Pitsiava v Southern Health - Monash Medical Centre and
[2009] VCC 561
•15 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-02959
| THOMAI PITSIAVA | Plaintiff |
| v | |
| SOUTHERN HEALTH – MONASH MEDICAL CENTRE | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 April and 1 May 2009 |
| DATE OF JUDGMENT: | 15 May 2009 |
| CASE MAY BE CITED AS: | Pitsiava v Southern Health – Monash Medical Centre and VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0561 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury application – s.134AB Accident Compensation Act 1985 – chronic pain syndrome – myofascial type pain syndrome – fibromyalgia – no need to “disentangle” - Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357 - Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 - Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie with | Ryan Carlisle Thomas |
| Mr C J Nettlefold | ||
| For the Defendants | Mr A J M Moulds | Hall & Wilcox |
| HIS HONOUR: |
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of an injury to her lower back suffered by the plaintiff in the course of her employment with the defendant on 21 January 2002 (“the injury”) when she fell and strained her back (“the incident”). S.134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a serious injury.
2 S.134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“Serious injury means –
(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon by the plaintiff is the lower back.
4 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to pain and suffering only, and not loss of earning capacity: see s.134AB(38)(b) of the Act.
The Issues
5 It is not in issue that the incident occurred. What is in issue is the nature of the injury suffered and whether the plaintiff is now suffering a serious injury – see s.134AB(38)(j).
The Plaintiff’s Evidence
6 The plaintiff relies on affidavits sworn by her on 29 February 2008 and 24 March 2009. She also gave viva voce evidence and was cross-examined.
7 The plaintiff was born on 9 June 1976, and thus is now aged thirty-two. After passing Year 12 she obtained a Bachelor of Science degree in Nursing at the Victoria University of Technology. She then worked for five years in the paediatric ward at the Royal Children’s Hospital and commenced employment as a nurse with the first defendant on 3 December 2001. She married, was separated in early 2007, and then remarried in September 2008.
8 The incident occurred when the plaintiff was moving a cot which had faulty brakes. In doing so she felt a sharp pain in her low-back. That same afternoon she saw her general practitioner, Dr John Kioussis, of HealthCare Carnegie. She commenced physiotherapy and hydrotherapy on 30 January 2002. She felt that the physiotherapy was not particularly helping her, and ceased this treatment on 18 March 2002. Meanwhile, on 6 March 2002, she had commenced clinical massage.
9 She did not return to work until 25 March 2002, to part-time light duties. On 10 May 2002, she commenced a gym program followed by hydrotherapeutic massage twice a week. By October 2002, she was working 7 hours daily.
10 Over the next few years she had recurring low-back pain and left-sciatic pain. By January 2004, she was working a full shift of 8 hours daily, 72 hours per fortnight, although it was necessary for her to take time off when the pain worsened.
11 On 16 February 2005, she felt a sharp increase in her back pain after lifting babies at work. She was undergoing remedial massage twice a week, and increased her intake of painkilling medication. Her back pain continued, and on several occasions she was required to take sick leave.
12 On 22 November 2006, she struck her left ankle on a ventilator brake at work, which she states caused a jarring of her spine and an increase in pain and stiffness in her lower back. Again it was necessary for her to have time off work, and she returned to remedial massage and painkilling injections. Again she had to take time off work. She returned to work on 7 February 2007 on a part-time basis. She built up to a full-time shift and normal duties by July 2007.
13 She is presently working as a Division 1 nurse in the neonatal intensive care unit at the Monash Medical Centre. She is working full-time but states that she receives assistance from her co-workers, who are aware of her back injury. She still requires to take sick leave when her back pain flares up. When this occurs she attends Dr Kioussis’s clinic, where she is injected with anti-inflammatories. This has occurred three or four times this year already. She still has a massage on average once a week. She is presently taking, by way of medication, Mersyndol Forte or Panadeine Forte, Nurofen Plus and Valium. On “bad days” she increases the medication. She states that she undertook four treatments of laser acupuncture, but this exacerbated her condition. In her affidavit of 24 March 2009 she states:
“I continue to suffer virtually constant pain affecting my low-back. The pain radiates from my low-back to my left leg often as far as my foot, and occasionally into my right leg. I suffer muscle spasms affecting my low-back which then seem to radiate up my spine to my mid-back and neck. Often the movements of my back are restricted. The low-back pain is made worse by activity, by bending, lifting, twisting, sitting for too long and standing for too long.”
