Ramirez v Next Health Pty Ltd
[2017] VCC 1935
•27 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05279
| DINORA ISABEL RAMIREZ | Plaintiff |
| v | |
| NEXT HEALTH PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 September 2017 | |
DATE OF JUDGMENT: | 27 September 2017 | |
CASE MAY BE CITED AS: | Ramirez v Next Health Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1935 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – psychiatric impairment – Chronic Pain Syndrome – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; Commonwealth of Australia v Beattie (1981) FLR 19; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Acir v Frosster Pty Ltd [2009] VSCA 454; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67;Transport Accident Commission v Katanas [2017] HCA 32;
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R C Forsyth | Patrick Robinson Co |
| For the Defendant | Ms R Kaye | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from 2008 to 2013 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff initially brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 Whilst there was an application pursuant to both clause (a) and clause (c), counsel for the plaintiff ultimately relied on clause (c), submitting there was an initial organic spinal injury which has now been diagnosed as a Chronic Pain Disorder, the consequences of which are severe.[1] The application pursuant to clause (a) was left in as a matter of caution as it was submitted it was a very strong (c) case.[2]
[1]Transcript (“T”) 6-7
[2]T8
5 The primary submission on the defendant’s behalf was that the plaintiff had not suffered a compensable injury.[3]
[3]T2
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, [may be] fairly described, at the date of the hearing, “as being at least very considerable and more than significant or marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 In this case, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Counsel for the plaintiff submitted the plaintiff has been rendered totally incapacitated by reason of her initial physical and subsequent psychiatric injuries.[4]
[4]T55
13 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
14 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
15 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
16 The judgment of the Court of Appeal in Mobilio v Balliotis[5] resolved the meaning of “severe”. Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[6] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.[7] Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[5][1998] 3 VR 833
[6](1995) 21 MVR 314
[7]Mobilio v Balliotis (supra) at [846]
17 Winneke P, in Mobilio,[8] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[9]
[8](supra)
[9]see also Phillips JA at 858 and Charles JA at [860] to [861]
18 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c).[10]
[10] per Ashley JA in Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227
19 Counsel for the defendant submitted the plaintiff’s application should not succeed under clause (c) as she did not suffer an organically-based spinal injury.[11] Further, the consequences of any Chronic Pain Syndrome or Major Depressive Disorder relied upon pursuant to clause (c) were not “severe”.[12]
[11]T3
[12]T4
20 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[13] and Grech v Orica Australia Pty Ltd & Anor[14] in reaching my conclusions.
[13](2005) 14 VR 622
[14](2006) 14 VR 602
21 The plaintiff relied upon two affidavits. She was not cross-examined. Her daughter, Jocelyn, swore an affidavit on 14 June 2016. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
22 The plaintiff is presently aged forty-nine, having been born in El Salvador in 1968. She came to Australia in 1984 when aged sixteen. She completed Year 10, before leaving school at the age of eighteen.
23 The plaintiff is married with two adult children. Her husband is a permanent deacon in the Melbourne Diocese of the Catholic Church.
24 When the plaintiff’s children began to grow up, she worked as a customer service assistant at a Mexican restaurant from 1992 to 2002. During that time, she was also looking after an elderly lady.
25 The plaintiff had a work trial at Little Sisters of the Poor for a month in April 2007. She worked as an aged-care attendant, and only undertook training and light duties.
26 In about February 2006, the plaintiff started work as a casual personal care attendant with the defendant. She worked a 39‑hour shift fortnightly and was sent to different places, travelling for long distances between different suburbs. She was required to clean the residents’ houses, shower and toilet the residents and transport them in her car for doctors’ visits, shopping and other attendances.
27 On these occasions, some of the residents used wheelchairs. There were about seven residents who were wheelchair bound some time after the plaintiff started work. Some of these residents were quite large, and the wheelchairs were very heavy. After putting a resident into her car, the plaintiff had to pick up the heavy wheelchair and put it in the car boot. She then had to unload it and set it up for the resident on arrival.
28 In early July 2008, after lifting a heavy wheelchair, the plaintiff started to get pain in her back. She also undertook heavy work of lifting and showering people, which was very difficult and hard. By 18 July 2008, her pain became so bad she went to her general practitioner, Dr Conejera.
29 Dr Conejera sent the plaintiff for x‑rays and prescribed medication.
30 The following month, the plaintiff rang the defendant and cancelled her shifts because of her low-back pain. When she went back to work, she told the defendant she could not lift heavy wheelchairs again, as it was causing too much low-back pain.
31 However, in January 2009, the plaintiff was again given a wheelchair-bound resident, a male, who was heavy. Having to lift the chair on a number of occasions, the plaintiff began to experience extra pain her back, and again advised the defendant she could not lift wheelchairs as they were too heavy.
32 However, in June 2009, the defendant sent the plaintiff to yet another resident who was wheelchair-bound. The plaintiff could not lift the big wheelchair and heavy resident because of the pain in her back. Again, she told the defendant she just could not lift the wheelchair.
33 Again, in July 2009, and in the following month, the plaintiff was sent to a resident who used a wheelchair.
34 Again, in December 2009, and the following month, the plaintiff was sent on similar duties, and tried to do her best, but the pain became so bad. She told the defendant in about August 2010, that she could not lift the wheelchair.
35 Further, in January and March 2011, and on another occasion, the plaintiff was sent to residents with wheelchairs. She did her best but could not lift them, as doing so exacerbated her low-back injury, and she advised the defendant to this effect.
36 After seeing her general practitioner in 2008, the plaintiff was sent for an x‑ray. She underwent a CT scan in March 2011. That month, she also had physiotherapy on seven occasions, provided by Medicare.
37 In 2009 and 2011, the plaintiff suffered from some dizziness, and attended Western General Hospital for treatment and also had a head CT scan.
38 In 2012, the plaintiff had a further CT scan and continued to see her general practitioner for treatment and medication. She had a further x‑ray in April 2014, as her back pain had worsened.
39 As her condition was not improving, the plaintiff saw a neurosurgeon at the Royal Melbourne Hospital in July and October 2013 and February and May 2014. She also started attending the Pain Management Department at the Royal Melbourne Hospital in May.
40 Because of low back and restricted movement, the plaintiff was unable to work from 24 April 2013. She found driving was exceedingly difficult, and as at June 2014,[15] her daughter basically took her for appointments.
[15]First affidavit
41 The plaintiff then had constant pain in the middle and low back, and had great difficulty in sitting or standing for any lengthy periods. She had further pain in her hips.
42 The plaintiff also suffered from depression, anxiety and panic attacks, and took medication. She had seen a psychologist through Medicare, and was then seeing one through the pain management clinic.
43 At that stage, the plaintiff did not perform any heavy work around the house, nor did she clean the bath, toilets, or do the vacuuming. Her husband and daughter did all the heavy work. The plaintiff tried to do the cooking. She also used to like gardening, but was not able to do it anymore.
