Richardson v Portland Aluminium
[2017] VCC 1872
•14 December 2017
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-02229
| KRISTEN LOUISE RICHARDSON | Plaintiff |
| v | |
| PORTLAND ALUMINIUM | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 6 December 2017 | |
DATE OF JUDGMENT: | 14 December 2017 | |
CASE MAY BE CITED AS: | Richardson v Portland Aluminium | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1872 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the cervical spine – pain and suffering – pre-existing lumbar condition – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
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 I Fehring with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr C Blanden QC with Ms G Moloney | Hunt and Hunt |
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 on 1 October 2012 (“the said date”).
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 brings 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 The body function relied upon in this application is the spine.
5 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.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 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.
8 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, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
9 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.
10 In this application 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.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
15 The question of economic loss was the main point relied on.[3] It was submitted, other than employment, no other consequences were serious.[4]
[3]T84
[4]T61
16 It was submitted, the point was when you looked at all the objective evidence, there was nothing objective that sustained the suggestion that the injury to the plaintiff’s neck had given rise to serious consequences.[5]
[5]T65
17 The plaintiff relied upon two affidavits and was cross-examined. In addition, she relied on an affidavit sworn by her mother, Sonia Brown, on 6 November 2017 and an affidavit sworn by her father-in-law, Gary Richardson, on 1 November 2017. Both parties also relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
18 The plaintiff is presently aged forty-three, having been born in April 1974.
19 After finishing Year 12, the plaintiff started a university nursing degree, but only studied for about a year and a half, and then travelled.
20 In about September 1996, the plaintiff commenced work with the defendant as an operator at the Portland smelter, working in a number of areas over the following years.
21 In 2005, the plaintiff had troubles with her back and had treatment from Dr Fox in Heywood, Dr Tarek, and Dr Stephanson at Seaport.
22 The plaintiff was still having treatment for her back on the said date. She also had asthma in 2007. She was off work for about six months in 2011 with depression, and had treatment over that period. She also had pre‑natal depression in about 2006.
23 The plaintiff agreed that her depression started in about 2003 as post-natal Depression. It waxed and waned, but was significant enough to cause her to take a lengthy period off work.[6] She deposed to her pre-incident Depression because “that’s the facts”.[7]
[6]Transcript (“T”) 10
[7]T26
24 In cross-examination, the plaintiff described her back problems in 2005. She usually had treatment in relation thereto from Dr Fox, and then Dr Tarek. She agreed she had significant problems with her back and she had a range of treatment, including physiotherapy, which did not help, and then in the late 2000s, she was put on OxyContin.[8]
[8]T9
25 The plaintiff confirmed she regularly attended her general practitioners for prescriptions of OxyContin, which she took twice a day, and for which she needed a special permit. She agreed there were concerns as to whether she was addicted to that medication.[9] When she saw her doctor, she would tell him what hurt and where.[10]
[9]T9
[10]T13
26 Dr Tarek organised a CT scan of the plaintiff’s neck in 2011 because he was a very thorough doctor. She was seeing him for her lower back complaints and he decided to do a full scan.[11]
[11]T15-16
27 The plaintiff could not recall an attendance with Dr Chowdhury at Tristar Clinic on 10 February 2012, when he noted she complained of neck and back pain and told him she was on OxyContin. Dr Tarek might have said something to him.[12]
[12]T21
28 In re-examination, the plaintiff confirmed she had had no treatment before the said date for any neck problem.[13]
[13]T45
29 There were also other issues with the plaintiff’s health that had led to lengthy periods away from work. She had been suffering Depression, which caused her to take time off. She supplied medical certificates, although that was an issue she had with her employer. She was not sure one of the defendant’s complaints about her was that she did not return phone calls. She was given written warnings for having too many sick days, not for being uncontactable by phone.[14]
[14]T10
30 The plaintiff agreed she received three warnings and, thereafter, was placed on a special contract setting out instructions she had to follow.[15] She thought that letter provided that too many sick days would lead to termination. She agreed with the contents of that letter, which set out the three instances where she could be sacked without further warning. She knew within herself it was absenteeism which was the main issue. She was the safety representative and was very good with safety, and did her job very well.[16]
[15]Letter from defendant to plaintiff dated 26 September 2011
[16]T12
31 On the said date, the plaintiff was working on the launder with an air chisel and small crowbar for about 20 minutes when she noticed stiffness and pain in her back (“the incident”). At the time of the incident, the plaintiff was being observed by the work physiotherapist, Lesley Walker.
32 The incident report in relation to the occurrence on 2 October 2012 contained the following:
“Kirsten was chipping the cast off the launder the jackhammer became jammed between the cast and the launder stand so a crowbar was used to level the jackhammer out, this action was attempted twice with the same result. Kirsten was drained after this activity.”
33 It was noted this incident was reported on 3 October at 2.50pm.
34 The plaintiff provided the defendant with a handwritten account dated 3 October 2012 of what happened in the incident as follows:
“On Tuesday 2 October 2012 I was chipping the cast off the launder. The jackhammer became wedged between launder and cast. I used the supplied crowbar to lever the cast to free the jackhammer. I repeated this twice and with no success. I left the area and asked my co-worker Rod Smith to complete the task while I cooled down outside. Once I had cooled I noticed my neck felt strained but thought the pain would subside. The next shift I came to work my neck became progressively worse, so I sought ice treatment.”
35 This document seems to have been received by the defendant on 23 October 2012.
36 The plaintiff completed a Claim for Compensation in relation to the incident on 23 October 2012. In that form, she described the incident on 2 October 2012 which was witnessed by Rod Smith and Lesley Walker.
37 Following the incident, the plaintiff’s pain increased during the day. She finished her shift and went home. Her pain was constant that night, and she reported her injury when she returned to work next morning.
38 Dr Fisher, the work doctor, put the plaintiff on restricted work for about a week. Instead of wearing a helmet, she was to wear a face mask.[17] The medical restriction for the period 4 to 9 October 2012 was as follows:
“Restricted duties notification (work aggravation)
As a precaution, Kirsten shouldn’t perform manual work until review but could work in a sedentary role and drive a forklift for short periods, collecting and delivering butts. Nor should she use an RACAL helmet, but to use other respiratory protection and hard hat.”
[17]T16
39 The plaintiff thought her neck injury would settle down, but it did not. She went to see her general practitioner, Dr Stephanson, soon afterwards, and he arranged a cervical CT scan. She knew she saw that doctor a couple of days after the incident, but could not remember when, but agreed it was 9 October 2012.
40 The plaintiff denied she made worse neck pain that was already there and could not explain Dr Stephason’s the entry that she “aggravated” her neck pain in one incident.[18]
[18]T14
41 The plaintiff also saw Dr Bones at the Smelter on 9 October 2012, the same day she was seen by Dr Stephanson, who had then put her off work.
42 Before 9 October 2012, the plaintiff had seen the physiotherapist at work. She agreed she then reported she had hurt predominantly her neck and shoulder.[19] She denied, however, as the physiotherapist recorded, that she told her that she had a history of neck and headache problems. She did not have this history.[20]
[19]T13
[20]T14
43 The plaintiff could not recall an attendance with Dr Stephanson on 26 October 2012, when it was noted the plaintiff thought there had been some improvement in her neck pain. There had been no improvement with her, but she agreed with the doctor if that is what he recorded.[21]
[21]T24
44 As time went on, the plaintiff continued to have difficulties and was referred to Dr Murray Grave and Dr Vagg. She saw Dr Grave once in May 2014 and Dr Vagg once in September that year.[22]
[22]T22
45 The plaintiff had a small amount of physiotherapy at the beginning, but could not afford to keep paying for it.[23] Her difficulties never settled down, and on occasion, the pain was severe, and the use of her arms was affected. The plaintiff never resumed normal duties after the injury.
[23]T23
46 The plaintiff returned to work on light duties after the incident for a very short time, and found it very hard. The pain was too much for her to continue working.[24]
[24]T18
47 Records provided by the defendant after the hearing indicated the plaintiff worked three twelve-hour shifts on 3, 5 and 6 October 2012.
