Senkic v City of Greater Shepparton
[2011] VCC 1514
•29 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WODONGA CIVIL DIVISION DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05694
| ROSINA VERONICA SENKIC | Plaintiff |
| v | |
| CITY OF GREATER SHEPPARTON | Defendant |
---
| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Wodonga |
| DATE OF HEARING: | 24, 25 and 28 October 2011 |
| DATE OF JUDGMENT: | 29 November 2011 |
| CASE MAY BE CITED AS: | Senkic v City of Greater Shepparton |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1514 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB
– injury to the back – pain and suffering only – application dismissed
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Slater & Gordon Ltd |
| Mr G Pierorazio | ||
| For the Defendant | Mr R Middleton SC with | Wisewould Mahony |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 8 January 2009.
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.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the back.
6 The plaintiff relied upon two affidavits, sworn 22 June 2010 and 16 June 2011. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1] “Serious injury” for the purposes of s.134AB(16) and (19) is defined by s.134AB(38).
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant after 20 October 1999.[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering;
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d)
under s.134AB(38)(c) of the Act: an impairment or loss of body function, in this case, the pain and suffering, shall not be held to be serious unless the consequences, when judged by comparison with other cases, is:
“… fairly described as being more than significant or marked, and
as being at least very considerable.”
9 The Court must consider the impairment or loss of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment or loss of body function suffered by the plaintiff and the range of possible impairments.
10 The test for “serious”, as set out in paragraph (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
11 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[4]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[5]
[4] S.134AB(38)(j) of the Act
[5] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
12 Counsel for the defendant informed the Court that there were two issues. The first is that in considering whether there is a serious injury under sub- paragraph (a) of the definition of “serious injury” in s.134AB(37), the Court cannot have regard to psychological or psychiatric consequences, which are alluded to by some of the medical witnesses. The second issue is that this is a “range case”; namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered to meet the threshold of “very considerable”.
The Plaintiff’s Evidence
13 In her affidavits sworn on 22 June 2010 and 16 June 2011, the plaintiff deposes that:
•
She was employed by the defendant in the canteen at ‘Kids Town’ working approximately 20 hours per week.
•
On or about 8 January 2009, she injured her back while lifting a 20-litre drum of oil when cleaning the fryers. She was holding the drum by the handle while bending over and suffered severe back pain.
•
She attempted to continue at work, but had to cease work in March 2009. She attempted a graduated return to work program, but was unable to continue because of the severity of her symptoms.
•
She attended her general practitioner, who referred her for a CT scan of her lumbar spine. She was referred to an orthopaedic surgeon, who referred her for an MRI scan, but did not recommend surgery. She was referred to a pain management clinic and a physiotherapist.
•
She is currently prescribed pain and anti-depressant medication. She suffers side-effects from the medication, including constipation, skin irritation and itchiness, and her memory has been affected. She does stretches and exercises from a pain management book.
•
She has constant back pain, which is severe at times and worse with activity. Bending, twisting and lifting aggravate the pain. She has bilateral leg pain, which is worse on the left, extending from the buttock to the calf and into the ankle, sometimes with pins and needles in her foot. The leg pain is worse at night. The pain in her right leg radiates to her knee.
•
She is limited in the distances she can travel, which prevents her attending her children’s sports matches. She is limited in her ability to garden and perform housework, in particular bed making, mopping, vacuuming and car washing. She is limited in her ability to perform the shopping activities.
•
She has lost confidence, is bored and suffers depression and feels useless. She does not socialise as much as previously. She has difficulty with sexual intercourse, which has resulted in deterioration of her relationship with her husband. She suffers irritability and easily becomes emotional, upset and angry. Her sleep is disturbed. She smokes more because of pain and stress and plays the pokies because she is bored.
The Plaintiff’s Evidence in Cross-Examination
14 The plaintiff was cross-examined and gave the following pertinent evidence:
•
She continued working her normal hours of 20 hours a week, or slightly more, between January 2009 and March 2009.