44 The plaintiff was then seeing her general practitioner and used to take Panadeine Forte, two tablets, four times a day. She stopped that medication as it made her constipated. She was then taking Panadol Osteo, up to six a day, and also used a heat pack. She was taking Effexor. Pain management at the Royal Melbourne Hospital involved physiotherapy, and she was hoping to have hydrotherapy.
45 The plaintiff’s social life revolved around the church, and she used to go on retreats. She still tried to get to the church, but sometimes had pain attacks and could not go. She no longer went on retreats. She used to like having people around the house, but her social life was greatly restricted, as was her intimate relationship with her husband.
46 The plaintiff swore a further affidavit on 1 June 2017.
47 From December 2014, the plaintiff was started on Tramadol at the Royal Melbourne Hospital. She then continued to have bouts of dizziness and tiredness. She was also very depressed, and seeing a psychologist at Sunshine Hospital.
48 In April 2015, the Royal Melbourne Hospital Pain Clinic was advising the plaintiff’s general practitioner to change her medication. She continued to attend for treatment and psychological counselling in August 2015, and was seen in January 2016 when she was also having physiotherapy at Sunshine Hospital. However, throughout this period, the plaintiff’s back pain did not improve.
49 On 13 December 2016, the plaintiff was admitted to the Western Health Emergency Department after she suffered a severe attack of lower back pain which caused cramping.
50 The plaintiff has continued to attend Dr Conejera very regularly for treatment of her back pain and depression. She now relies heavily on her advice as to how she should handle her life. The plaintiff is extremely stressed because she is not getting any better, and is very anxious about whether she will ever recover.
51 The plaintiff is prescribed Tramadol and Comfarol Forte for pain, Deptran for depression, ProCalm for vertigo, and Sumatriptan. She also uses heat packs and cream to manage the pain.
52 The plaintiff has not attended psychologist, Ms Ferraro, for some time because she has ceased practising.
53 The plaintiff continues to suffer pain in her low back which goes into her buttock and down her thigh to her lower leg. Her daughter continues to be her full-time carer as the plaintiff is still unable to perform any home duties and she has difficulty with personal hygiene tasks. Her daughter has to help her with showering and getting dressed.
54 The plaintiff has trouble climbing stairs and with activities involving any bending, twisting, lifting or reaching movement of her back. Her medications cause her to become drowsy, and she spends a large part of each day lying down. She no longer drives because of her back pain and dizziness.
55 Constant stress and feelings of hopelessness cause the plaintiff to suffer severe headaches. She has increasing difficulty coping with the constant pain.
56 The plaintiff’s social life has been very badly affected. Despite her husband’s involvement with the church, she is unable to attend the regular functions any more. She tries to attend church if she is up to it. Her social life remains very restricted, as well as her intimate relationship with her husband.
57 The plaintiff has not been able to consider any return to work because she would not be able to handle even the lightest duties as a result of the pain which arises from back movements. The bouts of dizziness also have an effect on her ability to cope with daily life.
Lay evidence
58 The plaintiff’s daughter, Jocelyn, swore an affidavit on 14 June 2016. She is presently the plaintiff’s full-time carer, and confirmed the plaintiff’s pain and restrictions as set out in her affidavits.
Claim documentation
59 The plaintiff completed an incident report on 25 April 2013 which she set out the following –
“… my current back pain is getting worse. In 2008, I cancelled all home care shifts because I was having back pain, then. I was given new clients with wheelchairs. To take them out involved lifting the wheelchairs into and out of the boot of the car, pushing clients in a wheelchair, due to this, back pain getting worse. I must specify that all this pain I am now suffering is work related.”
60 In her WorkCover claim of the same date, the plaintiff repeated these details.
The Plaintiff’s medical evidence
Treaters
61 Dr Conejera provided the following letters, notes and certificates:
· 18 July 2008: Attended general practitioner Dr Conejera “This lady has been a current patient of my practice for over ten years and she is suffering from back pain causing a problem with her job. Investigations (X-rays were required)”.
· 7 August 2008: Attended general practitioner Dr Conejera – “back pain, muscular pain”.
· 25 July 2009: General practitioner Medical Certificate – “This patient should not be lifting wheelchairs to avoid any back injury.”
· 1 December 2010: General practitioner Medical Certificate “... because of a muscular sprain back, this patient needs to be on light duties for a few weeks to allow recovery”.
· 1 December 2010: Attended general practitioner Dr Conejera – “exacerbated LBP after heavy duty job, discuss re muscular strain”.
· 15 March 2011: Attended general practitioner Dr Conejera – “persistent mid mild back pain- discuss re type of job”.
· 29 March 2011: General practitioner Medical Certificate – “because of multi-level arthritis thoracic spine it is not medically advisable to push a wheelchair”.
· 2 May 2011: Attended general practitioner Dr Conejera – “discuss re pain mx”.
62 Complaints of back pain were also noted by Dr Conejera on 27 August and 11 October 2011, 30 March and 12 October 2012 and 24 April 2013.
63 On 9 May 2012: Dr Conejera certified – “because of osteoarthritis spine, she needs to have respite with lighter duties, it is medically necessary”.
64 On 25 April 2013: Dr Conejera provided a WorkCover Certificate of Capacity in which she certified the plaintiff unfit for all duties, noting the plaintiff had pain from the thorax to the low back.
65 Dr Conejera provided a report on 30 June 2013. Therein, she diagnosed multiple thoracic spondylosis and bilateral scoliosis, over 20 per cent compression fracture of T5. She noted the plaintiff’s pain began in 2008 due to repetitive tasks performed at work. On 20 November, the plaintiff went to the physiotherapist and a CT scan was requested as pain persisted.
66 Dr Conejera reported that the plaintiff now cannot complete her work duties. In order to do her shift she has to travel a lot, so she started cancelling her shift, and now is totally unfit to perform skills like homecare, personal care and transporting clients with a wheelchair.
67 Dr Conejera noted that on 23 April 2013, the plaintiff became unfit for her job. Even sitting for long periods of time or standing up or walking long distances worsened her pain. Dr Conejera had witnessed that, to come to her clinic, the plaintiff could not drive for 15 minutes, and had to come with her daughter.
68 Dr Conejera then thought the plaintiff was totally unfit for her job, and that ongoing treatment was essential, noting treatment allowed the plaintiff to cope with the pain, but not to work.
69 Further, Dr Conejera noted the plaintiff was starting to get symptoms like depression, and she was very scared of what the future held.
70 In her November 2016 report, Dr Conejera confirmed the work-related diagnosis and secondary depression, with the plaintiff then having counselling with Dr Ferraro.
71 The plaintiff was then taking Tramadol 200 milligrams, one BD; ProCalm, one tablet for vertigo; Deptran, 50 milligrams; and Sumatriptan.
