Sledge v Transport Accident Commission
[2013] VCC 835
•25 June 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05665
| ALISON SLEDGE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 27, 28 and 29 May 2013 | |
DATE OF JUDGMENT: | 25 June 2013 | |
CASE MAY BE CITED AS: | Sledge v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 835 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the spine
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards v Wylie (2000) 1 VR 79; Humphries v Poljak (1992) 2 VR 129; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436
JUDGMENT: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr E Delaney | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J Batten with Mr A Saunders | Hall & Wilcox |
HER HONOUR:
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of a transport accident (“the accident”) which occurred on 28 November 2005 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long-term impairment or loss of a body function”. The body function pursuant to subparagraph (a) relied upon by the plaintiff is the spine. The application in relation to the right shoulder was abandoned in closing submissions.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function: see Richards v Wylie.[1]
[1](2000) 1 VR 79
6 In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury when judged by comparison with other cases in the range of possible impairments be fairly described as at least “very considerable” and more that “significant” or “marked”? – see Humphries v Poljak.[2]
[2](1992) 2 VR 129 at 140-1
7 The plaintiff relied on three affidavits and gave viva voce evidence. She was cross-examined. The plaintiff’s daughter, Kim, swore an affidavit on 10 May 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff is presently aged sixty-four, having been born in August 1948 in Woodend.
9 The plaintiff completed Form 4 in 1964 and then helped out at home, and also worked with a local dressmaker. The plaintiff moved to Melbourne in 1969 and obtained work as a dressmaker. She married in 1975. She now has three adult children.
10 In about 1984 when her youngest child began primary school, the plaintiff returned to the workforce. Two years later, the plaintiff began full-time cleaning work in a family business (“Appleby’s”) and about ten years later, reverted to part-time cleaning so she could look after an elderly relative.
11 The job at Appleby’s involved the plaintiff cleaning houses in a team of two or three. The plaintiff did a bit of everything. Mr Appleby did the vacuuming and the other cleaners did the light dusting or cleaning. The plaintiff did not need to use a Vac Pack before the accident, only a normal pull on vacuum.
12 The plaintiff did not have any trouble with the heavier aspects of that job.[3] She enjoyed working and at that stage had two sons to support.[4]
[3]Transcript (“T”) 113
[4]T114
13 After her aunt died in early 2001, the plaintiff returned to work with Appleby’s for a couple of years, and around 2005, she decided to work as a personal carer.
14 The plaintiff had divorced in 2003.
15 The plaintiff denied she gave up cleaning because the job was too heavy for her. She changed career because she had always liked the idea of looking after the elderly and she wanted a different type of work to cleaning.[5]
[5]T38
16 The plaintiff completed a Certificate IV in Aged Care in 2005 and started as a full-time personal care worker at Iris Manor in October that year.
Previous back problems
17 Prior to the accident, the plaintiff had had problems with her lower back. She has been advised that medical records referred to a WorkCover claim which she made in relation to her lower back in June 1996 but she could not recall that claim.
18 However, the plaintiff recalled experiencing some lower back problems around the mid 1990s for which she sought medical treatment. She was unsure whether she had then also experienced any pain radiating into her buttocks or legs. If that had been the case, that pain must not have been that bad, because she could not remember having had it.
19 However, these problems generally settled during the nine or ten years or so prior to the accident and did not interfere with her work or her enjoyment of life.
20 In cross-examination, the plaintiff denied having any lower back problems when she started the job at Iris Manor.[6] She denied having flare ups before starting that job. She had no time off work in the seventeen years whilst working for Appleby’s. She never took sick days, and had a perfect work record. She left cleaning because she wanted a different career.
[6]T29
21 At the time she started with Iris Manor, the plaintiff was playing sport and had no problems with her lower back.[7]
[7]T90
22 In cross-examination, the plaintiff denied she had a long history of sciatica before the incident, as was mentioned in a referral letter to Angliss Physiotherapy in early 2006.[8] In the past she had a sciatica problem which settled down and was treated, and then it was fine.[9] She was working fine, and then she had the accident and she has had sciatica since.
[8]T21
[9]T22
23 The plaintiff could not remember what brought the sciatica on initially.[10] She could not remember it coming on while making a bed.[11] When asked about a history recorded by Professor Myers that she had a pinched nerve before the accident for about ten years caused by making the bed one day, the plaintiff thought she told Mr Myers she had a pinched nerve ten years ago and they rectified it and it settled down[12] and she had no recurrence.[13] She had physiotherapy; she had the problem and it settled down, that was it.
[10]T22
[11]T23
[12]T52
[13]T53
24 The plaintiff has never lodged any claims for compensation in respect of her low back. When asked about a claim for a low back strain whilst working at Appleby’s on 20 June 1996, the plaintiff agreed she slipped on her bottom on the floor and bruised her tail but she was fine after a while and never took any days off work.[14] She could not remember lodging a claim. She just remembered the incident and getting on with it.[15] She could not remember going to doctors about a low back problem at that time.
[14]T23
[15]T24
25 In addition, the plaintiff had some left shoulder problems in March 2005 resulting from a fall in relation to which she saw her general practitioner, Dr Gason, who referred her for an ultrasound. Her shoulder condition did not stop her from working full time in often quite physically demanding work.
26 The plaintiff was taken to an entry of 2 March 2005 when she was complaining of pain on movement of the left shoulder after a fall. She thought that was the only time she had had a fall.[16] She slipped on the nature strip and suffered slight bruising of her left shoulder. This occurred well before she started at Iris Manor.
[16]T26
27 The plaintiff was asked about an entry of 16 March 2005 noting how she was complaining of problems with her hips. At that time, she was doing the six-month personal carer course. She had no recollection of hurting her hip then because she was still playing sport then.
28 In about 2000, the plaintiff was involved in a transport accident. She was unsure whether she had made a claim. The plaintiff thought that she experienced some aches and pains for a short period of time after that accident and consequently saw a doctor. However, she did not think she experienced any ongoing medical issues thereafter.
29 None of the plaintiff’s health problems before the said date interfered to any significant extent with her enjoyment of life outside work.
30 Indeed, prior to the said date, the plaintiff would have described herself as quite fit and healthy, enjoying full time work as a personal carer and she was very active outside work.
31 The plaintiff played club softball at master’s level for several seasons before the said date and had in fact played softball during the season which ran from October 2005 to February 2006 immediately prior to the said date. She had also travelled to the World Masters Games in Melbourne with an Australian team and won a silver medal at that competition in 2002.
32 Further, until about 2003, the plaintiff played ten-pin bowling in a local team. She also enjoyed going cycling with her children and she walked for exercise. Her physically demanding job also kept her fit.
33 As at the said date, the plaintiff was still living in the old family home at Wantirna where she enjoyed gardening and growing roses and azaleas. She was independent in regards to all household chores and activities of daily living.
34 All in all, before the accident the plaintiff led an active, busy and fulfilling life.
The accident
35 On or about the said date, the plaintiff was driving her car in Glen Waverley when suddenly and without warning another motor vehicle approaching from the opposite direction failed to stop at a red arrow traffic light and attempted a right hand turn across the path of the plaintiff’s vehicle, failing to give way to her and colliding with her vehicle (“the accident”).
36 The accident was a very violent and frightening experience and the plaintiff’s car was written off.[17] She disputed it was a low speed accident, as the hospital records indicated.[18]
[17]T106
[18]T107
37 The plaintiff’s injuries included bruising to her face, with her head and face having hit the driver’s side window. She suffered injuries to her jaw and fractured the dental plate she was wearing. The plaintiff also suffered injuries to her neck, shoulders, chest and ribs, including seatbelt bruising to her hips and left knee. She also injured her lower back and in addition suffered psychiatric injuries as a result of the accident.
38 The plaintiff was taken by ambulance to Box Hill Hospital where x‑rays were taken of her neck, back, pelvis, right hip and shoulder and she was kept in hospital for observation and discharged home the following day.
39 In cross-examination, the plaintiff said she did complain of lower back problems, although there was no mention thereof in the hospital report.[19] She was in Emergency until 2.00am the following day, when she was transferred to her cubicle bed. She did not get any documentation from the hospital and did not take any documentation home.[20]
[19]T29
[20]T29
40 At the hospital, the plaintiff was told she had a possible hip fracture and neck trouble. She had no feeling in her lower legs. She was advised not to move and she was strapped up across her hips.[21]
[21]T30
41 The plaintiff identified a medical certificate dated 29 November 2005 sent to her by the defendant. She could not explain why her lower back was not mentioned on it.
42 The plaintiff was then shown the Claim Form signed by her on 15 December 2005. She did not know who typed in the list of accident injuries in answer to Question 26. She agreed she had declared the contents of the form to be true.[22]
[22]T31
43 The plaintiff agreed her lower back was not mentioned in the form and she could not explain the omission.[23] She had set out she did not have any pre-existing condition because she did not have any lower back problems before the accident.[24] None of her back problems had ever stopped her from working full time or participating in sport. She had previous sciatica but she had never had the lower back problems.[25]
[23]T32
[24]T32
[25]T32
44 Several days after discharge from the hospital, the plaintiff saw her general practitioner, Dr Gason, who advised her to continue resting, and prescribed some medication.
45 The plaintiff deposed that she attempted to return to work on about 8 December 2005. However, even though she was doing light duties, given her injuries, she found the work too physically demanding and was forced to leave Iris Manor on or about 22 December 2005.
46 In examination-in-chief, the plaintiff confirmed she had a bit more than two weeks off after the accident and she last worked on 6 January 2006 because she was not able to do all the duties of the job. She was not able to do lifting or if anyone fell out of bed she had to ring the bell and get someone else to come and help her because she could not do any lifting.[26]
[26]T8
47 The plaintiff could not do any showers or make beds and she was virtually there as a sleepover.[27] She could not do those jobs because of the pain in her lower back and shoulder and she found she could not get down to lift clients.