14 She states that driving for long distances causes significant pain, that her sleep is often interrupted by pain, and she awakes feeling tired. Normally after a day’s work she states that her back is sore and she needs to rest. Her social and domestic activities, she states, are restricted by her back injury. She states that prior to the incident she was fit and healthy. Now she finds difficulty in engaging in any physical activity, and most of her energy and effort is put into keeping herself at work.
Medical Evidence
15 Dr Kioussis indicates in a report of 10 May 2002 that the plaintiff has been attending HealthCare Carnegie clinic since 1986. He confirms in the report that the plaintiff attended him on 21 January 2002 when he diagnosed “acute musculo-ligamentous strain of the lumbar spine” and treated the plaintiff with an intramuscular injection of anti-inflammatory medication as well as prescribing Voltaren. He organised a CT scan of the plaintiff’s lumbar spine on 25 January 2002. A report of that date upon the scan stated:
“Scans were performed from the L1 to S1 level. There is no disc protrusion or canal stenosis at any level. All nerve roots exit without compression. The facet joints are quite well preserved and there is no marked spondylosis.”
16 He also organised an MRI of the plaintiff’s lumbo-sacral spine on 8 June 2002. A report of that date upon the MRI stated:
“Mild desiccation of the L5–S1 invertebral disc associated with a small
central disc protrusion.”
17 A further MRI was performed at the request of Dr Kioussis on 1 February 2003. This showed:
“Tiny right paracentral disc protrusions at T12-L1 and L1-2 are noted, and a small central disc protrusion at L5-S1. These do not contact the neural structures. There has been no significant change when compared with the prior examination dated 8 June 2002.”
18 A further MRI was organised by Dr Kioussis on 25 May 2003. A report of that date states:
“Minimal generalised disc bulges at the T5-L1 and L1-2 levels. Small focal central disc protrusion at L5-S1 contributes to mild narrowing of the central canal but does not contact the neural structures. The overall appearance is unchanged when compared with the previous study dated 1 February 2003.”
19 A further MRI organised by Dr Kioussis on 22 April 2006 was reported as showing:
“Small central disc protrusion at L5-S1 without neural compromise
unchanged compared with the previous study dated May 2003.”
20 Dr Kioussis arranged a further MRI on 22 January 2007. A report of that date states:
“At L5-S1, disc desiccation and mild loss of disc height noted. An annular disruption is present posteriorly and a central protrusion is present. This lies between the S1 nerve roots.”
21 In a report dated 18 April 2009, Dr Kioussis states:
“The last time I assessed Ms Pitsiava was on 6/4/09, when she informed me that she had taken several further days off work due to the troublesome low-back pain and stiffness. In addition, she had features of worsening depression, with lowered mood, insomnia, irritability and decreased appetite. She had expressed great worry and apprehension regarding her future, including her ability to fall pregnant with her level of medication intake, as well as her ability to physically cope with a pregnancy with her degree of back disability. Ms Pitsiava provided me with a psychological questionnaire performed during the course of a medicolegal assessment by Dr Robyn Horsley, which rated her as having moderate depression. I agree with this assessment and provided her with a prescription for the antidepressant medication Pristiq.
To summarize, therefore, I consider the following:
1 Mrs Pitsiava is suffering from the following conditions:
(A) T7/8, T8/9 disc protrusion. (B) Mild right T12/L1 disc protrusion. (C) L5/S1 disc protrusion and left sciatica. (D) Major depression and anxiety. 2 Mrs Pitsiava’ employment at Southern Health has been a major contributing factor to the above conditions.
3 Given the nature of her injuries, chronicity of her problems and the nature of her work, I consider that she will have an ongoing indefinite disability in relation to her lower back injury.”
22 I note that in his previous report dated 28 October 2008, Dr Kioussis stated that the plaintiff was suffering from “anxiety”, and that this has now been upgraded to “major depression and anxiety”. The plaintiff, of course, is not relying upon paragraphs 1(A) and (B) of Dr Kioussis’s report.
23 Mr Steven Leitl, orthopaedic surgeon, examined the plaintiff for the defendants on 21 November 2008. In a report of that date he states that the various MRIs of the plaintiff’s lumbar spine show “a moderate central L5-S1 disc protrusion”. His diagnosis is of L5-S1 disc injury. He states:
“As a result of the original injury she has sustained an L5/S1 disc injury with protrusion and has subsequently had aggravations by the other incidents.
