Rezaee v MMF Nominees Pty Ltd
[2012] VCC 45
•15 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-04810
| Zahra Rezaee | Plaintiff |
| v | |
| MMF Nominees Pty Ltd | First Defendant |
| Victorian WorkCover Authority | Second Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 & 17 February 2012 | |
DATE OF JUDGMENT: | 15 March 2012 | |
CASE MAY BE CITED AS: | Rezaee v MMF Nominees Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 45 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – injury to the lumbar spine – pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. McGarvie S.C. | Ryan Carlisle Thomas |
| Mr C. Nettlefold | ||
| For the First and Second Defendants | Ms R. Annesley | Minter Ellison |
HER HONOUR:
1 The plaintiff, Ms Zahra Rezaee, applies under section 134AB(16)(b) of the Accident Compensation Act1985 (Vic) (the Act) for leave to issue proceedings for the recovery of damages for pain and suffering only in respect of an injury to the lumbar spine sustained in 2007 during the course of her employment with MMF Nominees Pty Ltd (the employer) as a picker and packer.
2 The plaintiff is 30 years old and was educated to year 12 in Iran before migrating to Australia in September 2003 with her family. She studied English and stayed at home until she commenced work with the employer in August 2006. She ceased work in May 2007 due to back pain and has not worked since then. She has two young sons born in September 2008 and November 2011. She says that she enjoyed working, and expected to be able to return to the workforce (notwithstanding that she is currently at home with the children) but cannot return to her pre-injury duties because of her lumbar pain and restrictions, and will need to retrain if she is to return to work. She relies heavily on her husband to assist her with managing the children, and the home and with any recreational activities. He is a butcher who works only three days per week so that he can assist her at home. She has had physiotherapy and hydrotherapy in the past, but continues to suffer daily pain requiring medication in the form of Brufen (two tablets, twice daily). The back pain disturbs her sleep and adversely affects her physical relationship with her husband. The back pain also restricts her daily activities at home and outside the home. In all the circumstances, she says that the pain and suffering consequences are more than considerable when judged by comparison with other cases in the range of possible impairment or losses of body function.
3 The defendants say that the plaintiff has not established that she continues to suffer from a compensable injury, nor that any organic injury flowing from employment is permanent, nor that the pain and suffering consequences of any permanent impairment or loss of body function are more than considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function.
Compensable injury
4 I am satisfied for a number of reasons that the plaintiff suffered compensable injury in the circumstances she described in her evidence.
5 The plaintiff’s evidence in this regard may be briefly summarised. In her first affidavit at paragraphs 9 to 12, the plaintiff stated that while working as a picker and packer for the employer she was required to bend and lift products repetitively. Some of the products weighed more than 25 kilograms. “Very soon” after commencing work with the employer in August 2006, she started to feel pain in the low back. She did not say anything at first, but when the back pain “started to get really bad” she mentioned it to the business owner, who told her she should not complain or else she would lose her job. She tried to ignore the pain but it worsened and she saw her general practitioner, Dr Leena Ayala, who prescribed painkillers and referred her to physiotherapy. For a short time her back pain improved but it worsened again in March 2007 and Dr Ayala prescribed Mobic and sent her for more physiotherapy. She ceased work because of the pain in May 2007 and has not worked since.
6 In cross-examination, the plaintiff insisted that she had told her female supervisor about her back pain as well as the business owner. She would take lunch breaks with her supervisor and told her she was having back pain related to her work. She agreed that she may have told Dr Ayala she did not “report” the injury while she was working.
7 The defendants relied on the note from the plaintiff’s treating neurosurgeon, Mr Armin Drnda, dated 6 January 2009, to the effect that when he saw the plaintiff in August 2007 in relation to her low back pain, which he diagnosed as muscular pain, she did not mention a work injury to him.[1] In addition, the defendants relied on the printed clinical note of Dr Ayala dated 8 June 2007 where she noted “stopped working on 15/5/07, still back pain, now wants to claim workcover, but she did not report injury while was working”.
[1]Exhibit 1 page 2.
