Sherwell v Victorian WorkCover Authority
[2024] VCC 80
•21 February 2024
|
COMMON LAW DIVISION SERIOUS INJURY LIST
Case No. CI-23-01822
FELICITY SHERWELL Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY Defendant
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JUDGE: HIS HONOUR JUDGE FRAATZ
WHERE HELD: Melbourne
DATE OF HEARING: 17 October 2023
DATE OF JUDGMENT: 21 February 2024
CASE MAY BE CITED AS: Sherwell v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION: [2024] VCC 80
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – Pain and suffering – Later transport accident – Injury to the low back – Credibility – Later transport accident, disentangling psychological consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Popal v Transport Accident Commission [2023] VSCA 222; Humphries v Poljak [1992] 2 VR 129; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Kavanagh v The Commonwealth (1960) 103 CLR
547; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; Dressing v Porter & Anor [2006] VSCA 215; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Church v Echuca Regional Health (2008) 20 VR 566; Thapa v Transport Accident Commission [2021] VSCA 239; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to commence proceedings for pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
For thePlaintiff | Mr N Dunstan | Hounslow Lawyers |
For theDefendant | Mr C O’Sullivan | Wisewould Mahony |
HIS HONOUR:
1The plaintiff, Felicity Sherwell, is currently aged 41 years, but was only 34 when she injured her low back in the course of her employment with Spendless Shoes Pty Ltd on 26 October 2016.
2She seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences, being for the permanent serious impairment or loss of a body function. The injury relied upon is to the spine.
3It is not in dispute that the plaintiff suffers mild pathology in her low back.
4Her WorkCover claim was accepted, and it is not in dispute that Ms Sherwell suffered a compensable injury.
5The claim is complicated by Ms Sherwell’s involvement in a head-on collision on 1 September 2018. A car which was on the wrong side of the road struck the right- hand side of her vehicle. It is not in dispute that she injured her neck, upper back, chest, shoulders, and exacerbated her lower back injury in the motor vehicle accident. The plaintiff’s evidence is that her low back pain returned to the same level it was prior to this accident.
6The issues for resolution in this case are as follows:
(a)the extent of the plaintiff’s ongoing injury and incapacity relative to the incident at work;
(b)her credibility and/or the reliability of her evidence;
(c)disentangling any psychological component of her current incapacity;
(d)her capacity to partake in her pre-injury employment; and
(e)whether the consequences of her low back injury meet the statutory test.
Legal principles
7The relevant legal principles are not in dispute.
8The plaintiff bears the onus of demonstrating that her impairment is permanent, and that the consequences are serious.
9She must establish that the consequences to her with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, or mental or behavioural disturbance or disorder respectively, are fairly described as being more than significant or marked, and as being at least very considerable, in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.1
10In Ellis Management Services Pty Ltd v Taylor,2 the Court of Appeal stated:
“35. While pecuniary disadvantage consequences may not fall for consideration in a pain and suffering damages only case, as was acknowledged by the appellant, that does not mean that in all cases a worker’s inability to engage in employment of a particular kind has no relevance in an application for leave to commence a proceeding for pain and suffering damages. As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.
...
44. While the appellant’s argument with respect to ground 1 was initially expressed in broad terms (namely that loss of earning capacity consequences could not be relied upon by a worker seeking leave to commence proceedings for the recovery of damages for pain and suffering only), in argument the appellant accepted that loss of the ability to engage in particular forms of employment may be relevant to the issue of pain and suffering consequences in the following ways:
(a)First, pain may in fact be experienced at work or while performing particular types of work.
see Humphries v Poljak [1992] 2 VR 129 at 140
[2013] VSCA 326
(b)Secondly, the inability to perform certain work may be indicative of what injury has in fact been sustained by the worker.
...
(c)Thirdly, a worker might suffer a loss of enjoyment of life in being unable to perform work which he or she used to enjoy. Under this heading there may also be pain and suffering consequences in respect of any frustration of a worker at being unable to perform activity that he or she used to be able to perform.
52. ... After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.
…
57. The test of what is a ‘serious injury’ is subjective in the sense that the effect on a bodily function of the particular applicant must be considered and the consequences of the injury must be serious to that applicant.
58. Nevertheless the relevant assessment must be made objectively by the court. It is the judge’s opinion as to the seriousness of the impairment or loss which is determinative, not the opinion of the applicant or medical practitioners.
