Raab v Victorian WorkCover Authority
[2015] VCC 798
•19 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05472
| PATRICIA JEANETTE RAAB | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 April 2015 | |
DATE OF JUDGMENT: | 19 June 2015 | |
CASE MAY BE CITED AS: | Raab v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 798 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to the spine – Major Depression with Chronic Adjustment and Anxiety – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Petkovski v Galletti [1994] 1 VR 436; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Dressing v Porter [2006] VSCA 215; Jones v Dunkel [1959] HCA 8
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering suffered in the work accident on 28 June 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Ryan Carlisle Thomas |
| For the Defendant | Ms K Galpin | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by the plaintiff in the course of her employment with Benchmark-Peninsula Pty Ltd at the Peninsula Private Hospital (“the employer”), but particularly between May and June 2010.[1]
[1]Transcript (“T”) 2, L9-14
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function; or
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder … .”
5 The body function relied upon in this application in respect to s134AB(37)(a), is an aggravation of degenerative changes to the lumbar spine.[2] The mental or behavioural disturbance or disorder relied upon in respect to s134AB(37)(c) is Major Depression with Chronic Adjustment and Anxiety.[3]
[2]T1, L18-19
[3]T1, L24
6 The plaintiff relied upon four affidavits, two sworn by her on 15 May 2013 and 11 March 2015, an affidavit sworn by her daughter, Nicole Muirhead, on 27 September 2013, and an affidavit sworn by her son, Marc Raab, on 6 January 2014. The plaintiff was cross-examined. I have not summarised the affidavits and evidence of the plaintiff and the evidence of the other witnesses; however, I will refer to the relevant evidence of the plaintiff, Nicole Muirhead and Marc Raab in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
7 Counsel for the defendant informed the Court that this is a “range case”; namely, that the consequences of the plaintiff’s physical injury do not meet the statutory test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked, and as being at least very considerable” when compared with other cases in the range.
8 Secondly, counsel for the plaintiff has relied upon three separate incidents and, if they are discrete incidents, they cannot be aggregated.
9 Thirdly, there is an issue of disentanglement. It is unclear whether the restrictions and consequences the plaintiff complains of relate to the back injury.
10 Fourthly, in relation to the psychiatric injury, the plaintiff’s consequences do not meet the statutory test of “severe”.
Determination
11 I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering caused by the work accident on 28 June 2010. I find that the plaintiff has suffered impairment of a body function, being an aggravation to the lumbar spine on 28 June 2010, which is work related. This is productive of consequences for this plaintiff which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being at least very considerable and certainly more than significant or marked.. Accordingly, I will not address the plaintiff’s claim for severe mental or behavioural disturbance or disorder.
12 I turn now to set out my reasons.
Relevant legal principles
13 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.[4]
[4]Section 134AB(19)(a) of the Act
14 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 employer;[5]
[5]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[6]
[6]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of her impairment to the aggravation of the lumbar spine in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments be fairly described as being more than significant or marked, and as being at least very considerable”;[7]
[7]Section 134AB(38)(b) and (c)
(d) “the consequences” to the plaintiff of her mental or behavioural disturbance in relation to “pain and suffering” must be “severe” when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be;[8]
(e)the judgment of the Court of Appeal and Mobilio v Balliotis & Ors[9] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[10] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”;[11]
(f)Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe” where used in s93(17)(c) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act;[12]
[8]Section 134AB(38)(d)
[9][1998] 3 VR 833
[10](1995) 21 MVR 314
[11](Supra) at 846
[12](Supra). See also Phillips JA at 858 and Charles JA at 860-861 to similar effect
15 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
16 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[13]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[14]
[13][2009] VSCA 181
[14](supra) at paragraph [42]
17 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
18 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences 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”;[15]
[15]Section 134AB(38)(h)
(b) must make the assessment of “serious injury” at the time the application is heard;[16]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[17]
[16]Section 134AB(38)(j) of the Act
[17] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
Investigations
19 On 5 July 2010, a CT scan of the lumbar spine concluded “moderate severity central canal narrowings at L3-4 and L4-5”, and “advanced facet joint arthropathy at the lower three lumbar levels”.[18]
[18]PCB 114
The Plaintiff’s medical evidence
Dr Lynn Scoles
20 In November 2011, Dr Scoles, general practitioner, confirmed that the plaintiff had been a patient of the clinic for a number of years. The plaintiff provided a history that in May 2010, a patient collapsed when she was transferring the patient to a commode chair. The plaintiff’s back hurt and she took one night off work.
