Popadic v Cleandomain Pty Ltd
[2015] VCC 1274
•11 September 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-0115
| DUBRAVKA POPADIC | Plaintiff |
| v | |
| CLEANDOMAIN PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 July 2015 and 3 August 2015 | |
DATE OF JUDGMENT: | 11 September 2015 | |
CASE MAY BE CITED AS: | Popadic v Cleandomain Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1274 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left foot/lower left leg injury; spinal injury (particularly low back – paragraph (a) and paragraph (c) of definition of “serious injury” – whether the left foot injury and the low-back injury are organic injuries –– whether each of such injuries is “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [60] – [64]; Acir v Frosster Pty Ltd [2009] VSC 454;
Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230
Judgment: Leave to the plaintiff to bring proceedings for both pain and suffering damages and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Gorton QC with Mr D Churilov | Zaparas Lawyers |
| For the Defendant | Ms M Britbart | IDP Lawyers |
HIS HONOUR:
1
By way of Originating Motion filed on 4 March 2014, Dubravka Popadic (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings for a lower left leg/left foot injury (“the left foot injury”) and a spinal injury, particularly the low back (“the low-back injury”) suffered by her during the course of her employment with Cleandomain Pty Ltd (“the defendant”) on
25 January 2012 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act.
3 The plaintiff and her general practitioner, Dr Anthony Chan, gave evidence and were cross-examined. Each party tendered a number of documents.[1]
[1]See Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the left foot injury and or the low-back injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
5 The plaintiff fundamentally relies on paragraph (a) and, if necessary, paragraph (c) of the definition of “serious injury” contained in s134AB(37) of the Act.
These paragraphs read:
“‘serious injury’ means–
(a) permanent serious impairment or loss of a body function; or
...
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; ... .”
6 The part of the body said for the purposes of paragraph (a) in respect of the left foot injury is the left foot. Similarly, the part of the body said to be impaired for the purposes of paragraph (a) in respect of the low-back injury is the low back and more generally, the spine.
7 It was common ground that it is not permissible to aggregate several impairments, or injuries to several body functions, which are not serious into an overall, serious impairment.[3]
[3]See Humphries & Anor v Poljak [1992] 2 VR 129 at 138; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at [23]
8 The mental or behavioural disturbance or disorder for the purposes of paragraph (c) was said to be the “pain disorder” experienced by the plaintiff if such condition was not recognised as an organic condition and dealt with under paragraph (a).
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)that the left foot injury and/or the low-back injury were each suffered arising out of, or in the course of or due to the nature of her employment with the defendant on or after 20 October 1999;[4]
(b)“the left foot injury” and/or “the low-back injury” and indeed, any disturbance or disorder under paragraph (c) must be “permanent” – that is, permanent in the sense that it or they are “likely to last for the foreseeable future”;[5]
(c)the “consequences” to the plaintiff of the “left foot injury” and/or the “low back injury” in relation to “pain and suffering” and “pecuniary loss” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked, and as being at least ‘very considerable’”;[6]
(d)the “consequences” to the plaintiff of any disturbance or disorder under paragraph (c) in relation to “pain and suffering” or “pecuniary loss” must be “severe” – that is, “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”[7]
[4]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at [33]
[6]See s134AB(38)(b) and (c) of the Act
[7]See s134AB(38)(b) and (d) of the Act
10
Section 134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies
sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[8]
[8]See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [60] – [64]; Acir v Frosster Pty Ltd [2009] VSC 454
11 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[9] to establish:
(a)that as at the date of hearing, she has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[10]
(b)that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[11]
[9]See s134AB(19)(b) and (38)(e) of the Act
[10]See s134AB(38)(e)(i) of the Act
[11]See s134AB(38)(e)(ii) of the Act
12 In determining the application, the Court:
(a)Must not take into account psychological or psychiatric consequences of “the left foot injury” and or the “low-back injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken or counted for the purposes of the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[12]
(b)Must make the assessment of a “serious injury” at the time that the application is heard;[13]
(c)Must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[14]
[12]See s134AB(38)(h) of the Act
[13]See s134AB(38)(j) of the Act
[14]See generally Hunter v Transport Accident Commission [2005] VSCA 1 at [23]–[36]
The issues
13 When queried as to what were the issues in dispute, counsel for the defendant asserted:
(a) In relation to the left foot injury, the plaintiff suffers no ongoing organic injury – such as Complex Regional Pain Syndrome Type 1 – or if so, any organic condition is overwhelmed by psychiatric factors. Her present condition does not prevent her working if she so sought to work;
(b) The defendant does not necessarily concede that the plaintiff suffered any type of low-back injury on 25 January 2012 or alternatively, if there was any particular injury, such injury could be characterised as no greater than a musculoligamentous strain with the presentation of the plaintiff exaggerated in relation to this particular “injury”;
(c) It does not follow that because there is no or no substantial organic component to either the left foot injury or low-back injury, that the plaintiff has a disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”.
The evidence of the Plaintiff
14
Save for some minor corrections, the plaintiff adopted her affidavit sworn on
22 October 2013 (“the first affidavit”) and on 8 July 2015 (“the second affidavit”).[15]
[15]In the third line of the third paragraph of the first affidavit, the plaintiff inserted the words “full-time” for where is situated the words “part-time”; in the second line of paragraph 10 of the first affidavit, the plaintiff changed “2012” to “2014”
15 By way of the first affidavit, the plaintiff gave the following pertinent evidence:
· She is presently forty-seven years of age, having been born in Yugoslavia in January 1968, and migrating to Australia with her parents in 1970.
· She completed Year 12 education in Victoria and then went to Croatia, where she lived with relatives and attended university for some periods, studying economics. During her first year of study, she met her husband, married, left university, and moved to Bosnia, where her first daughter was born in 1987. When war broke out in Bosnia in 1991, she returned to Australia with her husband and daughter.
· She continued to be married with now two daughters – one aged twenty-five years of age and one aged fourteen years of age attending school.
· On her return to Australia, she commenced work in 1992 and has had the following employment history:
(a) For about three years, she worked as machine operator at a plastic factory in Knox;
(b) She then worked for Tempo Services cleaning full-time at Dandenong Plaza, and in particular, the retail store, David Jones;
(c) For about four years, she worked at the Glen Shopping Centre, cleaning full-time;
(d) She then commenced work with Tempo Services at Westfield Southland Shopping Centre as a contract cleaning manager for about eighteen months, after which she worked as a contract cleaning manager at Westfield Fountain Gate for about five years;
(e) She then worked as a retail assistant/manager for Noni B Fashion at the Fountain Gate Shopping Centre for about two years;
(f) In or about September 2006, she commenced employment with the defendant working as a contract manager at Southland for about three years and in September 2009, was transferred by the defendant to Fountain Gate Shopping Centre as a relief contract manager for about six weeks and finally, on 2 November 2009, she was transferred by the defendant to work at Doncaster Westfield Shopping Centre as a contract cleaning manager.
· She describes the occurrence of “the injury” in the following terms:
“On the 25th January, 2012 in the course of my employment with the employer at the Doncaster Westfield Shopping Centre I was doing an inspection at about 8.30 am as part of the handover from the nightshift manager. Part of the inspection involved checking the cleaners area with offices, lunchroom and store area under the shopping centre mall. From this area there is a concrete service tunnel which goes around under the shopping centre to the outside of the centre. It is about 3 – 4 metres wide and about 3 – 4 metres high. It has a concrete floor. It is used by maintenance workers, cleaners, storemen and sub-contractors where authorized. It is also fire exit. It is usually clear although sometimes equipment such as transport trolleys, buggies and maintenance and cleaning equipment is there. As I walked along this tunnel during the inspection I stepped on part of a black broken tile which was lying on the floor of the tunnel. When I stepped on it the tile slipped and I rolled my left ankle and fell to the right side. I was immediately in a lot of pain in my left ankle area and also had pain in my right hip. I could not weight bear on my left foot. The night manager assisted me to a nearby lunchroom and I was given an icepack for my left foot.”[16]
[16]See Exhibit A at paragraph 4, PCB pages 22 – 23
· First aid was called, during which time the left foot had already begun to swell and she was in pain and perspiring. Her daughter drove her to the Box Hill Hospital, where she was examined, administered painkillers and underwent x-rays and a CT scan of the left foot. She was informed that she had a fracture in the left foot and her foot was placed in a “moon boot” and she was discharged from hospital that evening on crutches, at which time she was also aware of neck and back pain.
· She attended the Box Hill Hospital as an outpatient about three times over the next month and wore the moon boot and was on crutches for about six to eight weeks.
· She initially consulted the general practitioner, Dr Chan, at the St James Avenue Medical Centre on 3 February 2012, in preference to her usual doctor, Dr Anna Kucminska, because the plaintiff knew that Dr Kucminska did not like to deal with WorkCover patients.
· After about six or eight weeks, she was informed by the Box Hill Hospital to try and weight bear on her left foot and was provided a brace to support the foot and restrict movement of the ankle. When she first started to weight bear, this caused increased ankle pain and swelling and she was aware of “a bluish colour in a line around the left ankle bone and into the lower leg”.[17]
[17]See Exhibit A at paragraph 7, PCB page 23
· Because of increasing back and neck pain, Dr Chan arranged for her to undergo a CT scan of her back on 25 February 2012, an x-ray of her neck on 28 February 2012, a CT scan of her neck on 10 March 2012 and an MRI scan of her back on 22 March 2012.
· She was taking a lot of painkillers and in or about February 2012, she developed a further anal fissure – this had been a problem since 2008 – and was referred back to the surgeon, Mr Steve Cheng, who performed an anal sphincterotomy at the South Eastern Private Hospital on 23 May 2012. She as advised that this further anal fissure was due to the medication she had been taking for her injuries.
· Dr Chan referred her to the following people:
(a) The physiotherapist, Mr Eden Law, where she attended twice a week until July 2014;
(b) To the neurosurgeon, Professor R Bittar, who she saw on
29 June 2012 and whereafter Professor Bittar arranged a nuclear bone scan of her spine in July 2012. She deposes that Professor Bittar informed her that he did not think he could help her neck and back pain with any operation and that she see a pain management specialist (which WorkCover would not fund).
· She continued to have swelling and discolouration in her left foot and it felt “hot”. She was limping and favouring her left foot and could not return to work.
