Price v Austin Health
[2019] VCC 182
•27 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02150
| SHARON HELEN PRICE | Plaintiff |
| v | |
| AUSTIN HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2019 | |
DATE OF JUDGMENT: | 27 February 2019 | |
CASE MAY BE CITED AS: | Price v Austin Health | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 182 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – paragraph (a) of the definition of “serious injury” – pain and suffering only – whether any work injury has ceased – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; TAC v Kamel [2011] VSCA 110
Judgment: Leave granted to the plaintiff to make a claim for common law damages in respect of pain and suffering for the back injury suffered by her arising out of or in the course of her employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Johnstone | Adviceline Injury Lawyers |
| For the Defendant | Ms M Tsikaris | IDP Lawyers |
HIS HONOUR:
1 By way of Originating Motion dated 18 May 2018, Sharon Helen Price (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury to her lower back (“the injury”) suffered by her during the course of her employment with Austin Health (“the defendant”).
2 The plaintiff seeks leave to bring proceedings in relation to the injury for “pain and suffering damages” only, within the meaning of s134AB(37) of the Act.
3 The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered a variety of documents.[1]
[1]Refer to exhibit “A”. See exhibit list attached to this document.
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the 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 Paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act reads:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function; ... .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low back of the plaintiff.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the “injury” suffered by her arose out of or in the course of, or due to the nature of, her employment with the defendant on or after 20 October 1999;[3]
(b)the “injury” and the resulting impairment under paragraph (a) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c)the “consequences” to the plaintiff of the injury in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of function is:
“… when judged by comparison with other cases in the range of possible impairments … may be, fairly described as being more than significant or marked, and as being at least very considerable.”[5]
This test is sometimes referred to as the “narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[5]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard;[7]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application;[8]
(d)notes that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(i) of the Act
[8]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [33]-[36]
[9]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
9 When queried as to what were the issues in the proceeding, counsel for the defendant advised the Court that:
(a)there was no issue that the plaintiff had suffered a compensable lower-back injury arising out of her employment;
(b)however, based on the current evidence – in particular, the medico-legal report of the orthopaedic specialist, Mr Jonathan Hooper, relied on by the plaintiff – would suggest that any work injury has now ceased and any symptoms that the plaintiff may suffer are due to underlying degenerative changes;
(c)even in the event that there is an ongoing compensable injury which is “permanent” within the meaning of the Act, the defendant would maintain that the plaintiff fails to discharge her onus in establishing the narrative test – what is commonly referred to as a “range case”.[10]
[10]See generally Transcript (“T”) 13, Lines (“L”) 10-T19, L3
The evidence of the Plaintiff
10 In her evidence-in-chief, the plaintiff gave evidence that she had looked at her affidavits, sworn 21 January 2018 and 23 August 2018[11] and confirmed them to be true and correct save for one small matter, her daughter has now finished Year 12 schooling and will go onto TAFE, but continue to live at home.
[11]See exhibit 1 at pages 16-22 and 75-77 Plaintiff’s Court Book (“PCB”)
11 The plaintiff also gave evidence that, relatively recently, her general practitioner has changed to Dr Vivian Ouraha, because her previous doctor, Dr Yossry Hanna, left the practice. Dr Ouraha is situated in the same clinic – St Mary Medical Centre in Greensborough.
12 When queried about her current medication, the plaintiff gave evidence that, depending on the day and the extent of the pain, she would usually take a minimum of eight Panadol a day – four in the morning and four when she gets home from work. In particular, the following evidence was given:
HIS HONOUR:
Q: “These are just Panadol you buy over-the-counter at the chemist, is that right?---
A: Panadol or Advil. Advil I find work a bit better.
Q: Advil, how many Advil would you take a day?---
A: Usually about the same but as I said, it depends on the pain on that day.
Q: Just so I’m clear about this, you’re suggesting it’s either or on any one day. You might take a minimum of eight - - - ?---
A: Yes, a minimum of eight but I do have - - -
Q: You might take – are you suggesting – you’re not taking 16 tablets a day … the minimum?---
A: I have in the past.
Q: Let’s just talk about the last few months, what’s the situation there? How many tablets would you take approximately a day?---
A: A minimum of eight, a max of 10 to 12.
Q: And they might be a mixture of Advil and Panadol?---
A: Yes. ”[12]
[12]T20, L27 – T21, L10
13 The plaintiff also gave evidence that if the pain “is still strong” she takes Panadeine Forte and she also noted in the past that she had been prescribed, not only Panadeine Forte, but also OxyContin (referred to as OxyCon on the box), but she noted that she does not like taking them. When she was queried by the Court when was the last time, she stated:
A: “I don’t like taking them so it would have been - - -
Q: Be a long time or - - -?---
A: - - - the end of last year.
Q: Is that when pain is particularly acute, is it?---
A: Yes.
Q: And the other one was, sorry?---
A: Panadeine Forte.
Q: Again, the same position for that?---
A: Yes, I take it when it’s really bad.
Q:Who prescribes those for you?---
A:The doctor had prescribed them for me.”[13]
[13]T21, L25-T22, L2
14 The plaintiff gave the following salient evidence by way of her first affidavit, sworn on 12 January 2018.[14]
[14]See exhibit 1 at pages 16-22 PCB
·She is a fifty-three-year-old (born in 1965) married woman who has two children. Her daughter was at school at the time of the making of the affidavit, but as stated in her evidence-in-chief, has now completed secondary schooling and will attend TAFE. She also has an older son who, while beyond school age, is intellectually disabled and suffers from Attention Deficit Hyperactivity Disorder and Bipolar Disorder, and lives at home.
·She grew up in Heidelberg and at the age of twelve was diagnosed with leukaemia and underwent chemotherapy and radiotherapy, which brought about remission.
·On completing school, she worked as a receptionist for a local general practitioner and then took time off to have her children. When her children were of school age, she commenced a cleaning job at the Mont Park Psychiatric Hospital, where she remained for ten years before it closed down. She then did some agency cleaning work.
·In 2005, she commenced work at the Royal Talbot Hospital in the employ of the Austin Hospital. She describes the Royal Talbot Hospital as a rehabilitation hospital located in Kew, consisting of four wards, a gymnasium, multiple outbuildings, and residential units, where families of patients can stay from time to time.
·She was appointed to be one of three full-time cleaners working five-and-a-half hours a day for five days a week.
·She also had, in addition to her work at the Royal Talbot Hospital, a part-time office cleaning job with Nationwide Aged Care Cleaning Services in Ivanhoe, which involved two hours on two evenings a week. Such work was very light and all she had to do was empty wastepaper bins, vacuum floors and light dusting. There is no mopping or toilet cleaning involved.
·Further, she describes her work at the Royal Talbot Hospital in the following terms:
“In contrast, my job at Royal Talbot was really hard going. Each day I had to clean the wards, gymnasiums and offices. If a family had vacated a unit I had to clean it from top to toe. I mopped and scrubbed. I carted bags of rubbish and pushed heavy trolleys up hills and across uneven paths. There was always so much to do and never enough time to do it. I was continually on the go.”[15]
[15]See exhibit 1 at pages 17-18 PCB
·After a few years, the plaintiff started experiencing back pain when work was particularly busy, and at the end of the day, she would draw a hot bath and hope, with a bit of rest, she would be right for the next shift. She notes that she, generally, was right for the next shift; however, in 2013, her back pain became more “intense and persistent”.
·On Friday, 14 June 2013, she suffered an episode of “really bad back pain at work” when she was doing her rounds. She describes such back pain in the following terms:
“… I felt my low back sting with increasingly deep, sharp jabs. The pain went through my right buttocks and into the back of my thighs. I was concerned and found one of the rehab physios who tried some manipulation, but it was too painful. She advised me to leave work and rest.”[16]
[16]See exhibit 1 at page 18 PCB
·Over the weekend, the pain persisted, and she found it hard to get out of the bed. On the Monday, she attended her then long-term general practitioner, Dr Ian Wallis, who arranged for her to undergo an x-ray, prescribed Panadeine Forte and advised her to take some time off work. At that time, she stopped both jobs.
·After about a month being off work, the plaintiff describes herself as “becoming stir crazy” as she really liked working, and doing nothing was hard to bear. At her urging, Dr Wallis certified her fit to return to work with the defendant on at least light duties.
·She returned to work with the defendant and was restricted to “no bending, lifting or mopping” and initially was only working a couple of hours a day and increased her hours slowly. She did not return to her part-time office cleaning job as it had been recontracted in her absence.
·She describes that although it was good to be back at work doing something, her back ached and she had to take more medication “just to get by”.
·She notes that following her injury, the roles changed at the defendant’s premises to permit cleaners to work in pairs, which meant that she was able to receive the support of co-workers, which she described as “fantastic”. Notwithstanding, she finished most days with back pain and right hip pain.
·Her general practitioner, Dr Wallis, arranged for her to undergo an MRI scan of her lumbar spine in November 2013 and on 19 March 2014, she underwent an x-ray and ultrasound of her right hip and pelvis and was advised that she had osteoarthritis in her right hip.
·On 3 February 2015, she was referred to Mr Andrew Hardidge, orthopaedic surgeon, and was told that the problems in her back and right hip were “arthritic”.
·Mr Hardidge advised her to undergo a hip replacement, which was undertaken on 7 July 2015, and she notes that although her hip pain improved after such replacement, her back and buttock pain continued.