•
In late March 2009, she first attempted a graduated return to work program.
•
She made more than one attempt to return to work, but could not recall how many. She could not say how long she worked. She recalled receiving five offers of employment.
•
She said she could not work two-hour shifts on alternative days because she was in pain throughout the night and had difficulty sleeping.
•
She agreed that she was told her weekly payments ceased in December 2009 because she failed to participate in a return to work program.
•
Since December 2009, her treatment has consisted of medication, and approximately six months ago she commenced acupuncture.
•
She agreed she attended physiotherapy soon after the injury but ceased because it made her feel worse.
•
She agreed she attended a pain management clinic in June 2011 but only stayed two nights of a three-week course. She has an appointment to attend a counsellor in November 2011 to enable her to return to the clinic.
•
She said her children are twenty and twenty-two and both hold drivers licences and drive themselves to sporting activities.
•
Her children played social netball and basketball this year. She watched them occasionally. She was unable to recall the year, but said she had been the assistant coach and team manager prior to her injury. She said she would help with ball handling skills, fill drink bottles and be on the sideline correcting play. She also assisted in the canteen and taking tickets at the gate.
•
She attended pokie venues prior to her injury. Since her injury, she attends up to three times a week and spends from one to four hours.
•
She agreed there was a contradiction, in that she told her employer she could not attend work for two hours when she could attend the pokies for in excess of two hours in 2009.
• She said prior to the injury, she would spend up to a day at the pokies. •
She had made no effort to look for work. She said she was unable to operate a computer.
•
Her main medication is Lyrica, which she takes daily for pain and wears Durogesic pain patches. In re-examination, she said she took Panadeine Forte once or twice a week and Panadeine Osteo.
Investigations
15 On 12 March 2009, a CT scan of the lumbar spine was performed, which was within normal limits. There was no evidence for a disc prolapse or spinal canal stenosis. The thecal sac and nerve roots were intact. No subarticular or foraminal stenosis was seen. No focal bony destruction or compression fractures were seen.
16 On 18 May 2009, an MRI scan of the lumbar spine was performed. The conclusion was no disc radial tear, herniation or neural impingement indentified.
17 On 17 August 2011, an MRI scan of the lumbar spine was performed. The result was:
“Disc Specific findings:
Normal appearances of the T12-L1, L1-L2, L2-3 and L3-4 levels. Mild facet joint hypertrophy at L3-4. At L4-5, there is a broad based disc bulge but no obvious neural impingement is seen.
At L5-S1 there is a broad based disc bulge but no neural compromise seen.
Conclusion:
No significant disc protrusion seen. Diffuse disc bulges at L4-5 and L5-
S1. No Neural compromise is identified.”
The Plaintiff’s Medical Evidence
18 The plaintiff relied upon the following reports:
Dr Dominic Yong
19 The plaintiff saw Dr Yong, specialist occupational physician, at the request of the insurer in June 2009 and at the request of the defendant’s solicitor in October 2011.
20 In June 2009, Dr Yong said the plaintiff was suffering with a chronic low-back pain due to an initial soft tissue cause that was now complicated by a deconditioning process which was contributing to her pain. He said the plaintiff was frustrated with the course of her back condition, which may lead to a psychological co-morbidity and if not addressed would further complicate the management of her condition.
21 Dr Yong said the plaintiff had recently commenced a graduated return to work program. It was his view that she had a current work capacity, not for her pre- injury employment, but for suitable employment with the following restrictions:
ƒ avoid repeated bending and twisting of the back; ƒ avoid firm pushing and pulling; ƒ vary posture regularly between sitting, standing and walking; ƒ avoid lifting more than 3 kilograms on a repeated basis. 22 Dr Yong said she needed to participate in a range of activities and physical therapy modalities such as home-based exercise programs, swimming, walking and hydrotherapy. She should continue to do domestic tasks at home. He recommended she participate in a pain management program. He expected her condition would improve.
23 He said her medication consisted of Lyrica, one tablet daily; Panadol Osteo, four tablets daily; Amitriptyline, one tablet daily; and Panadol, one tablet daily.
