Sinclair v Campbell's Australasia Pty Ltd
[2009] VCC 206
•19 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
| AT WANGARATTA CIVIL DIVISION SERIOUS INJURY S134AB |
Case No. C1-07-03260
| MEGAN SINCLAIR | Plaintiff |
| v | |
| CAMPBELL’S AUSTRALASIA PTY LTD | Defendant |
---
| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 2 & 3 MARCH 2009 |
| DATE OF JUDGMENT: | 19 March 2009 |
| CASE MAY BE CITED AS: | Sinclair v Campbell’s Australasia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0206 |
---
Catchwords: Accident compensation – Accident Compensation Act 1985, s.134AB –
permanent serious impairment of the low back – leave refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti | Nevin Lenne & Gross |
| with Mr G Pierorazio | ||
| For the Defendant | Mr D Myers | Dibbs Abbott Stillman |
| with Ms J Forbes | ||
| HER HONOUR: |
1 Campbell’s Australasia Pty Ltd (Campbell’s) is a company engaged in food manufacturing. One of its factories is located at Lemnos a short distance from Shepparton in the central north of Victoria.
2 Megan Sinclair commenced employment with Campbell’s, Lemnos on 3 October 2000 in a casual role becoming a fulltime machine operator/process worker from 19 November 2001.
3 During the course of her employment with the defendant, Ms Sinclair worked at various jobs including the Kettle chip line, on sanitation (cleaning of Kettle chip machinery), in the aseptic area (where soup cartons are filled) and on the palletiser.
4 On the Kettle chip line, she worked as a packer and that work involved lifting very light bags of chips and placing them into cardboard cartons. In the sanitation area, the plaintiff was involved in the cleaning of Kettle chip machinery. In the aseptic area, her work entailed the placing of empty cartons onto a line that were then reconstituted and automatically filled with soup stocks. The soup stocks were then automatically packed into cartons. The palletiser work consisted of supervising an automatic machine which loaded cartons onto pallets. This area was known as the Combie area.
5 On the 31 October 2003 Ms Sinclair sustained injury to her low back whilst working on the palletiser. The palletiser had broken down requiring the plaintiff to climb in to remove some cartons. The palletiser was turned off. It started up without warning causing the plaintiff to be knocked over by the carton push lever. The push lever contacted her behind her legs and knocked her over, then made a backwards sweep, forcing her against the back wall with her legs flexed at the hips and with her trunk basically upright; in other words, subjecting her lower back to an acutely flexed posture.
1 JUDGMENT
6 After the lever moved away, she scrambled out of the palletiser and was assisted by a co-worker. She was taken to an after hours clinic at the Goulburn Valley Health. [1] The injury recorded in the workers claim form was “grazes and bruised forearms, shoulders, back and knee.”
7 Ms Sinclair returned to work and was placed on alternative duties with reduced hours full time and then resumed normal duties from 11 December 2003. Physiotherapy was arranged. Ms Sinclair continued working full time until 21 May 2005 when she slipped and fell on a wet floor aggravating the low back condition necessitating further time off work.
[1] Workcover Workers Claim Form DCB 23
8 Following the 31 October 2003 injury Ms Sinclair claims she has a permanent impairment of the low back. In this application she is seeking leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to bring a proceeding for damages in respect of injury to her low back.
9 To succeed in the application the plaintiff has to establish, on the balance of probabilities,[2] that the injury is a serious injury. ‘Serious injury’, for the purpose of s 134AB(16) and (19) is defined by s 134AB(38). The application relates to both pain and suffering and loss of earning capacity consequences.
[2] see s.134AB(19)(a).
10 There is no dispute between the parties that the plaintiff injured her low back in the manner alleged in compensable circumstances on 31 October 2003. The claim for the low back was accepted by CGU Insurance on 15 December 2003.[3]
[3] CGU letter to the Plaintiff PCB 89
11 Mr Monti, on behalf of the plaintiff, submitted that the plaintiff has discharged her onus of proof and that leave to commence proceedings ought to be granted. He relied heavily on the plaintiff’s evidence together with MRI findings.
12 Mr Myers, on behalf of the defendant, says that the effects of the injury are not as grave in terms of pain and suffering as alleged by the plaintiff. He relied on the absence of any material relating to treatment for the claimed injury, the fact that the plaintiff was able to resume normal duties and the plaintiff’s evidence detailing what she is capable of doing. He submitted that the Court ought not to be satisfied that the plaintiff has discharged her onus and therefore the Court ought to dismiss the application.
