Plessa v Ampy Email Products Pty Ltd
[2009] VCC 415
•30 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-00525
| MILLIE PLESSA | Plaintiff |
| v | |
| AMPY EMAIL PRODUCTS PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 April 2009 |
| DATE OF JUDGMENT: | 30 April 2009 |
| CASE MAY BE CITED AS: | Plessa v AMPY EMAIL Products Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0415 |
REASONS FOR JUDGMENT
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Catchwords: Accident compensation –serious injury- s.134AB(37)(a) and (c) of the
Accident Compensation Act 1985 – lumbar spine injury and adjustment disorder
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with | Holding Redlich |
| Mr G J Coldwell | ||
| For the Defendant | Mr P A Jewell SC with | Thomson Playford Cutlers |
| Ms F A Ryan | ||
| HER HONOUR: |
1 Millie Plessa seeks leave to bring proceedings under s.134AB(16)(b) of the Accident Compensation Act 1985 (the Act) in respect of an injury that arose in the course of her employment as a process worker with Ampy Email Pty Ltd (Ampy Email) and in particular, on or about 28 April 2004.
2 The plaintiff seeks to rely on both sub-paragraphs (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act.
3 There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;
(c) permanent severe mental or permanent severe behavioural disturbance or
disorder.”4 Leave is sought for both pain and suffering and pecuniary loss consequences.
5 In these types of applications, the Court of Appeal has made it clear in Barwon Spinners Pty Ltd & Ors v Podolak & Ors [1] that the correct template is firstly, to determine whether the plaintiff suffered compensable injury on or after the 20 October 1999; secondly, determine the nature of that injury and its consequences and finally, to confirm whether the consequences of that injury meet the statutory definition of serious injury.
[1] [2005] VSCA 33
6 Ms Plessa impressed me as being genuine. No real attack was made on her credibility or reliability. I regard her evidence as being both reliable and honest and shall act on it accordingly.
7 The plaintiff gave evidence assisted by an interpreter in which she adopted affidavit material[2] and was cross-examined. There was no other vive voce evidence. The parties then tendered medical reports and other material set out in the exhibit list attached hereto.
[2] Affidavits of the plaintiff sworn 11/10/07, 26/8/08, 6/4/09
8 The defendant made admissions concerning Ms Plessa’s attendances with doctors, including Dr Graham Boothby, occupational physician, on 22 September 2004 and 25 October 2005, and Dr Michael Duke, psychiatrist, on 25 January 2006, Mr David Conroy, general surgeon 10 July 2007 and Dr Stern, psychiatrist, 26 July 2007.
9 No reports from those doctors were relied upon by the defendant. In the absence of any explanation for the failure to tender those reports I infer the expressed opinions would not have assisted the defence case.
10 I note however the somewhat dated nature of those attendances and confirm that the conclusions that I have ultimately reached rely on the plaintiff’s evidence and the more recent medical reports tendered in these proceedings.
The parties submissions
11 Mr Mc Garvie, SC, appeared on behalf of the plaintiff. He submitted that the claimed physical injury is a spinal injury being left L4-5 disc prolapse with associated neural compression. The impairment of body function relied upon in this case is to the lumbar spine. The claimed psychiatric injury is reactive depression.
12 Mr Jewell,SC, on behalf of the defendant, did not seek to challenge the fact that the plaintiff suffered compensable injury as a consequence of which she suffered physical and psychiatric consequences.
13 The plaintiff submitted a WorkCover claim form on 3 May 2004 and liability was accepted on 22 July 2004.[3] Liability was accepted pursuant to s.98C of the Act on 13 June 2007 with respect to a low back injury and anxiety and depression which the plaintiff claimed to have sustained due to employment with the defendant on 28 April 2004.[4]
[3] Cambridge Integrated Service letter to plaintiff dated 22 July 2004 (PCB 137)
[4] PCB 141
14 There was considerable debate about whether Ms Plessa’s injury was as a result of injury on 28 April 2004 or whether it is an injury that arose out of or in the course of the plaintiff’s employment and in particular, on the 28 April 2004.
15 Mr Jewell focussed his submissions on what the Court should do if leave is granted to commence proceedings. His primary submission was that there was a discrete one-off injury to the low back occurring on 28 April 2004 having the identifiable consequences which followed. He sought to limit any leave to injury suffered on 28 April 2004.
