Rowley, Edwina v DP World Australia Ltd
[2009] VCC 1498
•7 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-05025
| EDWINA ROWLEY | Plaintiff |
| v | |
| DP WORLD AUSTRALIA LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 August and 1 September 2009 |
| DATE OF JUDGMENT: | 7 October 2009 |
| CASE MAY BE CITED AS: | Rowley, Edwina v DP World Australia Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1498 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the plaintiff’s application involved an aggregation of injuries – identification of injury – disentangling of organic injuries – relevance of mental or behavioural disturbance – application in respect of pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DF Hore-Lacy SC with | Clark, Toop & Taylor |
| Mr MJ Ruddle | ||
| For the Defendant | Mr RJ Stanley QC with | Herbert Geer |
| Ms M Britbart | ||
| HIS HONOUR: |
1 In this application, the plaintiff seeks leave to commence proceedings claiming damages for both the pain and suffering and economic loss consequences suffered by her by reason of an incident which occurred in the course of her employment with the defendant on 14 June 2005 when she was struck by a length of steel beam being transported by a tray truck (“the incident”).
2 In bringing the application, the plaintiff asserts that by reason of the incident she has suffered a permanent serious impairment or loss of a body function, or alternatively a permanent severe mental or permanent severe behavioural disturbance or disorder.
3 The body function relied upon is the low-back region and/or the low-back, sacroiliac area and/or the hip.
4 There is no dispute between the parties that the plaintiff, by reason of the effect of the incident, does not have a capacity to earn more than 60 per cent of the gross income which she would be capable of earning in suitable employment but for her injury. The issue which arises is whether the plaintiff has established that the effect of either her physical injuries or her emotional injury, when assessed in accordance with the provisions of the Accident Compensation Act 1985 (the Act), entitle her to the leave which is sought.
5 Specifically, the issues which arise are as follows:
(i)
Has the plaintiff identified an organic injury which is the cause of her disability which persists at the present time?
(ii)
If the plaintiff has suffered an organic injury or injuries, has she established that the consequences of such injury or injuries have resulted in an impairment or loss of body function which meet the relevant statutory test identified in s.134AB(38)(c)?
(iii)
Does the plaintiff suffer from any psychiatric or psychological injury which satisfies the statutory test identified in s.134AB(38)(d)?
The Plaintiff’s Evidence
6 In an affidavit dated 17 December 2007, the plaintiff deposed that:
•
Following the incident she was taken by ambulance to the Alfred Hospital where she was diagnosed with bruising and soft tissue injuries. That she was examined and discharged and thereafter, that she remained off work until approximately 19 September 2005 when she returned to light duties working in the office at the defendant’s Swanson Terminal. She described suffering from ongoing symptoms associated with the incident in the form of left buttock and thigh pain and symptoms extending into her left leg which included pain, pins and needles and numbness. She said she developed a psychological reaction and was referred for treatment to two psychologists, Dr Josefsberg and Dr Gollings, for the purpose of helping her manage symptoms of recurrent recollections of the incident, loss of confidence and fear of involvement in a further work- related incident resulting in injury.
•
In June 2006, the plaintiff was referred to Dr Miller, a psychiatrist, who prescribed anti-depressant medication, initially in the form of Endep and subsequently in the form of Zoloft, which the plaintiff has continued to use from that time onwards.
•
In treatment of her physical symptoms the plaintiff underwent an MRI scan on 8 October 2005, and on 18 October 2005 she underwent a CT- guided cortico-steroid injection into her left sacroiliac joint which did not provide any relief of her symptoms. At that time the plaintiff was prescribed Endep medication by Dr T Barbour[1] who subsequently referred her to Dr P Blombery[2] in May 2006. Dr Blombery administered a phentolamine infusion on 20 June 2006 which did not lead to any improvement in the plaintiff’s level of symptomatology and subsequently, on 11 December 2006, Dr Blombery administered an epidural infusion of Clonidine and Morphine which did little to assist the plaintiff’s pain management but caused an exacerbation of her symptoms by reason of the fact that the plaintiff developed an infection in her lumbar spine associated with this treatment.