24 Dr Yong reviewed the plaintiff’s Return to Work Plan, No. 1, dated 25 March 2009, which identified the following duties:
ƒ administration tasks; ƒ making tea and coffee; ƒ customer service; ƒ cash handling; ƒ light cleaning duties. 25 It was his view the duties were reasonable and that she should participate in a graduated return to work program.
26 On 3 October 2011, Dr Dominic Yong, reviewed the plaintiff. He had read recent medical reports and said that there was no significant change to the diagnosis and his opinion remained unchanged from his earlier report. He believed the plaintiff had a current capacity to perform tasks within the restrictions in his previous report.
Dr Terrence Lim
27 In July 2009, the plaintiff was referred to Dr Terrence Lim, consultant in rehabilitation and pain medicine, by Dr Michael Brighton-Knight, her treating orthopaedic surgeon. Dr Lim agreed with Dr Brighton-Knight that the plaintiff’s pain was mainly driven by central sensitisation and reflected physically by a combination of mechanical back pain, due to an extremely poor posture, hyper-irritable muscles, as evidenced by multiple, muscular trigger points in a regional distribution and embellished by a lack of understanding of the mechanisms of chronic pain (not her fault). At that time, the plaintiff was taking medications of Lyrica; Norspan patch, 5 milligram per hour, changed weekly; Panadeine Forte; Panadol Osteo; and Temazepam.
28 Dr Lim said that the plaintiff had extremely poor posture due to a major increase in the anterior tilt of her pelvis and consequent increase in lumbar lordosis to maintain an erect posture. This had resulted in a persistent hyper extension movement which caused mechanical back pain. He commented on the development of myofascial pain syndrome. It was his view, that with a combination of a mechanical back pain/muscular hyper-irritability and central sensitisation, she would benefit greatly from attending the Cabrini Hopetoun Pain Rehabilitation Program as a residential stay patient, living in supported accommodation in Melbourne.
Dr R N Rose
29 In September 2009, the plaintiff saw Dr Rose, a psychiatrist, at the request of the defendant’s insurer. She had returned to very limited part-time work for seven hours a week doing filing and odd jobs at the council. She said she could not increase her hours of work because of the pain, which was increased by prolonged standing, sitting and twisting. She told Dr Rose that she had been mildly depressed with negative feelings about herself, because of an inability to cope as she did before. She said she slept well but tired easily. She complained of reduced energy level, chronic pain, forgetfulness, poor libido, and reduced sexual activity because of pain. She said she performed light household duties with her adult children performing the heavy household tasks. She liked going out for meals and playing the poker machines with a friend approximately once per week. She said her relationship with her partner had been good until her injury, but she had withdrawn socially and they had less in common.
30 Dr Rose said she had no current evidence of anxiety or depression. She was not suffering from a psychiatric illness and there was insufficient evidence to say she was suffering from an Adjustment Disorder or a Pain Disorder.
31 Dr Rose said, from a psychiatric perspective alone, the plaintiff has the capacity to increase her hours. Her main problem is the presence of intolerable pain.
Mr S Schofield
32 In June 2011, the plaintiff was referred to Mr S Schofield, orthopaedic surgeon, by her general practitioner. The plaintiff told him she continued to work with low-back pain but developed the gradual onset of bilateral leg pain, worse on the left side, and persistent back pain. She said physiotherapy, swimming and walking did not help.
33 She complained of left-sided low back pain with posterior referred leg pain down the back of the calf to the foot and occasional right leg pain to the calf. She said her leg pains are worse than the back pain and she gets acute spasm of pain in the back. She said she was a restless sleeper and she was better with her spine flexed on the right side. On examination Mr Schofield noted wasting of the left buttock, tenderness in the low lumbar spine and minimal lordosis. Apart from sensory changes affecting the left leg, she had no neurological signs apart from a reduced left knee jerk. Mr Schofield arranged x-rays, including views in flexion and extension, which were normal. He recommended an MRI scan and said he would provide his thoughts once that was performed. He accepted she had an injury to her back.
