Sarellis v Consolidated Property Services (Australia) Pty Ltd
[2014] VCC 119
•18 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05444
| TASOULA SARELLIS | Plaintiff |
| v | |
| CONSOLIDATED PROPERTY SERVICES (AUSTRALIA) PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 January and 3 February 2014 | |
DATE OF JUDGMENT: | 18 March 2014 | |
CASE MAY BE CITED AS: | Sarellis v Consolidated Property Services (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 119 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – back injury – loss of earning capacity and general damages
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), 38(e) and (f)
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227
Judgment: Leave granted to the plaintiff to bring common-law proceedings for pecuniary loss damages and general damages in respect to back injury suffered by her on or about 17 September 2009 during the course of her employment with the defendant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms K Galpin | Zaparas Lawyers |
| For the Defendant | Mr S A Smith | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff was born on 20 January 1950 in Greece and is aged sixty-four years.
2 The plaintiff worked as a cleaner for the defendant, Consolidated Property Services (Australia) Pty Ltd, or its predecessor, for twenty years at 101 Collins Street, Melbourne. She was employed by the present defendant from about 2005.
3 In the years leading up to 2009, she usually worked no more than 12.5 hours per week or 2.5 hours per day for 5 days. She swore in this proceeding that the 2.5 hours per day involved working at a fast pace in order to complete the prescribed duties. These duties involved vacuuming, dusting and emptying rubbish bins in various offices, common areas and a kitchen on one floor. She stated the hardest part of her job was removing the rubbish, which included lifting bags of rubbish weighing either 10 to 15 kilograms or 5 to 15 kilograms. Also, she was required to manoeuvre wheelie bins which were approximately 1.2 metres high and weighed from about 40 kilograms. She had to pull these bins down to a lift and leave them with the other bags of rubbish.
4 In the days and weeks leading up to 17 September 2009, she felt some pain in the low back, and on 17 September 2009, whilst pulling a bin, she suffered a sudden onset of low-back pain. She was shaking and an ambulance was called, whereupon she was taken to St Vincent’s Hospital. She was given painkillers and discharged that night to see her general practitioner.
5 On the following day, she saw her general practitioner, Dr Gouras, who has been her treating practitioner ever since.
6 Since September 2009, she has obtained no lasting relief from her low-back pain and she has attempted to return to work on some seven occasions without any lasting success. On the last occasion, she worked for approximately one hour, but could not continue. She has remained off work and is presently in receipt of a Disability Support Pension and a Carer Allowance with respect to her husband’s longstanding back injury.
7 The plaintiff brings this claim pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to commence proceedings at common law with respect to the back injury for both pain and suffering and loss of earning capacity. She primarily relies on paragraph (a) of the definition contained in ss37, being a permanent serious impairment or loss of function of the low back with referred pain into the right leg, but alternatively, relies on paragraph (c) of the definition, being a permanent severe mental or permanent severe behavioural disturbance or disorder.
8 The physical injuries relied upon are lumbar disc desiccations and ruptures involving the upper four lumbar discs, causing right-sided sciatica. Alternatively, the physical injury is an aggravation of the degenerative changes at the four levels referred to.
9 The defendant concedes the plaintiff suffered injury in the course of her employment at the time and place alleged, but submits:
(a) The injury is a temporary aggravation of pre-existing degenerative change.
(b) Alternatively, the physical injury was complicated by the onset of psychological sequelae soon after the physical injury, such that the Court should not be satisfied that the physical injury, by itself, has a substantial organic basis for the pain and suffering consequences relied upon,[1] and/or that the physical consequences do not meet the threshold of “serious” within the meaning of the statute.
[1]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 and Fokas v Staff Australia Pty Ltd [2013] VSCA 230 at paragraph 5
(c) As a consequence of the above, “disentangling” is impossible.
(d) Alternatively to (b) and (c), the claim pursuant to paragraph (c) amounts to an aggravation of pre-existing psychiatric injury, the consequences of which are not “severe” within the meaning of the statute.
(e) In any event, even if the plaintiff is significantly incapacitated as a result of a physical or a psychiatric injury, the consequences are not serious or severe, as the case may be, because the plaintiff does not need the income and lives adequately within the two pensions received on behalf of her husband and herself and has no outstanding debt.