. . .
She has a vulnerable back, the result of an L5/S1 disc injury. She is currently at normal duties but examination shows that she has a restricted range of lumbar spine movement, without evidence of radiculopathy, but consistent with the MRI demonstrated L5/S1 disc protrusion.
. . .
The back injury appears to be confined to the L5/S1 disc. Because of the long history at some stage in the future she may consider surgery to excise the L5/S1 disc and fuse this area. At the present time she obtains good relief from her symptoms with remedial massage and would not consider surgery.
. . .
The natural course of her condition is for recurrences to occur. Generally a back strengthening exercise program has been shown to be most useful in this kind of injury. She has obtained most benefit from massage, but the natural course of the condition is unaltered by either treatment.
. . .
Remedial massage to date has been reasonable and appropriate.
Analgesics treatment is reasonable and appropriate.
. . .
If all treatment were ceased I believe that she would be unable to continue with her employment.”
24 Dr Robyn Horsley, occupational physician, examined the plaintiff on 23 March 2009. In a report of that date, she states:
“I believe that the events as described in her clinical presentation are consistent. I believe that work has been the significant contributing factor. The primary area of discomfort is the discal disruption at L5-S1.
She has become quite pain focused and is quite deconditioned.”
25 Mr Michael Johnson, orthopaedic surgeon, examined the plaintiff at the request of her solicitors on 14 March 2008 and 13 March 2009. In a report of 15 May 2008, he confirms that the original MRI scan of 8 June 2002 “demonstrated mild lumbosacral disc degeneration with a small non- compressive central prolapse”. He states that the four subsequent MRI scans “were essentially the same as the original scan”. He states:
“I am uncertain of the exact anatomical cause of her pain. It is possible that her symptoms may be related to her lumbar sacral disc degeneration although this type of change can be age related and would not be unusual in a person her age.
There has not been a significant interval change at the lumbar sacral level since her original MRI scan and there is some uncertainty as to the anatomical diagnosis.
When I saw Ms Pitsiava she presented as being mild to moderately disabled. I note however that she does have severe exacerbations of pain during which she is severely disabled.
Her symptoms are variable and this has allowed her to return to her previous work doing neo natal intensive care.
It would be possible to further investigate her with lumbar discography but I would note that surgical treatment based upon the result of discography alone tends to be unreliable.
She has now had her symptoms for over 5 years and in the absence of any real improvement I think it likely her symptoms will persist for the foreseeable future.”
26 In a report of 17 March 2009 following the subsequent examination on 13 March 2009, he states:
“I am uncertain of the exact anatomical cause of her pain. It may however be related to her lumbar sacral disc degeneration although this diagnosis cannot be guaranteed.”
27 Mr Chris Xenos, neurosurgeon, saw the plaintiff at the request of Dr Kioussis on 28 May 2003. In a report of 5 December 2007 to the plaintiff’s solicitors, he states:
“The symptoms in the back tend to be widespread, extending as a muscular type pain across both sides of the back and into the buttocks. They tend to fluctuate, but to her credit she was still working at that time. I was somewhat confused about the symptoms in her left leg. At times, the patient described the symptoms as ‘funny feelings or numbness’, and at other times they would be painful in nature. It could extend anywhere from the medial aspect of the thigh to the groin area and lateral aspect of the thigh and into the sole of the foot. This did not follow any particular dermatome and was not your typical sciatic description.
. . .
An MRI examination of the lumbar spine from May 2003 was reviewed. I did note T12/L1 and L1-L2 disc bulges present, but they were purely incidental in my opinion, and not relevant to any discussion with regards to the patient’s leg symptoms in view of the nerves involved. Secondly, a previously noted tiny left L5/S1 bulge was still present. It was appearing on the scan, but I was not convinced that it was causing any nerve root or spinal canal stenosis. I was therefore unkeen to accept that the minor disc bulges described were indeed causing the patient’s left leg symptoms which were somewhat vague and varied in nature.
At the end of this consultation, I was of the opinion that in view of her predominant problem being back pain, and indeed her left leg symptoms being vague, and not correlating very well with the tiny left L5/S1 disc bulge, I was not comfortable to offer her surgical intervention.
. . .
The patient’s diagnosis can be summarised as mild lumbar spondylosis as well as a small left L5/S1 disc bulge.”
