Albatat thought that those injuries were the cause of her stress, anxiety and depression. The plaintiff had been involved in a motor vehicle accident. However, Dr Albatat was of the view that there was not much impact from it, or from the craniotomy which followed, upon the plaintiff’s current ability, or inability, to work.
17 Again departing from the chronological sequence, the Joint Court Book also contains a report from Dr Bassam Jallo, which is addressed to Shepparton Myotherapy, is dated 29 January 2013 and is on the letterhead of the Family Medical Centre of Nixon Street, Shepparton. That is the same heading as that on the report of Dr Albatat of 21 March 2013, but, whilst his name appears on that letterhead, it does not upon that of the report of 29 January 2013. I can only assume that, between January 2013 and March 2013, Dr Albatat moved from a previous medical centre, the Ali Medical Centre, to the Family Medical Centre. To further add to the confusion, Dr Jallo, in his report of 29 January 2013, describes the plaintiff as being a “patient of mine”. In any event, it would appear that Dr Jallo referred the plaintiff for myotherapy, this apparently being administered by Ms Holly Dimstas. Dr Jallo also stated that an MRI showed an L4-5 disc prolapse. That, presumably, is an MRI of 2 August 2012, on which occasion the radiologist reported to Dr Tahir, with a copy to Dr Albatat. The conclusion of the radiologist on that occasion was that there was a broad-based disc prolapse at L4-5 with associated radial tear and that the prolapse caused mild central canal stenosis.
18 It is apparent that in 2015, when the plaintiff was residing near Canberra, she underwent an ultrasound of the right shoulder and an MRI of the lumbar spine. The reports from Canberra Imaging are in the Joint Court Book without any accompanying report from a general practitioner. In any event, the ultrasound of the right shoulder was performed on 1 June 2015, the radiologist reporting that there was ongoing minor bursitis. The MRI of the lumbar spine was performed on 17 June 2015. Apart from mild facet joint osteoarthritis at the lower two levels, this demonstrated an L4‑5 degenerative posterior disc bulge with an associated posterior central annular tear.
19 The plaintiff has also been examined for medico-legal purposes. I might say that I am going into the content of the medico-legal reports in greater detail than might normally be the case because of the somewhat confusing history to be found in the documents and reports from treating practitioners.
20 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff at the request of her solicitors on three occasions, the earliest of these being on 3 October 2012. In addition to taking a history of some lumbar and shoulder pain experienced approximately three weeks after the plaintiff commenced the GV work, Mr Simm also took a history of the incident in early April 2010 when there was an exacerbation of the plaintiff’s existing back pain when she was moving furniture.
21 Mr Simm took a history of some of the matters that had occurred after the GV work. These included attempts at work and a fall in 2011 in which the plaintiff suffered a severe laceration to the medial side of the left wrist, which required plastic surgical repair.
22 The plaintiff complained of daily back pain, referring to her right shoulder problems as being less problematic than those of the lower back. She also referred to some left shoulder symptoms.
23 The diagnosis of Mr Simm was that the plaintiff had mild residual dysfunction of the right shoulder following a right subacromial impingement syndrome with evidence of bursitis, but not of rotator cuff pathology. Her condition had been initiated by the GV work. He also diagnosed L4-5 lumbar disc degeneration with a central protrusion and an associated annular fissure or tear. He felt that the underlying pathology at the L4-5 level was constitutional degenerative pathology, which had been asymptomatic prior to the GV work. The GV work rendered the condition symptomatic, with continuing duties resulting in further exacerbation. There was also some exacerbation as a result of moving furniture at home. His overall diagnosis was that the plaintiff’s current residual symptoms, as at 4 October 2012, were due to unresolved aggravation of L4-5 lumbar disc degeneration. Her current condition was still related to the GV work. Mr Simm felt that there were no signs or symptoms demonstrating a residual condition of the neck. He described the injury to the left wrist which occurred in the fall as being severe. He placed a considerable number of restrictions upon the type of employment in which she could engage, these including the avoiding of repeated bending and twisting of the lower back and work involving frequent and heavy lifting. He did not think that there was any indication for surgical treatment. Mr Simm thought that the management of both the right shoulder and lower back conditions should largely involve self-regulation of activities according to pain, with the use of over-the-counter analgesic medication as required. Gentle exercise could assist.