(f) Finally, the plaintiff’s credit is impugned by, for example, claiming an increase in weight from 70 to 95 kilograms and/or denying a pre-existing psychiatric injury.
10 The plaintiff, on the other hand, submits:
(a) There is a substantial organic base for the pain and suffering consequences relied upon.
(b) The physical pain and suffering consequences satisfy the statutory criterion of “serious”.
(c) Therefore, there is no need for any disentangling of the physical contributions to the pain and suffering from the psychological contributions.
(d) In any event, the plaintiff has proved that she has satisfied paragraph (c) by way of the precipitation of a permanent severe mental or permanent severe behavioural disturbance or disorder.
Physical injury
11 The plaintiff has worked for almost twenty years in the same building as a cleaner and, in the last few years of her employment, was working 12.5 hours per week.
12 It is not in dispute that on 17 September 2009, she suffered an acute incident in the course of her employment and was subsequently taken by ambulance to the St Vincent’s Hospital. She has thereafter been under the treatment of her general practitioner up until the present time.
13 Dr A Gouras gave viva voce evidence and was cross-examined. He also tendered into evidence four reports dated 28 September 2011, 21 November 2011, 20 June 2012 and 13 January 2014 (Exhibit F). In his latest report, he recorded the following:
(a) The plaintiff suffers ongoing and persisting lower back pain.
(b) There are frequent aggravations of the back pain precipitated by standing, bending or lifting even small weights.
(c) The patient’s treatment has been conservative and she has undergone rehabilitation and pain management programs in the past.
(d) Her present medication consists of painkillers, anti-inflammatories, anxiolytics, anti-depressants and anti-ulcerants.
(e) In the accident occurring on 17 September 2009, the plaintiff sustained:
(i)severe musculoligamentous injuries in her lumbosacral area;
(ii)aggravation of her pre-existing but symptomless chronic spondylosis;
(iii)disc lesions in the lower levels of her lumbosacral region.
(f) As a result of her (physical) injuries and her inability to be active and resume work, she has become chronically depressed and anxious with persisting symptoms of depression and anxiety attacks which have become chronic and have not responded to treatment so far.
14 Moreover, in cross-examination, he did not agree with the proposition that such cases of aggravation had the usual course of resolving themselves and stated that it was not always the same.[2] He was further cross-examined to the following effect:
Q.“Am I right in thinking that the pain that one would experience by way of a physical cause such as degenerate discs in the back being stirred up, the pain one feels from that it’s impossible to distinguish it from the pain that one might experience by reason of these emotional factors, the anxiety and depression aggravating or - - -?---
A.But I said that – I said that the emotional factor plays a big role in this case, as in every other case, whether it’s a headache or something. But here I have to say my opinion about what I believe in this long term case, because it’s five, six years ago, I believe that the physical component is still there, the sprain, a chronic sprain. And but the smallest thing aggravates the pain. But at the same time she is emotionally affected by the case and she is depressed and very volatile emotionally-wise. But I have not – I have not observed that when she’s more depressed she comes here – she comes to the surgery for treatment for pain. It’s some sort of separate picture the emotional factor with the pain, if I can make that demarcation mark.”[3]
[2]Transcript (“T”) 74
[3]T78, L14−T79, L2
15 Dr Gouras referred the plaintiff to Dr Vaidya Bala, a consultant physician in rehabilitation medicine at the Epworth HealthCare Centre. He first saw the plaintiff on 16 August 2010 and thereafter, on 18 October 2010, recommended an eight-week outpatient based pain management program with periodic review. She was then taking Panadol Osteo, two tablets three times a day, and also Aurorix, 300 milligrams twice daily, for her depression.[4] On 20 December 2010, the plaintiff reported that she was gaining quite a bit from the pain management program. However, her pain levels seemed to be unchanged.[5] On 14 February 2011, she was discharged from the program with a prescription to continue with her analgesia for pain, along with the Aurorix.[6]
[4]Exhibit D, Plaintiff’s Court Book (“PCB”) 38
[5]Exhibit D, PCB 39
[6]Exhibit D, PCB 40
16 Thereafter, the plaintiff’s general practitioner referred her to orthopaedic surgeon, Mr Brian Barrett, who saw her on 29 September 2011. She gave a history that on 17 September 2009, whilst moving a group of rubbish bins, one of which was unexpectedly heavy, she experienced a sudden attack of lower back pain of such severity that she could not move. He further noted that since that time, the plaintiff had been effectively off work continuously, although she had made some seven attempts to return to light and part-time work, none of which were successful.[7] Her symptoms were lower back pain that radiated to both buttocks, particularly on the right side, pain that radiated into the right lower limb, the right posterior thigh, and calf as far as the right ankle region, associated with some pins and needles in the distal portion of her right lower limb.