•
The plaintiff came under the care of Dr H Sutcliffe, an occupational physician, early in 2007. At the referral of Dr Sutcliffe she underwent a pain management program at the Epworth Rehabilitation Centre under a rehabilitation specialist, Dr de Graaff. Dr de Graaff altered the plaintiff’s medical regime for pain management to include Oxycodone, which she continues to use.
•
Having returned to work with the defendant on light alternate duties in September 2005, the plaintiff continued in that employment until early 2006 when she was retrenched.
[1] A sports medicine physician
[2] A consultant physician
7 In a further affidavit dated 17 December 2007, the plaintiff deposed that she suffered from persisting pain which extended through her lower back region into her hips and left leg. She said she continued to have flashbacks and recurrent thoughts of the circumstances of her injury and she remained in fear of being injured in the workplace. She described symptoms of difficulty sleeping and of feeling tired and lethargic.
8 In a supplementary affidavit which the plaintiff adopted in the course of her evidence, the plaintiff said her medical management was being undertaken by Dr Sutcliffe in consultation with Dr de Graaff and that it involved regular physiotherapy, the performance of a gym program and the use of medication in the form of Oxycontin, Lexapro and Stilnox. The plaintiff said she suffered from severe and persisting low-back pain together with left hip and left buttock pain. She said she had difficulty standing or sitting for any length of time, that she was depressed, anxious and irritable and experienced problems with her concentration and memory. She deposed to difficulties performing household duties such as vacuuming and said she was confined to light activities. Whilst she was able to drive a car, the plaintiff said she did not drive for long distances and that she found shopping difficult.
9 In the course of evidence before me, the plaintiff said that the greatest source of her pain stems from her low-back. She described the area of this pain as involving the area at the top of her buttocks “around the sacroiliac joint”[3]. She said this pain was aggravated by standing and she experienced a heavy throbbing if she stood on her feet for too long which aggravated her hip area and moved down the back of her leg.[4]
[3] T 22
[4] T 22
10 In cross-examination, the plaintiff:
•
Identified the area of her pain as being towards the bottom of her spine in the coccyx area and as involving her hip;
•
Indicated that the pain was worse on her left side and described the area involved as being her sacroiliac joint;[5]
•
Said that the manipulation being undertaken by her physiotherapist, Mr Mackay, made her feel more comfortable but that she derived no long-standing benefit from that treatment;[6]
•
Said that she had not seen a psychologist for some eight or nine months;[7]
•
Agreed that she had been originally diagnosed with symptoms of post- traumatic stress disorder, that she had been managed by Dr Josefsberg, Dr Gollings and Dr Miller and that she was eventually prescribed Lexapro in treatment of her depression, which she still takes;[8]
•
Said that her condition was presently managed by Dr Helen Sutcliffe who prescribed both Lexapro for her depression and Oxycontin for her pain relief;
•
Said that upon returning to work she eventually succeeded in increasing the hours during which she performed the light duties which she was required to undertake, to five or six hours a day, although she was required to stop and rest after every forty-five minutes. She said that she did not cope well with her work;
•
Said that the infusion procedure performed by Dr Blombery did not assist her but merely made her worse;[9]
•
Accepted that between 2005 and 2007 she had problems related not only to her employer but also to her insurer, initially declining to authorise the treatment recommended by Dr Blombery;
•
Said she had made enquiries of friends as to whether she might be employed on a casual basis doing light work in a sandwich shop or arranging flowers in a florist. She said that she felt that the handling of buckets which was involved in working as a florist, would be beyond her physical capabilities;
•
When asked how she spent her days, the plaintiff said that this depended upon her nights:
[5] T 23-24
[6] T 25. Whilst this treatment eased the plaintiff’s symptoms, it was clear that the plaintiff did not feel that the treatment effected any long-term improvement in her condition or diminution in the level of her symptoms.