13 The issue for determination in this proceeding is a narrow one – whether the consequences of the impairment following the 31 October 2003 injury satisfy the test for serious injury in terms of both pain and suffering and loss of earning capacity as defined in the Act.
The evidence
14 As is usual in these applications Ms Sinclair gave evidence and was cross- examined. She adopted the affidavits sworn and filed in these proceedings as being true. Those affidavits were sworn on 29 March 2007, 28 June 2008 and 12 February 2009.
15 None of the doctors gave evidence. Various medical reports and investigation findings were tendered in accordance with the schedule of exhibits attached to this judgement.
16 Facts not in dispute: Ms Sinclair is aged 39 her date of birth being 28 August 1969. She was 33 when the injury to her low back occurred on 31 October 2003. She is a person of little formal education. She left school during the course of Year 11 and completed a Diploma in Management whilst working in retail for Brashes. She worked in retail for 14 years or so in managerial positions prior to commencing with Campbell’s.
17 There is no evidence of any pre-existing injury to the back prior to the incident at work on 31 October 2003.
3 JUDGMENT
18 Ms Sinclair has no active medical management for her low back condition and surgery has never been recommended.
Assessment of the plaintiff as a witness
19 Ms Sinclair gave her evidence over the course of an hour or so in a seated position. She did not appear to suffer any postural discomfort. I found aspects of Ms Sinclair’s evidence to be not credible or reliable. In particular, I reject her evidence about the effect of the injury on her ability to ride horses and that she managed her low back condition with constant physiotherapy following the injury.
20 Overall, I find that the plaintiff tended to exaggerate the consequences of the injury especially when regard is had to her extensive post injury work history, the absence of any clinical records supporting her claim of ongoing low back pain following the incident, the absence of the physiotherapist’s records or a report and her own evidence detailing what activities she is capable of performing.
21 In her affidavit sworn 29 March 2007 the plaintiff states that pre-injury she used to enjoy horse riding at her sister’s farm but ceased because of the back injury due to the jolting motion of horses. In cross-examination, she conceded she had not ridden since 2000 some 3 years prior to injury. [4]She then stated in re-examination that but for her injury she would have ridden every day.[5] I reject that aspect of her evidence as not being credible.
[4] T16, L10-14
[5] T38, L19-23
22 There is no evidence that the plaintiff had any active medical management of her back condition following the 31 October 2003 injury apart from the initial attendance at the after hours clinic.
23 Mr Peter Pearce the defendant’s manufacturing manager took the plaintiff for treatment to the after hours clinic following injury on 31 October 2003 and then took her home. He confirmed that the plaintiff did not miss work following the October 2003 incident, but was placed on alternative duties prior to being certified fit for normal duties from 11 December 2003.[6] The plaintiff agreed with this in her cross-examination.[7]
[6] DCB 47, paragraphs 7 and 8
[7] T11, L10-11
24 In cross-examination, the plaintiff confirmed that Dr Pedrotti, general practitioner, Lister House, Shepparton, treated her for the claimed injury. Her evidence was that she saw Dr Pedrotti in respect of her injury a couple of days after the incident occurred.[8] The plaintiff confirmed that no x-rays were ordered nor was she prescribed any painkilling medication following the incident. She was not referred to any specialist surgeons for follow-up treatment.[9]
[8] T11, L1-2
[9] T11, L17-18
25 There is no report from Dr Pedrotti or any other doctor who may have reviewed the plaintiff at the Lister Street clinic in respect of the incident on 31 October 2003.
26 An extract of the computer records/clinical notes from the Lister House Group was tendered by the Defendants[10]. The extract relates to details of the attendances by the plaintiff at the surgery from 13 February 2003 to 11 July 2005. There are no entries in relation to attendances for treatment to the low back following the October 2003 incident.
