Scott v Swan Hill City Council
[2010] VCC 1137
•19 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03004
| CASSIE PATRICIA SCOTT | Plaintiff |
| v | |
| SWAN HILL RURAL CITY COUNCIL | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 2, 3 and 4 August 2010 |
| DATE OF JUDGMENT: | 19 August 2010 |
| CASE MAY BE CITED AS: | Scott v Swan Hill City Council |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1137 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – causation – pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti and | Garden & Green |
| Mr G Pierazzio | ||
| For the Defendant | Mr W R Middleton SC and | Wisewould Mahony Lawyers |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 11 January 2001 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 Subsection 38(h) provides that psychologically based consequences are to be wholly disregarded for the purpose of an application pursuant to paragraph (a).
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, “when judged by comparison with other cases in the range of possible impairments may fairly described [at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
12 The plaintiff relied upon three affidavits and she was cross-examined. Mr Moloney, physiotherapist, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
13 The plaintiff is presently aged thirty, having been born on 10 July 1980. She lives at Nyah and is married with two children who are aged six and three.
14 The plaintiff has suffered lupus since early childhood. That condition involved an arthritic pain in her hands and she had trouble breathing and problems with the overall strength in her arms.
15 Having completed Year 12, the plaintiff began work at the Swan Hill Library (“the Library”) on a ‘Work for the Dole’ position in December 1999. In January 2000, she commenced work on a part time basis as an assistant librarian.
16 The plaintiff suffered injury on the said date when she struck her knee on an open drawer at the Library and jarred her back (“the incident”).
17 In the incident, the plaintiff fell in a forward motion. She hit her knee and lost some of the books and stretched to grab the side of the drawers to stabilise herself. She felt instant pain in her knee and also in her left lower back and the top of her buttock. In cross-examination, the plaintiff denied that her back hit the drawer when she stumbled, as had been recorded by Mr Moloney and also set out on the Claim for Impairment Benefits which was completed on the plaintiff’s behalf.
18 Over the days following the incident, the plaintiff’s pain got to nine or ten out of ten, causing her to seek physiotherapy treatment. Her back pain was severe and there was pain radiating into her left leg and buttock and she had difficulty weight bearing.
19 The plaintiff chose to go to a physiotherapist, Mr Moloney, rather than go to a doctor. She attended Mr Moloney on 24 and 25 January 2001. He provided treatment and a TENS machine.
20 The plaintiff paid for this physiotherapy treatment herself but ceased treatment due to financial constraints and she obtained a TENS machine for ongoing treatment. The plaintiff spoke to a receptionist at Mr Moloney’s rooms and advised she could not afford further treatment.
21 After she had seen Mr Moloney, the plaintiff reported the incident to Bruce Myers, the former Library manager, and it was noted on the register of injuries on 25 January 2001. She reported that the incident occurred on the morning of 11 January 2001 when she hit her right knee on a BM return shute. She suffered injury to her lower back, and her knees and lower back were affected. It was noted that the incident was witnessed by Karen Delmenico.
22 In cross-examination, the plaintiff said that she thought there was a period of time when she was away from work between 11 and 24 January 2005. She then said she could not recall. In re-examination, she said that she could not recall how much time she had had off.
23 The plaintiff agreed that her claim form set out 31 January 2006 as the date that she ceased work as a result of the injury. She then said there were occasions when she did take time off.
24 The plaintiff did not recover after the incident and she continued to have constant low back pain of varying degrees and leg pain for some months which gradually improved to the point of disappearing, as she deposed in June 2008.
25 However, in cross-examination, the plaintiff explained that the leg pain disappeared at times but did not go away. After the initial incident, her leg pain did alleviate to a certain extent and it went away altogether for certain periods, but then it would come back. It would disappear and, when the slightest thing happened, it would set it off again. Then it would go away and then it would be set off again. That was what she meant by gradually improving to the point of disappearing.
26 The plaintiff did not put in a WorkCover claim as she did not know she could make a claim or what her entitlements were. At the time of the incident she was only twenty years old and her job with the defendant was her first job since leaving school.
27 The plaintiff denied, as Mr Myers deposed, that she was the occupational health and safety officer at the Library. In 2006, on the advice of a family friend, the plaintiff made a claim in relation to the incident.
28 The plaintiff did not see a lawyer and she did not lodge a claim until 13 April 2006 because she was coping all right. She is a strong person, that is in her nature and she was coping all right with the methods she was using.
29 The plaintiff looked after her own treatment with a TENS machine and ‘over the counter’ medication. She attempted to continue work in the face of her symptoms.
30 The plaintiff suffered aggravations of her back injury on various occasions in 2004 and 2006, both at work and at home, until eventually she was referred in 2006 to a neurosurgeon, who performed surgery.
31 Prior to the aggravation of her back injury in January 2006, the plaintiff had been taking Panadol and Nurofen for pain relief, pretty much since the said date, and she had ongoing back pain which had existed from that time.
32 The plaintiff deposed that it was fortunate that she was able to continue to do what she was doing as she was very mindful of her back in respect of activities she performed and the manner in which she performed them. Eventually, however, the symptoms were of such severity she was forced to have surgery.
33 Between 2001 and 2005, occasionally the plaintiff had difficulty at work with some of the duties because of lifting and bending, but she did not complain. She used all her sick leave and annual leave because of her back problems. She took two or three days off, or maybe one day at a time, depending on how she felt, and she just put it down as sick leave.
34 The plaintiff does not consider herself a whinger. She wanted to work and loved her work and still loves it. She suffered pain but put up with it, hoping it would go away, and when it did not, she resorted to the use of a TENS machine or a heat pack.
35 The plaintiff borrowed a TENS machine from a fellow worker, Wallace Sinclair. She used the machine extensively for short periods and then for long periods of time. It reduced the level of tension and pain but did not cure it.
36 The plaintiff also took non-prescription medication, Voltaren, and Panadeine Plus, which was a strong painkilling medication. Panadeine Plus was then a single layer of sheets of painkillers, and the plaintiff was spending about $20 a month on tablets.
37 Between 2001 and 2005, the plaintiff’s symptoms consisted of left buttock/ thigh pain which could last for three or four days and occurred when her back pain was more severe. She was also suffering constant low back pain which was variable.
38 Whilst the plaintiff saw her general practitioner at times after the incident, she did not go specifically for her back. She might have mentioned her back but she simply does not know.
39 The plaintiff did not seek medical treatment because she is not one to complain. There are a lot of things she does not go to the doctor for. She was managing with her “methods”.
40 In cross-examination, the plaintiff agreed she had gone to the doctor on 29 May 2001 for chicken pox and did not mention any problem with her back.
41 Despite her back problems at this time, the plaintiff did not stop work. She just fought on; she struggled through. “That’s who I am; I don’t complain.” She denied that her back symptoms resolved in those years.
42 In cross-examination, the plaintiff denied she made a full recovery after the initial incident. After the treatment the pain stayed relatively high for a few more weeks and then decreased to a maybe four to five out of ten. It remained at that level through to 2006 when there were intermittent stages when it increased to five, six or seven, depending on the situation.
43 In cross-examination, the plaintiff explained the “to whom it may concern” letter written by her on 13 April 2006. She confirmed that that said she had never recovered after the incident, and that she had had exacerbations at times.
44 The plaintiff did not sign an investigator’s statement because there were inconsistencies in it. She did not recall ever receiving an altered copy to sign with the amendments she suggested by email to the investigator, Mr Bracker.
45 The plaintiff gave birth to her first child in May 2004. During her pregnancy she experienced increased back pain and had to undergo a caesarean section.
46 On her return to work after the birth, the plaintiff requested her hours of work be reduced from thirty five to twenty eight hours per week to enable her to spend more time with her baby.
