Stout v McLeod

[2017] VCC 1131

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
(Not) Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-15-06052

Tracey Stout	Plaintiff
v
Ian Douglas McLeod	Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	27-28 July 2017
DATE OF JUDGMENT:	18 August 2017
CASE MAY BE CITED AS:	Stout v McLeod
MEDIUM NEUTRAL CITATION:	[2016] VCC 1131

REASONS FOR JUDGMENT
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Subject:  Common Law
Catchwords:   Serious Injury Application
Legislation Cited:  Accident Compensation Act 1985 (Vic)
Cases Cited:  Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment:  The plaintiff’s application is dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Smith with Mr A Hill	Slater & Gordon
For the Defendant	Mr D McWilliams	Wisewould Mahony

HER HONOUR:

1 Ms Stout seeks leave under s.134AB(16)(b) of the Accident Compensation Act 1985 (Vic) to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of an injury to the thoracic spine suffered on 23 November 2011, while working for the defendant as a field hand in a market garden that involved picking, washing and packing vegetables. When pushing a large sliding door of the cool room, which did not move smoothly, she felt a crack in her mid-spine region and fell to the ground with back pain. She is 31 years of age, left school after year 10 and worked in a chicken shop and then a pie shop before starting work for the defendant in 2009. After the incident, she took a week off work, then returned on modified duties in printing labels, but struggled with the work due to ongoing back pain even though she was taking painkiller medication. She ceased work and has not returned. She received weekly payments until 19 May 2014. In March this year, she received a payout from her superannuation fund on the basis of total and permanent disability. She is currently on Centrelink benefits.

2       She says that in spite of taking daily pain mediation (2 Tramadol and 2 Mobic and Panadol Osteo every 4 hours), as well as anti-depressant medication, she has constant pain in her mid-spine region which sometimes radiates into her legs. She finds it difficult to bend or twist, walk long distances, or stand or sit in one position for long periods. She cannot manage heavy housework and her mother helps with this and with childcare, while her brother mows the lawns for her. Her sleep is interrupted by her stiff and sore back. Prior to the back injury, she was able to manage her household, work full-time with her two young sons in day care, and play football and go on long walks with them. She now has three children, aged 11, 10 and 3. She can no longer run, and is limited in her ability to pick up and play with her young daughter. She does back exercises at home, and tries to walk 5,000 steps per day in total. Her social life is very limited. She has never had a desk or administrative job and has no computer skills.

3       The plaintiff says that by reason of her thoracic spine condition, she is permanently incapacitated for suitable employment. In the alternative, she says that if, on the evidence, she has any residual work capacity, it is sufficiently limited in terms of number of hours able to be worked each week to establish a permanent 40% loss of earning capacity.

4       The defendant says that there is evidence of substantial functional overlay in the plaintiff’s presentation and possibly conscious exaggeration in her presentation to doctors and in court; that she has not stripped away any psychological aspect of her presentation; that to the extent that there is any organic injury, it is at worst a mild disc protrusion at T11/12 with no impingement, or a soft tissue injury leading to mechanical back pain that has been completely overtaken by psychological factors; that if it were not for these psychological factors she could work and enjoy life; and that her presentation to doctors differs markedly from her presentation in video footage.  In relation to work capacity, the defendant relies on Dr Baynes’ evidence and says that the plaintiff has a capacity to return to work, after retraining, as a data entry clerk, office administrator, customer service officer, spare parts officer or administration assistant[1], starting with 9 hours per week and graduating to a maximum of 25 hours per week. The parties agree that if the plaintiff has a residual capacity to work 21 hours in suitable employment, she will fail in her claim in relation to loss of earning capacity.

[1] Defendant’s Court Book (DCB) 66

The plaintiff

5       I have already outlined at paragraph 2 above the plaintiff’s evidence as contained in her affidavits[2]. In cross-examination, at the hearing, the plaintiff said that she is a single mother and was taking antidepressants prior to the incident in order to cope with the challenges of managing her two young sons, who both suffer from attention deficit hyperactivity disorder. She said that the daily medication she takes does not always work well, but when she gets relief she then does what she can. She does not limp when her leg is not sore. She generally picks up her children from school. She does not stay in one position for long.