· On 5 July 2012, she went overseas to handle some “personal and financial affairs on behalf of my father who has partial dementia”, returning to Australia on 5 September 2012.
· Because of persisting difficulties in her left foot, Dr Chan referred her to the specialist vascular physician, Dr P Blombery, who she saw initially on 1 October 2012. She was informed that she has “Complex Regional Pain Syndrome Type 1” and thereafter, she continued to see Dr Blombery, initially on a monthly basis until the end of 2012, then every two months until June 2013 and since then, every three months. She describes having taken various different medications and is now taking Lyrica to help with her pain. Dr Blombery has wanted to do various infusions in hospital but WorkCover would not pay for such treatment.
· Because of increasing anxiety at the failure of symptoms to improve, she was having difficulty breathing at times and getting to sleep and Dr Chan referred her to the psychologist, Ms Amanda Wallis, who she first saw in early 2013. Since then, she has seen her usually monthly but occasionally fortnightly when she feels “more anxious”. Because of the breathing difficulties and some chest pain, Dr Chan arranged for her to have various heart tests in early 2013 but there was nothing found to be “obviously wrong”.
·
At the time of her first affidavit, she continued to see Dr Chan every three to four weeks for pain and intermittent bleeding from her backside,
Ms Wallis, the psychologist, every two to four weeks, and Dr Blombery every three months.
· Dr Chan and Dr Blombery prescribed the medication, which consists of 150 milligrams of Lyrica in the morning and evening; 150 milligrams of Tramadol slow release in the morning and evening, primarily for the left foot pain but also for back pain; Temazepam in the evening to help her sleep and Proctosedyle ointment and Rectogesia wipes for her anal fissure and fibre gel three times a day.
· In particular, the plaintiff deposes:
“I have pain in my left foot at the top of my foot below the instep and towards the outside of the foot which extends through the foot to the arch of my foot. The pain is worse if I put pressure on the foot particularly any sideways pressure. The pain spreads intermittently into my left heel and I can get a sharp pain in the outside of my left leg which goes all the way up to the hip. The heel and leg pain is most likely to come on with prolonged weight bearing.
If I am my feet for longer than about thirty minutes I want to get off my left because of increasing discomfort. I avoid running or walking quickly. The impact of my left foot on the ground causes too much foot pain. Any running or fast walking would also increase my back and neck pain. I try to avoid uneven ground and steps because of the left foot and back pain. Going down steps in particular causes increased left foot and back pain.
My left foot is swollen to some extent all the time around the outside of my ankle. This area also goes red and swells up more if I am on my feet for more than about 15 – 20 minutes. I also have a blue line which is also there to some extent all the time commencing under my left ankle bone and spreading up the outside of my left foot and leg about 10 centimetres. This line is about half a centimetre thick. It can be faint but with increased swelling of the left foot it becomes more obvious. Once I get increased swelling of the foot it usually lasts all day until I get off the foot for a few hours to sleep. There is also a hot burning feeling in the left foot when it is more swollen. The pain levels are higher. I tend to limp on my left foot to some degree at these times because of the increased discomfort with weight bearing.”[18]
[18]See Exhibit A at paragraphs 16 – 18, PCB page 26
· She has ongoing back pain in the form of an ache and at times the pain in her left foot seems to spread up her left leg and merge with her back pain. The back pain is worse with prolonged sitting and she needs to change her position after about 15 minutes.
· She continues to have intermittent bleeding from her backside, although it is just spots two to three days a month, and she wears pads all the time.
· She can drive an automatic car but has to get in and out carefully using her arms to take the weight off her left foot and back and she avoids trying to twist her back as this increases her back pain. She can only drive for about half-an-hour before wanting to stop because of increasing back, neck and left foot pain. She continues to have intermittent neck pain and headaches and if she turns her head too quickly, she makes the neck pain worse.
· She has difficulty getting to sleep and tries to lie on her right side with a pillow between her lower legs and under her right hip, which “seems more comfortable for my back and left foot”. The pillow between her legs supports the left foot, which is over in front of her right foot. She can usually go to sleep with Temazepam but wakes up after a few hours because of the left foot or back pain, although usually foot pain and sometimes both.
· The morning is the most painful time for her left foot and back, when the pains seem to “merge”, with her foot, back and neck all being stiff.
· She wears a brace on her left foot from the ankle to the toes, which compresses the foot to some extent, and limits the sideways and twisting stresses on it. She wears it during the day.
· She lives with her husband and two daughters and her parents are in a unit at the back of her premises. Although she does some cooking, her mother does most, whereas prior to the “injury”, she would do most of the cooking. She can put washing in the washing machine but tries to avoid this as it is front-end loader and she tends to use a dryer more, avoiding hanging clothes on the line which, if necessary, is done by her daughter or mother. Her daughter does the vacuuming and mopping, as the standing, bending and stretching would place too much strain on her left foot and back.
·
Prior to the injury, she used to go for walks with her husband after dinner three to four times a week on average and she does not do this now because of the injury. Her weight has increased from 95 kilograms to
105 kilograms, which causes her to become depressed.
· She socialises less and whereas she used to attend the Serbian Community Centre attached to St Stefan in Keysborough once or twice a week, at which time she used to dance and enjoy entertainment, she is unable to dance now and only rarely goes to such social activity.
· She believes she has become less patient, has difficulty controlling her moods, has periods of anxiety and becomes teary or angry easily. Because of ongoing left foot and back pain, sexual activity with her husband has become infrequent.
· Prior to sustaining her left foot and low-back injury, she was earning approximately $1,448.00 gross per week with the defendant (which includes the use of a motor vehicle).
16 By way of her second affidavit, the plaintiff gave the following pertinent evidence:
· When working for the defendant as a full-time venue manager, her duties included performing two daily site inspections or walk-throughs, which could take up to two hours at a time. She also had to perform additional inspections as required and sometimes her whole working day was taken up with performing site inspections.
· Her work duties with the defendant also included handling any site issues (for example rosters and ordering of consumables and having meetings with the management of any particular shopping centre as required). When at work, she was required to stand, walk around, go up and down stairs and sit down on a repetitive basis each day. On most days, she spent more time on her feet and walking around than sitting down, although she did do some administrative work relating to rosters an schedules of cleaning et cetera.
· When she did attend the Box Hill Hospital immediately after the occurrence of her injury, she also underwent x-rays of her low back and left foot.
· She notes that she has been shown a clinical note of Dr Anna Kucminska, general practitioner, dated 20 January 2012, which in part relates to a back complaint, and deposes she does not specifically recall this attendance or her complaints at that time. She does not recall being prescribed any medication by Dr Kucminska although she notes that she did experience some low-back pain associated with walking around at the shopping centre in the course of her employment with the defendant.
· Dr Chan was her husband’s usual treating general practitioner, and she had known him for many years prior to first attending Dr Chan for treatment following the fall at work.
· Although she was originally prescribed painkillers such as Panadeine Forte after the fall at work, such medication made her constipated and she developed an anal fissure.
· Prior to 2008 she had experienced anal pain and rectal bleeding intermittently over many years and believed she underwent a colonoscopy in the late-1990s. In about October 2008, she attended the general surgeon, Mr Steve Cheng, who performed another colonoscopy a few weeks later, followed by an anal sphincterotomy in about late-October 2008. She describes that following these procedures, she experienced improvement in her symptoms but in early-2010 developed a recurrence of symptoms due to being constipated. She re-attended Mr Cheng in early-June 2010, who recommended conservative treatment with cream. She had not attended Mr Cheng from early-June 2010 until about March 2012. She re-attended Mr Cheng in mid-September 2012 after returning from overseas, as she had experienced rectal bleeding on several occasions, and also attended him in February 2013 after experiencing rectal bleeding and pain about one week earlier.
· When she attended Dr Blombery in late-January 2014 as a result of experiencing ongoing left foot/ankle pain as well as lower back pain with associated physical restriction, Dr Blombery re-applied to the issue of her funding of an epidural clonidine/morphine infusion, but such funding was refused.
· In about mid-March 2014 she had a fall at a shopping centre when she slipped on some liquid and fell onto her backside. Following the fall she experienced swelling and pain in her left foot as well as some left knee pain and later felt gradually increasing lower back pain in the area of her coccyx. She attended Dr Chan that evening and was prescribed medication and referred for x-rays of her lower back, left knee and left foot, which were undertaken several days later.
· Over the next couple of weeks following the fall in mid-March 2014, she began experiencing somewhat greater intensity of pain in her lower back (in the area of the coccyx), her left foot superimposed on the pain which she had felt for over two years following the injury. She describes how her left knee gradually improved during the next few weeks, although the fall in about mid-2014 also affected her already compromised ability to sleep during the night. She attended Dr Blombery in mid-May 2014 and mid-November 2014, with continuing pain in her left foot, and also experienced colour changes and swelling in her left foot.
· She also attended Dr Blombery in mid-May 205, continuing to experience pain in her left foot as well as lower back pain radiating down both legs. At that time Dr Blombery prescribed Palexia, 50 milligrams medication, which she commenced taking.
· In about June 2014, Mr Cheng performed another colonoscopy.
· She attends Dr Chan, Ms Wallis and Dr Blombery about once per month. She takes the following medication:
- Lyrica, 150 milligrams three times per day;
- Palexia, 100 milligrams two times per day;
- Tramadol, 200 milligrams two times per day;
- Temazepam, 10 milligrams at night when required;
- Dulose Lactulose, oral liquid, 20 milligrams two times per day
- she continues to use Proctosedyl cream and Rectogesic wipes for her anal fissure issues
·She continues to suffer constant left foot/ankle pain of varying intensity, which worsens with a change of weather and cold temperature. She also experiences swelling in her left foot ankle, which is worse after walking around or being on her feet, and is generally relieved by the elevation of her left leg. She also experiences numbness and colour changes in the left foot/ankle, and at times they feel hot. She walks with a limp and tries to avoid placing pressure on the side of the left foot. She tends to place pressure on her heels when walking to avoid aggravating the pain in her left foot/ankle, however finds walking in such a manner aggravates her lower back pain.
·She does not wear the left foot/ankle brace every day, but believes she wears it most days. She continues to experience daily lower back pain of varying intensity which radiates down her legs to the feet. Her headaches have become more frequent and intent.
