Simpson v VWA
[2019] VCC 1301
•21 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-05536
| Suzanne Simpson | Plaintiff |
| -v- | |
| Victorian WorkCover Authority | |
| Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 & 2 August 2019 | |
DATE OF JUDGMENT: | 21 August 2019 | |
CASE MAY BE CITED AS: | Simpson v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1301 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to lumbar spine
Legislation Cited: Accident Compensation Act 1985 (Vic)
Judgment: Leave Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr T Nathanielsz of Counsel | Slater & Gordon |
| For the Defendant | Ms B Myers of Counsel | IDP Lawyers |
HIS HONOUR:
1 In this application, in which the plaintiff seeks leave to commence a proceeding claiming pain and suffering damages for injuries sustained to her lower back in the course of her employment with the defendant (“the work-related injury”), two issues arise for my determination, namely whether:
a) the plaintiff’s work related injury meets the statutory definition of permanent; and
b) the consequences to the plaintiff are such that they meet the threshold of the definition of serious injury is employed by the Act.
2 The chronology relevant to the plaintiff’s application may be summarised as follows:
(i) The plaintiff commenced employment with the defendant in March 2004. In approximately March 2011 the plaintiff commenced experiencing lower back pain, secondary to the work she was required to perform in the course of that employment;
(ii) The plaintiff attended a general practitioner, Dr Wong, with respect to those symptoms, was absent from work for a short period of time and thereafter returned to work on a gradual work program which limited her exposure to lifting and repetitive movements;
(iii) In approximately October 2013, the plaintiff was transferred by her employer to a worksite which involved her driving approximately 20 minutes each day to and from work.[1] In association with that transfer, the pattern of the plaintiff’s working hours reduced from largely working 38 or so hours a week to working 10 to 20 hours less per week. The high point of that process manifested itself over 4 weeks in December 2013, during which the plaintiff worked 20 hours; 16.5 hours; 16 hours and no hours;
[1]Although the plaintiff described this transfer as occurring earlier in 2013, I am satisfied that the totality of the evidence establishes the date of the transfer as being approximately October 2013. I base that finding on the medical note of Dr Wong dated 7 October 2013, and the reduction in the plaintiff's pattern of working hours late in 2013.
(iv) Even before that transfer, it is clear that whilst the plaintiff was working full-time, by May 2013 her use of prescription strength pain control in the form of Mersyndol was reintroduced and largely persisted thereafter until the intervention of the transport accident;
(v) Although thereafter the plaintiff continued to work, her symptoms were the subject of exacerbations with the result that in November 2013 she was seen by a neurosurgeon, Dr Aliashkevich, with whom she discussed the prospect of the surgical management of her condition, but who counselled her that her condition should be managed conservatively;
(vi) In approximately February 2014 the plaintiff went on an overseas holiday to America, in the course of which her back symptoms flared significantly such that upon returning to Australia the plaintiff was certified as being unfit for any form of work;
(vii) On 2 April 2014 the plaintiff was involved in a transport accident the effect of which was to occasion injuries of such significance that the parties agree that I am to assess the consequences of the work-related injury in this instance only during the period between the onset of the symptoms associated with that injury and the date of the transport accident.[2]
[2]For the sake of convenience, I will refer to the period between the plaintiff’s first absences from work by reason of the injuries the subject of this application and the happening of the transport accident as “the period”.
3 Whilst there is no issue that the plaintiff presents with a compensable injury arising by reason of the work undertaken in the course of her employment, it is put on behalf of the defendant that, as at the time of the transport accident:
· the work related injury suffered by the plaintiff was not sufficiently stable to allow a determination as to its permanent consequences; and
· even if the work related injury was stable, the consequence of that injury is not appropriately described as being serious.
4 In undertaking the assessment required of me in this instance, I am guided to a significant extent by the medical opinions of practitioners who have been asked to specifically opine upon the issues which are identified above. I make that statement because many of the plaintiff’s treating doctors have, in the course of their management of the plaintiff’s overall presentation to them, not been concerned to focus with any great detail on the technical analysis required of me in this instance.