28 He again saw the plaintiff on 12 March 2008 on referral from Dr Kioussis. He states in a report of 14 March 2008:
“Her complaint was still one of generalised back pain, with a mechanical and muscular inflammation component as well as some vague neurological symptoms. Her back pain was still her biggest complaint, was intermittent in nature, and extended all over her lumbar spine with associated stiffness. The pain and stiffness was worse with weather changes, activity and getting up from the seated position. In addition, there seems to be some associated posterior thigh and left calf pain, also worsening with activity. There is only numbness in the region of the right hip. This does not sound like classic sciatica, and occasionally there is a paraesthesia in the soles of both feet, slightly worse on the left hand side, but there’s no sphincter dysfunction.”
. . .
On examination, the patient looked depressed to me, she was thin, she looked otherwise well and her gait was normal. The patient to her credit, was able to bend down and touch her toes. Straight leg elevation was comfortable, the tone in the legs was normal, and there was no focal, proximal or distal weakness. Sensation to the feet demonstrated reduced left dorsal sensation, consistent with L5 disturbance. The reflexes were all normal.
An MRI scan from January 2007 of the thoracic and lumbar spine was reviewed. I was not convinced that things had worsened from the previous imaging. There is a minor incidental T9-10 disc bulge, but it’s not causing any cord compression or bruising. There is still a slight central L5/S1 disc bulge, but it’s not compressing any nerve roots and not causing significant canal stenosis. The rest of the spine was unremarkable.
There was no role for surgical intervention. The patient had features of chronic pain syndrome, a lot of her complaint was muscular in nature, and would be worsened with activity, as well as moving cots and furniture around at work.”
29 Dr Geoffrey Littlejohn, rheumatologist, examined the plaintiff on 24 August 2004 for the defendants. In a report of that date he states:
“Thomai Bilic has clinical features of L5/S1 lumbar disc abnormality. This is likely the cause for her initial lumbar spine pain. In addition to this particular problem she has clinical features of pain amplification affecting several muscle groups from the neck to the buttocks, consistent with a fibromyalgia type response. Muscles in that area thus remain tight and tender.
The worker does suffer from an injury where employment remains a significant contributing factor. I think it likely that employment did cause the initial L5/S1 disc abnormality (mild prolapse). She has not yet recovered from that problem from the point of view of her symptoms.
. . .
Many patients with pain amplification and fibromyalgia-like muscular symptoms do have emotional or personal factors contributing to their pain. I think a psychiatrist or psychologist would be needed to determine whether this is the case with Mrs Bilic. I do note that she has been prone to migraine and she may be prone to stress factors in aggravating musculo-skeletal symptoms. However, the main contributor to her pain complaint remains the injury from her work.”
30 Dr Maurice Wallin, who describes himself as a consultant in occupational health, safety, and legal medicine, examined the plaintiff on 18 August 2003 for the defendants. In a report of that date he states:
“Since she is still a relatively young woman who does not have considerable demonstrable pathology and that her symptoms develop in the course of and seemingly out of her employment, I believe that one must reasonably accept that at present her ongoing disability contains a significant and material work input.”
31 He describes the plaintiff’s disability as “a myofascial type pain syndrome of modest degree with some bilateral leg radiation”. He further states:
“Given that she does not appear to have any major objectively detectible pathology present, and that the L5/S1 disc is probably but not necessarily certainly the origin of at least her initial pain, I believe that her prognosis must be seen as reasonably optimistic once she can train her low-back to cope with normal day to day work activities. The pain which she is experiencing is probably a protective mechanism to avoid aggravating what is probably the symptomatic L5/S1 disc.”
32 Mr Clive Jones, orthopaedic surgeon specialising in hip and knee replacement and revision surgery, saw the plaintiff at the request of the defendants’ solicitors on 7 May 2008 and 8 December 2008. He provided reports dated 22 May 2008 and 16 December 2008. At his first examination, he noted that there was generalised muscle tenderness up and down the lumbar spine. He noted some non-organic signs. In his first report, he states:
“I believe it would be not unreasonable to say that a pain disorder, with a rather poor outlook, is currently present. ... The examination findings do not suggest a major spinal disability. Investigations show some disc bulging, but there is no frank neurological compression. ... The diagnosis is back pain which is presumably degenerative in origin. The true extent of the injury would appear to be minor rather than major. ... This lady does have a problem with generalised spinal pain. It appears it is likely to persist. ... I feel this lady is able to work in the neonatal ward where there is really no heavy handling. I believe she would find it difficult to function as a nurse in an adult medical or surgical ward, and in particular, would not be suitable for geriatric type nursing. Alternatively, she could work as a pathology nurse if retrained, or as a nurse educator.”
