Saab v Victorian WorkCover Authority
[2024] VCC 751
•3 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-05202
| RAFIA SAAB | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 May 2024 | |
DATE OF JUDGMENT: | 3 June 2024 | |
CASE MAY BE CITED AS: | Saab v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 751 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the spine – paragraph (a) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; 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; Dwyer v Calco Timbers Pt Ltd (No 2) [2008] VSCA 260; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A J Macaskill | PRD Legal |
| For the Defendant | Ms S Fernando | Hall & Wilcox |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff in an incident which occurred on or about 18 January 2018 (“the accident”) while she was employed with MJ Degani Pty Ltd (“the employer”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
Relevant legal principles
3The application for leave to bring proceedings for damages is brought pursuant to part (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“serious injury means—
(a) permanent serious impairment or loss of a body function; …
… .”
4The physical impairment relied upon is the function of the spine.
5In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on or after 1 July 2014. As set out in s325(1), the physical impairment must be permanent.
6The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity” (as the case may be), which must be “serious” – that is, if the plaintiff is to succeed in her claim, she must prove, on the balance of probabilities, that the impairment or loss of body function, results in relevant “consequences” that are “when judged by comparison with other cases, in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8In determining the application, the Court:
(a) must assess whether the injury is a “serious injury” as at the time the application is heard;[2] and
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]Section 325(2)(j) of the Act
[3]See generally Hunter v Transport Accident Commission and Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
9Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to the physical impairment.
10By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder (as the case may be) arising from the injury, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
11In reaching my conclusion in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622
[5](2006) 14 VR 602
12The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit of Mr Anthoni Hanna, a director of her present employer, sworn on 3 May 2024. Mr Hanna was not required to attend for cross-examination.
13In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[6]The Plaintiff’s Further Amended Court Book was marked as Exhibit (“Ex”) P1; the Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
14The plaintiff was born in Beirut, Lebanon, in 1976. She is presently aged forty-eight years. She is separated from her husband. She presently lives with her younger son. She has one other adult son who does not live with her.[7]
[7]Ex P1, p7
15She completed the equivalent of Year 12 in Lebanon. She migrated to Australia in about March 1994, when she was aged eighteen.[8]
[8]Ex P1, p7
16After she migrated to Melbourne with her ex-husband, she was occupied by home duties for about ten years. She then worked in a number of jobs, including at a pizza-shop business, in customer service, and then as a barista for a number of years.[9]
[9]Ex P1, pp7-8
17She commenced working as a barista for the employer in about 2017, at a café in Fountain Gate Shopping Centre.
Other medical conditions or injuries
18The plaintiff did not have any significant issues with her back prior to the accident. At around the time she began working for the employer, she did experience some pain and numbness involving her neck and right shoulder, down to her right hand. These symptoms worsened following the accident.[10]
[10]Ex P1, p8
19She had mental health issues prior to the accident, in the context of going through a separation and divorce from her ex-husband. She has also had to deal with challenges involving her son’s health, which have contributed to her mental health issues. Those challenges are ongoing.[11]
[11]Ex P1, p8
The accident
20The plaintiff described the circumstances of the accident in the following way:
“My injury with .. .[the employer] occurred on or about 18 January 2018. There was no toilet at the café where I worked, so I used to go to use the public toilets at Fountain Gate Shopping Centre. On that day, I went to use the toilet and on my way back to the café, I slipped on liquid on the floor of the shopping centre …
I landed on my buttocks and had pain in my back and buttocks area. I also had some hand and wrist pain as a result of trying to break the fall with my hands. The symptoms I had been experiencing involving my neck and right shoulder down to the hand also worsened following the [accident].
…
After the [accident], … I finished for the day and then took a couple of days off. … I tried to keep working for … [the employer], but I was struggling due to back pain, and I decided to lodge a WorkCover claim [in] about April 2018. …
I attempted to continue working for … [the employer] on modified duties for a while. However, I felt that they were not supportive of my injury and WorkCover claim whilst I was attempting to continue working, and as a result I felt uncomfortable working there. …
About late 2020, I started working as a barista at another petrol station called Cranbourne South General Store. I have been there over two years now and have been promoted to a role of Head Barista. I currently work about 20 to 25 hours per week on average, although my hours vary from week to week.”[12]
[12]Ex P1, pp 8-10
21After the accident, the plaintiff started seeing Dr Lee, general practitioner (“GP”), along with other doctors at Casey Superclinic. She was referred for radiological investigations, which she understands showed damage to her spine. She has also occasionally attended St Mina Medical Centre in Hallam, which was the GP clinic she usually attended prior to the accident.[13]
[13]Ex P1, p9
22She tried physiotherapy with a physiotherapist called Mark Eibl in about July 2018. She also attended a chiropractor called Samantha Elia at Casey Superclinic for about two years. She stopped the chiropractic treatment as it was not really helping her and the pain kept coming back after the treatment. She recently resumed attending physiotherapy with Mr Eibl.[14]
[14]Ex P1, pp9-10
Evidence concerning the consequences of the Plaintiff’s injury
23The plaintiff swore two affidavits, the first dated 4 May 2023 and the second dated 19 April 2024.