5 The evidence in the application involves affidavit evidence by the plaintiff, both prepared with respect to this application and an application made by the plaintiff with respect to the transport accident; an affidavit of Gina Lewin and medical and like reports tendered by the parties. In addition, the plaintiff gave viva voce evidence in the course of the application.
6 The content of that material is a matter of record and I will not refer to it in detail other than to make reference to it in summary for the purpose of demonstrating my path of reasoning.
7 The plaintiff has sworn two affidavits, within which she describes the consequences of her work related injury up until the intervention of the transport accident stating that:
(i) she has suffered from constant back pain following her industrial accident which varied in intensity from day to day;
(ii) she had remained on light duties and had struggled with her work;
(iii) her symptoms limited her to driving for only short distances; and
(iv) she had attempted to manage her symptoms by using Mersyndol Forte.
8 In her closing submissions Ms Myers of counsel who appeared on behalf of the defendant, whilst accepting that the plaintiff was doing her best to provide truthful evidence, nevertheless described the plaintiff as an unreliable witness on the issue as to her pain following the work-related injury, and the need for treatment and medication to control her symptoms. I am satisfied that there is a significant discrepancy between the description by the plaintiff in her affidavits as to:
a) the consistency and presence of severe symptoms in her lumbar spine during the period between her first absence from work associated with the work-related injuries particularly during the period between March 2011 and mid-2012; and
b) her need to employ prescription pain control in the form of Mersyndol Forte in the management of those symptoms;
when that evidence is considered in the context of the contemporaneous records generated in the course of the plaintiff’s presentation to her treating doctors.
9 That having been said:
(i) the plaintiff impressed me essentially as being a witness of truth and I considered her questionable reliability as to the initial extent and progress of her work-related injury was understandable given the passage of time since the occurrence of the work-related injury and the intervention of her transport accident;
(ii) when one considers the independent evidence as to the fairly regular prescription of Mersyndol Forte to the plaintiff by her general practitioner from May 2013, the statements made by the plaintiff in her affidavit and viva voce evidence most probably accurately describe the difficulties and symptoms she was experiencing from that time onwards.
10 I am equally satisfied that:
(i) the plaintiff demonstrated herself, prior to the intervention of the transport accident, to be a person who was determined to minimise the effects of her work-related injury upon her by returning to her work and maintaining her work notwithstanding the presence of a fluctuating condition which was exacerbated by the work she was required to undertake, particularly upon the change of her employment venue;
(ii) during the period between March 2011 and mid-2012, the combination of the plaintiff’s evidence and that of her treating general practitioner, as set out in his medical reports, establishes that the plaintiff’s condition was appropriately described as being fluctuating and that her pain levels were at times minimal and well-controlled during that period; and
(iii) the totality of the evidence paints a picture of the plaintiff’s work-related injury as involving a condition which, whilst it waxed and waned in its severity and was subject to exacerbation by reason of work or other activity, is nevertheless appropriately described as being permanent as at the time at which the plaintiff’s transport accident occurred.
11 Whilst I accept the defendant’s position that the plaintiff appeared initially to be making a reasonable recovery from the effects of her work-related injury until mid-2012, I am satisfied that the evidence relevant to that recovery as documented in the medical and physiotherapy records generated during that period, should be considered in the context of the fact that:
(i) the plaintiff’s viva voce evidence satisfies me that she was a determined, well-motivated worker;
(ii) throughout 2011-2012 the plaintiff was performing restricted duties in the course of her employment and that the maintenance of those restrictions on someone who is determined and well-motivated demonstrates the ongoing presence of a condition of some significance in a person who has a tendency towards stoicism;
(iii) the medical evidence to which I will refer below demonstrates an initial incomplete recovery from the plaintiff’s work-related injury by late 2012 but which at that time had persisted sufficiently to motivate the plaintiff’s general practitioner, Dr Wong, to refer her for CT scanning and which had, by early 2013, caused Dr Wong to opine that the plaintiff presented with a condition involving fluctuating symptoms, including muscle spasm, which could be severe and which impeded her activities of daily living notwithstanding its amelioration with physiotherapy.[3]
The injury
[3]See the report of the plaintiff's general practitioner, Dr Wong, dated 7 January 2013 PCB 67.