34 The MRI scan was performed but Mr Schofield’s opinion was not provided.
Mr David Brownbill
35 On 15 June 2011, the plaintiff saw Mr David Brownbill, consultant neurosurgeon, at the request of her solicitors. He said at the examination there was no objective neurological abnormality of the lower limbs, no signs of radiculopathy and the range of thoracolumbar spinal movements (active) was full in all directions. MRI scanning did not show any relevant abnormality. He said she had suffered a soft tissue injury to structures about the lumbar spine. From the physical neurosurgical point of view he was unable to explain the basis for her continuing ongoing, unremitting back and bilateral leg pain. He said, in view of her described ongoing symptoms of pain, it would be prudent for her in the future to avoid activities involving: heavy lifting; forced spinal movement; repeated bending; or prolonged standing or sitting. He said she would be capable of work activity avoiding those actions. However, on the description provided, he said she would have to work reduced hours, the number being dictated by her responses to the activity. He said the activity restrictions applied to her social, domestic and recreational activities, which he described as “a moderate degree”. He could not provide a basis for her ongoing pain and considered her prognosis must remain guarded. He said because the pain had continued and increased over two and a half years, he said it may be anticipated to continue further.
36 He said because of her described ongoing symptoms, he did not consider she had the capacity to perform her pre-injury duties. He said her prognosis was uncertain because the exact basis for her ongoing increasing pain was not identified.
37 On 15 September 2011, Mr Brownbill said, after reviewing the MRI scan of the lumbar spine performed on 17 August 2011, that there was no indication to modify the opinions he had previously expressed.
Medical Records of Dr Leffler
38 The plaintiff tendered as part of her material the clinical notes of her general practitioner, Dr Peter Leffler, of Shepparton. Dr Leffler did not provide a medical report, nor did he give evidence. He did not attend for cross- examination. The clinical notes were the doctor’s records relating to his treatment of the plaintiff. They detailed the plaintiff’s complaints, the prescriptions provided, the referrals made and the discussions in respect to return to work agreements. The records confirm that the plaintiff first consulted him in March 2009 and thereafter regularly in relation to her back injury. The following are an example of the relevant notes:
39 By April 2009, he recorded:
“Poor sleep, depressed mood and low self-esteem and prescribed
Effexor.”
40 In July 2009, he recorded back pain and sciatica, and listed five issues related to the work injury.
41 In October 2009, he noted:
“Really needs inpatient management for her neuropathic pain. W-C not allowed this so far. Has seen specialist who verified that her pain IS NOT in her head, despite CAT not showing anything wrong with her lumbar discs.”
42 In November 2009, he recorded:
“O/E pain paravertebral regions neck to sacrum.
Max pain at L4-5 sacral area.
Can flex to knee.
Lateral flexion.
Letter created – re Vic WorkCare certificate.”
43 On 26 May 2010, he recorded:
“Restricted movement, sciatica, back pain. Back tender. Restriction
present.”
44 On 27 May 2010, he recorded that:
“The patient has been suffering from neuropathic pain.”
45 In May 2010, he recorded that the plaintiff wished to attend pain management clinic and acupuncture.
46 The records disclose that the plaintiff was:
•
being treated for depression for her work injury and being prescribed Effexor from April 2009;
•
attempting to return to work on return to work programs and being frustrated because she could not perform her work;
• complaining of a “terrible ongoing pain” and was – “upset and almost crying: says it’s the pain.”
“still pain down the leg”
and:
“Has now still a lot of muscle spasm and not pain-free yet. Has
pain in knees and back and finds it difficult to work.
Was terrible pain in neck and left shoulder pain.
Feels awful and pain from neck and down into legs.”
47 The records also disclose that Dr B Todhunter, specialist in anaesthesia and pain medicine, saw the plaintiff at the request of Dr Leffler and said he thought the plaintiff had discogenic pain from L4-5. He said she had essentially a mechanical back pain, most likely discogenic in origin.