[7] T 28
[8] T 30
[9] T 34
“I don’t make plans what I’m going to do tomorrow until I know what the nights – because I do have bad nights and sometimes I can be up from 4.00 in the morning if I’ve got to take an extra tablet or if I take sleeping pills sometimes I don’t wake until 9.00 or 10. Most of my days are spent going to the gym, physio, exercising and just trying to, yeah, when my feet and my legs play up and my back I just try to stay off my feet a bit.”
• She continued: “When I go to Coles or something I can only – when I was living on my own I would only buy things that would last a day or so. I don’t feel – I haven’t been able to go out there and say do a big shop once a week because it’s too hard to get it home and carry it all.”[10]
[10] T 40
[11] T 43
• Said that she could walk for thirty to forty minutes depending on how her lower back and hips were feeling; • Said that the pain in her back and into her buttock area had remained much the same since the accident and that her symptoms were exacerbated “when I’m on my feet too much”.[11] 11 In re-examination, the plaintiff described the area of her pain as involving the sacroiliac area. She confirmed that her symptoms were stable and were aggravated by standing on her feet for too long. Walking also aggravated her symptoms, as did sitting in one position for too long.
12 My assessment of the plaintiff as she gave evidence was that she in no way presented as being histrionic or inappropriate when describing the level of her symptoms or the disability associated with those symptoms.
The Medical Evidence
13 Following the accident the plaintiff initially came under the care of Dr Y Josefsberg, a general practitioner. Dr Josefsberg described the plaintiff as presenting on 22 June 2005 when she was still badly bruised over the buttocks, left hip and upper thighs. She noted that the plaintiff required a walking stick for support. On 3 August 2005, Dr Josefsberg reported the plaintiff as presenting with symptoms of severe anxiety at the prospect of returning to work and to the site of the incident and diagnosed the beginning of post-traumatic stress disorder. Dr Josefsberg described the plaintiff as also presenting with tenderness in her buttocks, and pain in her left hip and elbow. At this time the plaintiff was referred to Dr Gollings, psychologist, and Dr Barbour, a sport medicine physician. Subsequently, the plaintiff was referred by Dr Barbour to Dr Blombery, a consultant vascular physician, and Dr Miller, a psychiatrist.
14 Dr Josefsberg concludes her report of February 2007 by describing the plaintiff as:
“Suffering from a chronic pain syndrome with super imposed post- traumatic stress disorder and these two conditions mostly affect Edwina’s ability to function rather than physical weakness or lack of mobility. I am guided by her specialists, Dr Tim Barbour and Dr Pauline Miller, in her ongoing management and feel that they are the best people to assess the ongoing impact of Edwina’s residual disabilities in terms of work and daily living.”[12]
[12] Given the deference of Dr Josefsberg to the opinions of Dr Barbour and Dr Miller, I do not find her report to be of great assistance in determining the cause of the plaintiff’s symptomatology
15 In a report dated 30 October 2006, Dr Emma Gollings reports the plaintiff as presenting to her on 9 September 2005 with symptoms of low-back, hip and buttock pain, together with heightened levels of anxiety and lowered mood in the context of pain and functional limitation. She described the plaintiff’s “psychological issues” in the following terms:
“Edwina is a 40 year old woman with no prior psychological history who suffered an injury at work resulting in a persistent pain problem, and mixed symptoms of anxiety and depression.”
16 She continued:
“Although Edwina had made some gains in the above areas, she continued to struggle with poor confidence and remained fearful of re- injury. The fear had been partially maintained by her ongoing difficulties with pain that triggered a reminder of the injury. I ceased providing psychological services to Edwina on 31 March 2006 due to my maternity leave.”
17 Dr Pauline Miller, psychiatrist, first saw the plaintiff on 21 June 2006. In a report dated 19 March 2007, she declined to comment upon the plaintiff’s physical incapacity but expressed the opinion that the plaintiff was suffering from post-traumatic stress which rendered her unfit psychologically to return to her pre-injury employment in the foreseeable future. She noted, however, that the plaintiff believed she was capable of performing part-time duties away from the operational area.