[27]T8
48 In cross-examination, the plaintiff was shown the TAC Claim Form which set out she returned to work on 5 December 2005. She thought she had ten days off, spent at home recovering. Her taxation return indicated she was last paid on 6 January 2006. She denied she last worked on 17 January 2006.[28] It was ultimately conceded by the defendant that the plaintiff last worked on 6 January 2006.[29]
[28]T33
[29]T58
49 The plaintiff denied that on her return to work she had a recurrence of sciatica in her right leg from doing heavy work. She was only doing a sleepover and there was no heavy work.[30] The plaintiff just put up with the pain and made no complaint about it in the time she went back to work.[31]
[30]T42
[31]T43
50 The work on the return to work after the accident was like a sleepover, virtually doing what she was doing before.[32]
[32]T3
51 In re-examination, the plaintiff described her work at Iris Manor as sleepovers, and it was not a very demanding job.[33] She did not do any heavier work associated with aged care before the accident.[34] She then explained she was not working a sleepover, it was a stand-up. There was no lifting of weights or any physical reason why she could not have done the job before the accident.[35]
[33]T114
[34]T115
[35]T116
52 In the fortnight ending 18 December 2005, the plaintiff was paid for about 75 hours of work. She was working a 10-hour day.[36]
[36]T58
53 The plaintiff thought she told Dr Gason she could not do the job and she had resigned because she could not do what her employer wanted her to do.[37] Her employer was wanting her to make the beds and help the morning staff with showers, and she advised she could not do more duties. It would have been heavy work for her how she felt at the time.[38]
[37]T43
[38]T43
54 Dr Gason initially gave the plaintiff a medical certificate for six months off.[39] He checked her over after the first six months and told her she was not ready to go back to work and gave her another six months.[40] The plaintiff held on to those certificates until she was ready to go back to work. She also had Centrelink certificates.[41]
[39]T45
[40]T44
[41]T44
Subsequent medical treatment
55 In cross-examination, the plaintiff was asked whether she could remember going to a doctor between her return to work on 5 December 2005 and 17 January 2006. She saw her own doctor after she left Iris Manor.
56 The plaintiff then was directed to the first time she attended Dr Gason on 2 December 2005.[42] The note of that attendance mentioned the plaintiff had attended Box Hill Hospital “? fractured hip”, right scalp struck window, there was sternal or chest bruising in the right hip and multiple bruises.
[42]T34
57 The plaintiff did not know that there was no reference to the lower back in the note as she did not know what the doctor wrote down.[43]
[43]T35
58 On the next attendance on 3 January 2006, the plaintiff complained of a jaw ache.
59 The plaintiff could not recall telling Dr Gason the work she was doing as a personal carer was heavier than cleaning work. Personal carer work was not heavier because all the plaintiff had to do was stand up and take medication around to the clients.[44] However, her employer was wanting her to help the morning staff with showers and making beds.[45]
[44]T36
[45]T43
60 The plaintiff confirmed that on her return to work she was stiff every night in the lower back but she could not recall reporting this to Dr Gason. She had had problems with her neck and back and also her left knee, and she had constant pain down her right leg but she just coped. She just went back to work because she had to work. She did not tell Dr Gason she needed another work option.[46]
[46]T37
61 The plaintiff could not recall complaining to Dr Gason on 17 January 2006 that that she hit her head on a bench corner at Iris Manor.[47] She could not remember having struck her head anywhere or anytime.
[47]T39
62 Dr Gason noted on 13 February 2006, that the plaintiff’s sciatica flared after accident. The plaintiff agreed she was having problems with her sciatica and she would have mentioned it to him.
63 The plaintiff could remember being referred to physiotherapy in Glen Waverley. She deposed she had physiotherapy there regularly and had been informed that her medical records revealed that when she consulted Dr Worrell in place of Dr Gason on 19 April 2006, she was still having physiotherapy for her sciatica and also shoulder pain.
64 The plaintiff could not remember having physiotherapy at Angliss Hospital, but it was possible.[48] She could not recall seeing Katrina Hastings.[49] The plaintiff was having a sciatica problem after the accident.[50] She denied that she had told the physiotherapist at the initial assessment on 23 March 2006 that she had had right-sided sciatica since December 2005. She had pain and sciatica after the accident.[51]
[48]T39
[49]T40
[50]T41
[51]T42
65 The plaintiff did not know whether the defendant paid for any physiotherapy in 2006. When it was suggested to her that she did not relate her low back pain to the accident at the March attendance, the plaintiff explained she would have been sent there by Dr Gason because of her accident trauma.[52]
[52]T55
66 After the accident, the plaintiff was not in a fit state to be looking for work physically so she was to rest and recuperate on Dr Gason’s advice whilst she was on a medical certificate.[53] She was tender over her hip from the accident and it took a long time for the haematoma to settle.[54] The plaintiff was very badly bruised and trying to work.[55]
[53]T46
[54]T47
[55]T47
67 The plaintiff deposed that in 2006 she moved to Warragul. She sold her Wantirna home and moved to be closer to her family. She believed she was a country girl at heart and at that stage she wanted to get back to her roots.
68 In around August 2006, the plaintiff was on Newstart, which was only a few hundred dollars a week, and she still had a small mortgage. The plaintiff could not keep up repayments so she sold her house and moved to Warragul, buying a cheaper unit.
69 When the plaintiff first went to Warragul she had a bit of extra money which she lived off for a little while so she did not qualify for Newstart.
70 In cross-examination, the plaintiff said she put her house on the market in August 2006 and bought the unit in November 2006. She denied signing a transfer in August 2006.
71 The plaintiff’s brother suggested she put her house on the market and that she move to Warragul, having come from a farm.
72 In re-examination, the plaintiff said she would have liked to have stayed in her family home, having been there for twenty eight years. She ceased work because she could not physically do the work at Iris Manor, and as a consequence, had no income, and decided to sell her house.[56] She had not thought about moving to Warragul before the accident.
[56]T116
73 If the plaintiff had not had the accident, she would have continued in her job. She would have done more training on medications and manual handling in her aged care role, and would have liked to continue learning the whole spectrum of that field.[57]
[57]T117
Treatment in Warragul
74 In October 2006, the plaintiff commenced treatment with Dr Roman, a general practitioner, in Warragul.
75 The plaintiff agreed on the first visit with Dr Roman, the plaintiff did not mention the accident. Dr Roman said she wanted to do a physical, as the plaintiff was a new patient, and the plaintiff did not mention things about the accident.[58]
[58]T61
76 At that attendance, the plaintiff went through a number of other matters with Dr Roman. The plaintiff told her who she was seeing in Wantirna, and asked her to have all the records sent to her, so she assumed Dr Roman would have gone through all the records. The plaintiff did not mention the accident because it did not come up.
Return to work
77 The plaintiff deposed that despite her ongoing problems, particularly pain and stiffness in her neck, back, shoulders and left knee, she tried to return to some light cleaning work for about two weeks in the middle of 2007. However, those light duties proved too much and she was not able to cope and a short while later, she began to receive a disability support pension.
78 Newstart virtually told the plaintiff she had to apply and look for work.[59] She could not go back to her old personal carer job then because of the pain.
[59]T9
79 In evidence-in-chief, the plaintiff described having had a small job as a cleaner at the Baw Baw Shire which involved emptying bins and wiping down tables between March and June 2007 (“the work period”). She would also clean up after a Shire function. She worked about five or six hours a day, four or five days a week.[60]
[60]T9
80 The plaintiff did not remember signing a health declaration for the Shire when she started work, telling them she was not suffering from any pre-existing disease.[61]
[61]T72
81 At the end of the work period, the plaintiff was advised there was going to be a lot of vacuuming work involved, as the Shire had taken over the Arts Centre. The plaintiff told the Shire she would not be able to use a back pack vacuum because of lower back pain.[62] The plaintiff agreed that in the taxation year 2007 she earned $1,958 working with the Shire.
[62]T9
82 The work with the Shire was different from the work at Appelby’s, in that the plaintiff did light work emptying rubbish bins and wiping down tables. Appelby’s was housework, factory work and mainly houses, and outside windows and a lot more physical.[63]
[63]T65
83 There was work requiring use of a Vac Pack at the Shire, but the plaintiff did not do it. She could not do the work in the Arts Centre using that sort of cleaner and never worked there.[64]
[64]T66
84 In cross-examination, the plaintiff agreed Dr Meshreky organised a CT scan of her lumbar spine in July 2007 but denied the investigation was organised because the plaintiff had been complaining of low back pain from working as a cleaner. The back pain was always there.[65]
[65]T85
85 The plaintiff was asked about an attendance with Dr Meshreky on 13 July 2007 where it was noted “working as a cleaner for the last week with Vac Pack, needs to carry vacuum over a back pack, stiff and sore”. The plaintiff knew that before she left the Shire she was being asked to clean with a Vac Pack, and she said she could not.[66] She could not actually remember doing it.[67] The plaintiff agreed she said she was having back problems and stiffness, but not from using a Vac Pack.[68]
[66]T66
[67]T67
[68]T67
86 The plaintiff could not remember whether she was working for the Shire in July 2007.[69] She had no documentation to say how long she worked there. It sounded logical to her that she had asked Dr Meshreky on 16 July 2007 for a letter because she could not do any work with her back.[70]
[69]T67
[70]T68
87 The plaintiff left the Shire because of low back pain doing cleaning work, because her back was getting worse and she could no longer do the work, and she resigned.[71] She left of her own accord. She resigned and said she could not do the work, and she spoke to a doctor about it.[72]
[71]T70
[72]T76
88 The Shire told the plaintiff to put it in an official letter that she could no longer work. The plaintiff said she could not do the work; she could not do the vacuuming.[73]
[73]T76
89 The plaintiff denied she was with the Shire for nearly six months.[74] The two weeks deposed to in her affidavit was a mistake.[75] She must have got it wrong, as she worked until June. The plaintiff could not recall being paid by the Shire in the 2008 financial year, and if she had earned anything, it would have been in her taxation return.