21 In June 2010, the plaintiff was juggling the care of two patients, and was required to lower one patient slowly to the ground. She reported back pain but did not take time off work. In the incident of 28 June 2010 (the week preceding her first visit to the clinic), she had been repeatedly lifting a large patient’s legs in and out of bed and developed back pain. She reported constant backache, for which she took Panadeine Forte. Dr Scoles said the CT scan of July 2010 suggested the plaintiff had significant degenerative disease in her lower back at the time. The plaintiff was referred to physiotherapy.
22 Dr Scoles said, despite the CT scan, that the plaintiff’s work contributed to the pain in her back. She said the plaintiff cannot return to her pre-injury employment and she doubted that the plaintiff had the capacity to perform alternative employment. Dr Scoles said the plaintiff had a total hip replacement for advanced osteoarthritis in her hip which was not a result of her work condition.
23 In March 2015, Dr Scoles referred to her previous reports and said there are many matters that relate to the plaintiff’s current condition, including problems with her lower back, which is degenerative, as well as work related. She had ongoing issues with the hip, her weight and her psychological health. Dr Scoles said these matters were intertwined.
24 The physical injury alone, being the lumbar spine, combined with her age and size, caused the plaintiff to be unfit for pre-injury duties for the foreseeable future. She thought the plaintiff could do some part-time work, but no active hands-on patient involvement.
25 Dr Scoles considered the plaintiff’s physical injuries alone would cause the plaintiff to be precluded or restricted in relation to her social, domestic and recreational activities for the foreseeable future. In particular, the plaintiff has difficulty driving, maintaining her garden and performing physical chores. She said the plaintiff will need to manage her physical problems for the rest of her life, which includes pain management. Dr Scoles referred to the need for hydrotherapy, physiotherapy and pain medication.
26 Dr Scoles said that the ongoing minor symptoms of the plaintiff’s hip and tightness in her left groin impact on her ability to work and add to her pain load. She accepted that the additional physical problems are impacting on her ability to work and her social, domestic and recreational activities.
27 In respect to the plaintiff’s physical injury, the lumbar spine, it was her view the plaintiff would not make a full recovery. To maintain ongoing stability, the plaintiff should be encouraged to attend hydrotherapy and lose weight.
28 Dr Scoles regarded the symptoms surrounding the plaintiff’s hip as minor, and impacted on her ability to work and added to her pain load.
Roger Wilson
29 Mr Wilson, physiotherapist, confirmed that he treated the plaintiff for low-back pain and the plaintiff subsequently developed pain into the posterior aspect of her left thigh, radiating to her left knee. He considered it was work related and that she has sustained a lumbar disc protrusion with some low lumbar nerve root involvement.
Mr David Brownbill
30 In May 2014, Mr Brownbill, neurosurgeon, medically examined the plaintiff at the request of the plaintiff’s solicitor. Mr Brownbill was given a history of previous intermittent low-back discomfort (for which the plaintiff took irregular medication, and for which there was a complete recovery on each occasion) with the onset of severe low-back pain following the described work activity of 28 June 2010, and the continuation of that pain in a fluctuating manner, together with leg pain and radiological evidence. He was aware the plaintiff had a “total hip replacement left sided”.
31 Mr Brownbill diagnosed, as a result of the plaintiff’s work activities on 28 June 2010, an aggravation of lumbar spine degenerative changes giving rise to ongoing fluctuating back and left leg pain. He thought the plaintiff would be restricted in relation to employment or related activities to a marked degree, and considered such incapacity will continue for the foreseeable future. He said the plaintiff did not have the capacity to perform her pre-injury duties, which would be permanent. He said that she would have difficulty performing any employment for which she is suited in an ongoing and reliable manner, which would be permanent.
32 Mr Brownbill thought that as a result of her physical injury, the plaintiff is likely to be restricted in relation to social, domestic and/or recreational activities in a moderate to marked extent, and considered such incapacity will continue for the foreseeable future.
33 Mr Brownbill said no further specific treatment from a neurosurgical view was required. He anticipated that the plaintiff’s described pain will continue and that she will require the use of analgesics and anti-inflammatory medication.
Mr Thomas Kossmann
34 Mr Kossmann, orthopaedic surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitors in September 2013 and February 2014.
35 In February 2014, Mr Kossmann said the plaintiff hurt her lumbar spine in incidents in 2010 at work.
36 Mr Kossmann diagnosed mechanical pain on the basis of severe facet joint arthropathy at the L3-4 and L4-5 levels causing severe central canal stenosis, a total hip replacement, left side, with ongoing pain (which, it was accepted, was unrelated to her work).
37 Mr Kossmann said the plaintiff should consult a neurosurgeon or an orthopaedic surgeon with an interest in spines to evaluate whether she requires surgery. Further, she requires conservative treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possible acupuncture. It was his opinion that the plaintiff would benefit from a pain management program. However, he was aware that she currently suffered from Depression, which may be a further obstacle. He recommended she undergo a strict weight reduction program.