18 In a further report dated 1 June 2007, Dr Miller noted the plaintiff to be suffering from persisting symptoms of hyper-vigilance, exaggerated startle response, difficulty concentrating, difficulty falling or staying asleep, and irritability or outbursts of anger. She described the plaintiff’s symptoms as being chronic and confirmed her opinion that the plaintiff was unfit to work in the wharf environment but could be employed in a suitability physically safe environment.
19 By the time she had authored her report, Dr Miller had seen the plaintiff on twenty five occasions. In these circumstances, I consider her to be well- placed to express an opinion as to the severity and prognosis of the plaintiff’s emotional state. Whilst Dr Miller described the plaintiff’s symptoms as being chronic, I am of the opinion, having considered the totality of the evidence, that the symptoms associated with the plaintiff’s emotional state and the restrictions which those symptoms place upon the plaintiff’s lifestyle are not such that it is appropriate to described the plaintiff’s condition as being “severe”.
20 Dr Albert Kaplan, psychiatrist, examined the plaintiff on two occasions: 10 October 2007 and 16 July 2009. On both occasions he expressed the opinion that the plaintiff’s pain was at least substantially organically-based and that she suffered from an adjustment disorder with mixed anxiety and depressed mood, the effect of which was to render her incapable of performing her former duties as a waterside worker in general employment. The opinion of Dr Kaplan reinforces the opinion I have expressed as to the severity of the plaintiff’s emotional condition.
21 Dr Tim Barbour, a sports medicine physician, commenced treatment of the plaintiff on 7 October 2005. At that time the plaintiff presented with pain predominantly on her left side involving the gluteal area, in the pelvis and the thigh. She reported that she was using Tramadol, slow-release, which was reported to be relieving her pain for four to five hours. It was Dr Barbour’s assessment that the plaintiff had suffered a sacroiliac joint impaction. He investigated the plaintiff’s symptoms by arranging an MRI scan which he interpreted as indicating the presence of likely resolving bone contusion and undertook a CT-guided cortico-steroid injection to the left sacroiliac joint. He also prescribed Endep for pain control. Subsequently, Dr Barbour arranged for a CT scan to be performed to investigate the issue as to whether a bony injury had been sustained to the acetabulum. He interpreted the findings of this scan which reported a diffuse bone signal as being non-specific.
22 Dr Barbour commented in his report dated 31 May 2006:
“I am uncertain as to whether there is a serious long-term impairment of
her body function or psychological status.”
23 In a report dated 10 November 2006, Dr Barbour commented:
•
That the plaintiff had suffered from unremitting left-sided pain since her accident.
•
That a guided cortico-steroid injection into her left sacroiliac joint had achieved a mild but temporary improvement.
•
That her pain had plateaued for a significant period of time and that he did not believe that analgesia or other physical measures would be effective in progressing her state of functioning.
•
That he did not believe there was a significant degenerative component to her condition so that once her pain was under control she should have a fairly solid progressive return to full function.
24 In a further report dated 20 April 2007, Dr Barbour opined:
• That the plaintiff’s hip joint was not a significant contributor to her pain. Dr Barbour arrived at this opinion on the basis that a local anaesthetic administered by him to the plaintiff’s hip produced little change in her symptoms. • That the plaintiff should not return to work with the defendant, as to do so would be likely to cause a deterioration in her post-traumatic stress disorder which would have an adverse impact upon her pain levels. 25 I note that a constant feature of the plaintiff’s management by Dr Barbour was the prescription of strong pain-control medication in the form of Kapanol. During his management of the plaintiff, Dr Barbour reduced the plaintiff’s dose of Tryptanol from 50 milligrams at night to 25 milligrams at night. Attempts to further reduce that dose rate were discontinued as they resulted in an increase in the plaintiff’s pain. The prescription of medication of this type and the coincidence between reductions in the level of prescribed medication and an increase in the plaintiff’s symptoms, in my opinion, provides a good indicator that the plaintiff’s symptoms of pain were physically-based.