47 There was an exacerbation and increase in the plaintiff’s back pain in March 2005. The plaintiff had done no physical activity and she was just walking from room to room at home. She did not experience pain lifting her baby from the cot.
48 Following the March 2005 exacerbation, the plaintiff was taken to Swan Hill Hospital by ambulance. She was in excruciating pain and had significant leg and back pain. It was the first time her coping methods were not enough. At the hospital she had an injection into her upper thigh. This attendance was on a weekend and the plaintiff did not miss time from work.
49 Between March 2005 and January 2006, the plaintiff’s pain returned to a manageable level of three or four out of ten. She continued to take ‘over the counter’ medication, she used her TENS machine and she did not see any doctors. The plaintiff had continuous back and buttock/thigh pain, but it eased off to a point where in the end she could manage.
50 In January 2006, there was a further exacerbation whilst the plaintiff was gardening at home. She had been digging a little gully whilst seated. When she stood up she experienced severe back pain. She did not feel instant pain in her foot but such pain developed down her left leg into her foot over time.
51 The plaintiff was unable to cope with this increase in pain using her usual methods of pain relief and she attended her doctor on 30 January 2006.
52 At Dr Zanka’s suggestion, the plaintiff underwent chiropractic treatment for three months to see if her condition improved. She borrowed $800 from her mother to pay for treatment of about twenty visits at $40 per visit.
53 There was not much improvement with this treatment. When Dr Booth came back to the practice in April 2006, he recommended the plaintiff see Professor Murphy for treatment.
54 The plaintiff had intermittent days off on leave at that time, but while Dr Booth described in his report that the plaintiff had three months of low back pain, the plaintiff denied that that was the case. The pain at that time was severe in comparison to what it had been before the gardening incident.
55 The plaintiff believed that leading up to surgery in July 2006, she took leave because of her back but she advised the defendant that she took leave for personal health reasons.
56 In the period prior to the surgery, the plaintiff had pretty much minimal use of her entire leg. She had pins and needles in the entire foot and numbness. She walked with a really bad limp and was basically just dragging her leg around. The leg pain radiated to her foot. She had difficulty walking, as had been the case when she first hurt herself in 2001.
57 Investigations of the plaintiff’s back were first carried out in 2006 prior to the plaintiff undergoing surgery performed by Mr Murphy on 7 July 2006.
58 The plaintiff was an inpatient at St Vincent’s Hospital for three days as a public patient and WorkCover did not pay for the surgery. She does not believe she saw Mr Murphy after the surgery. She probably saw one of his interns. She did not believe Mr Murphy knew much about the circumstances of her injury.
59 Post-surgery, the plaintiff regained most of the sensation in her foot and lower leg, but on occasions she still has pain in the outer aspects of her left thigh.
60 The plaintiff returned to work in late August 2006 in a very minimal capacity, increasing her hours of work to twenty eight hours per week by November 2006. She became pregnant, which resulted in an increase in back symptoms with pain radiating into her left leg which gradually resolved, although at the time it was severe.
61 There was a further exacerbation of the plaintiff’s back pain in February 2007 when she went to grab the DX box from the back seat of a car and twisted the wrong way. The plaintiff took leave at that stage.
62 The plaintiff received weekly payments up until the birth of her son on 8 May 2007 and then she took sixteen weeks’ maternity leave. WorkCover also paid for some medical and like expenses relating to this exacerbation.
63 The plaintiff returned to work in November 2007 and has been working twenty eight hours a week since that time.
64 The plaintiff is presently limited in her range of recreational and daily activities because of her back condition. In particular, she has problems with mopping, hanging out the clothes, gardening and lifting items over five kilograms. Her activities at home cause pain and she abstains from doing things.
65 The plaintiff’s mobility remains limited because of her ongoing symptoms. She is restricted in relation to physical activities, in particular gardening and tending to her roses. Occasionally she has used a “Whipper Snipper” and operated a blower vac, implements which weigh less than five kilograms.
66 The plaintiff has problems with prolonged driving and has to stop during the long trip to Melbourne when her husband drives.
67 The plaintiff has difficulty standing or sitting for lengthy periods. She had to stand at times when giving her evidence in court because of her back pain. She can sit for about half an hour before she has to stand up and stretch her back.
68 The plaintiff finds it difficult to get on the ground to play with her children. She lifts the children occasionally when she has no alternative but to do so, although she does not like doing so and tries to avoid it as much as possible.
69 The plaintiff deposed that she and her family do not go camping like they used to along the Murray River as she has great difficulty sleeping in a swag. Whilst her husband and children stay in the forest, she usually comes home to sleep.
70 In cross-examination, the plaintiff said that prior to the incident she had not been camping since she was at school. She next went camping in about 2002. Because of back pain she had problems sleeping on the ground and has not been camping since. She needs to sleep in a good bed and had pain sleeping in a motel bed whilst in Wangaratta for her court case.
71 The plaintiff’s libido has been reduced to a considerable extent because of ongoing back pain.
72 The plaintiff has difficulty with shopping, particularly carrying heavy shopping, and likes her husband to help whenever she can get him to assist.
73 The plaintiff presently takes Panadeine Forte and Voltaren on a daily basis, as well as Endep.
74 Between 2005 and 2010, the plaintiff purchased ‘over the counter’ medication but does not have a record of her purchases and doubts whether records would have been kept.
75 In connection with the preparation of a recent taxation return, the plaintiff obtained a printout of the prescription medication she has purchased from Kent’s Amcal Pharmacy for the last twelve months
76 The plaintiff has been having regular physiotherapy at Mallee Physiotherapy lately, either every week or every two weeks, which she pays for herself which is a considerable cost upon her modest income. Details of her attendances were exhibited to her most recent affidavit.
77 The plaintiff continues to use heat packs and the TENS machine, the present one belonging to her stepfather.
78 The plaintiff currently works Monday to Thursday, nine to five. She has control over whether she sits or stands. Her main responsibility, as it has been for the last six years, is looking after the three external branches of the Library doing purchasing, invoicing and maintaining statistics. These duties form about eighty to ninety per cent of her work and half of the balance of her time is spent in tasks involving sitting or standing. If she has to stand at a bench processing, covering books, for too long she feels an increase in pain and will stop doing that task.
79 On her return to work after her second child, the plaintiff had an increase in back pain. She advised Human Resources, who suggested she see Mallee Physiotherapy.
80 The plaintiff was cross-examined about comments made by Jorden Burke from Mallee Physiotherapy in a report dated December 2009.
81 The plaintiff said that it depended on the day whether her back “was relatively stable”. She still got occasional left sided sciatica. She was physically coping as best she could with modified duties. She had little trouble with work at the customer service desk. She coped to a certain extent with the physical aspects of her work and just did her job.
82 Further, an occupational therapist was engaged by the defendant to assess the plaintiff’s work station and various changes were made.
83 When the plaintiff returned to work in November 2007 she hoped that she could continue to work for as long as possible.
84 Her position was permanently modified to adapt to her condition. She was no longer responsible for carrying heavy crates full of books. An electronic shute was installed so she no longer has to pull out a heavy drawer of books.
85 Over 2006/7, small trolleys were purchased to assist in returning and moving items around the Library. DX was no longer collected from an outside location and was delivered to the Library. The plaintiff no longer had to reach shelf items above shoulder height or below navel height.
86 The plaintiff also does not have to lift heavy crates of books. As her doctor has ordered, she is not to lift anything over ten kilograms but to be safe she does not lift anything of weight at all.
87 The plaintiff does not believe she would be able to return to full time employment because of the lifting of crates involved. The plaintiff is working to the limit of her capacity and does not believe she could extend or increase her hours. There are still things that she has to go and get other staff to do because she cannot physically do them.