·She notes [at the time of her first affidavit] that she still works with the defendant and struggles each day, and has to rely on the “kindness and support of my work friends just to get by”. She notes that they help with the heavy tasks and are there to pick up her slack. She comments that, without them, she would not be able to continue working.
·She finds work really “hard going” and although she has found ways to manage her pain at work – by stealing five minutes’ rest here and there and lying down during her lunchbreak – there are still many shifts and that she ends up doubled over with back pain.
·She tries not to complain because she needs to work, both because work is “what I do and because I am now the sole ‘bread winner’ in the family, as [her husband] was recently forced to stop his job of 30 years due to injury”.[17]
·She describes [at the time of her first affidavit] continuing to suffer pain in the middle of her lower back, which radiates into her right buttock and thigh. Such pain is always there and sometimes she suffers a “severe flare up of pain that pulses down [her] legs in sharp spasms”.
·When she is struck with such pain, she needs to sit down or lie down, at the very least, and stop what she is doing and brace against the pain. She describes the pain as “entirely unpredictable” and may experience such pain when carrying groceries from the car but, on other occasions, just bending down to pick up the remote control or putting a dish away will set off a surge of pain.
·On the whole, bending aggravates her pain, as does sitting or standing for too long, and coughing and sneezing also causes increased pain.
·She has trouble sleeping and wakes at least three times a night due to the pain, and when this occurs, she usually gets up and paces the house to stretch out her back. She notes that she cannot remember the last time she had a “good night’s sleep”.
·Her relationship with her husband and children has suffered greatly because of the back injury, as she finds herself grumpy and takes out her frustrations on them.
·She struggles with the housework and when she gets home from work she has to sit down and rest. She struggles to cook and clean and does rely on her children “a great deal”, which frustrates her as she used to be very “house proud” and is not embarrassed by the state of her home.
·She continues to attend her general practitioner who, at the time of the first affidavit, was Dr Yossry Hannah, who took over from Dr Wallis, who retired earlier that year. She has been told that there is “really nothing that can be done for my back, that I just have to live with it and cope as best I can”.[18]
·She considers that her condition is deteriorating and that she suffers more flare-ups of back pain than, say, a year ago. She has doubts that she will be able to keep working for much longer and she worries about the future.
[17]See exhibit 1 at page 20 PCB
[18]See exhibit 1 at page 21 PCB
15 I refer to the second affidavit of the plaintiff sworn 23 August 2018,[19] Such affidavit is largely a response to an affidavit of Leanne Mills (“Ms Mills”), sworn 8 June 2018, which is relied on by the defendant. In that affidavit, Ms Mills describes herself as the acting director of professional practice nursing and workforce for Austin Health, a position that she has been in since April 2018. Prior to that, she was director of nursing at the Royal Talbot Rehabilitation Centre from April 2016, and was there for about eighteen months.
[19]See exhibit 1 at pages 73-77 PCB
16 In particular, Ms Mills deposes:
·She has known the plaintiff since April 2016 and that the plaintiff has been an employee of the defendant since 2005, and that at the time of swearing her affidavit, worked full time as a cleaner from Monday to Friday, five days a week, from 5.00am to 11.00am.
·In late 2016, the plaintiff applied for another cleaning position with the defendant, but later withdrew that application and told Ms Mills that she wanted the position as she would like to work on the morning shift. After that conversation, Ms Mills arranged for the plaintiff to commence her current roster of 5.00am to 11.00am.
·Since her return to work in April 2016, the plaintiff has only had eight personal leave days and three-and-half family leave days.
·She notes her observations of the plaintiff are that she has never seen the plaintiff display any difficulties with her work duties and never received any complaints from her regarding performance of any current cleaning duties. She notes that if she had observed the plaintiff having any difficulties performing her duties or received any complaint from her, that would have been acted on immediately.
·She notes that the plaintiff is a “reliable and very experienced cleaner and her employment is secure as a permanent Austin Health employee.”
17 By way of her second affidavit, the plaintiff gives the following salient evidence:
·That it is “essentially correct” that she never complained to Ms Mills, save for at least on one occasion, telling Ms Mills her back was particularly bad and that she had to leave early, and she remembers that Ms Mills “kindly did not dock my pay”.
·She notes that she did not complain more because she was desperate to keep her job and because Ms Mills, as the director of nursing, had a lot on her plate.
·She notes working over the years as a cleaner in a hospital environment has taught her that cleaners do not bother directors of nursing with aspects of jobs – there being a division between cleaners and nurses.
·In respect to her attendance record, she considers that is probably right, as she does not want to take time off work because she is desperate to keep her job.
·In response to the assertion by Ms Mills that she was performing her duties “without any problems”, the plaintiff deposes:
“… That is not true. She does not know the real situation. As I said in paragraphs 21 and 22 of my earlier Affidavit, work is really hard going – I am in pain when I perform each and every one of my duties. It is only getting worse. I now take medication at the start and the end of each shift just to get by. When I get home I am usually in such pain that all I can do is lie down. It’s a continuous battle to recover from the previous day’s shift just to front up for the next day.”[20]
[20]See exhibit 1 at page 76 PCB
·The plaintiff notes that the affidavit of Ms Mills seems to imply that she has been performing the same job as she did before her injury in the same way. The plaintiff says this is not true and that her job is “far different to what I did as is the way I go about it”. In particular, the plaintiff deposes:
“Before my injury I worked alone. As I said in paragraph 8 of my earlier Affidavit, my work involved a lot of heavy cleaning activities. The toughest tasks were outside. Pushing the heavily laden linen trolleys across the grounds, up the hills and over the uneven door jams was a real struggle and at times near impossible. Lugging full garbage bags down from the Warrawee and CBDATS units was also really hard going. Also the equipment I had to use (mops, vacuums etc) was antique and made for heavy going.
The job I do now is far lighter. I no longer perform any of the work outside. I work at a far slower pace and receive the assistance of my workmates. Thankfully, the vacuums, mops and buckets have been replaced with lighter, more ergonomic models which makes things easier.”[21]
·She notes that her pain levels have increased and that Dr Hannah now prescribes her Lyrica, Moxicam and Effexor, which she does not like taking because they constipate her, but she has “no choice”.
[21]See exhibit 1 at page 77 PCB
18 The plaintiff also relies on an affidavit of Julie Anne Peters (“Ms Peters”), sworn on 3 October 2018.[22] In that affidavit, Ms Peters describes how she has been employed by the defendant for approximately ten or eleven years across various campuses, but was appointed to a permanent part-time position at the Royal Talbot Campus approximately eight or nine years ago as a cleaner, and presently works from 5.00am to 11.30am, five days a week with the plaintiff.
[22]See exhibit 6 at pages 87-89 PCB
19 Ms Peters further deposes that she is aware that the plaintiff suffered a work-related back injury several years ago which continues to cause her problems. She also recalls that when the plaintiff returned to work on “modified duties” – she means, by that term, that the plaintiff still did a full load of cleaning, but some work equipment and duties had been modified to make the job easier. Such equipment modifications benefitted all of the staff at the Royal Talbot Hospital.
20 In particular, Ms Peters notes:
·That when she first started working at the Royal Talbot Hospital, the cleaning staff were required to use vacuum cleaners that were quite heavy to pull around, but after the plaintiff hurt her back, vacuum cleaners were replaced with a lighter model and they were “less challenging”.
·The cleaning staff used to use a foot-operated mop bucket and this was later changed to a hand-levered type, after the plaintiff hurt her back. Ms Peters notes that the hand-levered version to be “higher and much lighter to use”.
·Ms Peters also notes that the defendant also introduced longer-handled dusters and pick-up sticks for lifting items off the floor to make cleaning duties less arduous.
·When Ms Peters started at Royal Talbot Hospital, the plaintiff was allocated to clean all of the “outside” areas on her own, which would encompass the Worawee House, the community-based disability and training services area, the ABI art room, three flats and two other areas that are no longer in use. Ms Peters describes such work as “quite heavy work for one person to complete on their own and there was quite a distance to walk”. Going from one area to another, it involved going up and down areas during the course of the job. Ms Peters notes that since her injury, the plaintiff no longer does any of the “outside” areas and her duties are now contained to the main building. Ms Peters believes that such work role changed several years ago under the guidance of the previous director of nursing, Jennifer Hancock. Indeed, Ms Peters, initially with another worker, did such “outside” jobs and now does them with another worker referred to as “Ben”.
·Ms Peters deposes, on most wards, someone from the Princess Laundry Services wheels a full linen trolley into the ward and removes the bigger trolley filled with dirty linen bags sometime during the day; however, the cleaners are required to wheel individual linen bags to the bigger trolley to empty them and saying this is done several times a day. She notes that at times these bags can be quite heavy as they can be over filled by the staff. Ms Peters also notes that whereas the plaintiff used to work from 12.00pm to 6.00pm, she has now changed her present shift, which involves the same work, but there are less people in the offices that she has to clean, which makes the job easier.
·Finally, Ms Peters deposes:
“Although the Plaintiff has told me about her back injury and the fact that it sometimes causes her to have sciatic pain, she tends to just get on with the job. I have not noticed her taking extra time off work or to be slack in her duties. She is a hard worker.”[23]
[23]See exhibit 6 – paragraph [15] at page 89 PCB
The medical treatment of the Plaintiff
21 The plaintiff relies on several reports and documentation from her then general practitioner, Dr Ian Wallis, who was situated at Waiora Road Medical Centre in Heidelberg.[24]
[24]See exhibit 2 at pages 20-28 PCB
22 In his report dated 28 September 2013, Dr Wallis describes himself as being the local medical officer of the plaintiff for over twenty years and that her only significant medical problems had been leukaemia as a child and a history of asthma and bronchitis. He was aware that she was employed as a cleaner with the defendant.