72 Dr Conejera thought the plaintiff was unfit for work, noting even at home she had a carer, since she could not even do her home chores. She walked around but needed to sit, and needed to lie down. There was no job for her within these restrictions. Dr Conejera also noted there was fibromyalgia of unknown cause, of which the vertigo was part.
73 Dr Conejera’s most recent report of February 2017 essentially repeated the same matters.
74 Dr Conejera confirmed the plaintiff had back pain associated with the fracture, thoracic spondylosis and bilateral sacroiliitis that happened while at her work. She had chronic pain after working as PCA and transferring patients in wheelchairs.
75 Dr Conejera thought the plaintiff was not fit for any job and was currently unable to perform activities involving her spinal function or requiring the use of both arms due to severe chronic back pain and widespread pain in her legs, arms, hands, neck and shoulders, including headaches.
76 Dr Conejera considered the plaintiff permanently disabled for work, and totally dependent on her family, with her daughter as her primary carer.
77 Dr Conejera noted the plaintiff does not drive because of pain and vertigo. Due to pain and stress, she suffers from headaches, dizziness, lack of concentration, and difficulty completing tasks and coping with situations involving stress, pressure, or performance demands.
78 The plaintiff is isolated, and suffers from suicidal thoughts due to her difficulty in coping with the pain. She has difficulty being seated, standing, or walking for too long. She needs to lie down every half hour to an hour. Currently, her back pain is 8 out of 10, and spread pain is 7 out of 10. Her walking, seating, standing tolerance is five minutes.
79 The plaintiff attended Ms Le at Main Road West Physiotherapy with low-back pain on 13 April 2013.
80 There were five sessions thereafter, following which the plaintiff’s symptoms were reduced slightly. However, that pain reduction was only temporary, as the back pain resumed when the plaintiff returned to work. Ms Le advised she had told the plaintiff to apply for WorkCover, and asked that the plaintiff be sent back once approval had been obtained.
81 The plaintiff was referred to Ms Ventureira, psychologist, by her general practitioner in October 2013. Ms Ventureira then asked the general practitioner to review the plaintiff’s medication.
82 The plaintiff was under the care of Royal Melbourne Hospital pain management from August 2013. On the first visit, it was noted she had a past medical history of chronic low-back pain since 2008.
83 It appears the plaintiff continued to attend the Royal Melbourne Hospital until April 2016. Attendances were noted in August 2013, March 2014, May 2014, December 2014, 2 April 2016, 6 August 2015 and 7 January 2016.
84 Little reference was made by the parties as to the treatment undertaken as the numerous reports largely set out the treatment history rather than matters of medical opinion.
85 A Client Discharge Summary from Western Health set out management of the plaintiff’s chronic lower back pain was undertaken between 6 November 2014 and discharge on 4 February 2016.
86 The plaintiff attended the Emergency Department at Sunshine Hospital on 13 December 2016 with a presenting problem of low-back pain: “Today developed cramp-like pain in the flanks.” It was noted the plaintiff had chronic back pain and was on Tramadol and Doxepin (following a work injury)
Investigations
· X-rays cervical, lumbar and thoracic spine – July 2008 – normal
· CT scan of the thoracic spine 16 March 2011 – multilevel spondylosis
· Bone densitometry 16 April 2012 – normal
· Lumbar CT scan of the lumbar spine 30 March 2012 – more than 20 per cent compression fracture of LT
· Plain lumbar x‑ray 24 April 2013 – mild multilevel thoracic spondylosis and bilateral degenerative sacroiliitis
· MRI scan full spine August 2013 – no pathology seen in the spine.
Medico-legal evidence
87 Dr Nathar, psychiatrist, examined the plaintiff initially in June 2015 and most recently on 28 March 2017.
88 On the first occasion, the plaintiff reported that after ceasing work, she became more and more depressed and anxious. She missed her job, and her income had gone down. The pain was always there. It never stopped. For these reasons she had become very sad and depressed. She had suicidal thoughts in the nature of thinking it was better to die than be like this; however, her strong Catholic faith stopped her doing anything. Her body felt weak and tired and she had no interests. She slept poorly at night despite taking medication. She had a tendency to worry a lot about things and then she would get dizzy and felt her heart beating fast.
89 The plaintiff had seen a psychologist in rehabilitation five times and the previous year had had counselling on a monthly basis, with four sessions in 2015. She was then taking Deptran 50 milligrams at night.
90 Dr Nathar then thought the plaintiff was suffering from a moderately severe major depressive illness with significant features of anxiety and panic. There was also an additional associated diagnosis that would be applicable; namely, a Chronic Pain Disorder of moderate severity involving psychological factors and general medical conditions. Dr Nathar thought the plaintiff’s very poor mental status functioning had amplified her physical problems.
91 Accepting the history of physical problems at work, Dr Nathar thought that had led to the development of secondary anxiety depression which had persisted.
92 Dr Nathar then believed the prognosis was extremely poor. He noted the plaintiff had chronic and moderately severe psychiatric problems in the setting of chronic stressors arising from her pain problem. She was likely to have long-term permanent psychological deficits.
93 Dr Nathar thought the plaintiff was going to be permanently totally incapacitated for all work and that her psychiatric injuries alone had caused more than a significant reduction in her ability to attend to a full range of social and recreational activities, and the activities of daily living would also be a permanent problem.
94 On re-examination in 2017, the plaintiff said nothing seemed to have changed in terms of her activities since last seen. She was rather inactive, lying down and resting a lot of the time, even sleeping in the afternoons.
95 The plaintiff reported that her pain was worse. It was constant and there was radiation down the outer and anterior aspects of the right leg, sometimes all the way down to her toes. The pain sometimes radiated up to the shoulder and neck and she occasionally got a numbness sensation in her feet.
96 From a psychiatric and emotional viewpoint, the plaintiff said her depression since last seen had continued unchanged.
97 Dr Nathar noted the plaintiff presented as a stressed lady in pain. She was very restless and seemed to be at times agitated and stood up and walked up a little bit in between sitting down with a lot of expression of pain behaviour.
98 Dr Nathar continued to regard the plaintiff as suffering from a moderately severe major depressive illness with associated symptoms of anxiety and panic. An additional diagnosis continues to be that of a moderately severe Chronic Pain Disorder involving psychological factors, and a general medical condition. He confirmed the psychiatric illnesses were consistent with the stated cause and developed secondary to the physical injuries at work.
99 Dr Nathar confirmed the plaintiff’s prognosis continues to be extremely poor and that remained the case. He also confirmed his views as to the plaintiff’s incapacity and the effect the psychiatric injuries would have on her various activities.
100 Professor Kenneth Myers, consultant general surgeon, examined the plaintiff in July 2015.
101 The plaintiff told him of increasing disability as a result of the work involved with patient care or client care. She gradually developed pains in the low back and these extended up through the spine into her neck and across her shoulders into both arms and both legs.
102 Professor Myers thought it was difficult to precisely determine the site of symptoms, except to say the worst problem was in the low back but with radiation up the full length of the spine and particularly both shoulders.