26 I interpret the comment made by Dr Barbour that:
“There is a high probability that Edwina will deteriorate if she seeks employment with P & O. I think she would deteriorate in terms of her post-traumatic stress disorder, and I believe the pain if anything will regress”[13]
[13] Report dated 20 April 2007
as indicating that it was Dr Barbour’s opinion that the plaintiff’s emotional state would influence the way in which she was able to manage her physical symptoms and not that the plaintiff’s symptoms of pain were not primarily organically-based. If the latter position was the case, the prescription by Dr Barbour of a morphine-based painkiller such as Kapanol would, in my opinion, be totally contraindicated.
27 Mr Warwick Lanagan, a physiotherapist, reported upon the plaintiff’s condition to Dr Barbour on 11 July 2007. He commented that the plaintiff had suffered massive sacral trauma and expressed the view that she suffered from a mechanical restriction of her neural tissue at or around the first sacral level. He commented:
“I don’t feel that she’s likely to get a good resolution with manual or exercise therapy, pain management or medication. While I feel that surgery as a last resort for non-specific back pain is generally foolhardy, if there were a specific and local tethering then it could be significantly beneficial.”[14]
[14] It is clear that Mr Lanagan considered the plaintiff’s symptoms to be stemming predominately from her back and of being organically-based
28 Dr Peter Blombery first examined the plaintiff on 1 May 2006. The plaintiff presented to Dr Blombery with pain in the left side of the pelvis, the left hip and the calf. Dr Blombery expressed an initial opinion that the plaintiff was presenting with Complex Regional Pain Syndrome Type 1, an alternate diagnosis being chronic pain syndrome. He commented:
“Both of these are organic disorders of pain neural pathways but in the case of Complex Regional Pain Syndrome Type 1 there is an additional component of sympathetic nerve involvement.”
29 Dr Blombery treated the plaintiff with a trial of Nisolone followed by Epilim, and whilst the Epilim produced some improvement in the plaintiff’s condition, he considered it appropriate to undertake an epidural infusion into the plaintiff’s spine of Clonidine and Morphine which was finally undertaken on 11 December 2006. Although the plaintiff initially attained good relief from her symptoms, she subsequently developed increased back pain associated with an infection at the site of her epidural catheter.
30 Dr Blombery expressed the opinion that the plaintiff presented with features of chronic pain syndrome together with a component of Complex Regional Pain Syndrome Type 1. He described her as being well-motivated but thought that having regard to the duration of her symptoms –
“this makes the likelihood of her recovering less but nevertheless I think there is a moderate chance that there may be some significant improvement further with the epidural infusion and also with overall multi-disciplinary therapy for chronic pain.”
31 He commented that the plaintiff suffered from a significant impairment in terms of a limitation in her ability to weight bear and further, that the plaintiff was no longer able to be employed because of her ongoing pain.
32 In a further report dated 23 April 2007, Dr Blombery commented:
“Her symptoms have now been present for almost two years and it is my opinion that her prognosis for recovery is poor and she is unlikely to improve very much in the foreseeable future. The best that could be hoped from pain management is that it will help her deal with the pain and cope with it rather than actually expecting a reduction in the pain level.”
33 He continued:
“If her pain remains intractable and very severe despite overall pain management, she may even come to the point of requiring a spinal cord stimulator in order to try and control her pain.”