38 Mr Kossmann said the plaintiff was precluded from returning to employment and related activities for the foreseeable future. She has no capacity to perform her pre-injury duties, which he considered was permanent and likely to last for the foreseeable future.
39 As a consequence of the physical injury, Mr Kossmann said the plaintiff was restricted in relation to social, domestic and recreational activities, which he considered would continue for the foreseeable future.
40 Mr Kossmann was aware the plaintiff underwent a hip replacement, which he thought was work related. It was acknowledged by both parties that the hip replacement was unrelated to her employment.
Epworth Healthcare
41 In November 2010, Dr M Palit, rehabilitation physician, examined the plaintiff. It was his opinion that the plaintiff was suffering from mechanical back pain which has limited her ability to work. He said there was no doubt there was a contribution from the osteoarthritic hip.
42 Dr Palit confirmed the plaintiff had attended physiotherapy three times a week, which comprised an exercise program with some manipulative therapy. He noted that she clearly struggled with basic tasks at home and her function at work. He recommended that she participate in an active rehabilitation program and that she would benefit from home help to cope with garden and basic cleaning tasks.
Epworth Rehabilitation, Camberwell
43 In February 2011, the plaintiff attended for rehabilitation. She was assessed by Dr M Palit, as well as a multidisciplinary team comprising a physiotherapist, occupational therapist and clinical psychologist. The recommendation was that she attend a multidisciplinary pain management program; however, due to her level of Depression and Anxiety, it was strongly recommended that her mood be stabilised prior to commencement of rehabilitation. Due to her current state, it was considered unlikely that she would be able to fully participate or maximise her goals, which included returning to work.
The Defendant’s medical evidence
Dr David Barton
44 In November 2010, Dr Barton, consultant occupational physician, medically examined the plaintiff at the request of the defendant’s insurer.
45 It was Dr Barton’s opinion the plaintiff developed a non-complicated soft-tissue back injury as a result of recent activities at work. He said it was reasonable to relate the plaintiff’s complaints to work. He said her age and other health issues may be playing a part. He did not believe there was a single main contributor, and believed her general ill health, asthma and back problems, all played a part in the plaintiff’s reduced capacity for work.
Mr Peter Scott
46 In November 2011, Mr Scott, surgeon, medically examined the plaintiff at the request of the defendant’s insurer. The plaintiff’s complaints were:
(i) Chronic low-back pain, constant in a severe form and worse if she sits for more than half-an-hour, or stands for more than half-an-hour, or attempts any repetitive bending or twisting, or lifting more than 5 kilograms in weight;
(ii) Radiation of pain from her back into her left thigh on occasions;
(iii) Ongoing severe Anxiety and Depression.
47 Mr Scott said that the plaintiff should continue with medication for pain and anxiety. She needed to be involved in a weight reduction program as her weight was delaying recovery of her back problem. He accepted the plaintiff would have great difficulty in carrying out activities of daily living if pain management and psychotherapy were discontinued. It was his opinion the plaintiff suffered low-back pain, morbid obesity and aggravated degenerative changes of the lumbosacral spine, Anxiety and Depression, the latter being a major factor in her ongoing symptom complex. He thought the plaintiff’s obesity pre-dated any injury on 28 June 2010, when she developed an aggravation of a pre-existing mild back problem which had probably been associated with a morbidly obese state. The aggravation has worsened her general condition and become associated with evidence of Anxiety and Depression, which is magnifying her presentation.
48 Mr Scott accepted the plaintiff was unfit for work.
Mr Gerald Moran
49 In August 2012, Mr Moran, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s insurer. Mr Moran said the plaintiff aggravated her spinal canal stenosis at L3-4 and L4-5 and aggravated facet joint arthropathy at L3-4, L4-5 and L5-S1. It was his opinion the plaintiff’s impairment had stabilised.
Mr Rodney Simm
50 In April 2014 and January 2015, Mr Simm, orthopaedic surgeon, medically examined the plaintiff at the request of the defendant’s solicitor.
51 In April 2014, Mr Simm said the plaintiff’s symptoms had not improved since she stopped working. She had constant pain, which varies from mild to quite severe pain. She had localised pain around the left hip, and was referred to an orthopaedic surgeon in 2011. X-rays revealed osteoarthritis of the left hip, and she had a total hip replacement. She did not believe the hip replacement greatly assisted with her back and left lower limb pain.