8 The entry on 30 September 2006 notes “also doing casual packing job last 2/12 and since then pain in left mid back”. The clinical notes of Dr Ayala on 16 March 2007 record a complaint of “new pain in left lower back, for 3 months”, the provision of a sample of Mobic and a referral to physiotherapy.[2] There is a further visit on 10 April 2007 with continued back pain, and the prescription of Prednisolone for one week. On 15 May 2007 the notes record “last Friday did lifting at work, about 15-20 kf (sic), and has recurrence of back pain, back to female physiotherapist”. The notes also record “thinking about stop working”.
[2]Exhibit A page 38.5.
9 However, the plaintiff’s evidence concerning the circumstances of her injury and her verbal report to her supervisor and the business owner about her work-related back pain is uncontradicted and I therefore accept it. I note that her evidence is supported by the entries in Dr Ayala’s clinical notes of 30 September 2006, and 16 March, 15 May and 8 June 2007.
10 I consider that her evidence is further supported by the letter of Dr Ayala dated 11 December 2007 that “I discussed with her about her problem being related to her duties at work. She stated to me that she had mentioned it to her supervisor but she was told that she could lose her job if she did a workcover claim”. This letter suggests, as the plaintiff contended, that the plaintiff did verbally report her injury to her supervisor and to the business owner, but did not make a WorkCover claim.
11 In her report dated 11 December 2007[3], Dr Ayala diagnosed “chronic lower back pain, lumbar spine disc prolapse at level L5/S1, and recurrent left sacroileitis”.[4] She noted that the plaintiff had previously been fit and well and that, although she had a degree of scoliosis in her lumbar spine, “she was asymptomatic before starting packing job”. She concluded that “since she was performing repetitive bending and lifting up to 20 kg, I think that is likely that the packing duties are the cause of her back pain”.
[3]PCB 35.
[4]Exhibit A page 36.
12 Dr Said Mirranay, general practitioner, reported on 17 August 2011 that the plaintiff told him “she worked in a warehouse back in 2006, where she hurt her back”.[5]
[5]Exhibit A page 38b.
13 I am therefore satisfied that the plaintiff suffered compensable injury to the lumbar spine in or about late 2006 and early 2007 during the course of her employment with the employer.
Permanence
14 The defendants submitted that there was no up to date report from the plaintiff’s treating doctor addressing permanence of the impairment and its sequelae.
15 Radiological examination on 3 October 2006 showed that the lumbar spine had a slight upper lumbar scoliosis convex to the left and appearances in keeping with bilateral pars defects at L5. The thoracic spine was reported as normal, as was the alignment in the sagittal plane of the lumbar spine and the disc spaces of the lumbar spine. X-ray of the pelvis on 21 March 2007 was reported as showing “no definite evidence of an erosive arthropathy or other significant bony abnormality in the region of the left sacroiliac joint.” CT scan of lumbar spine on 17 July 2007 showed “minimal disc protrusion at L5/S1”, but was “otherwise normal”. MRI on 4 April 2011 was reported as normal.[6]
[6]MRI undertaken on 23 October 2009 was not tendered but was referred to in the report of Mr Geoffrey Klug dated 17 March 2011.
16 The defendants relied on the medico-legal reports of Mr Peter Battlay (7 October 2009),[7] Mr Geoffrey Klug (17 March 2011),[8] Mr Kenneth Brearley (28 April 2011)[9] and Mr Thomas Kossman (4 April 2011).[10]
[7]Exhibit 1 pages 3-6.
[8]Exhibit A pages 55-61.
[9]Exhibit A pages 51-54.
[10]Exhibit 1, at Plaintiff’s Court Book page 62-70.
17 Mr Battlay conducted an impairment assessment of the lumbar spine. He found that she had suffered a work-related back injury. Although he described it as “a resolved lumbar soft tissue strain”, he noted that due to her work-related back injury she had a “stabilised permanent impairment”. He found a DRE Category One lumbosacral impairment “as there are symptoms but no spasms or dysmetria and only equivocal findings on the CT scan series. There is no radiculopathy and no loss of motion segment integrity”. He therefore assessed a Combined Whole Person Impairment of 0%.