[2] Plaintiff’s Court Book (PCB) 19-23D

6       The plaintiff was shown two extracts of video surveillance (one dated 15 July 2016[3] and one dated 29 June 2017[4]). The first of these (lasting just over one minute) shows her walking to the car, standing next to it and getting in. The second (lasting six minutes) shows her carrying her young daughter, putting her in the car, not limping. She denied that she usually does not limp, and denied exaggerating her pain or putting on a limp when seeing doctors.  

[3] Exhibit 3

[4] Exhibit 2

7       The plaintiff agreed that her general practitioner, Dr Naing, did not sign the form she needed to obtain her superannuation payout, but said he told her that he would not do so because it had been too long since he had last seen her. She agreed he told her she was still a relatively young woman, but did not recall if he told her the reason he would not sign the form was because he felt there was a likelihood she would improve in the future. In relation to possible suitable employment options, she said that she would not be able to do a customer service role, nor a beverage attendant role that involved unpacking, bending or continuous standing, and agreed that she told Dr Baynes in relation to the other proposed roles, such as data entry clerk, that she had no computer skills. She denied not being motivated to work, and said she would like to work. In re-examination, in relation to the proposed data entry role, she said that she does not know how to use a computer, and could only sit and stand for about 30 minutes, but that after about two hours of alternating between those positions she would be in too much pain and could only last a day or two in such employment.

Plaintiff’s mother

8       Lee Davies, the plaintiff’s mother, provided an affidavit dated 25 July 2017[5] in which she confirmed that prior to the back injury, the plaintiff managed to work full-time and look after her boys and her household without assistance. She was outgoing and sociable. Since the plaintiff’s back injury, Ms Davies travels to help her out 3 days per week and stays overnight, on average, on two of those nights. She gets the children dressed, washes their clothes, vacuums, cleans the bathrooms, helps to cook their meals, and goes shopping with the plaintiff. The lawn mowing is done by the plaintiff’s brother or son.

[5] PCB 23

Radiology

9       X-rays of the thoracic and lumbar spine on 25 November 2011 were reported as normal.[6] CT scan of the thoracolumbar spine on 28 November 2011 was also reported as normal.[7] Thoracic bone scan conducted on 29 December 2011 was also reported as normal.[8]

[6] PCB 24

[7] PCB 25

[8] PCB 26

10      MRI of the spine performed on 29 December 2011 was reported, relevantly, with the following conclusion:

…Mild disc degeneration at T11/12 with a small central-left paracentral disc extrusion with slight cephalad extension. While disc material contacts the cord there is no significant associated indentation.[9]

[9] PCB 29

Medical reports

11      The plaintiff saw general practitioner, Dr Paran Paransothy, on 23 November 2011[10] in relation to her back pain. He referred her for investigations and for physiotherapy. Her pain did not improve and he prescribed narcotic pain killers and muscle relaxants. He felt that her condition was chronic and her prognosis “not good”.[11]

[10] See PCB 34

[11] PCB 34

12      The plaintiff saw general practitioner, Dr Win Naing, on 14 December 2011[12] in relation to her back injury. He reported on 13 December 2012 that she had been referred to Mr Craig Timms and Dr Armstrong[13], and to pain specialist Dr Robert Gassin, that she was treated with various medication and had commenced physiotherapy. At that time, he diagnosed chronic pain following thoracic spine injury and expressed the hope that with pain management and rehabilitation, her condition would improve. He was unsure whether she would ever return to her pre-injury duties.

[12] PCB 32

[13] Dr Armstrong provided a number of letters to Dr Naing recording the medications he was prescribing to the plaintiff in early 2012. See PCB 56-59

13      Mr Peter Kudelka provided a medico-legal report to the defendant’s insurer dated 21 March 2012.[14] He noted that the plaintiff shuffled in the consultation room, in a bent over position and was unable to straighten her back. He found her very tender in the mid-thoracic region and could “barely bear to have that touched”.[15] All her movements were carried out very slowly and were very limited. He diagnosed work-related “severe back pain and spasm in the thoracic region, which appears to be due to mechanical injury to this area of the dorsal spine”.[16] He concluded that she had no current work capacity and that she could not return to work in the foreseeable future because of the severity of her symptoms and her difficulty with mobility and any physically demanding tasks. He felt that no further attempts to return to modified or alternative duties should be made until Mr Timms had provided an opinion.