[7]Exhibit G, PCB 65
17 On examination, Mr Barrett noted moderate lower lumbar tenderness and the straight leg raising test was 60 degrees on the left, but only 40 degrees on the right. He further noted that all lower limb reflexes were present, although the right knee jerk reflex was very depressed. Sensory testing throughout the lower limbs was not of a dermatome pattern.[8] He examined an MRI dated 3 December 2009, but considered that it was of very poor quality. In any event, he recorded:
“Most lumbar discs appear to be desiccated although this is somewhat less at the L5-S1 disc level …
There is marked osteoarthritic changes present in the posterior facet joints, along with short pedicles have allowed narrowing of the intervertebral foramina at the central 3 lumbar levels.”[9]
[8]Exhibit G, PCB 66
[9]Exhibit G, PCB 66
18 Mr Barrett arranged for a further MRI scan to be carried out on 2 November 2011. He considered that the L5-S1 disc was normal or near normal, but the other four lumbar discs were all desiccated and there was bulging of the discs into the intervertebral foramina, particularly on the right side (“and precisely where her pain and ongoing symptoms are arising”).[10]
[10]Exhibit G, PCB 67
19 As a result of his examination and the MRI, he considered the injury to be one of ─
“…sustained significant and ongoing symptoms of lumbar disc desiccations and ruptures involving the upper 4 lumbar discs, particularly due to disc bulging into the right intervertebral foramina, causing her right sided sciatica.”[11]
[11]Exhibit G, PCB 67
20 Further, he considered her history of injury, the dramatic and sudden severe nature of her symptoms and incapacity, and the later lack of progress of her symptoms and disability, were all consistent with the injury and the subsequent clinical and radiological investigations.[12] At that stage, he thought that the plaintiff was ─
“…quite unfit to return to even light and limited work and she states that she has been unsuccessful in 7 attempts to return to light work over the past year or so”.[13]
[12]Exhibit G, PCB 67
[13]Exhibit G, PCB 67
21 Further, he stated:
“Lumbar disc ruptures of this severity have no capacity to heal or repair and it is clear that they were initiated by the work incident of 17/9/2009.”[14]
[14]Exhibit G, PCB 67
22 Finally, his prognosis was as follows:
“Prognosis for lumbar disc ruptures of this nature to heal is very poor, they have no significant capacity to repair and it is likely that her symptoms and disability will continue into the foreseeable future.”[15]
[15]Exhibit G, PCB 68
23 The plaintiff has medico-legal support in this regard from Mr Thomas Kossmann, orthopaedic surgeon, who saw the plaintiff on 10 December 2013. His diagnosis was one of ─
“1Discogenic back pain on the basis of L1/2, L2/3, L3/4 and L4/5 disc desiccations with bulging of the discs into the right intervertebral foramina, causing lower back pain and right sided sciatica;
2Moderate L3/4 and L4/5 facet joint arthropathy;
3Adjustment Disorder with Mixed and Anxiety and Depressed Mood and a Pain Syndrome with Psychological Factors.”[16]
[16]Exhibit N, PCB 97
24 Mr Kossmann further opined:
“Since the incident, her symptoms have gradually improved. Because of her persistent symptoms, Ms Sarellis has been unable to engage in the domestic activities of daily life and she has been unable to participate in her recreational hobbies including walking and dancing. Because of her chronic symptoms, Ms Sarellis has developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood.”[17]
[17]Exhibit N, PCB 97
25 Further, he stated:
“Ms Sarellis’ prognosis is poor. Although her symptoms have gradually improved since the incident on 17 September 2009 they persist. The natural history of lumbar disc desiccation with bulging of the discs into the intervertebral foramina, causing chronic lower back pain and right sided sciatica is of a progressive nature.”[18]
[18]Exhibit N, PCB 97
26 Further, he considered that the physical condition consisting of lumbar disc desiccation had a natural history of being progressive.[19]