23 He records that on 17 June 2013, the plaintiff consulted him, complaining of right leg pain since twisting her leg at work a week earlier. Examination revealed lumbar tenderness and straight leg raising on the right to only 40 degrees. At that time, he diagnosed lumbar musculoskeletal strain with right-sided sciatica and advised rest, physiotherapy and Naprosyn, and provided a WorkCare certificate to remain off work. Dr Wallis notes in that report, that although the acute spasm had subsided, the plaintiff remained with active backache and right-sided neuralgic pain, especially when she lifts or bends.
24 At that time, Dr Wallis noted that the defendant brought about some changes at the work site, including long-handled brooms and a new mop bucket. He notes that the plaintiff resumed part-time gradual restricted work duties on or about 11 July 2013, with such duties involving no lifting, bending or outside mopping.
25 Dr Wallis arranged for the plaintiff to undergo a plain x-ray of her lumbosacral spine on 23 July 2013.[25] The radiologist reported:
“Frontal and lateral views of the lumbosacral spine obtained demonstrating normal alignment. Preservation of the vertebral and intervertebral disc heights noted. No acute fractures detected.”
[25]See exhibit 3 at page 48 PCB
26 Dr Wallis noted that, also, he was intending to organise an MRI scan to demonstrate aetiology of spinal nerve root irritation, but the insurer rejected her claim after receiving the report from the orthopaedic surgeon, Associate Professor Bruce Love. Dr Love apparently described the “injury” as simply degenerative only, and presumably with no work involvement. Ultimately, Dr Wallis states that he assumes that the plaintiff had suffered a lumbar disc injury compressing the right spinal nerve root around L4-5 and that her work was “responsible for her current condition”.
27 In a report dated 5 December 2016, Dr Wallis records that the plaintiff underwent a right total hip replacement on 7 July 2015. Pre-operatively, she had been diagnosed with a degenerative arthritic hip and lumbar spine. The hip surgery was undertaken by the orthopaedic surgeon, Mr Hardidge, who initially consulted with the plaintiff in, seemingly, January 2015, when she was complaining of lateral thigh pain and a knee that gives way and clicks, and also back pain. On examination, she had reduced lumbar spine movement, and at that time, Mr Hardidge considered the plaintiff to be suffering, among other things, osteoarthritis of the lumbar spine. Dr Wallis did refer the plaintiff for an MRI scan, which was undertaken on 22 November 2013.[26]
[26]See exhibit 3 at pages 49-50 PCB
28 The radiologist reported on that scan as follows:
“Early degenerative disc disease only without significant disc bulge or protrusion. Small L5/S1 right posterolateral annual tear/fissure might explain some acute-on-chronic discomfort in the appropriate clinical setting. There is no convincing right-sided nerve root impingement.”
29 Dr Wallis also referred the plaintiff for a bone scan on 24 July 2014[27] and the examining physician concluded:
“The bone scan findings are consistent with degenerative arthropathy in the right hip and L4/5 facet joint on the left with mild inflammatory component … .”
[27]See exhibit 3 at page 53 PCB
30 The plaintiff also relies on the clinical notes from the St Mary Medical Centre in Greensborough.[28] These notes cover the treatment at that clinic from when the plaintiff first attended on 14 November 2016 up to 16 August 2018. Her initial doctor at that clinic was Dr Yossry Hanna until July 2018, and thereafter has been Dr Vivian Ouraha.
[28]See exhibit 5 at pages 55-74 PCB
31 Dr Hanna arranged for the plaintiff to undergo a CT scan of her lumbar spine on 25 October 2017.[29] The clinical notes of that time suggested that the plaintiff was having lower back pain with no neurology or urinary incontinence. The radiologist concluded:
“No cause for back pain identified. No degenerative discs with normal alignment and no evidence of spinal canal or neural exit foraminal stenosis.”
[29]See exhibit 3 at page 54 PCB
32 Dr Ouraha arranged for the plaintiff to undergo a CT scan of her cervical, thoracic and lumbar spine on 21 August 2018.[30] The “impression” of the radiology registrar was that the scan revealed:
“Facet joint arthropathy and ligamentum flavum hypertrophy is present, worst at the L4 / 5 level on the left. No evidence of nerve root impingement is noted. No findings to suggest cause for arm or right leg symptoms identified.
Incidental findings as reported above.”
[30]See exhibit 3 at page 79 PCB
33 The plaintiff relied on, in particular, a report from her current general practitioner, Dr Ouraha, dated 4 October 2018.[31] Dr Ouraha confirmed that she had seen the plaintiff only a “few times” since July 2018 after Dr Hanna left the clinic.
[31]See exhibit 2 at pages 80-82 PCB
34 Dr Ouraha, after repeating the earlier history, noted that the plaintiff stated that her back pain remained “intermittent” and she was taking Panadeine and Brufen for pain when needed, and remained at work. The plaintiff considered that she was suffering from gradually deteriorating lower back pain radiating to her buttocks, both thighs and back of both knees, associated with muscle cramping, from six months after the fall.
35 The plaintiff also gave a history that the pain is affecting her wellbeing in general, affecting her sleep, and she is unable to turn over without back pain, which wakes her up and makes her feel tired throughout the day.
36 Dr Ouraha notes that over a period of time, the plaintiff has been managed for her pain with Panadeine Forte, Endep, Celebrex, Mobic, Lyrica and prednisolone, when needed. Some of these were ceased because of side effects. The plaintiff has also undergone physiotherapy and hydrotherapy.
37 In particular, Dr Ouraha states:
“… My diagnosis of her condition is:
significant facet joint arthropathy and ligamentum flavum hypertrophy at the L4/L5 and L5/S1 levels as a result of back injury and continuing repetitive back movements, bending, weight lifting, and pushing at work as a cleaner.
… In my opinion Mrs Sharon Price[’s] condition is progressive and likely to deteriorate, especially if she continues her current work duties. She is currently work 5 and a half hours daily, 5 days a week.
… I suggest that Sharon should have regular physiotherapy, hydrotherapy and psychotherapy as well to help her physically and mentally … .”[32]
[32]Exhibit 5
38 A perusal of the clinical notes over the period from 14 November 2016 up to 16 August 2018, would suggest that the plaintiff attended, complaining of lower back pain, approximately sixteen times. I refer to some of those consultations:
(a)on 15 May 2017, the plaintiff complained of lower back pain to Dr Hanna. Seemingly, Dr Hanna recorded that there were:
“… no neurological symptomes, numbness affecteing his , no lumbar spine tenderness. SLR negative , no urine incontinence , no tenderness over the rt renal angle, no urine changes , no weakness in the lower limbs .,no intermitant claudication , pain increased by coughing and sneesing for investigations , xray or ct scan then MRI.”
(sic).[33]
[33]Exhibit 5 at page 58 PCB
(b)the plaintiff again attended Dr Hanna on 6 October 2017, complaining of lower back pain. Dr Hanna has recorded:
“… no sciatica , no pins and needles in the feet , no urine incontinence , only when she sneeze, or , cough ... .” [34]
[34]Exhibit 5 at page 59 PCB
(sic).
Examination over the lower lumbar spine revealed tenderness and there was absent reflexes in the ankles, although normal in the knees. At that time, Dr Hanna arranged for the plaintiff to undergo a CT scan of her lumbar spine on 25 October 2017, to which I have already made reference;
(c)on 30 October 2017, the plaintiff again complains of lower back pain and there seemingly is a discussion about the CT scan, which would suggest there was no reason shown on the scan for the lower back pain;
(d)on 6 November 2017, the plaintiff consulted Dr Hanna, complaining of lower back pain and at that time was taking Endep, which seemingly was changed to Lyrica, 25 milligrams.
On 13 November 2017, Dr Hanna increased the Lyrica from 25 milligrams to 50 milligrams;
(e)on 15 January 2018, the plaintiff consulted Dr Hanna, complaining of lower back pain radiating to both lower limbs, with the right worse than the left. In particular, the plaintiff complained of pain that “pain is bad at night and wakes her up”.[35] She also complained of some urine incontinence, there was tenderness over the lower lumbar spine, straight leg raising about 85 degrees bilateral, absent ankle reflexes, but knee reflexes present;
[35]Exhibit 5 at page 66 PCB
(f)on 2 February 2018, the plaintiff again consulted Dr Hanna, detailing, again, a long history of back pain and also indicating there was no gynaecological cause for her lower back pain. On that occasion, she also complained of poor sleep and Dr Hanna has recorded:
“… Early morning wakening. Normal self esteem. Depressed mood. Anxious. No stress at work. No relationship problems. No financial problems. No recent bereavement. Irritability. Irrational fears. No panic attacks. No compulsive behaviours. No auditory hallucinations. No visual hallucinations. No suicidal thoughts. No suicide attempts. No substance abuse.”[36]
[36]Exhibit 5 at page 66 PCB
Dr Hanna diagnosed neuropathic pain and anxiety/depression.
