Stubbs v Austin Health
[2019] VCC 2152
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00719
| ALEISHA STUBBS | Plaintiff |
| v | |
| AUSTIN HEALTH | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 September 2019 | |
DATE OF JUDGMENT: | 19 December 2019 | |
CASE MAY BE CITED AS: | Stubbs v Austin Health | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2152 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury; Medical Panel Opinion; mental or behavioural
disturbance or disorder; extent of consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 sections 313 and 325
Cases Cited: Mobillio v Balliotis [1998] 3 VR 833; TAC v Katanas [2017] HCA
32
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| Mr D. Purcell QC with Mr G. Taylor | Shine Lawyers | |
| For the Defendant | Ms F. Spencer | IDP Lawyers |
HIS HONOUR:
Introduction
1 Aleisha Stubbs seeks leave to claim damages against her former employer, Austin Health, on the basis that she has suffered a serious injury following a back injury which occurred in the course of her employment on or about 8 January 2016.
2 Notwithstanding that her initial injury was to the back, the plaintiff relies upon paragraph (c) of the definition of serious injury in section 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) as the basis upon which leave is sought. Her application is limited to leave in respect of pain and suffering damages only. The parties acknowledge that Ms Stubbs’ application is limited by reason of a Medical Panel opinion which is binding on the court.
3 The Medical Panel opinion dated 26 October 2018 described Ms Stubbs’ ongoing condition as :
“… chronic pain disorder and an adjustment disorder with anxious and depressed mood.”[1]
[1]Exhibit 1, p 68
4 It also found the plaintiff to be no longer suffering from any physical medical condition of the back. Further, the Medical Panel formed an opinion that Ms Stubbs had a capacity for full-time suitable employment as a receptionist.[2]
[2]Exhibit 1, p 72
5 As result of the Medical Panel opinion, the area of dispute between the parties is limited essentially to an assessment of whether the consequences of the plaintiff’s injury satisfy the statutory definition of “permanent severe mental or permanent severe behavioural disturbance or disorder.”[3]
[3]WIRC Act s325(1)
6 Mr Purcell QC, who appeared with Mr Taylor for the plaintiff, described Ms Stubbs’ application as relying initially on an injury to the spine and a subsequent psychological condition. He accepted that in order for leave to be granted the plaintiff would need to satisfy the definition of a serious injury as defined in paragraph (c) of the definition rather than in paragraph (a).
7 Ms Spencer, who appeared on behalf of the defendant, identified two main issues. First, she challenged the level of consequences which had been deposed to by Ms Stubbs on the basis that they did not meet the relevant threshold. Secondly, she identified what she described as a “very significant prior history of psychiatric treatment, and pain as well.”[4]
[4]Transcript (“T”) 7, Line (“L”) 2-3
8 Ms Stubbs was the only witness required for cross-examination. The parties otherwise tendered into evidence material from their respective court books.
The lay evidence
9 Ms Stubbs initially swore an affidavit in support of her application on 3 October 2017.[5] A supplementary affidavit was sworn on 16 September 2019.[6]
[5]Exhibit A, pp 5-22
[6]Exhibit A, pp 23-34
10 The first affidavit sets out Ms Stubbs’ relevant background. I note the following:
· She was born on 2 March 1985.
· She completed VCAL at Years 11 and 12.
· She worked casually after leaving school and then worked full-time for Kmart for five years.
· In 2007 she returned to study and obtained a Certificate III in Aged Care and Community Services.
· Following this course she continued to work part-time at Target and varying part-time hours at an aged care facility.
· She had what could be described as a number of minor injuries and health conditions, including a back injury requiring a week or two off work in May 2008 and counselling around 2011 for relationship issues.
· In May 2014 Ms Stubbs had a back injury requiring some treatment and investigation. In November of that year she had an MRI scan and injection into her back, a few weeks off work and returned on a graduated return to work plan.
· She had pain management in 2015 and:
“By mid-2015 I was back on full duties and hours and was able to get back to doing a lot of things I enjoyed before the injury.”[7]
[7]Exhibit A, p 8 [17]
· Ms Stubbs commenced working with Austin Health on a full-time basis as a health assistance nurse on 3 February 2014.
· She worked mainly in the geriatric ward and described various difficulties.
· Around 8 January 2016 she was struck on the right hip by part of a patient hoist which caused her to twist her back.
· She described in some detail the various issues which she stated were involved in the occurrence of the incident.