103 Professor Myers noted it was difficult to examine the plaintiff as there was a reluctance to move any part of the spine through more than about 25 per cent of the expected normal range because of apparent pain and inability to lift either arm above a right angle because of pain. He thought it would not be fruitful to attempt a more detailed examination of the limbs due to the plaintiff’s response.
104 Professor Myers had available the plaintiff’s June 2014 affidavit.
105 Professor Myers diagnosed a crush fracture of L5, spondylitis of the thoracolumbar spine due to strains placed upon the back, causing aggravation of previously asymptomatic disease, so as to cause symptoms.
106 Professor Myers considered the plaintiff’s present disability in the spine resulted from strains placed upon her back in the course of her work as described. He thought she would only be suited for conservative treatment and there was no reason to anticipate any significant future improvement. He considered the physical injury to the plaintiff’s back would make it impossible for her to return to any form of employment in the foreseeable future.
107 Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff in May 2017.
108 Mr Moran noted the plaintiff started work as a carer with the defendant in 2006, working about 25 hours casual per week. The plaintiff told him that in 2008, she experienced pain in her low back which occurred without precipitating cause.
109 Mr Moran was provided with numerous reports from the plaintiff’s general practitioner, a report from her physiotherapist, correspondence from the Royal Melbourne Hospital, the plaintiff’s June 2014 affidavit, Professor Myers’ 2015 report, the radiological investigations and correspondence from Western Health.
110 Mr Moran noted the plaintiff had constant low back pain and her back movement was restricted. She had constant pain down the front and back of her right leg to the toes.
111 In terms of diagnosis, Mr Moran thought the plaintiff aggravated mild multilevel thoracic spondylosis and aggravated degenerative arthritis of both sacroiliac joints. He thought her complaint of back pain was consistent with the stated cause.
112 Mr Moran thought it likely the plaintiff would continue to experience back pain. He considered she was fit for full-time light duty work, not involving repeated bending and/or heavy lifting and in work in which she had the flexibility to sit or stand as pain dictates.
Vocational evidence
113 Dianne Forster, human resources consultant from Flexi Personnel, provided an employment assessment on 1 April 2016.
114 When interviewed, the plaintiff told Ms Forster that she had constant pain in the centre of the lower back, described as sharp and burning. She lay down at home so she did not have to sit. She also described constant pain in both buttocks, which was sharp and burning, daily fatigue due to pain, short-term memory loss described as scary, lack of concentration, stress, anxiety and depression.
115 Ms Forster was provided with reports from Dr Nathar, Dr Conejera and Professor Myers.
116 Based on the medical reports, Ms Forster concluded the plaintiff suffered from physical restrictions which prevented her from returning to her pre-injury role in the workforce in an unrestricted manual capacity. She noted Dr Nathar’s diagnosis of a moderately severe major depressive illness with significant features of anxiety and panic, and also a Chronic Pain Disorder of moderate severity which would negatively impact on the plaintiff’s ability to return to work or retrain. She also noted the general practitioner had diagnosed fibromyalgia and vertigo of uncertain origin.
117 As a recruiter, Ms Forster would not consider the plaintiff for any position until she received a letter of clearance from her doctor, clearly stating the number of hours and duties she may safely perform. Ms Forster generally concluded the plaintiff had no capacity for any employment. Her computer skills were very minimal. She believed the plaintiff would struggle to find an employer in the open labour market willing to employ her. She considered the plaintiff’s back injury alone may hamper any alternative work prospects and was further impeded by the plaintiff’s subsequent psychological symptoms.
118 Mary Morgan, human resources consultant from Flexi Personnel, provided an employment assessment in March 2017.
119 At that stage, the plaintiff advised she currently suffered with low back – constant sharp pain that gets worse when sitting, left buttock, a lot of pain, 8 out of 10 most days, neck – the pain comes and goes and is more painful when she tries to move her neck from side to side, daily fatigue due to pain, short-term memory loss and lack of concentration – forgetfulness and stress, anxiety and depression.
120 Ms Morgan’s conclusions were of a similar nature to Ms Forster, a year earlier.
Defendant’s medical evidence
121 Professor Lim, rheumatologist at Western Health, wrote to Dr Conejera in August 2013 advising that there was no serious pathology, and for the plaintiff to keep active and exercise.
122 Dr Chou, Rheumatology Registrar at the Royal Melbourne Hospital, wrote to Dr Conejera in February 2014, having seen the plaintiff and diagnosing depression, fibromyalgia and degenerative sacroiliac joint.
123 Dr Chou noted she had a long discussion about fibromyalgia with the plaintiff and her husband. The plaintiff seemed very unwilling to accept this as a diagnosis. They asked Dr Chou about potential workers’ compensation claims, regarding her previous work as a personal carer, and whether this had resulted in the condition. Dr Chou felt that fibromyalgia was multifactorial and it was difficult to attribute this solely to the plaintiff’s previous occupation.
Medico-legal evidence
124 Dr Taubman, consultant physician in general medicine, first examined the plaintiff in April 2013.
125 In terms of history, Dr Taubman noted the plaintiff worked as a homecare worker, duties involving wheelchair patients and cleaning. Symptoms of back pain began in 2008. She felt pain on 24 April 2013 when with a client, and she considered this episode was the result of a progressive decline in her health.
126 The plaintiff advised she did not wish to go out anymore and was reluctant to meet people. She felt more comfortable when lying down. She did not feel well enough to go walking and her low back hurt. She had noticed a progressive continuous decline in her physical capacity and then the incident of pain in April 2013.
127 On examination, there was very little lumbar spine movement. There were a number of inconsistent findings on examination, with evidence of collapsing weakness and sensory changes, not of dermatomal distribution.
128 Dr Taubman thought the plaintiff’s physical findings were consistent with degenerative arthritis involving the sacroiliac joints. She also had mild thoracic spondylosis consistent with a person of her age.
129 In Dr Taubman’s opinion, the plaintiff’s medical condition was not work related. In view of a history of night sweats, further investigations were indicated to exclude an underlying constitutional abnormality.[16]
[16]These do not appear to have been undertaken
130 Based on the examination and history, Dr Taubman thought the plaintiff’s medical condition was due to a deterioration of a pre-existing constitutional medical condition.
131 Dr Taubman considered the plaintiff’s incapacity for work was not resulting from or materially contributed to by the pre-existing injury. He thought her upper buttock and low-back pain were due to arthritis of the sacroiliac joints which was a constitutional abnormality and not work related. He did not consider the plaintiff’s employment had contributed to an aggravation acceleration or exacerbation or a deterioration.
132 Dr Taubman noted the plaintiff’s history as described was consistent with increasing symptoms of back discomfort which had occurred progressively over time and which were not work related.