88 Earlier in 2010, the plaintiff was off work for five weeks because of work related stress. In cross-examination, she confirmed that there was an issue at work involving a particular work colleague who intimidated her.
89 The plaintiff deposed that she should have made a claim for WorkCover but did not do so because she was talked out of it by Mr Myers. Instead, the plaintiff claimed sick leave. She no longer has any sick leave left and she in fact owes sixty hours.
90 The plaintiff continues to suffer from constant low back pain and occasional left leg pain in the buttock and thigh. The pain does not extend to the knee. She has occasional pins and needles in her toes, especially the three outer ones. She also has permanent numbness down the left side of her foot.
91 The plaintiff’s pain is of sufficient severity to interfere with her ability to sleep without waking in pain. She has difficulty in obtaining a comfortable position.
92 The plaintiff’s ongoing pain is better than it was prior to surgery but she still suffers constant pain and does not go a day without it.
93 At worst, the plaintiff’s lower back pain is six or seven, and when it is like that she “has no doubt [she] is a bitch”. Her leg pain is about six out of ten and she deals with it by Pilates and exercise, or otherwise painkillers. Probably the longest time recently she had leg pain would have been for about four weeks.
The Plaintiff’s Medical Evidence
94 Mr Moloney, physiotherapist, reported on 24 January 2001:
“Acute lumbar spine pain with left sciatic nerve pain. L4-5-S1 level lesion. Massage. Manipulation side to side. Ultrasound. Very acute pain +++ ?disc prolapse with intensity of pain. Injured at work while at library when hit back on open drawer.”
95 It was noted there were attendances on 24 and 25 January 2001 and that the outstanding account of $34 was paid in September 2001.
96 Mr Moloney provided a report to the plaintiff’s solicitors dated 22 November 2006. He reported that the plaintiff presented for treatment at his clinic on 24 and 25 January 2001, having injured her lumbar spine at the Library when she hit her lower back on an open drawer on or about January 2001.
97 At that time the plaintiff was experiencing neurological pain into her left buttock and leg and was in severe pain and had trouble weight bearing. She also had severe muscle spasm in the lower spine.
98 Acute left sciatic nerve pain with a diminished straight leg raise led him to believe the plaintiff may have suffered a disc injury. The plaintiff was provided with a number of treatment modalities, including massage, mobilisation, ultrasound, heat treatment and traction.
99 Mr Moloney next reported on 17 June 2009. He confirmed the two attendances and noted that the plaintiff explained that she injured her lower back while carrying books when she bumped into an open drawer causing her to lose balance. He noted she presented in severe pain and she had difficulty weight bearing. She also had severe muscle spasm in her lower back. There was a diminished straight leg raise test which led him to believe the plaintiff had suffered a disc injury.
100 Mr Moloney advised that he provided a number of treatment modalities. He stated that having seen the plaintiff only twice in 2001, he could not make any predictions as to her prognosis.
101 Mr Moloney was required for cross-examination. When cross-examined about his clinical notes, it became apparent that the plaintiff’s married name was written on the notes recently. Mr Moloney confirmed he had seen the plaintiff on only two occasions, 24 and 25 January 2001.
102 When he described “pain +++” Mr Moloney meant the plaintiff was in intense pain at that particular stage. She had a lot of trouble even moving, getting up onto the couch for treatment. As he stated: “You do not see too many patients in as much pain and she was in particular pain and in quite a bit of distress.” He diagnosed a very, very acute lumbar spine pain and a disc prolapse.
103 Mr Moloney confirmed the treatment given by him on both dates. He had a feeling the plaintiff made another appointment which was not kept but he had no idea why not. He later said it may be that his receptionist told him that the plaintiff did not re-attend because of financial issues.
104 When cross-examined about lack of detail in his notes and the fact that he had put more detail in subsequent reports, particularly those to the plaintiff’s solicitors, Mr Moloney said he certainly had an independent recollection of the plaintiff because he does not see many patients in such acute and as serious pain as she was in at that particular time.
105 Mr Moloney explained he mentioned two problems with weight bearing and the presence of muscle spasm on initial examination in later reports although it was not in his notes, because he could recall the plaintiff’s presentation. As he did not see many people in as much difficulty as the plaintiff was, he had a vivid memory of her.
106 Mr Moloney does not give medical certificates because he usually tries and gets a doctor to provide them. He confirmed that the plaintiff told him that she hit an open drawer and hurt her back in the incident. When he saw the plaintiff she was in a very distressed state and she may not have given all the details at that particular time.
107 If the plaintiff had prolapsed her back in the incident, Mr Moloney would have expected her to have been in severe pain almost straight away, possibly with the amount of discomfort she was experiencing when she saw him.
108 Mr Moloney explained that a later onset of pain could occur depending on the level of inflammation of the disc which could intensify over a period of time and may have been exacerbated by just normal daily activity.
109 Mr Moloney expected that leg pain would be a major factor while the nerve root was being inflamed. He agreed to varying degrees that people recover from disc injuries. He did note however, that in the plaintiff’s case, the intensity and severity of her initial injury indicated that it was quite a severe or possibly quite a severe disc injury. She was in severe distress when she attended his practice.
110 Mr Moloney was cross-examined as to the lack of detail in his report to GIO Insurance and his refusal to make a diagnosis therein compared to the more detailed reports to the plaintiff’s solicitors. He explained that he answered the questions he was asked.
111 On 13 April 2006, Dr Booth from the Swan Hill Medical Group (“the clinic”) wrote to the plaintiff confirming details of their consultation. He noted he saw her on 6 April 2006 with a three month history of chronic low back pain with severe pain radiating into her leg.
112 He advised the plaintiff that the results of the CT scan explained her left leg pain and that he proposed to refer her to Professor Murphy for surgery.
113 Dr Booth confirmed that the plaintiff hurt her back doing gardening at home, doing light digging work when she stood up. She also told Dr Booth that she had hurt her back previously around January 2001 at work when she walked into an extended drawer, stumbled and hurt her back. Dr Booth noted that this injury was documented at work at the time and the plaintiff had physiotherapy, and it was the first time she had had low back pain and that that incident was also complicated by left leg pain.
114 The plaintiff mentioned one further occasion, possibly in 2004, when she was taken to Swan Hill Hospital with severe pain which had occurred at home without any aggravation.
115 Dr Booth advised the plaintiff she would need to obtain as much detail as possible about the two earlier incidents. He noted that the 2001 incident may very well be the commencement of her back problem. In such circumstances, he thought that later injuries would be regarded as an aggravation and in such circumstances, the plaintiff would have a strong case to make a WorkCover claim.
116 Dr Booth also commented that it would be nice to obtain a report from Mr Moloney. Dr Booth advised the plaintiff that he would attempt to obtain copies of the plaintiff’s hospital treatment in 2004 and check whether she had attended the clinic in relation to the incident. He noted there were no computerised records showing any attendances by the plaintiff between October 2000 and November 2002.
117 In a report to ACCS dated 5 July 2006, Dr Booth referred to the original back injury in the incident in 2001 and an aggravation in March 2005, following which the plaintiff attended Swan Hill Hospital.
118 Dr Booth advised that he considered the plaintiff had sustained a lumbosacral disc injury at L5-S1 with possible involvement of the L5 nerve root. He noted he had arranged for a CT scan which was highly suggestive of an L5-S1 disc injury with possible impingement on the left L5 nerve root.
119 Dr Booth mentioned the referral to Professor Murphy and the fact the plaintiff was on a waiting list for surgery.
120 Dr Booth advised that when he saw the plaintiff in June 2006 her condition had worsened. Her left patellar reflex was now absent and she was complaining of some difficulty with micturition and he suspected she was getting urinary retention followed by overflow incontinence. He considered that she required fairly urgent spinal surgery.