16 He contended that the plaintiff, prior to that date, had a low grade level of back symptoms which did not interfere with her life in terms of pursuing her home life and her recreational activities nor did it impede her capacity for work.
17 He submitted that there is no sufficient evidence in this case to causally connect the course of employment from 20 October 1999 through to 27 April 2004 with the event that occurred on 28 April 2004.
18 He urged a finding that the plaintiff’s condition, pre-existing 28 April 2004, had stabilised, notwithstanding the progression of the tear in the annulus revealed by the comparison of the results of the CT scan taken in 2002 compared to the one taken 27 April 2004.
19 Mr Mc Garvie strenuously resisted the defence submission that leave should be in some way limited to a one-off injury on 28 April 2004 having the consequences which followed.
20 He submitted that the remarks made by Ashley JA in Grech v Orica Australia Pty Ltd [2006] VSCA 172 in respect to the fact that there may be concurrent causes of a serious injury is highly relevant in this case. The plaintiff had been performing process work for the same employer for more than 10 years commencing in 1992 and had episodes of low back pain in 1994 and then again in 2002 resulting in a week off work and continued working up until 2004. In March and April 2004 she became significantly symptomatic in the context of lifting boxes at work. The plaintiff then sought treatment from her general practitioner, Dr Calcutt who ordered a CT scan.
21 The CT scan taken on 27 April 2004 shows at the L4-5 level there is left posterior disc protrusion impinging on the thecal sac and the left L4 exiting nerve root and probably the left L5 nerve root within the canal.
22 He submitted there is therefore evidence of significant pathology found by CT scan on the day before the sudden exacerbation of low back pain at work.
23 In essence, he submitted the cause of the plaintiff’s condition was not solely the incident of 28 April 2004 rather it was an evolving injury that progressed over a period as the radiology makes clear.
24 He submitted that if leave is granted that the plaintiff ought to have leave to recover damages in respect of injury suffered by her during the course of her employment with Ampy Email Pty Ltd on and after 20 October 1999, and in particular on or about 28 April 2004.
25 The Court must make a finding of what is the compensable injury post 20 October 1999 and then consider the consequences.
26 I am satisfied that this case is one where the plaintiff’s condition has evolved over time and can be distinguished from those cases where the plaintiff suffers two successive injuries and has to demonstrate whether the additional impairment produced by the second was in itself a serious injury. See Petkovski v. Galletti[5], Dalton v. Dandenong Scaffolding Hire Co Pty Ltd[6] and Lu v. Transport Accident Commission[7].
[5] [1994] 1 V.R. 436.
[6] [2003] VSCA 183.
[7] [2003] VSCA 195.
27 In the Court of Appeal’s judgment in Stojanovski v Bartter Enterprises (one of the appeals that made up Barwon Spinners Pty Ltd & Ors v Podolak & Ors (supra)), the issue here under consideration was discussed. At paragraph
[89] , Phillips JA, speaking for the Court, said: “ … as at present advised, we are not at all sure that whenever a worker is injured in the same body part in successive and similar incidents, close in time and while working at the same job with the same employer, such a fine analysis of before and after each incident is always required. It might be unfortunate for the worker if, despite the final consequences, each separate incident was ruled not to amount to serious injury, or even if the last was ruled to be serious injury because of the final consequences, the worker was not permitted to sue at common law for the earlier incidents which had perhaps brought him or her to a parlous state in the first place. The need to analyse the plaintiff’s condition, both before and after each incident causing injury was certainly recognised in Petkovski, Dalton and Lu, but, on further analysis, it might perhaps be that special considerations required such an approach to be taken in those cases. For example, in Petkovski the proposed defendant was the other driver in a motor vehicle accident, who obviously could be responsible only for the injury wrought in the accident. Perhaps much will ultimately be seen to turn on the precise nature and extent of the common law proceeding which the applicant for leave is proposing to bring if leave is granted. But we say no more about it because it does not matter in this case.”
28 Although those remarks were obiter, made as they were in a series of “test cases” concerning the operation of the s.134AB scheme, they are highly persuasive.
29 To seek to limit the plaintiff’s injury to the injury suffered on 28 April 2004 in the manner proposed by Mr Jewell would in my view be artificial having regard to the plaintiff’s work history, clinical history and treatment and the radiology tendered in this application.