133 Dr Taubman considered it was difficult to provide any opinion regarding work capacity as there was considerable functional overlay on examination. Given the involvement of the sacroiliac joints, he thought the plaintiff required further investigation in order to exclude a systemic disorder.
134 In conclusion, Dr Taubman noted the plaintiff described a progressively increasing back pain since 2008 with no evidence on history her condition had been aggravated by employment. He noted the presence of clinical and imaging features of the sacroiliac joint origin suggest the plaintiff may be suffering from spondyloarthropathy.
135 Dr Taubman considered the clinical picture suggests an underlying systemic disorder which needed further investigation and was not consistent with a work-related condition.
136 Dr Taubman re-examined the plaintiff in September 2014.
137 The plaintiff then described her low-back pain as burning in nature, pulsing and stabbing. The discomfort was constantly present and aggravated by everything she did. Additionally, her upper limbs hurt a lot.
138 The plaintiff advised of her problems with wheelchair patients and her complaints to the defendant in this regard.
139 Dr Taubman confirmed his earlier view that the symptomology of lower lumbar and sacral pain suggest a significant component of the plaintiff’s pain relates to sacroiliac joint pathology and her description of the pain may be suggestive of a possible inflammatory basis for her sacral discomfort.
140 Dr Taubman did not think there was a diagnosis of fibromyalgia but thought the plaintiff’s widespread response to light touch reflected a functional presentation.
141 Dr Taubman noted the plaintiff described severe limitation of her level of physical functioning. Physical examination had revealed signs relating to the neck, shoulders and lumbar spine which, however, did not accord with an organic presentation.
142 The plaintiff described her level of pain of 10 out of 10, constantly present and not relieved by Panadol Osteo. She described discomfort over the thoracic spine, in the neck and shoulders.
143 Examination findings revealed no apparent impairment of mobility or cognitive function. Dr Taubman noted the plaintiff’s stated level of performance on household and family duties was that she was markedly impaired, with family fulfilling many of the duties she had previously done.
144 Dr Taubman, again, concluded the plaintiff’s sacral discomfort did have an organic basis. The widespread symptomatology in the cervical spine, the limbs over the vertebral region associated with atypical neurological symptoms were not accountable on an organic basis.
145 Dr Taubman noted the plaintiff did not describe an acute onset of pain which would explain the compression fracture of the L4-5 vertebra detected on the 2012 CT scan. He noted such factors are common in postmenopausal women and large scale prospective studies indicate only about one in four fractures are clinically recognised, which may in some cases be due to the absence of symptoms.
146 Dr Taubman did not consider the plaintiff had sustained a compression fracture of T5. He would expect such a fracture to heal within eight weeks. The fracture was not evident on an x‑ray in 2008 and first noted radiologically on 30 March 2012.
147 Dr Taubman thought the height loss shown on the x‑ray of March 2012 can occur with ageing due to degenerative changes in the intervertebral discs and to postural changes.
148 Dr Taubman thought lifting a wheelchair in and out of a car would not normally be expected to cause a compression fracture unless the person was suffering from severe osteoporosis, noting the plaintiff’s bone density was normal and therefore she would not be regarded as suffering from this condition.
149 Lifting a wheelchair into a car by a person suffering from a sacroiliac condition on the other hand could cause that person to experience discomfort without necessarily altering the underlying pathology.
150 Dr Taubman thought there was no visualised abnormality in the thoracic spine which would explain the plaintiff’s complaint of chronic posterior thoracic discomfort.
151 Dr Taubman thought there was evidence of illness behaviour and as the plaintiff attributed her condition to her employment, he would accept that her employment was, and probably still is, a materially contributing factor to her current condition.
152 Dr Taubman considered the plaintiff was suffering ongoing pain due to a constitutional problem for which work duties would not be responsible for altering the underlying pathology.
153 Dr Taubman thought the plaintiff was able to return to suitable employment full time. A graduated increase to full hours over two months would be recommended as she had not worked since April 2013. Any work duties should not involve repetitive bending or lifting of weights greater than 3 kilograms, or involve repetitive rotatory movements of the trunk.
154 Dr Taubman concluded that the plaintiff suffered lumbosacral joint discomfort while lifting during the course of employment.[17] He thought she had the capacity to return to full-time employment.
[17]This comment seems at odds with his view expressed earlier in his report
155 Dr Kostos, rheumatologist, first saw the plaintiff in September 2015 and re-examined her in June 2017.
156 On initial examination, Dr Kostos noted the plaintiff worked as a personal carer. In 2008, she simultaneously developed pain throughout her entire spine without history of injury or accident
157 On examination, the plaintiff was complaining of constant pain throughout her entire body. She was also very tired and had treatment for migraine headaches and suffered from constipation and cognitive difficulties.
158 On examination of the cervical, thoracic and lumbar spine, movements were non-existent with pain. The plaintiff also had pain with axial compression and attempted simulated rotation. There was diffuse tenderness along her entire spine and paravertebral areas to skin touch.
159 Active shoulder elevation was only possible to 45 degrees with pain but despite this, Dr Kostos was able to demonstrate full passive glenohumeral movements with abduction to 90 degrees. The plaintiff had diffuse tenderness to skin touch around both shoulder girdles and extending into the arms, and also diffuse tenderness throughout both legs.
160 Dr Kostos thought it was quite apparent the plaintiff had a Chronic Pain Syndrome with some features related to fibromyalgia. This condition related to psychological and social factors with the role of inherent personality traits, previous life experiences and the adaptability to cope with anxiety and stress becoming increasingly appreciated. It had nothing to do with the physical aspects of her former work.
161 Dr Kostos did not think there was a fracture at T5. He noted the lumbar CT scan of March 2012 reported to show a compression fracture but that was simply an anatomical variation and there was no fracture.
162 Dr Kostos commented that the alternative diagnoses of aggravation and acceleration of degenerative changes in the thoracic and lumbar spine and sacroiliac joints and aggravation and acceleration of thoracic spondylolisthesis and non-evidence based diagnoses can be completely discounted and are basically fabrications.
163 Dr Kostos thought there had been no ongoing work-related aggravation because the plaintiff’s condition is the same whether she works or not. However, the situation had been compounded by gross functional overlay and non-organic signs and it was clear her condition was not physically based. Therefore, the physical aspects of her former work have not contributed at all to her current physical condition. He thought her current treatment was not helping and he believed it should be ceased and she should see a psychiatrist.
164 On re-examination on 5 June 2017, the plaintiff confirmed she had developed pain throughout her spine, without a history of an incident or accident, which was worse in the lower back but she claims that her pain is now localised to the lower back and right hip girdle and she does not have any pain elsewhere. She continued to complain of generalised fatigue, migraine headaches and cognitive difficulties.
165 The plaintiff advised she had no idea what was wrong with her but claimed her doctor had told her it was because of the work she did.
166 On examination, the plaintiff’s neck movements were markedly restricted but not associated with any pain or local tenderness. Active shoulder elevation was restricted to 45 degrees bilaterally because of low-back pain. There was no shoulder pain or local tenderness.