24In summary, the plaintiff’s evidence as to the pain and suffering consequences which she presently experiences, is as follows:
Experience of pain
(a) her back injury is what has troubled her the most since the accident. Her lower back pain seems to be worse than her neck pain;[15]
[15]Ex P1, p11
(b) she experiences near-constant pain in her lower back. Flare-ups of worsening pain are triggered by things like heavy lifting, bending or prolonged sitting, standing or walking. When her back pain gets worse, it radiates into her buttocks, mainly on the right side, and down into her right leg. She also experiences some numbness down her right leg;[16]
[16]Ex P1, pp11 and 16
(c) although she continues to work, her back does get very sore while at work. She tries to avoid certain tasks which trigger worsening pain. In her current job, she has supportive managers who allow her to avoid heavier tasks, such as unloading stock from containers and handling heavy stock generally. If her duties do not change, and if her managers continue to be supportive, she thinks she will be able to continue with her current employment;[17]
[17]Ex P1, p11
(d) she stopped work for a couple of months from about August 2023, partly because of her back pain, but also because she experienced a flare-up of neck and shoulder pain, mainly on the right. She was also “struggling mentally” at this time;[18]
[18]Ex P1, p15
(e) she still experiences some mild pain in her right wrist area which comes and goes, but it does not trouble her much.[19] She still experiences some neck and right shoulder pain on and off, but this has improved since commencing osteopathy treatment in 2023.[20] She views her lower back pain as continuing to be her main problem; it is much worse than her neck, right shoulder or right wrist pain;[21]
[19]Ex P1, p16
[20]Ex P1, p16
[21]Ex P1, p16
Treatment and medication
(f) to manage her back pain, she does some home stretches that her doctor recommended. She also has been relying on painkilling medication to manage the back pain. She has used both Endone and Targin, but she felt like the Targin made her sick. Recently, she has being trying only to take Endone when she really needs it. She mostly tries to use Mersynofen for the pain, but when that does not work, she “resorts” to taking Endone. She does not like taking medication because of the effect she has seen in other people from taking too much painkilling medication. Also, the medications have caused her some stomach issues in the past;[22]
[22]Ex P1, p11
(g) she has tried some cannabinoid (“CBD”) oil and other products like balms and gels, which she mostly uses for her back. Sometimes she uses these on her neck and shoulder as well. She also uses heat packs, cold packs, Deep Heat and Voltaren Gel as needed;[23]
[23]Ex P1, p11
(h) in mid-2023, she started attending an osteopath named Dr James Beninati. She has consulted him about both the pain in her back and also pain in her neck and shoulders;[24]
[24]Ex P1, p15
(i) she has also started attending Chelsea Heights Medical Centre. She still likes to attend Dr Haidar, GP, at the Casey Superclinic, because she has been seeing him “for a while and he knows my history”;[25]
[25]Ex P1, p15
(j) in addition to continuing to do the home stretches recommended by her doctor, she has also started doing some Pilates exercises at home using online videos;[26]
[26]Ex P1, p16
Sleep
(k) her sleep is disrupted because of her back injury. She struggles to get comfortable, and sometimes she is woken up because of the pain. For example if she turns over in her sleep, this can trigger pain in her back, which wakes her up. She often feels tired during the daytime as a result of interrupted sleep;[27]
[27]Ex P1, p12
Activities of daily living
(l) she can manage showering and dressing by herself, but some self-care tasks such as shaving her legs, can cause pain. She also has difficulty putting on shoes and socks;
(m) she is able to drive in her local area, but now avoids driving longer distances because sitting while driving triggers pain after a while.[28] She also has difficulty putting on shoes and socks;[29]
(n) she is restricted in the activities that she can perform around the home. She can manage some light cleaning, as long as she does not push herself too much. She gets one of her sons to help her with tasks that she struggles with, such as changing bedsheets. Her sons now need to help her a lot more than they used to with the housework;[30]
(o) she manages shopping by avoiding too much lifting and carrying. Her sons help her with the heavier shopping;[31]
(p) she has moved to a property with no garden, so she no longer needs to do much outside. Before she moved, she struggled with gardening and outdoor maintenance;[32]
(q) she used to be very active and enjoyed exercising. She used to do free weights and exercises at the gym. She also performed exercise at home because her son had some home equipment. She used to go jogging or out for walks, such as the 1000 Steps in Ferntree Gully. She used to enjoy swimming and occasionally tennis. She is no longer able to exercise in the way she used to enjoy. As a result, she is no longer fit;[33]
(r) since the accident, even walking too fast while walking a dog triggers her pain.[34] She still tries to walk her son’s dog on some days, but not every day. She finds it difficult to handle the dog because he pulls on the leash, and she needs to walk faster than she would normally walk while trying to keep up with him. She manages to take the dog for a short walk, but she usually ends up with increased pain as a result. She sometimes takes him out at quiet times without a leash, which makes it easier for her to handle him;[35]
(s) she has put on a lot of weight since the accident and has suffered a loss of confidence as a result. She used to feel confident about her body, but now feels like she does not look good anymore. She has changed the clothes she wears, preferring to wear looser clothes now. She has tried some intermittent fasting to try and lose some weight;[36]
(t) she socialises less often now, as she does not feel like socialising anymore. She feels more comfortable managing her pain at home. She used to like dancing at parties; however, she went to a wedding in December 2023 and could not dance there. This made her feel sad. She feels like she has had to change many aspects of her life to adjust to her injury and the pain she suffers;[37]
(u) she does not feel interested in looking for a new partner. She thinks having a partner would come with expectations to do things and look after the house more. She feels more comfortable having her own space so that she can do things when she feels she is able to do them and not feel guilty about the times she is unable to do them. She thinks that having sex would be painful now, which is part of the reason why she does not seek out a new partner;[38]
(v) not being able to do the things that she used to be able to do gets her down. She does not think much about the future, because when she does, she worries about how she will be able to manage, especially if her condition gets worse. Being in pain makes her more irritable, which has impacted on her relationship with her sons;[39]
[28]Ex P1, p12
[29]Ex P1, p17
[30]Ex P1, p12
[31]Ex P1, p12
[32]Ex P1, p12
[33]Ex P1, p12
[34]Ex P1, p12
[35]Ex P1, pp17-18
[36]Ex P1, pp12-13
[37]Ex P1, p13
[38]Ex P1, p13
[39]Ex P1, p13
Reduction in work capacity