30 In this case, as will often be the case in others where a number of insults to the same body part in similar circumstances have occurred throughout the course of employment with the same employer, and the injury is an evolving one, the task of analysis of the plaintiff’s condition before and after each insult is quite simply impossible.
31 Having regard to the totality of the evidence I am satisfied that the plaintiff has discharged the onus of proof in relation to both physical and psychiatric injury for both pain and suffering and loss of earning capacity consequences.
32 For completeness, I should say that on the balance of probabilities, I am of the view that the incident on 28 April 2004 resulted in, or materially contributed to, the condition of the low back in respect of which the application was made, and, if it were necessary, I would have granted leave to bring proceedings for both heads of damages in respect of that incident alone.
The evidence
33 Much of the background to this claim was not disputed. The plaintiff was born on 19 December 1961 in Shanghai, China and is currently 47. She is married and has twin daughters aged 10. She completed high school in China and subsequently undertook a two year course studying mechanical drafting. She worked in a factory in China before migrating to Australia in June 1989.
34 Upon arrival in Australia Ms Plessa worked at a biscuit factory in Epping for one to two weeks and then worked at Rockwell ABC in Preston as a process worker from July 1989 until July 1991. She commenced working at a clothing company in Thomastown as a factory hand from July 1991 until June 1992.
35 She commenced working with the defendant Ampy Email Pty Ltd (Ampy Email), the gas metering division of Email Westinghouse Pty Ltd, on 8 July 1992 as a process worker.
36 The plaintiff speaks English but does not read or write English very well. She has no trade qualifications or certificates recognised in Australia. She is a person of slight build.
37 Ms Plessa commenced her employment with Ampy Email in the diaphram section and then the regulator section. From about 1998 she worked in the meter section assembling indexes. Her normal hours were from 7am to 3.30pm and she also worked regular overtime weeknights and on Saturdays. Her work in the meter section involved working at a bench assembling components for gas meters. She was required to lift boxes of components and completed product.
What is the plaintiff’s post 20 October 1999 compensable injury?
38 The starting point is to consider the evidence and to determine the nature of the plaintiff’s physical and psychiatric injury.
39 The plaintiff first experienced back symptoms in 1994 whilst at work and attended the defendant’s first aid centre on a number of occasions. She kept working long hours and did not have any time off work related to her back condition until an episode of back pain that she experienced around May 2002 after lifting a box at work.
40 I am satisfied that the symptoms experienced in 1994 did resolve such that the plaintiff was able to continue to work on unrestricted duties.
41 Dr Calcutt, the treating general practitioner, noted in his report dated 20 February 2007 that Ms Plessa had a past history of low back pain in 2002. At that time a plain x-ray of the lumbar spine showed narrowing at L5/S1 disc space with marginal lipping and sub-chondral sclerosis. He treated the plaintiff with Celebrex. [8]
[8] PCB 61
42 Ms Plessa had a week off and her back pain improved such that she was able to resume work in normal duties.
43 Ms Plessa represented to Dr Calcutt complaining of back ache a few weeks before 28 April 2004. She attributed her back pain to working long hours with the defendant. [9]
[9] Plaintiff’s affidavit sworn 11 October 2007, paragraph 7.
44 In a letter to the plaintiff’s solicitors dated 20 February 2007, Dr Calcutt states that in fact the plaintiff had complained of low back pain for a few weeks prior to 28 April 2004 and when anti-inflammatory medication had not helped he requested a CT scan of her lumbar spine.
45 The CT scan was performed on 27 April 2004. The report states:
“CT scan lumbar spine.
Five lumbar type vertebrae. No abnormality of the facet joints at all levels. I note some narrowing of L4/5 and L5/S1 interspaces. No abnormality of L1/2, L2/3 nor L3/4 discs and good preservation of the epidural fat at these levels. At 4/5 level there is a left posterior disc protrusion impinging on the thecal sac and the left L4 existing nerve root and probably the left L5 nerve root within the canal. Slight effacement also of the thecal sac. At L5/S1 a moderate annular bulge with slight effacement of the thecal sac and some displacement of the epidural fat within the lateral recesses.”[10]
[10] PCB 61
46 On 28 April 2004 whilst working overtime Ms Plessa lifted heavy boxes containing plastic index covers from the floor onto a trolley. She was working alone. As she lifted the box she felt a click in her back and as she began to walk she felt pain and weakness in her left leg and had difficulty walking. That night she had difficulty sleeping due to pain and re-attended Dr Calcutt the following morning.