[14] DCB 1

[15] DCB 1

[16] DCB 2

14      On 28 June 2012, Mr Kudelka provided a supplementary report[17] in which he was asked to comment on some video surveillance footage dated 14 June 2012. He noted that the footage showed the plaintiff loading a young boy into a car, walking slowly, slightly bent over and with a mild limp. He then wrote:

…As to whether the movement and mobility described was greater than she displayed at the time of my examination, this answer is yes, and therefore there is an inconsistency with the degree of immobility seen on the DVD, compared to my examination. However driving her children around is probably different to market gardening, but certainly the patient is apparently fit for light or modified duties, and not totally disabled, as she presented to me, and apparently also to her General Practitioner.[18]

[17] DCB 11

[18] DCB 11

15      Mr Daryl Nye, neurosurgeon, reported to the defendant’s insurers on 12 November 2012[19] that the plaintiff sat without apparent discomfort while being interviewed for over 30 minutes. She moved slowly with a limp. She complained of back pain, and said that lifting the right leg precipitated the back pain, although no actual leg pain was reported. She was taking Oxycontin three times per day and Endone mainly at night. He noted a “marked reaction to gentle palpation in the lower thoracic region”, with restrictions of thoraco-lumbar movements and “a voluntary restriction was strongly suspected and particularly in association with observed ability to get onto the examination couch and assume from a sitting position recumbency”.[20] He concluded that an injury to the thoracic spine was sustained in the incident, in particular that the incident caused the left sided T11/T12 disc protrusion found on MRI scan. There was no myelopathy or radiculopathy. He noted that “functional features are evident, and I strongly suspect development of a chronic pain syndrome”.[21] He felt that long term use of narcotic analgesic medication was not appropriate and that the plaintiff should undertake multidisciplinary pain management including a psychological assessment. He felt that the plaintiff had no work capacity due to her condition (being the precipitation of symptoms due to a thoracic disc protrusion causing pain, and the suspected development of chronic pain syndrome), and could not predict when or if she would ever be able to resume working.

[19] DCB 12

[20] DCB 15

[21] DCB 16

16      Mr Craig Timms reported on 25 August 2013[22] that the plaintiff complained to him of localised severe thoracic midline pain, which had led her to develop a stooped posture to manage her symptoms. She reported obtaining no relief from her pain after hydrotherapy and physiotherapy. He reviewed her in late March 2012 and noted that she continued to suffer severe mid-thoracic spinal pain, but that there was no operative neurosurgical cause of her symptoms. He recommended a dedicated pain management course along with physiotherapy, hydrotherapy and massage. He found that she remained completely incapacitated due to her symptoms and concluded:

…I suspect that Ms Stout will be left with chronic thoracic spinal pain that will keep her limited and unless it responds successfully to a pain management course, her condition is likely to leave her completely incapacitated…[23]

[22] PCB 37

[23] PCB 39

17      Dr Shashjit Varma, psychiatrist, reported to the defendant’s insurer on 20 November 2013 that although the plaintiff suffered a back injury and chronic pain, she had no psychiatric injury.[24]

[24] DCB 25

18      Mr Clive Jones, orthopaedic surgeon, reported on 9 January 2014 that, on examination, the plaintiff:

…walked normally and sat comfortably during the interview. The pain was  localised to the lower thoracic area, and there was para spinal tenderness on each side of the lower thoracic spine. The soreness did appear to be somewhat disproportionate.

She did demonstrate a virtually full and tentative range of movement in the thoraco lumbar spine, and tests for a functional disorder such as spinal compression and simulated shoulder compression, produced complaints of pain in the area. Leg raising appeared to be artificially restricted as a virtually normal slump test could be demonstrated. The lower limb reflexes were brisk and the plantar responses down going. Hip function appeared normal. Even raising both arms above shoulder level was said to intensify the levels of pain in the thoracic area. [25]

[25] DCB 31

19      Mr Jones concluded that “the source of this lady’s ongoing and allegedly severe levels of back pain are not clear, and the emergence of a functional illness is suspected”.[26] He diagnosed non-specific back pain but was uncertain as to the significance of the abnormality at the T11 disc. As the plaintiff was pregnant at the time he saw her, and had ceased treatment for her back pain, he recommended that after the birth of her baby she be referred to a pain management provider. He felt that she currently had no obvious work capacity, would be unlikely to return to her pre-injury duties, and that she would need to seek alternative employment. He noted that she had a Certificate in Hospitality. He suggested a review in six months.

[26] DCB 32

20      On 22 February 2014, Mr Jones reported to the defendant’s insurer[27]  his conclusion that the plaintiff retained a work capacity which should emerge in the next 12 months.