[74]T72
[75]T65
Treatment in 2007
90 Treatment continued throughout the latter part of 2007. A CT scan of the plaintiff’s lower back apparently showed, to some extent, the injuries she had suffered. The plaintiff also began some physiotherapy at Gippsland Physiotherapy Group in August 2007.
91 Following the move to Warragul, the plaintiff continued to suffer from various symptoms arising from the accident. On 13 July 2007, a whole spine CT scan was organised by Dr Meshreky. The plaintiff had been informed that following the CT scan, she consulted Dr Meshreky on 13 July and 16 July 2007 in relation to her back injury.
92 Since the move to Warragul, the plaintiff had had physiotherapy with Gippsland Physiotherapy Group between 2007 and 2008. During that period, she was in receipt of a disability pension and was entitled to undergo five free physiotherapy sessions a year. The plaintiff believed she stopped physiotherapy some time during 2009. She had been informed that the Gippsland Physiotherapy Group records indicated she attended in 2007 on 14, 21 and 28 August and 7 and 10 September. She believed she attended for some further sessions during 2008, and probably into 2009.
93 On 6 April 2009, Dr Roman referred the plaintiff to Dr Comish, osteopath, from whom the plaintiff had at least three treatments during May and April of that year. Since that time, the plaintiff had continued to do home exercises as directed by her physiotherapist.
94 In re‑examination, the plaintiff confirmed she had had physiotherapy in 2006 and 2007 and some osteopathic treatment in 2009. The physiotherapy did not help, and made her feel worse.[76] She had five visits in 2007. Nothing in the physiotherapy or osteopathy treatment has helped relieve her pain.[77]
[76]T108
[77]T109
95 The plaintiff could not remember going to any specialists on referral from Dr Roman or any other general practitioner.
Later work
96 In examination-in-chief, the plaintiff was asked whether, after leaving the Shire, she then got a job at Gracevale Lodge. The plaintiff said this was the case, and described her job at this elderly low-care retirement village was doing sleepovers.[78] The plaintiff worked in that job from October 2007 to January 2008.
[78]T10
97 That employer then thought the plaintiff was overqualified for that role with a Certificate IV and that the day staff coming in at 7.00am was adequate for staffing purposes. Further, the plaintiff explained that on a couple of occasions she had to disturb the resident manager to assist her to turn patients in bed as she was unable to do so herself.[79] The plaintiff was put off and not offered any more work.[80]
[79]T84
[80]T11
98 The plaintiff’s taxation return for the 2007-08 financial year showed the plaintiff earned $3,709 from Gracevale Lodge.
99 In cross-examination, the plaintiff described how, after leaving the Shire, she had no funds coming in so she went straight back to Centrelink and asked if any jobs were going. She was told about a job involving sleepovers at Gracevale Lodge, a low care facility.
100 The plaintiff denied that she cooked breakfast at Gracevale. She just put the food out and set the tables.[81]
[81]T77
101 The plaintiff agreed there was no reference in her affidavit to Gracevale.[82] This was because she had forgotten about it. The duties were so light and she thought she was being asked about heavy work.[83] Her doctors knew she was on Newstart looking for work, so why did she have to tell them about it?[84]
[82]T78
[83]T79
[84]T79
102 In cross-examination, the plaintiff explained that she left Gracevale after she was phoned and told they no longer wanted her.[85]
[85]T83
103 The plaintiff had deposed that despite ongoing problems, she again attempted to return to work in the middle of 2008, trying some light factory work for about four to six weeks, but once again she was unable to cope with the physical demands of that job and had to give up.
104 In examination-in-chief, the plaintiff explained that she was employed by Adecco, which sent her to the Drypack factory (“the factory”) in Warragul, which manufactured plastic plates and trays.[86] She obtained a causal job at the end of the conveyor belt just waiting for machinery to send trays through.
[86]T11
105 It was not until the plaintiff received her first payslip that she saw the name “Adecco”.[87]
[87]T18
106 The plaintiff first worked at the factory from 18 February until 7 March 2008. Her job involved stacking trays that had come through the machine. She was put off work because Adecco told her there was “no work going”.[88]
[88]T19
107 In March 2008, Drypack just told the plaintiff not to turn up for work on Monday as there was no work for her.[89] The plaintiff was the only one put off. She was doing light work and having trouble doing it, and they put her off.[90]
[89]T86
[90]T87
108 The plaintiff worked at that factory again from 26 March until early June 2008 when she was telephoned and told she was no longer wanted. Most weeks she worked about 38 hours.[91]
[91]T13
109 The plaintiff had problems with her lower back standing at the end of the conveyor belt and asked for a rubber mat which was given to her and other employees, and that helped with her pain.[92]
[92]T13
110 The job in the second period involved sitting in front of a fully automated machine where the plaintiff put plastic trays in one end and the trays came out the other end. The job was easy because the plaintiff was sitting in a comfortable chair. There was attempted training on four or five other machines but the plaintiff had problems using her hands because she had arthritis and she was not able to work fast enough.[93]
[93]T14
111 The plaintiff had to have assistance putting the plastic rolls at the beginning of the machine and had to ask men to help her as the rolls were huge and she could not even attempt them.[94] The other workers seemed a lot quicker and they were a very young group.
[94]T14
112 The plaintiff was told in June 2008 there was no work for her. Nothing was said to her about her capacity for that work.[95]
[95]T15
113 The plaintiff could not recall being contacted by Adecco on 17 October 2008 regarding her availability for work.[96] When it was put to her there was a note in the Adecco file that the plaintiff was “on disability pension and not looking for work”, she said she gathered she would have been on the pension and she did not have to look for work. She had her own house in Warragul and no longer had a mortgage.
[96]T20
114 The plaintiff was not able to live on a disability support pension fortnightly but she had to. She agreed that because she was on a disability support pension she was not looking for work and that she had effectively retired from the workforce.[97]
[97]T21
115 In the financial year 2007-08, the plaintiff earned $9,176 at Adecco. She had not been able to get any other employment since and had not sought work as a personal carer because she went on a disability pension and stayed on it.[98]
[98]T15
116 The plaintiff could not work as a personal carer as she could not do her job properly.
Ongoing condition
117 The plaintiff’s condition remained much the same throughout 2008 and 2009 and treatment continued.
118 The plaintiff denied that in December 2008, she told Dr Roman of intermittent back pain and told him the back pain had been there constantly.
119 In May 2009, the plaintiff commenced some osteopathic sessions in Warragul, on referral from her general practitioner for treatment, particularly in regard to persisting problems with her neck, pelvis, low back and right hip.
120 In cross-examination, the plaintiff confirmed she went to an osteopath in 2009 for massage of her back and hip.[99] She remembered she was having pain in her right side and lower back. The osteopathic treatment was very painful.
[99]T89
121 At the time the plaintiff swore her first affidavit in May 2011, the plaintiff continued to suffer constant pain and stiffness throughout her spine, particularly in and around her neck and also lower back. That pain varied in intensity and she had good and bad days; however, the pain was always there.
122 The plaintiff’s neck pain also continued to radiate into her head, causing headaches which would sometimes be severe. Those headaches were worse on the right side of her head compared to the left.
123 The plaintiff also had right-sided jaw pain and it seemed to grind and crack when she opened her mouth or chewed food.
124 Further, the pain in the plaintiff’s neck radiated down her spine to between her shoulder blades, as well as into her shoulders, worse on the right. The plaintiff continued to experience pins and needles in her fingers on the right hand from time to time. She had also noticed there was sometimes a “clunking” feeling in her shoulders when she moved them. She believed she had lost strength in her arms as a result of her injuries.
125 The plaintiff’s neck and shoulder pain was most often aggravated by use of her arms, especially above shoulder level. Having to hold her head in any one fixed position for a prolonged period of time, such as driving or when trying to use a computer, also aggravated her pain.
126 Lower back pain continued to radiate down into the plaintiff’s right buttock and leg, down her toes, especially her right big toe. The leg pain was sometimes like a stabbing type of pain and it could be severe.
127 In addition, the back pain continued to radiate into the plaintiff’s hips, especially into and around her right thigh, and she thought she had lost strength in her right leg as a result of the collision.
128 The plaintiff’s spinal pain was most often aggravated by prolonged periods of standing, particularly on harder surfaces, or sitting for too long, including when driving.
129 Movements, such as bending, twisting and lifting, pushing and pulling, also caused an increase in pain. However, sometimes the plaintiff would have a flare up for no apparent reason. On those occasions, it was quite difficult to do anything very physical at all.
130 The plaintiff also continued to suffer pain and stiffness in and around her left knee, which sometimes swelled up, particularly towards the end of the day. It felt unstable at times, though it might give way without warning. The knee problems were often aggravated by standing for too long or by trying to walk too far, and various movements, especially bending, squatting and kneeling also increased pain.
131 The plaintiff’s sleep continued to be interrupted by pain. Particularly after a bad day, she was lucky to have more than four or five hours of good sleep and consequently often felt fatigued and tired.