47 In view of the sudden exacerbation of her problem coupled with the CT scan findings Dr Calcutt referred Ms Plessa to Mr Tiew Han, a neurosurgeon.
48 Mr Han reviewed Ms Plessa on 7 May 2004 and 15 May 2004. He noted the history of acute back pain experienced at work on 28 April 2004 when Ms Plessa tried to pick up a box. She developed low back pain and weakness over the left leg. He also noted the history of experiencing back pain in 1994 and 2002 and that a CT scan performed in 2002 revealed a minor pinched nerve. She was treated analgesia and rest and the pain subsequently subsided. [11]
[11] PCB 37
49 He confirmed the CT scan 27 April 2004 revealed an L4/5 prolapse on the left side with possible impingement onto the L5 nerve root. He compared the 2004 scan to the CT scan performed in 2002. He confirmed it revealed progression of the prolapse. [12]
[12] PCB 38
50 An MRI of the lumbar spine undertaken on 7 May 2004 revealed a moderately large left paracentral L4/5 disc extrusion impinging on the L5 nerve root. He placed the plaintiff on a course of Prednisolone and Tramal. [13]
[13] PCB 38
51 When Ms Plessa was reviewed on 15 May 2004 the sciatica had improved. She was asked to complete the course of Prednisolone and to continue with Tramal. Mr Han has not seen her since.
52 Ms Plessa also consulted, Dr Parikh, general practitioner, over the years with respect to her back condition. In his report dated 21 February 2007[14] he recorded that Ms Plessa worked as a process worker with the defendant for at least 12 years. Her work since employment in 1992 involved the manoeuvring of weight all day. She started getting pain in the low back and legs in 1994. She continued working taking simple painkillers like Paracetamol on and off. She found that helpful and could put up with the pain in the back and legs.
[14] PCB 77
53 He treated her in relation to the earlier 2002 back injury. On 4 May 2002 he noted the history of pain in the lower back with stiffness and pain radiating to the lower extremity. He arranged a CT Scan of the lumbar spine.
54 The report states:
07/05/2002 CT LUMBAR SPINE (SERIES 1)
Clinical Notes: Pain and stiffness.
Report: Examination was performed from L2 to S1. Mild to moderate diffuse annulus building is seen at L4/5 and L5/S1.It is slightly more prominent to the left at L4/5 and posteriorly at L5/S1. No significant pressure effect noted. The L2/3 and L3/4 disc margins are normal. The canal dimension is generous. The intervertebral foraminae are not narrowed. No spondylolysis or significant facet joint arthritis.
CONCLUSION:
Mild degenerative changes.
55 Dr Parikh informed Ms Plessa that she suffered from lumbosacral strain related to her manoeuvring of weight and work at her place of employment. He prescribed Feldene. He noted that she felt better and continued to work as usual.
56 The plaintiff represented on 12 June 2004 at which time she described worse pain in the low back and legs following manoeuvring of boxes at work in April 2004. Her pain in the lumbosacral region radiated to the left buttock and left leg on and off. She could not manoeuvre any heavy weight or perform activities that required heavy bending, long standing and long distance walking.
57 Dr Parikh diagnosed lumbosacral strain with disc pathology and nerve impingement syndrome, sciatica, anxiety and depression. He considered that the diagnosed injury is consistent with the stated accident and the nature of her work and that employment is a major significant contributing factor for the diagnosed injury.[15]
[15] PCB 89
58 In his follow-up report dated 27 August 2008, Dr Parikh confirmed that Ms Plessa’s condition remains unchanged and she continues to suffer from the previously diagnosed condition. Ms Plessa is managed conservatively. Surgical treatment was recommended but declined.
59 He does not consider Ms Plessa fit to resume activities to pre-injury level and she is unfit physically to resume any kind of work. He considered the condition is unlikely to improve in the near future. This is reiterated in his most recent report dated 19 March 2009.
60 Ms Plessa became increasingly depressed and was referred to Dr White initially and then to Associate Professor Eng-Seong Tan, for psychiatric assessment and treatment for anxiety and depression.
61 Dr Gregory White, consultant psychiatrist, reviewed Ms Plessa on 14 December 2005. He diagnosed major depressive episode and increased her medication, Luvox, to 150mg daily.