48 In November 2012, the plaintiff was offered the option of resigning and receiving approximately five weeks’ pay in lieu of notice, or being sacked. She took the option to resign.
49 The plaintiff continued to see her general practitioner with the same frequency after the incident as she did before.[25]
[25]T19
50 The plaintiff agreed that from 26 October 2012, there were only two further complaints of neck pain recorded by Dr Stephanson – 28 December 2012 and 23 September 2013 – when she was seeing him almost every fortnight.[26]
[26]T42
51 When it was suggested to the plaintiff there were notes of back complaint many more times, she agreed she had complained to Dr Stephanson about her back since the incident.[27] However, she denied that she had complained to him on many, many more occasions about her back than her neck.[28]
[27]T43
[28]T44
52 The plaintiff agreed that Dr Stephanson’s notes seemed to indicate that he was concerned about some problems with her husband’s narcotic abuse and not having medication in the household for that reason.[29]
[29]T45
53 The plaintiff’s medication changed after the incident. She is no longer on OxyContin and takes Celebrex and Jurnista. This change was her doctor’s choice and the plaintiff did what her doctor wanted her to do.[30]
[30]T23
54 The plaintiff believed the change of medication does have a lot to do with her neck pain. Her doctor told her that. It was a different pain to the lower back, it was pain in her neck. She just took the medication that they discussed and he decided to put her on.
55 The first type different medication Dr Stephanson tried did not agree with the plaintiff’s “body”. The next medication prescribed is what she currently takes.[31]
[31]T24
56 As of January 2017 when she swore her first affidavit, the plaintiff’s neck was stiff and painful all the time, and the pain spread into her left shoulder and arm. She woke a lot at night because of her neck pain, and then could not get back to sleep.
57 The plaintiff did not believe she could lift more than 3 to 4 kilograms with her left arm, and even driving a car was restricted. She could drive for 20 to 30 minutes, and then pain in her neck and left shoulder would commence. Consequently, even a drive to Warrnambool of about 100 kilometres required a stop along the way. For longer distances, stops were more frequent, and she often arranged for her husband or mother to drive.
58 Gardening was restricted, and the plaintiff could only do lighter activities. She really enjoyed gardening, but her garden was now quite overgrown because she could not maintain it as she would like. She could not gather up wood and carry it in to the heater, as she was able to do before the incident.
59 All activities around the house such as cleaning, cooking and washing were now restricted, and the plaintiff had to break up those tasks. She could not do them as quickly or as easily as she did before the incident.
60 The plaintiff also suffered headaches most days, especially during the night. She spent a fair bit of time just resting and lying on the couch because of neck pain, particularly if she had a bad day.
61 The plaintiff had not been able to resume work since she resigned from the defendant. She had undertaken retraining in aged care; however, she could not finish the course, as she was unable to complete the placement component due to neck pain. She did not think she could actually work in that area, because there was too much lifting and carrying involved, looking after elderly people. She also found her neck pain increased while doing her course work on the computer.
62 The plaintiff could not work as a nurse or a nurse’s aide for the same sort of reasons. She did not believe the back problems which she had had for many years would prevent her from working, as she had worked with the defendant with this problem.
63 The plaintiff now could not work at the smelter because of her neck difficulties, which also affected her left arm. This was the reason she could not work in any job which required lifting or strength in the left arm. She is right-hand dominant, but most jobs do require both hands and arms, and that is the major reason she was not able to work.
64 The plaintiff swore a further affidavit on 30 October 2017.
65 The plaintiff continues to see Dr Stephanson monthly. She takes Celebrex, Valium, Jurnista and Endep daily, and uses Panadol three or four times a week as well as heat packs. Her husband massages her neck regularly to try to relieve the stiffness and pain in her neck and shoulders.
66 The plaintiff thinks she is slowly getting worse, and certainly the stiffness is more pronounced than it was a year ago, and the pain never lets up. If she does something extra, then she pays the price with increased pain.
67 The plaintiff’s neck has less movement and more pain. She has not been referred for any further treatment or given different medication.[32]
[32]T38
68 The plaintiff does not think she could now lift more than 2 or 3 kilograms, and certainly not regularly, without getting increased pain in her neck which spreads into her shoulders.
69 Driving is restricted to local areas, and the plaintiff cannot drive for more than 30 to 40 minutes without having neck problems.
70 The plaintiff’s physical activities continue to be restricted. She can only do very light gardening, but no digging or heavier activities. She cannot stack, cut or carry firewood. Domestic cleaning, like the shower and vacuuming, are now almost impossible, and certainly if she cleaned the house at one time, she would be in a lot of pain. As it is, she often has to rest in the afternoons because she gets tired. Resting helps relieve the pain.
71 The plaintiff is lucky to get five or six hours’ sleep a night. She wakes because of neck and shoulder pain, and then cannot get back to sleep.
72 Using her arms, certainly away from her body or above shoulder height, causes the plaintiff a lot of pain, and she avoids these activities. Even repetitive use of her arms causes pain. Accordingly, she has stopped doing the ironing.
73 The plaintiff did not finish the aged-care course because she could not do the hands-on care work. She now realises it was really beyond her from the beginning, but she would like to do something. However, she does not know what it is because of her limited skills and background. She has not had any other retraining and does not know what other work she could do.
74 The plaintiff has an eleven‑year-old son who plays basketball weekly, and she finds it difficult when she attends his games to sit and watch because of problems moving her neck and the hard seats. She is disappointed that she cannot be active or involved with her son and his sporting activities.
75 The plaintiff’s older son, who is seventeen, played his hundredth game with his local club this year. As a parent of one of the players, the plaintiff had to prepare the breakthrough banner, but she had to get another mother to help because it was too hard for her to do it. Even going to do the weekly shopping can cause a lot of problems, and the plaintiff gets help to do it, or she breaks it up, because she cannot push a trolley fully laden without getting increased neck pain.
76 Because of her pain and restrictions, the plaintiff hardly goes out. Social activities are quite restricted, because she does not want to be away from home and she has difficulty dealing with people because of her constant pain.
77 Since 2014, the plaintiff has been her husband’s carer because of his leg infection. He last worked before their children were born, before 2000. He was living off her while she was working at the smelter. Since he injured his foot, he has been on a Disability Support Pension. The plaintiff agreed her husband’s failure to work was one of the significant causes of her unhappiness with her domestic situation. There were a lot of contributing factors to her Clinical Depression.[33]
[33]T22
78 The plaintiff agreed her husband had been to court for illegal drug taking.[34]
[34]T25
The 2014 transport accident
79 The plaintiff agreed, if she had told Dr Siu that she had never had a car accident, it would not be true, as she had. She did not mention the 21 November 2014 accident in her affidavit because she did not think it was relevant.[35]
[35]T27
80 The plaintiff received a claim number, but did not go any further with any sort of claim in relation to this accident.[36]
[36]T28
81 Following that accident, the plaintiff attended Portland Hospital. She was there on two occasions on the accident date, initially in the morning at about 9.00am. She disagreed she then had told the hospital she had a past history of intravenous drug use. She was not Hepatitis C positive, as noted, but she did have anxiety. She could not remember what she then said to the nurse. She had some concerns around that time whether or not she was Hepatitis C positive, but she was not.[37]
[37]T29
82 The plaintiff would have told the Hospital that she had neck problems. She could not remember what she said as she was in shock. She then had concerns with staying in casualty, as she did not have a lot of confidence with the nurses there so she checked herself out.[38]
[38]T30
83 The plaintiff came back to the hospital about midday and stayed until dark. She was waiting to hear back from the doctor in Melbourne as to further treatment following x-rays that had been taken in the morning.[39]
[39]T31
84 The plaintiff denied telling the staff on this second visit that she was an intravenous drug user and Hepatitis C positive. On this occasion, there was a note of a neck injury two years ago. The plaintiff discharged herself again because she was very uncomfortable and wanted to go home.[40]
[40]T31
85 The plaintiff could remember, in the course of that second visit, asking to go outside and having a cigarette with her husband. When it was suggested to her that fifteen minutes later, on her return, the hospital notes indicated that she was feeling nauseated and she and her husband were both very drowsy and unable to keep their eyes open and maintain a conversation, the plaintiff explained she had just been in a big car accident and the medication they had given her was making her feel ill.[41]
[41]T30
86 The plaintiff agreed that not long after, she became agitated. She was worried about her son at home, and was sick of waiting.[42] They were holding her so long in casualty because they were waiting to hear from a specialist who had seen the x-rays after the accident.[43]
[42]T33
[43]T33
87 The plaintiff went to see Dr Stephanson a day or two after the accident. She had been on her way to see him when the accident happened. He told her to go back to the hospital, which she did. She then became aware she had fractured her back. She did not know why she did not mention this in her affidavit.[44] She did tell doctors about it. She told the last doctor she saw in Richmond.[45]