(w) she is currently working about thirty-eight hours per week at the Cranbourne South General Store. Her work mostly involves barista work. She checks and orders new stock over the phone, but is not required to lift anything heavy or do any cleaning work. For example when stock comes in, the delivery people bring it to a storage container outside, and if she needs boxes or stock brought in, she asks one of her co-workers to bring it in from the storage container. Her employer is understanding about her back condition, and her co-workers are also aware that she cannot lift much, so she is able to avoid handling boxes and stock;[40]
(x) she is now restricted in what she can do for work. Although she managed a restaurant with her ex-husband in the past, he did most of the record keeping, such as the accounts. Most of her work in recent times has been as a barista. She believes there is not much else she could do for work with her lack of qualifications. If she wanted to do something more manual, like a cleaning job, she believes that she would be unable to manage the physical requirements of such a role.[41]
[40]Ex P1, p16
[41]Ex P1, pp11-12
25Under cross-examination, the plaintiff gave the following relevant evidence:
(a) she worked as a barista for some time prior to commencing with the employer. It is the only job that she knows how to do;[42]
[42]Transcript (“T”) 14, Lines (“L”) 17-27
(b) after the accident, and after some time working as a barista and console operator at a service station, she travelled to the United States. That was in about September 2019. She agreed that the flight to the United States is quite a long flight. She said that during the flight, whenever she felt uncomfortable she would move around;[43]
[43]T16, L16-27
(c) she thought that the neck and right shoulder pain from which she suffered in about December 2017, was “just that [one] off”. She said that this pain was not troubling her all the time, but when she felt the pain, she went to the doctor for it, because it was “something new”;[44]
[44]T19, L11-28
(d) she was taken to a note which recorded a consultation with her GP on 27 November 2017. The consultation recorded pain in her right shoulder “down to hand”, which she had been suffering for a year. She agreed with this proposition. She said, “but it’s not, like, consistent pain”. She agreed that she had been suffering from this pain for four to five months and said “It comes and goes … like as in not always in pain”;[45]
[45]T20, L5-21
(e) she was referred for an x-ray of her neck and an x-ray and ultrasound of her right shoulder and wrist at about this time. She agreed it was most likely she had reported neck pain at about this time in November 2017. She said she thought it was “shoulder pain maybe and neck pain, yes”. She said she recalled being given restrictions in what she could do at work at that time;[46]
[46]T21, L1-29
(f) she was prescribed both Celebrex and Panadeine Forte at this time;[47]
[47]T22, L3-5
(g) she consulted her doctor again on 13 December 2017 in relation to her neck pain, which was reported as radiating into her right shoulder, right elbow and right wrist. She agreed that she had gone back to the St Mina Medical Centre in relation to this pain. She agreed that on that occasion, she had been prescribed Tramadol. She agreed that this was a strong medication;[48]
[48]T22, L9-26
(h) over the years following this consultation in December 2017, she had had problems with pain in her neck. She this evidence by saying “But I’ve never seeked (sic) like treatment for it besides just managing the pain at the time when it flares up … It went away after a while … Until recently, last year.”[49] It was suggested to her that in fact she had been suffering from constant pain in her neck, to which she replied, “Constant, no”;[50]
[49]TT22-23
[50]T23, L5-6
(i) she agreed that in her first affidavit, she had said that she continued at that time to experience neck pain every day. She said this was correct at the time. It was put to her that her neck pain has in fact continued on, even up until today. In response to this, she replied, “Like it comes and goes, it’s not consistent like my back pain, no”;[51]
[51]TT23-24
(j) she agreed that shortly after swearing the affidavit in May 2023, she was “quite troubled” by her neck pain. She agreed she consulted her GP in relation to this matter. She was taken to a medical note dated 18 August 2023, which recorded that her main concern was her neck. In response to this, she replied, “At that time it was”;[52]
[52]T24, L8-21 and T27, L29-31
(k) at this time, she was referred for an x-ray of her neck. She began seeing an osteopath, Dr Beninati;[53]
[53]T24, L24-26
(l) her first consultation with Dr Beninati was on 25 August 2023. She agreed that she reported her presenting problem to Dr Beninati as being pain on the entire side of her left neck, causing her to have headaches. She agreed that when she had pain, she had headaches. She agreed that if she was having pain every day, then at that time she was having headaches every day. She agreed that the pain was being referred into her left triceps at that time;[54]
[54]TT24-25
(m) at about that time, she reported that she was sleeping for six hours per night;[55]
[55]T25, L16-17
(n) when she first went to see Dr Beninati, she did not consult him about her lower back pain;[56]
[56]TT25-26
(o) she mentioned her back pain to Dr Beninati after a couple of consultations in relation to her neck;[57]
[57]TT25-26
(p) she went to see Dr Beninati about her neck because:
“It’s a new pain to me, like the pain was so much at the time. It wasn’t troubling me more [than the back]. I’m used to my back pain – my neck pain, I’m not used to it, because it comes and goes. It’s not always there.”[58]
[58]T26, L4-8
(q) her neck pain continued to trouble her throughout the latter half of 2023. She disagreed that the reason she continued to see Dr Beninati was because of her neck pain;[59]
[59]T26, L9-13
(r) she requested extra sessions with Dr Beninati because she wanted him to commence treating her back. She requested those sessions while he was still treating her for her neck pain;[60]
[60]T27, L18-26
(s) she agreed that in the latter half of 2023, her neck pain was her main concern;[61]
[61]T27, L29-31
(t) she said that she does not presently have any problem with headaches, nor does she experience any sort of radiating pain from her neck. She explained that the treatments with Dr Beninati on her neck had really helped. She said, “I don’t feel my neck pain … as much any more”;[62]
[62]T28, L1-8
(u) she still uses a memory foam pillow to help with her neck issues. She said that she finds it comfortable and also preventative to sleep on that pillow, because it puts her neck in the right position. In those circumstances, she finds that she will sleep better;[63]
[63]T28, L16-31
(v) she agreed that the medication she takes for her back pain also would help with her neck pain, “It helps the whole body”;[64]
[64]T29, L15-18
(w) she does not recall when she got the last prescription of Endone. The last time she used Endone was a few months ago;[65]
[65]TT29-30
(x) she did not dispute that it could be true that the last time she was prescribed Endone was in June 2023;[66]
[66]T30, L11-12
(y) in relation to her sleep, she finds it difficult to get comfortable in bed because of her lower back problem. She sometimes wakes up because of her lower back pain. She was taken to her evidence where she had told a medical practitioner that she could sleep six hours during the night. She agreed with this, but said, “Not continuous though … Not continuous … Six hours in total”;[67]
[67]T30, 13-23
(z) she was taken to a report of Dr Phillip Sheard, orthopaedic surgeon, in which it was recorded that she is able to get to sleep but is woken “at least once a week”. In response to this, she said, “Yes … like, when I’ve got the back pain, I usually wake up many times at night”;[68]
[68]T31, L19-30