· She completed working at the end of the afternoon shift, and the following day stated:
“I was unable to get out of bed because of pain in my lower back. I took some Nurofen.”[8]
[8]Exhibit A, p 11 [33]
· Some three days later Ms Stubbs saw her general practitioner who prescribed medication and referred her for physiotherapy.
· In February 2016 she had an MRI of the back and saw a rehabilitation specialist, but did not have any formal rehabilitation.
· In February 2016 she went on a pre-booked holiday to Thailand for 11 days and described problems with her back, both whilst on holiday and during the flights.
· She was then referred to a pain specialist in February or March 2016 and saw him up to 2017, but stopped seeing him:
“… because I felt he was not taking my injury seriously and did not have a proper treatment plan in place for managing my symptoms.”[9]
[9]Exhibit A, p 13 [41]
· She described having various treatment modalities provided by the pain specialist in 2016 but without any lasting relief.
· She described various other conditions including bowel problems that she believed were related to the medication she was taking. This included a referral to a specialist gastroenterologist who performed a gastroscopy and colonoscopy.[10]
[10]Exhibit A, p 11 [55]
· She described further modalities of conservative treatment including a recent referral to a pain management program which she was unable to afford.
· She described a return to work on limited hours in June 2016 and an eventual cessation of work around 20 March 2017.[11]
[11]Exhibit A, pp 17 [65] - 18 [68]
· Ms Stubbs described her pain and suffering consequences in her first affidavit. She was then seeing her general practitioner on a fortnightly or three weekly basis and having physiotherapy twice per week on average.[12]
[12]Exhibit A, p 18 [69] - [70]
· She was having counselling every fortnight or three weeks.
· She was taking a number of different medications, including Palexia and Diazepam:
“… although it makes me sleepy and it is difficult to function.”[13]
[13]Exhibit A, p 19 [74]
· She described variable symptoms affecting her ability to walk for between 15 and 30 minutes, her sleeping, restriction in driving, sporting activities and domestic activities. The affidavit described these as relating to pain she was experiencing:
“ … in my lower back into the front of my left thigh and into the left leg and foot. I have pain in my right leg as well. I have throbbing pain in both legs, although it is worst in the left leg.”[14]
[14]Exhibit A, p 19 [78]
11 Ms Stubbs’ first affidavit made reference to economic loss consequences which are not relevant for this application.
12 Ms Stubbs described further treatment in her second affidavit. She had continued to see a general practitioner on a two to three weekly basis. She continued to see a psychologist every two to three weeks, but had changed psychologists following a referral made in about mid-2018 during her pregnancy.[15]
[15]Exhibit A, p 24 [7] – [8]
13 Ms Stubbs described symptoms of anxiety and depression increasing after she became pregnant in March 2018. She continued this treatment after the birth of her child.
14 In October 2017 she was married. She had delayed her honeymoon until January 2018 when:
“We took a 3 week trip to the USA and Canada. This trip required me to take additional Palexia of 50 milligrams per day and 100 milligrams at night. On the plane, I was also required to take 8 mg of Diazepam.”[16]
[16]Exhibit A, p 25 [12]
15 Ms Stubbs described having difficulties in New York which required medical treatment due to constipation. She also described being referred to various pain specialists on her return to Australia, but treatment was limited due to her pregnancy.
16 Ms Stubbs deposed to being referred to a psychiatrist in May 2018. She had seen this person on two occasions.[17]
[17]Exhibit A, p 27 [18]
17 The affidavit made reference to treatment with a general practitioner and psychologist in addition to various other conservative treatments in the 10 months prior to the affidavit being sworn.
18 Ms Stubbs made reference to her attendance at the Medical Panel in October 2018 and went on to describe in some detail the consequences of her injury.
· Her pain ranged from 6/10 to 19/10:
“I have a really bad day up to two times per week. My bad days depend upon what activities I have undertaken.”[18]
[18]Exhibit A, p 29 [21]
· Increased activity caused increasing pain. She had difficulty with her young son and had to change her car to reduce bending.
· She is more reliant upon her husband and mother-in-law.
· She has difficulties in sleeping.
· She described difficulty with household activities, including hanging washing, vacuuming, mopping, making beds and cooking.
· She had not returned to gardening and had limited ability to lift and carry shopping:
“I try to get my husband to do most of the heavy lifting and notice that if I do too much activity I suffer with increased pain.”[19]
[19]Exhibit A, p 30 [32]
· She had not returned to social tennis, skiing, hiking or attending gym regularly. She had not returned to Zumba or other aerobic activities. She avoided driving long distances.