[19]Exhibit N, PCB 99
27 The plaintiff was also examined by consultant neurosurgeon, Mr David Brownbill, on 17 December 2013.[20] He took a history consistent with the incident attested to by the plaintiff. On examination, he noted:
“She was alert and cooperative without apparent embellishment. … Active thoraco lumbar spinal movements were all a half of full. There was no lumbar spine tenderness or guarding. … Examination of the lower limbs showed power to be full and equal in all muscle groups. Reflexes were present and symmetrical. Sensation was decreased over the inner and outer aspects of the right thigh (not in specific nerve or nerve root distribution).”[21]
[20]Exhibit O
[21]Exhibit O, PCB 106
28 Mr Brownbill further stated that radiological investigations had demonstrated longstanding multiple level lumbar spine degenerative changes, but without significant disc prolapse. Further:
“Noting that she did not have any previous back pain with the onset of severe back pain during the described heavy pulling and twisting work activity of 17 September 2009 and a later demonstration of lumbar spine degenerative changes, I consider this lady in that work activity on probability sustained aggravation of the previous asymptomatic degenerative changes giving rise to low back pain and later by referral left leg pain.”[22]
[22]Exhibit O, PCB 107
29 Mr Brownbill further considered that the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.[23] Further, with respect to her physical capacities, he stated:
“Whilst from a physical neurosurgical point of view she would be regarded as capable of attempting work activities avoiding those actions I consider that noting her age of 63 years, her work activity always having involved physical components, her lack of command of the English language and her described ongoing activity related pain, on probability she would not be able to perform any work for which she is suited in an ongoing or reliable fashion.”[24]
[23]Exhibit O, PCB 107
[24]Exhibit O, PCB 108
30 For completeness, it should be noted that the plaintiff had been referred to orthopaedic surgeon, Mr Jonathan Hooper, in about December 2009. She brought with her CT scans which ─
“…shows she has lumbar degenerative disc disease, but there is no significant disc protrusion or any pathology that would make [him] think she would benefit from surgery.”[25]
[25]Exhibit H, PCB 70.1
31 Apparently, Mr Hooper consulted the plaintiff on three separate occasions, once in 2004 and twice in 2009. On the first occasion, she complained of a painful shoulder that she said developed in 2002 on the left side. She had attributed this injury to her work as a cleaner, but she was continuing to work and had not ceased work on account thereof. Then when seen in 2009, she gave the history of the incident to her back and was last seen in December 2009. At that stage, she was complaining of leg and back pain and she had ceased work on 17 December 2009 as a cleaner. He does not seem to have had a history of the precipitating incident on 17 September 2009. It would appear that he is not sure as to whether the work in general, or that incident, was responsible for the injury. In any event, he stated:
“It can be argued that her work aggravated these symptoms, but as she has ceased work it can also be argued that this aggravation has long since ceased.”[26]
Mr Hooper does not appear to pursue either argument.
[26]Exhibit H, PCB 72
32 Having seen the plaintiff in the witness box, I find that her history of constant pain since September 2009 is eminently believable, especially when one considers the pathology identified by Mr Barrett and Mr Kossmann. Equally, I am disposed to accept, given her 20 year work history at 101 Collins Street and her seven attempts at return to work after September 2009, that she found a return to work of an hour a day beyond her capabilities. Accordingly, I consider there is a prima facie case of serious injury, both with respect to economic loss and pain and suffering.