24 Mr Simm saw the plaintiff again on 14 January 2015. By this time, the plaintiff was residing in Queanbeyan with her partner and was receiving some form of social security benefits. The plaintiff, who had been working 16 hours per fortnight with Autobarn when she had previously seen Mr Simm, had since resigned due to a conflict over hours and shifts and had not worked thereafter.
25 Mr Simm also took a history of a motor vehicle accident in Shepparton in 2013. In this, the plaintiff suffered a possible crack fracture of the left tibia, along with seatbelt bruising and laceration. She said that she had made a full recovery from these injuries, which she regarded as minor. She had been attending her general practitioner from time-to-time and had been prescribed Endone intermittently. She had had one further injection of cortisone into the right shoulder.
26 The plaintiff also told Mr Simm that, when in Queanbeyan with her partner, she was prone to binge drinking and had suffered serious injuries when she fell off the bonnet of a car being driven by her partner, this occurring on 20 September 2014. Following it, she was in a coma for nine days and required a neurosurgical operation for the head injury. She had been in the Canberra Hospital for six weeks and then transferred to the Caulfield Hospital in Melbourne for a further period of six weeks for rehabilitation. She had returned to live with her mother in Shepparton, before moving back to Queanbeyan in December 2014. She had been taking Endone for her low back pain at the time that she suffered the head injury. She ceased that for a period, but then resumed taking it and, at the time that she was seen by Mr Simm, stated that she was taking one to two tablets per day for back pain. She stated that she did not attend a doctor regularly, but had recently found a new doctor who had agreed to prescribe Endone intermittently if the back pain was severe.
27 Mr Simm expressed the opinion that the plaintiff’s right shoulder and back pain had not improved or changed since he last saw her in 2012. There was almost constant pain over the front of the right shoulder, with restrictions of movement. However, his main concern was her back. She complained of severe and almost constant thoracolumbar pain. This was not localised, but radiated to the buttocks and down the back of both thighs, usually to the knees, but occasionally down the right leg to the foot. Her pain was aggravated by simple activities. She described the back pain as “excruciating” when she had her menstrual cycle.
28 The opinion expressed by Mr Simm was as follows. The plaintiff had mild residual dysfunction of the right shoulder with chronic non-specific right shoulder pain. There were no longer clinical symptoms of specific pathology. Overall, he described her as having a chronic right shoulder regional pain condition. He also thought that she had moderate thoracolumbar dysfunction associated with a chronic pain response. Persistent lumbar symptoms probably related to intervertebral disc degeneration. He found it difficult to determine the contribution of the short period of physical employment in 2010 to the plaintiff’s current chronic lumbar symptoms. The plaintiff had had the capacity to return to full-time work since 2010 and had further exacerbations. He described the clinical history as being of initiation and exacerbation of back symptoms when performing the GV work, with no sustained period of recovery thereafter.
29 In relation to the injury suffered in the accident on 20 September 2014, Mr Simm felt that the plaintiff was rather vague and forgetful when providing her history, this being suggestive of ongoing problems. That accident was not said to have had any influence on her back or right shoulder conditions. They would prevent her from undertaking her pre-injury employment as a packer. Mr Simm felt that there were a number of matters, including motor vehicle accidents, resignation, geographical location and the loss of her car driver’s licence, all of which contributed to her long-term dependency upon social security benefits.
30 Mr Simm felt that assessment of the plaintiff’s capacity for work was now based largely on subjective reporting of symptoms. He described the plaintiff’s prognosis as being that chronic pain would persist, making it unlikely that she would obtain regular full-time employment in the foreseeable future.
31 Mr Simm saw the plaintiff again on 17 February 2016. On this occasion, the plaintiff told him that she had made a good recovery from the motor vehicle accident of 20 September 2014.
32 The medication which the plaintiff was taking was 5mg of Endone on two to three days a week and 5mg of Valium four days a week. She had moved back to Shepparton. The plaintiff again complained of constant pain over the right shoulder and difficulty performing tasks such as accessing high shelves or hanging up washing. She had no neck pain. She stated that her thoracolumbar back pain was most severe and was constant. However, her lower limb symptoms were now less troublesome and were intermittent. She had trouble with domestic chores and Mr Simm noted that the plaintiff presented with features of chronic pain. She stood and paced, holding the thoracolumbar region of her back with her left hand during the course of the interview. Her thoracolumbar movement was restricted and painful. Inspection of the right shoulder showed no abnormality, but the plaintiff presented in an inhibited way and with apparently painful movement of that shoulder.