52 Mr Simm diagnosed a chronic mechanical low-back pain. He noted that there were features of a chronic adverse pain response with extremely high analgesic requirements. She had referred symptoms into the left lower limb but no clinical signs of radiculopathy. Her mobility is reduced by the combination of her chronic low-back pain, her body weight, Depression and asthma. He said the underlying pathology in the lumbar spine is longstanding, constitutional, age and weight-related degenerative pathology. He said, as a result of the incidents in the workplace, she experienced exacerbations of symptoms in the back. He accepted that the contribution of her condition from employment would seem to be the exacerbation of symptoms from longstanding lumbar degenerative pathology.
53 Mr Simm said the plaintiff’s prognosis was poor and her condition is likely to persist indefinitely. He said she had no physical capacity for employment as a Nurse. He said her employment was an exacerbating factor of her chronic back pain. He said her situation was likely to continue for the foreseeable future.
54 In January 2015, Mr Simm said the plaintiff reported constant pain in the lumbar region, radiating around the left buttock to the lateral side of the left hip and down to the calf. She had intermittent pins and needles involving all the toes of the left foot. He said the plaintiff’s diagnosis had not changed. She had a chronic mechanical low-back pain in association with radiological evidence of longstanding constitutional degenerative pathology. He said there was mild dysfunction of the left hip following a left total hip replacement. He had been provided with a CT scan of the lumbar spine of 2000, an x-ray of the lumbar spine of June 2002 and an x-ray of the right hip of June 2002. He said the radiological reports were consistent with his assessment of the plaintiff. She had longstanding constitutional and moderately degenerative pathology responsible for symptoms for many years prior to the exacerbation of symptoms in 2010. He would have expected the plaintiff to have had an ongoing relapse in chronic back pain and possibly referred lower limb symptoms as a result of the pathology in the absence of any of the claimed factors relating to her employment. He was the only doctor to express this view.
Mr John D Griffiths
55 In July 2011, Mr Griffiths, orthopaedic surgeon, examined the plaintiff on referral from Dr Scoles for assessment of her left hip. The plaintiff reported pain for several years, which had become worse over the past twelve months. He reported that there was a past history of chronic low-back pain. She was obese, and he recommended a left total hip replacement.
56 In September 2011, Mr Griffiths reported to the plaintiff’s general practitioner that the plaintiff underwent a left total hip replacement and was progressing well but still required strong analgesics.
57 An x-ray of the left hip performed in May 2010 confirmed advanced osteoarthritis present within the left hip joint, marked narrowing of the weight‑bearing cartilage space associated with prominent sclerosis and marginal osteophyte formation. Moderate severity osteoarthritis was also noted in the left sacroiliac joint. No destructive bone lesion or further abnormality was seen.
Credit of the Plaintiff
58 The plaintiff answered questions directly. On occasions, she became confused, in particular, whether the pain she suffered was related to the hip or the low back. Because the plaintiff became confused at this point, I rely heavily on what she was telling medical witnesses and what the medical witnesses say about her pain. There was no other attack upon the plaintiff’s credit, in particular the level of pain she reported, the physical restrictions she suffered, the level of medication she was taking, what she said about her sleep and the day-to-day restrictions she reported.
59 Mr Brownbill described the plaintiff as “co-operative without embellishment”.
60 Dr Farnbach, psychiatrist, said the plaintiff was a “credible and internally consistent witness”.
61 I formed the view that the plaintiff was truthful. She answered questions directly and made concessions. I am supported in my view by Mr Brownbill and Dr Farnbach.
Analysis of the evidence
The physical injury – aggravation of degenerative changes to the lumbar spine
62 Counsel for the plaintiff submitted that the plaintiff relies upon injury in the course of her employment, but particularly between May and 28 June 2010 with the employer, Benchmark-Peninsula Pty Ltd, the Peninsula Private Hospital.
63 The plaintiff’s evidence was:
· In the past, she experienced back complaints from time to time. In the 1990s, she was off work for six months because of back pain, but she made a full recovery, and continued to work without difficulty.
· In May 2010, a patient collapsed when she was transferring the patient to a commode chair. She believed she had a night off work and continued to work thereafter.
· In June 2010, she was juggling the care of two patients and had to assist one patient to be lowered to the ground when she again hurt her back. She had no time off work. There was no evidence that the plaintiff sought medical attention after the May and June 2010 events.
· On 28 June 2010, she was working the nightshift. A patient, six-foot tall and weighing in excess of 100 kilograms, kept getting out of bed. She kept putting him back to bed. She had to physically lift his legs up to put them back into the bed. She felt back pain. As a result of this incident, she suffered injury to her back. She ceased work after completing her shift on 29 June 2010 and sought medical attention.