12 There is no issue that the plaintiff presents with a mechanical low back injury, discogenic in origin, in the form of an aggravation of an asymptomatic pre-existing condition in her lumbar spine. The totality of the medical evidence satisfies me that that condition is of a type which:
· may resolve over a period of time; or
· may stabilise such as to cause long-term symptoms and incapacity.
The medical evidence
Dr Wong
13 In his report dated 18 January 2013 the plaintiff’s general practitioner, Dr Wong, described the plaintiff’s condition as involving his management of the plaintiff’s lower back pain which had fluctuated with no significant improvement initially and from which she had failed to recover completely despite chiropractic and physiotherapy treatment. As at January 2013 Dr Wong opined that the plaintiff:
· was fit to perform duties involving handling of weights up to 10 kg;
· was unable to undertake work which involved repetitive bending or twisting of the back or prolonged sitting or standing for more than 30 minutes;
· presented with muscle spasm which could be severe and her condition impeded her work and her undertaking of activities of daily living. He commented that the condition required management, physiotherapy and analgesia, notwithstanding the intermittent nature of her symptoms.[4]
[4]As to the suggestion that the plaintiff could repetitively handle weights of up to 10 kg, I am of the opinion that this was an overly robust analysis of the plaintiff's capacity having regard to the fact that by May 2013 the plaintiff was employing regular Mersyndol Forte in management of the symptoms, that she was not doing so with any regularity earlier in 2013 and was described by Dr Wong prior to her transport accident as being fit to undertake modified duties not involving heavy lifting of 3 kg or more.
14 In August 2013 Dr Wong provided a virtually identical report, the only alterations being that he increased the restrictions imposed as to the duties the plaintiff was fit to perform by precluding floor sweeping and reducing the weight she was authorised to lift to 5 kg.
15 In November 2013 Dr Wong commented that the plaintiff presented with a condition which had been fluctuating but was still fairly severe.
16 In October 2014, Dr Wong commented that the plaintiff “will be able to return to work with limited capacity in the next three months as her work related condition has stabilised.” I interpret that statement as being one relating to the stabilised effect of the work-related injury upon the plaintiff’s capacity for work
17 In a report dated 28 June 2019, Dr Wong described the work-related injury as being responsible for the plaintiff being moderately restricted with bending, twisting, lifting, pushing, pulling and repetitive movements of the back and prolonged sitting walking and standing. He commented however, that he did not consider that this incapacity would continue indefinitely but for the intervention of the motor vehicle accident.
18 I find it difficult to reconcile this statement with the previous opinion expressed by Dr Wong in October 2014 to which I referred above.
19 On 24 July 2019 in response to a letter directing his attention specifically to the effects of the work-related injury, Dr Wong commented that the plaintiff had been able to work in modified duties on a full-time basis to the end of 2013; that she had lost that capacity in the beginning of 2014 by reason of a lot of pressure which was put on her to perform tasks that were beyond her capacity; that she had taken time off work and was incapable of “working full-time on a reliable basis because of back pain deteriorated as a result”. I interpret this comment to be one relating specifically to the stabilised consequences of the work-related injury.
20 In commenting upon the plaintiff’s capacity to continue to perform her modified duties, it would seem to me that Dr Wong did not take account of the regular reduction in the plaintiff’s hours of employment throughout November and December 2013 or the increased pattern in her prescription of Mersyndol Forte.
21 In my opinion, but for the comments made by Dr Wong in his report of June 2019, the tenor of the totality of his previous and subsequent reports strongly suggest a condition:
· which, if anything, was increasing in its severity; and
· about which there was no reason to justify some hope that there would be any substantial improvement once the plaintiff overcame exacerbation of her condition which was responsible for her total incapacity for work upon her returning from a holiday in America.