33 Mr Simm again expressed his opinion. In relation to the right shoulder, he stated that the plaintiff presented with features of a severe pain response and that the range of movement was much less than when last examined. Changes shown on ultrasound were not necessarily clinically relevant. He confirmed his earlier diagnosis of a chronic right shoulder regional pain condition without the clinical features of specific right shoulder pathology.
34 Apart from the decrease in lower limb symptoms, Mr Simm thought that the thoracolumbar pain and clinical signs were much the same as at the time of the last examination. However, he did say that overt pain behaviour was more evident.
35 The plaintiff’s solicitors also arranged for her to be examined by Dr Jane Wadsley, occupational physician, on 11 March 2016. As Dr Wadsley is an occupational physician, a considerable portion of her report is directed towards the plaintiff’s capacity for employment. As stated at the outset, the plaintiff is in fact seeking leave to bring proceedings only in respect to pain and suffering damages. In any event, Dr Wadsley seems to have carried out a reasonably comprehensive examination of the plaintiff’s right shoulder and lower back. The conclusion of Dr Wadsley was that the plaintiff’s current dysfunction of her right shoulder and lower back was reasonably mild. There were no clinical signs of ongoing lower back injury and no radiculopathy. Dr Wadsley commented that, whilst the plaintiff had some ongoing pain symptoms affecting her lower back, she could find no clinical evidence of dysfunction and the plaintiff’s main problem appeared to be her chronic low-level pain symptoms.
36 In relation to the right shoulder, the plaintiff gave a history of intermittent, activity-related pain and there was still some restriction of range of movement. Whilst scans had revealed evidence of subacromial/subdeltoid bursitis, in the opinion of Dr Wadsley this is a finding that it is very widely found and does not necessarily indicate pathology. There was no clinical evidence of impingement. Dr Wadsley also found that there was no obvious serious abnormality of the right shoulder, including no impingement or wasting of the muscles of the shoulder girdle. The plaintiff’s condition had apparently improved following a cortisone injection in 2015. Dr Wadsley’s diagnosis was of chronic low-level pain symptoms. Dr Wadsley felt that both the back condition and the shoulder condition would prevent the plaintiff from undertaking work as a packer, but that she had a large number of transferrable skills.
37 The defendant has also had the plaintiff examined. Mr Peter Scott, surgeon, saw the plaintiff at the request of the defendant on 1 November 2012. He diagnosed a right shoulder rotator cuff lesion and subacromial bursitis. He was also prepared to accept that the plaintiff had developed an acute back strain and an L4-5 bulge, which appeared to be causing intermittent lumbosacral nerve root irritation and which required the ongoing use of Endone on a needs basis. He also felt that the plaintiff had developed a chronic pain syndrome with a lot of anxiety and depression, this affecting her back. His assessment was that the plaintiff’s major impairment appeared to be related to her anxious, nervous or depressive response. Mr Scott’s attention seems to have been directed to a considerable extent to whether or not the plaintiff’s complaints were work-related. He considered that they were. In a brief supplementary report of 22 March 2012, compiled without Mr Scott having seen the plaintiff again, he continued to implicate employment and stated that the investigations of the plaintiff’s shoulder and back showed evidence of minor changes, but he again referred to her anxiety, depression and frustration.
38 Mr Michael Shannon, surgeon, saw the plaintiff on 5 March 2013. The purpose of the examination was to provide an impairment assessment according to the AMA Guides. Mr Shannon was of the view that the general nature of the plaintiff’s work had resulted in the development of subacromial bursitis and may well have resulted in aggravation of degenerative change in the lumbar spine, with disc bulging and annular tear. The plaintiff had moderate restriction of shoulder movement with clinical evidence of mild impingement and mechanical back pain with no significant sciatic symptoms and no objective evidence of radiculopathy. Mr Shannon considered the plaintiff’s impairment and condition to have stabilised and was prepared to make an assessment pursuant to the AMA Guides, an ingredient of which is permanence.