59. The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range
... .”3
11In terms of causation, a plaintiff must prove on the balance of probabilities that a causal connection exists between the employment and the injury.4 This is a question of fact, and is to be approached, like any other causation question, as a matter of common sense.5
12Ms Sherwell bears the onus of establishing the consequences of the impairment of function from her work injury. Where relevant, the plaintiff must identify each injury and then should delineate the impairment consequences of each injury.6
Citations omitted
Kavanagh v The Commonwealth (1960) 103 CLR 547; and see Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232, [49], [50]
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Dressing v Porter & Anor [2006] VSCA 215, [47]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309, in conjunction with Altona Bus Lines v Lococo [2002] VSCA 159
13Maxwell P, in Haden Engineering Pty Ltd v McKinnon,7 stated:
“As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which “an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her]”.”8
14The credit of the plaintiff is of great importance in applications of this type.9
15In considering Ms Sherwell’s evidence, I have had regard to the authorities in dealing with credit on occasions of this type to the effect that the Court must analyse and give appropriate weight to all the evidence, including objective evidence;10 further, that an adverse finding concerning credibility is not, by itself, sufficient to justify the refusal of the serious injury application.11
16Video surveillance needs to be seen in context; and factors such as whether it has been given to the doctors, the circumstances of the surveillance, and the amount of it, must all be considered.12
17The assessment of whether there is a “serious injury” involves matters of degree and value judgment.13
Background
18Ms Sherwell left school after completing Year 12. After an abortive attempt to obtain a teaching degree, she worked in retail and retail management over many years in various locations before commencing work with Spendless Shoes as store manager on a full-time basis at the Pacific Werribee Shopping Centre in September 2015.
(2010) 31 VR 1
Ibid at paragraph [15]
Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi; Transport Accident Commission v Streicher; Transport Accident Commission & Anor v Aust [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10
Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104, at [49]
see cases such as Church v Echuca Regional Health (2008) 20 VR 566
Thapa v Transport Accident Commission [2021] VSCA 239
19Ms Sherwell did not have any issues with her low back prior to her work injury.
20On 26 October 2016, Ms Sherwell slipped on a clear plastic shoe insert which a customer had knocked off a trestle table at the front of the store. She fell onto her buttocks and jarred her low back.
21As Ms Sherwell was working on her own, she remained at the store until a co-worker arrived. She attended a local medical clinic, Resolve Medical Centre, where she was seen by a general practitioner in the shopping centre, Dr Mohammed Mohsin. She returned to work.
22On 4 November 2016, she attended upon her usual general practitioner, Dr Alexander Chan, at Werribee Medical and Dental Centre. An x-ray did not disclose any fractures in the lumbar spine or pelvis. She was prescribed Voltaren tablets for her back pain.
23On 10 November 2016, general practitioner Dr Naleemundeen Sihabdeen diagnosed a soft tissue injury and issued a medical certificate for a month.14
24Ms Sherwell initially experienced some relief through acupuncture.15 She returned to work. An x-ray on 20 December 2016 showed curvature of the lower lumbar spine.16
25She gradually increased her hours to 27 hours per week, performing light duties including cleaning and serving customers. Despite being employed for a notional 27 hours, her unchallenged evidence was that in practice she was working on a ‘half-hour on, half-hour break’ basis; and even then she was not coping and would frequently need to take a day off a week.
26In February 2017, Dr Chan observed her back to be tender on compression over the lower lumbar spine with tense and tender lumbar paraspinal muscles,
Plaintiff’s Court Book (“PCB”) 38
PCB 40
PCB 41
especially on the left side.17 Dr Chan referred her to Back in Motion, physiotherapy clinic.
27Upon attending Mitchell Schwenke, physiotherapist, on 10 February 2017, Ms Sherwell reported lumbar spine pain radiating to her gluteals. Mr Schwenke treated her for persistent lower back pain which also radiated up to her neck and caused pain in her shoulders, left arm and forearm,18 exacerbated during bending, lifting, standing and carrying objects or reaching above shoulder height.
28Upon independent medical examination performed by occupational physician Dr PD Clark on 29 March 2017, Ms Sherwell was complaining of pain radiating up her spine from her buttocks to her neck, causing shoulder and neck pain, stiffness and tightness. Ms Sherwell was having difficulty bending, squatting and reaching above shoulder height.19
29Ms Sherwell’s back pain did not improve. Her physiotherapy continued throughout 2017,20 with sessions reduced from three to two per week in May 201721 and diligent compliance with home-based exercises noted by her treater. Panadeine Forte was relied upon daily.22
30In the latter part of 2017, Ms Sherwell stopped taking her medication as it was causing bad skin reactions.23
31Ms Sherwell continued to suffer from persistent back pain with suspected nerve root compression, and in January 2018 Dr Chan requested approval from the insurer for a further MRI. The history taken at the time included:
“She is working 27 hours a week, working 5.5 hours shift, but pain in the last half to an hour, she is struggling with severe pain. Otherwise, pain
PCB 39
PCB 61 and 64
Defendant’s Court Book (“DCB”) 6
PCB 65
PCB 64
DCB 6
PCB 44, 67
averaging 6-7/10. Her work is mainly standing, though she does sit down on and off. She is taking Meloxicam for the pain.”24
32The request was approved, and MRI of her lumbosacral spine on 15 February 2018 revealed a small right foraminal disc protrusion at L4/5, causing mild compression of the intraforaminal right L4 nerve. Additionally, left L4/5 foraminal disc bulging was identified, encroaching on the intraforaminal left L4 nerve.25
33On 17 April 2018, Ms Sherwell underwent a multidisciplinary pain management assessment at Advance Healthcare. The primary problem she reported was her low back, with constant diffuse sacral symptoms described as “pressure” rated as 7/10; and constant diffuse lumbar systems described as a dull ache rated at 8/10.26 The assessment team reported that Ms Sherwell had “moderate severity non- specific low back pain with likely sacroiliac joint dysfunction.”27 Dr Chan referred her to Dr Malcolm Ong, pain specialist, on 1 May 2018.