132 Also as a result of the accident, the plaintiff continued to suffer emotional difficulties. She still became miserable and sad at times, especially when thinking about what she had lost in physical capacity as a result of her injuries. She got quite worried and stressed, particularly when she thought about her future prospects and was worried about her deterioration of her little physical capacity in the future and about how she would look after herself in the years to come.
133 The plaintiff had also become rather nervous when travelling as a passenger and was sometimes apprehensive about another accident.
134 The plaintiff then continued to see Dr Roman and did home exercises taught to her by her physiotherapist. She took analgesic medication, including slow release Panadol. She had not been able to take stronger painkilling medication because she is allergic to codeine, even though she wanted to, and could not take anti-inflammatories because of the gastrointestinal side effects.
135 Despite her best efforts, the plaintiff had been basically unable to return to work in any meaningful way despite several attempts.
136 If it were not for the accident, the plaintiff believed she could have worked for many years to come, having previously enjoyed her job in aged care. In addition, having separated from her husband in 2003, the plaintiff needed to work because of financial reasons. Further, she was still relatively fit and healthy and easily able to cope with demanding work when she had the accident.
137 As a result of her injuries, the plaintiff remained restricted in a range of domestic, family and recreational activities. She then had three young grandchildren who lived with their parents in suburban Melbourne. Whilst she visited them regularly, the plaintiff was restricted in the manner in which she could participate in their care and also driving long trips could aggravate her pain.
138 The plaintiff had difficulty in regard to any household chores. Ideally, she would have liked to have had some formal home help as even ten minutes or so of housework could aggravate her pain. At that stage, she had to do things at her own pace and with regular rest breaks. She relied on her sister-in-law to come and do the gardening and help with heavier chores at home.
139 Importantly, the plaintiff had lost the capacity to play team sport in the manner she previously enjoyed. She had not been able to return to club softball or go ten-pin bowling. She was limited in the manner in which she could exercise generally, such as when cycling and walking.
140 Despite all her difficulties, the plaintiff still tried to get out and do things as often as possible. Her doctor had advised her to be as stoic as she could be and do things and stay active. However, the pain sometimes got the point where it was quite difficult to get out and do anything physically very active at all.
Activities
141 In cross-examination, the plaintiff confirmed that the softball season went from October 2005 till February 2006, and that she has not played softball since the accident.[100]
[100]T61
142 The plaintiff was asked about an entry made by Dr Meshreky noting a fractured fourth toe on 26 March 2007 “Was playing ball. Strapping with elastic plaster and didn’t want an x‑ray.” The plaintiff explained she would not have been playing softball at that time as the season ended in late March.[101]
[101]T62
143 The plaintiff knew her coach told her she could not play or return to softball without a medical certificate, and because her doctor would not give her a certificate, she was not playing.[102] She would not have been playing on that date.
[102]T63
144 The plaintiff could not recall asking her doctor for a medical certificate to get back to playing.[103] The plaintiff could remember hitting her toe with the ball, but she did not know whether she was playing or “just mucking around”.[104]
[103]T63
[104]T63
145 After the accident, the plaintiff went down and watched the games and sat on the bench, but she did not play, as she did not get a medical certificate.[105]
[105]T64
146 In December 2005, Dr Gason told the plaintiff not to go back to sport until she was completely well. The plaintiff denied that his note that month that she was not to undertake sport until February related to a skin problem.[106]
[106]T75
147 The plaintiff was playing for Monash Magic Softball Club in a domestic league at the time of the accident. She denied she told Mr Dooley on examination in 2013 that she was going overseas to play in the Masters when the accident happened.[107] The plaintiff played in the World Masters in Melbourne in 2002 and won a silver medal. She did not go to Vancouver in 2004.[108]
[107]T91
[108]T92
148 The plaintiff now does not maintain her garden.[109] She has a gardener who mows the lawn, sprays and does the weeding.
[109]T94
149 The plaintiff can do all her own activities of daily living. She drives a car.[110] She can do some vacuuming and cleaning. She spends a lot of her day watching television and meets up with her sister occasionally and meets friends down the street. She does not do a lot at all.
[110]T94
150 The plaintiff now goes to Melbourne a couple of days a week to visit her grandchildren because they do not come to Warragul.[111]
[111]T95
151 The plaintiff goes down on a Monday and stays for a couple of nights to stay with her grandchildren, who are aged four, three, and one has just turned two, and a baby.[112] The grandchildren are from two of the plaintiff’s children.
[112]T95
152 The plaintiff continued to be worried about her future. The accident had had a terrible effect on her life and her livelihood. It had not only taken away her capacity to work and be financially independent, but also her ability to participate in many of the sports and pastimes she previously enjoyed. In addition, the accident had left her trying to cope with constant daily pain.
153 In a further affidavit sworn 15 March 2013, the plaintiff confirmed her situation continued. She had constant fluctuating pain with good and bad days and spent a lot of time resting. Bad days were usually brought on by activities such as making the bed, vacuuming and mopping. Grocery shopping aggravated her shoulder pain, packing and unpacking the car. On good days, although she continued to have constant pain, she could go for short walks and attend to light housework.
154 The plaintiff was then taking two to three Panadol every day for pain; one in the morning and two to help her sleep. She took additional Panadol when her pain became more severe, to try and take the edge off the pain. If she had a headache, which was usually associated with an aching jaw, she took extra Panadol.
155 The plaintiff still had intermittent pins and needles in her right fingers and also a constant feeling of numbness and loss of sensation in her right leg from under the knee down the foot. She had a strange feeling in her right foot most of the time, like her foot was full of water.
156 The plaintiff’s lower back pain, which radiated through her right buttock and leg down to her toes, was always present and aggravated by certain movements, such as bending over to do up her shoes. She still had pain in her big toe occasionally.
157 The plaintiff gave an example of a flare up in late 2012 when walking in Warragul, she felt a sudden pain come down both legs. Her legs then momentarily gave way and caused the plaintiff to slump and stumble and she had to hold onto a shop door to compose herself.[113]
[113]T106
158 The plaintiff suffered from similar occurrences on an approximate weekly basis and when they occurred, it felt as though her legs just went to jelly. The plaintiff always found that experience very disconcerting and was fearful that eventually she may fall as a result of those occurrences.
159 In cross-examination, the plaintiff agreed that she could have a flare-up for no apparent reason.[114]
[114]T106
160 The plaintiff had told Dr Roman about the flare ups and she prescribed back strengthening exercises which the plaintiff tried to do every couple of days. However, the plaintiff finds it just too painful to get down on the floor and do them.
Current pain
161 In examination-in-chief, the plaintiff described she presently has pain in the lower area of her back below her waist right in the middle.[115] The pain is constant and she also has constant pain down her right leg. That pain is present when she tries to do a little bit of housework or goes for just a small walk.
[115]T16
162 The plaintiff has problems sitting and standing comfortably after about twenty minutes and she then has to get up and move around.
163 The plaintiff has pain in the middle of her spine going up into the back of her head. She has aching in her jaw and if she turns her neck quickly it radiates down into her right shoulder. She gets headaches quite often.[116]
[116]T17
164 The plaintiff could not remember telling Mr Khan her neck problem was almost completely resolved when he examined her in October 2012.[117] She told him she had a continual ache in her neck, particularly turning it to the left and right.
[117]T102
165 The plaintiff uses the odd heat pack on her lower back, which helps. She takes Panadol Osteo, which was recently prescribed, which takes the edge off her pain.[118] She takes roughly two in the morning and two at night but if she gets up in the middle of the night she will take another tablet.
[118]T16
166 The plaintiff described problems with anti-inflammatories, being allergic to codeine. She described two slight bleeds in her stomach from taking these tablets.[119]
[119]T101
Other health issues
167 In cross-examination, the plaintiff could not remember going to Dr Field at Knoxgate on 1 June 2006 telling him he had tripped over two days ago. She could not remember further hip x-rays in June 2006 unless it was to do with her accident injuries.[120] She did not have any recollection of stomach problems in May 2006.[121]
[120]T47
[121]T48
168 In 2006, the plaintiff was still feeling tenderness in her chest from the accident and had problems with breathing and her ribs, but she could not remember for how long. She had a melanoma removed, having complained about a pimple in June 2006, and she had skin surgery the following year.
169 The plaintiff was asked about an entry in Dr Roman’s file that on 11 January 2008, she felt pain in her shoulder coming to the clinic. She explained that was when an ambulance came because she had back pain. She then said she was having pain between the shoulder blades and feeling quite dizzy and agreed that attendance had nothing to do with her lower back.[122]
[122]T82
170 The plaintiff could not remember waking one morning with a swollen left face in December 2007, or talking with a slur.[123] She could not say she had a discussion with her doctor about a stroke. She just could not remember.[124] She had already been taking aspirin. She could not remember having a CT scan of her brain but she could have.[125]
[123]T80
[124]T80
[125]T80
171 The plaintiff did not remember that particular time or having anything funny with her face, and she did not remember taking time off.[126] She could not remember a long consultation on 26 March 2008 about the palsy.[127]
[126]T83
[127]T83
172 The plaintiff agreed she had attended the Warragul clinic, having crushed her right thumb in November 2008. She had also attended in relation to kidney cysts.[128]
[128]T90
173 The plaintiff could not remember suffering an injury to her left knee in 2010 when on the floor playing with her grandchildren, as Dr Roman noted. She could have seen Mr Owen, but could not remember his name.