· She had become disheartened and there were stressors on her relationship which had affected her sex life and her libido.
· She was unable to do spontaneous activities such as bowling or going to the movies. These activities needed to be planned to allow for rest or medication.
· She had become less decisive and more emotional, suffered anxiety attacks, felt overwhelmed, was less happy and missed the interaction with patients and work mates.
· She was less social and did not see her parents as often as she would like because of difficulties travelling. She had become less able to cope with the stresses and strains of life … she had become confused and shut down emotionally:
“I just feel like everything is a burden and that I have failed in my employment pursuits.”[20]
[20]Exhibit A, p 32 [46]
· She described being forgetful, having less concentration and less confidence, lowered self-esteem and felt that her young son provided motivation to her:
“… although the burden of the injuries, the pain and the restrictions and limitation, still affect me on a day-to-day basis.”[21]
[21]Exhibit A, p 33 [50]
19 Finally, Ms Stubbs made reference to difficulties with dyslexia.
20 Ms Stubbs was then cross-examined. There was extensive cross‑examination about her medical condition prior to the January 2016 back injury. In particular the evidence disclosed the following:
· In about 2008 she suffered another back injury at work involving a lifting machine. This required some treatment, time off work and referral to an orthopaedic surgeon.[22]
[22]T 9, L 3-10
· She had an incident in the gym in about October 2011 when she had hurt her neck. She thought she returned to the general practitioner after that incident and had investigations she thought involved CT scans and MRIs.[23]
[23]T 9, L 11-17
· Following this incident she had medication and physiotherapy for about six months.[24]
[24]T 9, L 24-30 & T 10, L 8-29
· In 2011 she was having some difficulties in a relationship and spoke to her general practitioner about stress and anxiety issues. She was trialled on antidepressant medication and referred to a psychologist in her workplace, and later to another psychologist by her general practitioner. This was in about August 2012.[25]
[25]T 11, L 3-22 & Exhibit 1, pp 1-2
· She agreed that her then general practitioner, Dr Samuel, had referred her to the psychologist in August 2012 when she was suffering from significant anxiety.[26]
[26]T 11, L 27 to T 12, L 5
· She was again referred to the same psychologist in November 2012.[27]
[27]T 12, L 7-13 & Exhibit 1, p 47
· She had suffered an injury to her back in January 2014 during a Zumba class. She had some physiotherapy and her general practitioner referred her back to the psychologist in May 2014.[28]
[28]T 12, L 14-27 & Exhibit 1, p 48
· Ms Stubbs agreed that her general practitioner had referred her to a Dr Palit, a pain management specialist, who she started seeing in about August 2014. This was in relation to low back pain, which was said to be continuous and radiating into both legs.[29]
[29]T 13, L 11-31 & Exhibit 1, pp 9-11
· During 2014 when Ms Stubbs was being treated by Dr Palit she agreed that she had taken a little bit of time off work and had some time doing lesser hours. This was to try and help with the problem with her back at that time.[30]
[30]T 15, L 16-30
· Ms Stubbs agreed that in 2014 she had experienced problems with her psychological health and was referred by her general practitioner to the CAT team because of acute anxiety.[31]
[31]T 16, L 4-12 & Exhibit 1, p 13
· Ms Stubbs agreed with a discharge summary from the CAT team at Eastern Health in September 2014 recording:
“… increase in anxiety, lowered mood and suicidal ideation in the context of psycho social stressors (back injury with poor pain management, reduced work/finances secondary to back injury and conflict with mother).”