·One of her daughters has moved out and she does less cooking now because of the prolonged standing, which aggravates the pain in her left foot/ankle and lower back. Her younger daughter has stopped going to dancing classes due to her school studies and she (the plaintiff) continues to attend the Serbian Community Centre sporadically, mainly for religious celebration activities.
·Since suffering the injury she has become irritable, anxious and depressed, feeling lethargic during the day and lacking motivation.
·In relation to the earliest stated figure of $1,448 gross per week, such sum includes a car allowance component of $134 gross per week.
17 Under cross-examination, the plaintiff gave the following salient evidence:
·
She underwent physiotherapy for a few months after the injury with
Mr Law, after which she ceased. She resumed physiotherapy for about three or four months, ceasing in or about June or July 2014.
·The plaintiff explained that, in her role as a supervisor or a manager, she will be in charge of a team of cleaners coming in to clean a specific site at specific times. She was referred to her last period of employment at Westfield in Doncaster, and accepted that her employer had a contract to clean the whole Centre.
·The plaintiff accepted that she had responsibility for administrative tasks in her role as a manger – for example, working out the rosters for the various cleaners and preparing various reports relating to cleaning standards at the shopping centre. Such work involved inspections and the requirement to walk around the Centre, going into bathrooms and all sorts of parts of the Centre.
·She had an office onsite at Westfield in Doncaster where most of the administrative work was undertaken. Some of that administrative work involved the use of a computer, and she accepted that she is familiar with the use of computer.
·She had to have knowledge of occupational health and safety procedures and various safety manuals, and had undergone some training in relation to those matters.
·The plaintiff advised that she had been performing that type of work as a manager from about 2000 or 2001, save for a break of about two years when she worked in a retail shop.
·For about six to eight weeks after the injury, she had a cam boot on her left foot and also required the use of crutches to avoid weight-bearing on the left leg. After that period, a specialist at the hospital suggested she commence to start weight-bearing slowly.
·It was explained to her that she had suffered a fracture of the cuboid bone on the outer part of the left foot.
·The plaintiff accepted that she had been told within a few months of the injury that the actual fracture had apparently healed, as demonstrated on x-ray.
·The plaintiff accepted that, in about mid-2012 – about six months after her injury – there were some discussions between the return-to-work people and the employer, and her general practitioner, about trying to get back to some work. She also accepted that the jobs offered could have either been administrative duties at head office or, alternatively, resume duties at Westfield, Doncaster, but in a modified way with some sort of buggy. She also accepted that the administrative duties would commence for only a few hours at a time to see how she went.
·In particular, the following evidence was given:
“Q:Did you think at that time that you were capable of having a go at doing some administrative work for a few hours at a time?
A: No.
Q: What was the reason for that?
A: Because of the pain in my lower back and my left foot.
Q: How did your foot pain stop you from doing work at a desk?
A: Well, the throbbing, the swelling, needing to elevate it. Yeah.
HIS HONOUR
Q:When you say ‘need to elevate it’ is that something you were told to do or something you found gave you relief?
A: I was told to do that by the physiotherapist.
Q: Did it give you any relief when you elevate it?
A: Yes, the swelling does come down.
MS BRITBART
Q:You weren’t having your foot elevated all the time though were you?
A:No.
Q:So you could’ve had a go at doing say a couple of hours of work and then sitting down to elevate your foot?
A:No at that period no.
Q:Why is that? Why would you not have been able to do that at that period?
A:Because of my lower back sitting down was quite an issue.
Q:What was the issue about sitting down?
A:Pain to my lower back, sitting, having to sit on the side of one side of my buttocks.”[19]
[19]T38, L4 – 28
·When queried as to whether she wanted to go back to work, the plaintiff stated:
“I’ve always had a – I’ve never been out of work, I have always wanted to work”.[20]
·The plaintiff stated that her husband was not working in 2012 as he had been in a massive car accident in 2008, although he returned to work in 2013. In 2012 her two children were aged 25 and 14, with the 25-year-old being at university and the 14-year-old being at school, and both living at home.
·She stated that she has trouble walking around, being on her feet for long periods of time and if she walked around for a while she would have to sit down.
·The plaintiff was shown video taken on 22 June 2012 and then four days later on 26 June 2012. That video film had been exchanged prior to the hearing of the matter.
[20]T39, L19 – 21
18 On 22 June 2012, the video revealed the plaintiff standing and utilising a APM, walking various distances and browsing at various items on a display within a city retail store, seemingly with two other younger woman who were subsequently identified as her daughters. The video taken on 26 June 2012 showed the plaintiff arriving at a scheduled medical appointment as a passenger in a vehicle, walking in and out of the medical clinic and boarding the passenger’s seat of a vehicle.
19 When further cross-examined about the video, the plaintiff gave the following evidence:
· The plaintiff accepted that she was depicted in the video on both days.
· In relation to the video on 22 June 2012, she accepted that her daughter had driven in from Endeavour Hills to the city and that it could take up an hour to travel into the city,
· She arrived at about 11.30am and, with her daughters, did some shopping for clothes and so on at Myer.
· She agreed that she had the brace on her left foot and she stayed in the city with her daughters until about 3.00pm that afternoon, after which she went back to the car and went home.
· In particular, it was put to the plaintiff:
“Q:I suggest at that time – that is 22 June 2012, that was an outing that you were well capable of doing, being out for the majority of the day with your daughters and walking around.
A:I was going overseas and we went into the city to buy presents for my auntie.
Q:Right, but were there other occasions around that time that you went shopping with your daughters?
A:Not that far, no, but probably, yes yes.
Q:And that’s something I suggest that notwithstanding the problems with your foot, you have continued to be able to do – to go out with them, walking around and I …
A:I walked around – managed my pain. It was painful but I still walked around, yes.
Q:And able to walk out of the house, walking around with them for a number of hours?
A:Yes.
Q:That’s something you’re still able to do now?
A:Yes.”[21]
[21]T45, L21 – 7
20 Under further cross-examination the plaintiff stated:
· That in the video taken on 26 June 2012 she was walking quite differently, being a lot slower and limping significantly.
· She accepted that on that day she was attending a medical examination with a Dr Soliman, which had been arranged by the defendant.
21 Further, the plaintiff confirmed that at the time of her injury in January 2012, her mother and father were living with them at Endeavour Hills. The plaintiff gave evidence that her mother assisted her in various domestic tasks. The plaintiff accepted that when she saw Dr Soliman in June 2012, she told him that she was only able to, at that time, shower, make breakfast and coffee, but could not do much else. She also accepted that she told Dr Soliman that she could only sit for 20 minutes, stand for 20 minutes and walk for 20 minutes on and off. When queried about the film taken a few days before when she attended town, the plaintiff noted that she had a coffee break, she had a lunch break and she had to sit down a couple of times as well, although she could not say how frequently she did sit down.
22 The plaintiff stated that when she travelled overseas she has travelled by herself and her children took her luggage to the airport to be checked in and she was picked up at the other end with someone who also helped with her luggage. In particular, the following evidence was given:
“Q: How did you cope with that [the flight]?
…
A:As best I could. I took my medication that was prescribed to me. I walked up and down, obviously went to the toilet as much as possible, sat up, got up.
…
HIS HONOUR
Q:Just tell me – you may have mentioned this in your affidavit that the purpose of that trip was what?
A:My dad has dementia and he had early dementia, then he’s got land and property overseas in the ex-Yugoslavia, and while he was still able to …
Q: This is the father who was living at the house at?
A: My dad yes.
Q: Yes but he didn’t go overseas?
A: No.
Q: You went?
A: Yes.
Q: In his stead as it were?
A: Yes I did yes.”[22]
[22]T50, L18 – 31
The plaintiff also stated that since her return from that trip she has not looked for any type of work and, in particular, following evidence she was given:
“Q: What about sedentary work, administrative type work?
A: No I haven’t.
Q: Do you have any intention of looking for any work?
A: I hope so.
Q: But as it stands as of today, is it your intention to look for a job?
A: No.
HIS HONOUR
Q: And why is that?
A:The pain left, getting about movement, my lower back, my foot is quite painful at any given time. Levels of pain are different.”[23]
[23]T51, L22 – 29
23 The plaintiff explained that the present income to the household consists of her husband’s income and that she does not get any Centrelink benefits, although in the past her younger daughter has been paid a Youth Allowance.
24
The plaintiff confirmed that her previous general practitioner, Dr Kucminska, had been her general practitioner from about 2009, and before that she could not really recall which doctor she attended and thought it may be a clinic. She also confirmed that her present doctor, Dr Chan, had been the doctor of her husband from at least before his car accident in 2008, The plaintiff clarified the issue by saying prior to September 2009 when she commenced seeing
Dr Kucminska, she was attending the same clinic as where that doctor was situated, but seeing other doctors. She further explained that the clinic previously had been on Stud Road and then Dr Kucminska moved to Cleeland Street, Dandenong.
25 The plaintiff accepted that most probably she did not attend the clinic of Dr Kucminska during 2011 – that is to say, the year prior to her injury.
26 In particular, the plaintiff was queried about experiencing any lower back pain prior to the injury and the following evidence was given:
“Q:Prior to the fall at work, do you recall having back pain, lower back pain?
A:Yes.
Q:Can you tell his Honour about that please? What do you recall about that back pain that you had prior to the fall at work?
A:Just lower general back pain and shoulder pain that I experienced on and off.
Q: How long had you been experiencing that on and off?
A: A couple of months maybe a year.
Q: So up to a year?
A: Maybe yeah up to a year.
Q: So maybe sometime in 2011 it started?
A: Maybe yes.
Q:How often were you getting this lower back pain and shoulder pain?
A:Once or twice.
Q:Once or twice in that whole year?
A:Yeah I’d say so yeah.
Q:Did you see anyone for it?
A:No apart from Dr Anna.
Q:You say you saw Dr Anna, you don’t actually remember that do you?
A: I don’t remember it no, no.”[24]
The plaintiff was referred to the entry of Dr Kucminska of 20 January 2012, where the history is recorded as “moles on leg; back pain; left shoulder pain; lower back pain; walking around shopping centre”. The plaintiff accepted that she would not have gone to Dr Kucminska (but that she did not remember) unless the pain was bothering her. The plaintiff could not recall ever being referred to physiotherapy for her back prior to the injury. She did recall after being informed of the name, that she was referred to a Dr Greg Goodman, who was a skin specialist, which she thought was in relation to the moles.