174 The plaintiff remembered having severe pain in her left knee, and she had had it for a few years, so it was not just kneeling on it and playing with her grandchildren.[129] It could have happened, but she could not remember.[130] She does not currently pick up her three-and-a-half-year-old grandson because he is too heavy.[131]
[129]T96
[130]T97
[131]T97
The Plaintiff’s gross earnings
Financial year
Gross amount
2003
$23,868
2004
$24,642
2005
$27,351 (including $11,453 ETPs)
2006
$13,576 ($7,808 and $5,768)
2007
$1,958 (Baw Baw Shire)
2008
$12,885 (Adecco $9,176, Gracevale Lodge $3,709)
Lay evidence
175 The plaintiff’s daughter, Kim Brennan, swore an affidavit on 10 May 2013.
176 Ms Brennan travelled with the plaintiff in the ambulance from the accident scene, during which time she could recall the plaintiff complaining of back, right hip and neck pain.
177 Prior to the accident, the plaintiff was a very independent woman who enjoyed work and was in good health. She was very active and enjoyed playing regular softball competitively, ten-pin bowling and going on regular bike track walks with her friends.
178 The plaintiff loved her job and she was a real people person and enjoyed her interaction with the older residents.
179 Ms Brennan recalled the plaintiff was quite devastated she had to eventually stop working and she became quite depressed about it. Ms Brennan believed the cessation of the plaintiff’s work was instrumental in her decision to return to Warragul to be near other family members.
180 Ms Brennan deposed the plaintiff comes to stay with her at home in Warragul for a night each week, so she can spend some time with her two children and herself. The plaintiff often complains of pain in her back and right hip and Ms Brennan knows the plaintiff takes Panadol to help relieve the pain. The plaintiff does not like taking anything stronger, such as Panadeine Forte, as it makes her woozy.
181 The plaintiff frequently gets down and depressed due to her inability to be her old active self, to work and generally enjoy her life.
Treaters
182 The Box Hill Hospital notes of the triage assessment dated 28 November 2008 set out details of right neck pain, chest pain, sternal pain, hip pain, no loss of consciousness, and a haematoma on the head
183 A discharge summary from Eastern Health set out an admission and discharge on 29 November 2005. It was noted there was a low speed motor vehicle accident, and the plaintiff had some abdominal and right hip pain.
184 A physiotherapy spinal assessment was carried out at the Angliss Hospital on 23 March 2006. The report thereof set out there was a car accident, hit from the right, sciatic pain since December, back to work a week later, in hospital three days, whiplash, shoulder problem, past history query arthritis – very active life – pinched sciatica.
185 Dr Roman provided a number of reports. The plaintiff first consulted her in October 2006 and later presented with chronic back and shoulder pains and a left knee ache.
186 Dr Roman detailed various investigations and complaints made by the plaintiff before she started seeing her.
187 Dr Roman diagnosed chronic back pain with degenerative disc disease present; chronic bilateral shoulder aches with some minor degenerative component; chronic pain in the left knee with degenerative signs and left temporomandibular dysfunction. Dr Roman thought the injuries could be caused by the accident, although the plaintiff had some pre-existing degenerative component, like left shoulder tear before the accident, and the report of the back x-ray showed some degenerative changes as well.
188 Dr Roman noted in her first report of June 2011 that the plaintiff had tried to return to work after the accident and had to stop due to back and other joint pain and had been on a disability pension for the last few years. Dr Roman thought the plaintiff was not able to go back to work.
189 Dr Roman considered the plaintiff’s condition had stabilised and she had learned to live with injuries with symptomatic management, pain relief and exercises. She then thought the plaintiff was having appropriate treatment, noting the plaintiff did not present to the surgery that year with accident related complaints. Dr Roman noted the plaintiff had learned how to cope with her pains. She noted the referral to Mr Owen for the left knee and that conservative measures were approached and the plaintiff seemed to manage well.
190 Dr Roman thought the plaintiff was not going to improve, given she would be turning sixty three soon.
191 In her report of July 2012, Dr Roman advised that in the past year the plaintiff had developed depression and anxiety and was seeing a counsellor regularly. She noted the plaintiff stated her chronic pain contributed to her depression. Depression and anxiety were added to Dr Roman’s list of diagnoses.
192 Dr Roman then thought the plaintiff was not able to return to work due to her pains and at present was struggling with depression and anxiety and having regular counselling. Dr Roman noted the plaintiff had learned to live with her injuries with symptomatic management, pain relief and exercises; however she experienced depression and anxiety with isolation and low confidence.
193 Dr Roman last reported in March 2013. She advised that the plaintiff had suffered chronic pain since the accident. She confirmed her earlier diagnosis and noted the plaintiff’s depression and anxiety had worsened since the last report.
194 The plaintiff stated the chronic joint pains and not being able to manage at home had a big impact on day-to-day activities and she needed to take one day at a time depending on the way she felt.
195 In Dr Roman’s opinion, the plaintiff was not able to return to work due to her pains. She thought the plaintiff was having appropriate treatment with physiotherapy in Gippsland. She considered that the plaintiff’s condition was not going to improve further and noted that she was going to have an MRI scan to her spine with the next visit to follow up.
196 The plaintiff was seen by Dr Filed at Ferngate Medical Centre on 1 June 2006 for right hip pain and was prescribed anti-inflammatories and referred for physiotherapy.
The Plaintiff’s medico-legal evidence
197 Professor Kenneth Myers, vascular surgeon, examined the plaintiff in August 2009.
198 On examination, there was less than 25 per cent restriction in the range of movements of the lumbar spine and less than 50 per cent restriction in the range of movements of the cervical spine, both associated with pain. Straight leg raising was unrestricted on both sides and the deep reflexes were equal and active and there was no wasting of the limbs.
199 In addition to shoulder and left knee injuries, Professor Myers thought that the plaintiff had suffered an aggravation of the pre-existing previously asymptomatic degenerative intervertebral disc disease and spondylitis in the cervical spine and aggravation of previously symptomatic spondylitis and degenerative intervertebral disc disease in the lumbar spine.
200 Professor Myers considered the plaintiff had no capacity for work as a personal carer or cleaner and lacked training for alternative employment. He thought future medical treatment would be conservative with ongoing osteopathic treatment.
201 Mr Khan, orthopaedic surgeon, examined the plaintiff in September 2012.
202 The plaintiff told him that she slept poorly on account of pain in her right buttock area which flared up from turning side to side. After sitting for more than forty minutes, she started to get pain in her back and buttocks.
203 On examination, the plaintiff had pain in the back of her neck off and on, associated with occipital headaches. There was some limitation of cervical spine movements. Left lateral rotation was associated with pain in the left side of the lower part of the neck.
204 The plaintiff had pain in her mid-thoracic spine and between her shoulder blade area and flattening of the normal lumbar curve with an ache in the lumbar spine to the midline, going down to the sacrum. There was some pain in the right buttock area and some pain in the right groin.
205 The plaintiff complained of an ache in the top and back of the right shoulder. There was limitation of thoracolumbar spine movements.
206 A straight leg raising test on the right was positive at 60 degrees and on the left at 70 degrees. There was no muscular wasting in the thighs or calves on measurements.
207 Mr Khan thought the plaintiff had sustained jarring injuries with musculoskeletal and ligamentous strain to a cervical spine. There was an injury to the shoulder. The plaintiff also had an injury to her low back with flare up of degenerative arthritis in the lumbar spine which had been asymptomatic earlier on. She had flared up disc degeneration in the lower lumbar spine with referred pain down her right buttock and thigh and there was flare up of facet joint arthropathy in the lower part of the lumbar spine bilaterally.
208 Mr Khan thought the condition of the plaintiff’s neck was considerably resolved, leaving her with mild residual ache, particularly on turning her head.
209 Mr Khan thought the plaintiff had been left with restrictions of capacity. She was unable to perform any work requiring excessive bending, twisting and turning of her cervical and lumbar spine, lifting heavy weights and keeping her back bent for long. She could not sit or stand for long periods and was not able to run. She had residual pain in the right buttock and groin affecting the thigh.
210 Taking into account her age, education, training and experience, Mr Khan thought the plaintiff’s injuries had substantially reduced her capacity to obtain and maintain employment in the competitive job market. He thought she would require ongoing treatment from her general practitioner and other specialists as the need be. He considered she required a gardener to help with outdoor garden chores at home, noting that she was presently able to manage to perform her household activities reasonably independently.
211 Mr Khan thought that as a result of the injuries, there was likely to be acceleration of pre-existing degenerative changes in the joints of the thoracolumbar spine and cervical spine which may affect the plaintiff’s left knee and right shoulder. He thought there was a possibility the plaintiff could develop chronic discogenic pain in her lumbar spine associated with right sciatic pain.
212 If back and right leg symptoms persisted, Mr Khan recommended the plaintiff have a lumbar spine MRI. He thought treatment with painkillers and consultations with the general practitioner was adequate; however, the plaintiff may be required to see a rehabilitation and pain specialist in a multidisciplinary clinic if her symptoms deteriorated or caused excessive pain in the long term.
213 In a supplementary report of March 2013, Mr Khan commented upon a number of investigations. He noted, as shown by the recent cervical spine x‑ray, the plaintiff had pre-existing disc degenerative disease at C5-6 with narrowing of the intervertebral foramen bilaterally. He noted that was likely to affect the C6 nerve root bilaterally.
214 The lumbar spine x-ray indicated mild anterior wedging of the T11 and T12 vertebra, possibly indicating previous trauma and degenerative arthritis throughout the lumbar spine with mild facet joint arthritis at L5-S1. He noted the hip and pelvis x-rays were normal. Essentially, his diagnosis of the plaintiff’s condition remained the same with reference to her injuries, as did his opinion of her restrictions of work capacity.
215 Mr Khan provided a further supplementary report on 20 May 2013, having seen the new MRI of the lumbar spine dated 12 May 2013 arranged by Dr Roman.