· She agreed she had been treated by the CAT team from about 11 to 25 September 2014.[32]
· Ms Stubbs did not discuss whether some of her back pain was psychological with her general practitioner at that stage.[33]
[32]T 17, L 4-27 & Exhibit 1, pp 16-18
[33]T 18, L 6-10 & Exhibit 1, p 19
21 There was some cross-examination concerning Ms Stubbs’ fitness for employment in late 2014. She agreed she could have received Centrelink benefits between 1 October 2014 and 1 January 2015 for anxiety related to an inability to work and ongoing back pain.[34]
[34]T 21, L 15-25 & Exhibit 1, p 21
22 Ms Stubbs agreed that she wished to be admitted to a rehabilitation facility in November 2014. She did not believe she had spoken about a psychiatric facility.[35]
[35]T 23, L 26 to T 24, L 5 & Exhibit 1, p 23
23 Ms Stubbs was cross-examined about a discharge summary from Epworth Health Care. She had attended between 15 October 2014 and 4 December 2014. She thought she had done such a program, but was vague as to her recollection of what it involved.[36]
[36]T 24, L 4 to T 25, L 29 & Exhibit 1, pp 24-27
24 Ms Stubbs did not recall seeing a psychiatrist and did not know a Dr Arun Subramaniam.[37]
[37]T 26, L 14-20 & Exhibit 1, pp 28-29
25 She agreed that she may have been referred back to see Ms Heather Thompson, psychologist, in January 2015.[38]
[38]T 27, L 1-4 & Exhibit 1, p 31
26 Ms Stubbs agreed that in April 2015 she was working 30 hours per week.[39]
[39]T 28, L 17-28 & Exhibit 1, p 35
27 Ms Stubbs could not recall working 34 hours per week with some restrictions in September 2015.[40]
[40]T 29, L 14 to T 30, L 13 & Exhibit 1, p 36
28 She was asked about skiing in 2015 and stated that she had gone skiing for a day trip to Falls Creek.[41]
[41]T 30, L 15 to T 31, L 14
29 When further cross-examined about her working hours in September 2015, Ms Stubbs thought she had started working full-time in the middle of that year.[42]
[42]T 31, L 16-24
30 She agreed that she did suffer occasional back pain in 2015 and prior to the January 2016 incident, “but nothing significant.”[43]
[43]T 32, L 22-25
31 When cross-examined about any medication she was taking prior to the January 2016 incident, she stated:
“All I can remember, when it was acute in the 2014, I was taking medication. I can remember that. In 2015 I can’t remember anything because I was doing my full duties and I was skiing and I was going back to the gym. So to me I assume I wasn’t taking anything because I was doing everything, I can’t remember.”[44]
[44]T 34, L 1-7
32 Ms Stubbs was cross-examined in some detail about inaccuracies in her first affidavit with reference to previous injuries and treatment. In particularly I noted:
· She deposed to having counselling with Heather Thompson for a limited period in around 2011 as she was in an abusive relationship. She agreed there was no reference in the affidavit to treatment with Ms Thompson continuing into 2014, nor any reference to the involvement of a CAT team.[45]
· Her reference to treatment at Epworth Camberwell in her affidavit made reference to an occupational therapist and physiotherapist. Ms Stubbs agreed that her treatment also involved a psychologist.[46]
· Ms Stubbs rejected the proposition that her affidavits significantly understated the extent of her prior mental health problems, and maintained that prior to the Austin she had no significant issues.[47]
[45]T 36 to T 37, L 14
[46]T 37, L 21-28
[47]T 37, 4-11
33 Ms Stubbs agreed that she was seeing a psychologist at the Sunshine Hospital during her pregnancy and continued to see this person once or twice a week. She had also been referred to a psychiatrist, Dr Ghandi, who she saw two or three times, but stopped:
“… it just wasn’t working … didn’t feel comfortable talking to him.”[48]
[48]T 39, L 6-30
34 She was continuing to see Dr Manuel every few weeks. She did not take prescription medication during pregnancy and only recently tried Norflex, which she ceased after a few weeks:
“I couldn’t take it anymore.”[49]
[49]T 40, L 24 to T 41, L 4
35 When further cross-examined about her current medication Ms Stubbs agreed that she would take perhaps two or three Panadol Osteo every few days:
“Could be every day it just depends on what I’m doing if I have to lift more.”
36 She would also take Diazepam, not for anxiety but for sleeping. This would generally be two or three tablets per week.[50]
[50]T 41, L 23 to T 42, L 18
37 Ms Stubbs was cross-examined about her current psychological state and treatment:
· She agreed that some stress and anxiety had been related to problems with the health of her baby.