The Defendant’s Medical Evidence
48 On 11 March 2010, Mr John A L Hart, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s insurer for the purposes of an impairment assessment. She complained of lower dorsal pain, extending to the lower lumbar spine and down the left lower extremity to the heel. She said the pain was constant and aggravated by walking, bending, sleeping, turning, twisting and reaching forward. She had paresthesia in the left lower extremity. She was not receiving any physical treatment, but conducted a self-managed exercise program involving swimming and walking. Her only medication was Lyrica. She said that the pain affected her sleep.
49 On examination, he said she had a full range of movement in the thoracolumbar spine, with pain at the extremes and the lower back in all directions. Straight leg raising was to sixty degrees, the slump test was negative, and she was able to lean forward when sitting on the examination couch, with her knees extended. She had a positive cranial compression test and there were no abnormal neurological signs in the lower extremities.
50 It was his view that the plaintiff was suffering from chronic low back pain for which no organic lesion had been demonstrated in the lumbar spine. He said that that this represented an abnormal reaction to a soft tissue injury. She presented with positive Waddell features. He said her impairment was stabilised and that it was unlikely to change by more than three per cent in the ensuing year, with or without medical treatment. He assessed her impairment for the lumbosacral spine at zero per cent, whole person impairment.
51 On 6 September 2011, Dr Ester Langenegger, programs manager of the pain management program of Albury Wodonga Health, confirmed that the plaintiff was admitted to a three-week chronic pain management program on 4 September 2011, with chronic low back pain and discharged herself from the program on the second day due to a number of family/home issues, which affected her participation in the program. She was distressed about being away from home.
52 On 3 October 2011, Mr Ian Jones, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitors. He said the MRI scan of August 2011 suggested some slight bulging of the L4-5 and L5-S1 discs with some mild facet joint arthritis at L3-4. There was no evidence of neurological impingement. It was his opinion that the plaintiff presented with lumbar back pain symptoms, with restrictions of spinal movement and a history suggestive of sciatica. He was unsure of the plaintiff’s basis for her complaints of sciatic symptoms involving her left leg. He considered her level of lumbar back pain and disability was somewhat disproportionate to the pathology suggested on radiographic investigations.
53 He said that, because of the plaintiff’s inadequate level of pain control, and accepting the restrictions she described, she would be precluded from engaging in work described as: sales assistance; checkout operator; visual merchandiser; kitchen hand; shelf filler; café worker or bar attendant and barista. He said she had the ability to undertake sedentary employment of a clerical nature where there is no requirement to lift or bend.
54 In a letter to the defendant’s solicitor dated 18 October 2011, Mr Jones said the plaintiff had the capacity to undertake duties described of a receptionist; care management administration officer; and administration officer/leisure facility.
Return to Work Offers
55 On 25 March 2009, the plaintiff was provided with an offer of suitable employment which was certified by her general practitioner for a period of two hours a day, three days a week, for a trial of one week.
56 On 9 April 2009, Work Options provided an initial assessment report, which confirmed that the plaintiff had returned to work six hours per week, just prior to the assessment, and that she would not make a greater return until after her consultation with an orthopaedic surgeon on 29 April.
57 On 22 May 2009, a second offer was made to the plaintiff, working six hours per week, two hours every second day, being Monday, Wednesday and Friday, which was certified by her general practitioner. On 20 June 2009, a third offer was made to the plaintiff, with the plaintiff working six hours per week, Monday, Wednesday and Friday, for four weeks; then increasing her hours to seven hours per week, working Mondays, Wednesdays and Fridays, for a further four weeks, certified by the plaintiff’s general practitioner.
58 On 16 September 2009, a sixth offer was made to the plaintiff, working seven hours per week, Monday, Wednesday and Friday, for a period of four weeks. A seventh offer was made on 9 October 2009, of seven hours per week, Monday, Wednesday and Friday, for a period of four weeks. That offer was not accepted and her payments were terminated.