216 Having seen the report but not the film, Mr Khan’s opinion remained unaltered.
217 In terms of prognosis, Mr Khan noted, as the plaintiff had been left with partial permanent residual after effects of her injury, she was unable to bend or twist her lumbar spine, stand or sit for long periods and was unable to run. She had residual aching in her right buttock, groin and thigh. She was unable to tolerate repetitive kneeling, bending or squatting on her left knee.
218 As a result of the combination of the effects of her injuries, Mr Khan thought the plaintiff’s present and future work capacity was seriously compromised. He considered her chances of finding a suitable job in the job market were very slim. He considered she would require to see her general practitioner frequently as required for an indefinite period and may require a pain management program.
219 Dr Robyn Horsley, occupational physician, examined the plaintiff in March 2013.
220 The plaintiff complained to her of chronic ongoing back discomfort and right hip discomfort. That discomfort varied on the visual analogue scale from four to five out of ten, up to a higher level out of ten at times.
221 On examination, no fear avoidance behaviour was exhibited. There was a mild loss of lumbar lordosis and a restriction of movement. There was half a centimetre wasting on the left in the thigh and right calf.
222 Cervical movement was significantly restricted.
223 Dr Horsley thought the plaintiff presented with mechanical back pain. Further, the plaintiff had clinical evidence of bilateral hip disability suggestive of degenerative change more on the right. She presented with probable degenerative change in the left knee and symptoms suggestive of right rotator cuff pathology.
224 Dr Horsley thought the plaintiff presented with significant neck disability on a background of pre-existing degenerative changes and she considered there did not appear to be any significant psychological sequelae.
225 Given the duration of the symptoms, Dr Horsley thought the condition was likely to persist.
226 In Dr Horsley’s view, the accident had truncated the plaintiff’s working career prematurely and she had been granted a disability pension in 2007.
227 Dr Horsley thought the plaintiff would benefit from a more structured physical program, a graduated walking program and home exercise regime. She thought the plaintiff had come to the end of her working life.
228 Dr Horsley concluded the events as described in the clinical presentation were consistent.
229 Dr Horsley believed the plaintiff had pre-existing degenerative change in the cervical and lumbar spine. Although radiologically in September 2012 there was no evidence of hip or left knee degenerative change, clinically the plaintiff had symptoms and signs suggestive of mild degenerative change.
230 In Dr Horsley’s view the plaintiff had persistent disability. At sixty four with seven years out of the workforce, the plaintiff was not a retraining or redeployment candidate. She had come to the end of her working life.
231 Dr Horsley noted on history, despite considerable retraining, the plaintiff was not able to return to the workforce and had remained off work since that time. The plaintiff ceased work prematurely, secondary to the sequelae of the accident.
232 Dr Nigel Strauss, psychiatrist, examined the plaintiff in August 2009.
233 Dr Strauss noted the plaintiff was not anxious or depressed on examination. There was no evidence of any psychosis, delusions or thought disorder, and memory and concentration were good.
234 The plaintiff said that her pain could get her down and upset her and that she experienced frustration.
235 Dr Strauss thought the plaintiff had not developed a psychiatric condition as a consequence of her physical problems or as a consequence of the accident directly. She had no significant Post-Traumatic Stress Disorder symptoms and no significant anxiety or depressive symptoms. She did not require any treatment from his point of view.
Investigations
236 Dr Gason organised an ultrasound of the plaintiff’s left shoulder on 4 March 2005.
237 It was reported there was a small deep surface partial tear of the supraspinatus tendon of uncertain age. There was a minimal degree of bursitis which may be a result of recent trauma. It was noted labral injury may still need to be considered and if symptoms persist, an MRI scan would be indicated.
238 Dr Meshreky organised a CT scan of the dorsal spine and lumbar spine in April 2007.
239 There was a normal study of the dorsal spine apart from spondylitic changes involving the dorsal vertebrae.
240 In the lumbar spine, it was reported the main abnormality appeared to be multiple level spinal canal stenosis in the three lower lumbar levels. That appeared to be due to a combination of the congenital abnormality and hypertrophic degenerative changes involving the facet joints.
241 There were x-rays of the spine in November 2009. There was no abnormality noted in the lumbar spine and mild spondylitic change noted in the cervical and thoracic spine.
242 In the cervical spine there were spondylitic changes present within the cervical region with disc space reduction in height between C5-6 level. There was foraminal narrowing noted at C5-6 level bilaterally. On the right side at C4-5 there was mild foraminal narrowing also noted.
243 There was no abnormality of the right shoulder and in both knees there were minor osteoarthritic changes present but no intra articular bodies or bony abnormality detected.
244 Mr Khan organised an x-ray of the cervical spine, lumbar spine, pelvis, both hips and left knee in September 2012.
245 It was reported the bones in the cervical spine were slightly low in density. There was slight reduction in disc space at C5-6 with alignment maintained. There was moderate narrowing of the foramens transmitting the C6 nerve roots bilaterally due to the degenerative change of the uncovertebral joints. It was concluded there was C5-6 degeneration.
246 In the lumbar spine there were mild degenerative changes. The bones in the pelvis and both hips were low in density but the joints were free of degenerative change, as was the finding in relation to the left knee.
247 An MRI scan of the spine was organised by Dr Roman on 12 May 2013.
248 It was reported from L3-4 to L5-S1 there was mild to moderate central canal stenosis secondary to ligamentum flavum hypertrophy facet joint arthropathy. No significant foraminal narrowing was demonstrated at the medial.
Other documentation
249 The defendant’s solicitors wrote to Mr Dooley and Dr Fraser in early 2013 confirming medico-legal examinations of the plaintiff and listing her accident injuries as seat belt and facial bruising, right hip pain, back, left knee and neck pain.
The Defendant’s medical evidence
250 The plaintiff’s treatment records from Eastern Health where she saw Dr Gason were relied upon by the defendant.
251 In a referral letter from Dr Gason to Angliss Hospital Physiotherapy dated 16 February 2006, the hospital was thanked for seeing the plaintiff, who had a long history of right sciatica which was making it intolerable and impossible to work.
252 Mr George Owen, orthopaedic surgeon, wrote to Dr Roman on 1 June 2010, noting the referral of the plaintiff for quite severe left knee pain which came on whilst she was kneeling on the floor playing with her grandchildren, and caused her to almost black out with pain.
The Defendant’s medico-legal evidence
253 Dr Kevin Fraser, rheumatologist, examined the plaintiff in February 2013. Dr Fraser noted movements of the cervical and dorso lumbar spines were restricted and the plaintiff complained of pain at the extremes of range.
254 On examination, there was local tenderness in the mid dorsal region and at the lumbosacral junction. There was some restriction of right shoulder movement and complaint of pain at the extremes of right hip movements.
255 Straight leg raising was restricted to 45 degrees on the right with pain at the extremes but the plaintiff could sit upright on the examination couch without difficulty. There was a diffuse sensory deficit to light touch in the right lower limb but there was no motor weakness.
256 Dr Fraser noted there appeared to be some overreaction on physical examination.
257 Dr Fraser reviewed the September 2012 x-rays of the spine, pelvis and left knee and a CT scan of the brain and cervical spine of 28 November 2005.
258 Dr Fraser noted x-rays of the chest, pelvis and cervical spine dated November 2005 reportedly showed no fractures, but a clinical note at Box Hill Hospital referred to old degenerative changes at C5-6. He noted later x-rays in 2009 were said to be normal apart from minor degenerative changes in the cervical spine, particularly at C5-6, and in the mid thoracic spine, as well as both knees.
259 In Dr Fraser’s view, there were not any ongoing injuries following the accident.
260 Dr Fraser considered the plaintiff probably sustained soft tissue injuries at various sites and perhaps temporary aggravation of pre-existing degenerative changes in the cervical and lumbosacral spine. However, he considered any such injuries would have long since resolved. He noted the plaintiff’s report of suffering left knee pain while playing with the children.
261 Dr Fraser thought there appeared to be some overreaction on physical examination but to the extent there was a physical basis for the plaintiff’s symptoms, he would attribute that to age-related degenerative changes at the affected sites. He noted an ultrasound of the left shoulder prior to the accident showed evidence of a rotator cuff lesion consistent with age-related degenerative change.
262 Dr Fraser also noted there was a past history of left sciatica (see Dr Gason’s notes of 23 June and 12 August 1997) treated with an anti-inflammatory drug and physiotherapy. Dr Fraser noted there was no doubt that the degenerative changes in the cervical and lumbosacral regions noted in available reports and recent x-rays antedated the accident.
263 There was also a complaint of right hip pain and an injection of cortisone on 9 March 2005.
264 Dr Fraser noted there had probably been some progression of the degenerative changes over the years and he thought the plaintiff’s condition was no different to what it would have been regardless of the accident. Further, in his view, such progression may occur as part of the underlying degenerative process.
265 Dr Fraser did not think the plaintiff required any treatment for any putative accident related injuries. Similarly, he considered any incapacity related to age-related degenerative changes in the affected areas rather than to any injury.
266 Mr Fogarty, orthopaedic surgeon, examined the plaintiff in October 2010.
267 The plaintiff then told him of pain and relative stiffness, especially felt at the back of her neck. She occasionally felt light headed. There was regular clicking of the right jaw and her bite had altered. She had a constant toothache. She often had clunking in the right hip region.
268 On examination, there was some limitation of movement of the thoracolumbar spine. There was no neurological deficit. There was diminished forward flexion, extension, rotation and lateral flexion of the cervical spine. There was no neurological deficit. There was limited range of movement of both shoulders and a slight click in each.
269 Mr Fogarty diagnosed cervical hyperextension whiplash injury with aggravation of early degenerative disc disease, spondylosis at C5-6 and a variety of other injuries. He noted some degenerative disc disease was present in the neck prior to the accident and was probably aggravated by it.