33 In his report of 16 December 2008, he states that on examination on 8 December 2008, little had changed since his previous examination. He states:
“Examination findings suggest a degree of reactivity, exaggeration and illness behaviour. This has been present on both occasions has been seen. Investigations show nothing traumatic, with lower thoracic and upper lumbar disc bulges, which are not of significance. There is said to be a small lumbosacral disc bulge, but it is unlikely that this in itself is causing symptoms. ... I would say her physical impairment is of a minor order. The prognosis is reserved, with a high likelihood of on-going symptoms. Conservative treatment should continue. Barriers to improvement appear to be psychological rather than physical. ... Development of a pain disorder is a poor prognostic sign and usually means the symptoms continue. ... Amongst the material sent was a report from Mr Xenos. He does not consider the spinal pathology to be of significance, and he does not regard her left leg symptoms as truly sciatic. Like myself, he identifies a pain disorder underlying this lady’s presentation. One can only agree.”
34 Finally, there is Dr Peter Stevenson, consultant physician, who saw the plaintiff on 13 October 2008 at the request of the defendants’ solicitors and provided a report to them dated 17 October 2008. He noted that the plaintiff “was a credible and straightforward historian”. He states:
“The MRI scan shows minor disc protrusions. Critical studies show that these are determined predominantly by the aging process and genetics. They are very common in the asymptomatic population. She has, with respect, been excessively investigated and this is likely to be counterproductive. Patients who undergo repeated radiological investigations have been found to have a worse outcome in fact with increased pain and decreased function compared with those patients whose condition has not been medicalised.
. . .
The diagnosis is non-specific back pain. This is the term recommended by the International Association for the Study of Pain. In fact her pain has clearly spread beyond what is explicable. This is likely to reflect emotional distress and excessive passive manipulation.
She could now be described as having a fibromyalgia so long as the limitations of that term are understood. It is a useful descriptive term for a pain amplification syndrome characterised by widespread medically inexplicable pain associated with emotional distress, insomnia and muscle tenderness. It is not a diagnosis of physical pathology.
. . .
There is no evidence of any loss of body function. It is implausible that the spinal changes are due to trauma.
. . .
This is a chronic pain syndrome of fibromyalgia type – it is genuine pain without pathology.
. . .
I’m sure she is in genuine pain but the prognosis is not really determined now by injury.”
Discussion and Conclusions
35 Mr Moulds, who appeared for the defendants, focused in his final address upon the diagnoses of the various doctors who had examined the plaintiff. In particular, he submitted that Dr Kioussis was over-sympathetic to the plaintiff, in that he has recently upgraded her mental state from anxiety to major depression and anxiety, and states that the plaintiff is suffering from left sciatica, whereas Mr Xenos and Mr Jones, specialists in the area, dispute this. He relied upon the various references in the medical evidence to the presence of non-organic factors in the plaintiff’s presentation.
36 He submitted that while the plaintiff may have a minor L5-S1 disc abnormality which was the initial cause of her lower-back pain, non-organic factors have now taken over.
37 He submitted that “when judged by comparison with other cases in the range of possible impairments or losses of a body function” the plaintiff’s injury could not be described as “serious”. He relied upon the comment of Ormiston JA in Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357 at 359, that a comparison is to be made not just with other lumbar-spine injuries but:
“... by comparison across the whole range of possible losses or impairments of body functions and thus not confined to a specific body function.”
38 I accept this test as being applicable. Nor is the comparison just to be made with cases which come before the Court.
39 He relied upon the fact that the plaintiff is working full-time as a nurse as being inconsistent with her having suffered a serious injury. He referred to the obiter comment of Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, at para 24:
“If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’.”
40 He also relied upon videos of the plaintiff taken on several occasions between 2 October 2008 and 1 December 2008 showing the plaintiff appearing to move without restriction, and on one occasion running. The plaintiff readily agreed that the video footage showed her jogging and running and walking briskly.