121 Dr Booth concluded, on reviewing the plaintiff’s case, that the incident was the initial injury and the flare up in 2005 and again, most recently in 2006, had been aggravations thereof.
122 Dr Booth wrote to the plaintiff on 27 June 2008 confirming their discussion on that day. He confirmed that he had suggested she required ongoing physical treatment, including physiotherapy to improve her range of movement and body strength, and massage therapy for pain and spasm relief. Dr Booth also suggested hydrotherapy might help the plaintiff.
123 Dr Booth thought that these treatments were likely to be ongoing. He noted the plaintiff’s condition had not finally stabilised but he did not expect her to get a great deal more improvement than she currently had. He felt physical therapies were necessary for her to continue with her work program.
124 Dr Booth last reported to ACCS on 17 April 2009. He advised he thought the plaintiff’s injury was now stable. She had occasional left-sided sciatica. She also suffered from SLE which manifested itself primarily with skin lesions and general tiredness.
125 Dr Booth advised he had certified the plaintiff fit for permanent modified duties, which she now regarded as her normal work duties. He noted she coped with this mostly, however, she did struggle with the physical activity if she was “on desk” all day as this activity involved repetitive sitting, standing and walking around and light lifting.
126 In connection with her ongoing care, he thought the plaintiff required continuing physiotherapy, hydrotherapy and massage therapy, all probably on a fortnightly, four-weekly basis.
127 The plaintiff had an elective admission under the neurosurgical team at St Vincent’s Hospital on 7 July 2006 for treatment of her left-sided L5-S1 disc prolapse, manifesting as left sciatic leg pain radiating to her left foot.
128 The plaintiff was admitted to hospital and had surgery comprising of left L5-S1 microdiscectomy (“the surgery”). The neurosurgical procedure was uncomplicated and the plaintiff had a routine post-operative course. She was discharged from the hospital on 10 July 2006 with ongoing combination analgesics with a subsequent review in Outpatients in six to eight weeks’ time.
129 The plaintiff was seen in Outpatients on 16 August 2006, at which time her progress was deemed satisfactory. She was asked to continue rehabilitation and was not seen at the hospital after that date.
130 The plaintiff attended Mallee Physiotherapy two years after her surgery. Mr Jorden Burke, physiotherapist, reported to GIO Insurance on 16 April 2009. He noted that on the first self presentment, the plaintiff was experiencing bilateral lumbar and buttock pain, and also some referred symptoms into her side.
131 Mr Burke noted the occupational rehabilitation provider and the defendant had been quite accommodating to the plaintiff’s needs by modifying her work station. Mr Burke believed the plaintiff was capable of returning to her pre- injury duties with restrictions on sitting to half an hour, with intervals for short breaks, and lifting of no more than fifteen to twenty kilograms and all with safe lifting techniques.
132 It was noted self management principles had been introduced and employed for the plaintiff to be independent in the management of her back injury.
133 In circumstances of acute exacerbations, Mr Burke thought a small number of physiotherapy consults may be required to get the plaintiff back to where she could comfortably self manage and exercise.
Medico-Legal Evidence
134 Mr Peter Scott, surgeon, examined the plaintiff at the request of GIO Insurance on 6 December 2007. He noted he had provided a report on 2 May 2007 relating to an earlier examination.
135 Mr Scott recalled the plaintiff had back problems since 2001, with an aggravation in February 2007. Whilst attending her baby at home in December 2004, she had experienced worsening backache and attended Swan Hill Hospital.
136 In March 2005, while bending to attend her child, the plaintiff developed further backache and left-sided sciatica and once again she was seen at the hospital. On 17 January 2006, she had a miscarriage and was off work for a week.
137 On 19 January 2006, the plaintiff suffered further backache using a trowel and digging in the garden. The plaintiff ultimately underwent surgery in July 2006.
138 Mr Scott noted a further aggravation on 12 February 2007 when the plaintiff developed further backache and left-sided sciatica getting out of a car.
139 Mr Scott understood the plaintiff had returned to work in a full time capacity in the Library in October 2007, avoiding repetitive bending or lifting more than ten kilograms and prolonged sitting.
140 Mr Scott noted that over the past seven months the plaintiff had complained of persistent backache but that her left-sided sciatica improved and it was two weeks ago when she experienced a recurrence of some symptoms. He noted at that stage the plaintiff was working full hours on light duties with restrictions.
141 On examination, the plaintiff complained of persistent low back pain present all the time but worse with prolonged activity. She also had recurring left- sided sciatica with radiation to the thigh which occurred particularly at the end of a day but appeared to be improving.
142 On examination, there was no tenderness over the sacroiliac joints. Flexion of the lumbar spine was to fifty degrees, left and right lateral flexion and rotation was to twenty degrees and extension was to ten degrees. There was mild discomfort experienced at the extremes.
143 Straight leg raising on the left was to seventy five degrees with associated backache with radiation of discomfort into the left buttock. There was reduced appreciation to pinprick and touch over the lateral aspects of the left calf. Straight leg raising was to ninety degrees on the right. There were no other lower limb abnormalities of motor power, tone, sensation, reflex activity or circulation.
144 Mr Scott believed the defendant should accept liability for ongoing problems of chronic low back pain and intermittent lumbosacral nerve root irritation as a result of the problems with her back which became apparent in 2001 and were aggravated thereafter, including February 2007.
145 Mr Scott thought the plaintiff was fit for light work only in a full time capacity which did not require her to lift more than ten kilograms or to twist or turn or to perform any prolonged standing or sitting.
146 Mr Scott accepted the aggravation which occurred in February 2007 was in part due to a simple manoeuvre of getting out of the car, with the plaintiff having experienced significant recovery from the surgery.
147 Mr Scott diagnosed chronic back pain associated with discogenic disc disease in the lumbosacral spine, initiated in 2001 and aggravated in various states thereafter, including 12 February 2007.
148 The diagnosis was based on the history and physical findings and knowledge of radiological studies. Mr Scott thought the plaintiff perfectly capable of full time work with minor restrictions.
149 Mr Kenneth Brearley, surgeon, examined the plaintiff on 15 December 2008.
150 The plaintiff told him of the incident and that thereafter she kept working. She told him that she had physiotherapy treatment after seeing her general practitioner and she also borrowed a TENS machine for treatment.
151 The plaintiff told him of working despite left buttock and back pain until she had her first child in 2004 and problems with her back at that time. She returned to work in November 2004.
152 The plaintiff told Mr Brearley of the exacerbation of back pain in March 2005 and January 2006, and the surgery on 6 July 2006.
153 The plaintiff complained to Mr Brearley of constant discomfort in the lower back. She had pain when she did any significant heavy lifting or repetitive bending and stooping, and she was unable to sit or stand for long periods and could not walk long distances because of back pain.
154 On examination, there was no deformity of the lumbar spine. The plaintiff indicated the site of pain in the left lumbar region and left buttock. There was some limitation of flexion which was restricted to seventy degrees and extension was zero. Lateral flexion to the right and left was twenty degrees and rotation to both sides was also twenty degrees. Straight leg raising was to sixty degrees on the left and seventy degrees on the right. All deep reflexes were normal, as was sensation.
155 Mr Brearley noted the CT scan of the lumbosacral spine on 7 February 2006, which showed an L5-S1 central disc protrusion, namely on the left side, impinging on the emerging left sacral nerve root. He also noted an MRI scan of the lumbar spine taken on 26 April 2006 which showed a left paracentral protrusion which extended into the lateral recess where the S1 nerve was displaced posteriorly.
156 Mr Brearley diagnosed an acute prolapse of the L5-S1 intervertebral disc causing pressure on the left first sacral nerve with constant left-sided sciatica.
157 Mr Brearley noted the plaintiff had a successful result from surgery, with an almost complete resolution of her leg pain but her low back pain was continuing, although at a slightly lesser level.