34Dr Chan consistently reported that Ms Sherwell has had “persistent back pain after a fall in October 2016”.
35Since 2016, Ms Sherwell has been referred for seven investigations of her low back pain:
(a)x-rays of the lumbar spine on 4 November 2016 and 27 October 2017. These disclosed mild end plate change at L3/4 with no fractures in the lumbar spine;
(b)a CT scan of the lumbar spine on 8 March 2017 disclosed mild degenerative change;
(c)MRI on 15 February 2018 showed no scoliosis, but loss of the normal lumbar lordosis and minor retrolisthesis L5 on S1. Alignment was otherwise normal;
PCB 50
PCB 29-30
PCB 72
PCB 75
(d)MRI of the lumbar spine on 21 August 201928 disclosed a broad based disc bulge at L4 to L5 with a right paracentral intra- and extraforaminal protruded component demonstrating an annular tear. No significant stenosis of the central vertebral canal or evidence of nerve root impingement was detected;
(e)Dr Diarmuid McCoy, specialist pain medicine physician, performed a bilateral medial branch blockade at L2/3, L3/4, L4/5 and L5/S1 on 20 August 2020; and
(f)the most recent MRI on 16 January 2023 revealed mild bilateral facet arthropathy at L1/2 and L2/3, and:
“L3/4: Mild disc degenerative height loss with desiccation and small concentric disc bulge. Moderate facet arthropathy greater on the left. No stenosis.
L4/5: Disc degenerative mild desiccation and small posterior disc bulge. Right mild and left moderate facet arthropathy. Mild bilateral foraminal stenoses. No neural compression.
L5/S1: Disc degenerative desiccation and small posterior disc bulge. Mild bilateral facet arthropathy. No stenosis.”29
36Prior to the motor vehicle accident in 2018, Ms Sherwell:
(a)had pathology in her low back;
(b)had made uninterrupted complaints of pain in her low back for which she took strong prescription pain medication and had received regular and ongoing treatment, including pain management in May 2018; and
(c)was coping “very badly” at work immediately prior to the accident.30
Motor vehicle accident
37On 1 September 2018, Ms Sherwell was driving up a hill along Elcho Road in Lovely Banks when an oncoming car on the wrong side of the road struck the front
PCB 31
PCB 36
Transcript (“T”) 33
right-hand side of her vehicle.31 The airbags deployed, and Ms Sherwell was able to extract herself from her vehicle and walk at the scene. Fortunately, a bystander drove her to Barwon Health Department of Emergency Medicine.32
38Upon presentation at Barwon Health, Ms Sherwell reported experiencing neck pain, that her lower back pain was “mildly worse”, but no other injuries. She had not lost consciousness and had a full recollection of the events.33
39Ms Sherwell was admitted overnight for inpatient care and prescribed analgesia as needed. A scan was performed which showed “no CT evidence of acute intracranial, spinal, thoracic or abdominopelvic trauma…”.34 Barwon Health reported that she did not sustain any injuries from the motor vehicle accident, and she was discharged to the care of her treating general practitioner on 2 September 2018.35
40On 10 September 2018, Dr Chan reported:
“Lower back pain aggravated by the recent car accident on 1/9/2018. Pain intensity up to 8/10 on he [sic] average and above that at times. Neck and chest is also tender.
…
Back – SLR 90 degrees and Femoral stretch positive both sides. Sensation and power normal in the lower limbs. Tense and tender Lumbar paraspinal muscles and pain on compression.
Neck – good ROM but pain at end range. Tense and tender Trapezius muscle and Levator Scapulae muscle both sides.
Thoracic spine – Rotation full but pain in the lower thoracic paraspinal muscles at end range of motion…”36
41She did not work for a few months after the motor vehicle accident before returning to work on modified duties and reduced hours.
Affidavit of the plaintiff sworn 12 November 2022, PCB 6, 11
Barwon Health Department of Emergency Medicine report dated 1 September 2018, PCB 77
Ibid
CT scan report dated 1 September 2018, PCB 78, 79
Barwon Health surgical discharge summary dated 2 September 2018, PCB 80
Referral from Dr Alexander Chan dated 10 September 2018, PCB 57
42Whilst the Transport Accident Commission (“TAC”) funded nine sessions with psychologist, Stavroula Surdich,37 and pain management with Dr McCoy, Ms Sherwell’s treating and examining medico-legals are aware of the motor vehicle accident, and opine that the cause of her current presentation is the work incident.