64 Counsel for the defendant submitted that the plaintiff was relying upon three discrete incidents. Those incidents cannot be aggregated in accordance with Lu v Mediterranean Shoes Pty Ltd.[19]
[19](2000) 1 VR 511
65 As to that submission, the incidents in May and June 2010 were minor incidents. I accept that the May and June 2010 incidents were discrete incidents. The plaintiff did not seek medical treatment. After the May incident, she had one night off work, otherwise the plaintiff continued to work. I accept she lost her capacity because of the 28 June 2010 incident.
Causal connection
66 All medical witnesses accepted the plaintiff’s employment was a cause of the injury. That is all that is required. I refer to Zlateska v Consolidated Cleaning Services Pty Ltd & Anor.[20]
[20][2006] VSCA 141 at paragraphs [7]-[11]
67 Dr Scoles, general practitioner, said the plaintiff’s employment was a contributing factor to her condition of back pain,[21] and there was work-related aggravation to the plaintiff’s back injury.[22]
[21]Plaintiff’s Court Book (“PCB”) 38
[22]PCB 40
68 Mr Brownbill, neurosurgeon, said the plaintiff, in her work activities on 28 June 2010, sustained an aggravation of the lumbar spine.[23]
[23]PCB 91
69 Mr Kossmann, orthopaedic surgeon, accepted that the plaintiff suffered mechanical pain on the basis of severe facet joint arthropathy at the L3-4, L4-5 level, causing severe central canal stenosis during the course of her employment.[24]
[24]PCB 97
70 Dr Palit, rehabilitation physician, obtained a history of back pain in the past, which he thought was reasonably common in her profession, and that she was coping well until the exacerbation of pain on 26 June 2010, when she was doing her usual nightshift. He said the plaintiff was suffering from mechanical back pain which has limited her ability to work.
71 Mr Barton, consultant occupational physician, accepted that the plaintiff had developed a non-complicated soft-tissue back injury which related to her work.[25]
[25]Defendant’s Court Book (“DCB”) 7
72 Mr Scott, surgeon, said the plaintiff’s complaints were of chronic low-back pain and radiation of pain from her back into her left thigh on occasions.[26] He believed her ongoing symptoms related in part to the injury sustained on 28 June 2010.[27]
[26]PCB 29
[27]PCB 35
73 Mr Moran, orthopaedic surgeon, said the plaintiff aggravated her spinal canal stenosis at L3-4 and L4-5 and aggravated facet joint arthropathy at L3-4, L4-5 and L5-S1. Mr Moran provided an impairment assessment.
74 Mr Simm, orthopaedic surgeon, diagnosed chronic mechanical low-back pain with referred symptoms into the left lower limb but no clinical signs of radiculopathy. He accepted there was a contribution to her condition from employment which was an exacerbation of symptoms from longstanding lumbar degenerative pathology.
75 Based on the above medical evidence, I am satisfied the plaintiff suffered a compensable injury arising out of her employment on 28 June 2010.
76 The current medical evidence relating to the physical injury was from the general practitioner, Dr Scoles; Mr Brownbill, neurosurgeon; and Mr Kossmann and Mr Simm, orthopaedic surgeons. All accepted that the plaintiff’s injury amounted to an aggravation injury.
77 In respect to the physical injury, Dr Scoles accepted that the events in May and June 2010 contributed to the commencement of more significant back pain for the plaintiff as a result of the 28 June 2010 incident. She noted that the plaintiff had arthritis in her lumbar spine and that caused significant muscle spasm, resulting in soft-tissue injury.
78 Mr Brownbill considered the plaintiff’s work activities on or about 28 June 2010 resulted in an aggravation of the lumbar spine degenerative changes, giving rise to the onset of ongoing back pain. Mr Brownbill said that clinical experience shows that on occasions when lumbar spine degenerative changes are rendered symptomatic, the resulting pain may continue in a fluctuating manner even once the aggravating factors cease.
79 Mr Kossmann was aware that the plaintiff was working without any health issue until she hurt her lumbar spine in incidents in 2010. On 28 June 2010, she injured her lumber spine at work when she was assisting a patient back to bed who was tall and very heavy, lifting his legs, and experienced pain in her lumbar spine. He said the plaintiff will require conservative treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy, and possible acupuncture. He said she may require surgery, but could not provide a timeframe. He thought she would benefit from a pain management program.
80 Mr Simm said the CT scan of July 2010 showed a severe central canal stenosis as a result of advanced facet joint arthropathy of the lower lumbar spine. The plaintiff reported to Mr Simm the circumstances of the low-back pain in June 2010 and in particular, the incident of 28 June 2010. Mr Simm said the plaintiff had pathology in the lumbar spine which was longstanding and degenerative. As a result of the workplace incident, she experienced exacerbation of symptoms. He said the contribution of her condition from employment would be exacerbation of symptoms from longstanding lumbar degenerative pathology.