62 He considered that Ms Plessa’s prognosis was good provided the plaintiff is able to remain free of pain. Whilst she continues to suffer chronic pain the prognosis is guarded. He confirmed that the plaintiff has no capacity for work.
63 Associate Professor Eng-Seong Tan’s report dated 20 April 2008 confirms that he continues to treat the plaintiff for treatment for depression secondary to back pain. The plaintiff is suffering from depressive disorder secondary to chronic and intractable pain. He prescribes Cipramil, an anti-depressant. He considers that the depression is most likely to persist as long as the back is painful.
64 Mr Myron Rodgers, neurosurgeon, reviewed the plaintiff on 3 July 2006. He noted her major problems were of low back pain and sciatica and an MRI scan of the lumbar spine performed in April 2005 demonstrated significant degenerative changes with associated neural compression at L4/5 and L5/S1 levels.
65 He recommended a two level posterior lumbar decompression with complete discectomy, interbody grafting, internal fixation and posterior lateral bone grafting. The plaintiff declined surgery. He considered the plaintiff’s overall prognosis to be poor. [16]
[16] PCB 69
66 Dr Terence Lim, consultant in rehabilitation and pain medicine, reviewed Ms Plessa for assessment and management of her chronic pain condition. He assessed her on 2 February 2006 and noted that spinal surgery was proposed but Ms Plessa decided not to pursue surgery. He has not seen her since 20 July 2007.
67 Dr Lim confirmed that Ms Plessa has lumbar disc degeneration and prolapse at L4/5 with impingement on L5 nerve root. He opined that she developed a chronic pain disability as a consequence of suffering from persistent pain and still being extremely anxious of the possibility of another occurrence of intervertebral disc prolapse.
68 He makes this comment concerning causation. “The sudden severe increases in pain in both 2002 and 2004 indicated to him that most probably she had suffered recurrent episodes of disc prolapse most likely at the previous level of the L4/5 intervertebral disc.”[17]
[17] PCB 7B
69 He considers the plaintiff’s prognosis to be poor. He did not consider she had any capacity for work due to a combination of medical, physical and psychological factors. [18]
[18] PCB 76
70 Insofar as the physical condition is concerned Ms Plessa has been reviewed by a number of medico-legal specialists.
71 Mr Kenneth Brearley, surgeon, reviewed the plaintiff on 17 June 2004 on behalf of the Workcover agent. He took a history, conducted an examination and viewed the images of the CT scans and MRI. He considered the plaintiff suffered a significant injury to the L4/5 intervertebral disc. [19]
[19] PCB 33
72 In his opinion the MRI of 7 May 2004 shows reduced disc height at L5/S1 and a large left paracentral L4/5 disc extrusion impinging on the left lumbar nerve root. He considered employment is a significant contributing factor to the injury occurring.
73 His opinion on causation is that the plaintiff has been employed by the defendant since 1992 and has worked full-time as a process worker. In the first few years the work was of a heavy nature whereby she had to lean forward and significant lifting was involved as has been described in the history he recorded. During the latter years the repetitive lifting was eliminated but she did occasionally have to do some heavy lifting of components.
74 It was whilst doing this she suffered the more important and final back injury on 28 April 2004. Prior to that date she had back discomfort and pain over the years presumably as a result of her leaning forward for long periods and doing the lifting involved. If she had not been doing this work it was unlikely that she would have developed a disc prolapse.
75 He considered that minor injury has occurred to the annulus of the disc over the years and the final lifting episode on 28 April 2004 caused significant damage to the annulus whereby prolapse of the disc has occurred.[20]
[20] PCB 33
76 In a supplementary report dated 13 July 2004, Mr Brearley states “it was known that she had a back problem prior to the acute exacerbation and accordingly the fact that the CT was taken the day before she had this major episode does not alter the general thrust of the previous report nor in fact the details of it and the conclusions reached”.
77 Mr Brearley’s opinion is that the injury has resulted in an incapacity for employment since 28 April 2004 and the plaintiff does not have a capacity to undertake pre-injury employment. He considered the plaintiff was fit for work of a very light part time nature. He considered then there was a strong probability of some impairment.