[44]T35
[45]T36; Mr Jones November 2017 examination; no report available - T40
88 The plaintiff agreed her treatment was unchanged after the car accident.[46]
[46]T37
Lay evidence
89 The plaintiff’s father-in‑law, Gary Richardson, swore an affidavit on 1 November 2017.
90 Mr Richardson has known the plaintiff for about twenty years and is aware she previously had a lower back problem and also hurt her neck working for the defendant.
91 Mr Richardson generally sees the plaintiff once or twice a week when she and her son visit. She has mentioned to him on many occasions that she suffers from neck pain. He thought there had been two or three times when she had called to say they would not be visiting because of her neck pain.
92 When the plaintiff visits, she tends to confine discussions to how the two grandsons are going; however, from time to time, she mentions her neck is playing up or sore.
93 The plaintiff’s mother, Sonia Brown, swore an affidavit on 6 November 2017.
94 Mrs Brown is aware the plaintiff injured her back working at Portland Aluminium and the plaintiff has told her she has back pain from time to time.
95 Mrs Brown has also been told about the incident. She has often witnessed the plaintiff having a lot of neck pain and headaches. When she has headaches, the plaintiff is not able to do anything and has to rest.
96 From time to time, Mrs Brown has had to look after the plaintiff’s children so she can rest. She has also had to pick the boys up from school when this occurs. The plaintiff struggles with housework and keeping the house tidy. She has told her that hanging out the washing and doing the vacuuming causes her the most difficulty.
97 The plaintiff does not come to see her as often as she used to and often calls to say she cannot make it due to neck pain and headaches.
98 They used to go fairly readily shopping in Warrnambool. She would also drive the plaintiff, as the plaintiff told her her neck pain increased driving long distances. They also used to travel to Adelaide to visit the plaintiff’s sister from time to time and, again, she would do the driving.
99 They do not go on shopping trips any more, as the plaintiff has advised it makes her too sore, and tiredness increases her neck pain. Likewise, they have not been to Adelaide together for about three years.
100 Family gatherings are now less frequent. Christmas is generally at her place, and while the plaintiff will attend and assist with some of the minor preparation, she generally has to go home fairly early due to increasing neck pain and tiredness.
Vocational evidence
101 Bill Radley, occupational physician and psychologist, interviewed the plaintiff on 19 July 2016 for the purposes of carrying out a vocational assessment.
102 Mr Radley noted that the psychological test results indicated the plaintiff to be a reserved and timid person who was reporting a moderate level of anxious mood and mild depressed mood, who was coping poorly with her chronic injury pain and related problems.
103 With her existing qualifications, skills, experience, injury and physical limitations, Mr Radley’s assessment was that the plaintiff has no current capacity to return to her pre-injury employment or to any similar employment. She has no capacity for work. She has no current work capacity to return to any type of alternative employment, but she does have some potential for occupational retraining.
104 Mr Radley thought the plaintiff may have some capacity for full-time or part-time employment in occupations such as welfare officer, tourist information centre officer, hotel/motel front office clerk or recreation officer in the future, but she would need, first, to complete an appropriate occupational retraining course.
105 Mr Radley considered the plaintiff may benefit from a referral to a multidisciplinary pain management program and a psychologist skilled in treatment of mood disorders, injury adjustment, pain management and vocational redirection. He thought she may also benefit from a referral to an occupational rehabilitation provider for appropriate job seeking/placement assistance.
106 Mr Radley provided wage information from the Australian Government Fairwork internet site for the suitable occupations he suggested.
107 The full-time minimum wage for a welfare worker was $840.70 gross per week (38-hour week, with an hourly minimum wage of $22.33 gross per hour).
108 The full-time minimum wage for a tourist information officer was $797.30 gross per week, with an hourly minimum wage of $20.98 gross.
109 For the role of hotel or motel receptionist, the full-time minimum wage was $742.00 gross per week, with an hourly minimum wage of $19.53.
110 The full-time minimum wage for a recreational officer was $848.70 per week, with an hourly minimum wage of $22.33.
The Plaintiff’s treaters
111 The plaintiff attending the defendant’s physiotherapist, Lesley Walker, on 3 October 2012 with complaint of pain on the left side at C2-3.
112 Ms Walker noted:
“Strain to (L) side of neck and accompanying headache WRnes undetermined at this time. However, past history of neck and headache problems. As a precaution, should not engage in any manual work for the remainder of the day. Has a capacity for office based duties. Recommendation would be for her to be released home so she can rest her neck by lying down. Appt made for review with Dr Fisher tomorrow morning at 9.45am.”
113 On 9 October 2012, Dr Bones, the smelter doctor, examined the plaintiff and reported:
“Kirsten came for a review of a recent neck strain (work relation). Her GP has recommended a precautionary CT scan and meantime has placed her off work, which in my opinion is a precautionary measure. Have not overridden the GP opinion in line with community expectations. I have suggested some massage and Kirsten will come back for review after she next sees her GP.”
114 In his report of 24 January 2014, two months or so after the incident, Dr Stephanson advised he had been the plaintiff’s medical practitioner since March 2012, largely taking over the management of her chronic lower back pain, for which she was requiring narcotic medication. He understood she had been using this medication for some years prior to consulting him.
115 In October 2012, the plaintiff presented to him with “new” onset cervical spine pain which occurred while using a crowbar at work.
116 In his clinical note of 9 October 2012, Dr Stephanson reported as follows:
“Feels has aggravated cervical spine while at work. Was using a crowbar at the time. Has been placed on restrictions by work doctor. Marked by lateral upper cervical pain with bilateral symptoms consistent with occipital neuralgia plain radiology and r-v. The actions were diagnostic imaging requested. X-ray was fine and a medical certificate was created.”
117 Dr Stephanson noted consequent radiological investigation results confirmed C5 vertebral body wedging (may have been injury related or congenital, cannot be certain), as well as C4-5 discopathy. He commented that it was again difficult to ascertain when the discopathy (injury to the disc) occurred, as there were not any baseline scans to compare to.
118 Dr Stephanson reported that since the incident, the plaintiff had complained of persistent cervical spine pain and occipitally located headaches consistent with probable occipital neuralgia (bilateral). He noted there was no previous history of such symptoms. The plaintiff was also impaired in a range of motion of cervical spine, both in flexion/ extension and rotation.
119 Several new medications had been added to aid in the control of the plaintiff’s new cervical symptoms, with minimal benefit to date. He now intended to refer her to a musculoskeletal physician for an opinion regarding further management. This was likely to involve a physical exercise and physical manipulation regime, possible cervical spine injections, with further additional medication.
120 Dr Stephanson believed the plaintiff’s cervical spine and headache symptoms should improve with time, as they were yet to employ all possible treatment options, and the pathology demonstrated on the radiological scans was not very severe; however, the full extent of the injury is not always demonstrable radiologically. For the current time though, until some improvement was hopefully achieved, he did not think the plaintiff had any capacity to perform any work.
121 Even with improvement in symptoms in the future, taking into consideration the plaintiff’s new cervical spine problems and longstanding past lower lumbar spine problems, he would advise against a return to manual labour and for the plaintiff to be retrained to allow her to partake in non-labouring occupations.