The Defendant’s evidence
33 The plaintiff was first examined by consultant occupational physician, Dr David Barton, on behalf of the defendant on 1 December 2009. He took a history of the onset of acute lower back pain on 17 September 2009. At that stage, he had for examination plain x-rays without the benefit of the subsequent MRI radiology. In any event, he considered the plain x-rays showed minor changes consistent with her age.[27] At that stage, his diagnosis was one of “mechanical lower back problem” and that her employment could be seen as the initial cause of her symptoms.[28] He considered that:
“…her condition would still be seen as materially contributed to by the [work] injury which had not resolved”.[29]
[27]Exhibit 1, Defendant’s Court Book (“DCB”) 3
[28]Exhibit 1, DCB 3
[29]Exhibit 1, DCB 4
34 Dr Barton thought she had a physical capability to undertake lighter duties for limited hours, as detailed in a worksite visit report following an inspection on 3 December 2009. There is no follow-up report from Dr Barton.
35 The plaintiff was thereafter examined by rheumatologist, Dr Daniel Lewis, on 19 April 2011 and 4 October 2011.[30] He took a relevant consistent history and noted that in September 2010 she was referred to the Epworth Rehabilitation Centre at Camberwell, where she commenced a multi-disciplinary rehabilitation program and attended for eight weeks. There was no change in her pain or function. When asked about pain, she indicated that it was in the sacral area, felt in the right buttock and thigh. She reported difficulties with personal care tasks and all tasks of daily living. She did no household tasks. At that time, he noted that she was taking Naprosan, 250 milligrams three times a day, and Panadol Osteo, three times a day, and was seeing her general practitioner every two weeks.
[30]Exhibit 3
36 On examination, Dr Lewis noted there was a minimal range of movement of the lumbar spine in all planes. Otherwise, he considered he examination normal. He noted an MRI dated 3 December 2009 “demonstrated multilevel disc degeneration with minor disc protrusion of the lower to[sic] levels without evidence for nerve root impingement.”[31] He thought at that time the worker had a chronic pain syndrome with features of learned helplessness and non-specific low back pain.[32] He further stated:
“There is a defined work incident which in all probability is the cause of the worker’s presentation. No ongoing pathological process can be identified. It is likely that psychological and social factors have contributed to the development of her chronic pain syndrome.”[33]
[31]Exhibit 3, DCB 19
[32]Exhibit 3, DCB 20
[33]Exhibit 3, DCB 20
37 When stating that no pathological process could be identified, Dr Lewis does not seem to comment as to whether the multi-level disc degeneration with minor disc protrusion could be a source of her pain. In any event, in his clinical opinion, he considered that the worker could not return to work in her pre-injury duties and hours and that her history suggested that she had no work capacity, but he thought there were no objective clinical signs to support the degree of pain and disability claimed.[34] Significantly, he did not think that the worker could return to work in modified pre-injury duties and/or hours, or for alternative duties and/or hours with the current or another employer.[35] His conclusion on the first occasion was as follows:
“Mrs Sarellis developed an episode of acute low back pain in the work incident described above. The natural history for improvement in pain and function has not occurred and she has developed a chronic pain syndrome and features of learned helplessness.
She has not responded to appropriate treatment interventions and the prognosis for recovery of function in the setting of an entrenched chronic pain syndrome is poor.”[36]
[34]Exhibit 3, DCB 20
[35]Exhibit 3, DCB 20
[36]Exhibit 3, DCB 22
38 Following this report, there was apparently a request for a further report dated 6 June 2011, but without further examination. In this report, Dr Lewis stated:
“There is no correlation between the clinical symptoms and radiological findings and no other clinical evidence for a defined anatomical or pathological condition.”