39 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff for the defendant on 13 August 2012. Her major complaint to Mr Jones involved the lower back. Examination of the right shoulder confirmed a full range of movement. The site of the back pain was at the L4/5 level. There was some referred pain into the left buttock. Mr Jones also diagnosed subacromial bursitis in the right shoulder, although he felt that she appeared to have recovered from the effects of that. In the lumbar spine, he felt that the plaintiff had clinical evidence, supported by some x‑ray material, of a disruption of the L4/5 disc. However, on the basis of the history given to him, the first time that she began to experience “pinching” in her lower back was when attempting to sit on a couch at home. He felt that her back condition would preclude her from the sort of work which she had done as a grader/sorter.
40 Examinations by consultant psychiatrists have been organised by both sides. Paragraph (c) of the definition of “serious injury” is not now relied upon. The reports of those psychiatrists may be of some use in relation to “disentangling”, which shall be discussed subsequently.
41 In relation to the lower back injury, the diagnosis of Mr Simm is one which I accept. Essentially that is a diagnosis of unresolved aggravation of lumbar disc degeneration. The radiology would seem to support the proposition that what the plaintiff has is, as stated by Mr Simm, underlying, and moderately advanced L4/5 lumbar disc degeneration aggravated by the work injury. I would also accept that there are features of a chronic pain response. The diagnosis of Mr Simm does not differ greatly from the opinions of Mr Shannon, Mr Scott and Mr Jones.
42 I accept that there is some bursitis present in the right shoulder and that the plaintiff developed work-related symptoms in relation to this. That is the opinion of examiners such as Mr Scott and Mr Shannon. Mr Simm is of the view that, whilst there was originally evidence of subacromial and subdeltoid bursitis, in more recent reports he effectively diagnosed a chronic right shoulder regional pain condition without the clinical features of specific right shoulder pathology. Dr Wadsley diagnosed a soft tissue injury to the right shoulder. Overall, I am of the view that the plaintiff has suffered a soft tissue injury in the nature of bursitis in the right shoulder, but that there has also been a chronic pain response in this regard.
43 On balance, I am of the view that the consequences of the plaintiff’s back injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. In his report of 14 January 2015, Mr Simm stated that the plaintiff’s prognosis was for chronic pain to persist and because of this it seemed unlikely she would be able to obtain full time employment in the foreseeable future. Thus, it is not a clear cut opinion as to the consequences of the back injury, but the impression given is that those consequences will persist for the foreseeable future. In relation to his most recent report, Mr Simm was not asked to comment on the prognosis, although he observed that there was persistent thoracolumbar dysfunction. Dr Wadsley was also not specifically asked to comment on prognosis. The reports of Messrs Scott, Jones and Shannon are now somewhat dated. Mr Scott regarded the prognosis as being quite uncertain. Mr Jones has not commented upon this issue. Mr Shannon regarded the plaintiff’s impairment and condition to be stabilised and was prepared to make an assessment pursuant to the AMA Guides. His report is now somewhat dated. The plaintiff’s treating general practitioner, Dr Albatat, also does not seem to have been asked to comment upon the prognosis or the permanence of the plaintiff’s back condition and its consequences. Essentially, we are left with what has been said by Mr Simm. As stated, the impression given by him is that he regards the symptoms as likely to persist for the foreseeable future. This is consistent with the earlier finding of Mr Shannon, to the effect that the plaintiff’s condition was stabilised and that he was prepared to make an assessment pursuant to the AMA Guides, an ingredient of which is permanence.
44 The situation in relation to the consequences of the right shoulder injury is even less definite. Whilst the observation of Mr Simm referred to above and which was contained in his report of 14 January 2015 would seem to embrace both injuries, in his subsequent report of 18 February 2016 he recorded that inspection of the right shoulder showed no abnormality, but there had been a change in the clinical signs presented. He commented that the right shoulder dysfunction now seemed to relate to a chronic right shoulder regional pain condition. There is no comment as to the permanence of consequences. Mr Shannon considered the plaintiff’s injury to be stabilised and was prepared to make an assessment pursuant to the AMA Guides. Given the far more recent remarks of Mr Simm, and the changed clinical signs noted by him, some question mark would now seem to appear over the accuracy of Mr Shannon’s view on stabilisation. The strong impression gained from Mr Simm’s more recent reports is that the physical consequences have been supplanted or overwhelmed by some form of non-organic chronic pain response. All of this leaves me in considerable doubt as to whether the required permanence has been established in relation to the right shoulder injury.