78 Mr B Kavar, neurosurgeon, reviewed Ms Plessa at the request of the WorkCover agent, Cambridge Integrated Services, on 8 June 2005. He was provided with the history of injury during 2002 and 2004. He confirmed that she has clinical and radiological evidence of L5 radiculopathy from an L4/5 disc prolapse that has been precipitated by the nature of her work which involved heavy lifting.[21]
[21] PCB 41
79 Mr Kavar’s opinion is that the plaintiff she had significant back pain though her leg pain appeared to have improved. He did not consider she was able to return to her pre-injury duties that would involve heavy lifting and repetitive bending. He considered the plaintiff had permanent impairment of the L4/5 disc.[22]
[22] PCB 42
80 Mr David Brownbill, consultant neurosurgeon, also saw Ms Plessa at the request of the WorkCover agent. He first reviewed her with an interpreter on 3 August 2005.
81 In his opinion there were marked changes of intervertebral disc derangement demonstrated at L4/5 and L5/S1 levels with disc prolapse at L4/5. He recorded the previous history of back pain in 1994, the incident in 2002 with intermittent pain thereafter and the incident on 28 April 2004. He stated that on the information provided the described work activities have been a significant contributing factor the disc derangement.[23]
[23] PCB 45
82 He considered that Ms Plessa does not have a capacity to undertake pre- injury employment.
83 He recommended that the plaintiff avoid any activities involving lifting, twisting or bending or prolonged sitting or standing and that she is not capable of working in her pre-injury duties. He postulated a return to work on a graduated basis under close medical supervision but was uncertain whether she was capable of suitable duties.
84 He considered ongoing pain may be anticipated to occur in a fluctuating manner indefinitely and the injury resulting from disc derangement is permanent.
85 Mr Geoffrey Klug, neurosurgeon, provided a medico-legal report to Holding Redlich dated 30 May 2008 following his examination of the plaintiff on 22 April 2008.
86 He performed a clinical examination and reviewed the multiple investigations including CT of the lumbar spine performed 27 April 2004, an MRI shortly before the CT scan with a date of 7 May 2004, MRI performed on 21 April 2005 and also the plain x-rays performed on 29 January 2002.
87 His expressed opinion is that it appears likely as a result of the incident occurring during her employment in 2002 Ms Plessa did suffer significant aggravation of the low back this disorder leading to the development of increased pain. Investigations at that time, including the plain x-ray and CT scan, did show some changes particularly at L4/5 and L5/S1 levels which would be consistent with her complaints at that time.
88 It would appear that a very substantial further aggravation occurred as a result of the incident occurring on 28 April 2004. He considers it most probable that as a result of the incident there was a progression of the low back disorder leading to a frank disc protrusion at L4/5 on the left side. Such being responsible for increased pain in her back with referral pain to the left lower limb. He considered that the findings on imaging studies following the event substantiate this opinion.
89 Employment is a significant contributing factor to the plaintiff’s condition, in particular, the substantial disc prolapse at L4/5 level. In his opinion that was a consequence of the specific incident occurring on 28 April 2004. He considered the injury stabilised.
90 From a purely physical point of view he does not consider it possible that the plaintiff would return to her pre-injury work as a process worker and that in view of her background, training and poor command of English, it would be difficult to find the type of employment that would be within her physical capabilities.
91 Mr Michael Dooley, orthopaedic surgeon, examined Ms Plessa on 20 December 2007. He diagnosed as a result of the episode of 2004 in the background of underlying degenerative disc disease Ms Plessa sustained a left sided L4/5 disc prolapse resulting in further low back pain and sciatica.
92 He accepted in the work-related episode of 2002 Ms Plessa aggravated this underlying condition and that accounted for her ongoing intermittent low back pain following that episode.
93 His opinion is that the plaintiff has chronic pain syndrome in which the constancy and intensity of her ongoing pain are out of proportion to the underlying problem and that she exhibited abnormal illness behaviour.
94 Given the various clinical findings by the other specialists who have examined the plaintiff and the radiological findings that confirm a disc prolapse at the L4/5 level that is productive of chronic pain I consider that Mr Dooley’s opinion does not properly reflect the nature of the plaintiff’s physical condition and is too dismissive of the radiological evidence. No other doctor supports this contention. I reject his expressed opinion.
95 I further reject his opinion that Ms Plessa, is from an orthopaedic point of view, capable of carrying out light physical and clerical duties. He does not set out the basis for this finding. It ignores the plaintiff’s background, occupational experience and language problems.
96 In so far as the psychiatric condition is concerned Ms Plessa has been reviewed for medico-legal purposes by Associate Professor George Mendelson and Dr David Weissman, consultant psychiatrists.