167 The plaintiff’s thoracolumbar spine movements while sitting and standing were non-existent with pain all directions. However, pain was also noted with axial compression and simulated rotation. She could not lie prone, so palpation was conducted in the left lateral position. She had midline lumbar and bilateral paravertebral tenderness, right greater than left, to palpation. Hip movements were resisted due to back pain.
168 Dr Kostos thought it was unclear why the plaintiff’s history had changed but, despite that, her presentation was that of a Chronic Pain Syndrome which he had discussed previously and was in no way related to the physical aspects of her employment. He thought her condition was being perpetuated by the chronic pain state and her belief her condition had been caused by her work.
169 Dr Kostos criticised Dr Conejera’s view that there was a fracture, thoracic spondylosis and bilateral sacroiliitis that were work related, as there was in fact a lumbar MRI scan in August 2013 that she ordered that was normal, as was a subsequent sacroiliac MRI scan ordered in January 2014.
170 Dr Kostos noted that Professor Lim, rheumatologist at Western Health, had written to Dr Conejera in August 2013 advising there was no serious pathology noted and advised for the plaintiff to keep active and to exercise.
171 Dr Kostos could not comment on Dr Taubman’s findings of degenerative arthritis involving the sacroiliac joints because physical examination could not determine the cause of the plaintiff’s low-back pain.
172 Dr Kostos thought that Mr Moran’s conclusion that the plaintiff aggravated mild multi-level thoracic spondylosis and aggravated degenerative arthritis in both sacroiliac joints was completely non-evidence based.
173 Dr Kostos concluded, therefore, there had been considerable medicalisation of the plaintiff’s condition and, as a result, she had been treated purely with medication and the previous advice from her rheumatologist had been ignored and as a result, her condition will never improve. The plaintiff’s prognosis continued to be poor.
174 Dr Boys, consultant orthopaedic surgeon, examined the plaintiff in June 2017.[18]
[18]The letter of instruction does not particularise the documents with which Dr Boys was provided
175 The plaintiff then had complaints referrable to her lumbar spine with initial symptoms in the latter part of 2007. She could not identify any injury at that time and could not recall any specific activity precipitating the symptoms.
176 Dr Boys noted the plaintiff described routine activities as an aged carer and difficulties in the latter period of 2009 with transferring patients, leading to a situation where she could not work beyond 2013.
177 On examination, the plaintiff described pain across her lumbosacral junction extending to the right buttock and right posterior thigh. There was also right calf pain on occasion. No paraesthesia or numbness was reported in the lower limbs.
178 Examination was characterised by no effective movement of the spine. The plaintiff had actively moved her neck to a few degrees only in all planes and would actively flex and extend her thoracolumbar spine a few degrees only. She would not move her hands below waist level. She complained of pain with attempted movement. The pain response was also evident with distractive tests.
179 Dr Boys thought the plaintiff had a Chronic Pain Syndrome with associated depression. There were numerous inappropriate physical signs evident indicative of magnified illness behaviour. He thought there was no diagnosable musculoskeletal condition evident.
180 Dr Boys thought the plaintiff had chronic non-specific pain associated with a depressive illness. Examination findings indicated significant functional pain unrelated to her presentation. He noted she has had no history of spinal injury in the course of employment and there is no evidence to suggest a work relationship.
181 Dr Boys thought the plaintiff would appear to have suffered a Major Depressive Disorder with somatic symptoms and her assessment would be best addressed by a psychiatrist.
182 Dr Boys diagnosed Chronic Pain Syndrome – depression. He thought the plaintiff had an entrenched perception of disability with a poor prognosis.
183 Professor Doherty, psychiatrist, examined the plaintiff in July 2017.
184 In terms of the relevant history, the plaintiff told him the claimed injury occurred suddenly in April 2013, caring for a client. He noted she said she had back pain from 2008 and became much worse on that latter day and had not returned to work since.
185 The plaintiff advised that since she had ceased work, she was just the same and could not cope with constant back pain. At times, she thought she could not keep living, felt very dead and felt like dying and had felt like that for two years. She was no good and not getting better.
186 The plaintiff advised that she had back pain. If she sat for 5 minutes, she then needed to stand for 5 minutes. The pain flared up.
187 The plaintiff advised she felt worried and stressed because of the pain and it did not go away. She felt tired physically and mentally. She did not have any energy. She felt depressed, felt sad because she was not working and could not do the job she wanted to do.
188 On mental state examination, the plaintiff looked blankly ahead, was slow with answers and giving minimal detail. There were brief moments of tears. There was no distress, perturbation or anguish. Rapport was difficult, if not impossible to establish. There were many pain-related behaviours during the interview and examination. The plaintiff was out of the chair, standing briefly, on a few occasions.
189 The plaintiff quantified her level of mood as 3 out of 10 and pain at 8 out of 10. Her affect appeared flattened down and there was a reduced reactivity and range. Affect was poorly communicated. Her perceptions were dull without distortion or abnormality. There appeared no cognitive impairments related to any organic factors. Professor Doherty concluded the plaintiff’s judgment may be impaired by psychiatric cause.
190 Professor Doherty noted it was difficult to obtain a reliable history from the plaintiff. She was slow with answering questions and at times looked blank. She appeared to be not used to talking about herself. There were features of depression and significant pain-related behaviours. The plaintiff said the predominant problem she faced was persistent pain. The assessment was made more difficult by the plaintiff’s claimed cognitive impairments.
191 Based on the plaintiff’s history and Professor Doherty’s review of the supplied material, he thought pain was the determining factor in the plaintiff’s condition. She has a Pain Disorder DSM-4, or as now described as a Somatic Symptoms Disorder with predominant pain DSM-5. The persistence of pain is contributed significantly by personality factors and what appears to be an entrenchment of a belief in her incapacity and the accommodation by others of her claimed incapacity. A component of the plaintiff’s current presentation and the persistence of the experience of pain can be accounted for by the presence of depressive symptoms.
192 Professor Doherty thought the plaintiff’s clinical presentation did meet the criteria for a somatic symptom disorder with predominant pain persisting DSM-5, previous Chronic Pain Disorder with psychological factors and a general medical condition DSM-4. There was a heightened concern about pain and that concern interfered with daily function.
193 Professor Doherty considered the plaintiff also would meet criteria for a Major Depressive Disorder. This was a persistent downturn in mood, complaint of reduced of motivation and energy, anxiety and sadness.
194 Professor Doherty noted the plaintiff has a conviction she has significant physical problems. That has been reinforced by her general practitioner and certain other specialist examiners. Her general practitioner is of the view the plaintiff is disabled. So there is thus an illness behaviour component and the plaintiff is behaving as expected because of belief of illness and incapacity.
195 Professor Doherty thought the depressive condition would also cause a heightened sensitivity to pain particular whatever component of pain was due to an organic cause and the depressive condition will colour the plaintiff’s response to pain and be more negative, pessimistic and more intense.