45 The injury to the low back would appear to be in the nature of an aggravation. However, I accept that the plaintiff had suffered no previous symptoms of spinal injury so that, whilst the back injury is probably the aggravation of pre-existing degenerative changes, they were asymptomatic prior to the GV work and the consequences from which she suffers are the direct result of the aggravation caused by that work. The injury to the right shoulder would not appear to be in the nature of an aggravation.
46 There is then the issue of “disentangling”. Pursuant to s134AB(38)(h) of the Act, the psychological or psychiatric consequences of a physical injury are not to be taken into account other than for the purposes of paragraph (c) of the definition of “serious injury”. Reliance is not placed upon that provision in the present case. Therefore psychological or psychiatric consequences are not to be taken into account. I note that Associate Professor Nick Paoletti, consultant psychiatrist, who examined the plaintiff at the request of her solicitors, formed the view that she suffers from a chronic adjustment disorder with mixed anxiety and depressed mood. Professor Paoletti made this diagnosis in a report dated 3 October 2012. Dr Norman Rose, consultant psychiatrist, examined the plaintiff at the request of the defendant on 31 January 2012. He thought that the plaintiff had a long history of “trait anxiety”. He found no evidence of anxiety or depression and expressed the opinion that the plaintiff’s pain preoccupation was mostly psychogenic. He did not feel that, from a psychiatric perspective, any work restrictions were necessary. Dr Dush Shan, consultant psychiatrist, saw the plaintiff at the request of the defendant on 12 June 2012. He was of the view that she showed no evidence of a psychiatric or abnormal psychological condition and placed no restrictions upon her.
47 The examinations conducted by the three psychiatrists are now somewhat dated. I am inclined to accept the opinion of Mr Simm, even though he is not a psychiatrist. I accept that there are non-organic features of the plaintiff’s presentation. Such features shall not be taken into account.
Other developments since the GV work
48 Since the GV work, the plaintiff has engaged in what could be described as further sporadic employment. She has been involved in a number of accidents and sustained injuries.
49 In June 2010 the plaintiff commenced working at Dan Murphy’s as a cashier on a part time basis. This seems to have been for approximately three months. In early 2011, she started a beauty therapy course at TAFE. In October 2011, she commenced working at Autobarn on a full time basis and as a retail sales assistant. She has sworn that this caused her some difficulty and she was told in May 2012 that she could not continue in a full time role as she was missing too much time from work. Subsequently she was offered a part time role at the same establishment, working 16 hours a fortnight. She did this for a period which is not entirely clear. She moved to Queanbeyan for a period before returning to Shepparton. As at the time of swearing her affidavit of 22 March 2016, she was hopeful that she could commence a suitable course, such as pathology. The last paid work that she has performed has been with Autobarn. She resigned from that employment in 2013, this apparently following some conflict involving hours and shifts.
50 The plaintiff has suffered a number of injuries since the GV work. It would seem that, on 18 June 2011, she fell through a glass window at a party, lacerating her left wrist badly. She told Dr Wadsley in March of this year that she was still suffering pins and needles affecting the little, ring and index fingers of the left hand and also had weakness and ongoing muscle wasting. Clearly this incident resulted in hospitalisation and some repair work.
51 Also in 2011, whilst recovering from the lacerations to the left wrist, she fell down some stairs, landing on the back of her right hand and fracturing two bones in it. It would also seem that she was the victim of a robbery on 8 February 2013, but, whilst this seems to have occasioned stress and anxiety, it would also appear that it no impact upon her problems with her back or her shoulder. On 16 June 2013, she was involved in a car accident in which she injured both knees and suffered facial lacerations. It would also seem that she had ultrasounds done on both shoulders after that accident, but told Dr Wadsley that there was no aggravation of her pre-existing right shoulder injury resulting from the car accident.
52 The plaintiff was involved in a serious car incident on 20 September 2014. She has had some problems regarding binge-drinking of alcohol and it seems to have been involved in this accident. Essentially she fell off the bonnet of a moving car driven by her partner. It would appear that, as a result of this incident, he was sentenced to imprisonment and, as I understand it, is still in jail. In any event, in addition to her right ankle injury, the plaintiff suffered a skull fracture and required cranioplasty. She told Dr Wadsley that, as a result of this accident, she suffered an acquired brain injury but, for example, her reading and writing ability had not been affected. Dr Albatat expressed the view that there was not much impact upon the plaintiff’s ability to work as a result of the motor vehicle accident and craniotomy. Mr Simm has recorded that the incident of 20 September 2014 was not said to have any influence on her back or right shoulder conditions, although he found her to be somewhat vague and forgetful when providing her history.