122 Dr Stephanson reported again in February 2016.
123 Since he earlier reported, the plaintiff continued to experience daily symptoms of cervical spine pain, often with muscle spasm and tightness and associated occipital headaches.
124 Appropriate referrals to various allied health and specialists had been made to aid in the plaintiff’s treatment. Specifically, she consulted with musculoskeletal physician, Murray Grave, in Warrnambool, which Dr Stephanson believed was funded by her past employer. She had also seen Dr Vagg of Pain Matrix in Geelong, who advised that ongoing opioid analgesia was necessary for her ongoing pain management.
125 Dr Stephanson noted the plaintiff had thus remained on high dose daily opioid analgesia. In addition, she remained on anti-inflammatory medications and occasional muscle relaxants to manage the associated cervical spine spasm.
126 Appropriate allied health referral had also been made to the local physiotherapist under Medicare.
127 Sadly, Dr Stephanson could not state that there had been any meaningful improvement in the plaintiff’s symptoms over the last twelve to twenty-four months. He noted “of course”, further treatment is, theoretically, available, but most are not accessible through the public health system, and given the plaintiff’s financial situation, they have not been pursued. Such treatments involve referral to a formal pain management clinic for outpatient and/or inpatient treatment, as well as more intensive physical therapy.
128 In the absence of any new treatment, Dr Stephanson believed the plaintiff’s condition would continue to run a chronic course.
Investigations
129 Dr Stephanson organised an x-ray of the plaintiff’s cervical spine on 11 October 2012.
130 It was reported there was loss of the normal lordosis, with narrowing of the C5‑6 disc. There was no subluxation. There was minor marginal lipping. There was no evidence of canal or foraminal stenosis, apart from small impressions on the C5-6 foramina.
131 There was a cervical spine CT scan organised by Dr Stephanson on 26 October 2012.
132 It was reported there was right C5-C6 neural exit foraminal narrowing and no significant central canal stenosis.
Medico-legal evidence
133 The plaintiff was first seen by orthopaedic surgeon, Mr Thomas Kossmann, in September 2016.
134 On examination, the plaintiff complained of pain in the cervical spine which radiated into her left arm. She also had headaches. She had difficulty sleeping and woke due to pain in the cervical spine.
135 The plaintiff told Mr Kossmann she had had pain in her lumbar spine for several years and underwent x-ray. She was treated with painkillers.
136 No investigations were available on that examination.
137 Mr Kossmann then diagnosed pain in the cervical spine on the basis of a small broad-based posterior disc bulge at C4-5, causing minor central canal narrowing without significant stenosis and narrowing of the right C5-6 neural exit foramen and pain and movement restriction of both shoulder joints.
138 Mr Kossmann noted the plaintiff injured her neck on the said date while using a chisel to chisel off cast iron pieces from a superstructure.
139 At that stage, Mr Kossmann thought the prognosis was guarded, noting the plaintiff continued to suffer from pain in her cervical spine and pain and movement restriction in both shoulder joints. He thought further conservative treatment was appropriate.
140 Mr Kossmann then thought the plaintiff had no capacity to perform suitable employment. He did not think she would be a suitable candidate for retraining and therefore regarded her as 100 per cent incapacitated. He noted that she had been out of the workforce at that stage for four years, and the prospect of her returning to any employment was slim to non existent. He thought it possible she may never be able to return to any work in her lifetime.
141 Mr Kossmann re-examined the plaintiff in September 2017.
142 Mr Kossmann noted Mr Radley’s vocational assessment of 22 August 2016.
143 On examination, the plaintiff had similar complaints to the previous year.
144 In terms of past history, Mr Kossmann reported the plaintiff told him she had pain in the cervical lumbar spine for years and was referred by Dr Tarek for a CT scan on 22 November 2011. He noted the radiologist described significant C5-6 degenerative changes in the cervical spine, and he thought that the plaintiff had suffered a previous disc trauma. Furthermore, he described minor central bulges at L5-S1. Mr Kossmann noted the plaintiff told him she was treated with painkillers.
145 Mr Kossmann was provided with the defendant’s medico-legal reports, a current report from the plaintiff’s treater and the reports from Dr Vagg and Dr Grave.
146 On this occasion, in addition to pain and restriction of movement to both shoulders, Mr Kossmann diagnosed cervical spondylosis in the form of uncovertebral spondylosis, more prominently on the left side, effacing the anterior aspect of the thecal sac, with mild flattening of the anterior aspect of the cord at C4-5, partial fusion at the posterior aspect of the intervertebral disc at C5-6, with effacement of the anterior aspect of the thecal sac and mildly flattening the anterior aspect of the cord, and mild degenerative C6-7 disc effacing the anterior aspect of the thecal sac, but not indenting the anterior aspect of the cord.
147 Mr Kossmann confirmed his earlier prognosis and views as to future treatment.
148 Mr Kossmann thought the plaintiff had no capacity to return to her pre-injury employment or to perform light modified duties.
149 However, Mr Kossmann agreed with Mr Radley that the plaintiff may have some potential for occupational retraining, and she may work in the suggested roles as long as she does not have to engage in working with her upper extremities permanently, work above shoulder or head height, or lift items weighing more than 2 to 5 kilograms.
150 Mr Kossmann believed the inclusion of modern IT technology may enable the plaintiff to return to some kind of employment. He recommended a return to work program, working two to three hours for two to three weeks, and then slowly increasing her working time. Time would tell if she was able to continue to work.
151 Mr Kossmann provided a supplementary report correcting an error regarding the plaintiff’s past history. He noted she underwent the cervical spine CT scan in November 2011 for the sake of completeness. She instructed him that at that point in time, she had no pain in her neck. That alteration in no way changed his opinion expressed in his earlier reports.
The Defendant’s medical evidence
The transport accident
152 On her TAC Claim Form dated 4 December 2014, the plaintiff described a previous injury or condition was neck pain.
153 By letter dated 4 December 2014, the plaintiff’s claim was accepted in relation to a transport accident on 21 November 2014. The grand total of all payments for doctors was $185.00, and ambulance, $1,645.00.
154 On 21 November 2014, Dr Stephanson noted the plaintiff was –
“… just involved in a high speed car accident. The car was in cruise control and veered off the road slammed into an embankment on opposite side of the road. Was seen at Casualty, discharged self. Had blood tests, but no scans. Did not allow doctor to examine her. Strongly advised to go back, agrees to do so. Calls to casualty to advise them.”
155 Dr Stephanson noted, on 24 November 2014:
“Represents again, having discharged self for a second time from hospital. Call to Casualty and spoke to a doctor who confirms that they were in the process of getting specialist opinion re fracture, when patient discharged self. Patient states she was uncomfortable and wanted to go home to care for children. Despite this, now state took a lot more medication for pain that was authorised.”
156 On 4 December 2014, Dr Stephanson noted:
“Now looking to go back to Alfred for assessment of spinal injury has a TAC claim pending.”
157 There were the notes about two attendances at Portland Hospital Casualty, following which the plaintiff discharged herself.
158 The Hospital records indicate the plaintiff attended on 21 November 2014. She was driving at 100 kilometres per hour when they moved on gravel and hit a wall, and the car spun 360 degrees. She felt sharp pain in her back and right arm, no head strike or loss of consciousness, past history of neck injury at work, Depression, and medication was noted as Jurnista, Valium, Mirtazapine and Celebrex.
159 At 1:38pm on the accident date, it was noted the plaintiff presented after the accident. She had presented earlier, but left against medical advice. She had her husband in the passenger seat. She got out of the car on her own. There was a past history of neck injury at work.
160 Dr Stephanson wrote to the Hospital on 24 November 2014, noting the patient had discharged herself twice against medical advice. He had seen a CT scan which confirmed a T6 acute crush fracture. He noted the plaintiff had no neurological deficits, but he felt it to be appropriate that a specialist opinion was sought confirming the appropriate management of the fracture, which he understood the Hospital was in the process of doing when the plaintiff discharged herself for the second time. Dr Stephanson advised, over the weekend, the plaintiff had taken much higher than advised opioid analgesic, stating she was in great pain from her fracture.