39 Once again, he does not seem to comment as to whether the radiological findings could be a source of pain. In any event, he stated:
“The worker has had persisting symptoms since the time of injury and therefore it cannot be concluded that her injury of nonspecific low back pain, has resolved.”[37]
[37]Exhibit 3, DCB 23
40 Further, he stated:
“The worker has had persisting symptoms since the time of injury and therefore it cannot be concluded that her injury has resolved. Therefore employment with Consolidated Property Services continues to contribute to the worker’s condition.”[38]
[38]Exhibit 3, DCB 23
41 The plaintiff’s counsel submits that on the face of this report, if accepted in its entirety, it would justify a finding of serious injury under paragraph (c) for a work-related total incapacity amounting to a chronic pain syndrome that has had its genesis in a frank physical incident.[39]
[39]See Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227
42 Apparently, this report was not acceptable to the defendant’s insurer and a further report was elicited on 4 July 2011, once again without a further examination. On this occasion, Dr Lewis stated:
“In my opinion any work related aggravation of her pre existing multilevel disc degeneration has resolved. The natural history of an aggravation of low back pain is for resolution and lessening of symptoms over time. The worker has developed more florid symptoms and increasing functional capacities over time in keeping with the development of a pain syndrome. No pathological process to explain the worsening of symptoms over time can be demonstrated.”[40]
[40]Exhibit 3, DCB 24
43 In this report, Dr Lewis does not state when any work-related aggravation of the pre-existing disc degeneration did resolve and why that point in time should be chosen. Also, he does not comment as to whether disc desiccation is not amenable to repair, as opined by Mr Barrett and Dr Kossmann. Once again, even if one accepts that it is a pain syndrome which is responsible for the incapacity, it would appear that it is still causally related to the precipitating incident in September 2009.
44 Dr Lewis then examined the plaintiff again on 4 October 2011. He took a history that ─
“…nothing has changed. She is in pain in the lower back and in the right leg. She has numbness in the right leg. She has pins and needles in the leg.”[41]
[41]Exhibit 3, DCB 26
45 Further, Dr Lewis took a history under the heading “Limitations on activities”, which I will not recite but, if accepted, would be prima facie evidence of a significant impairment. On examination, there was a minimal range of movement of the lumbar spine in all planes.[42] Further, he stated:
“I do not consider that her previous employment contributes to the worker’s current condition. No objective signs of a work induced injury has been defined. Her pain disorder has developed after her work-related injury.”[43]
[42]Exhibit 3, DCB 27
[43]Exhibit 3, DCB 28
46 I do not interpret this opinion that her Pain Disorder, as diagnosed by Dr Lewis, is not causally related to the original injury. In any event, there is no path of reasoning which identifies why the nexus should be broken. In any event, Dr Lewis considers that the worker cannot return to her pre-injury duties and hours and that she had no current work capacity, which would continue indefinitely.[44] In my view, this opinion is prima facie evidence of a permanent severe mental or permanent severe behavioural disturbance or disorder.
[44]Exhibit 3, DCB 28
47 Once again, there is a follow-up request for clarification of his report and he gave a further opinion dated 24 October 2011, but once again without further examination.[45] He repeated that his last examination revealed that the worker had no current work capacity. He went on to state further that:
“The worker does not have a physical capacity to work as a ticket seller or as a postal employee. In addition she does not have the language skills or education that would allow her to undertake this work.”
[45]Exhibit 3, DCB 30
48 Dr Lewis repeated that his opinion is unchanged that her current incapacity would continue indefinitely and the basis for such opinion was that she was not able to undertake a physical rehabilitation program that would provide her with the best opportunity to increase her level of function.[46] It may well be that this report also corroborates the plaintiff’s submission that the incapacity is physical as well as psychological.
[46]Exhibit 3, DCB 30
49 Thereafter, an opinion was sought from another rheumatologist, Dr Kevin J Fraser, who examined the plaintiff on 11 October 2012. He records the relevant history, particularly the pain management course at Epworth Rehabilitation Centre, which involved further physiotherapy, occupational therapy and psychological counselling.[47] He took a further history that ─
“…there was no improvement and she continues to have low back pain radiating to the buttocks/hips and down the legs to the calves, worse on the right, associated with numbness and paraesthesiae. Her symptoms are aggravated by prolonged standing, walking or sitting and by any attempt at lifting.”