[24]T58, L21 – 30 [?]
27 The plaintiff confirmed that, prior to her fall, her normal hours of work were from about a quarter-to-eight, to 5.30 or 6.00 pm. Furthermore, she was “on call 24/7” and, in particular, on call over Saturdays and Sunday. The plaintiff stated she would quite often go in for an inspection on a Saturday, especially in the morning.
28
The plaintiff stated that she first attended Dr Chan many, many years ago prior to the injury and then returned to Dr Chan approximately eight or nine days after the injury. She stated that she went to Dr Chan instead of going back to see
Dr Kucminska because she knew that Dr Kucminska did not like working with WorkCover patients.
29 The plaintiff confirmed that in March 2014 she had a fall when she slipped in some water which she described as a “yellow soupy substance” when shopping at Chadstone with her two daughters. After that fall, she had increased pain in her foot and her lower back, together with pain in her left knee. In particular, the following evidence was given:
“Q:the pain in those areas continued to be – I’ll go back a step, the pain that you felt as a result of the fall was increased pain in all those areas?
A:Yes at the time.
Q:Over and above what you had prior to that?
A:Yes.
Q:And the pain remaining increased for some time, didn’t it?
A:Yes for a month or so – two I don’t know yeah.
Q:Your doctor sent you off, Dr Chan sent you off … to have x-rays of all those areas?
A: Yes.
Q: Of your lumbar spine?
A: Yes.
Q: Your foot and your knee?
A: Yes.”[25]
[25]T75, L18 – 27
30 The plaintiff accepted there are times when she can walk quite normally at a leisurely pace, consistent with what had been shown on the video surveillance taken on 22 June 2012.
31 The plaintiff also confirmed that her left foot is swollen to some extent all the time around the outside of her ankle, although the swelling does fluctuate, with some periods of no swelling. The swelling is brought on by prolonged standing, walking and sitting. The plaintiff also confirmed that, from her observation, she has a blue line which is there, to some extent, all the time commencing under her left ankle bone and spreading up the outside of the left foot and leg for about 10 centimetres. She described such line as “light bluish line”, about half-a-centimetre wide.[26]
[26]T79, L2 – 4
32 The plaintiff also confirmed that she experiences temperature change around the left ankle with it feeling hotter, but not always. She stated that while giving evidence and sitting there she was not having any particular pain but considered her ankle was probably swollen because of the position she was sitting in. The plaintiff also confirmed that she was wearing the ankle brace and that she wears it “fairly regularly”, especially if she is going out somewhere. Furthermore, she very rarely wears normal shoes and attempts to wear flat shoes and, in particular, wears a slip-on type of shoe.
33
The plaintiff also confirmed that it is “very rarely” that she is free of lower back pain, although she does have good days. The plaintiff confirmed that she can drive for about 20 to 25 minutes, after which she experiences greater pain in her lower back and left foot. She does drive every day taking her daughter to school and driving to any shopping centre. The plaintiff confirmed that her mother assists her by carrying most of her shopping and helps generally around the house. Her elder daughter has moved out of home and she visits her once or twice a week, and she lives about 15 minutes away. The plaintiff explained that she does have better days, although the better days will be less than
50 per cent and the state of her pain can change during the course of a day.
34 The plaintiff also confirmed that she told her psychologist that it would be extremely difficult for her to return to work, in part because of personal hygiene and toilet problems.
35 When asked as to how she saw her future, the plaintiff stated:
“Hopefully I will be able to cure myself of this bleeding – that’s actually happening right now – and hopefully, I will have less swelling in my foot so maybe I could get to some sort of work because financially at the moment it’s quite difficult and hopefully my lower back – I will get some sort of treatment that it would help and aid the pain and make it less painful ….”[27]
[27]T97, L9 – 15
36 During re-examination, the plaintiff gave the following pertinent evidence:
·When queried that if she cannot get treatment that fixes the swelling in the foot or the pain in the back what would she do, the plaintiff stated:
“It would be very difficult for me to hold down any sort of job, even an office job. Yeah.”[28]
[28]T97, L23 – 26
·
She described that her job with the employer prior to the fall, that about
75 per cent of her day is involved in what she referred to as being on the “floor” – that is, checking various aspects of the cleaning around the Centre, dealing with various staff, checking outside areas, going up and down stairs over the various floors to check various areas and various internal spaces. Twenty-five per cent of her time would be spent in her office doing administrative work involving rosters, pay roll, dealing with head office or performing general paper work.
·She described that on any particular day, she gets to around midday when she finds that the pain does increase and her left foot becomes more swollen. At those times she needs to rest and usually takes some medication.
·She would be unable to do work in a retail shop (as she did for two years in the past) because of the amount of standing.
·In relation to the video showing her shopping with her two daughters, she does remember having a coffee break and sitting down and various rests not captured on the video, because the events stands out in her mind because she attended the city to buy a present for her aunt, who she was going to see when travelling overseas.
·The plaintiff, although accepting that she has got familiarity with computers, spreadsheets and like, believes that she was incapable of doing such an administrative type of job because of physical pain in her body and:
“My concentration is very very poor. I get lots of headaches, I could be sitting at a screen for long periods of time.
Q:What is it that you say makes it difficult for you to concentrate?
A:I have quite extensive pain in my foot and my back and in turn I get headaches, a lot of headaches yeah.
Q:So how do you think you’d go if someone said ‘Look here’s a job where you’re entering data in your computer, you’ve got to get it right and everything like that where you don’t have to do any lifting or walking’.
A:It would be quite difficult trying to concentrate for those periods of time. I wouldn’t say that I wouldn’t try, I would definitely try, but I couldn’t see myself doing it for a long period of time, no.”[29]
·The plaintiff stated medication “slows me down”.
·She confirmed that she had difficulty remembering about any aches and pains in her back prior to the fall but asserted, to the extent that she did ever have any pain, it never prevented her from performing work duties, nor did she have any pain extending down her legs at that time.
·She confirmed she was given a Return-to-Work Plan dated 14 June 2012[30] and confirmed that that was the only Return-to-Work Plan that was provided. She also confirmed that that Return-to-Work Plan was focused on her returning to her pre-injury duties and says nothing about administrative tasks for Head Office. In this respect she confirmed that she was never offered a job by the defendant which did not involve being on the floor of the premises. She has continued to have pain down her legs essentially since the fall. The plaintiff stated that if she has a little twist of the left ankle she experiences quite sharp pain in the foot causing her stop what she was doing at that time. The pain is sharp for a number of seconds, causing her to sit down and it will take a couple of minutes with her foot elevated to relieve the pain. This occurs on a regular basis and it occurs probably once or twice a week.
·There has been no improvement in her ankle pain, nor her back pain, in recent times, although there are times when she copes better with the pain during the day and there are times which are worse.
[29]T104, L1–17
[30]See Exhibit 2, DCB at page 37
The treatment undertaken by the worker
37 I refer to the radiological examinations undertaken by the plaintiff in relation to her left foot and lower back. In particular I refer to:
(a) An x-ray of her left foot and ankle undertaken on 25 January 2012[31]
[31]See Exhibit 4, DCB at pages 53 – 54
The radiographer reported:
“Soft tissues are reasonably preserved. No evidence for a fracture or mal-alignment. No evidence of an ankle effusion. Imaged portions of the mid-foot and forefoot intact.”;
(b)CT scan of the left mid-foot undertaken on 25 January 2012;[32] the radiologist reports:
[32]See Exhibit 4, DCB at pages 55 – 56
“Multiplanar study was adduced and compared to the recent conventional x-rays. There is a minor and limited fracture of the dorsolateral cuboid bone without particular articular space extension and without further fracture. The fracture fragments is a flake and is minimally displaced. There is some mild surrounding oedema. These findings correlate with the minor findings on the conventional x-ray study.”;
(c)CT scan of the lumbosacral spine undertaken on 25 February 2012 (requested by Dr Chan).[33] The radiologist reported:
[33]See Exhibit D, PCB at page 127
“There is a small central disc protrusion seen at L5/S1 level. The adjacent S1 nerve roots are still preserved.
Mild broadbased posterior disc bulge is also detected at L3/4 and L4/5 disc spaces. No nerve root impingement is identified.
The L1/2 and L2/3 disc spaces are unremarkable.
The bones are intact. The disc spaces are not narrowed. The facet joints are also preserved. No pars defect or slipping is identified.
Conclusion – only a small L5/S1 disc herniation is seen. No nerve root impingement is identified, particularly on the left side.”;
(d)MRI scan of the lumbar spine undertaken on 31 October. MRI scan of the lumbar spine undertaken on 22 March 2012 (on request from Dr Chan;[34] the radiologist reports that there was a history of left sciatica.
[34]See Exhibit D, PCB at page 128
“The findings were bony alignment normal with no evidence of scoliosis or spondylolisthesis. Conus normal. Bone marrow signal intensity only unremarkable. The discs are well-preserved with no evidence of any significant broad based bulges or focal protrusion. Minor foraminal narrowing at L4/5 but no convincing evidence of exiting nerve root impingement. The lower lumbar facet joints are mildly degenerative. No significant centralist canal stenosis.
Conclusion: Mild lower lumbar facet joint arthropathy. Minor foraminal narrowing at L4/5 but no convincing evidence of any existing nerve root impingement.”
(e)MRI scan of the lumbar spine undertaken on 31 October 2012.[35] The radiologist notes that there was a complaint of lower back pain radiating to left leg. The findings were:
[35]See Exhibit D, PCB at page 129
“Normal lumbar vertebral alignment. Vertebral body heights an marrow signal are normal, apart from fatty change deep a tiny Schmorl’s node at the inferior endplate of L4.
T11/12 to L3-4: normal.
L4/5: Disc desiccation and minor disc height narrowing, with a shallow broadbased protrusion. Mild fact degenerative change. Spinal canal is minimally narrowed in calibre. No compression of nerve roots in the subarticular recesses or exit foramina.
L5/S1: Broadbased central disc protrusion is slightly eccentric towards the left. There is flattening of the left S1 nerve root in the subarticular recess. Nor foraminal nerve root compression. Spinal canal is minimally narrowed. Minor bilateral facet degenerative arthropathy.
Conclusion: L4/5 and L5/S1 disc degenerative change. The L5/S1 broadbased disc protrusion flattens the left S1 nerve root in the subarticular recess.”