Investigations at the Hospital
161 Following an x‑ray of the cervical spine on the accident date, it was reported there was degenerative change noted at C4‑5 and C5‑6 levels, but no evidence of bone injury. In the thoracic spine there was equivocal vertebral compression at T5.
162 A CT scan of the chest following intravenous contrast showed a slight wedge compression of the vertebral body at T6 consistent with an acute injury.
163 Following a CT scan of the cervical spine, it was reported there was bilateral C5‑6 foraminal narrowing, no evidence of cervical spine fracture, and minor central canal stenosis at C4‑5 and C5‑6.
164 There was an x‑ray of the thoracic spine on 25 November 2014. The stable appearance of the T6 compression was noted. There was no posterior vertebral margin involvement, and no additional focal lesion.
The Plaintiff’s pre-incident medical history
165 On 22 November 2011, Dr Tarek at Tristar noted under the heading “actions” - diagnostic imaging requested, being a CT scan of the lumbosacral spine and cervical spine. There was no reference in that note to any neck complaints or the reason for that investigation.
166 Following the CT scan of the cervical spine organised on 22 November 2011, it was reported “significant C5-6 degenerative change in such a young patient suggests past disc trauma, although there is no obvious bone injury”.
167 In the lumbar spine, there was minor central disc bulge shown at L5-S1, with the discs at other levels being entirely normal. There was no canal or foraminal stenosis and no evidence of recent or past vertebral or neural arch injury.
168 Dr Bones, occupational physician, with the defendant, wrote to Dr Tarek on 9 January 2012.
169 Dr Bones advised the previous week in early January 2012, there were reasonable concerns about the plaintiff’s fitness to work and she underwent saliva drug testing in the workplace, which was positive. It was likely that could be medically explained due to her long-term opiate medication for back pain and she had also taken a Valium tablet for sleep. Dr Bones noted the plaintiff had recently being doing very well at work since a period of sickness absence for Depression.
170 Dr Chowdhury from Tristar Medical Group noted on 10 February 2012, the reason for the visit was depression:
“PT is a machine operator for 16 years. She has neck and back pain on OxyContin, she has h/o depression on Mirtazapine for 5 years.”
Seaport Notes
171 Dr Stephanson’s notes of attendances from March 2012 to May 2016 were tendered.
172 Following the first post-incident attendance on 9 October 2012, the plaintiff attended on 23 October 2012, still complaining of cervical spine pain. Three days later, she attended, when Dr Stephanson noted some improvement in cervical spine pain this week and that the plaintiff was yet to have a CT scan.
173 Subsequent attendances were requests for repeat prescription for OxyContin, Diazepam and Mirtazapine. On nearly all visits the following was noted:
“Patient presents requesting repeat prescriptions for the following medication. Indications, evaluation of any possible side effects and ongoing need again reviewed and discussed in detail with patient.”
174 On 28 December 2012, Dr Stephanson noted ongoing cervical spine pain.
175 The next note of a complaint of cervical spine pain was 23 September 2013: “Does have WorkCover approval to see Dr Grave, encouraged to see as soon as possible.”
176 On 10 June 2013, the reason for contact was lumbar back pain and a prescription for Jurnista was added. Celebrex was first prescribed on 17 July 2013.
177 On 24 April 2013, Dr Stephanson noted there was an issue with the plaintiff’s husband injecting drugs into his feet.
178 On 7 June 2013, the plaintiff presented with her husband. Dr Stephanson then noted, given the husband’s narcotic abuse issues, the plaintiff needed to be switched to medication with less abuse potential, hence switched to Targin.
179 From a list of the medication prescribed by Seaport, it seems OxyContin was last prescribed on 22 May 2013. Targin and then Jurnista were prescribed. Lyrica was prescribed for a month in June 2014, and Celebrex commenced on 17 July 2013.
The Defendant’s medico-legal evidence
180 Mr Peter Scott, senior consultant surgeon, examined the plaintiff on 19 February 2013.
181 Mr Scott noted that on the said date, the plaintiff was freeing the cast iron from the air chisel which had become jammed between the launder and cast iron and required considerable effort over twenty minutes, and that resulted in the development of neck pain. It appeared the plaintiff worked on, possibly with some restriction, until she resigned in November 2012.
182 Mr Scott noted the x-ray and CT scan of the cervical spine in 2012.
183 On examination, the plaintiff complained of chronic neck ache and occipital and frontal headaches, which appeared present most of the time and worse with much in the way of physical activity, and particularly heavy housework. She also experienced problems if she had to drive for more than half an hour.
184 There was also occasional radiation of pain from the plaintiff’s neck to her left shoulder. There were no other problems and, in particular, there was no evidence of any upper limb radiculopathy or aggravation of any pre-existing depressive problems.
185 Mr Scott noted the plaintiff was able to cope with activities of daily living, but had trouble with heavy housework.
186 In terms of past history, chronic lower back pain had been present from some seven years following the birth of the plaintiff’s second child, and for which she had been having Oxycodone and opioids on and off. She also stated that radiological studies had shown the presence of some form of disc lesion in the lumbosacral spine in the past. The plaintiff had also suffered from anxiety and depression since 2012.
187 On examination, there was a full range of movements of the cervical spine, but the plaintiff complained of discomfort at the extremes of flexion and extension. She complained of tenderness to deep palpation along the cervical spine or musculature to the left and right of the midline posteriorly. There was a full range of movement of all upper limb joints. In particular, there was no evidence of any left or right upper limb radiculopathy and the absence of any abnormality of motor power, tone, sensation, reflex activity or circulation of either upper limb.
188 Mr Scott noted the present symptoms were those of persistent neck pain and presumed aggravation of underlying discogenic disease in the cervical spine, without evidence of any upper limb radiculopathy.
189 Mr Scott believed the injuries were consistent with the nature of the incident, in the absence of any past history of a similar problem.
190 Mr Scott noted the plaintiff had evidence of minor disc changes at C5-6 and a past history of chronic lower back pain, a discogenic problem of the lumbosacral spine, which had required the use of narcotic analgesics for some years. Under those conditions, one would suspect she would be well advised to avoid work which was physical in nature and confine herself to supervisory work or clerical work.
191 Mr Scott thought the prognosis was uncertain in view of the lack of response to treatment to date, and he recommended an MRI scan study before contemplating further management. He thought the plaintiff also required an up-to-date opinion from a psychiatrist in an attempt to determine whether or not there was any anxious or nervous or depressive problem which may be magnifying the overall presentation. He noted the plaintiff was to see a pain specialist in the near future.
192 Mr Scott then thought the plaintiff was fit for light supervisory work but was not fit to return to her pre accident job, which was physical in nature.
193 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on 15 October 2015.
194 Mr Jones noted the plaintiff worked the usual twelve-hour pot room shift, averaging a forty-four hour week. Prior to her injury, her neck was completely asymptomatic. She had never had any neck symptoms previously, although there was a past history of post-partum lower back pain of very longstanding.
195 In terms of the plaintiff’s present complaints, Mr Jones noted there had been very little change since the symptoms first appeared in 2012. Essentially, they were of persisting neck pain, which was most severe in the upper part of the cervical spine on the left below the head, with pain of lesser intensity radiating down to the left shoulder. The neck symptoms were accompanied by headache, both frontal and occipital. These headaches were accentuated by physical activity and heavy housework.
196 Driving presented a problem and vacuuming and household cleaning tended to accentuate the plaintiff’s symptoms. She also continued to experience backache with sciatica.
197 The plaintiff advised that, over the past two years, she felt there had been absolutely no improvement. Mr Jones noted she suffered from longstanding post-partum Depression, as well as her lower back pain.
198 On examination, movement of both shoulders was full and restricted, arm power was clinically normal. In the cervical spine, restriction was minor, but definite. Approximately two-thirds of the normal range of rotation was noted to be present and rotation to the left, in particular, appeared to increase the plaintiff’s neck discomfort.