(aa) she finds some aspects of her self-care difficult, including bending to shave her legs and difficulties with putting her shoes and socks on: “Yes, I have to sit down usually to put my socks and shoes [on]”;[69]
[69]T32, L17-26
(bb) it is not normally difficult for her to drive, only if she sits and drives for “too long”;[70]
[70]TT32-33
(cc) the plaintiff was shown some surveillance footage.[71] She agreed that the surveillance footage demonstrated she could get in and out of her car freely. She clarified, “I never said I don’t get in and out of the car freely, I said only when I travel long distances”. She clarifies that she does not usually have to drive long distances: “Like everywhere I need to go it’s usually within … half an hour … if I have to drive long distances I’m willing to but I end up with pain on the day … That’s what I’m trying to say”;[72]
[71] Ex D2; see TT68-69
[72]TT37-38
(dd) it was suggested to her that on the video surveillance footage she was able to bend over and dust something off her ankle. When it was suggested to her that she did this freely and without restriction in her movements, she said, “No, it doesn’t mean it’s not with out (sic) pain to do it … Sometimes I have to bend down”;[73]
[73]T38, L19-25
(ee) it was suggested to her that in the video surveillance footage, when she was bending, she did not appear to show any pain or discomfort. In response, she replied, “How would you know? … I did have pain at the time and discomfort”;[74]
[74]T39, L5-8
(ff) when she was questioned about whether or not she remembered that particular occasion of bending, she replied:
“I don’t really remember that particular time but I remember every time I try to bend down or do something like where I have to bend my back, I suffer with pain … Every time but I still do it, it doesn’t mean I don’t do it…”[75]
[75] T39, L9-14
(gg) it was put to her that in the video surveillance taken in July 2023, again, she was bending down into her car to retrieve something like a wallet. She agreed that this was true. It was suggested to her that again, she did not seem to be suffering any discomfort. To this she replied, “How can I show discomfort when I’m feeling the pain?”. In response, counsel suggested that pain might be evident in her facial expression or in the way she moved. She replied, “I’m in pain now, can you tell on my face and on my movements?”;[76]
[76] T39, L17-24
(hh) finally, it was put to her that she was able to bend into a car and retrieve something from that car. In response, she replied, “I’m not denying that, that’s right … I can do that but not without pain”;[77]
[77]T39, L25-28
(ii) she was taken to a portion of the video surveillance where she bent into her car to retrieve a vacuum cleaner from within it. She agreed she was able to bend into her car. It was suggested to her that she was able to take out the vacuum cleaner with ease. In response to this, she replied, “Not necessarily with ease but I can do it … it’s a tiny one anyway, it’s a Kmart one so that’s the reason why I took it with me to work”;[78]
[78]T40, L2-18
(jj) it was suggested to her that in a portion of video surveillance which showed her at a Pokies venue, she was able to be in a seated position for a period of forty-seven minutes without moving. She did not accept this proposition. When pressed on this, she repeated the fact that she disagreed;[79]
[79]T40, L19-24
(kk) it was suggested to her that she had said her back pain was so significant that she would do anything to get treatment for it. She agreed with this proposition. She confirmed that in her most recent affidavit, she had stated that her lower back pain is “near constant”;[80]
[80]TT40-41
(ll) she recalled being referred to a neurosurgeon, called Mr Rahim. She explained that she had been given a referral to Mr Rahim by her GP, Dr Ali Haidar. She said that she did not have the money to go to a specialist. She explained she had been put on a waiting list and was waiting for a call from the neurosurgeon’s surgery. She said that she has not received a call from that surgery;[81]
[81]T41, L19-30
(mm)she explained that the point of being on the waiting list was that she would be bulkbilled, rather than having to pay out of pocket for the consultation. She explained that it was her understanding she is still on the waiting list because she has not yet received a phone call from the specialist’s rooms. She said she thought she had followed up this matter with her GP at the Casey Superclinic. She believed she had spoken to Dr Haidar about it, but that the specialist had never called her;[82]
[82]TT41-43
(nn) it was suggested to her that she had not in fact followed up with Mr Rahim to try and obtain an appointment with him. In response to this, she replied, “Not correct”;[83]
[83]T46, L17-26
(oo) she clarified, in response to a question which asserted her neck was the main problem in the latter half of 2023, that it was her “neck and back”;[84]
[84]T46, L27-31
(pp) she agreed that she is still seeing Dr Beninati now. She said that she has seen him this year about her neck and about her back, and sometimes just about her back, not her neck;[85]
[85]T47, L7-23
(qq) it was suggested to her that she is still experiencing discomfort from her neck at the present time. In response to this line of questioning, she said:
“… I’ve got no pain whatsoever now with my neck today, and yesterday … because I’ve visited … [Dr Beninati], not last week, the week before. He worked on my back and on my neck and my back’s still in pain, but not my neck…”[86]
[86]TT47-48
(rr) when she was asked to explain how her neck is as she sits in court today, she replied:
“My neck is – like it flares up from time to time, depending – my work is like constantly looking down at the – like making the coffee … so after a period of time by the end of the weeks it’s all tensions in my shoulders and neck, but there’s no actual injury to my neck…”[87] (sic)
(ss) when asked how she manages her neck pain when it flares up, she replied:
“I rub some … [Rapigel] that I use on my back, I use that on my neck as well … Or Voltaren, whatever I’ve got at home, I’ve got heaps … And so I use that and by the next day I’m fine...”[88]
[87]T48-49
[88]T49, L3-11
(tt) she said that flare-ups of her neck pain are to do with tension created by postures that she has to adopt;[89]
(uu) she said that when she uses Rapigel for her back, the Rapigel takes her pain away “At that time only, but the next morning I wake up with the pain still”. When asked whether the difference between the neck pain and the back pain is that the neck pain can be resolved fairly easily with these types of treatments, but with the back pain, she engages in symptomatic relief, but it never goes away, she replied, “that’s right, it’s always there … the pain in my back is always there no matter what I do …”;[90]
(vv) she said that it is the same thing with the osteopath, in that he works on her neck, and his treatment can help her neck pain resolve. When asked what the result is when he works on her back, she replied, “It goes away maybe a little bit, the pain, but then … the next day it’s just back”;[91]
(ww) she has no days when her back is completely pain free;[92]
(xx) she agreed that she used to attend the gym on an “irregular basis”;[93]
(yy) she said that, if she drives for more than half-an-hour or forty minutes, this activity aggravates her back. She said that if she walks for more than half-an-hour it starts aggravating her back.[94]
[89]T49, L19-21
[90]TT49-50
[91]TT50-51
[92]T51, L12-17
[93]T51, L24-27
[94]T53, L9-13
26Under re-examination, the plaintiff gave the following relevant evidence:
(a) she did not regularly take the Voltaren medication that she was prescribed in October 2017. She did not regularly take the Celebrex and Panadeine Forte that she was prescribed in November 2017. She also did not regularly take the Tramadol that she was prescribed in December 2017. As at January 2018, prior to the accident, she was not taking any regular painkilling medication at all;[95]
(b) when she was working for the employer, she was required to lift and handle stock in that job, including pushing a trolley full of milk, or boxes of drinks or water for the fridges inside the shop. She would also collect those boxes from the stockroom, which was outside the shopping centre. There were probably twenty-four or thirty individual drinks inside each box. She was able to manage these duties prior to the accident;[96]
(c) to the extent she was required to do cleaning duties with her employer prior to the accident, she was able to cope with those duties;[97]
(d) the vacuum cleaner she was pictured handling in the surveillance footage weighed roughly 3 kilograms;[98]
(e) she did not find her attendances at the physiotherapist helped her much with her back pain;[99]
(f) when she is prescribed a box of Endone, she just uses the tablets when she is in extreme pain because she does not like the way it makes her feel mentally. She said that, “I just take one at a time and I’m always left with some more for later”;[100]
(g) she was taken to a note of her consultation with the GP on 18 August 2023 in relation to her neck pain. It was put to her that the note said, “Pain comes and goes”. She agreed that was something she would have told her GP at that time.[101]
[95]T55, L13-28
[96]T56, L1-12
[97]T56, L13-21
[98]T56, L22-28
[99]T57, L7-14
[100]T57, L17-26
[101]TT57-58
The lay witness – Mr Anthoni Hanna
27The plaintiff relied upon an affidavit sworn on 3 May 2024 by Mr Anthoni Hanna. Mr Hanna is a director of the plaintiff’s current employer. In his affidavit, Mr Hanna swore to the following relevant matters:
(a) the plaintiff has worked at the Cranbourne South General Store since about 2020;[102]
(b) he is aware that the plaintiff suffers from back pain. The plaintiff does not do tasks that would put strain on her back. She does not carry boxes of stock when they arrive, nor does she move stock around the store itself. She keeps her coffee station tidy, but does not do sweeping, mopping or other heavier cleaning duties;[103]
(c) the plaintiff has been informed that she can sit down from time to time when the store is not busy to take a short break if she needs it.[104]
[102]Ex P1, p76
[103]Ex P1, p76
[104]Ex P1, p76
The medical evidence
28There were numerous medical reports contained in the tendered material. Both parties provided reports from medico-legal experts. A précis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
29The plaintiff relied upon three letters from Dr Haidar, the plaintiff’s GP, the first dated 1 June 2021, the second dated 25 February 2024 and the third dated 6 March 2024. In the most recent letter, Dr Haidar made the following observations:
“… [The plaintiff] sustained a work-related injury in January, 2018. She was assessed by another GP at this clinic 6 weeks after the injury. She was diagnosed to have bulging discs at L4/5 and L5/S1 level with impingement of the nerve at L5/S1 level on the right side …
She experiences low back pain with intermittent flare up. The pain radiates … to her ankle and lateral side of the foot. She feels numbness in the same distribution of the pain. She was advised to avoid lifting heavy things, maintain correct posture, [do] different exercises and was commenced on simple painkiller. She was referred to physiotherapy and Chiropractor for structured exercises. It is likely that … [the plaintiff] would continue to experience intermit[t]ent flare up of her low back pain. However, with appropriate lifestyle changes she would be able to maintain overall good quality of life.
Presently, … [the plaintiff] experiences flare up of her low back pain intermittently since then and requires analgesia (Endone).
I would suggest … [the plaintiff] to avoid the triggers (for example, lifting/pushing/pulling heavy objects) with ongoing allied health support (e.g. physiothterapy/chiropractice).”[105] (sic)
[105]Ex P1, p46-47
30The plaintiff relied on one report from Dr Beninati dated 1 March 2024. Dr Beninati said that he initially began treating the plaintiff on 25 August 2023, when she presented to him with mechanical cervical pain. He said that on 4 September 2023, the plaintiff also mentioned to him that she was experiencing lower back pain. She reported to Dr Beninati that she had been seeing a chiropractor, but did not feel as if she was “sustaining any longevity” from the treatments. He said that since August 2023, he treated her another seven times, working on both her neck symptoms, as well as her chronic and lower back problems. Having referred to both the CT scan taken of the plaintiff’s lumbar spine on 20 March 2018 and the MRI scan of her lumbar spine taken on 21 September 2020, Dr Beninati set out his opinion that:
“… it is of absolute importance for … [the plaintiff] to undergo regular osteopathic treatment to address her lower back issues and the functional limitations (pain intensity, personal care, lifting, walking, sitting, standing, sleeping, social life, travelling) that she has been enduring as a result of her workplace accident.”[106]
[106]P1, p44
31He thought the plaintiff would also need a gym/swim program. He said that the back pain symptoms from which the plaintiff suffers “impact her both personally and professionally”. He said that her back pain intensity is rated as “fairly severe” at present. She can manage her personal care, but does need some help. He recorded that her back pain prevents her from lifting heavy things, although she can manage light to medium weights if they are conveniently positioned. He said this pain prevents her walking for more than about 2 kilometres and prevents her from sitting for more than one hour. She can stand as long as she wants, but it gives her extra pain. Due to the back pain, she is sleeping less than six hours. Back pain has restricted her social life and, as a result of that, she does not go out as often. She can travel anywhere, but he recorded that it “gives her extra pain”. He said that the plaintiff has reported to him that she does not like taking medication unless she is “desperate and in excruciating pain”. He recorded that the plaintiff’s GP had previously provided her with Endone and Targin. He said she only takes these medications sporadically.[107]
[107]Ex P1, pp43-45
32The plaintiff underwent a CT scan of her lumbar spine on 20 March 2028. In the report of that scan, the following matters were set out:
“At L4/L5, there is a moderate annular disc bulge and ligamentum flavum thickening with overall moderately severe central spinal canal stenosis demonstrated. There was no significant neural exit foramen narrowing. At L5/S1, a mild and broad based posterior disc protrusion is seen, but is not causing significant neural compromise. The thecal sac is small.
At the remaining levels, no discrete disc protrusion or severe neural compromise is demonstrated.”[108]
[108]Ex P1, p50
33The plaintiff underwent an MRI scan of her lumbar spine on 21 September 2020. In the report of that investigation, the following matters were noted:
“Level-by-Level Analysis:
L1/2 to 12/3: No disc bulging and no central canal stenosis.
L3/4: Broad-based central disc bulging with slight impression on the descending right L4 nerve root.
L4/5: Central disc protrusion slightly impressing on the anterior dural sac with associated minimal central canal stenosis.
L5/S1: Minimal central disc bulging, but no central canal stenosis.
Conclusion:
1.L3/4 central disc protrusion slightly impressing on the descending right L4 nerve root.