[10] DCB 52-54
27 Part of the tendered material includes a letter from Dr May Younis, another general practitioner at that practice, addressed to CGU Workers Compensation Vic and dated 28 September 2005. That letter refers to the plaintiff suffering from a back injury at work since April 2005. It makes no mention of the earlier incident. [11]
[11] PCB 28
28 There is a further letter addressed to the Specialist Consulting Suite, Orthopaedic Outpatients at Goulburn Valley Health, dated 29 July 2008 and signed by Dr Shukriya Nasrah. The letter states Ms Sinclair has been present with back pain since injury to the back in 2003. [12]
[12] PCB 29
29 Both letters are sparse in their content and do not refer in any detail to any clinical findings in relation to the lumbar spine nor is there any reference to any treatment that was provided to the plaintiff following the October 2003 incident.
30 Ms Sinclair agreed that she resumed unrestricted full time employment from December 2003. There was no time lost from work between the claimed October 2003 injury and the May 2005 incident.
31 Her evidence was that she was shifted out of the Combie aseptic area and into the Kettle chip area where the work was lighter. She remained there working until May 2005. [13]She admitted that the position was not created especially for her and that she applied for and was accepted to work in that area. [14]
[13] T41,L9-11
[14] T29,L5-13
32 When pressed, in cross-examination, the plaintiff’s explanation for having no medical treatment for her low back following the claimed injury between 2004- 2005 was that she was having physiotherapy and taking over the counter medication that managed her pain.[15]
[15] T15,L10-12;L15
33 The plaintiff attests in her affidavit sworn on 29 March 2007 that, following the October 2003 incident, she sought treatment by way of physiotherapy which continued thereafter. No records or report were tendered from Michael Ratcliffe, the physiotherapist the plaintiff referred to in her evidence.[16]
[16] T37, L15-17 18 T 16, L27
34 Ms Sinclair stated in re-examination that she would see Mr Ratcliffe probably once a week for a little while for a few months and then her back as easing off she would see him maybe once a fortnight, three weeks. Then she stopped seeing him for a little while. Then when the pain started again depending on what sort of work she was doing she would have to go back and see him again. She said that was the pattern before May 2005. [17]
[17] T37, L2635 In the absence of any supportive evidence detailing the physiotherapy treatment that was provided in relation to the incident at work on 31 October 2003 I am not satisfied on balance that the plaintiff’s low back condition required constant physiotherapy treatment. I find that the plaintiff has exaggerated this aspect of her evidence and I reject this aspect of Ms Sinclair’s evidence.
36 The plaintiff frankly conceded that following the May 2005 incident her back condition was much worse.[18] Thereafter, she suffered a flare-up of her back pain, necessitating active medical management. That treatment included a referral to an orthopaedic specialist, Mr Roy Carey.
[18] JUDGMENT
37 In a letter dated 20 October 2005 addressed to CGU Insurance, Mr Carey, confirms that he saw the plaintiff on one occasion only on 29 September 2005 in respect of the May 2005 incident. He recorded that the plaintiff complained of back pain with radiation down the legs to the feet. She was sleeping poorly and was not able to undertake home activities fully. She told the doctor that she had never felt pain like this before. He recorded that in 2003 she had been caught in a palletiser, producing back pain, and had been “no good since”. She was otherwise well. At that time, she was performing light duties three hours a day, five days a week.
38 His clinical examination conducted on 29 September 2005 showed no spinal deformity, restricted flexion and other movements, tenderness from the sacrum to the thoracolumbar region and absolutely no evidence of nerve root irritation or conduction deficit.[19]
[19] PCB 35
39 Mr Carey considered that Ms Sinclair was capable of performing suitable work on reduced or altered hours. He confirmed there were no indications for any surgical treatment in the absence of any neuro compression.
40 Mr Carey provided a report to the plaintiff’s solicitors dated 19 June 2008 following a re-examination conducted on 19 June 2008. He documents the plaintiff’s continued complaint of constant low back pain radiating down the backs of both legs from the thighs to the toes. The right toes are constantly numb and the left toes are intermittently numb.
41 He updated the plaintiff’s history noting that by December 2006 the plaintiff had returned to normal work on fulltime hours. She became pregnant in December 2006 and ceased most of her treatment. She continued to work until March 2007 and was off work due to stress caused through harassment at work. She remained off work until May 2007. She returned to fulltime normal work in May 2007 but, after three weeks of that work, had a marked aggravation of her right sciatica, went off work and has been off work since.[20]
[20] DCB 38
42 In his second report, Mr Carey details the circumstances of the incident with the palletiser in 2003 and notes that the plaintiff regarded this as the main injury and that she has been “no good since”. He comments, despite the magnitude of this injury, the plaintiff was only on restricted duties for about two weeks, having missed almost no work although she had “constant physiotherapy”. I have previously made findings concerning this aspect of the evidence.