[27] DCB 38

21      On 14 October 2015, Dr David McGrath, occupational physician, provided a report to the defendant’s solicitors.[28] He noted that when he saw the plaintiff the neurological examination of the lower limbs was normal, with “slight subjective numbness” along the lateral aspect of the left leg.[29] He considered that she had scoliosis of the spine, with an angulation at the T7 level; that the lumbar spine joint lacked flexion when bending forward, with compensation in the thoracic spine. He noted that “when lying prone she was acutely sensitive with skin roll tenderness over the mid-to-lower thoracic spine region. This is a sensitive sign of underlying spinal pain and dysfunction”.[30] He noted that the MRI changes at T11/12 do “not correlate with her pain pattern”.[31]

[28] DCB 54

[29] DCB 57

[30] DCB 57

[31] DCB 57

22      Dr McGrath noted that the plaintiff had a restricted capacity for bending forward at the waist, crouching, kneeling, standing, reaching overhead, turning or twisting her torso, pushing or pulling. He felt that her spinal problem restricted her capacity to perform manual work but considered it “likely that she would become fit enough to work normal hours in a sedentary occupation. He suggested that, given Ms Stout’s time out of the workforce, this would need to be graduated, starting part-time through to full-time over a six-month period”.[32] He noted her lack of education and training for sedentary tasks, and felt that if her standing tolerance improved she might be able to return to the fast food industry. He felt that some retraining was needed. He concluded:

…Currently Ms Stout is not focused on work and is fully preoccupied with her family. From a spinal physician’s perspective I certainly recommend a change in treatment. She has no knowledge of painless spinal movements, which were established during the consultation and examination. These would need to be practised on a regular basis in order for the spine to settle (pain free) and lead a reasonable future. Her current exercise pattern is aggravating and inappropriate. In my view she has not reached maximum medical improvement because of the poorly prescribed exercises and the under-recognition of her clinical and radiological scoliosis.[33]

[32] DCB 57

[33] DCB 58

23      On 2 March 2016, Dr McGrath reported[34] that he had considered the three occupations identified in the Work Able Consulting Suitable Employment Report and felt that the plaintiff was physically capable of working in two of these positions; those of data entry clerk/office administrator and customer service officer. He felt that her standing tolerance would have to improve before she could attempt work in the position of food and beverage attendant.

[34] DCB 61

24      On 29 September 2015, Professor Peter Teddy, neurosurgeon, reported to the defendant’s solicitor[35] that the plaintiff complained mainly of mid-thoracic back pain, shooting pains down both lower limbs; intermittent numbness in the lower limbs, mid-back and lower back; and an inability to lift arms above her head. She reported feeling that her back pain was somewhat better during her pregnancy. She reported exercising for 2 hours in the morning, taking her children to school, but otherwise doing little other than sitting, standing and walking about intermittently. She said she could not sit for long, and could not lie on her back. She described her average back pain as being around 8 out of 10 on a 0-10 scale of severity, reducing to only 5 or 6 with medication. On examination, Professor Teddy noted:

Ms Stout came across as a very pleasant woman who gave a clear history. She walked with a profound limp and constantly moved about, sitting, standing and walking alternately.

She exhibited a very profound, elaborate, and apparently exaggerated tenderness to her mid-thoracic spine made by even the faintest touch produced an overt expression of pain. When distracted, such symptoms were not apparent.

She would bend only to touch her upper thighs, while extension, tilt and lateral rotation of the lumbar spine and thoracic spine were accompanied by manifestations of pain behaviour. Her pain was indicated as being broadly across both side of the posterior spine from around T6 to about T12.

Straight leg raising was 75 degrees bilaterally, but she could sit upright with her hips fully flexed and knees fully extended. Power, tone, and reflexes in both upper and lower limbs were normal with downgoing plantar responses…[36]

[35] DCB 40

[36] DCB 42

25      Professor Teddy noted that the MRI finding at T11/12 was of “a very small disc/osteophytic bar extending posteriorly and lying paracentral to the left. There was no cord or nerve root compromise at any level”.[37] Professor Teddy concluded that she appeared to have back pain of a musculoskeletal nature, but without any neurological deficit. He felt that the thoracic disc degeneration seen on MRI was “almost certainly of longstanding origin”.[38] He felt that “she exhibited clear and marked pain-related behaviour”[39] which had “an undoubted and significant functional component”.[40] Given that four years had passed since the onset of her symptoms, he saw little prospect of her returning to any form of employment. He concluded:

…In essence, if it were not for the apparent psychological component to this injury, Ms Stout would be in a far better position to carry out daily activities, enjoy life with her family, and even to take up some form of sedentary work. She would be best managed through a multidisciplinary pain management team that wold include both psychological and physical therapies…[41]

[37] DCB 43

[38] DCB 43

[39] DCB 43

[40] DCB 44

[41] DCB 44-45

26      Dr David Middleton, occupational health and rehabilitation consultant, provided a medico-legal report dated 30 July 2016 to the plaintiff’s solicitors.[42] He noted that the plaintiff completed part of a 12 month vigorous exercise physiotherapy program but was unable to complete it once her weekly payments had ceased. She had not been offered any vocational rehabilitation and was sent to the Job Network for Disabled. The plaintiff told him she needed to change postures all the time and some days the thoracic spine pain was such that she could get out of bed. She told him that she could sit and stand for 10 minutes and walk 500 metres. She could drive up to 30 minutes. On examination, he found her “to be a straightforward, no-nonsense type of person, who exhibited no functional behaviour and moved under examination to the best of her ability”.[43]

[42] PCB 40

[43] PCB 43

27      Dr Middleton was critical[44] of various aspects of the Workable Suitable Employment Report dated 20 November 2015 written by Ms Stephanie Hunt.[45] He noted in particular that the plaintiff was not interviewed by the author of the report; that all the conclusions were premised on the medical assessment by Dr McGrath, who opined that the plaintiff would become fit enough, at some unspecified time in the future, for normal hours in a sedentary role; that worksite assessments were not performed; and that there was no specific assessment of the physical requirements of each proposed position against the plaintiff’s medical restrictions and transferrable skills.

[44] PCB 50

[45] See DCB 68

28      Dr Middleton opined that the plaintiff was permanently incapacitated for any type of employment with a significant physical/manual component. He felt that she was physically capable of working a total of 9 hours per week to begin with across 3 non-consecutive days, in sedentary work with the following restrictions: duties to be performed in a self-paced manner with provision of work breaks as required; no awkward, repetitive or force activities; no lifting more than 3 kgs intermittently; and all activities to occur around waist height. He concluded:

…In theory, Ms Stout does have some capacity to perform sedentary work; however, taking into account her incapacity, age, education, place of residence, skills and work experience, her capacity to procure and maintain such employment is negligible.[46]

[46] PCB 54

29      On 10 August 2016, David Brownbill, neurosurgeon, reported to the plaintiff’s solicitors[47] that the plaintiff complained to him of constant pain in the mid thoracic region which fluctuates and is worse early in the morning. On examination he noted that “she appeared cooperative and straightforward in her presentation with some intermittent gasping and breath holding during examination”.[48] Examination of the cervical spine and upper and lower limbs was normal.

[47] DCB 79

[48] DCB 81

30      Mr Brownbill concluded that he was “unable to provide a precise physical or organic injury sustained by this lady in the described work place accident. I do however feel she has sustained an organic mechanical injury to structures about the thoracic spine”.[49] However, he indicated that he deferred to the assessments by orthopaedic surgeons in this regard. He noted that “there may have been some emotional reaction component to that initial pain (the assessment of which would lie outside the neurosurgical province) which may be accentuating or perpetuating her own perception of symptoms”.[50] He felt that further assessments of ongoing management would lie within the province of a pain management clinic. 

[49] DCB 84

[50] DCB 84

31      On 8 June 2017, Dr Michael Baynes, occupational physician, reported to the defendant’s solicitors[51] that the plaintiff told him she has basic computer skills only and does not use Facebook, but that her reading and writing is good. On examination, he noted that the “slump test was negative”[52]; that neurological examination was normal in both the upper and lower limbs; and that “palpation revealed superficial tenderness over the spinous processes of T6 to T11 and over the left more so than the right facet joints. Axial compression was negative”.[53]

[51] DCB 62

[52] DCB 64

[53] DCB 64

32      Dr Baynes concluded:

Ms Stout is suffering from chronic pain syndrome with chronic lower thoracic back pain originally related to a twisting injury. The cause of the ongoing pain is unclear with radiology revealing a mild T11/T12 disc prolapse which likely pre-existed the injury…[54]