2. L4/5 central disc protrusion with minimal central canal stenosis.”[109]
[109]Ex P1, p52
34The plaintiff relied upon a report from Dr Roy Carey, consultant orthopaedic spine surgeon, dated 29 November 2022. That report had originally been provided to the defendant for the purpose of the plaintiff’s impairment benefits claim. In that report, Dr Carey diagnosed the plaintiff as suffering from “‘aggravation of’ lower lumbar spondylosis producing ongoing back and lower limb symptoms but in the absence of radiculopathy”. He thought that the plaintiff’s prognosis was for “continued discomfort into the foreseeable future”. He said that the plaintiff’s presentation was consistent with the workplace injury as described and the subsequent treatment that had been undertaken. He noted that the plaintiff has “constant symptoms in the lower back as described”. He said that her current situation was produced by the workplace injury. He described the plaintiff as being a “pleasant and genuine witness to her complaints with no evidence of embellishment”.[110]
[110]Ex P1, pp73-74
35The plaintiff relied on two medico-legal reports from Dr Phillip Sheard, orthopaedic surgeon, the first dated 4 March 2024 and the second dated 25 April 2024. In the first report, Dr Sheard described the fact the plaintiff had been involved in an accident at work on 18 January 2018, when she fell:
“… injuring her lower back with right-sided radicular type pain … MRI confirms degenerative disc disease along with a central to right-sided disc protrusion at L3/4 impinging on the descending right L4 nerve root. The injuries are consistent with the accident she describes. … .”[111]
[111]Ex P1, p57
36Dr Sheard said that the plaintiff “continues to have ongoing back pain with intermittent right radicular pain”. He said that “Her injuries can be considered stable and permanent”. He thought that the diagnosis of the plaintiff’s condition could be stated as follows: “Aggravation of lumbar spondylosis with central right sided L3/4 disc prolapse”. He thought that the plaintiff was likely to require ongoing physiotherapy, osteopathy treatment and painkillers. He could not see any requirement for surgery in the future. He thought that the plaintiff’s condition had stabilised. He said that as the plaintiff has had ongoing symptoms since 2018, he could not foresee her symptoms improving or worsening into the foreseeable future. He thought the accident of 18 January 2018 was the cause of the plaintiff’s condition. He thought it was likely that the plaintiff had lumbar spondylosis with minimal to no symptoms prior to the accident and that the accident caused a central right-sided disc prolapse at L3-4. He thought that the plaintiff would continue to be limited in terms of bending and lifting. He thought that repetitive bending and twisting would aggravate her injuries.[112]
[112] Ex P1, pp57-58
37In his second report, Dr Sheard was asked to review the report from Dr Francis Ghan, orthopaedic surgeon, and also to consider the content of surveillance footage that had been taken of the plaintiff. In response to reviewing this material, Dr Sheard stated:
“I still believe there is a substantial organic basis for the plaintiff’s reported pain symptoms and restrictions, which I believe are, on the balance of probabilities, contributed to by the ... [accident] on 18 January 2018.”[113]
[113] Ex P1, p62
38Dr Sheard observed that the plaintiff “came across as genuine and honest”. He noted that she has returned to work and in fact increased her hours up to thirty-eight hours per week. He said:
“… The history was consistent and the examination was normal, which is not unexpected for somebody who has back pain with occasional radiation of pain down the leg consistent with sciatic type pain. The surveillance video, which is approximately 17 minutes in length is absolutely consistent with what she told me about the injury. She is generally functionally unaffected, but does have pain on certain activities. She told me that driving and walking was normal and unaffected … I believe that it is completely consistent that she will be able to lift [a small vacuum cleaner] on an irregular basis, but I think it is likely she will get pain in her foot later on when she gets home at night. … .”[114]
[114]Ex P1, p61-62
39In response to the opinion expressed to the defendant by Dr Francis Ghan, Dr Sheard said the following:
“I would like to disagree with Mr (sic) Ghan’s opinion on the MRI scan. This was not reported as ‘normal’ and I would also like to point out that the MRI scan shows what the anatomy of somebody looks like being still in a scanner. It does not show any functional instability or any inflammation, so is not completely accurate. In view [of] this, this does not change my view and/or opinion expressed in my previous report, dated 4 March 2024.”[115]
[115]Ex P1, p62
40Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, provided a report dated 13 March 2024. In that report, Dr Sullivan reported that as a result of the accident, the plaintiff suffered, inter alia, from the following:
“1.Lower back pain; this pain predominantly presents in the right lumbar region extending towards the right gluteal region. It is a constant nagging, stabbing and aching pain and is rated on a numerical rating scale between 6/10 to 9 or more out of 10 with provocation experienced through lifting objects or weights in excess of around 5 kg, engaging in exercise, bending through the waist, reaching overhead and driving for extended periods of time. She notes that with severe exacerbations of her low back pain, this can also extend into the right calf and right ankle. … .”[116]
[116]Ex P1, p64
41Dr Sullivan reported that the plaintiff generally avoids taking strong analgesic medications. He said that she does use over-the-counter analgesics, such as paracetamol and ibuprofen, and occasionally takes oxycodone in the form of Endone, when her back pain is severely aggravated. The plaintiff has tried prescription CBD oil but found this to be of little benefit. He said that she had found topical CBD preparations to be of some benefit.[117]
[117]Ex P1, p64
42Dr Sullivan expressed his opinion that the lumbar spine condition had arisen directly as a consequence of the accident and may be considered to be an aggravation of a pre-existing injury. On that basis, he diagnosed the plaintiff as suffering from an aggravation of lumbar spondylosis resulting in post-traumatic chronic lower back pain. He thought the plaintiff’s condition was stable and he would not anticipate substantive further improvement in terms of her functional capacity or ability to engage in social, domestic and recreational activities. He said her prognosis is poor and that her chronic pain condition would likely continue into the foreseeable future. He thought that the plaintiff’s lumbar spine condition related entirely to the accident on 18 January 2018.[118]
[118]Ex P1, pp66-67
43The plaintiff relied on a discharge summary dated 13 September 2021 from Monash Health, which confirmed that she had attended on that date, presenting with “collapse in the setting of an acute on chronic back pain”. That discharge summary confirmed that the plaintiff had been suffering from chronic back pain for several years and had had an MRI scan with a GP at Casey Superclinic, “which had apparently showed a bulging disc”.[119]
[119]Ex P1, pp80-81
The Defendant’s medical evidence
44The defendant relied upon three reports from Associate Professor Trevor Jones, general surgeon, the first dated 22 May 2018, the second dated 12 September 2018 and the third dated 8 November 2018. In the second report, Professor Jones said that in his clinical opinion, the plaintiff’s condition was caused by wear and tear over the years, with her symptoms exacerbated by the fall which took place in January 2018. He thought that at that time, the plaintiff was capable of returning to her pre-injury duties and hours. He thought this transition should occur in a controlled way, such as a return-to-work program, which at that time she was currently on. Despite this, he thought that “her duties should be modified to minimise bending and lifting and she should be free to move around as sitting and standing aggravate her symptoms”.[120]