41 Mr Moulds also relied upon affidavit material of Janet Elizabeth Courtot, Nurse Unit Manager of Newborn Services at Monash Medical Centre, the plaintiff’s superior. She stated that the plaintiff was performing the normal duties of a nurse in the neonatal intensive care unit at the Monash Medical Centre and that she was not subject to any work restrictions or job modifications, and that she was satisfactorily performing her nursing duties, and she was not aware of the plaintiff having any difficulties in performing her duties.
42 Mr Moulds also relied upon the fact that the plaintiff has been able to take four overseas trips since the incident.
43 There are, in my view, a number of responses which can be made to Mr Moulds’ submissions.
44 Firstly, this is not “a trial by doctors’ opinions” – see Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, at paragraph 17, per Ashley JA. In this context, it is relevant that I found the plaintiff to be a credible witness who was not, in my view, shaken in cross-examination. Mr Moulds conceded that there were no substantial credit issues so far as the plaintiff was concerned, although he submitted that the plaintiff was less than frank in answering questions in cross-examination in relation to the video footage. I do not accept this. I accept the plaintiff’s evidence that she suffers fairly constant pain while working, and only takes sick leave when the pain level increases to such an extent that this is necessary.
45 I accept the submission of Mr McCredie, who with Mr Nettlefold appeared for the plaintiff, that the preponderance of medical opinion is that the plaintiff did suffer a discal injury and continues to suffer from it.
46 Mr Stevenson, in my view, focuses excessively upon objective factors such as opinions in medical journals rather than upon the plaintiff subjectively. His report is not in line with the preponderance of medical opinion referred to above, upon which I rather rely.
47 It is clear, on the medical evidence, that the plaintiff has suffered a discal injury, even if minor (Mr Moulds virtually conceded this), even though there may be non-organic factors present – see Jayatilake at paragraphs 19 to 30.
48 I note the pertinent comment of Buchanan JA in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, where His Honour stated, at paragraph 25:
“This was not a case that required the disentangling of the effects of physical and psychiatric conditions. Rather, the question was whether or not the respondent suffered from complex regional pain syndrome, which did have an organic or physical basis. … I consider that the medical evidence taken as a whole warranted the conclusion that the respondent’s foot injury produced a complex regional pain syndrome, that is, real, chronic and disabling pain, which was physical, not psychiatric, in origin. …“
49 I note, of course, the provisions of s.134AB(38)(h) of the Act.
50 Although the discal injury of the plaintiff may have been minor, it is necessary to focus upon the consequences of the injury. The oft quoted example of the concert pianist with an injury to his little finger is apposite.
51 Mr McCredie submitted that there were five consequences of which I should take account:
(1)
Interference with work and career prospects. As indicated, the plaintiff has been required to take time off work regularly on account of her lower back pain. In my view the plaintiff is well motivated towards work and is not to be penalised for this. Her need to take sick leave frequently on account of her lower back condition is indicative of the serious nature of her injury. She has indicated that she is quite tired after a day’s work. This causes her concern that she may not be able to continue working as a nurse for as long as she wished. She states that she wished to specialise in midwifery, an area associated with that in which she presently works. However, she feels she would be unable to work in this area, which requires more strenuous physical activity. Mr Jones, in his report, as noted, accepts that the plaintiff would not be able to work in certain areas of nursing.
(2)
The plaintiff states that her constant back pain was a contributing factor to the breakdown of her first marriage. She states that her husband was unhelpful and unsympathetic to her back condition.
(3) Her concerns about her capacity to bear and raise children. This is referred to in Dr Kioussis’s report which I have quoted above. She is concerned at having to reduce her medication were she pregnant. She has been told by Dr Kioussis that Valium could cause withdrawal symptoms for a baby, and that she would have to cease taking Nurofen Plus, which is her main medication, at 32 weeks. There would likely be problems in lifting and carrying a child with her back condition. The plaintiff’s husband, in an affidavit sworn 25 March 2009, confirms these concerns of the plaintiff and has indicated that on account of them they have deferred, for the present, starting a family.
(4) Diminution in sporting, domestic and social activities and driving. (5) The ongoing need for continuing medication and remedial massage, and the possibility of surgery in the future, given the comment of Mr Leitl that there is an increased degeneration demonstrated by the MRI scans from 2001 to 2008. 52 I accept these as consequences of her injury, together with the constant pain she suffers which is exacerbated with periodic flare-ups.
53 In all the circumstances, I am satisfied that there has been compliance with s.134AB(38)(b) and (c) of the Act.
54 I give leave to the plaintiff to issue proceedings for the recovery of damages with respect to pain and suffering.
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