34 The plaintiff came into the care of Dr Helen Sutcliffe, an occupational physician, on 5 March 2007. Between that date and February 2008, Dr Sutcliffe treated the plaintiff at two-weekly intervals. She described the plaintiff as presenting with symptoms of hyper-vigilance, loss of feelings of safety and difficulty leaving her home. She also complained of pain in the low-back, buttock region, left posterior thigh and lower leg, together with groin pain. Dr Sutcliffe noted the presence of wasting of the plaintiff’s left buttock, muscular bulk and a decreased range of movement in her left hip. In her report dated 26 February 2008, she expressed the opinion that the plaintiff had suffered a traumatic injury to her low-back, left hip and left buttock and right hip and thigh resulting in persistent pain of severe intensity as the result of direct tissue damage and the onset of neuropathic pain. She commented that the plaintiff’s low-back pain was increased following infection of a spinal catheter during the course of the treatment of her symptoms and that the plaintiff had sustained in internal derangement in the left hip as a result of her injury.
35 It was Dr Sutcliffe’s opinion that there was no non-organic aspect in the plaintiff’s presentation and that her symptoms were the result of a left hip internal derangement.
36 In a further report dated 26 August 2009, Dr Sutcliffe noted continuing pain over the left hip and buttock region and tenderness to palpation of the left sacroiliac region. She again described reduction in bulk of the left buttock muscular joint and confirmed her opinion that the plaintiff sustained major direct injury to her left hip, left buttock, left thigh region and lower back region. She opined that there was likely to have been an internal derangement of the left hip and she considered MRI results indicating minimal chondral thinning and fraying as being consistent with that diagnosis.
37 The plaintiff was referred by Dr Sutcliffe to Dr Stephen de Graaff, the Medical Director of Pain Services at the Epworth Rehabilitation Hospital who first examined the plaintiff on 14 June 2005. At that time Dr de Graaff expressed the opinion that the plaintiff had ongoing pain following a low-back and pelvic/hip injury.
38 Throughout 2007, Dr de Graaff’s management team made alterations to the medication which the plaintiff was being prescribed in an attempt to ameliorate her symptoms. During this period Oxycodone (an opioid pain-controller) was substituted for Kapanol. Endone was also introduced for pain relief, and Zoloft was prescribed for treatment of depression. In December 2007, Dr de Graaff reported to Dr Sutcliffe that the plaintiff:
“Is suffering with severe pain and has attempted to rehabilitate herself. The physical and emotional stress she has been under is incomprehensible.”
39 In January 2008, Dr de Graaff described the plaintiff as having:
“Chronic severe disabling pain. She has poor sitting and standing tolerances. Her activity level is markedly diminished to her back pain and leg pain. She has associated sleep disturbance and the way she has been handled by her employer and insurer has led to increased stress in her situation.
The use of Oxycontin rather than Kapanol has improved her pain profile a little and allowed her to have some activity level.”
40 He continued:
“In summary, Edwina does have chronic severe debilitating pain. It has not responded to non-narcotic analgesia. There is a neuropathic component to her pain and as such, in the opioid group Oxycodone is more efficacious than Kapanol. This is the reason for using Oxycontin.”
41 In a report dated 23 February 2009, Dr de Graaff summarised the management of the plaintiff’s condition undertaken by the Epworth Hospital Rehabilitation Team. He commented:
•
The plaintiff had suffered injuries to her low-back and pelvic region in the course of the incident on 24 June 2005 which had caused persistent low- back gluteal and left hip pain. He noted that the plaintiff failed to respond to conservative management and that whilst she had attempted to improve the quality of her life by undertaking a home gym program on a committed basis, she remained markedly impaired due to her pain and weakness. He described the plaintiff as complaining of chronic low-back pain and expressed the opinion that she suffered from ongoing problems with low-back and pelvic/hip pain stemming from the incident and that she remained markedly impaired due to her pain and weakness.[15]
•
He commented, as to the permanency of the plaintiff’s condition, in the following terms.
[15] PCB 92-97. I do not interpret Dr de Graff as questioning the veracity of the plaintiff’s complaint of pain or the physical basis of that complaint.
“On the balance of probabilities, given that it is now approaching four years since her injury, she will remain incapacitated and the likelihood of significant improvement is low. As such, her injuries would be regarded as permanent.”[16]
[16]
42 The plaintiff was examined by Dr Amanda Sillcock, occupational physician, on 20 July 2009. Whilst Dr Sillcock appeared to accept that the plaintiff’s symptoms were physical in origin, she did not express a firm opinion as to the cause of the plaintiff’s symptoms.