Credit of the Plaintiff
59 The plaintiff was consistent in reporting the injury and its causes to doctors whom she saw.
60 In cross-examination, the plaintiff was vague, had a poor recollection of events, particularly how often she attempted to return to work and for how long in 2009. She could not remember how often she attended the physiotherapist and was vague about the frequency with which she attended the pokies. She had difficulty remembering when she was the assistant coach and team manager for the netball team. I formed the view she was not a good historian. That may be due to a lack of education and the need for recalling events in her day-to-day life. She made concessions: she accepted there was a contradiction in the fact that she could sit at the pokie machines for in excess of two hours yet could not perform the work required on the return to work programs. I accept she is a witness of truth.
Analysis of the Evidence
61 It is relevant that I comment on the status of the plaintiff’s medical evidence from her treating doctors. First, as mentioned, the plaintiff relied upon the medical records of her general practitioner, Dr P Leffler. Those records show that the plaintiff consulted Dr Leffler regularly for her work injury from March 2009. The records are detailed and do contain some thoughts of the general practitioner. However, the medical records are limited in value as Dr Leffler has not expressed an opinion as to his view of the plaintiff’s condition, her presentation, in particular the various complaints of pain, the level of activity in which she has engaged, the likely future course of her medical condition and how it will affect her work activities and her daily living. Further, what is lacking is Dr Leffler’s view as to the role the psychological matters were playing in the plaintiff’s medical condition. This is particularly important due to the references to depression and the treatment for it referred to in his records. It became particularly relevant because the doctors who examined the plaintiff could not explain the basis for her back and bilateral leg pain given the radiological findings.
62 Secondly, the report of Dr Terrance Lim, rehabilitation and pain specialist, commented upon the plaintiff’s pain in 2009 and referred to the development of myofascial pain syndrome maintained by central sensitisation. He accepted there was a combination of a mechanical back pain/muscular hyperirritability and centralisation, and that she would benefit from a pain rehabilitation program. I infer that because Dr Lim referred to “a mechanical back pain” he accepted the back pain was due to an organic injury. Counsel for the defendant said Dr Lim failed to identify the compensable injury. I do not accept the criticism of the report: it is written based upon Dr Lim’s speciality of rehabilitation and pain medicine.
63 Thirdly, the plaintiff was referred by her general practitioner to Mr M Brighton Knight in May 2009. That report was served upon the defendant, who requested the doctor to be available for cross-examination. I was informed that the plaintiff no longer wished to rely upon his report. In those circumstances, I can draw the inference that Mr Brighton Knight would not have assisted the plaintiff. I also note that there is no report from the physiotherapist. That may be due to the fact that physiotherapy was limited to a few sessions in 2009.
64 Fourthly, in the subpoenaed records of the general practitioner there was a letter dated 24 May 2010 to Dr Leffler from Dr Todhunter, pain specialist. He said, on examination of the plaintiff:
“Pain is affecting her psychosocially and emotionally and is somewhat overwhelming and that was apparent during the appointment and assessment.”
65 His provisional diagnosis was that the plaintiff had discogenic pain from L4-5 and that she essentially had a mechanical back pain, most likely of discogenic origin and neuropathic leg pain. He suggested that she take part in a cognitive behaviour pain management program for which he would provide a referral for the pain program at Wodonga.
66 Fifthly, in 2011, the plaintiff was seen by Mr Schofield, orthopaedic surgeon, who recommended a MRI scan to determine whether there was evidence of a prolapse and any obvious nerve compression. He did not review the MRI scan of 2011 and the plaintiff said she did not intend to return to Mr Schofield.
67 The plaintiff’s treating medical opinions were limited to the medical records of the general practitioner and the limitations of those records, and the reports of Dr Terrence Lim of 2009 and Mr Schofield of 2011, both of limited value. Mr Lim’s views are not current and there is no analysis by Mr Schofield of the MRI scan that he ordered. This need not necessarily be fatal but is a limitation in the plaintiff’s medical evidence.