“… yes, but not the current situation.”[51]
· She agreed that the birth of her son had been positive for her, and that she was now better than when she had been seen by the CAT team with suicidal thoughts.[52]
· She stated that her husband helped with domestic tasks, even though he was doing shift work and working full-time.[53]
[51]T 44, L 1-29 & Exhibit 1, pp 37-38
[52]T 46, L 11 to T 47, L 2
[53]T 47, L 19 to T 48, L 4
38 Ms Stubbs was further cross-examined about her recreational pursuits prior to 2016. She stated that she was playing social tennis maybe once a fortnight with her husband when his shifts permitted. She may have gone skiing, perhaps three times in the year prior to 2016. She regarded herself as a beginner, but her husband was a keen skier:
“… and he was trying to get me into something that he’d like and I actually did enjoy it.”[54]
[54]T 49, L 1 to T 50, L 20
39 She also gave evidence of enjoying bush walking in 2015, making reference to walks of five kilometres or eight kilometres which she would do:
“… in the weekends here and there, whenever it was nice weather.”[55]
[55]T 51, L 8-18
40 Ms Stubbs was re-examined. I noted the following evidence:
· She had applied for a traineeship at the Austin Hospital in 2013, it was a 12 month training period to qualify as a health assistant nurse. This was similar to what had formerly been described as a patient care assistant.[56]
[56]T 54, L 10-30
· The work was heavy and involved transferring patients. It was work you could not do with a “crook back”.[57]
[57]T 55, L 1-9
· She enjoyed the work because it was hands-on and she was given help with the work she did at school. She regarded it as a big thing for her to be told she had passed her exams.[58]
[58]T 55, L 18-31
· Although it was casual employment by the end of 2015, she worked Monday to Friday and did 38 hours.[59]
[59]T 56, L 1-14
· She met her husband in December 2014 and they shared a number of interests:
“Going to the gym, tennis, he enjoyed skiing, at that stage I didn’t ski but he introduced me to that, he was outdoorsy, he enjoyed walking and hiking.”[60]
· She confirmed that although her present condition caused a lot of stress, her husband assisted looking after her child and with domestic activities.[61]
· When asked about the treatment at the Epworth Hospital in 2015 she stated she had been discharged from that program at some stage before hurting herself in January 2016.[62]
· When she was injured in January 2016 she was doing an afternoon shift on normal duties. It was not a modified duty position.[63]
· She had not been free of back pain since January 2016.[64]
[60]T 56, L 25-31
[61]T 57, L 11-29
[62]T 58, L 1-16
[63]T 59, L 6-15
[64]T 59, L 18
The medical evidence
41 Mr Purcell QC tendered medical reports from two general practitioners, Dr Raymond Chan and Dr Ebrahim Manuel and from the pain physician Dr Meena Mittal.
42 Additionally the plaintiff relied upon medico-legal opinions from Dr David Weissman, psychiatrist, Dr Peter Blomberry, vascular and pain medicine specialist, and Dr Robin Horsley, occupational physician.
43 Dr Chan’s first report dated 15 May 2017 diagnosed Ms Stubbs suffering from chronic low back pain. He noted significant limitation in her activities of daily living due to pain and stated:
“She currently lacks work capacity due to her pain.”[65]
[65]Exhibit A, p 43
44 His more recent report dated 29 March 2018 described treating her over a five year period and expressed an opinion that Ms Stubbs’ chronic lower back pain was continuing to significantly impair all activities of daily living. He regarded her as unable to return to her pre-injury duties and did not believe she had any current employment capacity.
45 Dr Chan regarded Ms Stubbs’ prognosis as uncertain stating:
“The condition has not resolved despite appropriate treatment since the time of injury (over 3 years duration) thus the prognosis is uncertain. I cannot be certain that her condition will permanently restrict her activities of daily living.”[66]
[66]Exhibit A, p 46
46 Dr Ebrahim Manuel provided reports dated 28 September 2018, 30 August 2019 and 16 September 2019.[67] At the time of his first report he diagnosed Ms Stubbs as suffering myofascial pain with central sensitisation, although he considered chronic pain syndrome with central sensitisation as an alternative diagnosis.[68] He regarded her as unable to work at that time, but noted she was then pregnant.