196 Professor Doherty noted there are also issues of compensation referring to the plaintiff’s interaction with the rheumatology registrar, as reported in the letter of 16 February 2014, which suggests that compensation issues were on the plaintiff’s mind.
197 Professor Doherty considered the factors that currently contribute to the plaintiff’s clinical presentation are the conviction she has of severe physical condition, the reinforcement of that by certain assessments and the treatment she has received, the colouring of her response because of feeling depressed and the litigation processes.
198 Professor Doherty thought the plaintiff was unlikely to do well in the future. She is well entrenched in her view about the presence of pain and functional loss. There is significant abnormal illness behaviour and pain-related behaviours. The level of impairment is inexplicable in terms of the known physical pathology.
199 Professor Doherty noted that the plaintiff’s impairments are accommodated by others and that will tend to maintain and reinforce the sick role. The likelihood of recovery and return to satisfactory functional activities should be considered with some caution.
Claim documentation
200 By letter dated 30 May 2013, CGU advised the plaintiff her claim for injury on 24 April 2013 had been rejected as Dr Taubman had found her condition of arthritis was not work related.
Overview
Compensable injury
201 The plaintiff’s credit was not in issue, as she was not cross examined. Her daughter’s affidavit evidence was also not challenged.[19]
[19]T53
202 The plaintiff deposed to having injured her back during the course of her employment looking after residents, and in particular, transferring them by wheelchair. From 2008, she advised the defendant of her problems in this regard on numerous occasions.
203 The primary submission on behalf of the defendant however was that the plaintiff did not suffer a compensable injury at work.[20]
[20]The plaintiff’s claim was rejected by letter dated 30 May 2013 following examination by Dr Taubman, who found the plaintiff was suffering from arthritis that was not work related
204 It was submitted that Mr Moran, the principal medico-legal examiner for the plaintiff, did not support a causal connection.[21]
[21]T10
205 In his report of May 2017, Mr Moran noted that in 2008, the plaintiff had pain in her low back which occurred without precipitating cause. Whilst he thought her condition was “consistent with the stated cause”, he did not describe any work process.[22]
[22]T10
206 It was submitted there was doubt as to what Mr Moran was actually saying in his conclusion, and his comments really created a large degree of ambiguity.[23]
[23]T12
207 In terms of the plaintiff’s general practitioner, it was submitted there was only one occasion when the plaintiff’s work and the back injury were referred to, and it was only after the plaintiff stopped work that Dr Conejera linked the plaintiff’s spinal condition to her work when she reported on 30 June 2013.[24] At that time, Dr Conejera’s notes described an arthritis type diagnosis.[25]
[24]T13
[25]T24
208 Further, it was submitted this report did not help the plaintiff as Dr Conejera “seemed to be here and there in terms of diagnosis — firstly, diagnosing a muscular sprain, then arthritis or osteoarthritis, then spondylitis and a compression fracture”.[26]
[26]T25
209 It was submitted Dr Conejera’s records do not assist the plaintiff in terms of the causation issue, as her first entry of 18 July 2011 just talked about back pain, and the entry on 7 August 2011 referred to muscular pain. [27]
[27]T19
210 It was submitted that Dr Conejera’s certificates did not attribute a cause to the injury referred to. They were not WorkCover certificates; they were merely advice that the plaintiff not undertake a particular activity.[28] It was submitted Dr Conejera seemed to be saying there is some sort of injury, so to prevent further problems, do not lift wheelchairs, but she was not suggesting that the wheelchairs were what was precipitating the plaintiff’s condition.[29]
[28]T20
[29]T21
211 The next relevant reference in the notes was on 1 December 2010, which it was submitted seemed to be referring to a specific exacerbation of right lower back pain after a heavy duty job.
212 Counsel for the defendant submitted the weight of the evidence was against a causal connection, bearing in mind, that the plaintiff was only working 20 hours a week and she was not doing heavy wheelchair lifting all the time.[30]
[30]T14
213 Whilst it was conceded that there were some confusing aspects to Dr Taubman’s reports, it was submitted, that he considered the plaintiff’s condition was due to arthritis of the sacroiliac joints.[31]
[31]T33
214 It was submitted that any inconsistency could be explained by Dr Taubman noting the plaintiff attributed her condition to her employment. He did not however consider this to be the case. The plaintiff clearly is not a medical expert and it was submitted the weight of medical evidence was that the original injury was not work-related, and that was the relevant evidence.[32]
[32]T33
215 Reliance was also placed on Dr Kostos’ view which, it was submitted, was a very emphatic statement, that the plaintiff’s condition had nothing to do with the physical aspects of her former employment. It was submitted his evidence, as a rheumatologist and having seen the plaintiff twice two years apart, was compelling.[33]
[33]T30
216 Further, Dr Boys’ view in similar terms should also be accepted because he has seen the radiology and concludes there is no organic basis for the plaintiff’s ongoing complaints.
217 Whilst reliance was placed on the lack of reference in the notes to a work relationship, in my view, the numerous certificates over the years provided by Dr Conejera indicate an ongoing problem with the plaintiff’s back caused by wheelchair work.[34] As was submitted by counsel for the plaintiff, the chronology was overwhelmingly consistent with the plaintiff having problems for five years with wheelchairs prior to stopping work.[35]
[34]T21
[35]T48
218 Neither Dr Kostos nor Dr Boys were aware of these certificates and based their opinion on a history of no specific incident, although Dr Boys was aware the plaintiff was involved in transferring residents in wheelchairs in 2009.
219 I accept the plaintiff did not go off on WorkCover and only obtained general certificates as she wanted to continue working.[36]
[36]T52
220 In my view, Mr Moran does in fact make the link between injury and work having been provided with a number of documents which set out the nature of the plaintiff’s injury was a cause of employment injury relating to her work as a carer in particular, her problems with moving wheelchairs and residents.[37]
[37]T11
221 Dr Taubman’s reports are very confusing and, in my view, cannot be explained simply by saying he has relied on the plaintiff’s attribution of her back problems to work when he concluded that the plaintiff suffered lumbosacral joint discomfort while lifting during the course of her employment.[38]
[38]T49
222 Further, unlike Dr Kostos and Dr Boys, who found the plaintiff had no organically-based spinal condition, Dr Taubman thought a component of her pain related to sacroiliac joint pathology and that her sacral discomfort had an organic basis, consistent with pain arising from the sacroiliac joints. Importantly, Dr Taubman thought lifting a wheelchair into a car when suffering from this condition could cause a person to experience discomfort in this activity without necessarily altering the underlying pathology.[39]
[39]Federal Broom Co Pty Ltd v Semlitch (1964) HCA 34, Commonwealth of Australia v Beattie (1981) FLR 19
223 Finally, Dr Taubman does not adequately explain his view that the plaintiff’s condition is not related to work, nor does he explain why any arthritic condition has not been aggravated by the plaintiff’s duties.