(g)on 23 February 2018, the plaintiff again consulted Dr Hanna, complaining of lower back pain and it was planned for her to undergo physiotherapy for such pain;
(h)on 27 April 2018, she again consulted Dr Hanna, complaining of lower back pain, and it was noted that there was no pathology shown on the CT scan. At that time, Dr Hanna added Endep, 10 milligrams “on top of” 75 milligrams of Effexor for two weeks;
(i)on 18 May 2018, the plaintiff consulted Dr Hanna, complaining of lower back pain, resulting in her Endep being increased to 25-milligram tablets, and there was also a change to her asthma medication;
(j)on 25 May 2018, she again consulted Dr Hanna, complaining of mid-back pain, which was not responding to Endep and/or Lyrica, and a diagnosis was made of neuropathic pain;
(k)on 8 June 2018, she again consulted Dr Hanna, complaining of lower back pain, which she thought was “slightly better”;
(l)on 13 July 2018, she consulted Dr Hanna, complaining of lower back pain when a skip full of dirty linen hit her back at work;
(m)the plaintiff was again seen on 20 July 2018 and lastly, on 16 August 2018 (insofar as these records reveal), and on each occasion complained of lower back pain. On the last occasion, she was tender in her mid and lower back, straight leg raising was limited and movement of her back was intact, but “painful”. Supportive measures were recommended, including Endep, Celebrex and Lyrica.
Medico-legal material
39 The plaintiff relies on the following medico-legal material:
(a)the report of the occupational health and rehabilitation consultant, Dr David Middleton, who examined the plaintiff on 7 December 2017;[37]
(b)the report of the orthopaedic surgeon, Dr Jonathan Hooper, who examined the plaintiff on 25 September 2018.[38]
[37]See exhibit 4, report dated 19 December 2017 at pages 33-47 PCB
[38]See exhibit 4, report of same date at pages 83-86 PCB
40 When Dr Middleton examined the plaintiff, he obtained a full history and, in particular, obtained a history that her current activities involved being employed by the defendant from 5.00am to 11.00am – that is, twenty-seven-and-a-half hours per week – and her normal cleaning duties include twenty-eight toilets and numerous offices, together with large physiotherapy and occupational therapy treatment areas.
41 Dr Middleton also noted that her work still includes the need to move heavy objects and furniture, the cleaning of wet areas and floors, vacuuming of carpets, high dusting and emptying of rubbish bins. The rubbish has to be taken to a large skip, where she has to open a rather heavy lid to be able to deposit the rubbish.
42 The plaintiff informed Dr Middleton that she can sit for about fifteen to twenty minutes, depending on the chair, stand still for about fifteen to twenty minutes, and although her walking has improved, is still limited to a maximum of 500 metres. In particular, when it comes to lifting, the plaintiff stated that she does nothing heavy, estimating a maximum achievable weight of 5 kilograms occasionally, noting that her children help her at home with a variety of domestic activities. He also noted that the plaintiff came to the appointment by way of two trains and a taxi, as driving is limited to a local area of up to fifteen minutes. At home she does support her husband, who is not working, and he cooks but cannot do much because of his chronically injured back.
43 In particular, Dr Middleton noted that the plaintiff presented as a “cooperative and honest lady whose responses were somewhat slow and clearly showed evidence of a poor memory”.[39]
[39]Exhibit 4 at page 36 PCB
44 Dr Middleton made an examination and referred to a variety of reports made available to him.
45 Dr Middleton was posed a variety of questions. In particular, he was asked his diagnosis and prognosis, and whether the employment of the defendant contributed to any medical condition suffered by the plaintiff. In response to such question, Dr Middleton states, in part:
“Noting the heavy and awkward nature of Ms Price’s work as a Cleaner at Austin Health that did require modification to some of the equipment she was expected to work with and including the fall down the external concrete stairs, it is my opinion that Ms Price’s work as a Cleaner with Austin Health was a significant cause to aggravate her previously asymptomatic, age-related, degenerative disease of the lumbar spine, rendering it symptomatic for which the conservative treatment provided has had limited benefit and that she remains at work on her normal 27½ hours per week doing normal cleaning work that excludes the outside cleaning duties and complies with limited bending, lifting and twisting activities and the effective weights and forces that need to be complied with.”[40]
[40]See exhibit 4 at page 44 PCB
46 Furthermore, in his opinion, Dr Middleton considers that noting the developing of discogenic leg pain, he was of the opinion that there was likely some derangement of the L5-S1 intervertebral disc, with the onset of lumbar instability and the development of a pain with a neuropathic component which has never been fully addressed. Dr Middleton was also of the opinion that the prognosis of such condition was “guarded”. In particular, Dr Middleton was of the opinion that the various restrictions as she does suffer – restrictions sitting, restrictions standing, improved walking, but still limited to about a maximum of 500 metres, plus restrictive lifting – are all likely to last into the foreseeable future as a result of such injury.
47 Dr Hooper was supplied with most of the radiology reports and, indeed, reports from both treating doctors and medico-legal doctors who had seen the plaintiff on behalf of the defendant. In particular, he also had available the latest CT scan of the cervical, thoracic and lumbar spine, undertaken on 21 August 2018.[41]
[41]See exhibit 3 at page 79 PCB
48 Dr Hooper obtained a history from the plaintiff of both performing heavy work with the defendant and also having a tripping episode when she went down some stairs at work. Dr Hooper records that the plaintiff gave a history that following that incident she “strained her lower back”.
49 At the time of examination, Dr Hooper records that the plaintiff “is able to walk as far as she wants” and has “no problem with walking”. Furthermore, she drives, but does get some “night discomfort”. Furthermore, she was able to do her own housework.
50 At the time of Dr Hooper’s examination, the plaintiff was taking both Lyrica and Effexor, together with Panadol. After making a physical examination, Dr Hooper responded to various questions posed to him.
51 In particular, Dr Hooper diagnosed a “low back strain due to the general fitness level, obesity and age and related degenerative changes”. Furthermore, Dr Hooper opined that her prognosis is “good”, although she is likely to have some continued back discomfort.
52 In particular, Dr Hooper stated:
“It can be stated her symptoms came on in the course of work in 2013 and there was no associated external injury. Her continued symptoms are due to the related changes one sees in her spine due to ageing.”[42]
[42]See exhibit 4 at page 85 PCB
53 Dr Hooper considered that the plaintiff’s condition would deteriorate in the future due to the natural processes of ageing, and that she should not participate in activities that cause her pain and discomfort, such as repetitive bending and heavy lifting.
54 It is also convenient to refer to the medico-legal reports relied on by the defendant. Such reports are:
(a)the report of the occupational physician, Dr Gary Davison, who examined the plaintiff on 25 July 2013.[43] Dr Davison also supplied a supplementary report dated 5 December 2013;[44]
(b)the report of the orthopaedic surgeon, Mr Clive Jones, who examined the plaintiff on 17 June 2014;[45]
(c)the report of the orthopaedic surgeon, Mr Paul Kierce, who examined the plaintiff on 21 June 2017.[46]
[43]See exhibit B, report of same date, at pages 9-19 DCB
[44]See exhibit B at pages 21-21 DCB
[45]See exhibit B, report dated 10 July 2014 at pages 22-27 DCB
[46]See exhibit B, report of same date at pages 28-43 DCB
55 When Dr Davison examined the plaintiff on 25 July 2013, he obtained a history from the plaintiff in relation to the onset of pain and also made an examination. In particular, Dr Davison noted that the plaintiff was:
“… a pleasant and cooperative historian who gave a good account of herself.”[47]
[47]See exhibit B at page 11 DCB
56 Part of the history obtained by Dr Davison was that the plaintiff had a three or four-month history (at that time) of bilateral pain down the back of both thighs, with radiation towards the sacral iliac joints bilaterally. Palpation of the sacroiliac joints revealed tenderness.
57 In particular, Dr Davison found no objective evidence of radiculopathy, and he suspected that she was experiencing symptomatic degenerative arthropathy, most probably at the sacroiliac joints.
58 Dr Davison considered the onset of symptoms were “insidious”, as the plaintiff did not experience an incident or accident at work. He considered that the condition was “most probably” the result of a constitutional tendency, significant obesity and a lifelong smoking habit. At that time, Dr Davison, although considering the plaintiff had some capacity for work, could not undertake full-time pre-injury work, and that a gradual return to work should be organised.
59 Subsequently, Dr Davison was supplied a report of an MRI scan of the lumbar spine undertaken on 22 November 2013[48] and was further questioned as to whether or not the plaintiff had suffered injury arising out of the course of her employment with the defendant.
[48]See exhibit 3 at pages 49-50 PCB
60 In a supplementary report dated 5 December 2013,[49] Dr Davison maintained his opinion that the condition of the plaintiff was:
[49]See exhibit B at pages 20-21 SCB
“… derived from a constitutionally-based degenerative condition, to which the following factors have contributed:
·Genetic predisposition
·Significant obesity
·Heavy smoking habit.”
61 Mr Jones records in his report that there was “no history of injury as such”. In particular, he obtained no history of any fall or lifting strain, and noted that the problem started with pain in both legs, right first, then left, and cramping sensations in both calves. About one month later, the plaintiff was aware of lower back pain, causing her to consult the general practitioner, who made a diagnosis of back pain and sciatica.
62 At the time of the examination, the plaintiff complained of lower back discomfort, particularly sitting for long periods. Mr Jones reported that the plaintiff said her pain and cramping in the legs had improved “very substantially”.
63 On examination, Mr Jones found the plaintiff to have a normal gait, displayed 70 degrees of spinal flexion, and straight leg raising was full and unrestricted. There were no abnormal neurological signs in her legs.
64 Mr Jones did not have available hard copies of the radiological material, but noted that such studies revealed early degenerative disease without significant disc bulge or protrusion, together with an annular fissure at L5-S1.