(f)X-ray of the spine, left knee and left foot undertaken on 21 January 2014 (at request of Dr Chan).[36] The radiologist notes in relation to the x-ray of the lumbar spine and coccyx that there is satisfactory alignment. The vertebral body heights are reserved. No spondylolisthesis, narrowed L5/S1 disc space with facet joint degenerative change and L4/5 and L5/S1.
The S1 joints are normal.
No abnormality of the sacrum or coccyx. The tip of the coccyx is not clearly determined.
In relation to the left knee, the radiologist reports:
“There is satisfactory alignment. No bony abnormality. No erosions or arthropathy. The patella is normal. No joint effusion.”
In relation not the x-ray of the left foot it is reported:
“There is satisfactory alignment of the mid and forefoot. No deformity. No fracture. There is degenerative change of the first l tarsometatarsal joint. The calcaneus and subtartal joint are normal.
Conclusion: degenerative changes of the first tarsometatarsal joint. No other abnormality.”
[36]See Exhibit 4, DCB at page 64
38 The plaintiff relies on a Letter from Dr Subrata Saha of the Emergency Department, Box Hill Hospital to Dr Kucminska dated 25 January 2002.[37] In that letter, it is reported that the plaintiff was admitted to the Box Hill Hospital Emergency Department at 10.40am on 25 January 2012. At that time, she gave a history that when walking to work she stood on a large stone, causing her left ankle to roll outwards, which in turn caused her to overbalance, landing on her right hip and shoulder. She was complaining of pain and swelling of the left foot and ankle, pain in the right hip, knee and shoulder. She underwent an x-ray and it was recommended that she undergo a CT scan as there was a suggestion there was a fracture of the cuboid bone in the left ankle.
[37]See Exhibit B, PCB at pages 37 – 38
39 She was discharged home with a “cam boot”, analgesia for pain relief, and advised to attend the orthopaedic clinic in one week.
Prior to the fall, the plaintiff had generally attended Dr Kucminska and I make reference to what turned out to be the last examination by Dr Kucminska on
20 January 2012 (some five days prior to the injury). The history recorded by Dr Kucminska that day was:
“Moles on leg new, back pain, left shoulder pain, lower back pain, walking around shopping centre.”
40 Various blood tests were arranged and she was referred to a Dr Greg Goodman, plastic surgeon (presumably for the moles) and also referred to a person who may have been a physiotherapist. The plaintiff had no recall, whatsoever, of attending a physiotherapist at that time.
41 The plaintiff also relies on the evidence of her general practitioner following the fall, Dr Anthony Chan. Dr Chan gave evidence on behalf of the plaintiff. He described himself as a qualified medical practitioner, obtaining his Degree in 1988. Beyond the normal qualifying Degree, he also described holding a FRACGP and also a Diploma of Medical Acupuncture. He has practiced as a general practitioner since 1990.
42 Dr Chan confirmed that he initially saw the plaintiff on 3 February 2012 and has continued to treat her since that time. In particular, he described his treatment extending to her left ankle and foot, her low back, her cervical spine and anxiety and depression. Dr Chan issued a Certificate of Capacity dated 3 February 2012[38] wherein he certified that the plaintiff, as a result of the fall at work, suffered a fracture of the left cuboid, cervical spine, right hip pain and lower back pain.
[38]See Exhibit E
43 When queried as to whether there were any recurring findings, he responded in the affirmative and said they were:
“I just go by the date of the latest examination – examination dates, which is on 5 June this year. The left foot and ankle there is a restricted movement and there is pain on the left ankle and foot and also there’s a change in colour.”[39]
[39]T112, L18 – 22
44 Furthermore, Dr Chan confirmed that over the years since he first examined the plaintiff he has observed a change in colour in the left foot, numbness on the heels as well, together with swelling of the left foot. He described these findings as being a “consistent finding”.
45 I refer to the following evidence in relation to such observations:
“HIS HONOUR: This or may not be important…but when you say they had been consistent findings what in particular have been consistent findings? --- Is the swelling, restricted – restricted range of movement and change in colour.
HIS HONOUR: And when you speak of change of colour, what do you refer to in particular? --- Is a little bit purply, like in colour.”[40]
[40]T113, L9 – 16
46 Furthermore, Dr Chan stated in the histories given to him by the plaintiff she has noted temperature changes, although he himself has not recorded any changes.
47 Dr Chan stated that he also examined the low back on 5 June 2015 and there was restricted range of movement, and that has been the case since 3 February 2012.
48 In relation to the back, Dr Chan also gave the following evidence:
“Have you asked the plaintiff about any pain symptoms in the back when you examined her over the years? --- Yes, her low, her back pain as well.
How did she describe to you all that pain? What sort of pain did she say? --- She described to me, that’s according to my note, sciatica pain on both sides down her legs, yeah.
HIS HONOUR: I just want to clarify that. She describes sciatic pain. Is it sciatic pain or sciatic-like pain? --- She described pain from the lower back radiating down her legs through her buttock.
I know that, I apologise saying dermatome but the reason I ask the question is no doubt you are aware of an MRI which suggests there’s no impingement? --- Yeah, I’m aware of that, yeah. It’s sciatica-like pain yes.”[41]
[41]T114, L5 – 15
49 Dr Chan gave evidence that the complaints of pain made by the plaintiff in relation to her low back had been consistent over the years.
50
Dr Chan identified reports made by him dated 22 June 2012, 23 September 2012, 26 May 2013, 19 September 2014, 29 March 2015, 11 June 2015 and
14 July 2015. He also stated that he continues to maintain the opinions and diagnoses expressed in those reports.[42]
[42]See Exhibit B, PCB at page 56
51 Dr Chan was taken to his report of 26 May 2013, wherein he diagnosed reflex sympathetic dystrophy, which was restated in later reports. He confirmed that he made the initial diagnosis and after making the diagnosis referred her for further examination to a specialist physician, Dr Peter Blombery, who made the same diagnosis. When queried why he made such a diagnosis, the doctor stated:
“The diagnosis I have made is due to the fact that the symptoms occur a little while after the fracture and is consistent of swelling, changing colour, restricted movement for a long period of time … and also the patient mentioned there’s a difference in temperature as well.”[43]
[43]T115 – T18, T23
52 When queried as to the prognosis of such condition, Dr Chan stated that the plaintiff needs “appropriate treatment and she is not getting it”. He explained that the plaintiff has been prescribed Lyrica and Palexia, but she requires a Ketamine infusion which was refused by the defendant.
53 Dr Chan also stated that the medication of Lyrica and Palexia does make a patient drowsy and hard to concentrate, although he also noted that depression can cause concentration problems.
54 In his report dated 22 June 2012, Dr Chan notes that the plaintiff had a past history of anal fissure, for which she had an operation in 2008 by Mr Steven Cheng. In that report Dr Chan noted that the plaintiff developed anal pain and rectal bleeding after the use of Panadeine Forte, which was stopped and changed to Di‑Gesic. He subsequently referred her back to Mr Steve Cheng, who diagnosed the presence of a second anal fissure and that such fissure was due to the constipation caused by the usage of Panadeine Forte. An anal sphincterotomy was performed by Mr Cheng on 23 May 2012 at the South Eastern Private Hospital. Dr Chan noted in that first report the anal fissure had improved post-operatively.
55 Also in that first report, Dr Chan noted that the plaintiff complained of pain radiating down the left leg, together with a reduction of back movement. At that time she was referred to Professor Bittar for opinion.
56 At that stage, Dr Chan diagnosed a fracture of the left cuboid, anal fissure, musculo-ligamentous strain of the lumbosacral and cervical spines, and being unfit for any work. In his report dated 19 September 2014, Dr Chan noted that the plaintiff continued to have pain, swelling, numbness, and change of colour in the left foot. Furthermore, the pain worsened when there was a change of weather and cold temperature. At that stage she was walking with a severe limp and at times required a walking stick, and the bad posture associated with her gait had further aggravated her low-back pain and sciatica.
57 In his final report, dated 11 June 2015, Dr Chan sets out details of his examination findings undertaken on 5 June 2015 (as already recorded). Dr Chan also notes that he had earlier referred the plaintiff to the psychologist Ms Amanda Wallis for counselling, and that at the time of his last report she continued to attend that psychologist for management of anxiety and depression. He notes that she has problems with insomnia, and takes Temazepam for treatment. Furthermore, because of persistent epigastric pain and reflux symptoms, she takes Nexium for that condition. In particular, she takes the further medications: Tramal, 200 mg bd; Temazepam, 10 mg nocte; Proctosedyl cream; Rectogesic wipes; Valium, 5 mg per day; Palexia, 50 mg bd, and Lyrica, 150 mg bd.
58 In that report dated 11 June 2015, Dr Chan expressed the view that the plaintiff had no capacity for work, that such incapacity would likely be “permanent”, and that further treatment would probably include physiotherapy, rehabilitation and pain management, medications, infusions, and in particular a Ketamine infusion.
59 In a subsequent supplementary report, Dr Chan stated:
“... putting aside any psychological aspects of the patient’s current state and looking at the organic effects of injuries to the plaintiff’s left foot only, Mrs Popadic continues to suffer from the effect of reflex sympathetic dystrophy on her left foot. She complained of chronic temperature change, colour change, pain, and swelling of the left foot. Mrs Popadic has problems walking and is prone to falling.
Mrs Popadic works for Spotless as a regional manager in Westfield shopping centre and her job is mainly administrative and can involve a lot of walking. Based on the left foot injuries alone, I believe that Mrs Popadic is not fit to return to pre-injury duties; however she may be fit for light duties which involve mainly sitting duties alone.
... putting aside any psychological aspects of the plaintiff’s current state and looking at the organic effects of injuries to the plaintiff’s lower back only, Mrs Popadic continues to have persistent lower back pain associated with bilateral sciatica like pain down both legs. There is also restricted range of movement of the lumbosacral spines. Functionally, Mrs Popadic is unable to lift, bend, squat, push, pull, and there is a limitation on duration of sitting, standing and walking. Therefore, based on the lower back injuries only, I believe Mrs Popadic is incapacitated for all employment.”
60 Under cross-examination, Dr Chan gave the following pertinent evidence:
· When queried as to why the plaintiff came and saw him after the injury, he commented that people tend to come to him in relation to WorkCover matters because local doctors do not want to be involved with WorkCover.