81 I accept that the majority of the up-to-date medical evidence was that the work injury involved an aggravation of the degenerative changes to the lumbar spine.
Aggravation injury
82 In respect of an aggravation to a pre-existing condition, Southwell and Teague, JJ, in Petkovski v Galletti,[28] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[29]
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter, and an assessment made of the extent of the additional impairment … .”
[28] [1994] 1 VR 436
[29](Supra) at 443
83 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a permanent serious impairment or loss of body function.
84 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the work injury was “serious”.
85 The plaintiff’s evidence was that in the past, she experienced back complaints from time to time. In the 1990s, she was off work for about six months because of back pain. She made a full recovery from this and continued to work without difficulty. The plaintiff reported this to all medical witnesses. She told Mr Brownbill she would have “back niggles” after a heavy day of work, always with a full recovery. She would take tablets, including Panadol occasionally.
86 I accept that the incidents in May and June 2010 were minor incidents, for which the plaintiff did not seek medical treatment.
87 Accordingly, I accept that prior to the work injury of 28 June 2010, the plaintiff was asymptomatic in respect to her lumbar spine. The plaintiff’s evidence was that she was working 63 hours per fortnight. I accept that as a result of the plaintiff’s injury on 28 June 2010, she cannot return to pre-injury employment. Most of the medical witnesses accepted she had no realistic employment for which she is suited in an ongoing and reliable fashion. All accepted that she is restricted in relation to her recreational, social and domestic activities.
88 Accordingly, on a Petkovski v Galletti[30] analysis, the impairment extent of the back injury at the hearing was referrable to the work injury on 28 June 2010.
[30][1994] 1 VR 436
Hip injury
89 The plaintiff’s evidence was that she suffers hip pain. Dr Scoles said that the plaintiff’s ongoing minor symptoms of her hip and tightness in the left groin are factors impacting on her ability to work and add to her pain load.
90 Mr Kossmann’s report of February 2014 notes the plaintiff’s hip pain and back pain under present complaints; however, Mr Kossmann did consider the plaintiff’s spine. Mr Kossmann recommended a referral to a surgeon specialising in spines. He addressed the back pain and said she had no capacity for pre-injury duties and cannot return to any physical work because of the back pain.
91 Mr Brownbill was aware of the plaintiff’s hip replacement and had a copy of Mr Kossmann’s report. Mr Brownbill confined his opinion to the low-back pain.
92 Mr Simm said there was “mild dysfunction of the left hip” following a hip replacement. He confined his opinion to the low-back pain.
93 Counsel for the defendant also submitted that the plaintiff herself was unable to delineate when and whether her symptoms originated from her back or hip. I find that overall, the plaintiff did her best to answer questions honestly; she gave evidence which supported significant problems with her back. This is consistent with the medical evidence of Dr Scoles (who noted the hip symptoms as “minor”); Dr Simm (who noted there was “mild” dysfunction of the hip); Dr Brownbill, who focussed on the back and did not report on the hip despite being aware of the hip replacement, and Mr Kossmann, who specifically addressed the consequences of the low-back pain.
94 In Dressing v Porter,[31] Ashley JA said:
“If, by reason of pain and suffering consequences the compensable injury met the serious injury test, it was beside the point that some other condition might also have satisfied the test by reason of its pain and suffering consequences.”
[31][2006] VSCA 215 at paragraphs [47]-[48]
95 I adopt what the Court of Appeal said in that case. I accept that the plaintiff suffered a back condition. Other than Dr Scoles, the medical opinions of Mr Brownbill and Mr Simm, and to a degree Mr Kossmann, considered the back pain alone and the consequences the plaintiff suffered as a result of the back pain.
Other matters
Jones v Dunkel[32] issue
[32][1959] HCA 8
96 Counsel for the defendant submitted that an inference could be drawn from the fact that two of the plaintiff’s previous treaters, Mr Griffiths and Dr Castle, were not asked to report.
97 As to Mr Griffiths, he treated the plaintiff in respect to the left hip. The defendant relied upon a letter dated 29 September 2011 from Mr Griffiths to Dr Scoles, the plaintiff’s general practitioner, which I was informed was contained in the subpoenaed notes of the general practitioner. Given the fact that Mr Griffiths was addressing the hip in 2011 and the plaintiff’s application is with respect to the low back, I reject the submission of Counsel for the defendant that a Jones v Dunkel[33] inference could be drawn.