53 In relation to her psychological condition, it would also appear that she was the victim of a robbery on 8 February 2013 and suffered from quite severe stress and anxiety as a result.
Ruling
(a)Right shoulder injury
54 I am not satisfied that the plaintiff has discharged the burden of proof in relation to the right shoulder injury. In his closing address, Mr Garnham, on behalf of the plaintiff, stated that the evidence was certainly that the back was more limiting than the right shoulder injury and had a clear organic basis. He stated that “… the back indeed does seem to be the significant and persisting problem” – see T81. In the plaintiff’s most recent affidavit, she stated that the back pain was more troubling and limiting than that of the right shoulder.
55 The last radiological investigation of the right shoulder seems to have been that carried out in Canberra and would appear to have been an ultrasound. No current rotator cuff abnormality was seen. This report of 1 June 2015 effectively concludes that the plaintiff suffered ongoing minor bursitis.
56 As stated, Mr Simm formed the view that the plaintiff’s right shoulder dysfunction related to a chronic right shoulder regional pain condition and, commenting upon her injuries collectively, stated that she did not require formal treatment.
57 Dr Wadsley, reporting on 11 March 2016, referred to the plaintiff’s current dysfunction of her right shoulder as being reasonably mild and, whilst some bursitis was detected on a recent scan, concluded that this does not necessarily indicate pathology, as the plaintiff had no clinical evidence of impingement at the time of examination. There was no obvious serious abnormality of the right shoulder, including no impingement or wasting of the muscles of the shoulder girdle.
58 Bearing in mind these opinions, together with the fact that I regard the evidence of permanency of consequences as being doubtful, if not inadequate, and the fact that I am also of the opinion that substantial “disentangling” is required in relation to psychological or psychiatric consequences, it seems to me that the plaintiff falls considerably short of discharging the burden in relation to the right shoulder injury.
(b) The back injury
59 I am of the opinion that the plaintiff has discharged the burden of proof in relation to her lumbar spine injury. This is a difficult case with a complicated history. However, on balance, I am of the view that the plaintiff has discharged the burden of proof. In a case in which the isolation of the physical consequences of the injury resulting from the GV work are not particularly easy to isolate, I am satisfied that, when that exercise is performed, the plaintiff should succeed. I have come to that conclusion for the following reasons:
(i) There are clear radiological changes which account for the symptoms and consequences of which the plaintiff complains. The most recent investigation is the MRI of the lumbar spine performed on 17 June 2015. It revealed an L4‑5 degenerative posterior disc bulge with an associated posterior central annular tear. It is to be remembered that the MRI of 2 August 2012 demonstrated a broad-based disc prolapse of L4‑5 with associated radial tear.
(ii) As previously stated, I am also satisfied that the GV work aggravated the relevant radiological changes and rendered a previously asymptomatic condition symptomatic. That there was such an aggravation was not contested by the defendant, and indeed surgeons such as Mr Shannon and Mr Scott effectively conceded the occurrence of injury. The written submissions on behalf of the defendant specifically submitted that this was a case of an aggravation injury. Thus, that the plaintiff suffered an injury in which she aggravated pre-existing degenerative changes in her low back is common ground.