43 On clinical examination, he found that the plaintiff had a range of flexion, such that she could touch halfway down the shins and a good range of extension. Those movements produced back pain only, rather than any sciatic leg pain. Lower limb neurological examination was completely normal, although reinforcement was needed to obtain knee jerks. Sitting and straight leg raising to over 90% did not seem to produce any sciatica on either side.[21]
[21] PCB 40
44 He examined an open MRI scan of 2005 and confirmed he agreed with that report. He commented that the quality of an open magnet is not quite as good as a closed machine, but he agreed that there was no neuro compression evident.
45 The Open MRI report dated 17 October 2005 reads:
“General Findings
The conus terminates at the L1/2 intervertebral disc. Narrow signals throughout vertebral body appears well-maintained. Disc hydration is well maintained at all levels with only minor desiccation at the L5/S1 level.
Specific Disc Findings
At the level of L1/2 there is no significant disc displacement or neuro compressive lesion. At the level of L2/3 there is no disc displacement or foramina encroachment. At the level of L3/4 there is no disc displacement or neuro compression identified. At the L5/S1 level there is no visible neuro compressive lesions.
Conclusion
No significant disc displacement or neuro compressive lesion is identified.
Signed: Dr William Lee”
46 Mr Carey diagnosed chronic, non-specific low back pain with symptoms in the lower limbs. On clinical grounds, he could determine no significant radiculopathy and a diffuse lumbar spine tenderness rather than in one spot. There was no indication for surgical treatment. He recommended an exercise program.
47 He confirmed the injury sustained on 31 October 2003 was the causative event and significantly aggravated by the fall in 2005. He noted that the 2005 injury did not produce any alteration to the type or distribution of the back or leg pain, just severity. He considered the injury of 31 October 2003 was a significant contributing factor to the consequences which Ms Sinclair was suffering in respect to her back injury.[22]
[22] PCB 42-43
48 Following referral by Dr Nasrah, Ms Sinclair was seen by Dr Michael Brighton- Knight, orthopaedic surgeon. Dr Brighton-Knight saw the plaintiff on 23 September 2008 and considered, following examination, that she was entirely neurologically normal. Straight leg raising did not cause radicular pain. He organised some investigations including blood tests as well as the MRI and a whole body scan. He recommended ongoing pain management in an integrated fashion with Dr Terence Lim.
49 The report of the MRI of the lumbar spine performed on 8 October 2008 reads:
“Clinical Notes: mechanical low back pain.
General Findings
Retroperitoneal and paravertebral soft tissues are unremarkable. The conus terminates at the lower L1 vertebral level and is unremarkable and not expanded. Intervertebral disc height is relatively well preserved at all levels. Narrow signal preserved. There is mild loss of normal lumbar lordosis.
Specific Disc Findings
At the T12/L1, L1/2, L2/3 and L3/4 levels, there is no significant disc displacement or central spinal canal stenosis or foraminal encroachment. At the L4/5 level there is no significant disc displacement or neuro compression identified. At the L5/S1 level, there is disc displacement laterally on the left which extends into the foramen in close proximity to the inferior aspect of the existing left L5 nerve root. The nerve root is not oedematous or significantly displaced. No right L5 nerve root compression is detected. S1 nerve roots appear unencumbered. No evidence for pars defects or advanced facet joint arthrosis.
Conclusion
(1) Mild disc displacement left laterally in the foramen L5/S1 level, which
contacts but does not displace the far lateral left L5 nerve root.(2) No central canal stenosis at any level identified. Signed: Dr William Lee”
50 Dr Brighton-Knight reported on 21 October 2008 that the MRI of the spine was unremarkable. He considered that pain was an issue, not any underlying pathology, and recommended treatment with Dr Lim for pain management. In the interim, he advised the plaintiff to take regular Paracetamol and try to exercise gently but regularly.
51 It does not appear that the plaintiff sought any further specialist treatment following the review with Dr Brighton-Knight.