[120]Ex D1, pp12-13
45The defendant relied upon two reports from Dr Francis Ghan, consultant orthopaedic surgeon, the first dated 13 March 2024 and the second dated 22 April 2024. In the first report, Dr Ghan said that on physical examination, the plaintiff was observed to walk normally with no limp. He said her general body demeanour indicated no pain. He did not provide any analysis of why he reached this conclusion. He conducted a physical examination, during which he noted that the plaintiff’s lumbar spine alignment was normal. Lumbar spine flexion was to 90 degrees and extension was to 20 degrees. He thought she had good lumbar spine control. He noted that she was able to stand on her toes and able to stand on her heels.[121]
[121] Ex D1, p26
46Under the heading “Investigations”, in relation to the plaintiff’s MRI scan which was conducted on 21 September 2020, Dr Ghan noted only “Reported disc bulging at L4/5, L5/S1”.[122] Dr Ghan did not refer to the full text of the findings in the report of the MRI scan, particularly the conclusion that at the level of L3-4, the plaintiff’s spine showed a “broad-based central disc bulging with slight impression on the descending right L4 nerve root”. Nor did Dr Ghan make reference to the fact that at the L4-5 level, the observed central disc protrusion was “slightly impressing on the anterior dural sac with associated minimal central canal stenosis”.[123]
[122]Ex D1, p26
[123] See text of report set out at paragraph 33 above
47Without explanation, and despite the observations he did make about the MRI scan, Dr Ghan concluded, “Today’s examination demonstrated normal lumbar spine, and normal MRI scan”.[124] On the basis of this, Dr Ghan opined that the plaintiff is “fit to return to pre-injury duties and hours”.[125] He was unable to identify any cause for her low-back condition. He did not think that employment was a significant contributing factor to the plaintiff’s condition.[126] He thought that she did not need any further treatment. He said that her prognosis was excellent.[127]
[124]Ex D1, p27
[125] Ex D1, p27
[126] Ex D1, p28
[127] Ex D1, p29
48In his second report, Dr Ghan recorded that he had been asked to review certain documents and to provide a report about whether or not the content of those documents changed his medical opinion. There were seven documents referred to in Dr Ghan’s second report, none of which referred specifically to the injury recorded on the MRI scan at the L3-4 level and impinging on the descending L4 nerve. After reviewing the additional documents, Dr Ghan said that he had “no reasons to change my opinion expressed in my report dated 13 March 2024”.[128]
[128]Ex D1, pp32-33
49I note that Dr Ghan is alone in the opinions he has expressed, especially in relation to whether or not there is an organic basis for the plaintiff’s injury to her low back and also whether it is work related. I note that each of the other medico-legal experts presently or previously relied upon by the defendant, expressed no misgivings about these matters. Dr Carey specifically found that the plaintiff had suffered an organically-based, work-related injury to her spine and was a “pleasant and genuine witness to her complaints with no evidence of embellishment”.[129] As set out above, Professor Jones expressed a similar opinion in relation to the organic basis for the injury and the fact that it was work related.[130] I note that Dr Sheard reached a similar conclusion and also observed that the plaintiff “came across as genuine and honest”.[131]
[129]Ex P1, pp73-74
[130] Ex D1, pp12-13
[131] Ex P1, p62
50I note the fact that Dr Ghan described the plaintiff’s MRI scan as being “normal”, but that in expressing this opinion, he appears to have overlooked the findings which are set out in the report of that scan in relation to the L3-4 and L4-5 level of the plaintiff’s spine. I also note that Dr Sheard commented on this matter and specifically said: “I would like to disagree with Mr (sic) Ghan’s opinion on the MRI scan. This was not reported as ‘normal’... .”[132]
[132] Ex P1, p62
51The weight of the medical evidence on both sides, satisfies me that the plaintiff does presently suffer from a work-related, organic injury to her spine. In light of the observations I have made above, I reject the opinions expressed by Dr Ghan, which are neither supported by his colleagues, nor by the radiological scans and other documentary evidence in the case.
The Plaintiff’s credit
52During cross-examination, by reference to the surveillance video, the plaintiff was challenged in relation to some aspects of her evidence. For instance, she was cross-examined about her ability to drive, sit, walk and bend. She was challenged about whether or not her lower back pain was truly causing her pain in mid-2023 and continuing into late 2023. It was suggested to her that her neck pain had flared up in mid to late 2023, and that this was this problem which had caused her most trouble since that time. She was also challenged about the extent to which her sleep is interrupted.
53In response to these matters, the plaintiff provided cogent and compelling explanations. As to appearance in the surveillance video, she clarified that she had not said she could not do certain things, such as get into and out of a car, or bend down, but had said that these activities caused her pain. In relation to driving her car, she clarified that the problems occurred if she drove for more than about 30 minutes. She said that there are certain things she has to do, such as bending down, and she does them, but not pain free. In relation to the video of her lifting a vacuum cleaner out of her car, she pointed out that it was small and did not weigh very much.
54In relation to the extent of her neck pain from mid-2023 onwards, she explained that she had received osteopathic treatment for it, with good effect. She said that after she told the osteopath about her back pain, he had started to treat her for that. She freely admitted that from time to time, she still has treatment from the osteopath for her neck. She said that sometimes the treatment is in relation to her neck and back and sometimes just her back. She said that while the osteopath’s treatment for her neck had good effect, the effect of the treatment on her back was never long lasting.
55In relation to her ability to sleep, it was put to her that she had reported to a medical practitioner that she got six hours’ sleep at night. She clarified that this was not uninterrupted sleep. She said that for example, if she rolls over in bed at night, her back pain can wake her up. She said that once the back pain disturbs her sleep, she wakes up many times.
56Mr Hanna corroborated the plaintiff’s account of the modifications which have needed to be made to her present work environment, confirming the fact that the plaintiff’s duties have been substantially modified to accommodate her back condition. He also confirmed that by reason of her back pain, the plaintiff has been given permission to sit down and take rest breaks if the business is not too busy and she needs to do so.
57Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was an honest witness who appeared to be doing her best to provide accurate responses to the questions asked of her. Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating practitioners, consulted with the medico-legal assessors and provided evidence to this Court. Her account of events and the consequences from which she presently suffers is corroborated to a degree by Mr Hanna, who was not required to attend for cross-examination. In addition, the medical reports of the treating medical practitioners and the bulk of the medico-legal experts of both parties, contained accounts of her injuries and consequences, which were supportive of the plaintiff’s evidence about her experience of the pain in her back and its consequences for her.