199 Mr Jones was aware of the 2012 x-ray and CT scan.
200 Mr Jones thought the plaintiff continued to experience ongoing left-sided neck pain, principally in the upper neck and beneath the hair. Massage from her husband was the most effective treatment and her family doctor supplied the appropriate medication.
201 It appeared before the plaintiff had her injury, she had a number of months off from her job associated with stress leave related to family issues.
202 In addition to the neck pain, the plaintiff had mild limitation of back function, but there was no further information available in this regard.
203 Mr Jones thought the plaintiff’s problem appeared to be degenerative change originating in the C5-6 level of the cervical spine. Pain in the neck resulted from the incident and it persisted ever since. In his view, initially employment appeared to have been an initiating factor. There had been no change over the past few years and the condition could be considered stable.
204 Mr Jones allowed a 5 per cent whole person impairment in relation to the plaintiff’s cervicothoracic spine.
205 Mr Kevin Siu, neurosurgeon, examined the plaintiff on 6 March 2017.
206 Mr Siu then had available Dr Stephanson’s January 2013 report (which he seems not to have read!!) the 2012 investigations, Dr Stephanson’s note of 9 October 2012, the plaintiff’s affidavit of 30 January 2017 and Dr Ridley’s report.
207 Mr Siu noted the defendant’s solicitor’s letter of instructions suggested the plaintiff reported the incident of injury on 3 October 2012 at 2.30 in the afternoon, when there was a performance review meeting that morning.[47]
[47]The plaintiff was not cross-examined about this issue
208 The plaintiff advised she attended the work doctor and following day was placed on restricted duties. She worked a subsequent two shifts, then called in sick because of pain.
209 The plaintiff told Mr Siu she had been taking OxyContin for back pain which had come on after the birth of her first child in 2005. She denied being dependent on that medication.
210 In terms of past history, Mr Siu reported the plaintiff had never had a car accident.
211 Mr Siu noted a visit to the general practitioner on 9 October 2012, when it was reported the plaintiff felt she had aggravated her cervical spine pain while at work. Further, Dr Stephanson noted some improvement on 26 October 2012. The plaintiff reported ongoing cervical spine pain on 28 December 2012. Mr Siu commented that there were very few, if any, entries by Dr Stephanson of complaints of neck pain.
212 The plaintiff continued to attend every two weeks for a repeat prescription of OxyContin. Mr Siu emphasised that there were few entries regarding neck pain.
213 Mr Siu noted the attendance with Dr Tarek on 22 November 2011, who organised a CT scan of the cervical and lumbar spine. The plaintiff advised that Dr Tarek was thorough, and when she complained of pain in her back, he decided to do a CT scan of the whole spine.
214 Mr Siu thought that CT scan showed significant degeneration at C5-6, therefore, on the objective evidence alone, there was pre-existing degeneration of the cervical spine.
215 Mr Siu noted the subsequent CT scan of 26 October 2012 showed C5-6 neural exit narrowing on the right side, and not the left, when the plaintiff’s symptoms were predominantly on the left.
216 The plaintiff reported a pain level of 6 out of 10 on most days, but she did get two or three good days in a week.
217 On examination, the range of cervical spine movement was good; however, the plaintiff grimaced at the extreme range of movement. Mr Sui used the word “grimacing” to indicate the plaintiff was having severe flickering of the eyelids, which he explained may not be a good description of grimacing with pain.
218 Mr Siu was not convinced the plaintiff was in a lot of pain in showing her range of neck movement. There was no weakness of any muscle groups, and reflexes were present and normal.
219 The sensory examination on the medial aspect of both forearms, the more distal one goes to more sensitive is appreciation of pin prick. In the right hand, the plaintiff had appreciation of pinprick more in the right index finger compared to the little finger. On the left it was reversed. She appreciated pinprick more in the little finger compared to the index finger.
220 Mr Siu noted the plaintiff reported an injury to her neck in October 2012. Apart from that initial report, there had been very few entries from her general practitioner concerning her neck condition. She did have two CT scans separated by over a year, in which he did not see any progression of degenerative changes. He thought there had been degeneration before the incident, and considered the plaintiff suffered a soft-tissue injury therein.
221 Whilst the plaintiff still complained of heaviness in the left upper limb and headaches, there were few entries in the general practitioner’s notes concerning complaints of neck pain. Mr Siu noted frequent attendances to the general practitioner were for repeat prescriptions.
222 In Mr Siu’s opinion, the plaintiff’s injury should have settled in six to twelve months. He could see no reason why she should not return to gainful employment, but did acknowledge that she had other problems, be it psychological or dependency on narcotics.
Warnings
223 The plaintiff received a second warning by letter dated 16 July 2011 for excessive absenteeism on 17 March 2011. In that document, it was noted the plaintiff had exceeded her sick leave allocation for the year and had six months before her anniversary. She was advised this was the fifth consecutive year she had exceeded her yearly sick leave allocation.
224 The plaintiff received a third and final warning dated 26 September 2011 for unexplained and extended absences from work on 23 March to 20 April 2011.
225 There was a Special Employment Contract, including final notice warning, sent to the plaintiff on 26 September 2011.
226 Therein, it was noted there was a meeting after her third and final warning and the plaintiff’s continued employment was reviewed on 26 September 2011.
227 The plaintiff was advised in this meeting the Company considered termination of her employment based on her continued pattern of unacceptable behaviour with respect to attendance and poor work performance.
228 In lieu of termination, the defendant agreed for the plaintiff to return to work under the following special employment conditions which were to remain current for twenty-four months from the date of the special contract.
“1.Continued unacceptable absence from the workplace will result in termination of employment. The reasons provided by you for any absences will be subject to verification by the Company;
2.Any other breach of your employment contract including poor work performance and conduct, failure to follow supervisor’s instructions, failure to follow correct safety procedures and not notifying, in the event of an absence, or leaving site without authorisation, will result in termination.
3.Any unacceptable behaviour that breaches the Alcoa Code of Conduct Policy, or any other company policy.”
Overview
229 In opening, counsel for the defendant indicated that there was “some significant doubt as to whether there was an incident of any sort”.[48] However, in closing, it was conceded there was an incident and there was no challenge to the plaintiff’s evidence in this regard.[49]
[48]T1
[49]T66
230 In any event, I accept the plaintiff’s evidence that the incident occurred on the said date. She reported the incident to the defendant the following day and sought treatment soon thereafter at both the smelter medical centre and with her own general practitioner.
Credit
231 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[50]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[50](2010) 31 VR 1 at paragraph [12]
232 The only credit issue raised by the defendant was the plaintiff’s failure to mention the 2014 transport accident in her affidavits.
233 While the plaintiff could not really explain this rather “odd omission”,[51] as she underwent no further treatment or any specialist referral, save for the initial hospital attendances after this accident, this is not a case where she could be said to have concealed a matter detrimental to her case.
[51]T68
234 The TAC printout indicates the only expenses submitted on the claim were the ambulance and general practitioner attendances in the early days after the accident.
235 In my view, the plaintiff was a straightforward, truthful witness and I accept her evidence as to her level of neck pain and restriction, and the circumstances in which she injured her neck.
236 Further, the plaintiff’s evidence as to her post-incident neck pain and restrictions was corroborated by her mother and father-in-law. Neither witness was required for cross-examination.
Pain
237 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon: [52]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors); … .”
[52](Supra) at paragraph [11]
238 The plaintiff continues to complain of constant neck pain which spreads down into her left shoulder and arm. Her neck is stiff and the movement thereof is limited. She also has headaches. She has difficulty sleeping and wakes due to neck pain.
239 As the plaintiff reported to Mr Jones in October 2015, she experienced persisting neck pain, which was most severe in the upper part of the cervical spine on the left below the head, with pain of lesser intensity radiating down to the left shoulder. These symptoms were accompanied by headache, both frontal and occipital.
240 In his February 2016 report, Dr Stephanson described similar complaints of daily symptoms of cervical spine pain, often with muscle spasm and tightness and associated occipital headaches.
241 In March 2017, the plaintiff reported to Mr Sui neck pain of 6 out of 10 on most days, with two or three good days in a week. She also complained of heaviness of the left upper limb and headaches.