The Defendant’s Medical Material
43 Dr Andrew Miller, a general practitioner, examined the plaintiff on three occasions. On 24 November 2005, he expressed the opinion that she had suffered a chronic partially incapacitating injury to her lower back, lower limbs and left forearm. On 29 November 2005, he reported that the plaintiff’s condition had stabilised. On 2 May 2006, he reported that the underlying pathology responsible for the plaintiff’s symptoms was a soft tissue contusion and strain injury to the back, lower limbs and left forearm, as well as some degree of post-traumatic stress.
44 Dr Tony Kostos, rheumatologist, examined the plaintiff on 20 September 2006, at which time he expressed the opinion that it was difficult to suggest any local pathology as being a cause of the plaintiff’s symptoms having regard to the presence of widespread tenderness over a considerable area of her body. He commented, however:
“She does give a history of leg pain and certainly this would be consistent with sciatica and she did have some discomfort on the sciatic nerve stretch testing, although it was concerning that she noted a single sensation within the knee bent. However, I could not exclude the possibility that she does have very low-grade left sciatic pain.”
45 Dr Kostos was not of the opinion that the plaintiff’s symptoms were emanating from her sacroiliac joint.
46 In a further report dated 1 April 2009, Dr Kostos:
• expressed the opinion that the plaintiff was not suffering from Complex Regional Pain Syndrome Type 1; • accepted the incident as being a significant contributing factor to the development of the plaintiff’s symptoms; • opined that the plaintiff was suffering from chronic regional pain syndrome and that her prognosis was poor. 47 Mr Geoffrey Klug, neurosurgeon, examined the plaintiff on 25 May 2007. He opined that it was difficult to define the exact nature of the plaintiff’s disorder. He commented, however, that the plaintiff appeared to be a genuine person, and accepted that she suffered from chronic pain in her low-back which spread to the region of each hip. He expressed difficulty in defining the precise diagnosis for the plaintiff’s symptoms, however.
48 In a further report dated 11 May 2009, Mr Klug expressed the opinion that:
•
The plaintiff probably suffered soft tissue injuries in the region of her low- back.
•
That whilst her short-term prognosis was guarded, there was every chance that her long-term prognosis was favourable.
•
That the plaintiff had suffered chronic pain which was difficult to explain on a physical basis and that functional factors were playing at least some role in her current presentation.
Findings
49 There is no suggestion that the plaintiff presents otherwise than as a genuine person who suffers from significant symptoms of pain. The issue which is raised on behalf of the defendant is that the precise source of the plaintiff’s pain has never been identified and that in these circumstances the plaintiff has not established that she suffers from symptoms which are organically- based, nor has she identified to the requisite degree the body function said to be impaired by her symptoms. Finally, it is submitted that the evidence does not establish that the plaintiff suffers from a severe psychiatric condition or disorder.
50 I am of the opinion that the plaintiff’s treating doctors, particularly those who have had the opportunity to examine her regularly and assess her progress over a considerable period of time are best placed, given the complexity of the plaintiff’s presentation, to express opinions as to the cause of her symptoms and her prognosis.[17] I prefer their evidence to that adduced on behalf the defendant primarily for this reason. It is clear in this regard that Dr Sutcliffe, Dr Blombery, Dr Barbour and Dr de Graff are all of the opinion that the plaintiff’s symptoms are not exclusively caused by, but are predominantly caused by, organic factors.
[17] Particularly Dr de Graaff, given his management of the plaintiff as the head of a Pain Management
51 Whilst I accept that the plaintiff has suffered an emotional injury associated with her condition which commenced in the form of a post-traumatic stress disorder from which there has been some recovery, there has never been a suggestion by any psychologist or psychiatrist who has treated or assessed the plaintiff that non-organic factors are primarily responsible for her symptoms of unremitting pain. In the circumstances, I do not accept that the plaintiff’s emotional injury is responsible for causing her pain and disability and I am satisfied that the plaintiff’s symptoms stem primarily from the organic trauma suffered by her in the incident.