52 The plaintiff’s affidavits set out her background, the circumstances of the injury and its effects on her social, domestic and recreational activities. She complains of constant severe low back pain that is referred down her left leg. At times the pain is quite severe and interferes with her sleep. Household chores such as making up beds, vacuuming and washing are performed with difficulty. Driving causes increased back pain. A trip to Melbourne requires two to three rest breaks. Ms Sinclair has some difficulty looking after her young daughter due to the back pain.
53 Ms Sinclair’s evidence is that her back pain varies depending on her level of activity and is worse with bending, stooping and lifting. In the past she has managed her pain with rest, physiotherapy, acupuncture, exercises and prescribed medication Tramal, Norspan and Advil. She ceased taking the prescribed medication around June 2006 due to side effects.
54 The plaintiff worked full-time in 2006 without any restrictions or any time lost due to her injury. She ceased work on 5 February 2007, following allegations of harassment by Gerard Harvey, a former partner and work colleague. She returned to work with full clearance to resume her normal duties on 23 April 2007. The plaintiff ceased work on 21 May 2007 and submitted a further claim form on 30 May 2007.[23] The claim was for an injury described as “sciatic nerve”[24].
[23] DCB 37
[24] DCB 3755 The plaintiff then took maternity leave from 7 July 2007. Her daughter was born on 3 September 2007. She was due to return to work following her maternity leave but resigned from the defendant’s employment in April 2008.
56 In cross-examination she conceded that she still gardens but with pain and some difficulty.[25] She stated that she would mow the lawns and trim the trees.[26] She was working fulltime in 2006 and that she stopped taking painkillers that year because she was having acupuncture.[27] She conceded that she could walk normally,[28] that she could bend,[29] that she went for regular walks for probably 30 minutes[30] and that she walked freely but had a bit of pain in the legs.[31]
[25] T16,L31[26] T23, L14-17[27] T16,L28-29[28] T16,L30[29] T17,L4[30] T 17, 11-14[31] T17, L1557 Ms Sinclair confirmed that she has been advised to take Panadol for the pain and to rest and exercise for her back pain.[32] She was prescribed exercises by the physiotherapist. Her evidence was that she tries to do those exercises maybe twice, three times per week. [33]
[32] T29,L 27[33] T41, L27 -3058 She confirmed that she has no help and manages her activities of daily living, lifts her daughter who is almost 18 months and from time to time puts her into the back seat of a vehicle.[34]
[34] T34, L10-2059 In re-examination she confirmed she did not do the gardening or mowing for long periods, she would only do them in short bursts and would then rest because her back would be hurting or she would take something for her pain.[35]
[35] T35, l25-31, T36, L1-260 Ms Sinclair’s evidence is that she was looking for some part-time or casual work.[36] In cross-examination she confirmed that she had applied for a full time job at Liquor land [37] and recently, just before December 2008, she applied for a job with “Wow Sights & Sounds” a music outlet.[38]
[36] T32, L13-14[37] T 32, L27-31; T38, L1-15[38] T32, L24-2661 In re examination, she confirmed that because of the pain she did not think that she could stand on her feet all day and did not think she could do full time work. She thought she could work in retail and manage up to four or three hours a day maybe a couple of times per week with a day or two breaks in between.[39]
[39] T 36, L8-2262 Overall, I accept that the plaintiff has had some ongoing problems associated with her low back injury but do not accept that the consequences are as serious as she describes given the absence of any current medical or other treatment and the fact that prior to ceasing her employment she lost very little time off work attributable to her low back condition. Ms Sinclair is able to perform a range of activities of daily living without restriction.
The plaintiff’s medico legal evidence
63 The plaintiff has been examined by a number of medical examiners. She relies on reports from Mr Peter Battlay, surgeon, Mr S Leitl, orthopaedic surgeon and Mr Brearley, surgeon.
64 Mr Battlay examined the plaintiff on 3 May 2006 at the request of CGU Workers Insurance for the purposes of a 4th Edition Independent Assessment. He noted the injury at work on 31 October 2003 and 21 May 2005.
65 Ms Sinclair stated to him that she had recurrent low back pain since the 2003 incident and was receiving physiotherapy from time to time. She was working full-time on restricted duties not performing line work because that involved twisting. Following the May 2005 incident she had low back pain and had four weeks off work and had a graduated return to full time work. When reviewed she was doing physiotherapy once a week, taking Panadeine Forte and Tramal. She had hydrotherapy for six months plateaued and so discontinued. She was walking and doing stretching exercises.