242 Further, a number of physical restrictions flow from the plaintiff’s neck pain. Repetitive use of her arms or over shoulder movements cause increased pain and the plaintiff avoids such activities. Lifting more than 2 or 3 kilograms causes increased neck pain which then spreads into her shoulders.
The medicine
243 Most medical practitioners[53] consider that as result of the incident, the plaintiff has aggravated underlying discogenic disease in her cervical spine.[54]
[53]Mr Scott in 2013, Mr Jones in October 2015 and Mr Kossmann in 2017
[54]T77
244 Mr Sui is alone in his view that the plaintiff suffered a soft tissue only, noting there was pre-existing degeneration in the cervical spine. Further, he thought this soft tissue injury should have resolved within six to twelve months of the incident.
245 Mr Sui appears to have formed this view on the basis of Dr Stephanson’s note of 26 October 2012 that the plaintiff’s condition had improved and the lack of ongoing neck complaints recorded in that doctor’s notes thereafter. He does not seem to have taken into account the contents of Dr Stephanson’s two reports in which he stated the effects of the incident injury were ongoing and subject to treatment by him.[55]
[55]T79
246 In his second report of February 2016, Dr Stephanson explained that he had sought specialist advice on the plaintiff’s behalf which had not been terribly successful and he continued to provide treatment which included pain relief for her neck problem.[56]
[56]T73
247 In these circumstances, I accept that the plaintiff has continued to report cervical pain to Dr Stephanson who has tried a number of treatment regimes which to date have been unsuccessful.[57]
[57]T68
248 Counsel for the defendant submitted any spinal impairment was not serious, with the medicine and complaints “just not stacking up sufficiently to make it a serious injury.”[58]
[58]T3
249 It was submitted that when one looked at the objective material, the injury itself, did not satisfy the definition of “serious”, particularly as only Mr Siu had the complete medical picture, specifically referring to the 2011 cervical CT scan.[59]
[59]T48
250 It was submitted that there was nothing inherent in the injury itself which would satisfy objectively that it caused impairment that could be described as “serious”.
251 It was submitted a number of practitioners did not have the benefit of the full history of the plaintiff’s significant pre-incident OxyContin intake and prior back pain,[60] and Dr Vagg did not know of the 2011 CT scan.
[60]Dr Graves; T49
252 Having been provided with all the relevant material, Mr Siu thought there was simply no difference between the 2011 and 2012 CT scans.[61] In any event, he thought the pathology shown did not match up with the plaintiff’s complaints, which were left sided.[62]
[61]T51
[62]T52
253 Further, it was submitted there was not much wrong found on examination by Dr Grave[63] and there were no clinical findings of significance on examination by Mr Scott in February 2013 or Mr Jones in 2015.[64]
[63]T49
[64]T52
254 Counsel for the defendant conceded however that there did not have to be a significant pathological finding for there to be a finding of serious injury.[65]
[65]T67
255 Counsel for the plaintiff did not dispute the radiology had not significantly changed in terms of the plaintiff’s neck condition, submitting such a change in this case was not crucial to the plaintiff’s application.[66]
[66]T76
256 Further, reliance was put on Mr Jones’ finding in October 2015 of minor but definite restriction of cervical movement with a loss of one third of the range of rotation in particular.[67]
[67]T83
Treatment
257 Arguing against an ongoing, serious incident-related impairment, counsel for the defendant relied on Dr Stephanson’s note of improvement in late October 2012 and what was submitted was a lack of neck complaints to that practitioner thereafter.
258 It was submitted Dr Stephanson had recorded “many, many times” complaints of lumbar back pain, and the plaintiff’s difficulties her husband et cetera, plus other extraneous matters, but the neck was not so recorded.[68]
[68]T50
259 It was submitted there were many many more complaints of back pain and only two of neck pain after October 2012.
260 Counsel for the plaintiff disagreed with this analysis of Dr Stephanson’s notes. There were in fact only four complaints of lumbar pain, not “many many” as asserted, and there were two of neck pain.[69]
[69]T71
261 I accept the submission on the plaintiff’s behalf that when the Seaport notes are closely examined, they contain little detail of each attendance.
262 From 26 October 2012 until the last clinical note in May 2016, the plaintiff attended on seventy-five occasions for a prescription, with the same typed note[70] in relation thereto, appearing on fifty-six occasions.
[70]See paragraph 178 of my Judgment
263 I accept, despite there being scant references to neck complaints in the notes, the plaintiff has continued to complain to that clinic of significant neck pain as Dr Stephanson described in his reports.
264 Counsel for the defendant further submitted that objectively, and so far as the medication is concerned, there has, effectively, been no alteration as a result of the incident injury, with it being reduced on one view. It was submitted it was not objectively possible to ascribe the continued prescription of painkillers to the neck as opposed to anything else.[71]
[71]T50
265 Further, it was submitted it was not apparent from the notes there had been any treatment in terms of physiotherapy, or other investigations, or pain management, or anything else along those lines.[72]
[72]T51
266 However, it is apparent from Dr Stephanson’s 2013 report that he added several new medications to aid in the control of the plaintiff’s new cervical symptoms, with minimal benefit to date. He then intended to refer her to a musculoskeletal physician for an opinion regarding further management. He noted this was likely to involve a physical exercise and physical manipulation regime, possible cervical spine injections, with further additional medication.
267 In his note of an attendance on 4 July 2014, Dr Stephanson stated that the plaintiff had been referred to a pain clinic. On 26 September that year, he noted she had been to a pain specialist and the possible use of Ketamine was raised, but the public waiting list was three years and the specialist had encouraged the plaintiff to pursue previous her employer for medical costs.
268 In his 2016 report, having stated there had been no meaningful improvement in in the plaintiff’s symptoms over the last twelve to twenty-four months, Dr Stephanson noted “of course”, further treatment is, theoretically, available, but most are not accessible through the public health system, and given the plaintiff’s financial situation, they have not been pursued. Such treatments involve referral to a formal pain management clinic for outpatient and/or inpatient treatment, as well as more intensive physical therapy.
269 Dr Stephanson then noted that in addition to high dose daily opioid analgesia, the plaintiff remained on anti-inflammatory medications and occasional muscle relaxants to manage the associated cervical spine spasm.
270 In the absence of any new treatment, Dr Stephanson believed the plaintiff’s condition would continue to run a chronic course.
271 Although the plaintiff has been on a different medication since July 2013. Jurnista, which she now takes, is still an opioid medication which is prescribed for significant pain relief.[73]
[73]T74
272 Whilst this opioid medication is also being prescribed for the plaintiff’s back complaint, Dr Stephanson prescribes it for the plaintiff’s cervical spine pain. In those circumstances it is a relevant factor when considering the seriousness of her cervical spine impairment.[74]
[74]T75
273 I accept the issue of any opioid dependency on the plaintiff’s part to opioid medication was largely a “red herring”, as was the issue about the plaintiff’s husband‘s drug use.[75]
[75]T75
Pre-incident neck condition
274 While it was submitted on the defendant’s behalf that the plaintiff had neck problems prior to the said date, I accept the plaintiff’s evidence that this was not in fact the case.
275 Although Dr Stephanson initially described the plaintiff’s neck injury as an aggravation in his note of 9 October 2012,[76] on numerous occasions in his report prepared less than four months later and also in his 2016 report, he described a new injury.
[76]T50
276 I accept that when he described the incident as a “new onset of cervical spine”, in his first report of 24 January 2013, Dr Stephanson would have had a good memory of what was happening at that time.[77] This description was consistent with the plaintiff’s evidence that she had not had a neck problem before the incident and this is what had caused her ongoing difficulties since.[78]
[77]T73
[78]T73
277 I accept the plaintiff’s explanation that Dr Tarek, who was treating her significant lumbar spine complaint, organised a cervical CT scan in October 2011 at the time he also organised a lumbar CT as he was being thorough. Significantly, there is no mention in Dr Tarek’s notes of any neck complaint prior to that investigation.