270 Mr Fogarty noted the plaintiff did complain of some back pain and right sciatica and there was evidence of some degenerative disc disease and lumbosacral spine, but no record of an injury to the low back in the Box Hill hospital records.
271 Mr Fogarty mentioned however, there was some previous back history in 1998 and sciatica had been noted prior to the accident.
272 Mr Fogarty thought the medical condition had impacted on the occupation and daily activities of the plaintiff, noting she had to stop full-time work, and although she had attempted lighter work, she had not been able to continue doing that and had been on her pension for two years. He noted she could carry out most activities of daily living except in heavier work and she did not do gardening.
273 Mr Fogarty thought there was pre-existing degenerative disc disease in the lower neck and spine which influenced the course of the current injury. There was also evidence of some degenerative disc disease in the lumbosacral spine but there was no clear evidence that that was in fact injured in the accident. He thought treatment was appropriate and that the plaintiff’s condition had stabilised.
274 Mr Fogarty considered the prognosis for the plaintiff’s injuries was only fair and that her condition was likely to remain as it was.
275 Mr Fogarty thought the likelihood of the plaintiff returning to any gainful employment was very low. He noted the injuries did somewhat interfere with the plaintiff’s domestic and leisure activities but she was able to cope with living by herself.
276 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in May 2013.
277 The plaintiff reported ongoing cervical spine pain with stiffness in her neck and pain in the shoulder girdle. She noted low back pain that radiated down her right lower limb to her toes. She reported some right thigh pain and intermittent left knee pain.
278 On examination of the cervical spine, there was tenderness along the dorsum and over both shoulder girdles. There was some restriction of movement and neurologically there was no abnormality. There was a full range of right shoulder movement.
279 There was no deformity of the lumbar spine and some tenderness of the lower lumbar region in the midline. There was restriction of movement. Straight leg raising to the right was 70 degrees and to the left 80 degrees. There was no neurological impairment. There was mild patellofemoral tenderness and no effusion of the knee and it was stable to examination.
280 Mr Dooley diagnosed a soft tissue injury to the cervical and lumbar spine, right thigh and a probable impact injury to the left knee.
281 Mr Dooley noted the soft tissue injuries to the spine would have involved some musculoligamentous damage and some aggravation of underlying degenerative disc disease. He thought the plaintiff would have sustained some subcutaneous and muscular bruising to the right chest wall and right shoulder girdle in the accident as a consequence of the seat belt.
282 Mr Dooley noted the plaintiff had had an understandable psychological reaction to her situation. In his view, quite reasonably she felt aggrieved by the fact the accident she did not cause, has left her with injuries and an inability to carry out her pre-injury work and her inability to engage in active impact leisure pursuits and sports.
283 Mr Dooley noted his overall impression was that the constancy and intensity of the plaintiff’s ongoing pain was greater than he would expect to see for her condition, as a result of her psychological reaction to the situation.
284 From an orthopaedic point of view, Mr Dooley believed the plaintiff would continue to note intermittent neck and back pain. In association with that, he thought she may note intermittent shoulder girdle pain and some intermittent lower limb pain. She would also continue to note some intermittent left knee pain.
285 Overall, Mr Dooley would not expect the plaintiff’s orthopaedic spinal condition to deteriorate in time over and above the natural evolution of any underlying degenerative change. He believed her condition could be self-managed and at present she did not require specific orthopaedic treatment.
286 Mr Dooley thought the plaintiff was not able to carry out heavy physical work or work that involved a lot of bending and lifting. She would have difficulty with a lot of activity at and above shoulder level. She would note difficulty with any regular kneeling and squatting on her left knee and from an orthopaedic point of view, he thought she had the physical capacity to carry out light physical work and clerical duties.
Claim documents
287 The plaintiff signed a Claim for Compensation on 15 December 2005. Injuries were listed as whiplash injury to the neck, bruise or bruising caused by seatbelt, rib pain, musculoskeletal hip pain, bruise or bruising of chest, bruise or bruising of the face, soft-tissue injury, and head pain.
288 The plaintiff answered “No” to the question about any previous low back condition or pain. In answer to question 35, she set out she had arthritis before the accident.
289 Dr Wight completed a medical certificate on 29 November 2007 for TAC. Injuries were noted to be bruising, soft-tissue injury right hip, bruising soft-tissue injury right side of neck, bruising across chest from seatbelt. It was noted the patient needed to have at least a week off work.
Employment details
290 Wage details from Adecco set out the plaintiff started in February 2008 and on 5 March 2008, it was noted she would be finishing that Friday because there was not enough work. There was a note about the downturn in production on 11 March 2008.
291 There was a note dated 17 October 2008 that the plaintiff was currently on a disability pension, not looking for work, and would call in available when she is better. It was noted that on 4 June 2008, the plaintiff was informed that she was not needed at Drypack any more and that she was available to look for other work.
292 In the financial year 2007-08, the plaintiff earned $9,176 from Adecco. Her resume was tendered.
293 A payslip for the period 5 December ending 18 December 2005 set out the plaintiff worked for 79 hours.
Overview
294 The application was pursued only in relation to the spine, involving the combined lumbar and cervical areas, with the application for impairment to the right shoulder being abandoned in submissions.
295 Counsel for the plaintiff relied however on Mr Dooley’s view that the reason the plaintiff noted shoulder girdle pain was that it was referred form her soft tissue cervical injury.[132]
[132]T175
296 It is conceded there was soft tissue injury to the cervical spine as reported to the Hospital on the said date and noted in the initial TAC Certificate and the plaintiff‘s Claim Form.
297 Save for Dr Fraser’s comments about overreaction on examination, there is no suggestion the plaintiff’s neck condition is other than organically based. Further, Dr Fraser is alone in the view that there has only been a temporary aggravation of the plaintiff’s back and neck condition in the accident and that any problems she now experiences in this regard are due to age related degeneration.
298 Counsel for the plaintiff submitted the cervical spine problems were modest,[133] noting the examining doctors have put it in a minor key.[134]
[133]T161
[134]T162
299 In summary, counsel for the defendant submitted that any neck problem was minor, relying on the history to Mr Khan on examination in December 2012 that her neck had considerably resolved.[135] Treatment has focussed on an unrelated back condition, not the neck.
[135]T142
300 Counsel for the plaintiff submitted the major problem is the lumbar spine.
301 The thrust of the defendant’s submission was that the plaintiff did not suffer an injury to her lower back in the accident. Reliance was placed on the lack of reference in the Box Hill Hospital notes and the initial medical certificate of 28 November 2005 to any back problem.
302 The William Angliss history was relied upon, with the plaintiff’s complaint of the onset of back pain in December not specifically stated to be following the accident.[136]
[136]T141
303 Further there was no mention of back pain associated with the accident until Dr Gason in February 2006 noted “aggravation of sciatica, car accident”.
304 The plaintiff did not complain to Mr Fogarty of any accident related back condition when examined by him for medico-legal purposes in 2010. He set out a list of six accident injuries, not including the low back. He concluded there was no clear evidence the lumbosacral spine was in fact injured in the accident.
305 It was submitted the plaintiff’s claim that she has suffered a low back injury in the accident should be rejected.[137]
[137]T123
306 However, as counsel for the defendant conceded, it may not be a big step to conclude the plaintiff injured her back in the accident considering Dr Gason’s note on 13 February 2006 that the plaintiff’s sciatica flared after the accident.
307 Counsel for the plaintiff explained the lack of reference to a back complaint at Box Hill Hospital on the fact the plaintiff had widespread injuries and the hospital was focused on what was dangerous.[138]
[138]T146
308 The report by the plaintiff to Angliss Hospital of sciatic pain in December 2005 was not inconsistent with injury in the accident, because the plaintiff had had pain in that regard since December.[139]
[139]T150
309 I do not accept the submission by the defendant’s counsel that an attendance on 3 January 2006, only five weeks after the accident, is “going far” into the notes to get a back complaint.
310 Significantly, Mr Dooley, the defendant’s medico-legal orthopaedic surgeon, does not support the proposition the back problems are not related to the accident.[140]
[140]T176
311 Whilst Mr Fogarty does not list the back as a complaint made relating to the accident, he does examine the lumbar spine, and notes the x‑rays of July 2007, and he does acknowledge some evidence of degenerative disc disease in the lumbosacral spine.
312 Dr Fraser accepted the back was injured in the accident although he considered any aggravation had now ceased.
313 Counsel for the plaintiff submitted the lack of reference to the back is so inconsistent with everything else in this case because that is the main focus of the plaintiff’s complaints to her general practitioner.[141]
[141]T165
314 Counsel for the defendant went further and submitted that where there was reference to any back complaint, it was in terms of the plaintiff’s work, particularly in July 2007 when there was mention of increased back pain with the use of a back vacuum cleaner cleaning the previous week and the referral of the plaintiff for a CT scan.
315 Reliance was placed on Dr Gason’s note on 3 January 2006 that when the plaintiff had returned to work, that the job was heavier than cleaning and she was stiff every night in the back.[142]
[142]T124
316 However, I do not accept there was a work connection to this complaint on 3 January because the plaintiff’s evidence is explicit. After the accident her job was light.[143]
[143]T149
317 Dr Fraser’s view that there was a temporary aggravation that ceased, eliminates the defendant’s argument that somehow or other the plaintiff may have injured herself at work.
318 Counsel for the plaintiff submitted there is a contrast between the lack of reference to back complaints before the accident and a number in the first six months after. For at least six months after the accident, it is recorded that the plaintiff had ongoing problems, being certified for Centrelink[144] and no problems before.