66 On examination he could find no visible reflex muscle spasm, there was no evidence of sciatic nerve root irritation or lower limb neurologic loss nor was there any measurable calf or thigh muscle wasting. There was normal reflex activity in the legs and no sensory loss. Actual flexion to either side was full and painless. She was not tender over the lumbar spine.
67 He reported the MRI scan requested by Mr Carey performed in October 2005 showed no abnormalities. He diagnosed unresolved soft tissue strain of the back. He confirmed that that was stabilised and was permanent impairment of the lumbosacral spine. [40]
[40] PCB 73
68 Mr S Leitl, orthopaedic surgeon, examined Ms Sinclair on 4 July 2006 at the request of the defendant’s solicitors. He confirmed the history of injury in October 2003 and thereafter 21 May 2005.
69 Ms Sinclair described her present symptoms as being sore low back aggravated by twisting, turning and lifting. With rest it improved but if she sat for more than an hour the back would become sore again.
70 He noted no sciatic symptoms since August 2005 and that Ms Sinclair was no longer taking medication. She was then having weekly acupuncture treatment and the application of a herbal plaster to her back by a traditional Chinese doctor, Vanessa Christopher. She was doing a fitness program of walking 45 minutes a day and attending a yoga session once per week.
71 Mr Leitl’s physical examination of the lumbar spine revealed normal lordosis. There was tenderness in the midline under the herbal patch covering the mid and lower midline site of her back discomfort. Her range of movement was quite normal but was performed slowly and deliberately. There were no signs to suggest radiculopathy.
72 Mr Leitl diagnosed lumbar disc injury producing past and current back symptoms. In view of the chronic problem, that of lower back soreness and previous variable left and right sciatica, his view was that it was consistent with the workplace injuries of October 2003 and May 2005.
73 He considered that she was capable of performing normal duties. He confirmed that she was fit for her pre-injury duties but that she would continue to experience low back symptoms when undertaking work which entailed repeated lifting, bending and stooping and such symptoms may increase gradually over a period of time resulting in a limited capacity for pre-injury duties. He recommended she avoid heavy lifting and repeated bending and stooping.[41] Surgery was not indicated. He considered that the symptoms would continue into the foreseeable future.
[41] PCB69
74 Mr Kenneth Brearley, surgeon, examined Ms Sinclair on 19 November 2007. At that time Ms Sinclair was continuing to complain of discomfort or pain in the lower back, the degree of pain varying with activity, made worse by bending, stooping and lifting. She complained of sciatic pain and pain down the whole of the left leg when she sits or stands for long periods and that would occur once a week or so. She was having acupuncture and had ceased physiotherapy and hydrotherapy.
75 His examination of the back revealed slight tenderness to pressure over the whole lumbar area. There is no deformity. Her movements showed slight restriction in all directions. There was no evidence of wasting or muscle weakness in the legs.
76 Mr Brearley viewed a series of MRI images and noted the report of the CT lumbar spine taken 20 July 2005. That report showed at the level of L5/S1 there was a small calcified disc protrusion within the left foraminal area of the exiting fifth lumbar nerve root. He read the MRI of the lumbar spine at 17 October 2005 as showing reduced disc hydration at L5/S1 level. He found significant posterior disc bulges at L4/5 and L5/S1 levels. The L5/S1 bulge is mainly in the left paracentral position. No evidence of nerve compression noted. [42]
[42] PCB 77
77 His opinion is that in the incidents described on 31 October 2003 and 21 May 2005, Ms Sinclair suffered damage to the lower most intervertebral discs in the lumbar spine. The CT taken in July 2005 shows a well defined calcified disc protrusion at L5/S1 abutting on the exiting fifth lumbar nerve root. He considers that in the fall there was a intradisc rupture of the L5/S1 with the resultant disc protrusion. He opines that the MRI also shows significant pathology at the L5/S1 disc level.[43]
[43] PCB 78
78 Mr Brearley’s says as a result of that injury she has chronic low back pain and at times left sided sciatica. This latter would be due to nerve root irritation although he concedes that there is no objective evidence for radiculopathy but says the symptoms are most suggestive. His diagnosis is of mechanical lumbar back pain due to intradisc injury of L5/S1 intervertebral disc resulting from the incidents at work in 2003 and 2005.