[47]Exhibit 4, DCB 32
50 Dr Fraser further noted that there was an attempt to return to part-time light duties early in 2010, consisting of half to one hour per day, but that it was unsuccessful and, after a week or so, she was again put off work and has not returned to work since.[48] He noted on examination that all movements of the dorsolumbar spine were restricted with pain at the extremes of the range. Also, there was local tenderness at the lumbosacral junction and over the right sacroiliac joint. He thought there was significant overreaction on physical examination.[49] He quoted the MRI of the lumbar spine dated 4 December 2009 as showing “low grade degenerative disc disease” with shallow broad-based disc bulging at L2-3, L3-4 and L4-5 and mild facet joint arthropathy at L3-4 and L4-5. He then stated that a further MRI of the lumbar spine (no date given) again showed minor multi-level degenerative changes, including disc desiccation throughout.[50]
[48]Exhibit 3, DCB 32
[49]Exhibit 3, DCB 33
[50]Exhibit 3, DCB 33
51 Dr Fraser appears to agree with Mr Barrett that the changes referred to, probably the disc desiccation, “will not heal or repair as they are degenerative in nature”, but he considers that there had not been a rupture of the discs. In his opinion, the plaintiff would have had these changes, regardless of the work-related incident on 17 September 2009. He then states:
“If the latter caused any temporary symptomatic aggravation of the underlying degenerative changes it has, in my opinion, long since ceased.”[51]
[51]Exhibit 3, DCB 33
52 It would appear that Dr Fraser accepts that degenerative changes of the type relating to the plaintiff can be rendered symptomatic by an injury. In giving his opinion that those symptoms “long since ceased”, he does not appear to give a time or a basis relating to that cessation. He further states:
“To the doubtful extent that there is any organic basis for her symptoms it is reasonable for her to continue with the analgesic/anti-inflammatory drugs for the underlying degenerative condition.”[52]
[52]Exhibit 3, DCB 34
53 Once again, this would appear to confirm that the degenerative condition is producing pain which would justify the ingestion of analgesic/anti-inflammatory drugs. If that is so, the history would appear to be that that pain has been continuous since September 2009 and had as its genesis the incident referred to. Finally, he stated in his first report:
“Giving her the benefit of some considerable doubt as to the true extent of any incapacity as a result of the latter, she is at least fit for light work, not requiring bending and/or heavy lifting (greater than 5 kg).”[53]
[53]Exhibit 3, DCB 34
54 Dr Fraser again saw the plaintiff on 24 January 2014. Once again, he confirmed his earlier opinion to the effect:
“If there was any temporary symptomatic aggravation as a result of the work-related incident on 17 September 2009 when she developed severe low back pain as she attempted to move a very heavy recycled materials bin, it had, in my opinion, long since ceased.”[54]
[54]Exhibit 3, DCB 35
55 The acceptance in this statement that the plaintiff had developed “severe low back pain” and that this was contemporaneous with the attempt “to move a very heavy recycled materials bind” gravitates, in my opinion, against the symptomatic aggravation being necessarily temporary. The plaintiff has given a contrary history and I accept her as essentially a witness of truth. Nonetheless I accept the defendant’s submission that she was erroneous and/or misleading by stating that her weight had increased because of the injury. I do not consider that this was sufficient to negate her otherwise credit worthiness.
56 Further, the plaintiff conceded to Dr Fraser on the second occasion that she was “a little bit better” than when he last saw her, although she still did not have any pain free days.[55] Once again, he considered there was only a temporary symptomatic aggravation, but also, once again, it was “reasonable for her to continue with analgesic/anti-inflammatory drugs, as necessary, for the underlying degenerative condition, although the extent to which this is symptomatic is very doubtful”. In my view, this opinion is consistent with an underlying degenerative condition being sufficiently painful to justify the ingestion of the drugs in January 2014 and it has apparently been symptomatic since September 2009.
[55]Exhibit 3, DCB 35
57 In all the circumstances, I consider that the plaintiff has proved that she is totally incapacitated as a result of a substantial organic injury, being the aggravation and/or production of desiccation of her discs at four levels, as described by Mr Barrett.
58 Insofar as the predominant presentation could be explained by a chronic pain syndrome, I note that this was first diagnosed by Dr Lewis in 2011. If one accepts, as I do, Dr Lewis’s opinion on behalf of the defendant that the plaintiff is totally incapacitated as a result of a chronic pain syndrome, then, in accordance with the principles laid down in Veljanovska,[56] I consider that she has proved that she has suffered from a severe behavioural disturbance or disorder, the genesis of which was the precipitating incident in September 2009.
[56]Supra
59 Leave will be granted to the plaintiff for leave to proceed at common law, as sought, and I will hear the parties as to any consequential orders.
- - -
0
3
0