[67]Exhibit A, pp 62-79
[68]Exhibit A, p 64
47 In his second report in August 2019 Dr Manuel diagnosed Ms Stubbs suffering from:
“i) Chronic Pain Disorder;
ii) Adjustment Disorder with Anxious and Depressed Mood.”[69]
[69]Exhibit A, p 76
48 He believed the pain disorder would persist permanently, but thought the adjustment disorder may resolve in the future, “but could also persist permanently.”[70]
[70]Exhibit A, p 76
49 Dr Manuel’s final report on 16 September 2019 simply stated that he did not believe Ms Stubbs was either a malingerer or feigning her condition.[71]
[71]Exhibit A, p 79
50 Mr Meena Mittal provided a brief letter to Dr Emanuel dated 6 July 2018. She provided more detailed reports to the plaintiff’s solicitors dated 23 August 2018 and 28 July 2019.[72]
[72]Exhibit A, pp 47-61
51 At the time of her first report to the plaintiff’s solicitors on 23 August 2018, Dr Mittal described the majority of Ms Stubbs’ condition as being myofascial in origin with severe sensitisation.[73] She regarded the prognosis as poor and stated:
“… the fact that she had an injury that was approximately two years ago and has not made adequate progress with the range of treatment that has been provided. She has developed significant sensitisation the reversibility of which is extremely difficult. This has been compounded by development of severe depression and anxiety.”[74]
[73]Exhibit A, p 50
[74]Exhibit A, p 53
52 In Dr Mittal’s final report dated 28 July 2019 she confirmed her earlier diagnosis of myofascial pain with central sensitisation and regarded her overall prognosis as poor. She did not believe Ms Stubbs had any current work capacity and this situation was likely to be permanent.[75]
[75]Exhibit A, p 60
53 Mr Purcell QC tendered three reports from Dr David Weissman, psychiatrist, dated 26 June 2018, 31 July 2019 and 13 September 2019.[76] At the time of his first report he diagnosed Ms Stubbs as suffering from a chronic adjustment disorder with anxious and depressed mood of mild to moderate intensity or severity.[77]
[76]Exhibit A, pp 80-107
[77]Exhibit A, p 90
54 Dr Weissman re-examined Ms Stubbs in July 2019 and noted that he read sections of the Medical Panel material to her.[78] Dr Weissman stated that he believed there had been some improvement in her psychiatric state since he had seen her previously:
“She still has some mild frustration, concern, worry, anxiety and some fear, and some resentment and grievance (regarding her pre-injury employer). However, her anxiety symptoms and ‘stress’ are now mild and not mild to moderate. Furthermore, she does have some mild depressive symptoms but she denied a depressed mood.”[79]
[78]Exhibit A, p 96
[79]Exhibit A, p 102
55 His formal diagnosis was that Ms Stubbs was then suffering from a mild chronic adjustment disorder with anxious and depressed features relevant to her employment.[80]
[80]Exhibit A, p 102
56 Dr Weissman’s final report dated 13 September 2019 was in response to matters raised following the Medical Panel opinion. In essence he agreed that the conditions found by the Medical Panel were likely to persist for the foreseeable future, that Ms Stubbs’ injuries, as found by the Medical Panel, were a cause of the consequences which Ms Stubbs had related to Dr Weissman. Finally, although he preferred not to use the words “malingerer” or “feigning”, he did not regard the plaintiff as a malingerer nor did he think she was feigning her condition.[81]
[81]Exhibit A, p 107
57 Dr Peter Blomberry examined Ms Stubbs on 22 July 2019 and provided a detailed report dated 7 August 2019. He provided a short supplementary report dated 13 September 2019.[82]
[82]Exhibit A, pp 108-114
58 In his first report Dr Blomberry described Ms Stubbs’ injuries as being:
“… previously asymptomatic degenerative changes in the lumbar spine being rendered symptomatic. It is also my opinion that her pain is being amplified by a process of central sensitisation resulting in ongoing chronic pain.
Mrs Stubbs has also become quite depressed and anxious as a consequence of the injury and that was tending to enhance her experience of pain.”[83]
[83]Exhibit A, p 111
59 He went on to state:
“She is managing her pain now with milder analgesics and anti-inflammatories but is limited in terms of what she can do at home.”
60 He believed she had no capacity to return to her previous employment.[84]
[84]Exhibit A, p 111
61 In Dr Blomberry’s supplementary report he stated the pain condition was likely to persist for the foreseeable future, and that the injury described by the Medical Panel was a cause of the consequences suffered by the plaintiff. He did not regard her as either a malingerer or feigning her condition:
“Rather than being a malingerer or feigning her condition, she has a pain syndrome in the affected area.”[85]
[85]Exhibit A, p 114
62 The final medico-legal opinion relied upon was from Dr Robyn Horsley. Her detailed report dated 29 August 2019, and a supplementary report dated 16 September 2019 were tendered in evidence.[86]
[86]Exhibit A, pp 115-128
63 Dr Horsley re-assessed Ms Stubbs for the purpose of a report on 29 August 2019. She referred in that report to a previous examination on 22 May 2018. There was no report tendered in evidence in relation to that earlier examination.