79 Mr Brearley considers the ongoing back pain and impairment would restrict the plaintiff in regard to social, domestic and recreational activities and employment activities that that will continue for the foreseeable future. He recommended that the plaintiff avoid work which involves prolonged sitting, standing, walking, driving and stooping also repetitive bending, twisting and lifting will be restricted.
80 Mr Brearley considered that the plaintiff was suitable for some employment and noted that she was off work only because of the maternity leave. He did not consider that it was appropriate for her to return to the type of work she was performing at Campbell’s but considered that she should be able to resume retail work, working full-time when she is finished her maternity leave.
44
81 He confirmed that she is suited for full-time employment but there is a possibility she will suffer from exacerbations of her back pain from time to time necessitating some time off work. Her incapacity for manual labour and work similar to what she was doing at Campbells will continue for the foreseeable future.
82 He recommended ongoing conservative treatment with physiotherapy and medication. He, too, agreed there would be no necessity for operative treatment. In a letter dated 21 May 2008, he confirmed that the accident of 31 October 2003 was a significant contributing factor to Ms Sinclair’s back injury.
Defendant’s medico-legal reports
83 Dr P D Clark provided a report dated 25 June 2005 which details his assessment and opinion following his examination performed on that date.
84 Dr Clark records that the plaintiff gave a history following the October 2003 injury that she did not lose time but returned to work on light duties, had intermittent physiotherapy for back pain subsequently, and moved to work on the Kettle chip line in 2004. Following the May 2005 fall she attended physiotherapy three times a week but stopped because she did not think it was helping her. She was off work and being treated by her GP.
85 On examination he confirmed there was no tenderness on palpation of the spine and no evidence of spinal muscle spasm in either the upper or lower back. The plaintiff demonstrated a normal range of thoraco-lumbar spinal movements without restriction by pain. An examination of the lower limbs there was no evidence of muscle wasting on measurement. Movement of the lower limb was said to be otherwise normal with no evidence of any neurological or abnormality on specific testing. X-rays of the back taken on 7 June 2005 showed no significant abnormalities.
86 Dr Clark considered Ms Sinclair suffered minor soft tissue injury in the falls at work and an exacerbation of lumbar spondylosis causing low back pain. [45] Employment was a significant contributing factor to her condition. He considered her fit to resume pre-injury employment and stated that the return to work on the Kettle chip line was suitable and no further medical treatment was necessary.
[45]
87 Dr Clark reviewed the CT scan dated 20 July 2005 and provided a supplementary report of 12 September 2005 in which he confirmed the CT scan showed evidence of degenerative changes in both the plaintiff’s back and left ankle consistent with past injury. He postulated that it was impossible to attribute the changes in the spine to a particular incident but in his opinion “the small calcified disc protrusion” at the level of L5/S1 is unlikely to have been as a result of a fall in 2005 although it may have been as a result of the earlier work-related injury in 2003.
88 He reiterated that in his clinical examination he found no signs of current injury and considered her fit to resume her normal duties and otherwise confirmed his diagnosis.
89 Mr Brendan J Dooley, orthopaedic surgeon, examined the plaintiff on 27 June 2007 and 11 February 2009. His examination of the lumbosacral spine revealed restricted movements, with a normal posture and no signs of any muscle spasm in the paravertebral muscles. There was no evidence of any neurological abnormality, that is, radiculopathy affecting the leg.
90 A CT scan of the lumbosacral spine of 20 July 2005 showed a small disc prolapse at the lumbosacral level on the left side. He did not see those imagings.
91 The MRI of the lumbosacral spine taken three months later on 17 October 2005 in his opinion showed no abnormality at the lumbosacral level and no visible neurocompressive lesion. [46]
[46] DCB 16
92 He considered that his physical findings were largely unremarkable and considered that the severity of the symptoms described by Ms Sinclair were exaggerated. He considered that if not for her pregnancy she would have recovered back to a point where she could have resumed her pre-injury employment. Thus, her incapacity for work for the period from July 2007 onwards does not relate to her work-related injury but rather her pregnancy and the care of her child.
93 Following re-examination on 11 February 2009, he confirmed his clinical examination revealed moderate restriction of movement in the lumbosacral spine with normal posture and no signs of muscle spasm in the paravertebral muscles. Again there was no evidence of any neurological abnormality in the lower extremities that is radiculopathy affecting the leg. Straight leg raising of the legs to 60 degrees gave some back discomfort.