[54] DCB 65

33      Dr Baynes concluded that Ms Stout has a capacity for alternative duties with physical restrictions of no lifting more than 2 kg, no lifting below knee height or above shoulder height, and no working with constrained forward bent postures. She needs to be able to frequently rotate her postures between sitting, standing and walking. He believed that she is fit to return to work on a limited hours basis working three hours, three days per week with a progressive increase to up to around 25 hours per week. He considered that with retraining, she would be physically capable of working as a data entry clerk, office administrator, customer service operator and spare parts officer, as well as administrator assistance, as in these roles she could frequently rotate her postures. He noted the plaintiff’s complaint that she did not have the computer skills required for these roles and would have difficulty putting in the hours.

34      On 27 April 2017 Professor Teddy reported[55] that on review Ms Stout presented with the same complaints. She told him that with medication her thoracic spine pain rated around 5 or 6 out of 10, but when that medication wore off, the pain may rise to 8, 9 or even 10 out 10. She had made several job applications but had received no response. She told him she could walk 500 metres before her back pain required her to rest. Professor Teddy went through with her the list of potential jobs proposed by Dr McGrath. She told him that none were suitable either because they required too much sitting, or computer skills that she does not have, or were too fast paced. On examination, there were no neurological abnormalities. He noted:

…Lightest percussion of the mid-thoracic spine produced a startle response, very much as before. This was not subsequently apparent on repetition when sitting with attention distracted. Springing the ribs and downward pressure on the shoulders when standing produced similar responses. She would bend only to touch mid-thighs while rotation, tilt and extension of the lumbar spine were described as painful, although they were full. Straight leg raising was 75 degrees on the right and a little less on the left, but again, she was able to sit upright with her hips fully flexed and knees extended. Climbing on and off the examination couch did not appear difficult.[56]

[55] DCB 46

[56] DCB 48-49

35      Professor Teddy again opined that the disc degeneration at T11/T12 was most probably of longstanding origin and predated her injury. He considered that the plaintiff had “had a back strain that may represent exacerbation of a pre-existing degenerative change”.[57] He concluded:

…Tracey appears to have back strain (musculoskeletal), as described. She has no clear neurological abnormality and does exhibit a level of pain-related behaviour that is perhaps less overt than when last seen. However, her impairment remains disproportionate to demonstrable organic abnormality and radiological imaging (subject to updated MRI findings). Tracey’s domestic activities are described. Her limitations are self-imposed and relate to her subjective symptoms.[58]

[57] DCB 49

[58] DCB 50

36      Professor Teddy concluded that the plaintiff should not return to her pre-injury duties, and that if no concentrated effort were made to improve her current condition, he could see no prospects for improvement.

37      On 13 July 2017, Professor Teddy confirmed that the examination findings were manifestations of pain-related behaviours and “are not representative of organic pathology”. [59] In relation to the jobs proposed by Dr McGrath, Professor Teddy disclaimed expertise but suggested that to the extent that these occupations were sedentary, on the basis of the lack of neurological abnormality, he felt that she was able to do the jobs at least on a part-time basis.

[59] DCB 53

Vocational assessment

38      A Suitable Employment Report dated 20 November 2015[60] noted that Ms Stout was not interviewed and that the author relied solely on the documents provided by the defendant’s solicitors, namely the report of Dr McGrath and the first report of Professor Teddy. The report identified a number of possible positions. The first of these was Food and Beverage Attendant. The author noted that the plaintiff’s standing tolerance would need to improve for her to be able to stand for the duration of her shift. The remaining jobs were those of: Data Entry Clerk/Office Administrator; Customer Service Officer; Customer Service/ Spare Parts; Administration Assistant. The report said nothing about the suitability of these positions, although it noted that Dr McGrath endorsed the first two of the remaining jobs.

[60] DCB 68

FINDINGS AND REASONS

39      There is substantial divergence of medical opinion in this case on the basic issue, that is, whether the consequences attributed to the relevant impairment have a substantial organic basis.[61]

[61] See, eg, Meadows v Lichmore Pty Ltd [2013] VSCA 201

40      While there seems to be general acceptance that the plaintiff suffered mid-thoracic pain during and after the incident on 23 November 2011, there is no consensus that the incident caused the small disc prolapse at T11/T12, nor even consensus that the pain currently complained of is referable to that prolapse.