18 Mr Brearley provided two reports to the plaintiff’s solicitors. The defendants relied on the second of his reports in which he modified his earlier opinion concerning a complete absence of work capacity flowing from the back injury and opined that, while she was permanently incapacitated from returning to her pre-injury duties, she could undertake some types of suitable employment. He felt there was “potential for this person’s condition to improve with some resultant increase in her capacity, both as regards home duties and in the area of employment”. He felt that further treatment would include simple pain relieving medication, but that further physical therapy treatment would not substantially improve her situation.
19 Mr Kossman provided a report to the plaintiff’s solicitors in which he opined that the plaintiff “had suffered a back injury and showed signs of facet joint arthropathy at her lumbar spine and had minimal disc protrusion at the L5/S1 level”. He also noted that in the latest MRI of 4 April 2011 “she did not have any pathological signs and she may have improved, even the (sic) claims about back pain. However I believe that she needs further treatment in from (sic) of physiotherapy, hydrotherapy and acupuncture for the next 8 weeks”. He noted that she was currently restricted in relation to her social, domestic and recreational activities. He noted:[11]
…She has difficulty with simple household activities like vacuum cleaning, hanging out clothes or cooking. She is not able to stand for a long period of time. Furthermore, she cannot sit for a long time and has to change positions consistently. She is also restricted in taking care of her little child of 2½ years and her husband has to bath and shower her little son. She is also not able to lift him up. She stated that her relationship with her husband is strained and she and her husband are concerned about her future wellbeing.
[11]Exhibit 1, at Plaintiff’s Court Book page 66.
20 He felt that once she had completed this course she should be able to return to her pre-injury duties as well as to her social, domestic and recreational activities. If this did not occur, he felt she should be referred for psychological evaluation “to determine if her pain symptoms could be caused by another reason”.
21 The defendants submitted that the plaintiff was currently able to walk and sit for longer than she stated to Mr Roger Westh whom she saw for medico-legal purposes in July 2010. Mr Westh reported a complaint of pain on walking for more than six minutes.
22 The defendants submitted that Mr Brearley, Mr Klug and Mr Kossman indicated that improvement was possible or likely after further treatment and therefore that the plaintiff has not established the permanence of any lumbar spine impairment.
23 I consider that the weight of the evidence supports the conclusion that the plaintiff’s work-related back symptoms and restrictions are likely to endure for the foreseeable future.
24 I note that the treating neurosurgeon, Mr Drnda, saw the plaintiff in August 2007 and felt then that she had “muscular pain” which required exercise and avoidance of bending and heavy lifting and modification of household activities but felt that with exercise she would improve.
25 However, I note that of the all recent treating and examining doctors, only Mr Kossman expressed great optimism about the future after an intensive 8 week course of therapy. I note that the plaintiff has already had considerable physiotherapy and hydrotherapy without success, and that Mr Klug was emphatic that no such further therapy was warranted. Even Mr Kossman accepted the ongoing restrictions being suffered by the plaintiff.
26 All the other treating and examining doctors appear to accept that her lumbar symptoms and the consequential restrictions are likely to endure for the foreseeable future. Dr Ayala was emphatic in her report dated 8 June 2011 that the plaintiff’s symptoms are likely to persist in the future, with periods of exacerbation depending on her activities and lifestyle. She stated that there would be a permanent impact on the plaintiff’s social, domestic and recreational activities, and a permanent incapacity for her pre-injury employment duties. Dr Mirranay similarly reported in August 2011 that her ongoing chronic back pain would remain an “ongoing issue”.
27 Mr Westh reported on 16 July 2010 a diagnosis of a low back strain injury leading to a chronic left sided low back pain and restricted spinal mobility.[12] He felt that she was permanently incapacitated for any work involving heavy and repetitive lifting, and would permanently have restrictions in relation to social, recreational and domestic activities. After seeing the MRI dated 4 April 2011 which was reported as normal, Mr Westh reaffirmed his opinion that she suffered a low back strain injury resulting in “chronic mechanical low back pain and there is a significant accompanying psychological stress reaction”.[13] He again stated that the restrictions flowing from this condition would be permanent.