[33]Supra
98 In respect to Dr Castle, I was informed the plaintiff saw Dr Castle three years ago. Dr Castle referred the plaintiff to a psychiatrist, Dr McIntosh. There is no suggestion that the plaintiff has seen Dr Castle after 2011. Further, I do not accept that he would have advanced the case one way or another. Given the plaintiff consulted Dr Castle three years ago, I am not prepared to make any adverse finding by the failure to call or rely upon a medical report from Dr Castle in all the circumstances.
Weight and age
99 A number of the medical witnesses discussed the plaintiff’s weight and age, particularly in respect to consequences. The fact is that prior to the work injury, the plaintiff was in full-time employment with the defendant. She was aged sixty-seven years, and was overweight. She was able to perform her work duties despite her age and weight. Accordingly, for the purpose of this application, I do not consider this aspect as relevant.
100 Accordingly, I accept the plaintiff’s current condition is as a result of the work injury to the low back, being an aggravation of degenerative changes to the lumbar spine.
101 It is necessary for me to consider the evidence as to the consequences to the plaintiff of the work injury of 28 June 2010.
Consequences
Pain
102 The plaintiff’s evidence was that she continues to experience ongoing back pain, with pain radiating into her left leg, down the back of her leg. The plaintiff said the pain is constant and varies in intensity from day to day. She has good days and bad days. The left leg pain comes and goes and causes her to feel unstable.
103 The plaintiff reported to the medical witnesses the pain that she suffers.
104 The plaintiff’s general practitioner said that in respect to future treatment, she will need to manage her physical problems for the rest of her life, which includes regular pain management.
105 The plaintiff reported to Mr Brownbill that the low-back pain is there all the time, worse with prolonged standing, sitting or walking. She suffers left leg pain extending from the buttock down the back of the leg to below the knee, which has been present since the incident of 28 June 2010. Mr Brownbill said he anticipated that her described pain will continue indefinitely, and imposed activity restrictions – namely, she should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He said she will continue to require analgesics and anti-inflammatory medication, particularly during periods of pain exacerbation. She will benefit from treatment of physiotherapy, hydrotherapy and a pain management program.
106 Mr Simm reported the plaintiff suffers from constant pain. There are days when the pain is mild, and seven or eight days per month when the pain is severe. The pain occurs in the lumbar region and radiates around the left buttock to the lateral side of the left hip and down the leg to the calf. She has intermittent pins and needles involving all toes of the left foot. Her back pain is aggravated by increased physical activity. Mr Simm noted that the plaintiff’s symptom complex remained unchanged. She was taking Panadol Osteo and a high dose of opioid analgesia for the degenerative lumbar pathology. He thought her condition is likely to persist as described indefinitely, and that she should continue along the current conservative lines for treatment.
107 I accept the level of pain the plaintiff suffers is significant. It has increased dramatically since the 28 June 2010 work accident. She has endured chronic pain for five years and there is no suggestion by any of the medical witnesses that the level of pain is likely to be reduced. The level of pain the plaintiff suffers is reflected by the level of medication she takes. I accept that the level of pain the plaintiff suffers is a significant consequence.
Medication and treatment
108 The plaintiff’s evidence is that she currently consults her general practitioner on a weekly basis. She continues to take Endone, 5 milligrams, one tablet three times per day. In addition, she takes Targin, 10 milligrams, one tablet twice per day; Panadol Osteo, two tablets three times per day, and Mobic once per day. She has become addicted to Endone and, on that basis, must consult her general practitioner weekly for the prescription of the Endone medication. Her general practitioner is trying to wean her off the Endone medication.
109 I accept the level of medication is at the high end of the scale and that this is a significant consequence which I can take into account.
110 The plaintiff’s treatment comprises of consultations with her general practitioner once per week. Currently, she attends the local pool and undertakes the exercises that she was taught at hydrotherapy. She attends the local pool three times per week to perform those exercises.
111 All medical witnesses accepted that the plaintiff should continue with treatment along current conservative lines.[34]
[34]Mr Simm – DCB 78; Dr Scoles – PCB 50; Mr Brownbill – PCB 92, and Mr Kossmann – PCB 103
112 Mr Kossmann suggested that the plaintiff might benefit from physiotherapy and possible acupuncture. Mr Kossmann suggested the plaintiff would benefit from a pain management program but, because of her depression, that may be a further obstacle. Mr Kossmann said the plaintiff should be referred to a neurosurgeon or orthopaedic surgeon to evaluate a possible operative intervention for her severe canal stenosis as a result of the facet joint arthropathy at L3-4 and L4-5 levels. Mr Kossmann was the only witness to suggest such a course.