(iii) Whilst, since the GV work, the plaintiff has been involved in a number of traumatic incidents involving quite major injuries to other parts of her body, I am not persuaded that any of these have had any significant effect upon her back injury or the consequences arising from it. For example, the plaintiff’s general practitioner, Dr Albatat, in his report of 26 April 2016 has observed that he did not think that there was much impact from the motor vehicle accident and craniotomy on her current ability to work. The history recorded by Mr Simm in his report of 14 January 2015 was that the plaintiff had suffered a very severe head injury, but was not currently suffering from any specific symptoms relating to it. In his report of 18 February 2016, he stated that the dominant cause of the plaintiff’s symptoms and associated incapacity related to the claimed injuries suffered in the GV work in April 2010. In her report of 11 March 2016, Dr Wadsley stated that, from a physical point of view, she was of the view that the plaintiff’s right shoulder and back were the main problems. In her affidavit of 6 May 2015, the plaintiff pointed out that she had recovered from the effects of the transport accident of 20 September 2014 and had in fact been cleared to regain her driving licence. In her subsequent affidavit of 22 March 2016 she again swore that she had recovered well from the head injuries sustained in the accident, but was still troubled by her right ankle. The plaintiff’s mother, Ms Helen Matthews, swore an affidavit of 12 May 2015. In it, she referred to the other accidents and falls which the plaintiff had suffered. She went on to swear that, despite all those other injuries, the plaintiff has recovered well, but has continued to complain about her back and right shoulder. The weight of evidence supports the proposition that, whilst the plaintiff has been involved in a number of traumatic events, these have not had any lasting effect upon her back injury.
(iv) The issue of the “disentangling” of any psychological or psychiatric consequences is one that received considerable attention. Of course, in accordance with s134AB(38)(h) such consequences shall not be taken into account. However, I am not satisfied that they are of any great magnitude.
Firstly, the impression created by the plaintiff in the witness box was not one of a person who exaggerates symptoms or complaints either consciously or unconsciously. The impression created was the opposite, namely that of a resilient person.
Next, she is a woman who has been through a great deal, including a number of traumatic events. She seems to have handled these comparatively well, getting on with her life and returning to everyday activities such as driving. She has been looking for a suitable course to undertake. I note that she described herself to Associate Professor Paoletti as “a pretty strong person”.
Thirdly, the plaintiff has been seen by three psychiatrists for medico-legal purposes. Dr Norman Rose, examining on behalf of the defendant, expressed the view that the plaintiff had not suffered any psychiatric injury attributable to employment. Whilst noting that her symptoms were mostly related to the presence of underlying anxiety traits, he did not find her to be incapacitated, and felt, from a psychiatric perspective, no work restrictions were necessary.
Dr Dush Shan, similarly examining, stated there may have been previous occasions or episodes when the plaintiff became anxious about health matters, but that was not evident in the history given or the documentation that was enclosed for his perusal. She did not present as clinically anxious or depressed and, in the opinion of Dr Shan, did not show evidence of a psychiatric or abnormal psychological condition. He felt that she may have had an anxious personality, but also stated that no psychological or psychiatric treatment was indicated for an identifiable psychiatric diagnosis.
Associate Professor Nick Paoletti examined the plaintiff at the request of her solicitors. He diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood. He recommended some sessions with a clinical psychologist but, currently, no medication. He felt that the GV work played a central role in the precipitation of the psychological problems. However, whilst it is not entirely clear, he did not seem to be suggesting that she suffered from some form of chronic pain syndrome. Indeed, he referred to the report of Dr Tahir, the plaintiff’s treating rheumatologist, to the effect that lumbar surgery was an option.
I would point out that the reports from these medico-legal examiners were all obtained in 2012. There is nothing more current from a psychiatrist. A report obtained from Mr Bill Radley, psychologist and vocational assessment specialist, in March 2014 is directed towards employability, although there is the observation that psychological testing indicated the plaintiff to be reporting a moderate level of depressed and anxious mood.
Next, the most recent report from the plaintiff’s treating general practitioner, Dr Albatat, is that of 26 April 2016. Essentially he referred to the plaintiff’s severe, recurrent low back pain and the effect of it and the shoulder injury upon her unfitness for work. He also thought that the plaintiff’s inability to work caused her stress, anxiety and depression. Again, there is no reference to a condition such as a chronic pain syndrome. Further, the medication which the plaintiff obtains from Dr Albatat seems to consist mainly of Endone for her pain and Valium for sleep assistance.
The reports from Messrs Scott, Jones and Shannon are somewhat dated, as mentioned earlier, although the report of Mr Shannon does post-date any of the psychiatric reports. Mr Scott did refer to the plaintiff having a chronic pain syndrome, anxiety and depression, although Mr Jones and Mr Shannon record no such finding. Two of the reports from Mr Simm are more current. In his most recent report of 18 February 2016 he noted that the plaintiff presented with features of chronic pain. In relation to her back, he noted that there were features of chronic pain, but also diagnosed persistent and painful thoracolumbar dysfunction which probably related to underlying, moderately advanced L4‑5 lumbar disc degeneration which had been aggravated by the GV work injury. He further noted that there was some objective MRI scan evidence of lumbar pathology which could be incapacitating. It is not altogether simple to identify Mr Simm’s basic opinion, but it seems to be that, whilst there are features of a chronic adverse pain response, the persistent and painful dysfunction is probably caused by the underlying and aggravated lumbar disc degeneration.