[144]T154
319 Taking all the evidence into account, I accept that in the accident, the plaintiff suffered an aggravation of pre-existing degenerative change in her lower back and also soft tissue injuries to her neck.
Pre regarding back
320 In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident is serious and permanent.
321 In Petkovski v Galletti,[145] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[145](1994) 1 VR 436
322 Counsel for the defendant submitted it was quite clear from investigations and medical reports that the plaintiff had pre-existing degenerative problems which antedated the car accident.[146]
[146]T121
323 Whilst there was some time spent on the this issue and the principles in Petkovski v Galletti in relation thereto, ultimately it was conceded by counsel for the defendant that it could not be said the plaintiff had a significant back problem prior to the accident, given her working capacity and level of sporting activity and activity generally.[147]
[147]T139
324 Counsel for the plaintiff pointed out that there were only about three occasions in the ten years prior to the accident where there was any mention of low back pain or sciatica, and the reference to a pinched nerve in one entry was confirmatory of the plaintiff’s evidence in that regard.
325 I accept that prior to the accident, the plaintiff led a full and active life in terms of work and social and sporting activities unaffected by any back condition or restrictions.
Credit
326 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[148]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[148](2010) 31 VR 1 at paragraph 12
327 In cross-examination, the plaintiff said she did not have a good memory. Her memory was bad in the short term and varied as to the long term.[149]
[149]T18
328 The plaintiff was cross-examined in relation to a wide range of issues, particularly as to her medical history. I found her at times to be verbose and rambling in her answers, constantly stressing that before the accident she was in good health. Her emphasis on this issue was justified given the defendant’s later concession that this was in fact the case and it was not argued there was any significant pre-existing back condition.
329 I accept that the plaintiff tried to do her best when subjected to detailed cross-examination[150] although at times it was hard to believe she would have no memory of significant issues such as a palsy in 2007 and a recent knee complaint after playing with her grandchildren in 2012.
[150]T143
330 There are conflicting views as to the plaintiff’s presentation on examination with Dr Fraser noting overreaction in direct contrast to Dr Horsley, who thought the plaintiff was very straightforward.[151]
[151]T168
331 There was however no surveillance film or other evidence challenging the plaintiff’s evidence as to her level of pain and restriction.
332 Overall, I accepted the plaintiff’s account of her accident related pain and restrictions.
Consequences
Pain
333 I accept the plaintiff continues to suffer constant but variable pain, more in her lumbar than cervical spine. Her lower back pain radiates through her right buttock down to her toes.
334 For no apparent reason the plaintiff experiences flare ups when her legs momentarily give way and cause her to stumble, as she described was the case when walking locally last year. The giving way sensation is on approximately a weekly basis.
335 In addition to her pain, the plaintiff has problems with her back if engaged in prolonged sitting or standing. Movements such as bending, twisting, pushing and pulling cause an increase in her spinal pain.
336 Neck and right shoulder pain continue to a lesser extent, with increased pain on increased use of her arms or having to hold her head in a fixed position for an extended period of time.
337 Mr Dooley believed from an orthopaedic point of view, the plaintiff will continue to suffer intermittent cervical and lumbar spine.
Treatment
338 The plaintiff has continued under the care of her general practitioners and there has been no specialist referral.
339 The plaintiff has undergone physiotherapy and osteopathic treatment during 2006, 2007 and 2009 but not persisted with that treatment as it was of little benefit and in fact worsened the plaintiff’s condition.
340 There has been no further treatment suggested as appropriate or necessary for the plaintiff.
341 The plaintiff continues to require four Panadol Osteo tablets a day for pain relief. She takes additional Panadol when her pain becomes more severe. She is unable to take stronger medication as she allergic to it, having had two instances of minor bleeding when she previously attempted taking it.
342 The plaintiff’s sleep is interrupted by her pain and she is lucky to get more than four or five good hours’ sleep a night. The following day, she often feels fatigued and tired.
343 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[152]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[152](supra) at paragraph 45
344 Prior to the accident, the plaintiff had a very significant sporting life for an older woman enjoying competitive sport and generally keeping fit.
345 The plaintiff played softball at a senior competitive level, playing club softball and participating in the Masters Games, being part of a silver medal-winning team in 2002. Her softball career was called to a halt as a consequence of the accident.[153] The loss of softball is a significant one for her.
[153]T177
346 Previously, the plaintiff was also quite active in the garden and enjoyed growing flowers. She is now restricted in the amount of gardening she can do because of her spinal injuries. The position is similar in terms of household tasks.
347 Further, the plaintiff is restricted in her ability to interact with her very young grandchildren.
Work
348 In my view, the main consequence of the plaintiff’s spinal injuries is their interference with her ability to work as an aged care worker.
349 The consensus of medical opinion is that the plaintiff is unable to resume her pre-injury cleaning work and aged care work for which she qualified in more recent times.
350 It is agreed that the plaintiff no longer has the capacity to do heavy, unrestricted work involving lifting and moving patients.
351 Dr Horsley thought the plaintiff could not work, and ceased work prematurely as a result of the accident.[154] Mr Dooley considered the plaintiff has a physical capacity for light physical work and clerical duties.
[154]T170
352 Mr Khan thought the plaintiff was unlikely to return to work as a personal carer.[155]
[155]T172
353 In my view, the plaintiff has a capacity for employment but she cannot sustain manual work and is unable to return to the work for which she has been trained in personal care.[156]
[156]T173
354 The plaintiff made a career change, completing the aged care course in 2005 and soon thereafter obtaining work at Iris Manor. I accept, having undertaken this training, the plaintiff indicated an intention to continue working in aged care for some time.
355 I accept had she not been injured, the plaintiff would have undertaken further on-the-job training in the fields described by her, such as medication.
356 Counsel for the defendant submitted however that the plaintiff had shown a significant work capacity since the accident and had in fact made a decision to retire from the workforce.
357 It was submitted that that level of work and the nature of the plaintiff’s duties in her jobs after the accident was inconsistent with an ongoing significant back problem from the accident.
358 I accept that the plaintiff had some difficulty with her pre accident, relatively light duties when she returned to Iris Manor after the accident. She was stiff every night in her lower back with a constant pain down her right leg and she also had problems with her neck and left knee but she just coped.[157]
[157]T37
359 The plaintiff left that job as she was going to be required to engage in the full range of aged duties for which she had been trained.
360 The next job at the Shire, not for two weeks as she deposed, but three months, was relatively light, emptying bins, and was much easier than the job at Appleby’s. The plaintiff left the Shire because it was proposed she undertake vacuuming work at the Arts Centre involving a Vac Pack.
361 Counsel for the defendant submitted the plaintiff had suffered injury working as a cleaner at the Shire. He submitted there was an intervening event at work during that time that led to the plaintiff attending Dr Meshreky on 13 July 2007, who organised investigations which clearly disclosed significant spinal canal stenosis not caused by the accident.[158]
[158]T140
362 It was submitted that it was distorted logic to argue that in the presence of pathology, there was a medical problem, therefore it must relate to the nearest or first or most relevant accident.[159]
[159]T129
363 Whilst the 13 July 2007 entry noted the plaintiff had been working as a cleaner for the last week with a Vac Pack and her back was stiff and sore, there is no evidence the plaintiff continued working for the Shire beyond June and no wages were paid to her by the Shire in the 2007-08 financial year.
364 I accept that the plaintiff in fact told the doctor Vac Pack work was proposed and she was unable to do it, not that she had problems doing that work in early July.
365 Although she made no mention of it in her affidavit or to any doctors, the plaintiff next obtained a personal care role at Gracevale. Whilst this was only a sleepover role, the plaintiff was unable to turn patients in bed at night and had to seek assistance from the resident manager in this regard.
366 For this reason, and also the fact she was over qualified for the role which was then taken over by other staff, the plaintiff did not continue in this position for more than a couple of months.
367 Counsel for the plaintiff submitted the easiest job in the world was the sleepover, but the plaintiff’s employer at Gracevale did not find it very satisfactory, being woken up at night by the plaintiff to hep turn residents in bed.[160]
[160]T184
368 Counsel for the plaintiff submitted that whenever the plaintiff is asked to do something extra on the job she cannot do it, and they are the realities of the workforce.[161]
[161]T170
369 The plaintiff’s next employment involved two brief stints as a process worker at Adecco in 2008, a period longer than the four weeks deposed to. She was not put off from Adecco because of any spinal problems, rather it was because of production problems.[162]
[162]T131
370 Although she stopped because of a downturn in production, the plaintiff did have some difficulty standing at the end of the conveyor belt and also engaging in heavy lifting requiring the assistance of male co workers.[163]
[163]T170
371 The plaintiff has not worked since that time and is currently in receipt of an invalid pension.
372 I do not accept the submission of the defendant’s counsel that the plaintiff is living the life of a retiree enjoying looking after her grandchildren and living in rural Victoria.
373 Prior to the accident, the plaintiff had a good work record of moderate achievement. She was able to support herself, pay her bills, pay her mortgage, and she got herself into a profession that required some study, which she wanted to do, and which would lead her to advancement. Since the accident, that had all changed.[164]
[164]T177
374 I am also permitted to take into account the expected emotional consequences of the plaintiff’s injury when considering its seriousness – per Winneke P in Richards v Wylie.[165] I accept that the plaintiff is frustrated by her ongoing pain and restrictions, as both Dr Strauss and Dr Roman confirmed.
[165](supra) at 87
375 Although the plaintiff has had a number of other health issues referred to by counsel for the defendant, I am satisfied that the consequences of her spinal injuries alone are “serious”.
376 As the plaintiff’s condition has persisted for some years without significant improvement, I am satisfied that her condition is long term.
377 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the accident.
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