Credit
43I take into account the plaintiff’s diagnosis of a chronic adjustment disorder, with features of depression,38 which no doubt made the experience of giving evidence difficult.
44Associate Professor Varma also reported that “the worker currently suffers from mild anxiety and depression, low self-esteem and confidence and low motivation, also an inability to deal with the constant chronic pain.”39
45Overall, I found Ms Sherwell to be a forthright person, who did her best to give a straightforward account of her current symptoms and history. That is not to say I found her evidence to be entirely reliable: Ms Sherwell had a habit of qualifying her answers during cross-examination in a manner intended to emphasise her symptoms.
46A specific example is that notwithstanding the consistent medical opinion that she has retained some employment capacity, Ms Sherwell does not herself recognise this.40
47She was cross-examined robustly about her affidavit evidence to the effect that she was unable to do any of the lifting required in retail because of her back injury.41 Counsel for the VWA, Mr O’Sullivan also suggested to Ms Sherwell that this evidence was inconsistent with surveillance footage on 1 September 2023
PCB 83
Report of Dr Justin Lewis dated 20 June 2023, PCB 114, 125
Report of Associate Professor Shashjit Varma dated 14 September 2023, PCB 142, 148
See also her history to Dr Mary Wyatt, DCB 70
T17-18
depicting her picking up a dog weighing more than 5 kilograms and loading it into a vehicle without apparent difficulty. I accept her explanation that her evidence should be understood more broadly to mean that she is no longer able to perform the tasks required of her overall in her pre-injury employment. This interpretation is consistent with the medical evidence referred to below.
48The Victorian WorkCover Authority (“VWA”) also submitted that I ought not accept her as a reliable witness, having regard to the video footage taken of her in March 2023 tending her horses and walking them on a lead. I reject that submission. Whilst the March 2023 surveillance footage did show unrestricted movement, it was consistent with her evidence. It did not disclose her performing any activity of which she had said she was incapable. If anything, it served to emphasise her love for horses and the significance of the loss of capacity to work her horses, let alone ride them. Prior to her injury she enjoyed weekly rides, including trail rides over several hours.
49As in the case of Church,42 the entirety of the evidence must be considered, and, despite it being shown to doctors such as Professor Teddy, the surveillance footage does not cause me to have any significant doubt as to Ms Sherwell’s credibility as a witness.
50There are numerous references in the medical reports of both treating and medico- legal doctors, to the effect that Ms Sherwell presented in a straightforward manner, without any pain behaviour.
51In Cakir v Arnott’s Biscuits Pty Ltd,43 the Court of Appeal said an adverse finding concerning the appellant’s credibility was not, by itself, sufficient to justify the refusal of the serious injury application. Regard should be had to analysing and giving appropriate weight to all of the evidence, including objective evidence.
Supra, (2008) 20 VR 566
Supra, [2007] VSCA 104
52I do not consider Ms Sherwell to have been deliberately untruthful. On the contrary, I found Ms Sherwell to be doing her best to give an honest account of her circumstances. In the context of seven years of chronic pain, the somewhat flat affect in her presentation at times may have related to her psychiatric condition; it certainly was not inconsistent with her giving credible evidence which overall I accept.
Ms Sherwell’s injury
53There is broad agreement that the pathology in Ms Sherwell’s low back does not include any radiculopathy, but is consistent with musculoskeletal injury and mechanical back pain with an organic basis.
54In August 2023, Dr Eman Awad, occupational physician, diagnosed aggravation of lumbar spondylosis, and an adjustment disorder with anxious and depressed mood.44 In Dr Awad’s opinion, the original index injury at work is likely to have been a significant contributing factor to the plaintiff’s ongoing injury and sequelae.
55Likewise, in March 2023, occupational physician Dr Mary Wyatt diagnosed mechanical back pain. In her view:
“There was no clinical or investigative evidence of disc protrusion or associated sciatica. There is a disc protrusion which suggests mild compression of the left L4 nerve root, though her symptoms do not correlate with this and there is no clinical picture of radiculopathy.”45
56Dr John Lange, occupational physician, examined Ms Sherwell on 15 May 2019. Ms Sherwell described to Dr Lange constant pain in the middle of her low back into the buttocks, rated at 6 to 10 out of 10.46 Her symptoms had not altered over the previous 12-month period and the pain management course did not provide her any sustained relief. Upon examination he found that Ms Sherwell had an excellent range of movement of her lumbar spine.