65 In his report, Mr Jones states, in part:
“This lady’s problem commenced in April last year with leg pain, followed by the development of pain in the back. The leg pain has now disappeared, but variable levels of backache are still troublesome. There is no disc prolapse, and this lady does not have radiculopathy. She does appear to have sustained some sort of straining injury, but the aggravation of April last year, appears to have ceased.”[50]
[50]See exhibit B at page 23 DCB
66 Mr Jones noted that the plaintiff had returned to “more or less” her pre-injury duties, with a lifting restriction and the provision or rest breaks, as required. He opined that he considered the plaintiff would make a full normal return to work within six months.
67 Seemingly, the last doctor to examine the plaintiff on behalf of the defendant was the orthopaedic surgeon, Mr Kierce, and he was requested to “make decisions about the worker’s claim for an impairment lump sum”. Mr Kierce notes that his opinion provided in the report “is based entirely upon the evaluation of objective findings identified on the 21st June 2017”.[51]
[51]See exhibit B at page 29 DCB
68 Mr Kierce recorded a work history, a previous medical history and the history of the subject injury. He also set out details of her treatment over the years.
69 At the time of the examination with Mr Kierce, the plaintiff indicated on diagrams that she suffers from central lower back pain which radiates into the right buttock and down the back of the right thigh. At that time the back pain was intermittent, but attacks can be severe, and such attacks are being suffered about twice a month, which she feels are more frequent than they used to be. The pain varies from dull to sharp, and she rated the dull ache as being 2 to 3 out of 10 in severity, but with some attacks of pain, the severity of the pain got up to 8 out of 10.
70 Bending, in general, aggravates her back pain, as does sitting and standing. Walking also sometimes aggravated her lower back pain and she is conscious of her posture to keep her back straight as she walks. She avoids lifting and she also noted that coughing and sneezing “worry her back”. The plaintiff also advised Mr Kierce that she takes Advil, an anti-inflammatory medication, Panadol Rapid and, less often, Panadeine Forte.
71 Under the heading “Examination”, Mr Kierce notes that the plaintiff presented “as a very caring, pleasant genuine person who did not have any abnormal pain behaviour”.[52]
[52]See exhibit B at page 34 DCB
72 Mr Kierce records that the plaintiff could readily walk on her heels and toes and walk without a walking aid. She does have a decreased lumbar lordosis and was tender over the interspinous ligament between the fourth and fifth lumbar vertebrae and in both buttocks.
73 Mr Kierce found “definite muscle spasm” in the right lumbar muscles, and on attempted spinal flexion she could reach her fingers to her ankles, but extension of the lumbar spine was limited to 50 per cent of the normal range. Furthermore, lateral flexion to the right rotation of the thoracolumbar spine to the right was both limited and painful. Straight leg raising on the right was negative, but it was positive 40 degrees on the left.
74 Mr Kierce opined that the plaintiff had “aggravated pre-existing lumbar spondylosis in the course of her work as a cleaner at the Austin Hospital”. He also noted that there was no evidence of radiculopathy or loss of structural integrity.
75 Mr Kierce was also of the opinion that her employment continues to be materially contributed to her lower back condition and that, furthermore, her condition was unlikely to fully resolve and he found her condition to be “stable”.
Further material relied on by the Defendant
76 The defendant relies on a further affidavit of Ms Mills sworn on 21 December 2018.[53] In that affidavit, Ms Mills deposes that she has read the affidavit of the plaintiff, sworn on 23 August 2018 and affidavit of Ms Peters, sworn on 3 October 2018, and which is responding to matters raised therein.
[53]See exhibit A at pages 44-45 DCB
77 Ms Mills deposes that she does not recall the plaintiff every complaining that her back was particularly bad and that she had to leave early. If such report had been made it would have been recorded in sick leave taken for the period the plaintiff had to leave early.
78 Ms Mills also deposes that she had various discussions with the plaintiff regarding her employment and that at no time did the plaintiff raise any concern she was struggling performing her employment. Furthermore, she does not recall seeing the plaintiff struggling while performing her duties. Ms Mills also confirmed that some time during 2016, the defendant undertook a review of the cleaning duties employed by all employees and restructured the equipment and the tasks that were required. In particular, Ms Mills deposes that “the cleaning duties the plaintiff is presently performing are the same duties she would be performing had the injury not occurred”. She also notes that the plaintiff has continued performing all her cleaning duties without “any observable problems or complaints”.
79 The defendant also relies on an affidavit of Emma Joy Wadeson (“Ms Wadeson”), sworn on 20 December 2018.[54] In her affidavit, Ms Wadeson describes herself as the director of nursing at Austin Hospital, based at Royal Talbot Rehabilitation Hospital since September 2017. In particular, she deposes that she has been the direct supervisor of the plaintiff between September 2017 and July 2018. She deposes that the plaintiff performs all the cleaning duties as required in her employment without any problem and in particular, “cleans toilets, bathrooms, vacuums, empties bins and mops within the facility”.
[54]See exhibit A at pages 46-47 DCB
80 Ms Wadeson also deposes that the plaintiff is “highly regarded” and has not made any complaints regarding performance of her duties and since 2 September 2017, Ms Wadeson has not observed her as having any problems performing her duties at any time. Furthermore, she deposes that the plaintiff has not taken any time off work due to her injury since September 2017 to my knowledge.
The cross-examination of the Plaintiff
81 The plaintiff accepted, under cross-examination, that she obtained a certificate certifying her fit for normal duties back on 16 August 2014. Furthermore, she accepted that she has performed her normal duties since 2014 until the present day, subject to no longer doing outside work, which she did on her own prior to 2014.
82 The plaintiff also confirmed that after the onset of the initial injury, she was off work for probably a month and then started back at work on light duties, which involved no bending or wiping down things, and also having the assistance of another cleaner to help her. The plaintiff believed that such assistance probably extended for about a month or so.
83 The plaintiff also confirmed that after her resumption of work she no longer had to clean outside areas, and that work is now undertaken by other cleaners working in pairs. The plaintiff also confirmed that since being back at work there had been changes involving a different type of mop bucket, which is now operated by a hand lever rather than pushing a pedal, the introduction of new, lighter vacuum cleaners, and the introduction of long-handled dusters. The plaintiff accepted this was across the board for all cleaners.
84 The plaintiff also confirmed that she is presently working twenty-seven-and-a-half hours a week – that, is, five-and-a-half hours a day – and although she initially worked from twelve midday until six, for the last three years she has been working the morning shift from 5.00am to 11.00am, which is easier because there are less people around when doing her work.
85 The plaintiff also accepted that it was more convenient for her to work in the morning, as she had to take her husband, who had suffered a shoulder injury, and her son, to various medical appointments.
86 In particular, the plaintiff was questioned about her son, who continues to live at home, and she gave evidence that he is now twenty-eight and suffers from Bipolar Disorder and ADHD, and is on a Disability Support Pension from Centrelink.
87 The plaintiff confirmed that she has been the only wage earner for the last couple of years after her husband ceased work and that the rent of her house is $1,840 a month. The plaintiff also stated that it was intended they move to a “cheaper place” soon.
88 The plaintiff accepted that the shoulder injury suffered by her husband does impact on what he can do around the house and that her son does help out, doing what he is capable of doing. In particular, the plaintiff gave evidence that her son mows the lawn at the home, and tends to do a bit of gardening. The son helps with any lifting and anything like that because he is “very strong”.
89 The plaintiff accepted that the history obtained by Mr Middleton as to her work activities involving cleaning twenty-eight toilets, numerous offices and large physiotherapy and occupational therapy treatment areas, all of which may involve dusting, mopping and vacuuming, and the emptying of rubbish bins.
90 The plaintiff did note that they now have pick-up sticks for papers and such are picked up and put into a little bag, which is then placed in the trolley bag. The trolley consists of a four-wheeled trolley, and it is necessary to empty the trolley bag into a wheelie bin.
91 In particular, the following evidence was given:
HIS HONOUR:
Q: “I just want to understand that. The bag which you have effectively with you when you’re cleaning, is that in trolley itself, is it?---
A:That’s in a trolley itself, yes.
Q:And a trolley like people put out for rubbish at night or something smaller?---
A:It’s got all your cleaning equipment and things on it - - -
Q: It’s all attached - - - ?---
A: - - - and the bag is at the back.
Q: Four wheels or two wheels?---
A: It’s on four wheels.
Q: And you just push it along?---
A: Yes.
Q:So empty rubbish bins at the bag, paper, whatever else may be here and then once it’s full at a point, there’s a bigger bin – there’s a bigger rubbish bin where that’s tipped into?---
A:Yes.
Q: How do you go about that?---
A:Well, you take the bag off the trolley – you unzip it and it comes down the bottom, you’re not picking up as such.
Q: And once you’ve got the bag out, what do you do then?---
A: I wheel them all out to the bins and you just put the bags into - - -
Q: Put the rubbish bags into that?---
A: Yes.
Q:Correct me if I’m wrong, the rubbish bags, is it mostly paper and - - - ?---
A:Yes.
Q: Because they’re office-like runs and things - - - ?---
A: Yes.
Q: Yes, thank you.”
MS TSIKARAS:
Q:“The skips, that’s a really large bin, isn’t it, the skip that we’re talking about?---
A:Yes.
Q: And it’s got a big lid?---
A: Yes.
Q: And you have to lift the big lid up open?---
A:Yes, some are already open. I use the ones that are already open if there’s any like that there.