68 Counsel for the defendant submitted that there is insufficient evidence to reach the conclusion that the plaintiff has suffered a serious injury that meets the statutory definition. Counsel relied upon the following:
(a) There is no treating practitioner who made a diagnosis; there is simply the plaintiff’s complaints of pain; (b) Most of the doctors (orthopaedic and neurosurgeon) were unable to explain the level of pain the plaintiff complained of given their results on examination and the radiological findings; (c) There is evidence that the plaintiff complained of symptoms and exhibited signs with respect to her low back injury that were of a no- organic kind. Any non-organic consequences must not be taken into account. 69 It is necessary for me to consider all the evidence.
70 In Jayatilake v Toyota Motor Corporation Australia Ltd,[6] Ashley JA said that where the medical evidence is consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the evidence permits the conclusion that the physical consequences of the injury constitute a serious injury, then it is not necessary to disentangle and strip away the psychological or psychiatric consequences. In Jayatilake,[7] Ashley JA evaluated all the evidence. Having done that, he was able to say that, notwithstanding the presence of psychogenic factors of pain, which were not explicable by an organic injury, he could be satisfied that there was evidence about the nature and extent of the physical injury.
[6] [2008] VSCA 167 at [21] and [22]
[7] supra
71 The plaintiff was employed 20 hours per week with the defendant, for whom she had worked for several years. Prior to that, she worked in supermarkets. She was injured at work in January 2009 and continued to work until March of that year when her symptoms increased. She consulted her general practitioner, who referred her for a CT scan of her lumbar spine, which was within normal limits, and prescribed Panadeine Forte. She was referred to an orthopaedic surgeon, Mr Brighton-Knight, who referred her to a pain specialist, Dr T Lim. She complained of further pain and depression, for which she was prescribed Effexor. An MRI scan was performed, which showed there was no identifiable disc radial tear, herniation or neural impingement. In May 2009, Lyrica was prescribed. Physiotherapy was recommended and Norspan patches were trialled. Pain management programs were suggested by the general practitioner, Dr Lim and Dr Todhunter. Throughout the period from late March until December 2009, the plaintiff attempted return to work plans. However, she was unable to recall the periods for which she worked. Further, those attempts were unsuccessful because of the level of pain she suffered. In 2010, the plaintiff received treatment from her general practitioner, who prescribed medication for her pain and depression. In 2011, the plaintiff continued to consult her general practitioner, sought acupuncture treatment and consulted Mr Schofield, orthopaedic surgeon. She enrolled in a pain management clinic in Wodonga but left on the second day of a fifteen- day course. She told the Court that she had an appointment to see a counsellor to assist her in returning to the course.
72 The plaintiff’s evidence was that she suffered constant chronic pain, which was variable and worse with activity. Currently, her medication includes Durogesic patches every third day; antidepressant medication in the form of Effexor, Panadeine Forte, Lyrica (four to six per day) depending on pain levels; and Panadol Osteo. None of the medical practitioners suggested that her medication was excessive.
73 The plaintiff said her sleep was affected and that she could no longer work. She said she had attempted the return to work programs but ceased because of the pain. She has made no attempt to obtain available employment.
74 She said she was no longer able to participate in her daughters’ sporting activities, which she had done in the past. However, her daughters are now aged twenty and twenty two, both have driver’s licenses and, according to Mr Jones, both have partners who live in the matrimonial home. Neither of her daughters was playing sport in a competition this year and the plaintiff did say she attended their sporting matches. I consider that the reduced level of involvement the plaintiff now has in her daughters’ sports is largely due to the independence of her daughters rather than her injury. The plaintiff said she was able to attend pokie venues on a regular basis and sit for between one and four hours playing the machines. She accepted that there was a contradiction in the fact that she could sit and play the pokie machines but could not sit and perform her return to work programs for two hours, three days per week.
75 All of the medical witnesses agreed that the investigations were essentially normal and that the neurological examination revealed either no findings or very limited findings. There was no evidence of any neurological impingement. Mr Brownbill reviewed the MRI scan of 2011 and said it did not cause him to alter his previous opinion.