When all of the above is weighed up, it seems to me that the plaintiff’s basic problem is organic and that, as stated, whilst psychological and psychiatric consequences are not to be taken into account, they are not of great magnitude. The essential problem remains a physical or organic one.
(v) I turn, now, to the consequences which the plaintiff has suffered as a result of the physical injury.
(vi) I accept that the plaintiff has back pain every day and that such pain is almost constant. At her most recent examination by Mr Simm, she described how her back pain has been most severe and has been constant. After taking Endone, it may reduce to 1/10 on a Visual Pain Scale, but usually rises to 4-5/10 during the day. However, simple activities such as lifting something into the boot of her car causes extremely severe pain. In the report of Dr Albatat of 26 April 2016, that doctor has stated that the plaintiff was suffering from severe, recurrent low back pain. Persistent, ongoing pain is a factor of importance – see Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69 and subsequent cases such as Sutton v Laminex Group Pty Ltd [2011] VSCA 52. In Kelso v Tatiara Meat Co Pty Ltd [2010] VSCA 12, the Court of Appeal stated that:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
The plaintiff’s ongoing and constant pain, which can easily reach the level of “severe”, is a factor which I take into account in the present case.
(vii)In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking J in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439 at [448]:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance … .”
This observation was referred to recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167.
As earlier stated, I have no reason to doubt the plaintiff’s credibility and I accept her evidence. Thus, I accept what she has sworn in her affidavits and the histories and descriptions of symptoms which she has given to medical examiners.
(viii)The age of the plaintiff is another matter which should be borne in mind. She is aged 32 years. Whilst she has suffered various problems, there is no reason to assume that she has anything other than a normal life expectancy. If that be so, she probably faces many decades of pain and suffering as a result of the injuries arising from the accident.
(ix)In her affidavit of 22 March 2016, the plaintiff has sworn that her back pain makes it more difficult to get to sleep and she often wakes in the night with back pain. Interference with sleep is a factor referred to in Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1. As was said by Maxwell P:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep.”
I note, that in her most recent examination by Mr Simm, the plaintiff described how she may wake in quite severe pain and that such severe pain is largely localised in her thoracolumbar region.
(x)As she told Mr Simm, when seeing him on 14 January 2015, the plaintiff’s back pain interferes with simple activities, such as vacuum cleaning. In her most recent affidavit, she has sworn that such an activity aggravates her back pain a lot, and she receives some assistance. She has further sworn that:
“Even just washing the dishes causes back pain because of the posture I have to adopt.”
In her first affidavit of 8 August 2013, she described the difficulties that she has doing such things as gardening, cleaning and the like. Matters involving bending cause problems.
(xi)In relation to medication consumed, the plaintiff takes Endone, an opioid, three or four times a week – see T46. The plaintiff’s history in relation to medication is somewhat complicated because of the more recent accidents in which she has been involved, but I accept that she takes Endone, mainly for her back pain, as she has sworn in her affidavit of 22 March 2016. She also takes Valium to assist with sleeping. Thus, she is consuming comparatively powerful medication.
(xii)As earlier stated, the plaintiff told Mr Simm that, when she had her menstrual cycle, her back pain was “excruciating”. As she is thirty-two years of age, this could well be a problem for quite some years to come.
(xiii)The back injury has caused some interference with the plaintiff’s social activities. She finds it painful to wear high-heels and, if she tries to dance, she has significantly increased pain afterwards. One of her favourite hobbies was sewing. She now has problems in relation to that, such apparently being due to a mixture of the shoulder and back injuries. She is restricted in relation to bike riding. She cannot sit or stand for extended periods of time because of her back pain. Thus, back pain interferes with a number of the plaintiff’s pre-injury activities.
60 When all of the above is taken into account, it seems to me that the plaintiff has satisfied the requirements of the statutory test.
Conclusion
61 The plaintiff is successful. She has discharged the burden of proof. Leave is given to her to bring proceedings for pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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