22 For these reasons, I do not find his opinion expressed in 2019 that he expected improvement in the plaintiff’s condition to be persuasive.
Dr Aliashkevich
23 The plaintiff’s treating neurosurgeon, Dr Aliashkevich, first saw the plaintiff on 22 November 2013 at which time she reported the presence of symptoms of pain averaging 5/10 but occasionally increasing up to 10/10. At that time he diagnosed the plaintiff as presenting with degeneration in the lumbar spine and left disc protrusion at the L4-5 level. He advised the plaintiff that her condition should be managed conservatively and imposed restrictions on lifting 5 kg for a period of 3/4 months.
24 In his report of June 2019, Dr Aliashkevich opined as to the plaintiff’s presentation as at December 2013 as follows:
“I suggested restricting lifting to 5 kg over the next 3 to 4 months and avoiding increased stress to the lumbar spine... My suggestion was also to take part in a weight loss and core strengthening program. In general my feeling with regards to recovery was quite optimistic and I expected gradual recovery over the next 4 to 6 months.”
25 The structure of the report of Dr Aliashkevich makes it difficult to discern whether his opinion relates to the plaintiff’s condition at the time of her presentation to him in November 2013 or June 2019. Whilst the above statement appears in his report authored in June 2019, I am satisfied that in expressing that opinion Dr Aliashkevich was doing so on the basis of the history available to him as to the plaintiff’s progress as at the time of his first consultation with her in November 2013[5].
[5]PCB 85.
26 It is clear that at the time at which Dr Aliashkevich authored his second report on 28 June 2019, he did so on the basis of a more detailed history which was available to him at that time, which included the exacerbation of the plaintiff’s symptoms in the course of a holiday in America and the occurrence of the plaintiff’s transport accident. Each of these events occurred after the first examination of the plaintiff by Dr Aliashkevich.
27 Further, I interpret the structure of the 2019 report as involving Dr Aliashkevich obtaining from the plaintiff in 2019 a further history relevant to symptoms which were exacerbated in 2013 by a change in her employment and her requirement to drive 25 minutes or so to and from work. I do so given the absence of any mention of that history at the time of the first examination by Dr Aliashkevich of the plaintiff in November 2013.
28 I am satisfied that the latter information was taken into account by Dr Aliashkevich when providing his opinion as at 2019, in which he added to his previous words the proviso which I have highlighted below:
“I suggested restricting lifting to 5 kg over the next 3 to 4 months and avoiding increased stress to the lumbar spine.,. My suggestion was also to take part in a weight loss and core strengthening program. In general my feeling with regards to recovery was quite optimistic and I expected gradual recovery over the next 4 to 6 months. The provided history and documentation indicates that despite this expectation her condition continued deteriorating”.[6]
[6]PCB 91.
Mr Croxford
29 Mr Benjamin Croxford, a physiotherapist, in a report dated 15 July 2014 commented that:
· he had treated the plaintiff since November 2012; that by the end of 2013 the plaintiff had progressed significantly and reported fewer days when she experienced back pain;
· whilst compensable treatment had ceased in late 2013, the plaintiff had continue to seek occasional physiotherapy treatment for which she paid for privately;
· the plaintiff continued to work on a home-based exercise program, continued resolution of her symptoms had never occurred and private physiotherapy sessions were important to keep her condition manageable; he said that while she had returned to work with a lifting restriction of 10 kg applying, she did miss occasional work due to aggravations of her symptoms and a complete resolution of her lumbar condition had never occurred.
Dr Elder
30 Dr David Elder opined that the plaintiff’s condition with respect to the work related injury had stabilised at the time of his assessment in May 2015. It was clear in expressing his opinion at that time that Dr Elder was aware of the intervention of the transport accident.
Dr Jones
31 Whilst the defendant relies upon the various reports authored by Dr Clive Jones, I am satisfied that the process undertaken by Dr Jones was one involving his assessment of the plaintiff as at the time at which she presented to him.