[12]Exhibit A pages 39-41.
[13]Exhibit A page 43.
28 In his first report, Mr Brearley noted the CT scan finding of 17 July 2007 as showing a minimal disc protrusion at L5/S1. He diagnosed an injury to the lumbosacral disc and noted her symptoms of nerve root irritation with occasional left leg pain and numbness and tingling in the left foot. He found no clinical evidence of radiculopathy. He felt that she was permanently incapacitated for her pre-injury duties due to her physical injury and had no work capacity because of her poor English and lack of administrative work skills. He noted that the restrictions she reported due to back pain and stiffness were likely to be permanent. These included problems washing herself and difficulties vacuuming, cleaning floors and bathrooms and lifting her son. Social outings would be limited by her inability to stand or sit for more than 30 minutes or so. He noted that she would continue to need medication and, where necessary, chiropractic treatment.
29 In his second report, Mr Brearley stated that the plaintiff was still unable to sit or stand for long periods but might be able to do suitable light duties part time. He confirmed that her physical restrictions, such as heavy housework, would continue indefinitely. He concluded that her prognosis remained “poor. It is likely that she will continue to have back pain and accompanying disability in the long-term”.
30 Mr Klug in his report dated 17 March 2011 noted a 50% reduction on the range of movement in the lumbar spine on examination but no clear evidence of impaired neurologic function. He felt that the imaging studies (MRI of October 2009[14] and the CT scan of July 2007) showed some minor changes but no “significant abnormality in the lumbar spine”. However he felt it was “most probable that she did sustain a soft tissue injury to the lumbar region of her spine” in the described incident. He felt that given her small build she was permanently incapacitated from her pre-injury duties but felt that she was physically able to do some alternative work if retrained. He “did not detect any signs to suggest that functional factors were contributing substantially to her condition”. He felt that there was potential for improvement with “some resultant increase in her capacity, both as regards home duties and in the area of employment”, but acknowledged that “the ongoing pain is responsible for some limitation of her domestic and social activities. I would see no reason to doubt that her continual symptoms are a cause of frustration and disappointment to her”. He felt that she should not do heavy lifting, but should take analgesics and undertake a home-based exercise program. He felt there was potential for her condition to improve and did not feel that “the injury in its own right should be responsible for a permanent impairment of function”.
[14]MRI undertaken on 23 October 2009 was not tendered.
31 Dr Robyn Horsley, occupational physician, reported on 27 April 2011 that the plaintiff’s clinical presentation was consistent with the events described and that she has developed work-related “mechanical back pain”.[15] She felt that a multi disciplinary pain management program was warranted to help with functional tolerances, her quality of life and her vocational options. She noted work restrictions including avoidance of repetitive actions such as overreaching, pushing, pulling, bending, lifting and truncal rotation, and no repetitive lifting of items between 5 and 8kgs. She noted that she had limited functional tolerances (standing up to 15 minutes, walking up to 20 minutes, sitting up to 30 minutes, driving up to 40 minutes). Dr Horsley concluded that these restrictions applied to her work activities as well as her social, domestic and recreational activities and were likely to be permanent. She felt that the longer term prognosis for the back with a multi disciplinary pain management program was “moderately good”.
[15]Exhibit A page 74.
32 Leaving aside the opinion of Mr Kossman, I consider that the weight of the medical evidence is to the effect that, as a result of the work-related injury, the plaintiff suffers chronic mechanical back pain of an organic nature with some other symptoms but no radiculopathy. I am also satisfied that for the foreseeable future she will suffer pain and restrictions in movement of the lumbar spine and restrictions in standing, sitting, walking, bending, lifting, driving and in the performance of personal, domestic, recreational and occupational activities.