Report, 12 August 2023, PCB 136
Report of Dr Mary Wyatt dated 23 March 2023, DCB 62, 70
DCB 34
57Dr Lange reported to the WorkCover insurer that:
(a)he was “unable to provide a clear diagnosis”;
(b)Ms Sherwell “suffered from some neck pain and shoulder pain as a result of her motor vehicle accident”;
(c)her “soft tissue injury to the low back with musculo-ligamentous strain as a result of falling heavily on her buttocks” had now resolved:
“It is my opinion had this lady not been involved in a motor vehicle accident, she would have completely recovered from her work related condition. As such, her current incapacity in my opinion in regard to her physical low back condition, is not related to her claimed work related injury.”47
58Dr Lange’s report does not explain this opinion in the face of unaltered symptoms in the low back and referral for pain management before the motor vehicle accident. He did not have the benefit of the later MRI dated 21 August 2019 or the more recent MRI reports in 2023. I prefer the more recent opinions, in particular Mr Thomas, for those reasons.
59In 2019, consultant surgeon Mr Peter Scott diagnosed work-aggravated minor discogenic disease of the lumbosacral spine with possible intermittent involvement of L4 nerve root or roots, together with what appears to be an anxious, nervous or depressive response, requiring psychotherapy.48 He accepted that her symptoms were consistent with the nature of the injury which occurred on 26 October 2016.
60Occupational physician Mr PD Clark examined Ms Sherwell on behalf of the VWA on 29 March 2017. He diagnosed her as suffering from mechanical back pain “from an injury in the course of her normal duties”:
“A slip on a clear plastic shoe insert on the floor was a significant contributing factor the claimed injury and the injury remains a material contributor to her current condition.”49
Report of Dr John Lange dated 15 May 2019, DCB 33, 36
Report, 2 May 2019, PCB 104, at 109
Report of Mr PD Clark dated 12 August 2023, DCB 5, 8
…
“It was an acute injury and no previous history of back pain was identified.”50
The neurosurgeons
61In his medico-legal report of 25 July 2023, Dr Hazem Akil, neurosurgeon, diagnosed aggravation of lumbar spondylosis caused by the workplace injury in October 2016.51
62Neurosurgeon Professor Peter Teddy examined Ms Sherwell in February 2023 and recorded a history of constant low back pain with bilateral radiation to the buttocks and into the feet, more on the left than on the right. In his opinion:52
(a)her back pain appears to be of a mechanical nature (musculoligamentous), with the radiological findings representative of mild lumbar spondylosis. He accepts, as a result of the initial injury, that Ms Sherwell suffered mechanical back pain related to the lumbar spine;
(b)his clinical findings and the radiology “are such that one might reasonably expect a greater degree of functional activity and a lesser degree of pain presented purely on an organic basis”;
(c)he would have expected this to settle with conservative treatments over the course of the following year;
(d)there is an intertwining of medical (organic) and psycho-sociological aspects of the pathological processes which is substantial, with attempts to differentiate the relative influence of one or the other extraordinarily difficult;
(e)had it not been for the motor vehicle accident, she may have continued working for the foreseeable future in the manner she had at that time adopted;
DCB 9
Report, 25 July 2023, PCB 130
Reports dated 27 February 2023 and 6 October 2023: DCB 50 and 86
(f)Ms Sherwell almost certainly suffers a chronic pain condition, with an overlay of psychosocial components, but he would defer to expert psychiatric opinion in this regard.
63Professor Teddy accepts the injury is compensable, and that there is an organic basis for Ms Sherwell’s pain. He noted her straightforward demeanour, as did all other examining doctors.
64In his supplementary report dated 6 October 2023, Professor Teddy, relied upon the surveillance footage of March 2023 to moderate his opinion as to compensable injury:
“I believe that the surveillance video reinforces my views expressed at that time. The video evidence would suggest that, in terms of purely organic mechanical injury to the lumbar spine attributable to the original incident, while there may have been an exacerbation of pre-existing mild spondylosis, any such effects do not appear to have continued in the long term.”53
65Mr Nick Hall, treating neurosurgeon, accepted the circumstances of the work injury and in January 2023 diagnosed black disc associated back pain, musculoskeletal in nature, rather than relating to compressive neurological sequelae.54
66There is no indication at present for surgery or any ongoing specialist treatment.
Psychiatric opinion
67Associate Professor Shashjit Varma, consultant psychiatrist, diagnosed mild anxiety and depression, with low self-esteem and confidence and low motivation, and an inability to deal with the constant chronic pain. In his opinion:
“From a purely psychiatric perspective, not considering the pain at all and this will be a hypothetical scenario, she has a capacity for work. However, considering the pain and the person as a whole I do not believe she can work until the pain improves.”55
DCB 88
Report, 20 January 2023, PCB 101
Report, 14 September 2023, PCB 142 at 148
68Associate Professor Varma appears to accept that the pain is the driver of her incapacity, which pain he accepts is genuine. He effectively disposes of any question of disentanglement because “from a purely psychiatric perspective”, in his opinion Ms Sherwell “has a capacity for work”.