32 In May 2013, Dr Jones did no more than to opine that the plaintiff was presenting with mechanical low back pain, that her condition was slowly resolving and that he was unable to say exactly when she would get back to unrestricted lifting.
33 In January 2014 Dr Jones made similar comments, namely that the plaintiff’s condition had not resolved; that her employment was still implicated as being a cause of her symptoms but modified his statement as to the plaintiff’s likely capacity to return to full-time duties commenting:
“I am unable to say if and when this lady will return to normal and full-time pre-injury duties.”
34 At the same time, he precluded the plaintiff from work involving bending and handling weights exceeding 5 kg and commented that it was difficult to say how long such modifications would remain in place. It seems to me that Dr Jones was, at that time, taking a ‘wait-and-see’ approach as to whether the plaintiff’s condition might improve and was not prepared to express an opinion one way or the other as to whether it would.
35 In February 2014, Dr Jones provided a supplementary report which contains no mention of any re-examination undertaken by him relevant to the comments expressed in that report. In stark contrast to the position taken by Dr Jones in his January 2014 report he commented in February 2014 that the injury sustained by the plaintiff “with NQR on 11 March 2011 has resolved”. I find this statement by Dr Jones to be inexplicable when it is read in the context of his opinions expressed in his January 2014 report.[7]
[7]See for example his statement at DCB 24 in which he commented that the plaintiff’s injury had been more or less ongoing since March 2011 with the recent increase or aggravation of a temporary nature causing a two-week absence from work.
36 I give the opinions of Dr Jones very little weight upon the issue as to whether or not the plaintiff’s condition was stable for the reasons set out above. In making that statement I note however that in January 2014 Dr Jones was not prepared to express an opinion that the plaintiff would recover from her symptoms so as to return to normal and full-time pre injury duties and that his opinion at that time as to the plaintiff’s potential for return to unrestricted employment was a more conservative statement than that which he had voiced in May 2013.
Dr Sillcock
37 In June 2012, Dr Sillcock opined that the plaintiff presented with mechanical low back pain which was caused by the lifting involved in her work. Whilst she opined that the plaintiff would, within six months or so, be fit to resume her normal employment, she was clearly proven wrong in this respect. Given the timing of Dr Sillcock’s assessment, her opinion is of little relevance to the task required of me.
Dr Doig
38 Dr Doig, in October 2018, opined that the plaintiff’s work-related injury had failed to resolve over the years preceding the transport accident, commenting that:
· although the plaintiff had good days and bad days she appeared to suffer from flare-ups;
· the effects of the work-related injury appeared to have settled on an intermittent basis but did not completely resolve for any length of time;
· by reason of the work related injury the plaintiff would be fit only for restricted duties with the following limitations and conditions:
1) Lifting, pushing and pulling restrictions of 10 kg with limited bending and twisting through the spine; and
2) Breaks from prolonged sitting standing and driving.
39 In my view, the opinion expressed by Dr Doig as at 2018 provides cogent support for the fact that the plaintiff’s work-related injury had stabilised prior to the transport accident and most probably by January 2013, some two years after the onset of the symptoms associated with work-related injury.
40 I make that statement by reason of the fact that the opinion expressed by Dr Doig as to the restrictions in the plaintiff’s capacity for activity are virtually identical to those described by Dr Wong in his report of January 2013.
Findings as to the medical evidence
41 Considering the totality of the evidence to which I have referred above which I find to be probative, I am satisfied that:
· the plaintiff’s work related injury was largely stabilised as at January 2013;
· the increase in the plaintiff’s symptoms after January 2013[8] (both before and after her trip to America) involve exacerbations of the plaintiff’s stabilised condition and demonstrate the vulnerability of the plaintiff to such exacerbations caused either by a modest increase in her employment demands or a change in a pattern of activity such as that which was involved in her holiday in America.