158 It was Mr Brearley’s view that at the time of the incident, the plaintiff suffered internal disruption of the L5-S1 disc with eventually resultant first sacral nerve radiculopathy secondary to compression in the lateral recess.
159 Mr Brearley noted that following the incident, the plaintiff was never free from back pain. There were periods of exacerbation following aggravating injuries and he thought that none of those incidents would have caused severe disabling back pain, but they were adequate to further damage the internally disrupted disc and to gradually increase the prolapse of that disc with its consequential radiculopathy effect to the point where surgery was required.
160 In Mr Brearley’s view, had the incident not occurred, there was no likelihood that the plaintiff would now be having problems with her back. He considered the further injuries suffered were of a very minor nature.
161 It was Mr Brearley’s opinion that the incident was the underlying initiating event which finally led to surgery and therefore the plaintiff’s employment was a significant contributing factor.
162 Mr Brearley imposed work restrictions in terms of avoiding bending, stooping and prolonged posture. He thought these restrictions would apply in the long term but would not prevent the plaintiff from doing her current job.
163 Mr Brearley also thought the plaintiff required further ongoing treatment. He considered her condition had stabilised. He also thought she would have difficulty with the heavier aspects of her housework and she could not do gardening.
164 Mr John O’Brien, orthopaedic surgeon, has seen the plaintiff on three occasions, initially on 15 December 2008, then on 19 January 2010, and more recently on 29 June 2010.
165 Mr O’Brien noted that a review of the CT scan of the lumbar spine from 6 February 2006 did in fact demonstrate a left-sided L5-S1 disc herniation.
166 On initial examination, the plaintiff told Mr O’Brien of the incident, walking into the desk striking her right knee.
167 The plaintiff told Mr O’Brien that she continued to experience constant low back pain and thus attended a physiotherapist, which gave her some temporary benefit. She was also treated with a TENS machine.
168 The plaintiff told Mr O’Brien that despite her persistent pain, she continued with her normal work.
169 The plaintiff told him that following the incident, she experienced constant back pain and the pain in the left buttock apparently subsided. She did not seek any ongoing active treatment and continued with her normal activities.
170 The plaintiff had her first child in June 2004 by caesarean because of back pain. Following the birth of her child, the plaintiff continued to have mild constant low back pain but returned to work undertaking normal duties, although she decreased her hours to twenty eight hours per week.
171 The plaintiff told Mr O’Brien that she awoke during a night in March 2005 to attend to her daughter and as she leaned forward into her daughter’s cot, she experienced a sudden onset of severe back pain which radiated into the left buttock. As the pain did not improve, she was taken by ambulance to Swan Hill Hospital where she was given an injection and her acute back and left buttock pain slowly improved over the next two to three days and she could continue work.
172 The plaintiff told Mr O’Brien that in January 2006 she was doing some gardening at home in a sitting position and as she stood up she experienced instant exacerbation of back and left buttock pain. She attended her local doctor, who prescribed medication.
173 On this occasion the pain continued. The plaintiff described constant back pain radiating into her left buttock and the posterior aspect of her left thigh. Over time that pain extended distally to the left foot with paresthesia affecting the sole and lateral sides.
174 In view of that increasing pain, the plaintiff told Mr O’Brien she was referred to Professor Murphy. Following surgery, the paresthesia was resolved and the severity of left leg pain significantly improved, with pain below the knee being resolved.
175 The plaintiff told Mr O’Brien that she continued to be aware of some left buttock and thigh pain, however she returned to modified duties three months after the surgery.
176 The plaintiff told Mr O’Brien about a further acute episode of severe back and buttock pain radiating into her left thigh to the knee when getting a mail bag out of the back of the car in February 2007.
177 The plaintiff gave birth to her second child by caesarean section in May 2007 and returned to work in November 2007, ultimately increasing her hours to twenty eight hours a week.
178 On the most recent examination on 29 June 2010, the plaintiff told Mr O’Brien she had constant low back pain which radiated to the region of the left buttock and the lateral aspect of the left hip. She described the severity of pain as five to six out of ten.
179 On examination on that date, the plaintiff’s thoraco lumbar spine was straight with mild lumbar lordosis. Lumbar flexion was to sixty degrees, extension was limited to ten degrees with complaint of significant back pain. Lateral flexion to the right was fifteen degrees causing pain on the left side with lateral flexion to the left, to twenty degrees. There was some tenderness to the left of the lumbosacral scar.
180 Passive straight leg raising was to seventy degrees on the right and sixty degrees on the left. There was a mildly positive Lasègue's sign causing mainly buttock and hip pain. Active straight leg raising on the left precipitated back pain.
181 The plaintiff reported some altered sensation over the lateral aspect of her left foot and there was also noted to be some difficulty experienced when the plaintiff attempted to stand on her toes with the left foot. Reflexes in the lower limbs were all present.
182 Mr O’Brien confirmed the plaintiff continued to demonstrate signs indicative of discogenic pathology, there being some residual signs indicating radiculopathy obviously occurring at the time of the disc prolapse. There were no signs indicating ongoing nerve root compromise.
183 In his view, the plaintiff continued to experience discogenic back pain for which he considered employment remained a significant contributing factor.
184 Mr O’Brien considered the plaintiff’s condition was stable. Having initially expressed the view that the prognosis was guarded, Mr O’Brien thought it reasonable to now conclude the plaintiff’s prognosis was poor, as he had no doubt that she had chronic discogenic back pain which he was sure would be a continuing problem and would require ongoing pain management. He was sure the nature of the pathology remained susceptible to exacerbations of back pain.
185 Mr O’Brien confirmed his earlier view that he considered that the plaintiff required, on a permanent basis, modified duties involving no heavy lifting, repetitive bending or, indeed, being in a prolonged position.
186 In his first report, Mr O’Brien commented upon the relationship between the incident and the plaintiff’s present condition.
187 Considering the plaintiff’s history, Mr O’Brien thought it appeared likely the plaintiff precipitated a disc injury in the incident. However, if her history was accurate, mild discogenic pathology persisted, causing ongoing back pain.
188 Mr O’Brien noted that one would therefore assume the precipitating cause of lumbar injury was the 2001 incident and therefore the plaintiff had ongoing discogenic pathology.
189 One would therefore assume that because of the incident, the plaintiff had had further acute episodes of back and buttock pain with the plaintiff developing, following the 2006 incident, what was documented as an L5-S1 disc herniation, resulting in surgery. Mr O’Brien noted, as indicated, the plaintiff continued to demonstrate signs of discogenic pathology and nerve root irritation.
190 In Mr O’Brien’s view, employment in 2001 was a significant contributing factor to the plaintiff’s current clinical condition.
The Defendant’s Medical Evidence
191 Mr Moloney, physiotherapist, provided a report to GIO Insurance on 2 October 2006.
192 Mr Moloney noted the plaintiff’s presentation on 24 January 2001 with an acute lumbar spine pain with associated left sciatic nerve root distribution. There was also an attendance the following day.
193 Mr Moloney advised that without explanation the plaintiff did not attend her next appointment. When asked whether the plaintiff’s condition resolved, he said not in the two days she attended, and he had not treated or assessed her since so he could not really give a professional opinion.
194 Dr Booth’s clinical notes were tendered.
195 It appears from the handwritten notes that the plaintiff attended on 2 May 2001, 29 May 2001, 11 November 2002, 15 July 2003, 7 November 2003 and 16 December 2003 and made no mention of any back pain.
196 Computerised notes commencing in January 2006 were tendered.
197 On 30 January 2006, the plaintiff reported a sudden onset of left lower back pain radiating down her left thigh to knee when shovelling in the garden a week earlier. Analgesia was prescribed.