Q: But if they’re not open, you’ve got to physically open the lid?---
A: Yes.
Q:In terms of the dimensions, can you describe how big that skip is?---
A: Probably as wide as this.
Q:How high is it? If you want to stand up? – About there?---
A:About four feet?”[55]
[55]T31, L12-T32, L17
92 The plaintiff confirmed that she is able to catch public transport, although she does drive an automatic car to and from work, which is about twenty minutes from her residence.
93 The plaintiff also confirmed under cross-examination that the outdoor cleaning, which she no longer performs, did involve pushing trolleys from one unit to the other and this also involved a linen trolley. Although two other cleaners do the outdoor duties now, the plaintiff no longer performs any such duties. Furthermore, she is no longer involved in any of the linen duties and only collects dirty linen from certain areas, which is placed in a bag and left in a certain area.
94 The plaintiff accepted that her pain waxes and wanes in terms of severity. In particular, this evidence was given:
HIS HONOUR:
Q:“Just on that, Ms Price, tell me, I understand that waxes and wanes, I understand, I know the words, sometimes it’s worse and sometimes it’s better, can you give me some idea, do you have periods where you have no back pain?---
A:No, it’s mild. It’s very mild.
Q:And when you have, in your terms, bad back pain, firstly, just give me a bit of description what bad back pain means to you?---
A:I’m finding it very hard to sit for this long. I’m better walking than standing still or just sitting.
Q:How often does – if bad back pain, how often would that occur as far as you’re concerned?---
A:Probably a few times a week.
Q:And then do you take further medication for that?---
A:Yes.
Q:And does that do the trick and if so how quickly?---
A:It puts it down to a milder case usually.”[56]
[56]T40, L1-15
95 The plaintiff also confirmed under cross-examination that when Dr Middleton recorded that her work involves moving heavy objects and furniture, this was a reference to filing cabinets which were on wheels, that she is not required to move desks or that type of furniture. The plaintiff also confirmed that her dusting involved roof dusting ceiling cornices with the high duster with an extendable pole.
96 The plaintiff was cross-examined in relation to her attendance on Dr Hooper, who examined the plaintiff on 25 September 2018. It was put to the plaintiff that she told Mr Hooper that she is “able to walk as far as she wants”, to which the plaintiff responded, she does not remember saying that and that she cannot walk as far as she wants. She vaguely remembers saying, “I can walk as long as I have breaks in-between”. The plaintiff was also taken to that part of the report where it is recorded that she “drives” and she accepted that she can drive a motor vehicle. Furthermore, she was taken to that part of the report where it is recorded that the plaintiff gets “night discomfort”. When queried about that, the plaintiff stated she was not sure what he meant by “night discomfort”.
97 In particular, the following evidence was given:
HIS HONOUR:
Q:“When you go to bed at night do you have any difficulties about anything in bed?---
A:Apart from my back, just getting the position I want, but - - -
Q: I see, and what do you - just - well, tell me a bit about that?---
A: It’s just finding a position that’s - I’m not hurting as much in.
Q:So, when you’re in bed do you say your back hurts sometimes, does it?---
A:It does, yeah.
Q:And how often does that happen?---
A:Once I find a position that’s comfortable then I’m fine, but I wake up during the night and have to move.”[57]
[57]T41, L17-27
98 The plaintiff was then queried about the assertion in the report of Mr Hooper that she is “able to do her own housework”. The plaintiff stated that she told Mr Hooper that she does a small amount of housework, but she does not do all of it, and that her “kids” help me.
99 When queried as to whether the “kids” helped her prior to her injury in 2013, the plaintiff responded “not really”.
100 Under cross-examination the plaintiff confirmed that she had an injury to her foot in February 2016 and it was suggested to her that she had a couple of months off work, to which the plaintiff stated she remembers taking time off work, but does not remember it being a couple of months. The plaintiff accepted that “probably” any time off was a combination of annual leave and leave without pay.
101 The plaintiff accepted that apart from the time she was off work for her hip operation and her foot injury, she had not had any lengthy periods of time off work. Furthermore, she accepted that to the extent that she had time off work, it was a combination of either her back pain and caring for her husband. In particular, the following evidence was given:
HIS HONOUR:
Q:“Just I didn’t quite understand that. You haven’t had much time off work, putting aside the foot, putting aside the - what was it, shoulder, you haven’t had much time off work, that’s what you’re saying?---
A: Yes.
Q:Have you had time off work because of your back?---
A:Yes, I have, yeah.
Q:Give me some idea, what frequency do you have of that?---
A:It’s hard to say with - because I’ve - take time off for appointments and everything else, for my husband and for myself. Probably a third of the sick leave I take but when I’m taking time off for the other things I’m also getting the rest for my back from work.”[58]
[58]T42, L28 – T43, L8
102 Counsel for the defendant put to the plaintiff the contents of the affidavit of Mills wherein she states that since April 2016, the plaintiff has only taken eight personal leave days and three-and-a-half family leave days, and that was at 12 June 2018.
103 When the Court queried as to what “personal leave days” means, I was informed by counsel for the defendant that such a term covers a combination of sick leave, or any other sort of leave.[59]
[59]T43, L22-25
104 The plaintiff confirmed her statement in paragraph [5] of her second affidavit, that the alleged period off work was probably right. When questioned further about this time off, the plaintiff did make a comment that although it sounds correct, she did get to a point where she ran out of leave,[60] and also asserted that she believes she had taken “annual leave” as well in there.[61]
[60]T44, L11-15
[61]T45, L16-24
105 In particular, the following evidence was given:
HIS HONOUR:
Q:“The other thing I just want to ask you, where you were taken to about this 11 and a half days, you say in your affidavit, "I try not to take time off work because I am desperate to keep my job"; is that an accurate statement?---
A: I am desperate to keep my job and I need to - need to be employed for my family, yes.
Q: Just spell that out for me. What do you mean by that?---
A:Well, I’m the only breadwinner in my family, I need to be there for them.
… .”
MS TSIKARAS:
Q:“No-one’s suggesting, none of the doctors are suggesting that you stop work though, are they?---
A:No.”[62]
[62]T45, L28 – T46-T46, L8
The re-examination of the Plaintiff
106 Under re-examination, the plaintiff stated that if she was unable to take home money or took unpaid leave, the family would be “homeless”.
107 The plaintiff was queried about taking, in recent times, Endep, Panadeine Forte and OxyContin and, in particular, the following evidence was given:
MR JOHNSTONE:
Q:“Now, is the reason you’re not taking medication because you’re not in pain?---
A:No.
Q:Can you explain to the court why you’re not taking medication if you’re still in pain?---
A:I don’t like taking medication because it constipates me, it makes me feel unwell.
Q:When you say unwell, what do you mean? Can you expand on that?---
A: It’s – you know, I can’t drive, I’m just not totally with it.
Q:When you take the occasional Panadeine Forte and OxyContin, are you able to go to work on those medications?---
A:No, I take them sort of either when I come home or on a weekend if it’s – depending.”[63]
[63]T47, L15-26
Conclusion
108 As I have already recorded, there is no issue that the plaintiff suffered a compensable lower back injury arising out of or in the course of her employment with the defendant. Although notional “dates” of injury set out in the reports relied on by the defendant range from 1 April 2013 (see reports of Mr Gary Davison dated 25 July 2013 and report of Mr Clive Jones dated 5 December 2013[64]) and 14 June 2013 (see report of Mr Paul Kierce dated 21 June 2017[65]), the evidence would suggest that the plaintiff developed lower back pain over some period of time until approximately 14 June 2013, when she suffered an episode of “really bad back pain” (probably following the stumble on the stairs) when performing her cleaning duties. She initially consulted her then general practitioner, Dr Wallis, on 17 June 2013.
[64]See exhibit B at pages 9 and 22 PCB
[65]See exhibit B at page 28 PCB
109 Again, as I have recorded, the defendant identified the two issues to be:
(a)whether the plaintiff continues to suffer any work-related injury or, alternatively, has it now ceased, and any symptoms that the plaintiff may suffer are due to underlying degenerative changes in her spine; and
(b)in the event that there is an ongoing compensable injury which is “permanent” within the meaning of the Act, whether the plaintiff discharges her onus in establishing the narrative test.
110 Before determining those issues and the making of any findings, it is apposite to make findings on the credibility of the plaintiff. When queried as to whether there were any “credit issues”, counsel for the defendant, in my view, appropriately stated that there were not.
111 Having the advantage of seeing the plaintiff being well cross-examined in relation to a variety of issues, I formed the view that the plaintiff, although an unsophisticated witness with some memory difficulties, was extremely impressive, and at all times I accept that she was attempting to give honest and responsive answers to the questions posed to her and at no time did she attempt to “over-yoke” the contents of her evidence or exaggerate its consequences.
112 In this respect, I note the comments of:
(a)Dr Middleton, the occupational physician, who examined the plaintiff on 7 December 2007, and who described the presentation of the plaintiff as a “cooperative and honest lady whose responses were somewhat slow and clearly showed evidence of a poor memory”;[66]
(b)the report of Dr Davison, the occupational physician, who examined the plaintiff on 25 July 2013 on behalf of the defendant, who noted that the plaintiff was “a pleasant and cooperative historian who gave a good account of herself”;[67] and
(c)the report of the orthopaedic surgeon, Mr Kierce, who examined the plaintiff on behalf of the defendant on 21 June 2017 and who noted that the plaintiff presented “as a very caring, pleasant genuine person who did not have any abnormal pain behaviour”.[68]
[66]See exhibit 4 at page 36 PCB
[67]See exhibit B at page 11 DCB
[68]See exhibit B at page 34 DCB
113 Furthermore, both in her affidavit material and in her viva voce evidence in the Court, the plaintiff made various statements which could be construed against her interests – for example agreeing with many aspects of the affidavit material relied on by the defendant and, indeed, giving a full description of her day-to-day duties she presently undertakes with the defendant.