97 Associate Professor George Mendelson reviewed Ms Plessa on 13 September 2007 and 16 January 2008. On both occasions he did not consider that she was clinically depressed or suffering from a psychiatric condition.
98 Dr Weissman reviewed the plaintiff at the request of her solicitors on 24 April 2008. He rejected the suggestion that the plaintiff is a person who presents with abnormal illness behaviour the term referred to in Mr Michael Dooley’s report.
99 He diagnosed Ms Plessa as suffering from a Chronic Adjustment Disorder with depressed and anxious mood of moderate severity. He strongly disagrees with Professor Mendelson’s expressed opinion.
100 He noted that Ms Plessa is on a very high dose of Cipramil anti-depressant, 80mg Nocte. He considered that Ms Plessa is very depressed, has passive suicidal ideation, is forgettable, socially withdrawn, has disturbed sleep and appetite, lowered self esteem and confidence, irritability and frustration and appears very depressed, tearful, flat and distressed. He considers, due to the nature, severity and extent of the worker’s moderately severe reactive depressive syndrome and her distressed and tearful state that she has no capacity for work for the foreseeable future (indefinitely).
101 In the course of his submissions Mr Jewell made no reference to Professor Mendelson’s expressed opinion nor did he seek to contest the fact that the plaintiff has been diagnosed and treated for some time with respect to a psychiatric condition.
102 Professor Mendelson’s expressed opinion is against the weight of the psychiatric opinions that have been tendered in this application and therefore I reject his opinion and accept Associate Professor Eng-Seong Tan and Dr Weissman’s opinions.
Findings – injury
103 I shall first proceed to deal with the physical injury.
104 The consensus of medical opinion supports a finding that Ms Plessa suffered from degenerative disc disease of lower lumbar spine and in the work-related episode of 2002 this underlying condition was aggravated leading to the development of increased intermittent low back pain. Ms Plessa’s back condition became acute in the weeks leading up to the 27 April 2004 necessitating investigations by CT scan and culminating in injury on 28 April 2004.
105 I am satisfied that minor injury occurred to the annulus of the L4/5 throughout the course of employment in particular in 2002 and in the weeks leading up to 28 April 2004 and the final lifting episode on 28 April 2004 caused significant damage to the annulus whereby prolapse of the disc has occurred.[24]
[24] PCB 33
106 This is consistent with the findings recorded on the CT scans taken on 7 May 2002 and 27 April 2004, the clinical findings and history taken by Dr Calcutt and Dr Parikh and the majority of the medical opinions. I refer to the evidence of Mr Han[25], Mr Brearley26, Mr Kavar27, Mr Dooley[28],Dr Brownbill [29]and Dr Lim30 .
[25] Paragraph [49] 26 Paragraph [75] 27 Paragraph [78]
[28] Paragraphs [91] & [92]
[29] Paragraph [81] 30 Paragraph [68]
107 I am satisfied that the plaintiff suffered compensable injury on or after 20 October 1999, being aggravation of degenerative disc disease and in particular, frank prolapse at the L4/5 level with referral of pain into the left limb, during the course of her employment with the defendant and in particular, on 28 April 2004 which resulted in or materially contributed to the consequences which Ms Plessa claimed constituted serious injury.
108 I am satisfied that the injury is permanent in the relevant sense.
109 I shall now deal with the psychiatric injury.
110 I am satisfied that the plaintiff is suffering from a chronic adjustment disorder with depressed mood and anxious mood of moderate severity.
Findings - pain and suffering
111 I accept the plaintiff's description of the impact both the physical and psychiatric injury has had upon her social, recreational and domestic activities. No significant issue of credit was raised in relation to the plaintiff’s cross-examination.
112 Ms Plessa is required to take regular pain relief medication and
antidepressant medication for her compensable injury. This will continue into
the indefinite future. For a person aged 47 this is a serious consequence.
113 The plaintiff’s life is one of social isolation. Her capacity for employment is lost. This contrasts to her life prior to injury where she regularly worked including overtime, managed her family responsibilities. The prognosis for recovery is poor and the plaintiff will likely require long-term pain management and conservative treatment together with psychiatric treatment.