198 On 3 February 2006, the plaintiff attended the clinic with persisting back pain. There was an attendance on 8 February 2006, where there was discussion about an L5-S1 condition.
199 On 6 April 2006, Dr Booth recorded three months of chronic low back pain and severe left leg pain. On 12 April 2006, Panadeine Forte was prescribed.
200 Dr Booth wrote to the plaintiff’s solicitors on 21 December 2009 advising that the plaintiff was coping physically well with her permanent modified duties. He noted that the plaintiff still had problems with physical activity on longer days when she was at the customer service desk. Apart from those days, she coped with the physical aspects of her work very easily.
Medico-Legal Examinations
201 Dr Boothby, occupational physician, examined the plaintiff on behalf of GIO Insurance on 16 May 2006.
202 The plaintiff told Dr Boothby about the incident. He was provided with the entry from the Register of Injuries. He noted that in a Circumstance Report, the plaintiff reported her condition had fully resolved and she did not obtain any further treatment for a number of years.
203 The plaintiff’s statement included in the Circumstance Report was not signed by her and is not in evidence.
204 The plaintiff told Dr Boothby of further injury in March 2005 after bending slightly over the cot, following which she attended Swan Hill Hospital.
205 The next event was on 17 January 2006, when the plaintiff had a miscarriage. In the following week she was kneeling doing some gardening and on standing she experienced significant lower back pain radiating to her left buttock, and on this occasion for the first time, pain to her left knee.
206 The plaintiff complained to Dr Boothby of constant pain in her left buttock, the back of her thigh, now radiating to her heel and foot. She reported lower back pain of mild to moderate and variable intensity. She reported some pins and needles in her left foot when standing.
207 On examination, all movements of the thoracolumbar spine were significantly reduced and were reported as increasing the plaintiff’s left leg pain. Flexion was to twenty degrees and extension only to a few degrees. Rotation and lateral flexion were markedly reduced. The plaintiff had normal reflexes on the right side but her left patellar reflex was reduced, and her left ankle reflex was absent.
208 Dr Boothby had available to him a CT scan of the lumbosacral spine taken on 7 February 2006 and the MRI scan of 26 April 2006.
209 Dr Boothby concluded the plaintiff’s signs on examination were consistent with an S1 nerve root compression, confirmed by radiological investigations.
210 Dr Boothby considered there was no doubt that the plaintiff’s symptoms and signs were explained by her degenerate lumbar discs with a disc prolapse at L5-S1, compressing the S1 nerve root on the left side. He noted her symptoms were predominantly in the left leg and she was therefore considered to be a good candidate for left-sided microdiscectomy.
211 In Dr Boothby’s view, the main questions to be addressed were clearly when the injury occurred and to what extent, if any, was it associated with the plaintiff’s work.
212 Dr Boothby noted that there were clearly some significant inconsistencies. The plaintiff told him that she knocked her knee in the incident and also that she never fully recovered and had a constant lower backache ever since, a history different to that in the circumstance report.
213 Dr Boothby noted another inconsistency was the timing of the second incident, whether December 2004 or March 2005.
214 Dr Boothby also noted the plaintiff gave a history of being diagnosed with an SLE condition with many signs and symptoms, some of which could include muscle and joint pain, but he noted that disease had been in remission for about ten years.
215 Dr Boothby also mentioned the history taken by Dr Booth of a three month history of back pain and the lack of mention by Dr Booth of disability between 2001 and April 2006, apart from the exacerbations in December 2004 or March 2005.
216 Dr Boothby then went on to consider the mechanism of the incident injury.
217 He referred to the Register of Injuries, noting that the plaintiff reported that she did experience some lower back pain for two weeks after the incident. She then would have been twenty and it was possible that she did suffer injury to her lower lumbar disc in the incident. He noted that may have been made more likely because of a previously diagnosed SLE, but he noted the plaintiff said she had not had any back problem before. In his view, there could then have been further aggravations.
218 Dr Boothby thought, while there was considerable doubt about the plaintiff’s condition between 2001 and 2004, it nevertheless remained a possibility a workplace injury was the initiating event and he could not exclude it as being a contributing factor.
219 Dr Boothby considered that the plaintiff required significant restriction be imposed on any work she carried out. He considered that she should only lift weights up to three or four kilograms at bench or table height.
220 Dr Boothby wrote to GIO Insurance on 14 June 2006, having been asked to provide a supplementary report.
221 In answer to specific questions, Dr Boothby said he agreed that on the balance of probabilities it was likely the plaintiff’s original injury did resolve. He stated that because there was, firstly, the statement as recorded in the circumstances report that her condition fully resolved and, further, she did not seek any treatment for a number of years, both of those would indicate that it was more likely than not that her condition would have resolved. That had to be balanced against the plaintiff’s statement to him that she now felt she did not really fully recover and that she had constant lower back pain ever since the events of 2001. He noted that there was not, however, any evidence that she was not in any way restricted throughout that period, nor did she seek any medical advice.
222 The question was posed:
“The worker also states that in January 2006 she suffered a miscarriage at home. Whilst at home she was digging out gullies to lay some watering pipe. The worker felt instant pain in her back after this incident. The worker stated she didn’t seek medical attention as she believed her injury would recover, as did her previous injury. Considering the worker’s own statements about the severity and longevity of her back injuries, do you believe these incidents could be considered new back injuries in their own right and not an aggravation of a seemingly minor incident at work in 2001?”
223 Dr Boothby responded:
“If the circumstances as recorded in your question are totally correct, then I would agree it was more likely than not that the incidents in December 2004 and January 2006 could be considered new back injuries in their own right by virtue of the fact that the original injury had resolved.”
224 Dr Boothby concluded:
“Working out mechanisms of injury, aggravation and liabilities some five and a half years after an original event is always likely to be problematic.”
225 Dr Boothby confirmed that he stated in his first report that he could not definitely exclude the possibility that the original event in January 2001 was the initiating event of damage to the L4-5 disc, and that remained the case.
226 Dr Boothby advised he had now reached the conclusion that on the balance of probabilities, and taking all currently available information into account, it was more likely than not that the original injury did resolve and that the plaintiff’s current situation did resolve and that her current situation was now due to more recent injuries which did not occur in the context of her employment.
227 Dr Boothby concluded that he still considered that a report from the plaintiff’s treating physiotherapist, who appeared to be the only health practitioner involved in the episode of 2001, was likely to have significant value. If Mr Moloney stated that the plaintiff’s symptoms did resolve and she was therefore discharged from further treatment, then that added weight to the argument that the original injury did resolve and that the new incidents unrelated to employment were the primary cause of that condition.
228 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 10 July 2009.
229 The plaintiff told him she had a back problem which started in 2001 when she knocked her knee on an open drawer. She told him of physiotherapy treatment and the use of a TENS machine but that she kept working and her condition did not improve.
230 Mr Shannon was told that in December 2004, the plaintiff woke one night with severe low back pain and was taken to Swan Hill Hospital. In January 2006, whilst doing some light gardening, the plaintiff suffered a recurrence of pain radiating from the low back down to the left thigh and knee.
231 The surgery in July 2006 relieved the plaintiff’s sciatica, although she still had a constant ache in the left thigh and aching in the low back.
232 On examination, the plaintiff had moderate restriction of thoracolumbar movement, particularly flexion, extension and right rotation. There was no spasm.
233 Straight leg raising was to eighty degrees on the right and sixty on the left. The left ankle reflex was absent. There was no muscle wasting and the plaintiff had altered sensation on the outer border of the left foot.
234 Mr Shannon noted a CT scan showed a significant left sided focal disc prolapse at the lumbosacral level. An MRI scan in April 2006 was reported to show a degenerate lumbosacral disc with a focal left-sided paracentral and lateral recessed disc protrusion displacing the S1 nerve root.