76 Most of the doctors accepted the plaintiff had suffered an organic injury, but noted that the type of injury she sustained did not account for the symptoms and the level of pain she reported. Most of the medico-legal doctors said she suffered low-back pain due to a soft tissue injury. Mr Hart described the low- back pain as chronic and said it was an abnormal reaction to a soft tissue injury. Mr Yong said the soft tissue injury was complicated by a deconditioning process, which was contributing to her pain. Mr Brownbill said she suffered soft tissue injuries to structures about the lumbar spine. He said he could not explain, from a physical neurosurgical point of view, the basis for her ongoing, unremitting increasing back and bilateral leg pain.
77 Mr Ian Jones said the plaintiff presented with lumbar back pain symptoms with restrictions of spinal movement and a history suggestive of sciatica, which he discounted as the repeated radiographic investigations showed no evidence of any neurological involvement to explain her left leg symptoms. He said that her disability was disproportionate to the pathology.
78 Dr Leffler recorded discogenic-based pain from the L4-5 disc and neuropathic pain. Another doctor in his practice recorded maximum pain at the L4-5 sacral area after examination, yet since April 2009, the plaintiff was being treated for depression and was referred to counselling. Dr Todhunter said she had a discogenic pain injury and noted the pain was affecting her psycho- socially and emotionally.
79 The plaintiff relied upon Mr Rose’s report of September 2009 as supporting the fact that she was not suffering from a psychiatric condition. Mr Rose’s report is of limited value. First, it is not current. Secondly, Mr Rose was not aware that the plaintiff was being prescribed Effexor by her general practitioner. Thirdly, the plaintiff was examined by Mr Rose on 8 September 2009 and six days later, on 14 September 2009, she consulted her general practitioner for Major Depression (according to Dr Leffler’s notes).
80 I accept that no medical opinion suggested that the plaintiff was anything but genuine. There was no suggestion that she had engaged in illness behaviour. None of the medical witnesses suggested that she should be reviewed by or seek treatment from a psychologist or psychiatrist.
81 Based on all the evidence, I am satisfied the plaintiff suffered a compensable injury, being an organic injury, arising out of, or in the course, of her employment with the defendant.
82 I accept that the plaintiff complained of symptoms and exhibited signs with respect to her back that were of a non-organic kind.
83 The evidence of the consequences did not sufficiently establish whether the consequences were attributable to the organic or non-organic injury.
84 I accept that the plaintiff has suffered consequences for the organic injury, but I cannot be satisfied as to the extent of the consequences. She suffers pain, which she describes as constant chronic pain, worse with activity. The fact that the pain is worse with activity suggests that it is related to the organic injury. Mr Brownbill said from the physical neurosurgical point of view, he was unable to explain the basis for her continuing ongoing unremitting back and bilateral leg pain. Mr Hart said her chronic low-back pain was an abnormal reaction to a soft tissue injury. Mr Jones said the level of low-back pain and disability was disproportionate to the pathology.
85 The plaintiff requires pain medication daily. I find that it is reasonable to accept the plaintiff may require medication for the organic injury. I note that no doctor has expressed the view that her level of medication is inappropriate. Mr Brownbill described her activities of daily living (domestic, social and recreational) as affected to a moderate degree.
86 Mr Brownbill and Mr Jones said the plaintiff could not perform her pre-injury work duties but could perform alternative duties.
87 There is no doubt that the plaintiff’s working life has been affected. So, too, have her domestic, social and recreational activities. I accept her injury has resulted in consequences to this plaintiff.
88 No doctor expressed a view as to the duration of the plaintiff’s incapacity. Mr Brownbill said her prognosis was uncertain and Mr Yong expected her condition would improve.
89 Taking all the evidence into account, I am not satisfied that the plaintiff has suffered a serious injury with respect to her back within s.134AB(38)(b) of the Act.
90 Accordingly, I dismiss the application.
- - -
0
3
0