278 Further, when the plaintiff saw Dr Chowdhury from Tristar Medical Group on 10 February 2012 “neck and back pain on Oxycontin” was noted, and it was a one off visit and the reason for that visit was stated to be “Depression.” The plaintiff had no memory of that attendance.
279 Clearly, the plaintiff did have a significant back complaint requiring ongoing OxyContin from the late 2000s, necessitating frequent regular attendances with her general practitioner for prescriptions of this medication.[79]
[79]T7
280 In this case, where there is a pre-existing spinal condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the incident is serious and permanent.
281 In Petkovski v Galletti,[80] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[80][1994] 1 VR 436, followed in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
282 Despite her back condition prior to the incident requiring ongoing OxyContin, the plaintiff was able to do engage in very heavy work, over long hours, working forty-four hours a week in the pot room.
283 While there had been warnings following absenteeism relating to family and psychological issues, and the plaintiff was under a special contract for thirteen months before the incident, she was able to engage in the heavy work without difficulty.
284 The leave records in the year prior to the incident indicate the plaintiff did not exceed her sick leave and annual leave entitlements. As Counsel for the plaintiff pointed out that in the year before the incident, there were seven or eight days which were all paid leave, which were the plaintiff’s entitlements.[81]
[81]T69
285 If the plaintiff had in any way breached the Special Condition Contract, she would have been sacked.[82] The records during that period showed one day here and there, and she has taken what she is entitled to.[83]
[82]T70
[83]T71
286 During the hearing, I indicated that I thought the plaintiff’s strongest point was her ability to work full time pre incident in heavy work while taking OxyContin for a significant back problem, earning significant income.[84]
[84]T58
287 In response, counsel for the defendant submitted that “would be a nicely wrapped up bow” if, in fact, the plaintiff was working with no difficulty. The reality was that she had received a series of warnings following extensive unauthorised periods off work for various issues.[85]
[85]T58
288 Counsel for the defendant submitted the plaintiff had a reduced capacity because of the other unrelated matters, so she could not attribute her inability to work now to her neck, because she always had a significant back problem and continuing psychiatric issues. In these circumstances, it was submitted it was inevitable she was going to get the sack as she was on her third and final warning.[86]
[86]T58
289 In support of this submission, counsel for the defendant stated:
“If this were a case where the notes were replete with complaints about the neck and she’d been referred off for all sorts of things, had treatment, et cetera, that would be one thing, but she hasn’t had any treatment. In fact, when you look at the notes, it’s clear that there's been effectively no discrete treatment in relation to the neck complaints at all. So her continued treatment is, in essence, identical to the treatment she was having before the incident, and that's why we say when you marry that with the continuation of those other complaints as well, that is, there are many more complaints about back, lumbar pain, husband, et cetera, post our accident date than there are neck, it all fits together, we say, but you can’t say it’s the straw that broke the camel’s back because it's not even a straw. The fact is the back was broken anyway. This was a woman who had history continued – take out our accident, she would now be exactly where she would have been in any event. She wouldn’t have a job. She wouldn’t have a job at Alcoa. She wouldn’t be working at all.”[87]
[87]T60, L11-30
290 Counsel for the defendant submitted the Court needed to be satisfied any loss of capacity comes from this injury, and that it could not be so satisfied, because “this is just an additional item in a lengthy string of items that have caused the plaintiff to go off work. There is no straw that broke the camel’s back.”[88]
[88]T61
291 It was submitted that pre incident, the plaintiff was not working in the sense that one would normally use that phrase, because she was having very real issues.[89] One year of work did not do away her extensive prior history of absences from work.[90]
[89]T62
[90]T66
292 In response, counsel for the plaintiff submitted the issue was whether the plaintiff has the capacity to work, or whether it has been reduced because of the incident injury; “not that she might, tomorrow or next week, have to not work because one of her children had been run over by a truck”.[91]
[91]T80, T81
293 It was submitted that counsel for the defendant was treating this application as if it was a cause, and one was looking at other factors relevant to damages in the future. This was not a matter that should be into account in relation to assessing whether or not there was a 40 per cent loss of earning capacity. It was a different issue altogether.[92]
[92]T81
294 It was submitted the plaintiff had continued to do very heavy work and comply with the special conditions, or else her employment would have been terminated. It was submitted that spoke very clearly about her capacity to do a heavy job. She is not a large woman, and she did a very difficult heavy job in compliance with the strict guidelines for thirteen months until the incident. It was perfectly open in those circumstances to conclude she ceased work in 2012 because of the neck injury.[93]
[93]T75
295 Taking into account all the evidence, I accept that the incident injury to the plaintiff’s cervical spine continues to be the event that is preventing her from going back to work[94] particularly in light of the thirteen months of heavy work without problem prior to the incident.
[94]T76
296 In these circumstances, I reject the submission on behalf of the defendant that the plaintiff would not be working now, even without the incident, because of her back or psychological problems. Clearly, that argument is not open on the evidence and is one that may be raised later on in a damages trial.
297 Whilst there had been a series of warnings leading to the Special Contract, and the plaintiff had previous health and family problems, she had managed to work for over a year prior to the incident, taking only the leave to which she was entitled and doing nothing to offend the special contract conditions. It was only after she injured her neck that “everything went off the rails”.[95]
[95]T63
298 I am satisfied that the plaintiff has lost capacity for heavy work as a result of pain and restrictions from her neck injury. In my view, this is a serious consequence.
Loss of earning capacity
299 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
300 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
301 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
302 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning, from personal exertion had the injury not occurred.
303 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
304 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[96]
[96]Barwon Spinners & Ors v Podolak (supra)
305 In the financial year 2011-2012, the plaintiff earned $98,986.00, sixty per cent of which is $59,391.60 or $1,142.15 per week.
306 Counsel for the plaintiff indicated that the earnings of a worker in the plaintiff’s role as a full-time machine operator three years post injury were up to $111,000. Sixty per cent thereof was $1,208 per week.[97] No figure was suggested on the defendant’s behalf.
[97]T6
307 I accept the view of Dr Stephanson, initially in his 2013 report and not changed in his second report early last year, who has seen the plaintiff before the incident and many times since, that she does not have a capacity for work based on her neck injury alone.
308 Further, Mr Kossmann thought because of her neck injury the plaintiff had no capacity to return to her pre-injury employment or to perform light modified duties.
309 However, Mr Kossmann agreed with Mr Radley that the plaintiff may have some potential for occupational retraining, and she may work in the suggested roles as long as she does not have to engage in working with her upper extremities permanently, work above shoulder or head height, or lift items weighing more than 2 to 5 kilograms.
310 Mr Scott, in October 2015, commented briefly on the plaintiff’s work capacity, noting with her back and neck complaints, one would suspect she would be well advised to avoid work which was physical in nature and confine herself to supervisory work or clerical work.
311 Mr Jones did not comment on the plaintiff’s employment capacity when he examined her in October 2015.
312 Mr Siu simply stated that, as far as the plaintiff’s work capacity was concerned, it would be affected by psychological and dependency factors and did not comment on her present capacity for work, whether pre injury duties or suitable employment.
313 I accept the submission by counsel for the plaintiff that the issue of opioid dependency is not relevant to the plaintiff’s current work capacity. There is no evidence she is so “out of it” that she could not work.[98]
[98]T79
314 Further, the plaintiff could still have a disruptive dysfunctional family situation and go to work. In any event, she had all those problems before the incident, and she was still working full time.[99]
[99]T80
315 Whilst it was not conceded the plaintiff had a capacity for employment after retraining, and counsel for the plaintiff described Mr Radley’s view about capacity following retraining as somewhat “optimistic”, as counsel for the plaintiff submitted on the wage figures provided for the suggested jobs, the plaintiff would still suffer the requisite loss even working full time.[100]
[100]T83; T5
316 Taking into account all the evidence, I am satisfied as a result of her neck injury alone, the plaintiff has a loss of earning capacity of 40 per cent which is permanent.
317 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 her 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).
318 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
319 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, that is, both for pain and suffering and loss of earning capacity.[101]
[101]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
320 Accordingly, I grant the plaintiff leave to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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