235 In Mr Shannon’s view, there was no doubt the plaintiff had suffered a significant disc prolapse at the lumbosacral level. He considered her claimed incident could well have imposed a strain on her back and she recorded the development of left buttock and thigh pain.
236 Mr Shannon noted however, that incident did not result in any loss of time from work, nor did the plaintiff seek medical advice. Mr Shannon had no information to suggest that the plaintiff had significant problems until December 2004 when she went to hospital.
237 Mr Shannon thought that would appear to have been a more acute episode, although it again rapidly subsided and the plaintiff returned to work within a couple of days. Then there was the gardening episode in January 2006.
238 Mr Shannon commented it appeared that this gardening episode in fact resulted in a significant disc prolapse which was appropriately treated by surgery. Then there was the further aggravation when the plaintiff got out of the car at work.
239 Mr Shannon noted there was very little documentation of any treatment after the few visits to the physiotherapist in 2001.
240 He thought that whilst the plaintiff may have sustained a back strain at that time, it did not appear to him there was a significant disc injury and the absence of any significant treatment until the home related episode some three or more years later, and then the other episodes at home, made it unlikely, in his view, that the plaintiff’s employment had been a significant contributing factor to what he acknowledged to have been a significant disc prolapse.
241 Mr Shannon considered the plaintiff had a genuine problem with her back, partially relieved by the operation, and he thought the significant disc prolapse occurred in 2006 when she developed the definite evidence of radiculopathy. He thought the incident was, at best, a minor contributing factor to the subsequent disc prolapse five years later and the need for surgery.
242 Mr Shannon considered that the plaintiff had a capacity for work but she was limited in the performance of work involving a lot of bending, twisting or lifting.
The Defendant’s Other Evidence
243 The plaintiff wrote a ‘to whom it may concern’ letter on 13 April 2006.
244 The plaintiff advised that on 11 January 2001, she suffered low back pain and pain in the left buttock. At the time she filled out the required paperwork and went to the physiotherapist to help relieve the pain. At this time she suffered the pain for a period of approximately three weeks.
245 She then went on to say that since the initial injury, she had suffered regularly from backaches, ranging from moderate to severe. On one particular incident, she woke one morning in December of 2004 unable to move and with extreme pain in her left buttock and leg. She was taken to hospital by ambulance and given medication to stop the spasms and pain.
246 The plaintiff described the gardening incident in January 2006, after which she had a few weeks off work and underwent investigations. She advised that since returning to work she had colleagues assist her in doing several duties as she was unable to lift or carry anything and she also sought the help of a chiropractor, although relief was only minimal.
247 The plaintiff concluded today, almost three months after the recurrence of her original injury, that she was still suffering acute pain in her leg and buttock. She was on a cocktail of Panadeine Forte, anti-inflammatories and nerve numbing medication.
248 The plaintiff lodged a Claim for Impairment Benefits signed by her on 16 January 2001. The form was completed by someone else on her behalf who described the injury occurring when the plaintiff hit her lower back on an open drawer that had been left open.
249 Garden and Green, solicitors, wrote to Mr Moloney on 3 November 2006, providing him with medical reports from Dr Booth and Dr Boothby. The solicitors advised they had asked the plaintiff to make a further appointment with Mr Moloney so that a lot of matters could be resolved in terms of the plaintiff’s WorkCover claim.
250 It was noted that the plaintiff had advised that she had explained that she had a genuine reason for discontinuing treatment with Mr Moloney and that she went on a TENS machine and had some alternate treatment.
251 Mr Moloney was advised that the plaintiff would need to draw a continuous link back to the 2001 incident in order for the plaintiff to succeed in a WorkCover claim and, accordingly, the solicitors would be grateful if the plaintiff could be re-examined by him and a further report provided.
Findings
252 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
253 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a) what injury is relied upon; (b) further, that that injury is referable to employment on or after 20 October 1999. 254 I accept that the plaintiff suffered a compensable injury to her lower back in the incident on the said date.
255 It is the impairment not the injury that is the relevant consideration and I am not required to make a precise diagnosis of the plaintiff’s incident related condition.
256 There are different medical views in this regard but there is a general acceptance that a back injury was suffered in the incident
257 Mr Brearley found the plaintiff suffered a prolapse at L5-S1 in the incident and Mr Moloney without the aid of investigations on initial examination thought the plaintiff may have suffered a severe disc injury. Other medical practitioners who have not specifically found the prolapse occurred in the incident have diagnosed a disc injury at L5-S1, discogenic disc disease and disc prolapse at L5-S1.
258 On his view of the plaintiff’s history and in the absence of any report from Mr Moloney, Mr Shannon disagreed that a disc injury was suffered it the incident and thought the plaintiff may well have sustained a back strain at that time.
259 The plaintiff presented to physiotherapist, Mr Moloney, about two weeks after the incident in very severe pain, reporting having suffered an injury work.
260 On his advice, the plaintiff reported the incident and it was noted on the Register of Injuries on 25 January 2001. Further, the plaintiff reported that the incident had been witnessed by Ms Delmenico and her name was noted on the Register.
261 No evidence is available from Ms Delmenico, an employee of the defendant’s at the time of the incident, challenging the plaintiff’s version of the events on the said date.
262 Taking into account this evidence, I accept that the incident did occur on the said date.
263 The next issue is whether any ongoing problem with the plaintiff’s back is referable to injury suffered in the incident.
264 In this regard, counsel for the defendant submitted that an injury which required two visits to the physiotherapist two weeks after the incident could not be responsible for the 2006 surgery. It was submitted that there were a lot of discrete episodes that could themselves have been the subject of an originating motion if compensable.
265 It was submitted it was rather the January 2006 incident that was productive of symptoms of such severity that the plaintiff came under the care of doctors, complaining of leg pain ultimately leading to surgery. Reliance was placed on Dr Booth’s letter to Professor Murphy on 7 April 2006 where he referred to the gardening incident and made no mention of the 2001 incident.
266 It was submitted it was inconceivable that Mr Moloney, having recorded an event of this magnitude, did not do more than suggest the plaintiff see her general practitioner.
267 It was submitted that the incident was an event which produced pain for a period of three weeks. Thereafter, there might have been “some rumblings in the plaintiff’s back from time to time” but not sufficient to take her to treatment or prescription medication and not such that she was unable to do her work or function in any other respect.
268 It was submitted the plaintiff was functioning between the date of the incident and the first exacerbation, for which she sought treatment in March 2005. During that time there was no record of the plaintiff taking medication or requiring any time off work.
269 Counsel for the defendant relied upon State of Victoria v Collins [1999] 1 VR 215 where the Court considered the issue of incapacity for employment when considering an application pursuant Section 135A(2)(b) of the Act.
270 It was submitted the plaintiff’s ‘to whom it may concern’ letter was unambiguous, confirming that she had recovered from her initial injury.
271 Deciding whether or not the incident was a cause of the plaintiff’s ongoing back condition and need for surgery requires a consideration of the plaintiff’s evidence, the accuracy of her history to various examiners and their views in relation thereto.
272 Of major relevance in considering this issue is Mr Moloney’s evidence as to the manner in which the plaintiff presented to him in late January 2001, two weeks after the incident.
273 As Mr Moloney explained in cross-examination, he had an independent recollection of these attendances because it was not often he saw someone in the level of pain experienced by the plaintiff. He thought her presentation with spasm, problems weight bearing and extreme pain indicated that she had suffered quite a severe, or possibly quite a severe disc injury.
274 I accept that the plaintiff ceased physiotherapy treatment, not because she had recovered, but because she could not afford it, and that she self managed pain which was ongoing with her own “method” using a TENS machine and non- prescription medication.