64 Dr Horsley noted various other medical opinions and also referred to the Medical Panel opinion. Dr Horsley described Ms Stubbs as presenting with:
“… ongoing mechanical back pain and occasional referred left leg pain. She has no specific clinical radicular features. She has developed a chronic pain syndrome.”[87]
[87]Exhibit A, p 119
65 Dr Horsley referred to the opinion of psychiatric and pain management specialists on the question of capacity for work. She referred to the Medical Panel opinion noting:
“The Plaintiff is no longer suffering from any psychical medical condition of the back. She is suffering from a chronic pain disorder and an adjustment disorder with anxious and depressed mood.”[88]
[88]Exhibit A, p 121
66 Dr Horsley provided a supplementary opinion to the plaintiff’s solicitors on 16 September 2019. In terms of the persistence of symptoms Dr Horsley deferred to psychiatric opinion. She did not comment on whether the injury described by the Medical Panel was a cause of the plaintiff’s consequences. She did not regard Ms Stubbs as either malingerer or feigning her condition.[89]
[89]Exhibit A, p 128
67 In addition to the formal reports in the plaintiff’s court book, Mr Purcell QC tendered a discharge summary from Epworth Health Care prepared by Dr Anita Kotevski, psychologist, and dated 8 July 2015.[90] This recorded Ms Stubbs as reporting that her low back pain and improved significantly since completing the program:
“She reported a reduction in her baseline pain as well as a reduced pain flare‑up frequency, intensity and duration.”[91]
[90]Exhibit A, p 129-132
[91]Exhibit A, p 129
68 The report also noted Ms Stubbs as attending gym, working 30 hours per week and reporting:
69 “overall better self-management and coping well with a reduction in her pain which she rated as under 4/10.”[92]
[92]Exhibit A, p 130
70 Ms Spencer, on behalf of the defendant, relied essentially on the Medical panel opinion dated 26 October 2018, which was tendered in evidence, together with the Medical Panel’s reasons.[93]
[93]Exhibit 1, pp 68-87
71 The balance of the medical material relied upon by the defendant was canvassed by Ms Spencer during cross-examination of the plaintiff. Most of this material predated the injury suffered by Ms Stubbs on 8 January 2016.
72 As was evident during the cross-examination of Ms Stubbs, much of the medical material relied upon by the defendant is strongly indicative of levels of back pain and psychological disturbances occurring prior to January 2016, that were sufficient to require medical attention.
Analysis
73 In assessing Ms Stubbs’ application for leave, the court is bound to adopt and apply relevant Medical Panel opinions in accordance with the provisions of sections 313(4)(a) and (b) of the Act. The parties accept that such an approach must be taken. In accordance with the Medical Panel’s Certificate of Opinion dated 26 October 2018, Ms Stubbs is suffering from a “chronic pain disorder and adjustment disorder with anxious and depressed mood.”[94]
[94]Exhibit 1, p 68 Question 1(a) and (b)
74 The Medical Panel also gave an opinion that Ms Stubbs’ condition is “materially contributed to by the alleged injury to the plaintiff’s back sustained on 8 January 2016.”[95]
[95]Exhibit 1, p 69 Question 3(b)
75 The Medical Panel further opined that Ms Stubbs has an incapacity for her pre‑injury employment as a health assistant nurse, but a current work capacity to work in suitable employment as a receptionist on a full-time basis.[96]
[96]Exhibit 1, p 72 Questions 14(a) and (b), 15(a) and (b) and 16
76 Insofar as it is relevant to the present application, the Medical Panel also found that the current work capacity as a receptionist was permanent.[97]
[97]Exhibit 1, pp 72-73 Question 17(b)
77 In order for leave to be granted in respect of the pain and suffering consequences for Ms Stubbs, she must satisfy the court that those consequences can fairly be described a severe. Longstanding authority requires the court to consider the legislation’s use of the word “severe” rather than “serious” as in other parts of the serious injury definition as indicating an intention for courts to apply a higher threshold test noting that the word “severe” “is used in the definition as a stronger word than ‘serious’”.[98]
[98]Mobillio v Balliotis [1998] 3 VR 833 at 846 per Brooking JA
78 In final address Mr Purcell QC submitted that the loss of Ms Stubbs’ career from which “she got tremendous satisfaction from getting the qualification”[99] would provide the court with a firm basis to conclude that Ms Stubbs’ application satisfied the threshold test.