· Dr Chan accepted that he received from the plaintiff’s earlier doctor a fax setting out various health problems, and he appreciated that there had been a reference to lower-back pain prior to the fall. He did not talk to the plaintiff about any earlier lower-back pain, and she did not relate any lower-back pain.
· Dr Chan accepted that when he first saw her, part of her history involved her falling on her right side on concrete, where she hit her right hip and her right shoulder and right elbow. He accepted there was no direct reference of her falling onto her back.
· Dr Chan confirmed that on referral to Mr Cheng, the plaintiff had undergone another colonoscopy about one year ago which revealed no abnormalities. Dr Chan did note that if the plaintiff is careful of her diet there can be pain and bleeding from the rectum. He noted, when queried, that a “if you have a painful bottom it can certainly cause difficulty about returning to work because you cannot sit properly.”
· Dr Chan confirmed that he was involved with a WorkCover meeting in and around June 2012, and his notes at that time state: “WorkCover meeting, going overseas”. His notes also refer to a “reassessment by Dr Soliman” together with “persistent pain” and “in constipation”. Dr Chan described the meetings as “very confronting” and confirmed that even though he had a note there that she was leaving for overseas, he was of the clear opinion that she could not work because of her medical condition.
· Dr Chan said that he did not examine the foot every time the plaintiff came to the surgery, and estimated that it may be every third time that he sees her that he makes an examination. He accepted that the more the patient comes, the less you examine the foot, and after you have seen something once or twice, and the patient comes and tells you “I’ve still got the same thing”, you tend not to look at the foot every time.
· He also accepted that once Dr Blombery took over the treatment it took some degree of pressure off him, but maintained that he continued to look at the foot occasionally over the course of his treatment.
· He described the purply colour to be on the dorsum of the foot at around the ankle area, not following any particular pattern. In particular, he does not recall noticing a line of discolouration in her foot, and to him it clearly looked like a different colour to the other skin around the ankle. Dr Chan did state that it was consistently visible every time that he looked at it.
· In a query from the court, Dr Chan confirmed that he made the initial diagnosis of Complex Regional Pain Syndrome and then referred the plaintiff to Dr Blombery, who confirmed the diagnosis. Dr Chan also stated that he has had experience of Complex Regional Pain Syndrome.
· When queried what his understanding of reflex sympathetic dystrophy was, and how it is diagnosed, Dr Chan stated:
“Reflex ... it is a condition which is fairly poorly understood. Normally it’s from a trauma or surgery. Normally a period of time has passed and the patient experiences symptoms of swellings, restricted movement, change in colour, change in temperature, and yes, severe pain, yep, yeah.”[44]
[44]T135, L25 – 30
· Dr Chan accepted that you are reliant on what you see and what the patient tells you when coming to a diagnosis.
· He confirmed that his diagnosis in relation to the low back and the neck of the plaintiff was “musculoligamentous” and that he would expect such a condition to get better over time.
· Dr Chan accepted that on occasions he may have written “change in colour” or “swelling” in his notes on the basis of what the plaintiff told him, rather than on examination.
· Dr Chan reported that in relation to the limp of the plaintiff, it is not always there, and he noted that in colder weather there are more problems.
· Dr Chan had seen her walking with a walking stick when the limp is bad, although that is not of course all the time. Although he was not certain, he believed it was last year that he had last noticed her with a walking stick.
· Dr Chan was quite clear that he examined the plaintiff on 5 June 2015, as he had a direct recall of observing the foot on that day. Dr Chan accepted that on 5 June 2015 he did not compare the left foot with the other foot.
· Dr Chan considered the plaintiff would not be able to walk around for a few hours. When it was suggested to him that she had walked around a shopping centre with her daughters for a few hours, he stated:
“Well, I don’t think her walking – I don’t think that she can walk for a long time.”
· Dr Chan accepted that her foot injury, taken alone, would not affect her ability to sit. He considered that there would be obstacles for her to return to administrative work because she would have difficulties with concentration and pain.
· Dr Chan accepted that he had been advised by the psychologist, Ms Amanda Wallis, that the plaintiff was improving with psychological treatment and counselling.
61 When re‑examined, Dr Chan was queried about the sciatica-type pain, and, in particular, he stated:
“A:I believe – I honestly believe the sciatica is because of her foot. If you fix the foot up, the sciatica, the – the back thing will go. But the foot is not being fixed.
HIS HONOUR:
Q:Sorry, I don’t understand that, doctor. Say it again?---
A:Like pain, the back pain.
Q:Yes, I suppose the first point – I think you made this earlier. You’re not saying she has sciatica, because sciatica is the impingement of the sciatic nerve?---
A:Correct.
Q:But it’s sciatica-like pain. But now you’re suggesting that’s related to the ankle somehow?---
A:Yes, because she has pains on her ankle. With the way she’ll walk, with the way she moves, it causes her chronic musculoligamentous pain, thus pulling on the sciatic nerve. That gives her sciatica. That’s my belief.
Q:Why has it occurred on some occasions on both sides?---
A:I don’t know is on both sides. It depends on the way she moves.”[45]
[45]T155, L9 – 25
62 The plaintiff also relies on the evidence of Professor Richard Bittar, a consultant neurosurgeon, who initially examined the plaintiff on 29 June 2012 on referral from her general practitioner. He subsequently reviewed her on 26 September 2012. Details of those examinations are set out in a report dated 12 November 2012.[46]
[46]See Exhibit B, PCB at pages 77
63 Professor Bittar also medico-legally examined the plaintiff on 26 June 2013, and details of that examination are set out in a report of the same date.[47] Professor Bittar obtained a past medical history which was “non-contributory” for neck and back problems.
[47]See Exhibit B, PCB at pages 74 – 76
64 Professor Bittar saw the plaintiff in relation to her neck and low back pain, and obtained a history that the plaintiff had a fall on 25 January 2012 after which she experienced low-back pain radiating into her left leg, as well as neck pain. At the time of the examinations, the symptoms persisted.
65 Professor Bittar had access to the MRI scan of the lumbosacral spine performed on 22 March 2012 and the CT scan of the cervical spine performed on 10 March 2012. In relation to the MRI scan, he considered this demonstrated facet-joint arthropathy of the lower lumbar spine. There was no significant disc prolapses, and no evidence of neural compression. In relation to the CT of the cervical spine, he considered this demonstrated loss of the normal cervical lordosis, but otherwise there were no abnormalities.
66 Furthermore, Professor Bittar reviewed a whole body scan with a SPECT performed on 3 July 2012, and he considered that such investigation was normal, with no increased trace uptake within the facet joints suggestive of active facet joint arthropathy.
67 After the first two consultations, Professor Bittar was of the opinion that the underlying diagnosis was “unclear”, and he noted that her cervical and lumbar spine imaging had not shed “any light on the likely underlying problem”. At that stage he made a provisional diagnosis of soft tissue injury, which would ordinarily improve within six months, although her prognosis was “guarded”. When reviewed on 26 June 2013 the plaintiff continued to complain of low back pain with radiation through her left buttock and into her hamstrings, together with neck pain. Examination at that time revealed “mild restriction of both cervical spine motion in all planes and lumbar spine flexion”. Professor Bittar noted that lumbar spine extension was moderately restricted and quite painful. Neurological examination of her limbs was normal.
68 After consideration of all the material, Professor Bittar was of the opinion that the most likely diagnosis was “aggravation of lumbar spondylosis with musculoligamentous (soft tissue) neck pain”, all of which he related to the fall at work on 25 January 2012.
69 Professor Bittar was of the view that the plaintiff was unfit for her pre-injury work and alternative duties as a result of injuries to her neck, low back and left foot (as diagnosed by Dr Blombery).
70 The plaintiff also relies on the evidence of the consultant physician (vascular disease) Dr Peter Blombery, who prepared reports dated 22 October 2012, 6 June 2013, 13 September 2014 and 12 June 2015.[48]
[48]See Exhibit B, PCB at pages 43 – 55
71 Dr Blombery examined the plaintiff on referral from Dr Chan. His initial examination was on 1 October 2012, and thereafter on 1 November 2012, 3 December 2012, 5 February 2013, 9 April 2013, 5 July 2013, 8 October 2013, 20 January 2014, 19 May 2014, 17 November 2014, 8 May 2015, and finally on 9 June 2015.
72 At the time of the initial examination, the plaintiff complained of ongoing pain in her left foot, which was in a brace. The plaintiff noted that the foot also swelled, changed colour, and became hot and cold, and she noted numbness and pins and needles particularly around the heel. At that time she slept poorly because of ongoing pain in her back and neck.
73 Examination at that time revealed that the plaintiff walked with a limp, and she was very tender on pressure over the area of the cuboid bone, and there was a small lump in the dorsum of the foot in that area as well. Dr Blombery considered both feet were of a similar temperature and colour, and there was mild swelling of the foot, together with a reduction in the range of movement of the ankle and of the hind foot. Pulses were intact. Dr Blombery expressed his opinion at that time in the following terms:
“Mrs Popadic sustained a fractured cuboid bone as a consequence of her injury in the course of her employment on 25 January 2012. This has been complicated by ongoing pain in the area of the foot where she notes that there are some changes in temperature and colour. This suggests that there may be a component of complex regional pain syndrome type I present although it is not very marked.
She also has ongoing pain in her neck and back from the fall. It is my opinion that this pain is derived possibly from the discs or from the facet joints between the vertebrae and it is possible that previously asymptomatic degenerative changes have become symptomatic as a consequence of the injury.”[49]
[49]See Exhibit B, PCB at page 45
74 Dr Blombery considered that the Complex Regional Pain Syndrome type 1, complicating the fractured left cuboid bone, a pain syndrome affecting the back and neck, and the anal fissure, were all work-related. He was of the opinion that she was unfit to do her pre-injury employment as that involved a lot of walking, but considered that with treatment of her pain she may be able to improve and return to work at some stage in the future. At that stage, he commenced her on Lyrica at a dose of 75 mgs as well as Endep 10 mgs at night. He noted that she may require other treatment such as a phentolamine infusion or possibly epidural clonidine/morphine infusion in the future.
75 When seen on 1 November 2012 she reported some improvement in her pain, and the dose of Lyrica was increased to 150 mgs. On 3 December 2012 there was no difference from the high dose of Lyrica, and she was reduced to two daily again. Dr Blombery noted she often awakened from sleep with headaches, but, on examination, blood pressure was normal at 120/84.