224 Interestingly, whilst Dr Kostos thought the plaintiff had not suffered an injury, he was critical of the plaintiff having failed to take the advice of the rheumatologist to whom she had been referred.[40]
[40]T51
225 Importantly, the plaintiff was not challenged in cross-examination. It was submitted, given the plaintiff’s size and the nature of her duties, it was consistent that she would suffer spinal pain in the performance of her heavy work duties. However, she showed a determination to keep on with her job despite suffering that pain.[41]
[41]T49
226 As I indicated during the hearing, it was a “big call” on the defendant’s part to say there was not an injury at work given Dr Conejera’s numerous certificates[42] and the plaintiff’s ongoing complaints about wheelchair work[43] about which she was not cross examined.
[42]T35
[43]T23
227 Taking into account all the evidence, I am satisfied that the plaintiff suffered an aggravation of previously asymptomatic underlying lumbar disc disease whilst performing her work duties with the defendant.
228 However, I am not satisfied the plaintiff suffered a crush fracture during that time. There was no history of an acute onset of pain to explain the occurrence of the fracture, as Dr Taubman explained.[44]
[44]T35
229 Further, there was no evidence of a fracture on the 2011 CT scan. It showed up a year later, in 2012. It was not shown on the x-ray in 2013 and the subsequent MRI.[45] In any event, there is some doubt as to the clinical significance of any fracture as Dr Taubman, Dr Kostos and Dr Boys explained.[46]
[45]T35
[46]T15
230 Having established a compensable injury, the plaintiff has satisfied the first limb of the test in Veljanovska.[47] It was submitted by counsel for the plaintiff that the plaintiff then had a psychiatric response to this injury with depression as Dr Conejera reported in 2013 and therefore paragraph (c) applies.[48]
[47]T51
[48]T49
231 During the course of the hearing, counsel for the plaintiff indicated the application pursuant to clause (a) was only relied on insofar as setting up a foundation for the Veljanovska argument under ss(c).[49]
[49]T53
232 Whilst counsel for the plaintiff advised he was not instructed to withdraw the (a) application, I was not addressed in relation thereto[50] and was asked by counsel not to spend time on that application because the case was under (c).[51]
[50]T55
[51]T56
233 Clearly, the application under (a) was fraught with difficulty, with the preponderance of medical evidence that there was little if any organic basis to the plaintiff’s present complaints with a diagnosis of Chronic Pain Disorder by a number of examiners given the plaintiff’s inconsistent performance and significant signs of illness behaviour on examination.[52]
[52]T43
234 Whilst Professor Myers did not comment specifically on any functional presentation, he did note it was not fruitful to attempt a more detailed examination due to the plaintiff’s pain response.[53]
[53]T18
235 Both Dr Kostos and Dr Boys diagnosed a Chronic Pain Syndrome, with Dr Boys also noting the presence of major depressive features.
236 Psychiatrist, Professor Doherty, thought the plaintiff had a Pain Disorder, now titled a Somatic Symptoms Disorder with predominate pain (DSM-5). The plaintiff also met the diagnosis for a Major Depressive Disorder. Dr Nathar essentially shared this view, diagnosing a moderately severe Chronic Pain Disorder order and a moderately Severe Major Depressive Disorder with significant features of anxiety and panic.
237 I am required to determine whether the consequences of this psychiatric condition are “severe”.
238 The plaintiff complains of continuing stress and feelings of hopelessness and has great difficulty coping with her constant pain. She has become very sad and depressed. She is unable to perform any personal or domestic tasks and relies on her daughter as her carer.[54] The plaintiff spends a lot of her time during the day lying down. Although she is a lady with few hobbies,[55] her activities are restricted.
[54]T53
[55]T59
239 As Professor Doherty reported, there is a persistent downturn in the plaintiff’s mood, complaint of reduced motivation and energy, anxiety and sadness – symptoms meeting the criteria for a Major Depressive Disorder.
240 The plaintiff has not been referred for psychiatric treatment although Dr Kostos considered she should be seen by a psychiatrist.[56]
[56]T53
241 The plaintiff had some counselling at the Royal Melbourne Hospital whilst undertaking pain management and also saw a psychologist, Ms Ferraro, for some time. There is no report from that practitioner.[57]
[57]T29
242 It appears from Dr Nathar’s description that the 50 milligrams of anti-depressant, Deptran, presently being prescribed is a relatively low dosage.[58]
[58]T39
243 Whilst there has been little psychiatric treatment, the only psychiatric opinion as to the plaintiff’s present work capacity is Dr Nathar, who considers, on psychiatric grounds, the plaintiff is totally incapacitated for employment.[59] Further, he thought she was not a suitable candidate for retraining due to the poor mental state functioning.
[59]T53
244 Professor Doherty did not comment on work capacity when he examined the plaintiff in August this year. Whilst not clearly stating whether the reason was physical or psychiatric, Dr Conejera thought the plaintiff was not fit for any job as of February this year.
245 The only other practitioners who have commented on the plaintiff’s capacity have done so in terms of a physical injury, with Mr Moran and Mr Taubman of the view she was fit for full-time light duties.[60]
[60]T47
246 In light of Dr Nathar’s view, counsel for the plaintiff submitted the plaintiff has therefore suffered the requisite loss of 40 per cent and her application succeeds.[61]
[61]T54; Acir v Frosster Pty Ltd [2009] VSCA 454; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170
247 There was no dispute that the appropriate “without injury” earnings figure was about $22,000, 60 per cent of which is $13,000 or $250 per week.[62]
[62]T47
248 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity.[63]
[63]See Forrest J in Acir v Frosster Pty Ltd (supra) at paragraph [171]
249 As Professor Doherty explained, the diagnosis of a Somatic Symptom Disorder involves a heightened concern about pain and that concern interferes with daily function. In the plaintiff’s case, the psychiatric symptoms of this Disorder include her illness behaviour on examination as described by Dr Kostos and Dr Boyes, her experience of constant and significant pain, her inability to do anything around the house and the need to lie down during the day.
250 These are consequences of a psychiatric, not physical condition, and are properly attributable to the application pursuant to clause (c) as the expert psychiatric evidence confirms.
251 Whilst she may experience bouts of dizziness and had some lower limb problem in the past,[64] I am satisfied that as a result of this psychiatric condition alone, the plaintiff does not have the capacity for any employment.
[64]March 2014 Dr Vaska – Royal Melbourne Hospital Pain Services
252 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
253 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
254 I am also satisfied that the plaintiff’s psychiatric condition is permanent, with practitioners such as Professor Doherty expressing a somewhat pessimistic view as to the plaintiff’s prognosis as she is entrenched in her view about her pain and functional loss.[65]
[65]T54
255 Accordingly, I grant leave to the plaintiff to bring proceedings for damages of pain and suffering and loss of earning capacity
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