The pain specialists
69Dr Diarmuid McCoy, a treating specialist pain medicine physician, recorded a history upon examining Ms Sherwell in January 2020 that her original back pain had been exacerbated by the 2018 motor vehicle incident.56 Dr McCoy did not express any considered view as to causation in terms of his findings upon examination that:
“the pain is now in her back radiating down her left leg as far as foot with some pins and needles in her foot. She also gets pain radiating into her groin.”
70This opinion is contained in a letter to Dr Chan, Ms Sherwell’s general practitioner, following a referral and initial consultation. Like other doctors, Dr McCoy noted that Ms Sherwell presented as a “pleasant cooperative extremely coherent lady who gave a very good history of a problem. She did not demonstrate any abnormal pain behaviour.” He recommended diagnostic local anaesthetic blocks and a multi-disciplinary assessment.57
71In his report to the TAC dated 25 September 2020, Dr McCoy records that Ms Sherwell “has significant back pain which is preventing her returning to the paid workforce”. He reported that the medial branch blocks did not identify the generator of the pain and also caused a flare up of her symptoms lasting a number of weeks. He recommended seven days inpatient ketamine infusion “as an effort to decrease her pain globally”.58
72
Having regard to the purpose of the initial letter to report back to the referring general practitioner, I place limited weight on Dr McCoy’s opinion in so far as it
PCB 86
Report, 20 January 2020, PCB 86
Report, 25 September 2020, to Transport Accident Commission, PCB 88
might be said to indicate that the motor vehicle accident was productive of the ongoing low back pain and other symptoms he observed at the time he examined Ms Sherwell in 2020. The later report seeking approval for further treatment does not address causation in terms. His reports do not enable me to ascertain a clear opinion as to causation.
73More recently, in July 2023, medico-legal consultant in rehabilitation and pain medicine Dr Clayton Thomas diagnosed Ms Sherwell as suffering from symptomatic spondylosis to her lumbar spine. He reported to Ms Sherwell’s solicitors in these terms:
“The event that occurred at work on 26 October 2016 was a significant sudden stress overload to the structures of the lower lumbar spine. She presents as suffering from mechanical lower backache. Imaging is reasonably unremarkable but there is very little correlation with imaging and pain in these situations.
The onset of her low back condition stems from the event on 26 October 2016 ...
…
The event on 26 October 2016 results in an incapacity to return to full-time unrestricted preinjury work duties.
… her level of function has been compromised. She nonetheless has capacity for employment within significant strict restrictions. Effectively, she cannot perform work in retail. She can only perform work that is semisedentary, part-time work with the ability and flexibility to allow postural changes regularly, a sit/stand desk, for instance. Work close to home within a 20-minute radius of where she lives by car. No requirement to climb up and down stairs. Proximity from car park to work station. Four hours five days per week.
...
The nature of her lower back condition has had a significant, if not profound, impact on her ability to function domestically, recreationally and socially.”59
74Dr Thomas evidently accepted Ms Sherwell’s history to him that:
“She does not think [the motor vehicle accident on 1 September 2018] aggravated her back pain but if it did it quickly returned to pre-accident levels.”
Report of Dr Clayton Thomas dated 25 July 2023, PCB 132, 134
Non-organic injury
75The VWA submitted that the plaintiff has failed to discharge her onus in terms of disentangling any psychological component to her presentation. Ms Sherwell suffers from depression and anxiety, is on Prozac and is under the care of her GP and a psychologist for this condition. Her evidence included that, “I remain very depressed because of my back injury.”60
76I consider there is a substantial organic basis for Ms Sherwell’s physical injury and the consequences outlined above. I have made my findings in accordance with the two-stage analytical approach set out by the Court of Appeal in Meadows v Lichmore Pty Ltd:61
“... The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”62
A serious injury?
77Mr O’Sullivan submitted, correctly, that Ms Sherwell must identify the consequences properly referable to the original injury that arose out of her employment; and exclude the consequences referable to the subsequent injury in the motor vehicle accident in September 2018.63
78I am unable, however, to accept his submission that the plaintiff has failed to do so.
Affidavit of the plaintiff sworn 9 October 2023, [22]
[2013] VSCA 201
Ibid at paragraphs [21]-[22]
See Peak Engineering & Anor v McKenzie [2014] VSCA 67, at [2], [8]-[9] and [24]-[25]
79Although Ms Sherwell suffered an aggravation of her lower back pain in September 2018, particularly in the immediate aftermath of the accident,64 I accept her evidence that the pain eventually returned to the same level of pain experienced by her prior to the motor vehicle accident.65
80The evidence overall shows an uninterrupted path of constant low back pain from the date of her work injury. She had regular treatment from her general practitioner, acupuncturist, osteopath and physiotherapist two or three times a week. She required regular over-the-counter medication and prescription pain medication from time to time. On 1 May 2018, Dr Chan reported to pain specialist Dr Malcolm Ong that in addition to taking Voltaren, at various times in the previous two years Ms Sherwell had been prescribed Celebrex, Mobic, Panadeine Forte, Mersyndol Forte, Neurontin and Norflex for her pain.66
81By September 2018 she had been referred for a number of procedures including x-ray, CT scan and MRI to investigate her low back pain.