76 When seen on 5 February 2014, Dr Blombery decided to apply to the insurer of the defendant for permission to perform an epidural clonidine and morphine infusion to break the pain cycle. When seen on 9 April 2013 he had received a letter from the insurer dated 14 February 2013 denying liability for such procedure. At that time, the plaintiff rated her pain at 6–7/10. Her medications at that included Lyrica 150 mgs, Temazepam and Tramal of 100 mgs. In his report dated 6 June 2013 Dr Blombery spoke of reapplying for the epidural clonidine and morphine infusion. He also commented that the plaintiff struck him as “being genuine in her presentation and it is my opinion that her pain is a real phenomenon.”
77 Again, Dr Blombery diagnosed the plaintiff to be suffering a Complex Regional Pain Syndrome Type I, complicating a fractured cuboid bone, and at that time she had no capacity for her pre-injury work or indeed alternative work, as the pain was of sufficient severity to distract her, as well as having the effects of the medications that she was taking for pain.
The plaintiff gave evidence that she recalled the visit to the city on 22 June 2012, as it was a special occasion to buy a present for an aunt she was going to visit overseas when attending to her demented father’s affairs.
The plaintiff gave evidence that during the course of those hours in the city, she had coffee breaks and rest breaks which were not captured on the video and, indeed, even when she got to the city, she had to sit down somewhere for a bit of a break. She also stated that she would have experienced pain during that day and that it was difficult for her to perform those activities.
Consistent with my earlier findings as to the credit of the plaintiff, I tend to the view that what the video captured was a special situation brought about by the necessity to buy this present for an aunt she was going to visit when overseas, and throughout the period of time she was suffering pain. However, I do consider there is some force in what the defendant submits as to the noticeable change when going to Dr Soliman and, for that matter, when exiting from the rooms of Mr Grossbard. Ultimately, after very careful consideration of all the evidence, I have come to the view that, although there may have been an element of exaggeration when presenting to one or more of the doctors, such exaggeration does not detract from the fundamental aspect that the plaintiff does suffer pain and has an ongoing degree of disability, as explained by her.
145 I should also make reference to the evidence where the plaintiff was cross-examined about her failure to take up the return to work offer made by the defendant on or about 14 June 2012.[80] Such plan involved the plaintiff returning to her pre-injury duties, initially four hours per day for three days per week. Such duties would involve ordering of cleaning equipment and administration work, performing inspections, catching up with staff on the floor, liaising with clients and ensuring good relationships are maintained. It was said that the plaintiff could work at her own pace and in a supernumerary position with the ability to alternate between sitting, standing and walking every 30 minutes or so, as required.
[80]See Exhibit 2, DCB at page 37
146 In his report dated 27 April 2012, Dr Soliman noted that the plaintiff was unfit to return to her position as site manager unless a motorised buggy could be organised for her. He did think her fit to perform administrative duties at head office, where apparently a car park was underneath the building and thus reducing any walking.[81] Also in that report, Dr Soliman noted that the car park at the Westfield Doncaster shopping centre was some 500‒600 metres away from the shopping centre and that, indeed, her normal employment duties involved two inspections per day with each inspection involving approximately 2 kilometres of walking.
[81]See Exhibit 1, DCB at page 10
147
The offer made by the defendant to return to work was the only offer made to the plaintiff. A meeting occurred between Dr Chan and the plaintiff, on one hand, and representatives from the rehabilitation management and the insurer, at which time Dr Chan stated that he did not agree with the opinion of
Dr Soliman and that the plaintiff remained unfit for work. At that time, Dr Chan stated that the plaintiff was still experiencing pain, swelling and changes in colour around the fracture site, together with some low back pain. Of course, at that time, Dr Chan was giving a medical opinion based on the overall medical condition of the plaintiff as to whether or not she was fit to return to work.
148 I now turn to the issue as to whether the plaintiff has established that she has suffered an organic left foot injury with organic consequences which constitute a “serious injury” within the meaning of the Act. The position of the plaintiff is that she has suffered such an organic injury, to wit, an ongoing Complex Regional Pain Syndrome Type 1 complicating the fractured cuboid bone. Such condition, it is said, gives rise to pain, difficulties with walking (particularly over rough ground and down stairs) and impacts on a variety of aspects of her life.
149 Against that, counsel for the defendant relies on the diametrically opposed opinion of the occupational consultant, Dr Sam Soliman, who, on 5 June 2015, expressed the opinion that there was no clinical or radiological explanation for the plaintiff’s ongoing complaints in relation to her left foot, or, for that matter, in her neck, shoulders or low back.
150
Counsel for the defendant highlights that Dr Soliman and Mr Flanc,
Mr Edwards and Mr Grossbard failed to detect any signs supportive of the diagnosis relied on by the plaintiff.
151 Furthermore, counsel for the defendant highlights that whereas, in earlier reports, the treating vascular specialist, although initially diagnosing a Complex Regional Pain Syndrome Type 1 complicating the fractured cuboid bone, records his diagnosis in his last report to be a “pain syndrome complicating a fractured cuboid bone”. Counsel for the defendant submits there must be great care in using such terminology and it is unclear, in all the circumstances, what Dr Blombery is referring to when he speaks of a “pain syndrome”, whether it be organically mediated or psychiatrically caused or whatever.
152 After a consideration of all of the evidence, I do find that the plaintiff does suffer an organic injury in that she suffers Complex Regional Pain Syndrome Type 1 as a complication of her fractured left cuboid bone. I do accept that there are some psychological aspects of her presentation in relation to such condition.
153 Both parties accept that the decision of Meadows v Lichmore Ltd[82] sets out the relevant test when consequences relied on to establish a serious injury under paragraph (a) of the definition of serious injury have both physical and psychological causes. Such test involves a two-step process. Initially, the issue to be determined is whether there is a substantial organic basis for the consequences relied on. If the answer to that question is in the affirmative, then any particular applicant will succeed without the need for any “disentangling” of the physical contribution to the pain and suffering from the psychological contributions. In circumstances where the first question is not, or cannot be answered affirmatively, then the applicant will need to take the next step and disentangle. That is, the applicant will need to be able to separate the physical contribution to any consequences from the psychological in order to be able to satisfy the Court that any consequences attributed to the organic injury satisfy the statutory test.
[82][2013] VSCA 201; see also Fokas v Staff Australia Pty Ltd [2013] VSCA 230
154 After consideration of all the evidence, I have come to the view that there is a substantial organic basis for the consequences claimed by the plaintiff in relation to her left ankle injury. I have come to this view for the following reasons:
(a)Dr Anthony Chan has been the general practitioner of the plaintiff since her fall. He qualified in 1988 and has subsequently obtained an FRACGP and a Diploma of Medical Acupuncture. He has practised as a general practitioner since 1990 and, according to him, he had had experience of Complex Regional Pain Syndrome prior to treating the plaintiff.
Dr Chan has seen the plaintiff on many occasions over the years since February 2012. He has treated her for her left ankle and foot injury, her low back pain, her cervical pain and anxiety and depression. Over the course of his treatment, he has referred the plaintiff to Professor Bittar in relation to her spinal complaints,
Ms Amanda Wallis, the clinical psychologist, for her anxiety and depression, and to Dr Blombery, the vascular physician specialising in Complex Regional Pain Syndrome in relation to the left foot complaint.
Dr Chan gave evidence that it was a “consistent finding over the years that he had observed a change in colour in the left foot, numbness on the heel as well, together with swelling of the left foot”. When queried about the change of colour, he described it as being “a little bit purply”.
Dr Chan did state that, in relation to his last examination on 5 June 2015, there was restricted movement, pain in the left ankle and foot and a change in colour.
Dr Chan confirmed that he made the initial diagnosis of Complex Regional Pain Syndrome Type 1 and then referred the plaintiff to the specialist physician, Dr Peter Blombery, who confirmed the diagnosis. In particular, Dr Chan said such a diagnosis is a frequent sequel to trauma or surgery in a particular area and trauma including a fracture of the cuboid bone.
Dr Chan accepted that he did not examine the foot every time the plaintiff came to his surgery and estimated it was probably about every third time that he made a formal examination. He did accept that he had never noticed any change in temperature, but the plaintiff had informed him of various changes in temperatures over the years.
Dr Chan was extensively cross-examined, during which time he made, in my view, reasonable concessions. They included that, as time goes on, one tends to accept the complaints of the plaintiff if nothing has changed, although he stressed that although he did not examine the plaintiff every time, he examined her on a reasonably regular basis. Furthermore, he accepted that when the plaintiff came under the care of Dr Blombery, it takes off some “pressure” from a general practitioner, but again, as he indicated, she was his patient. He conceded under cross-examination that he cannot recall comparing the right foot with the left foot, nor precisely when the plaintiff was wearing a foot brace or had the use of a walking stick.
Ultimately, it was put by counsel for the defendant that Dr Chan was an unreliable witness and that, ultimately, his purported observations of colour change were no more than impression rather than actual observation. In this respect, he was queried in relation to his observations of the colour change and as to the consistency or otherwise of the description by the plaintiff that she effectively always observed a line of discolouration on her ankle. Dr Chan did not recall this, but asserted quite strenuously that, as far as he was concerned, there was definite colour changes when he made observations.
In particular, counsel for the defendant stated in support of her submission that Dr Chan was unreliable because he seemed to misunderstand the basic anatomy of the low back when he suggested, so it was put, that sciatic pain emanated from the ankle. Consistent with the submission of senior counsel for the plaintiff, I consider such an assertion as an unfair reading of the transcript and what Dr Chan was suggesting was that, because of her gait brought about by the ankle injury, this put some degree of strain on her low back which may be a cause of sciatic like pain emanating from her back. I should add that counsel for the defendant, quite fairly and appropriately, in my view, accepted that Dr Chan did not give his evidence in such a way as to be described as an advocate for the plaintiff.
Ultimately, I came to the view that Dr Chan was an experienced, caring general practitioner who had treated the plaintiff appropriately, referring her to specialists as and when required. I see no good reason to not accept his observations in relation to colour change and swelling, and for reasons which I have already expressed, I see no good reason to reject the plaintiff when she asserts that she has experienced temperature changes in the ankle area, together with colour change.