275 Similarly, because of financial difficulties, the plaintiff had to borrow money from her mother to pay for chiropractic treatment in early 2006.
276 No challenge was made to the plaintiff’s evidence that Mr Sinclair, an employee of the defendant, provided the plaintiff with a TENS machine at times.
277 I do not accept, as was submitted by counsel for the defendant, that the plaintiff could have obtained details from the chemist about non-prescription medication purchased by her prior to 2006 nor, in my view, is she required to do so. In any event, I accept the plaintiff’s evidence that she took ‘over the counter’ medication for her back pain between 2001 and 2006.
278 I do not accept that “the whom it may concern letter” confirmed the plaintiff’s initial pain had resolved. In my view, the letter is consistent with the plaintiff’s evidence that she experienced more severe pain in the initial three weeks after the incident, with continuing pain at a lesser level thereafter with exacerbations from time to time.
279 Consistent with this interpretation of the letter is the plaintiff’s refusal to sign a statement organised by an investigator which set out she had recovered from her initial injury as she considered this to be inaccurate.
280 I accept that the plaintiff’s lower back pain did not go away– it fluctuated with exacerbations at various times. Nor did her leg pain disappear totally – it also had a fluctuating course.
281 The plaintiff’s difficulty with camping in 2002 is evidence of ongoing back problems at an early time.
282 I accept that the plaintiff is not a complainer and that she simply got on with her work and her life, self managing until more severe exacerbations in 2005 and 2006 which led to surgery.
283 There was increased back pain with her first pregnancy and then an aggravation in 2005 when doing nothing active with her baby, leading to the attendance at Swan Hill Hospital. This was followed by the gardening incident in January 2006.
284 I accept the plaintiff used the word “exacerbation” when describing these incidents as she meant her ongoing pain was made worse at these times.
285 I accept that there was an initial precipitating event, described by Mr Moloney as intense and severe in the incident of 2001, which materially contributes to the need for surgery and the plaintiff’s current condition.
286 It matters not to the success of the present application that the plaintiff’s current condition may be the result of a number of causes as submitted by counsel for the defendant.
287 As Ashley JA said in Grech v Orica Australia Pty Ltd (2006) 14 VR 602, at paragraph 58, a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.
288 Provided the plaintiff establishes that the subject compensable injury in 2001 materially contributed to the impairment and its consequences, and would continue to do so permanently, then the role of the other injuries does not preclude a conclusion being reached that there was an appropriate causal link between the compensable injury on the one hand, and consequences relied upon on the other.
289 Save for Mr Shannon, medical opinion is that the incident injury materially contributes to the plaintiff’s ongoing condition.
290 In 2007, Mr Scott suggested the defendant accept liability for ongoing problems, having noted a history of back pain which became apparent in 2001 and was aggravated on various occasions, including February 2007. He thought the discogenic disc disease was initiated in 2001 with later aggravations.
291 Mr Brearley thought the incident was the underlying initiating event which finally led to surgery and therefore he considered the plaintiff’s employment was a significant contributing factor to her present condition.
292 Accepting the plaintiff’s history of ongoing pain since the incident, Mr O’Brien thought the precipitating cause of lumbar injury was the 2001 incident and therefore the plaintiff has had ongoing discogenic pathology. He considered that the incident was a significant contributing factor to her current clinical condition.
293 Dr Boothby thought, while there was considerable doubt about the plaintiff’s condition between 2001 and 2004, it nevertheless remained a possibility a workplace injury was the initiating event and he could not exclude it as being a contributing factor. He changed his view somewhat, having received a letter from the insurer which included inaccurate material together with the statement the plaintiff refused to sign where it was stated she had recovered from the 2002 injury.
294 Mr Shannon thought at best the incident was a minor contributing factor to the subsequent surgery, having based this view on just two visits to the physiotherapist and the fact the plaintiff kept working and her condition apparently resolved.
295 Mr Shannon, however, did not know the details of the plaintiff’s presentation to Mr Moloney in January 2001, nor did Dr Boothby, who in fact commented that he would be assisted by such material in commenting on this issue.
296 Having found a compensable injury which materially contributes to the plaintiff’s present condition, the issue for determination is whether the impairment to the plaintiff’s back is serious and permanent.
297 I accept that the plaintiff has a genuine problem with her back, partially relieved by microdiscectomy surgery performed by Mr Murphy.
298 Whilst there is no report from Mr Murphy, there is a report from St Vincent’s Hospital which details the surgery. The plaintiff explained that she was unsure whether she had seen Mr Murphy post surgery and in any event, as far as she knew he had little knowledge of her history of back pain.
299 Although the plaintiff regained most of the sensation in her foot and lower leg following surgery, on occasions she still has pain in the outer aspects of her left thigh. She continues to suffer from daily constant low back pain and occasional left leg pain in the buttock and thigh. She has occasional pins and needles in her toes, especially the three outer ones. She also has permanent numbness down the left side of her foot.
300 At worst, the plaintiff’s lower back pain is six or seven, and when it is like that she “has no doubt [she] is a bitch”. Her leg pain is about six out of ten.
301 The plaintiff requires ongoing physiotherapy once every week or fortnight which she pays for herself. She continues to use heat packs and the TENS machine.
302 Daily she takes Panadeine Forte and Voltaren for pain relief.
303 The plaintiff’s pain is of sufficient severity to interfere with her ability to sleep without waking in pain. She has difficulty in obtaining a comfortable position. Her libido is also affected by her back pain.
304 Whilst the plaintiff works her normal twenty eight hours per week at the Library, she is restricted in the amount of lifting work she can do carrying books and stacking shelves. She also cannot stand for extended periods.
305 The system of work has been modified to some extent to cope with these problems but tasks which require her standing at a desk covering books give her increasing back pain. She also has problems when she is working longer days at the customer service desk, as Dr Booth noted in December 2009. At times she requires help from fellow workers with her duties.
306 The consensus of medical opinion is that the plaintiff is not fit for unrestricted manual work.
307 Mr Scott thought the plaintiff was fit for light work only in a full time capacity which did not require her to lift more than ten kilograms or to twist or turn or to perform any prolonged standing or sitting.
308 Mr Brearley imposed work restrictions in terms of avoiding bending, stooping and prolonged posture. Mr O’Brien considered that the plaintiff required, on a permanent basis, modified duties involving no heavy lifting, repetitive bending or, indeed, being in a prolonged position.
309 Mr Shannon considered that the plaintiff had a capacity for work but she was limited in the performance of work involving a lot of bending, twisting or lifting. Dr Boothby considered that the plaintiff required significant restriction be imposed on any work she carried out. He considered that she should only lift weights up to three or four kilograms at bench or table height.
310 I accept that the plaintiff is also limited in her ability to perform housework, and that she can do only limited gardening. She has difficulty with prolonged posture, both sitting and standing. She is restricted in her ability to play with and lift her children.
311 The plaintiff has difficulty, particularly with heavy shopping, and requires assistance from her husband.
312 Whilst the plaintiff has only gone camping once since school, that occasion was after the incident. At that time the plaintiff could not sleep on the ground because of her back condition – a problem she experiences when not sleeping in her own bed.
313 The plaintiff is still a young woman who has very significant ongoing problems with her back in her daily life and her work activities, requiring continuing physiotherapy and medication.
314 In terms of the permanency of the plaintiff’s condition, no improvement is foreseen by any medical practitioners. Mr O’Brien thought it reasonable to now conclude the plaintiff’s prognosis was poor, as he had no doubt that she had chronic discogenic back pain which he was sure would be a continuing problem and would require ongoing pain management. He was sure the nature of the pathology remained susceptible to exacerbations of back pain.
315 Taking into account all of the evidence, I am satisfied that the plaintiff has a permanent serious injury in relation to her lumbar spine.
316 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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