52 I interpret the reports of Dr Blombery and Dr de Graaff as identifying the plaintiff’s low-back and pelvis as being primarily responsible for her symptoms.[18] This position is consistent with that adopted by Mr Lanagan and also by Ms Kinch, a sport physiotherapist, who, in a report dated 22 June 2006, noted a presence of significant weakness and lack of stability in the lumbar spine and pelvis.
[18] The focus of Mr Blombery’s treatment was the plaintiff’s lumbar spine. The infusion he administered
53 Whilst a number of the plaintiff’s treating doctors have also implicated the plaintiff’s left hip as a source of her symptoms, there is a continuing theme within the medical opinions which support the plaintiff’s symptoms as largely emanating from her low-back.[19] I note, in this regard, that the plaintiff’s evidence in the course of the proceeding repeatedly identified her low-back at the junction of the pelvis as being that which is the most troubling for her.
[19] In employing the term “low-back” I include the sacroiliac area and I consider this area to represent one area of body function appropriately described as “the low-back”.
54 Whilst Dr Sutcliffe described the plaintiff as suffering from a major direct injury to her left hip, left buttock, left thigh region and lower back region, she was clearly of the opinion that the plaintiff’s injury to her left hip caused a significant disability to her. There is disagreement between the opinions of Dr Barbour and Dr Sutcliffe as to the relevance of the plaintiff’s left hip injury as being a cause of her symptoms. I have already commented that I am satisfied that Dr de Graaff identified the plaintiff’s primary injury as being to her low- back and pelvic region. I interpret his report however as accepting that the plaintiff also suffers from continuing organic problems from the injury to her left hip. On balance, I prefer the opinions of Dr de Graaff and Dr Sutcliffe that the plaintiff’s left hip remains a problem for her, to that of Dr Barbour. I am satisfied however that the primary source of pain and disability from which the plaintiff suffers stems from the injury to the plaintiff’s low-back in the particular area of the sacroiliac joint.
55 In the circumstances:
(i)
I am satisfied the primary responsibility for the chronic pain from which the plaintiff suffers is the organic injury she suffered to her low-back and that the cause of the plaintiff’s admitted incapacity for work is the organic injury suffered by her to her low-back.
(iii)
I am satisfied of the permanence of the injury, having regard to the opinion of Dr de Graaff on this issue in combination with the chronicity of the plaintiff’s symptoms and her continued requirement to make use of powerful narcotic medication to control her symptoms of pain.
(ii)
I am not satisfied that the plaintiff’s disability is caused by the presence of any emotional injury which the plaintiff has suffered which could be appropriately described as being “severe” for the purposes of s.134AB(16)(iii).
Conclusion
56 I am satisfied that the plaintiff has identified that the organic injury suffered to her low-back is the primary cause of the pain and incapacity from which she suffers, and it is this injury which is responsible for the admitted incapacity of the plaintiff to engage in employment which would be productive of income which exceeded 60 per cent of that which the plaintiff would have been capable of earning from personal exertion in employment which most fairly reflected her earning capacity had the injury not occurred.
57 In circumstances in which I have found that the plaintiff has suffered an impairment of body function, the effect of which is to occasion a permanent loss of income of greater than 40 per cent of her gross income had her injury not occurred, the plaintiff is entitled to an order granting her leave to commence proceedings to recover damages for both pain and suffering and loss of earnings by reason of the injury sustained by her in the course of her employment with the defendant on or about 14 June 2005.
58 I will hear counsel as to the precise form of the orders sought and as to the issue of costs.
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| Team. |
PCB 97 cord stimulator; I interpret the comments repeatedly made by Dr de Graff as to the plaintiff’s low-back
symptoms as indicating that it is his view that this is the source of the plaintiff’s primary problem.
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