114 I have also formed the view that the plaintiff has an excellent work record, having commenced cleaning work after her children were born at the Mont Park Psychiatric Hospital for about ten years before it closed down, then through agency cleaning work and, finally, commencing with the defendant in 2005.
115 Also, the plaintiff gave evidence that not only was she working for the defendant up until the time of her injury, but also performing four hours of other part-time cleaning work with the Nationwide Aged Care Cleaning Services. In her affidavit, she states she was unable to return to such work after her injury because the contract for that job had been let in her absence.
116 In relation to the first issue identified by the defendant – that is, whether the plaintiff continues to suffer any work-related injury – it is for the plaintiff to establish as a matter of probability that such is the case. The resolution of such issue, like the resolution of many issues in applications for “serious injury” can only be based on the affidavits of the plaintiff, her viva voce evidence during the course of the proceeding ad the contents of various medical reports relied on by either side. As I have recorded, the plaintiff was the only witness to give evidence and be cross-examined.
117 After a consideration of all the evidence, I do find that, consistent with the opinions of the occupational consultant, Dr Middleton, who examined the plaintiff on 7 December 2017 (on behalf of her solicitors), and that of the orthopaedic surgeon, Mr Kierce, who examined the plaintiff on 21 June 2017 (on behalf of the defendant), that the employment of the plaintiff by the defendant aggravated pre-existing lumbar spondylosis (Mr Kierce) and/or age-related degenerative disease of the lumbar spine (Dr Middleton), giving rise to ongoing symptoms. I consider that such diagnoses are very similar and essentially involve the employment aggravating the pre-existing condition of the lumbar spine.
118 I make such finding for the following reasons:
(a)the reports of Dr Middleton and Mr Kierce are particularly thorough, with both having access to, seemingly, medical reports from both treating doctors, earlier medico-legal specialists and the radiology available as at the date of their examinations. I consider that the histories obtained are much in accord with the evidence given by the plaintiff by way of her affidavits, and her evidence during cross-examination and re-examination;
(b)I also refer to the report of the current treating general practitioner, Dr Ouraha, dated 4 October 2018, who had available the clinical notes of the St Mary Medical Centre since the plaintiff commenced treatment at that centre in November 2016. Furthermore, Dr Ouraha notes that she has the plaintiff’s previous health records from the other clinic – no doubt, that being the records of Dr Wallis of the Waiora Road Medical Centre in Heidelberg, who initially saw the plaintiff on 17 June 2013. Although Dr Ouraha had only seen the plaintiff a few times after Dr Hanna left the clinic, she had available the CT scan of the cervical, thoracic and lumbar spine undertaken on 21 August 2018.[69] Although proffering a slightly different diagnosis, Dr Ouraha expressed the opinion that following the advent of lower back pain following the jarring of her lower back at work, she had felt lower back pain and bilateral leg pain which has “persisted since then”;
[69]See exhibit 3 at pages 78 – 79 PCB
(c)As conceded by counsel for the defendant, the reports from the occupational physician, Dr Gary Davison, who examined the plaintiff on 25 July 2013, are of little assistance, in part, because of the age of such report but also, seemingly, Dr Davison never accepted there was any relationship between her symptoms and her employment with the defendant. Of course, I should add that he did accept that the plaintiff was suffering symptoms on his examination.
(d)Counsel for the defendant put some weight on the report of the orthopaedic surgeon, Mr Jones, who examined the plaintiff on 17 June 2014 (on behalf of the defendant) and the report of Dr Hooper, who examined the plaintiff on 25 September 2018. As I have already recorded, Mr Jones considered that the plaintiff suffered some sort of “straining or soft tissue injury” of the back, from which she had made a satisfactory recovery, although he considered that matters should be “reviewed in six months[’] time”. Again, such report is over four-and-a-half years old and does not take account of the symptoms detailed by the plaintiff over the ensuing years to date.
In particular, counsel for the defendant, understandably, put much weight on the report from Mr Hooper, being the last doctor in time, who also had available much of the pre-existing medical material and radiology. It is to be noted that the plaintiff did inform Mr Hooper that she tripped while going down some stairs in 2013, and although not falling, she “strained her lower back”.
Under the heading “PRESENT COMPLAINTS”, Mr Hooper only detailed that:
“She says she is able to walk as far as she wants. She has no problem with walking. She drives. She does get night discomfort, however. She is able to do her own housework.”
Indeed, when cross-examined about those complaints, the plaintiff contested that she told Mr Hooper she is able to walk as far as she wants but, rather, says she can walk as along as she has breaks in-between. Although not cross-examined about the history of being able to do her own housework, her evidence has been that, although she can do her own housework, she does get assistance from other members of her family. Furthermore, although Mr Hooper does record that she gets “night discomfort”, the plaintiff said she was not sure what he meant by “night discomfort”, but later explained how she had difficulty in bed at night from her back pain.[70]
Furthermore, Dr Hooper describes her ongoing symptoms since 2013 as a “niggle”, which would, again, seemingly be inconsistent with the evidence given by the plaintiff during the course of this trial and, indeed, which is supported by the clinical notes from the St Mary Medical Centre in Greensborough.[71] In all the circumstances, I am not attracted to the opinion of Mr Hooper.
[70]See T41, L17-27
[71]See exhibit 5 at pages 55-74 PCB
119 I should add that I do accept, on the basis of all the medical evidence, that there is no objective basis to support a diagnosis of disc prolapse or, indeed, any radiculopathy. No doctor was prepared to say there was objective evidence of any nerve impingement, notwithstanding the complaints of the plaintiff of pain extending into her buttocks – particularly her right buttock – and, on occasion, extending further down the leg.
120 I now turn to the second issue identified by the defendant – that is, in the event there is an ongoing compensable injury, whether such injury is a “serious injury” within the meaning of the Act. Of course, the plaintiff carries the onus to establish as a matter of probability that her “injury” is a serious injury within the meaning of the Act.
121 I do find that based on the opinions of Dr Middleton, Mr Kierce and, indeed, the general practitioner, together with the effluxion of time since the onset of symptoms, that the “injury” and any resulting impairment in relation to the lower back, is of a permanent nature within the meaning of s134AB of the Act.
122 In my view, the critical issue is whether any permanent impairment suffered by the plaintiff in her lower back is “serious” within the meaning of the narrative test.
123 The following matters must be borne in mind:
(a)As stated by the Court of Appeal in Ellis Management Services Pty Ltd v Taylor[72] (consisting of Osborn and Beach JJA):
[72][2013] VSCA 326 at paragraphs [57]-[59]
“57The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.[73]
[73]Reference was made to Humphries & Anor v Poljak [1992] 2 VR 129
58 Nevertheless the relevant assessment must be made objectively by the Court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.[74]
[74]Again, reference was made to Humphries & Anor v Poljak (op cit) at page 137
59The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range … .”
(b) Also, the Court of Appeal in Ellis stated, at paragraph [52]:
“52 … After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”
(c)I also refer to the Court of Appeal in Haden Engineering Pty Ltd v McKinnon,[75] wherein Maxwell P set out various principles in evaluating the “pain and suffering consequences”. I take account of all those considerations. In particular, I refer to paragraphs [14]-[15] under the heading “The disabling effect of pain”, wherein Maxwell P states:
“14 As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘…[I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[76]
15 As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[77] … .”
[75](2010) 31 VR 1
[76]Reference was made to Dwyer v Calco Timers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]
[77]Reference was made to Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [37]
124 After a consideration of all the evidence, and bearing in mind the legal principles to which I have referred, I make the following findings of fact:
(a)The plaintiff is a fifty-three-year-old married woman whose husband ceased work about two years ago because of a shoulder injury, and who is in receipt of a part Disability Support Pension. She has two children, one of whom is a son in his late twenties who is intellectually disabled, suffering from Bipolar Disorder and ADHD, which prevents him from working and he, also, is in receipt of a pension. Her daughter has just commenced TAFE studies to become a nurse;
(b)The plaintiff has been the only wage earner for the last couple of years, and the family lives in rented premises ($1,840 per month) and is dependent on such earnings to remain in such rented premises. Indeed, the plaintiff gave evidence, and I accept, that it is intended for the family to move to a “cheaper place” in the near future;
(c)As I have already recorded, I do find that the plaintiff has had an excellent work record leading up to the advent of her injury in 2013. In particular, I find that the plaintiff had no pre-existing back problems prior to the onset of symptoms in 2013;
(d)Again, as I have recorded, I do find that the plaintiff suffered a compensable injury to her lower back as a result of her employment generally and, in particular, an episode of stumbling in mid-June 2013;
(e)The plaintiff was off work for a relatively short time in mid 2013, and thereafter returned to work, initially on lighter duties and lesser hours, and was ultimately provided a certificate certifying her fit for normal duties on 16 August 2014, that is, twenty-seven-and-a-half hours per week;
(f)I also find, based on the evidence of the plaintiff, that she has performed her normal duties since 2014 until the present day. It is to be noted that after her resumption of work her employer made various general changes to the system of work. That included a different type of mop bucket, which is now operated by a hand lever rather than pushing a pedal; the introduction of new lighter vacuum cleaners and the introduction of long-handled dusters. Such changes were applicable to all cleaners employed by the defendant;
(g)However, the plaintiff was no longer required to perform outside work, which was generally more difficult given that trolleys had to be pushed over greater distances and, indeed, all the cleaners now worked in pairs. In particular, the plaintiff gave evidence, and I accept, that she is now able to work at a slower pace and receives the assistance of work mates;
(h)I also find, based on the evidence of the plaintiff, that over the period of time since her return to work, the plaintiff’s cleaning duties involved cleaning twenty-eight toilets, numerous offices and large physiotherapy and occupational therapy treatments, all of which may involve dusting, mopping and vacuuming and the emptying of rubbish bins (which largely contain paper). Furthermore, she was required to manoeuvre a four-wheel trolley and, on occasion, to empty one of the rubbish bags into a wheelie bin which, on occasion, required her to lift the lid of that bin;
(i)Furthermore, over the period of time back at work, I accept, again, consistent with the evidence of the plaintiff and, indeed, the evidence of Ms Mills and Ms Wadeson, that she took little time off and made no complaints to her superiors in relation to any problems. I also find, consistent with the evidence of the plaintiff, that she chose not to make any complaints, as she was concerned that this may put her job in jeopardy.