41      The neurosurgeons (Mr Timms, Professor Teddy, Mr Nye and Mr Brownbill) confirmed no neurological abnormality and could not identify any neurosurgical cause of Ms Stout’s current symptoms. In addition, Professor Teddy, Mr Nye and Mr Brownbill commented on the non-organic examination findings and pain behaviour demonstrated by the plaintiff. Mr Nye opined that the incident caused the prolapse at T11/12, but Professor Teddy and Mr Brownbill (and Dr Baynes) opined that the disc prolapse probably pre-dated the incident. Having ruled out a neurosurgical cause of her symptoms, Mr Brownbill deferred to orthopaedic opinion concerning whether the plaintiff’s ongoing pain was of a mechanical nature, while Professor Teddy was confident that the plaintiff’s presentation was a manifestation of pain-related behaviours, not representative of organic pathology, and that her limitations were self-imposed and relate to her subjective symptoms. Dr Middleton, who is not a physician, reported no functional signs in his examination but appeared to assume that her presentation to him resulted from the workplace incident. He did not provide any reasons for concluding that her age, education, skills or work experience made her unsuitable for retraining, nor did he place any upper limit on the part-time hours that she might eventually work after a graduated return to work. For these reasons, I found his report of limited assistance.

42      The only reporting orthopaedic surgeons, Mr Kudelka and Mr Jones, saw the plaintiff in 2012 and 2014 respectively. Mr Kudelka at first reported work-related back pain due to mechanical injury, but by June 2012 when he viewed DVD surveillance footage, felt that she was fit for light or modified duties. In early 2014, Mr Jones was uncertain of the source of her ongoing back pain and was uncertain of the significance of the disc prolapse at T11/12, and suspected the emergence of a functional illness. Finally, Dr McGrath, a pain specialist, diagnosed scoliosis and rejected the notion that the T11/T12 disc prolapse was responsible for Ms Stout’s pain because, in his opinion, the radiological finding did not correlate with the plaintiff’s pain pattern. His diagnosis of scoliosis would be fatal to the plaintiff’s application, as it would constitute a non-compensable organic explanation of the plaintiff’s current presentation and symptoms.

43      Only Dr Baynes, in 2017, appears to have diagnosed an organically based chronic pain syndrome. On examination, he elicited none of the functional signs commented upon earlier by Professor Teddy and Mr Jones, and made no mention of any pain-behaviour. He reported a diagnosis of a “chronic pain syndrome with chronic lower thoracic back pain original related to a twisting injury”.[62] However, in the same paragraph, he stated that the cause of the ongoing pain “is unclear” as he considered that the “mild T11/T12 disc prolapse,” likely “pre-existed the injury”.[63] Taken as a whole, therefore, I consider that his opinion begs the question as to whether the plaintiff’s current presentation has a substantial organic basis and that his report is of limited assistance. I note, in any event, that he concluded that the plaintiff was physically fit to return to work on a graduated return to work basis with a progressive increase in hours up to around 25 hours per week. Even if his opinion is accepted, the plaintiff will fail to establish a permanent loss of earning capacity which meets the threshold.

[62] DCB 65

[63] DCB 65

44      On the other hand, the only psychiatric report provided, that of Dr Varma, did not set out the documents provided with the request for opinion, made no mention of awareness of alleged pain behaviours, assumed that the injury was to the back and that the plaintiff suffers chronic pain, and concluded that the plaintiff was not suffering from any psychiatric condition.

45      To summarise, in this case there are a number of competing and mutually exclusive diagnoses of the plaintiff’s current condition, and whether it is work-related, and whether it is substantially organically based. The plaintiff bears the onus of establishing, on the balance of probabilities, that she has suffered an organic injury to the thoracic spine which has resulted in an impairment to the function of the thoracic spine which is substantially organically based, and that the consequences of that impairment, in terms of pain and suffering and loss of earning capacity, meet the narrative test.  I am unable on the material before me to reach the necessary satisfaction in relation to the first limb just described. As noted above, even if I accepted the opinion of Dr Baynes that her current presentation is substantially organically based, I would not, on the current state of the evidence, for the reasons already outlined, be in a position to find that the plaintiff is permanently incapable of performing any suitable employment or any suitable employment for more no more than 21 hours per week. It is unnecessary and inappropriate in the circumstances for me to comment on the credit issues raised against the plaintiff.

CONCLUSION

46      It follows that the plaintiff’s application is dismissed. 

47      I reserve the question of costs.