94 Mr Dooley read the letters from Dr Michael Brighton-Knight dated 23 September and 21 October 2008. He noted the comment that the MRI of the lumbosacral spine was virtually normal apart from minor degenerative changes in the lumbosacral disc but there were no signs of neurological involvement in the nerve roots in the area.
95 He states that there is no need for any ongoing treatment either surgical or physical. She takes the minimum medication and in his opinion is only disabled by a minor degree of low back pain.
96 Mr Dooley’s diagnosis is of low back strain with aching in the back and intermittent radiation of pain into both legs but with no sign of nerve root involvement. Symptoms in the legs represent referred pain from the low back area but the plaintiff’s current pain level is minimal and requires only non- narcotic medication and no ongoing treatment. Ms Sinclair is totally independent in her activities of daily living and in the care of her home and child. He considers that the long-term prognosis for her back injury is good.
Conclusions
97 Having regard to the consensus of medical opinion, I am satisfied on the balance of probabilities that the plaintiff suffered compensable injury to her low back at work on 31 October 2003 being soft tissue injury and an aggravation of lumbar disc disease at L4/5 and L5/S1 that has resulted in impairment to her low back that is permanent in the requisite sense that is, likely to last into the foreseeable future.
98 On balance, I find that the plaintiff is not restricted to the extent that she sought to portray in her evidence. The plaintiff currently has no active medical management or treatment for her injury.
99 Ms Sinclair conceded that there are a range of activities that she can still perform including all the activities of daily living, caring for her child, looking after her house, walking, gardening, mowing the lawn and driving her car.
100 Mr Brealey, surgeon, is the only examiner who considers that in the falls there was a intradisc rupture of the L5/S1 with the resultant disc protrusion. He opines that the MRI also shows significant pathology at the L5/S1 disc level. This is at odds with the expressed opinions of the treating orthopaedic
20 JUDGMENT
surgeons, Mr Carey and Dr Brighton Knight and the opinions of Mr Dooley
and Dr Clark.101 The weight of the evidence does not support a finding that the pathology shown in the radiology is reflected in the plaintiff’s clinical presentation. None of the medical examiners have found visible reflex muscle spasm. There was no evidence of sciatic nerve root irritation or lower limb neurologic loss. There was no measurable calf or thigh muscle wasting. Ms Sinclair now requires over the counter medication to relieve her pain.
102 Having considered the totality of the evidence I reject Mr Brearley’s expressed opinion.
103 I am not satisfied that the plaintiff has suffered an impairment or loss of body function of the low back which has resulted in pain and suffering consequence which is, when judged by comparison with other cases in the range of possible impairment or loss of body function, fairly described as being more than significant or marked and as being at least very considerable – s.134AB(38)(c).
104 I have had regard to the expressed opinions of Mr Brearly and Mr Dooley both of whom have reviewed the plaintiff in recent times and have reviewed the radiology. Both doctors found that the plaintiff has a current work capacity for suitable employment. I find that the plaintiff is capable of returning to suitable employment either in her pre-injury employment or in retail on a fulltime basis.
105 I have considered the consequences to the plaintiff of the impairment or loss of body function with respect to loss of earning capacity when judged by comparison with other cases in the range of possible impairments or losses of body function.
106 I am not satisfied the impairment or loss of body function has resulted in loss of earning capacity consequence which is, when judged by comparison with
21 JUDGMENT
other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable - see s.134AB(38)(c).
107 In the circumstances of this case the plaintiff has not discharged the onus to show that the injury she suffered satisfies the description of "serious injury" for both pain and suffering and loss of earning capacity consequences and accordingly, I refuse leave pursuant to Section 134AB(16)(b) for the plaintiff to bring proceedings and the application is dismissed.
22 JUDGMENT
2 JUDGMENT
4 JUDGMENT
5 JUDGMENT
| 6 | JUDGMENT |
| 7 | JUDGMENT |
8 JUDGMENT
9 JUDGMENT
10 JUDGMENT
11 JUDGMENT
12 JUDGMENT
13 JUDGMENT
14 JUDGMENT
15 JUDGMENT
16 JUDGMENT
PCB 79
17 JUDGMENT
19 JUDGMENT
0
0
0