Pain and suffering
Evidence and submissions
33 The defendants submitted that on the evidence the plaintiff has not played sport in Australia since 2003. She has been able to travel to Iran in 2009. She never worked before coming to Australia and did home duties there. Since leaving her employment with the defendants she has had two children and does home duties. She has not tried to return to work. As to her evidence concerning the restrictions on her recreational activities, the defendants relied on surveillance material recorded on 4 and 7 October 2011. The latter segment showed the plaintiff enjoying a six hour picnic by the sea without, the defendants said, “any evidence of restriction or discomfort”, and also showed her bending to adjust her trouser leg with a greater range of movement than that she showed to doctors. The defendants submitted that it was understandable that a husband working part time would assist his wife at home.
34 I have already summarised the medical evidence concerning the plaintiff’s restrictions. I turn to the evidence of the plaintiff and her husband.
35 In her affidavits, the plaintiff stated that she has lower back pain every day, which fluctuates in intensity and which sometimes includes left leg pain. The back and leg pain is brought on or exacerbated by sitting, standing or walking for too long. She has trouble sleeping and wakes two or three times a night to relieve the pressure on her back. She was unable to bathe her first baby and had trouble carrying him, and is currently experiencing the same difficulties with her second child who was born in November 2011. Her husband does most of the housework including vacuuming, mopping, washing and cooking. She is only able to prepare instant meals taking a few minutes. She is unable to work in the garden. Her physical relationship with her husband has become painful due to her back pain. She misses going to work, as this allowed her to contribute to their mortgage payments, and to socialise with the wider community. She is helped at home by her husband and her mother. They also help with shopping. Sometimes she does things and suffers the consequences later, such as in 2011 when she went for an hour long walk to the park with her husband and son and found she suffered an exacerbation of back pain and the onset of leg pain. She is now taking Brufen for her back pain.
36 At the hearing, the plaintiff said that after arriving in Australia and before commencing work with the employer she studied English full time. She had been prescribed Tramal and Endep, at one point in 2009 or 2010 by another doctor in Dandenong (whom she could not name), but said that she was unable to take strong painkillers while breastfeeding each of her two sons, which she did for 18 months each time. She said that her husband approved of her working but would not let her work once she developed her back pain. She said that while she was breastfeeding her husband would bring the baby to her at night, and he would change the baby and dress him when she was in pain. Either he or her mother helps her to bathe the baby. She could help dress her son but had pain while doing it. Her husband gets up at night to take their son to the toilet. She said that on the way to Iran she had to walk around the plane because she was in pain.
37 She is able to secure the baby in his car seat but said the three year old generally gets in his seat and gets the belt on; she just asks him if it is done properly. She can push a pram slowly. She does not go to the park alone with the children. She can make lunch for her children but her father in-law who lives with them does his own lunch. She can cook meat which has been cut up by her husband. She can drive and walk up to 25 minutes. She says that she cannot sit for long periods. When asked how she managed to sit in court without standing, she said she had pain, but was shy in court. She said that she can bend, but it causes her pain, and she tries to avoid squatting.
38 She agreed that on the surveillance footage on 4 October 2011 she leaned into the car to check her son’s seatbelt. She was eight months pregnant at the time. She said that sometimes her son demanded that she, rather than anyone else, secure his seatbelt. As to the footage taken on 7 October 2011, she agreed that it showed her on the beach with her family. She agreed that she helped put her son’s shoes on, and said that he was crying. She agreed that she put plates on the table and set out napkins. She agreed that the footage showed the family out until 9 pm or so. She said that she goes on such outings to please her family, usually on Sunday if the weather is nice, but that after such outings she has a lot of back pain. She said that she had planned to return to work after the children start school. She also would have loved to have more children, but said that she did not think she could because of her back problem.
39 The plaintiff’s husband, Mr Mohammed Nazari, swore an affidavit on 18 May 2011 in which he stated that prior to her injury the plaintiff loved her work, was very active and was a happy, vibrant person. Since her injury, she spends most of her time at home and struggles to walk, sit or drive for long. She often tells him she is in pain and she often wakes him at night when she is in pain and asks him to rub her back. He does most of the household duties, including cooking, cleaning, vacuuming, washing and shopping, and when he is at work the plaintiff’s mother and sister help her look after their son and with shopping. Although he would like to work full time to ease the financial pressures on the family, he works part time because the plaintiff relies on him for so much help at home and with the children.