114 Mr Edward Plessa attests in his affidavit of 26 August 2008 to the dramatic change in his wife’s physical and psychological well-being following injury. He described his wife as a completely different person. She is unmotivated and lives a reclusive existence. She has chronic pain. She is required to take mediation to manage the pain and depression, She suffers stomach upset and constipation from the medication. Their physical relationship has changed. She sleeps poorly and has difficulty getting comfortable in bed. She suffers from increased moodiness and irritability. I accept his uncontradicted evidence of observations concerning the consequences of injury.
115 The plaintiff has not been able to return to work since 28 April 2004. She received Workcover weekly payments of compensation between 28 April 2004 and 22 April 2006. All the doctors agree that the plaintiff has no capacity for her pre-injury employment.
116 I specifically state that I have not included psychological or psychiatric consequences of her physical injury when assessing permanent serious impairment or loss of a body function (see s.134AB(38)(h)). I have only taken into account pain and suffering from organic injury to the back.
117 I am satisfied the impairment or loss of body function of the back has resulted in pain and suffering consequence which is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable (see s.134AB(38)(c)). The plaintiff therefore has established serious injury with respect to the physical injury for pain and suffering.
118 I consider that the plaintiff’s chronic adjustment disorder with depressed mod and anxiety does satisfy the requirements of paragraph (c) the definition of serious injury found in s.134AB(37), namely, that she has a permanent severe mental or permanent severe behavioural disturbance or disorder.
119 I have considered the tests set out in s.134AB(38)(d) and I am satisfied after making the required comparison with other cases in the range of possible mental behavioural disturbances and disorder that the plaintiff has discharged the onus and burden of proof and she has satisfied the test in so far as pain and suffering consequences for the psychiatric injury.
Findings – loss of earning capacity
120 I have had regard to s.134AB(19)(b) which provides that the plaintiff, for the purposes of proving the relevant loss of earning capacity, bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment, including alternative or further or additional employment and the extent of such inability.
121 I am satisfied the plaintiff has satisfied this onus in respect of both the physical and psychiatric consequences of her injury.
122 The plaintiff by reason of her injury has been unable to return to work in her pre-injury position at Ampy Email Pty Ltd. There is a consensus of medical opinion that states she will not be able to do so.
123 There is a reference to Ms Plessa being able to perform part time very light duties. This is not a realistic assessment of Ms Plessa ability to undertake suitable employment at this time. Ms Katrina Henderson, Occupational Therapist, completed a vocational assessment dated 18 August 2008 following an interview with the plaintiff and a thorough review of all the material.
124 Ms Henderson concludes that “no occupation for which the plaintiff is likely to qualify meets the definition of “suitable employment’ and it is likely this situation will continue indefinitely[31]. That is consistent with the expressed opinion of Dr Parikh, Mr Klug and Mr Han.
[31] PCB 120
125 I accept that assessment based on my own observations of the plaintiff throughout the course of the hearing and the medical evidence.
126 Dr Parikh, the treating general practitioner, has known Ms Plessa over many years and I prefer and accept his expressed opinion.
127 In relation to the psychiatric condition I prefer and accept the expressed opinion of Dr Weissman. He considers that the plaintiff has no capacity to engage in her pre-injury employment or similar duties or to engage in employment be it full-time or part-time attributable to the plaintiff’s psychiatric condition.
128 I consider that the nature of the plaintiff’s psychiatric condition is of such severity that she has functional impairment that precludes her from being fit to undertake suitable employment as defined in the Act.
129 I am satisfied that the plaintiff’s ability to undertake suitable employment has been permanently destroyed from the perspective of a consideration of the physical injury and the psychiatric injury each considered separately.
130 I find that the figure of $906 gross is the figure which most fairly reflects her “without injury” earnings. I accept that her “with injury” earning capacity is now zero. Ms Plessa has therefore satisfied me that she has proved a loss of earning capacity of 40% or more and that therefore she has established that her has a serious injury based on pecuniary loss under s.134AB(38)(e).
131 I am satisfied that the plaintiff has also discharged the burden of proof in this regard both in relation to the “severe” test and in relation to the factors set out in s.134AB(38)(e)-(g).
132 Leave is granted to the plaintiff to bring proceedings to recover damages in respect of injury suffered by her during the course of her employment with Ampy Email Pty Ltd on and after 20 October 1999, and in particular on or about 28 April 2004 in respect of both the claimed physical and psychiatric injury for both pain and suffering damages and pecuniary loss damages.
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