113 I accept that the level of medication and treatment the plaintiff has is at a significant level and is a consequence, I can take into account. It is also reflective of the level of pain the plaintiff suffers. I take into account Mr Kossmann’s opinion that the plaintiff be referred to consider surgery, but given he was the only witness to suggest this course, I place less weight on the possibility of surgery as a likely consequence.
Instability
114 The plaintiff’s evidence was that in August 2014, while at home, her leg gave way and she fell. As a result, she no longer feels confident walking outside the house or long distances unaided. This is partly because of her back and left leg pain. She now uses a wheelie-walker when she leaves the house and for long distances. She has been using the walker for approximately two years. She reported the instability in her left leg to a number of the medical witnesses, who accepted her complaint. I accept that this is a consequence which I can take into account.
Domestic activities
115 The plaintiff’s evidence is that she continues to experience restrictions in performing housework. She can perform her housework as long as she does it slowly and avoids bending. She has difficulty performing activities such as vacuuming, mopping and sweeping. If she performs these activities, she takes her time and is careful not to aggravate her back pain. She is assisted by her daughter with the housework.
116 The plaintiff’s evidence was supported by her daughter. Her daughter deposed that she has to clean the bottom of the shower and pick things up from the floor which her mother could not reach.
117 The plaintiff’s son, Marc, currently lives with the plaintiff. His evidence was he assists his mother with the vacuuming and mopping and most of the washing. His mother has difficulty hanging out and taking down the washing because of the strain it puts on her back.
118 I accept that the plaintiff suffers consequences in the performance of her domestic duties. This is supported by her children, and with what she reported to medical witnesses who accepted that the plaintiff would have difficulty with domestic activities. This is a consequence which I can take into account.
Social life
119 The plaintiff’s evidence is that she prefers to stay home. The evidence of her children was that she was a bubbly and social person and enjoyed socialising with her friends. She would meet her work colleagues outside of work and travel with them throughout Victoria. Her son’s evidence was that she would keep busy by going to the local shops, the library and catching up with friends. She was a confident, assertive and very independent woman. She has become more withdrawn since her injury. She no longer meets friends, and spends more time at home. Her social life has deteriorated. This evidence was supported by the medical witnesses, who said that the plaintiff’s injuries would limit her social activities. I accept this is a significant consequence which I can take into account.
Gardening
120 The plaintiff’s evidence was that she was a keen gardener; however, since the injury, she has difficulty gardening. Her daughter and son confirmed that she maintained an immaculate garden prior to her injury. Her son said she grew prize-winning roses. Now, she has to seek assistance to maintain the garden, which distresses her. Her son, Marc, is responsible for the garden, but finds it difficult to manage. As a result, the roses have died. He is aware that this distresses his mother. I accept that this is a consequence which I can take into account.
Work
121 The plaintiff’s evidence was that she commenced training as a Division 1 Nurse in 1961. She completed all but nine weeks of her course when she married and moved to Germany. She returned to Australia in 1966 and returned to work when her five children were young. She worked as a Division 2 Nurse for approximately forty-nine years. The plaintiff’s evidence was that for the seven years prior to the work accident, she was working 63 hours per fortnight.
122 It was the plaintiff’s intention to work until aged seventy. As a result of her back pain, she ceased work in December 2010 or January 2011 aged sixty-seven years. The evidence of the majority of medical witnesses was that the plaintiff had no capacity for pre-injury work, that realistically, she would have difficulty obtaining suitable work. I accept that the plaintiff’s inability to work until aged seventy is a consequence which I can take into account.
Sleep
123 The plaintiff reported to medical witnesses that she has difficulty sleeping because of her pain. This was supported by the evidence of her daughter and son. Her daughter said that her mother tells her she has difficulty sleeping and at times, can be awake half the night. Sometimes, when her daughter calls at 11.00am, her mother is asleep or tells her she is too tired to leave the house. She often seems exhausted, and rests with her head in her hands. Her son said he has noticed that late at night, the plaintiff is often awake watching television, and she regularly seems tired. If he is home during the day, he can see that she sleeps more during the day because she is so tired. I accept that lack of sleep, or disrupted sleep, is a consequence which I can take into account.
Conclusion
124 Taking all the evidence into account, I am satisfied that the plaintiff was involved in a work-related incident which, to this plaintiff, resulted in her experiencing symptoms of a physical nature. The consequences of her back injury have impacted upon her life as she knew it before the accident. She has suffered for five years and the medical evidence is guarded as to the future. I accept that the plaintiff’s back injury is permanent. All medical witnesses accepted this.
125 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to her of her impairment can reasonably be described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal but rather, attributed appropriate weight to each consequence in the light of the evidence.
126 I accept that the back injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as “at least very considerable and certainly more than significant or marked”.
127 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the work accident on 28 June 2010.
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