82Significantly, Ms Sherwell was actively engaged in a pain management program at the time of the motor vehicle accident. There is no doubt that she was experiencing very considerable incapacity immediately prior to the motor vehicle accident.
83The VWA point to Ms Sherwell’s later attempts to return to work in 2019 stalling at about 16 hours a week, before eventual complete cessation. It submits that absent the motor vehicle accident, Ms Sherwell would have continued to work 27 hours a week. But the medical evidence establishes that the plaintiff has no capacity for her pre-injury employment at this point in time; and nearly all of the doctors attribute her present symptoms and impairment to the work-related incident.
PCB 57
Plaintiff’s first affidavit, [32]: PCB 12
PCB 54
84The only treating doctor who arguably expresses a (somewhat qualified) different view is Dr McCoy in his letter to Dr Chan dated 20 January 2020.67 This evidence on its own is not sufficient to establish that the motor vehicle accident is a cause of the present impairment of Ms Sherwell’s lumbar spine. Nor is the apparent circumstance of the TAC having paid for Dr McCoy’s treatment, without a clear expression of opinion, of any assistance to me in my task. The aggravation to Ms Sherwell’s low back pain in the motor vehicle accident eventually settled.
85Professor Teddy’s evidence in light of the surveillance footage68 is one consideration in this application, but I must consider all of the evidence.
86The evidence as a whole satisfies me that Ms Sherwell’s current impairment from her low back injury is caused by the work incident, and permanent. In particular I rely on the opinions of her treating doctors over many years over that of Professor Teddy, who has examined her only once. Professor Teddy also did not have the benefit of Ms Sherwell’s evidence, which I accept, including her explanations as to the activities depicted in the surveillance footage. In the context of a frank history of the motor vehicle accident, Drs Akil, Awad and Thomas support this finding. The Alfred Hospital did not report that Ms Sherwell had sustained any injury to the low back in the motor vehicle accident.
87I find that her compensable injury has resulted in the following consequences:
·Constant low back pain, with regular flare ups that can last a day.
·Intermittent referred pain, mainly in her left leg and hips.
·Her back and leg pain is aggravated by prolonged sitting, standing, or walking; she can now only sit comfortably for about 30 minutes, stand comfortably for about an hour, and walk comfortably for about 15 to 30 minutes.
Pars. [69] and [72] above
Par. [64] above
·Her back pain is aggravated by any repetitive bending, twisting, or lifting; and she must avoid lifting anything above 5 kilograms.
·She finds walking up stairs difficult.
·Her sleep is frequently disturbed.
·She takes 6 x Panadol and 4 x Ibuprofen on a daily basis to manage her pain.
·She is restricted in doing housework, and avoids doing any repetitive chores, such as vacuuming, mopping, carrying washing baskets, hand washing clothes, and washing dishes.
·Although she is able to cut her lawn with a light battery-operated mower if she has to, she avoids gardening; prior to her injury she would spend two to three hours gardening most weekends.
·Prior to her injury, Ms Sherwell walked her dogs regularly. She now struggles to walk her dogs once or twice a week. When she does walk her dogs, she is restricted by her back pain.
·She has had regular physiotherapy and osteopathy for low back pain, and performs prescribed exercise rehabilitation at home.
·Her socialisation is restricted and now very limited due to her back injury.
·She had to discontinue her Certificate III in Community Service, which she was completing online, due to her issues with prolonged sitting and typing. This has contributed to her general lack of confidence.
88Prior to her injury Ms Sherwell was a keen swimmer, swimming up to 30 laps.69 Her evidence in cross examination included:
“When was the last time you swam for exercise?--I was an avid swimmer right up until the fall at work. I was someone who had been swimming for a very long time. It’s something that I always enjoyed and I was doing
T31
laps, et cetera. I did do self-managed hydrotherapy throughout the time in which I was - like, after I was injured, so I did go to the pool and tried to do things like trying to walk and exercises in the water and that sort of thing, but it’s very difficult to do, it’s very painful, and I don’t currently do that.
And you haven’t tried for quite some time?---No.”
89I regard it as significant that she has been unable to return to this activity.
90She is also now unable to ride her horse. Prior to her injury, she enjoyed horse- riding and participated in competitions. Although she has made several attempts to ride, she was unable to manage because of her back pain. Her accepted love of horses was an important part of her pre-injury life, and I find that Ms Sherwell’s permanent inability to work and ride horses is also a very significant consequence.