125 Clearly enough, the findings that I have made, set out in the previous paragraph, are particularly relevant as to whether the injury suffered by the plaintiff is a “serious injury” within the meaning of the Act. Furthermore, as I have pointed out, most of these findings are based on the evidence of the plaintiff, herself, either in her affidavit material or through cross-examination.
126 Such candour is consistent with my earlier findings as to the credit of the plaintiff. I consider that she was truthful about her activities but, also, has been equally candid and truthful about the circumstances in which the work was undertaken and the difficulties that she has had with lower back pain since 2013.
127 In particular, I make the further findings:
(a)From the onset of her back injury in 2013 to date, the plaintiff had experienced, and continues to experience, back pain which is continuous, although it “waxes and wanes” from mild back pain to bad back pain, which occurs “probably a few times a week”;
(b)That she finds her employment duties “hard going”, and although she has found ways to manage her pain at work – by stealing five minutes’ rest here and there and lying down during her lunchbreak – there are still many shifts where she ends up doubled over with back pain;
(c)The back pain radiates into her right buttock and thigh, and when she suffers a severe flare-up of pain, that can pulse down her legs in sharp spasms. When she is struck with such bad pain, she needs to sit down or lie down at the very least, and stop what she is doing and brace against the pain. She describes, and I accept, that such extreme pain is “entirely unpredictable” and may occur even when just bending down to pick up the remote control or put a dish away;
(d)I also accept that, on the whole, bending aggravates her pain, as does sitting or standing for too long, and coughing and sneezing also causes increased pain. She is able to walk, but is limited in the distances that she can walk;
(e)I also find, consistent with her evidence, that she takes a minimum of eight, and up to a maximum of ten to twelve, Panadol and/or Advil tablets a day to control her pain. Furthermore, I also accept that when the pain “is still strong”, she takes Panadeine Forte and similar drugs to control the pain;
(f)In particular, I accept her evidence that in times gone past she has been prescribed Endep, Panadeine Forte, OxyContin and Mobic to control her pain. The plaintiff gave evidence that she has not taken these heavier forms of medication since late last year and explained that although the severe pain is still occurring, such medication “constipates” and makes her feel “unwell”. By this, she explained, with such medication she “can’t drive” and she is “not totally with it”. Furthermore, when queried as to whether Panadeine Forte or OxyContin affects her going to work, the plaintiff gave evidence, which I accept, that she only takes them when she comes home, or on a weekend, so it does not affect her ability to get to work;
(g)Although she gets some assistance from her disabled husband, her son and, to a lesser extent, her daughter, the plaintiff does perform household duties, but in her own time;
(h)I also find that such back pain frequently interferes with her sleep, in that she has difficulty getting into a position where she feels comfortable, and during the night she wakes up with back pain and has to move.
128 Most of these findings are based on the direct evidence of the plaintiff, which I accept. As I have made clear earlier in this judgment, I have found the plaintiff to be a very impressive witness, both in her candour and honesty, and, indeed, her will to continue to support her family.
129 Beyond the evidence of the plaintiff, I consider that the clinical notes from the St Mary Medical Centre in Greensborough (which cover the treatment of that clinic from when she first attended on 14 November 2016 to 16 August 2018), supports such findings. As I have already recorded, over that period of time, the plaintiff seemingly has attended that clinic approximately sixteen times complaining of lower back pain. Furthermore, during that period of time she has been prescribed Endep, Lyrica, Effexor, Celebrex, Mobic and Prednisolone. One only has to look at the last two consultations (insofar as those records extend) and on each occasion she complained of lower back pain, was tender in her mid and lower back, straight-leg raising was limited and although movement of her back was intact, it was clearly “painful”. At that time, supportive measures, including Endep, Celebrex and Lyrica, were recommended.
130 Also, I refer to the consultation on 15 January 2018, when the plaintiff consulted Dr Hanna complaining of lower back pain radiating to both lower limbs, the right worse than the left. In particular, the plaintiff complained of pain and that “pain is bad at night and wakes her up”. Such a complaint is consistent with her affidavit material and, indeed, what she seemingly told Mr Hooper.
131 After a consideration of all of the evidence, I have come to the view that the plaintiff had suffered ongoing pain and reasonably frequently, periods of very bad pain, all of which has impacted on her ability to sleep appropriately, to sit, stand and walk normally and to perform all her domestic duties as she did prior to her “injury”, and impacted on her ability to perform her work, although as Ms Peters described in her affidavit, the plaintiff “tends to just get on with the job”.
132 Counsel for the plaintiff submitted that in all the circumstances, the plaintiff could be appropriately labelled as “stoic” in relation to her ongoing pain. Authority establishes that when reviewing the objective evidence concerning the disabling effect of pain, the Court must consider whether the plaintiff is stoic. If so, the Court should not penalise a stoic plaintiff by treating their injury as less serious because the plaintiff is willing to endure the pain and remain more active than another plaintiff would.[78]
[78]See Haden Engineering Pty Ltd v McKinnon (op cit) at paragraph [13]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at [83]; Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [67]
133 I do consider that the plaintiff can be appropriately described as “stoic”. I have come to the view that she is stoic about her ongoing pain and is willing to endure such pain and remain more active than another plaintiff in circumstances where she has a strong desire to keep her job and not to jeopardise it in any way, given that she is the sole wage earner for the family, which consists, in part, of her disabled husband and her mentally-impaired son.
134 I accept that beyond her family and work activities, there would appear to have been no recreational activity involving the plaintiff.
135 In all the circumstances, I am persuaded that when judged by comparison with other cases in the range of possible impairments, the consequences suffered as a result of her back injury can be fairly described as being “more significant and marked” and as being “at least very considerable”.
136 Accordingly, I find for the plaintiff and grant leave for her to make a claim for common law damages in respect of pain and suffering for the back injury suffered by her arising out of or in the course of her employment with the defendant.
137 I will hear the parties on costs.
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit 1
·The affidavits of the plaintiff sworn on 12 January 2018 and 23 August 2018.
(See pages 16-22 and 75-77 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
·Medical reports of the treating general practitioner, Dr Ian Wallis, dated 14 July 2013, 28 September 2013 and 5 December 2016
·Medical reports of the specialist, Mr Andrew Hardidge, dated 22 January 2015, 24 August 2015, 27 January 2015 and 8 August 2016
·Medical report of Dr Vivian Ouraha, dated 4 October 2018
(Such medical reports found at pages 22-32 and pages 80-82 PCB).
Exhibit 3
·X-ray of the lumbosacral spine, dated 23 July 2013
·MRI scan of the lumbar spine, dated 22 November 2013
·Bone scan, dated 24 July 2014
·CT scan of the lumbar spine, dated 25 October 2017
·CT scan of the thoracic spine, dated 21 August 2018.
(Such radiological reports are found at pages 48-50, 53-54, 78-79 PCB).
Exhibit 4
·Medico-legal report of the occupational physician, Dr David Middleton, dated 19 December 2017
·Medical report of the orthopaedic surgeon, Mr Jonathan Hooper, dated 25 September 2018.
(All such reports found at pages 33-47 and 83-86 PCB).
Exhibit 5
·Clinical notes dated 20 December 2017 and 22 August 2018.
(Such notes found at pages 55-74 PCB).
Exhibit 6
·Affidavit of Julie Anne Peters, sworn 3 October 2018.
(Such document found at pages 87-89 PCB).
2 The defendant tendered the following material:
Exhibit “A”
· Affidavits of Leanne Mills, sworn 8 June 2018 and 21 December 2018
· Affidavit of Emma Joy Wadeson, sworn 20 December 2018.
(All such documents are found at pages 3-4 and 44-47 of the Defendant’s Court Book (“DCB”).
Exhibit “B”
· Medico-legal reports of the occupational physician, Dr Gary Davison, dated 25 July 2013 and 5 December 2013
· Medico-legal report of the orthopaedic surgeon, Mr Clive Jones, dated 10 July 2014.
· Medico-legal report of the orthopaedic surgeon, Mr Paul Kierce, dated 21 June 2017.
(All such reports are found at pages 9-43 DCB).
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