(b)I also refer to the evidence of the specialist physician, Dr Blombery who examined the plaintiff 12 times, the first being on 1 October 2012 and the last being on 9 June 2015. True it is, that at the time of the initial examination, Dr Blombery found tenderness with pressure over the area of the cuboid bone, together with some mild swelling of the foot, and with a reduction in the range of movement of the ankle and of the hind foot. At that time, the plaintiff informed him that the foot also swelled, changed colour, became hot and cold and she noted numbness and pins and needles.
Dr Blombery, at that time, made a diagnosis that there was a component of Complex Regional Pain Syndrome Type 1, although it was not “very marked”. He considered that such condition followed on from the fractured cuboid bone.
Initially, Dr Blombery commenced the plaintiff on Lyrica at a dose of 75 milligrams, as well as Endep, 10 milligrams, and, when later seen, the plaintiff reported some improvement in her pain. The dose of Lyrica was increased to 150 milligrams, but later reduced when there seemed to be no difference after the increase in dosage. On 5 February 2014, Dr Blombery applied for the defendant’s permission for an epidural clonidine and morphine infusion to break the pain cycle, which was ultimately denied. As at that date, the plaintiff was taking medication including Lyrica, 150 milligrams, Temazepam and Tramal, 100 milligrams. As at June 2013, Dr Blombery stated that the plaintiff struck him as “being genuine in her presentation and it is my opinion that her pain is a real phenomenon”.
Dr Blombery, in January 2014, reapplied for permission to perform an infusion and to date there had been no response. When last examined, the plaintiff was taking Lyrica, 100 milligrams, and Palexia, an opioid, was increased to 100 milligrams.
Dr Blombery does use the words “pain syndrome” in his last report. I consider that he continues to refer to an organic condition for which he has been treating the plaintiff over a number of years. In my view, in his opinion found in the report dated 12 June 2015,
Dr Blombery states that the plaintiff “continues” to have features of a pain syndrome and relates such pain syndrome as a complication of the fractured cuboid bone. Again, he continued to treat her in precisely the same way; that is to say, by prescribing Lyrica and Palexia. Again, Dr Blombery has seen the plaintiff a number of times and has seen fit, as an expert in this area, to proffer the opinion which he has. I see no good reason not to accept such opinion.
Although other doctors, according to their reports, did not find signs of such condition, there is no suggestion in any of the evidence that the signs have to be present at all times. Indeed, Dr Blombery, based on the history and the clinical examination which was modest, continued to maintain the diagnosis. Obliquely,
Mr Grossbard also did not discount the diagnosis, noting that
Dr Blombery had made such a diagnosis as part of the plaintiff’s overall condition.
Obviously enough, Dr Blombery was not cross-examined in relation to any of the opinions that he expressed. I should also add that, consistent with my earlier views as to the credit of the plaintiff, her assertions that she has experienced temperature changes in the area and swelling of the ankle cannot be discounted.
(c)I also refer to the evidence of the medico-legal psychiatrist,
Dr Hayman, who examined the plaintiff on 1 July 2015, at which time he diagnosed the plaintiff to be suffering a Chronic Adjustment Disorder with depressed and anxious mood consequent to her work-related injuries. He described the condition well managed and relatively mild and that it was in response to her overall physical state and the ongoing legal process regarding employment and WorkCover. There was no suggestion that the plaintiff suffered a pain disorder, but, rather, her psychological response was to her physical injuries.
In a similar way, the treating psychologist diagnosed an Adjustment Disorder.
155 I also refer to and accept the opinion of Dr Blombery as expressed in his last report that the prognosis for recovery is “poor”. Furthermore, Dr Blombery also expressed the opinion that at the time of his last examination, the plaintiff had no capacity for her pre-injury employment or for alternative duties.
156
I also refer to the opinion of Dr Chan, expressed in his report dated 14 July 2015, that only looking at the organic effects of the injury to the plaintiff’s left foot, the plaintiff continues to suffer from the effect of reflex sympathy dystrophy in her left foot. He considered that the plaintiff was unfit to return to her
pre-injury duties. However, she may be fit for light duties which involved mainly sitting duties alone. Dr Chan was also of the view that the prognosis was “poor”.
157 Accordingly, I find that the plaintiff has established as a matter of probability that she has suffered a left foot injury on or after 20 October 1999, the organic consequences of which are likely to last for the foreseeable future. Consistent with her evidence, I consider that such injury impacts upon her ability to walk any great distances, inhibits her capacity to perform day to day household activities, and inhibits and prevents her from involving herself in folk dancing.
158 Furthermore, I accept the evidence of Dr Chan that the medication that was prescribed, Lyrica and Palexia, does make the plaintiff drowsy and makes it hard for her to concentrate. I also accept that, although the plaintiff has familiarity with computers, spreadsheets and office activities, she would have limitations in performing an administrative job as a result of her limited concentration and the ongoing pain in her foot. Furthermore, as the plaintiff stated, the medication “slows me down”.
159 After consideration of all the evidence, I have come to the clear view that given the nature of her left foot injury and its consequences, the plaintiff is clearly incapable of performing her pre-injury duties which involved extensive walking on a daily basis and which included going up and down stairs and into smaller areas.
160 I do consider that the plaintiff probably does have some capacity to perform administrative duties given her industrial background, but will be limited in the performance of such duties by concentration problems brought about by the medication, and indeed pain which she experiences in her left foot.
161 Bearing in mind that the plaintiff had pre-injury earnings of $1,448 gross per week, I am satisfied that the plaintiff would be incapable of earning more than 60 per cent of her pre-injury earnings in alternative suitable employment. Indeed, the practical reality is that the plaintiff is probably limited to a number of hours per week, given the pain and concentration restrictions.
162 Accordingly, applying the principles set out in Advanced Wire and Cables Pty Ltd v Abdulle,[83] and Acir v Frosster Pty Ltd,[84] the plaintiff has satisfied the loss of earning capacity within in the requirements of s134AB of the Act and is entitled, as a matter of statutory construction, to have leave to bring proceedings for both pain and suffering damages and pecuniary loss damages.
[83][2009] VSCA 170 at paragraphs [60]–[64]
[84][2009] VSC 454
163 I refer to the Court of Appeal decision of Georgopoulos v Silaforts Painting Pty Ltd,[85] which held that once a finding has been made of serious injury in relation to one injury, a plaintiff can bring a claim for other injuries suffered in the compensable event. In such circumstances, I will grant leave to the parties to apply for me to make findings in relation to the lower back. I will do so if it is necessary. I reserve the rights of either party to make such an application.
[85](2012) 37 VR 232
164 I also point out that I have paid scant reference to any issue relating to the anal fissures. In this respect, I note that the anal fissure following the fall was found to be related by Mr Cheng to the prescription of Panadeine Forte, which caused constipation and thus the fissure. Once that had been attended to, there is no suggestion that any ongoing condition, to the extent that there may be one, is related to any aspect of the fall. Indeed, senior counsel for the plaintiff expressly disclaimed any particular reliance on the anal fissure issue, save and except for the need for the initial surgery.
165 I will hear the parties on the question of costs.
---
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit A
· Affidavits of the plaintiff sworn 22 October 2013 and 8 July 2015 (found at pages 21-36 of the Plaintiff’s Court Book (“PCB”).
Exhibit B
· The report of Dr Subrata Saha (Emergency Department, Box Hill Hospital) to Dr Anna Kucminska dated 25 January 2012
· The medical report of the general surgeon, Mr Steve Cheng, dated 13 April 2012 and 19 June 2013 and a further report dated 30 January 2014 (found at page 58 of the Defendant’s Court Book (“DCB”))
· The reports of the vascular physician, Dr Peter Blombery, dated 22 October 2012, 9 June 2013, 13 September 2014 and 12 June 2015
· The reports of the treating general practitioner, Dr Anthony Chan, dated 22 June 2012, 23 September 2012, 25 May 2013, 19 September 2014, 29 March 2015, 11 June 2015 and 14 July 2015
· The reports of the neurosurgeon, Professor Richard Bittar, dated 26 June 2013 and 12 November 2012
· The reports of the clinical psychologist, Ms Amanda Wallis, dated 21 August 2013, 23 August 2013, 20 September 2014 and 26 June 2015
All such reports are found at pages 37-94 PCB.
Exhibit C
· The report of the general surgeon, Mr Charles Flanc, dated 21 August 2013
· The medical report of the orthopaedic surgeon, Mr W Edwards, dated 29 August 2013
· The medical report of the orthopaedic surgeon, Mr Garry Grossbard, dated 26 March 2015
· The neurosurgical report of the neurosurgeon, Mr Paul D’Urso, dated 27 May 2015
· The report of the psychiatrist, Dr Brendan Hayman, dated 1 July 2015.
All such reports are found at pages 95-126 PCB.
Exhibit D
· The report in respect of a CT scan – lumbar spine dated 25 February 2012
· The report in respect of an MRI scan of the lumbar spine dated 23 March 2012
· The report in respect of an MRI scan of the lumbar spine dated 31 October 2012
All such radiological material is found at pages 127-129 PCB.
Exhibit E
· Certificate of Capacity dated 3 February 2012.
2 The defendant tendered the following material:
Exhibit 1
· The medical reports of the occupational health consultant, Dr Sam Soliman, dated 22 March 2012, 27 April 2012 (a worksite assessment report), 27 June 2012, 15 July 2012 and 6 June 2015.
All such reports are found at pages 1-30 DCB.
Exhibit 2
· Initial assessment report by Rehab Management dated 7 May 2012
· Return to Work Plan dated 14 June 2012
· Letter from Rehab Management to QBE dated 19 June 2012.
All such reports are found at pages 31-41 DCB.
Exhibit 3
Surveillance report of 4 July 2012 with associated DVD (found at pages 43-52 DCB).
Exhibit 4
· X-ray of left foot dated 25 January 2012 (found at pages 53-54 DCB)
· The report in respect of a CT scan of the left foot dated 25 January 2012
· The report of an x-ray of the spine, left knee and foot dated 21 March 2014 (found at page 63 DCB).
Exhibit 5
· Note from Eastern Health Outpatients dated 3 February 2012 (found at page 57 DCB).
Exhibit 6
· Clinical notes of Dr Kucminska (found at pages 59-62 DCB).
Exhibit 7
· Admission document regarding surveillance undertaken by the defendant dated 3 August 2015.
0
12
0