91By August 2023, Ms Sherwell continued to take Brufen, Panadol and Ibuprofen for pain relief,70 and remained under the long-term care of her general practitioner. She sees an osteopath every five weeks, and continues with her self-managed physiotherapy and stretches.71
92These symptoms have persisted over the years, with Ms Sherwell reporting to multiple practitioners uninterrupted lower back pain rated at 7/10, further aggravated depending on the type of physical activity. Most activities tend to cause her significant discomfort.72
93As at 15 September 2023, her general practitioner, Dr Mark Magill, recorded Ms Sherwell’s current symptoms as “low back pain, chronic fatigue, bilateral posterior leg pain and sciatica, insomnia, left foot pain, bilateral hip pain and low mood.”73
PCB 129, 139, 144
PCB 139-144
DCB 51, 64-65, 73; PCB 129, 133, 138, 144
PCB 99
The significance of Ms Sherwell’s pre-injury employment as a retail sales manager
94Before her injury in 2016, Ms Sherwell was working full-time hours plus overtime in an unrestricted fashion, in a permanent position. She took no sick leave and was a reliable employee.74 Initially she did not want to lodge a WorkCover claim in case it affected her future job prospects.75
95Whilst Ms Sherwell frankly conceded that she has current capacity to lift one shoebox and perform other light duties on an inconsistent basis, I give significant weight to her unsuccessful attempts, over a period of years, to return to full-time work in the context of her debilitating and chronic low back mechanical pain. There is no suggestion this pain is not genuine.
96Professor Teddy examined Ms Sherwell on a single occasion, and later viewed the surveillance footage. In his opinion:
“Evidence on the surveillance video would suggest that Ms Sherwell is capable of undertaking work, both of a sedentary nature and of moderate physical activity, such as that in which she was previously engaged.”76
97I prefer the evidence of Drs Thomas, Awad and Wyatt that Ms Sherwell is incapacitated from her previous employment, at least to the extent that she is unable to return to her full-time unrestricted pre-injury duties. Ms Sherwell’s longstanding general practitioner does not believe she has retained any capacity.
98The activity depicted in the surveillance footage over a short period of time is not reflective of full-time employment in retail which involves standing all day and manual handling of stock. In re-examination Ms Sherwell explained that she tended to her horses that day for about 30 minutes, after which:
“I would have gone home, taken more medication, sat down and put a heat pack on my back or maybe even had a lie down in bed, I’m not 100 per cent sure on that day, and rested until I went back out to the horses.
History to Dr Awad: PCB 137
PCB 41
DCB 88
So most days when you go to visit the horses do you have a routine you follow when you come back from the horses?---Yes, I do.
What does that involve? What you just told his Honour then?---Yes. Exactly that, yes.
So putting heat packs on, lying down, taking some pain medication?--- Correct, yes, and often having a shower as well when I get home. That’s often the first thing I actually do to help with my back.”77
99In re-examination, Ms Sherwell said that she would like to go back and work in retail, but could not:
“Why can’t you go back to work in retail?---Because I tried for over two years to get back into retail and I tried everything that I could and I did everything that I was asked to do and I never got back to full-time due to the pain.
Could you go back and work in retail now?---No.”78
100Whilst Ms Sherwell appears to have retained capacity for some form of suitable employment, the evidence overall satisfies me that she wishes to return to her previous career. I infer from her evidence that she took pride in her job, was successful in a busy environment, and derived considerable satisfaction from her work in retail.
101As a consequence of her compensable back injury, Ms Sherwell cannot return to her chosen career in retail. The inability to perform unrestricted work is a factor that informs her loss of enjoyment of life, and loss of amenity. It is a significant consequence for her.79
Conclusion
102I have considered not only what Ms Sherwell has lost by reason of the impairment consequences of her back injury, but also her retained capacity for suitable employment and many light activities of daily living such as cooking, cleaning and washing, and tending horses. She only manages her activity by being organised and pacing herself, and it often aggravates her pain.
T 33
T 34
Ellis Management Services Pty Ltd v Taylor, supra
103I find that in combination the consequences to Ms Sherwell of her injury to the low back sustained in the course of her employment on 26 October 2016 are serious within the meaning of the Act.
104Ms Sherwell’s relative youth has increased the seriousness of her injury. She will bear that injury, and its consequences, for the rest of her life.80
105Daily constant pain requiring medication, and the requirement for ongoing conservative treatment, in combination with the interference to her domestic and recreational activity, and the other factors of lack of sleep, her age and her inability to return to her pre-injury employment, result in a finding of serious injury. In my view the pain and suffering consequences to Ms Sherwell of her injury are “at least very considerable”.
106I reject the submission that her injury has resolved and what Ms Sherwell has been left with by way of pain and restrictions is either functional or arises from the later motor vehicle accident.
107For the reasons set out above, I am satisfied that:
(a)Ms Sherwell’s impairment is permanent; and
(b)she has a serious injury by reference to her pain and suffering.
108Accordingly, I grant Ms Sherwell leave under s335 of the Act to bring common law proceedings to recover non-pecuniary loss damages for injuries she sustained arising out of or in the course of her employment with Spendless Shoes Pty Ltd.
109I will hear the parties on the question of costs.
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See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
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