40 At the hearing, Mr Nazari said that he has told his employer that his wife is sick and he leaves work when he can to help her at home. He said that he looks after the children a lot in the evenings, and that the plaintiff’s mother comes over to help with them when he is at work. He said that it was their intention that both of them would work, even after they had children.
Legal principles
41 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function, and that the consequences to her in terms of pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable.[16] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[17]
[16]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[17]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42] (Ashley J).
42 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[18] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[19] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and, finally, determining whether those consequences meet the very considerable level in terms of pain and suffering.[20]
[18]Fleming v Hutchinson (1991) 66 ALJR 211.
[19]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
[20]Ibid [80].
43 The ‘pain and suffering consequence’ of an injury encompasses the plaintiff’s experience of pain and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. The intensity and frequency of the pain must be assessed in the light of the plaintiff’s evidence (which may be affected by the Court’s assessment of the plaintiff’s credibility), the treatment received, the medical evidence, and the objective evidence about the disabling effect of pain.[21]
[21]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[12]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [45]-[47] (Tate JA).
44 Generally, the endurance of permanent daily pain requiring frequent medication “must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”.[22]
[22]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, [199] (Dodds-Streeton JA).
45 Apart from the capacity for work, assessing the extent to which pain interferes with the ordinary activities of life will generally involve consideration of its effect on the plaintiff's sleep, mobility, capacity for self-care, performance of household and family duties, recreational activities, social activities, sexual activities and enjoyment of life.[23]
[23]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, [16]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52.
46 Some weight must be given, in considering that the pain and suffering consequences of the plaintiff's impairment are at least very considerable, to the adverb “very”.[24] Each case has to be determined in the light of its own facts.[25]
[24]TAC v Dennis [1998] 1 VR 702, 703 (Callinan J).
[25]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181.
47 Overall the court must consider what the plaintiff has lost by virtue of the injury and what has been retained. The significance of what she has lost, which bears upon the seriousness of consequences, may be informed to an extent by what is retained.[26]
[26]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52, [95].
48 I am entitled to take into account that the plaintiff is 30 years old and that, compared with other persons with impairments of the lumbar spine, she will experience these pain and suffering consequences for a significantly longer period of time.[27]
[27]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [44] (Ashley JA).
Findings and reasons
49 I found the plaintiff and her husband to be impressive witnesses. The plaintiff was cross-examined at considerable length through an interpreter. She gave considered answers to all the questions put to her and conceded when her memory could not assist her (for example, as to when precisely she verbally reported the injury to her supervisor and to the business owner). She conceded that she sometimes does things which she needs to do, such as tending to her crying son, even if it causes her pain. There was no medical challenge to the relationship between her injury and her ongoing organic mechanical back pain. There was no medical evidence to support the defendants’ assertion that the range of activity and lumbar spine movement shown in the surveillance material was inconsistent with the plaintiff’s presentation at medical examinations. I reject that assertion. I note that the plaintiff was heavily pregnant at the time of the surveillance, but that, in any event, the range of activities she undertook during that surveillance (including walking, sitting, standing, putting out plates, bending to assist her young son) was completely consistent with the functional limitations she reported in her evidence and to the various treating and medico-legal doctors who examined her.
50 I accept the plaintiff’s evidence as to the pain and suffering consequences of her lumbar spine injury. I consider that they are very significant. She has daily pain requiring medication. The pain interrupts her sleep and affects her marital relationship with her husband. The pain and restrictions prevent her from returning to a job which she liked. She cannot walk, sit or stand for long. Although she is at home with her young children, she cannot run the household. Her husband only works part time because he does the cooking, cleaning and most of the physical work looking after the children at home. She feels that having any more children may be out of the question because of her lumbar spine condition. She is only 30 years old and will face the pain and restrictions for the rest of her life.
51 In all the circumstances, I consider that the pain and suffering consequences of the plaintiff’s lumbar spine impairment are more than considerable when compared with other cases in the range of impairments of the function of the lumbar spine.
Conclusion
52 Leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect to the injury to the lumbar spine sustained in 2006 and 2007 during the course of her employment. I will hear the parties on the question of costs.
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