58After a consideration of all of the evidence, particularly the evidence of the plaintiff, as corroborated by the evidence of Mr Hanna and the medical reports tendered to the Court, I consider that the plaintiff was a credible witness, in the sense of being a truthful person.
Stoic Plaintiff
59Having observed the plaintiff and considered all of the relevant evidence, I have formed the view that the plaintiff has been extremely stoic in relation to her back condition and has taken numerous steps to try and continue working and living her life as best she can.
60I find that despite the consequences of her injuries which she has suffered daily since the workplace accident, she has continued to work, albeit with modified duties, and as a result of those modifications, has been able to increase her hours to thirty-eight hours per week. Acknowledging the difficulty which some of the tasks which she would otherwise have to perform may cause her, the plaintiff obtains assistance with those tasks when necessary from her co-workers. She has an understanding and accommodating employer, who allows her to take breaks when necessary.
61I accept the evidence given by the plaintiff to the Court, that although there are some tasks which cause her pain, such as bending down, she often does them anyway, because she is unable to avoid those tasks. I accept her evidence that just because she does not grimace or otherwise look uncomfortable to an outward observer, that does not mean that she is not experiencing pain when she undertakes those tasks.
Compensable injury
62The details of the occurrence of the accident are not in dispute.
63Having considered all of the evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on each side, I am satisfied that as a result of the accident, the plaintiff suffered an organic injury to her spine in the form of an aggravation of previously asymptomatic lumbar spondylosis, with central right-sided L3-4 disc prolapse.
Is the compensable injury permanent for the purposes of the Act?
64Having considered the relevant reports and, in particular, the reports from Dr Haidar,[133] Dr Sheard,[134] Dr Sullivan[135] and Dr Carey,[136] I find that the plaintiff is likely to suffer from the consequences of the injury she sustained while working for the employer for the foreseeable future. Given this, I find that the injury is permanent for the purposes of the Act.
[133]Ex P1, p46
[134]Ex P1, pp57-58
[135]Ex P1, p66
[136]Ex P1, p73
Are the consequences to the Plaintiff of the workplace injury “serious”?
65Having considered all of the evidence, I find that by reason of the injuries sustained to her lower back in the accident, the plaintiff suffers from the following consequences:
(a) near-constant lower back pain with intermittent pain extending down her right leg and flare-ups of worsening back pain;
(b) occasional numbness down her right leg;
(c) restriction in her ability to perform her usual work activities and the need to modify her workplace activities and take rests as needed;
(d) the need to take painkilling medication in the form of Mersynofen, to apply therapeutic gels such as Rapigel and Voltaren to the affected area and to take strong painkilling medication such as Endone when the pain becomes unbearable;
(e) interrupted sleep due to being awoken by back pain, resulting in daytime tiredness;
(f) difficulty walking for longer than half-an-hour and difficulty with stiffness and soreness when driving for longer than thirty or forty minutes;
(g) an inability to undertake certain household tasks in the way she used to, such as bedmaking, shopping and cleaning. She also experiences difficulties with some aspects of her self-care, such as shaving her legs and putting on shoes and socks;
(h) an inability to participate in fitness and other recreational activities in the way that she used to, such as going to the gym, jogging and dancing. This has affected her level of fitness and enjoyment of socialising and makes her feel sad;
(i) experiencing increased irritability with her family due to her tiredness and experience of pain;
(j) a loss of interest in socialising or forming new relationships; and
(k) a loss of confidence in her body and appearance due to having put on weight as a result of her inactivity caused by her pain and back injury.
66In Haden Engineering Pty Ltd v McKinnon,[137] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of any injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of those consequences, as well as the disabling effect of the consequences on plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[138] Part of the process is for the Court to assess the nature and extent of the consequences which the plaintiff experiences. As set out above, ultimately the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgement. The weight to be attached to the plaintiff’s account of the consequences experienced will depend upon an assessment of the plaintiff’s credibility.[139]
[137](2010) 31 VR 1
[138]ibid at paragraph [9]
[139]ibid at paragraph [12]
67I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was a truthful and credible witness. I have also found that the plaintiff has been stoic in her approach to managing her injury, particularly in the form of her attitude to performing her work duties in a modified manner.
68The fact that the plaintiff has been prepared to keep working since the accident, is not a matter that tells against the granting of her application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):[140]
“… it would be unfortunate, and in my view wrongheaded, if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[140][2008] VSCA 260 at paragraph [3]
69As was observed in Hooley v Transport Accident Commission:[141]
“As we have already said, the age at which the applicant suffered his permanent injury is also a significant matter. As this Court said in Stijepic v One Force Group Australia Pty Ltd, when judging the consequences for a particular applicant by comparison with other cases, it is relevant to look at the likely period for which those consequences will be experienced … All things being equal, impairment consequences which an applicant will have to put up with for decades might well be judged more serious than the same consequences which another applicant may have to put up with for a much shorter period of time.”
[141][2019] VSCA 263 at paragraph [51]
70In Kelso v Tatiara Meat Co Pty Ltd,[142] the Court observed that:
“… chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain, requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[142]Supra at paragraph [199]
71An analysis of the evidence clearly demonstrates that by reason of the fact that she experiences daily back pain, the plaintiff’s injury has caused many consequences. These include her ability to obtain uninterrupted sleep, to enjoy her activities of daily living, including to exercise and recreate in the way that she would like, her ability to perform her domestic chores as she would like, her ability to work pain free and her willingness to pursue a relationship with a new partner. By reason of the plaintiff’s age and intention to keep working for a number of years, I find that she will continue to suffer from each of the consequences set out above for a lengthy period of time, which in turn means that these consequences are more significant for her than they might be for a plaintiff who is closer to retirement.
72Having regard to the relevant case law and by reason of the findings which I have made above about the consequences from which the plaintiff suffers as a result of her spinal injury, I am satisfied to the requisite standard, that those consequences are properly described as being “very considerable”.
Conclusion
73As set out above, I am satisfied, to the requisite standard, that as a consequence of the workplace events, the plaintiff suffered a “serious injury”, as defined in the Act, in the form an organic injury to her spine, namely an aggravation of lumbar spondylosis with central right-sided L3-4 disc prolapse. In those circumstances, the application is granted.
74I will hear the parties on the question of costs.
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0
8
0