[8]It is clear that the plaintiff's use of prescription pain control increased from approximately May 2013 and that may well be associated with the change in her venue of employment and the increased travelling demands to which she was exposed. There is no issue that upon returning from America the plaintiff was presenting with symptoms which totally incapacitated her for work.
42 When account is taken of:
(i) The medical evidence to which I referred above;
(ii) The pattern of the plaintiff’s employment and the reduction in her hours towards the end of 2013, when considered in the context of the fact that at no time since having occasioned the work-related injury was the plaintiff assessed as having regained an unrestricted capacity for work, a constant feature of which involved an intolerance to sitting and driving, the plaintiff’s capacity for which varied very little between the date upon which she occasioned the work related injury and the occurrence of the transport accident;
(iii) The chronicity in the plaintiff’s symptoms demonstrated by her need to increase her use of prescription medication during 2013 which I have described;
(iv) The duration during which the plaintiff’s restriction and intolerance for activity had persisted without improvement since it manifested itself by reason of the work-related injury and prior to the transport accident;
(v) The severe exacerbation caused to the plaintiff in association with her trip to America, which appears to have been caused by innocent activity which was not contradicted by reason of medical advice but was nevertheless such that it rendered her unfit for any form of work;
(vi) The organic basis for the condition caused by the work-related injury which was recognised by most of the medical practitioners as potentially being responsible for a condition which would occasion long-term disability; and
(vii) The fact that the restrictions described by Dr Doig in 2018 with the benefit of hindsight as to the plaintiff’s capacity for work and activity resulting from the work-related injury largely mirror those which were operating with respect to the plaintiff’s work-related activity during the 12 months or so prior to the transport accident;
I am satisfied that it is appropriate to regard the condition with which the plaintiff presented immediately prior to the exacerbation of that condition which was associated with a trip to America (from which she most probably would have recovered to some degree) as meeting the definition of permanent within the meaning employed by the provisions of the Act in that it had substantially stabilised.
The consequences of the plaintiff’s stabilised condition
43 I am satisfied that the evidence establishes that but for the exacerbation of the plaintiff’s stabilised underlying condition in association with both both the change in her employment and her holiday in America, the work-related injury was responsible for:
· The permanent inability of the plaintiff to return to unrestricted forms of work, in that she was limited in her capacity to engage in activities such as lifting, standing for long periods of time, prolonged sitting or prolonged travelling. I am further satisfied that those restrictions are such that they would significantly impact upon the fields of employment available to the plaintiff and that this loss represented a very significant loss to the plaintiff who was a dedicated worker and for whom work was very important;
· The presentation by the plaintiff with a permanent condition in her lumbar spine which is vulnerable to exacerbations of the type which rendered her totally unfit for work following her trip to America. Given the relatively innocent nature of the activity responsible for that aggravation, I am satisfied that this vulnerability is appropriately described as being very significant in that it involves an exposure to developing severe incapacity of the type with which the plaintiff presented immediately prior to the transport accident;
· The need for the plaintiff to resort to significant prescription strength pain control such as Mersyndol Fortre. I am satisfied, given the pattern of its use up until the time of the transport accident, that it is probable that the plaintiff’s need to resort to that form of medication would have become a feature of her life associated with, and depended upon, the severity of her fluctuating symptoms and her vulnerability to exacerbating those symptoms;
· a constant feature of the plaintiff’s life involving an intolerance to sitting, standing and driving;
· the plaintiff’s exposure to pain occurring in the way and to the degree in which it manifested itself during the period prior to the transport accident, namely that it was always a feature of her life, often to a tolerable degree, but at times much more significant than that (for example when it was recorded by her to medical practitioners as ranging between 5/10 and 10 out of 10 and required her to use prescription strength pain control to manage that pain).
44 These restrictions imposed upon a young, well-motivated woman who enjoyed her work in my opinion meet the threshold established by the provisions of the Act and entitles the plaintiff to the relief sought in this application.
45 I will hear from the parties as to the precise form of the orders sought in this instance and also upon the issue of costs.
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