[99]T 80, pp 10-19
79 Mr Purcell QC also made reference to the ongoing complaints of pain, her current need to care for a young child and the ongoing restrictions in relation to domestic and sporting activities as relevant to the court’s decision.
80 Both counsel referred in closing address to TAC v Katanas[100] as authority for the proposition that where a plaintiff relies on paragraph (c) of the serious injury definition, the court can take into account both symptoms and consequences in making an assessment of the extent of the mental or behavioural disturbance or disorder:
“… assessment of the severity of an injury will ordinarily be informed by what is accepted as being the extent of both its symptoms and its consequences. But to speak of symptoms and consequences in the case of mental disorder or disturbance suggests a bright line distinction that may not always exist.”[101]
[100][2017] HCA 32
[101]Ibid at [29]
81 Ms Spencer in closing address highlighted the absence of medical reports from any treating psychologist or psychiatrist. She also highlighted the absences of further supporting material from persons such as Ms Stubbs’ husband. She submitted that the extent of pre-2016 psychiatric and psychological treatment mandated an assessment of the consequences flowing from the 2016 injury to be assessed as an aggravation.
82 In the end result a court must ordinarily be persuaded by the reliability of the plaintiff’s evidence as to the extent of her consequences where an application relies upon a non-organic condition which cannot be objectively assessed as in the case of many organic injuries.
83 The evidence given by Ms Stubbs was not convincing in terms of her pre‑injury back condition, especially during the period of late 2014 to mid-2015.
84 In my view it is more likely than not that the plaintiff was considerably restricted by back pain, complicated by ongoing non-organic symptoms requiring treatment from the psychologist Ms Thompson and the involvement of the Eastern Health Crisis Assessment Team on 25 September 2014 noting:
“concerns of increase in anxiety, lowered mood and suicidal ideation in the context of psycho social stressors (back injury with poor pain management, reduced work/finances secondary to back injury and conflict with mother.”[102]
[102]Exhibit 1, p 16
85 Clearly this history is very much in conflict with the evidence given by the plaintiff to the effect that in the latter part of 2015 she was back working full-time and without any significant impediments to continuing on that basis indefinitely into the future.
86 I agree with the submission from Ms Spencer on behalf of the defendant that it is most surprising that there was no report from Ms Heather Thompson, the treating psychologist at that time, nor any explanation as to why this material was not before the court.
87 Given the onus faced by the plaintiff I am concerned at the numerous omissions within the plaintiff’s affidavit material relating to previous medical conditions or complaints which emerged during Ms Stubbs’ cross-examination. In the end result I am unable to be satisfied that Ms Stubbs is a reliable and accurate witness in both her description of her condition prior to January 2016 and also the extent of her present consequences.
88 I accept that the plaintiff is a young woman with a young child and a willingness, at the very least, to involve herself in a number of sports and recreations. Her evidence before me in relation to snow skiing, tennis and bush walking was such that I would collectively regard the loss of those activities as a moderate consequence of her injury, but not higher.
89 The loss of her ability to return to her previous occupation, although clearly important to her, was in truth the loss of an embryonic career which had developed in circumstances where Ms Stubbs had been treated for back injuries and emotional complaints for a significant period of time whilst in that position. It was not a long-term position, nor one that would necessarily have endured for a significant period into the future.
90 I do accept that Ms Stubbs has lost a degree of enjoyment of life in being deprived of the satisfaction of performing caring work for elderly patients. Even if I were to disregard the negative comments she made in evidence about the conditions of her employment requiring her to deal with difficult patients, then I would still not regard the loss of her ability to return to that type of employment as more than a moderate consequence of injury.
91 In making an assessment in Ms Stubbs’ case, I must consider all of the consequences flowing from the injury described in the Medical Panel opinion.
92 In short I cannot be satisfied that the totality of consequences relied upon by Ms Stubbs could be described as more than significant or perhaps marked. I do not believe they could on any view satisfy a threshold which is to some degree greater than serious and indicative of consequences which are within the upper echelon of those which may flow from a mental or behavioural disturbance or disorder.
93 I am not satisfied the consequences of Ms Stubbs’ injuries are collectively able to satisfy the relevant test.
Conclusion
94 The plaintiff’s application for leave must be dismissed. I propose to hear the parties in relation to the formal orders sought and the question of costs.
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