Suleyman v Cleandomain Pty Ltd
[2016] VCC 508
•4 May 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST Case No. CI-15-01952
EMINE SULEYMAN Plaintiff v CLEANDOMAIN PTY LTD
(ACN 112 283 977)Defendant
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JUDGE:
HIS HONOUR JUDGE O’NEILL
WHERE HELD:
Melbourne
DATE OF HEARING:
15 and 18 April 2016
DATE OF JUDGMENT:
4 May 2016
CASE MAY BE CITED AS:
Suleyman v Cleandomain Pty Ltd
MEDIUM NEUTRAL CITATION:
[2016] VCC 508
REASONS FOR JUDGMENT
---Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury over a period of time to lower spine – pain and suffering only – various other employment contributing to injury – pre-existing lower back condition – whether injury related to employment or constitutional in nature – disentangling psychological consequences – disentangling other injuries
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering.
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APPEARANCES:
Counsel Solicitors For the Plaintiff Ms M A Hartley QC with
Mr L AllanZaparas Lawyers For the Defendant Mr R H Stanley Wisewould Mahony HIS HONOUR:
Preliminary
1 Ms Suleyman has worked since 1996 as a cleaner at a David Jones store. Over the years until 2010, she worked there for a number of cleaning companies. She worked for the defendant, Cleandomain Pty Ltd (“Cleandomain”), her last employer, from 2008 until 2010.
2 As a result of heavy cleaning work over those years, she claims to have suffered a lower back injury. She saw her general practitioner on a number of occasions before 2008 with complaints about pain in her lower spine. She ceased work in July 2010.
3 In addition to the physical injury, Ms Suleyman has suffered a psychological reaction in the nature of an Adjustment Disorder with Anxiety and Depression. She also has pain and disability in a number of other areas of her body.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of her employment with Cleandomain over the period 2008 until 2010. The body function said to be lost or impaired is the spine.
5 In addition, Ms Suleyman claims to have suffered a permanent severe mental disturbance or disorder, although Ms Hartley, on behalf of the plaintiff, did not press this aspect of the application.
6 The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
7 Ms Suleyman was the only witness called to give evidence and be cross-examined. In addition, two affidavits of Ms Suleyman and various medical and radiological reports were tendered into evidence. I shall not refer to all of this material in the course of this judgment but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
8 Ms Suleyman was born in 1951 in Cyprus. She worked in a factory before migrating to Australia 1973. She worked for a couple of years at the Herbert Adams factory, making pies and cakes. She then worked at the Philips’ factory inspecting fridges. During this period, she had three children, taking time off to stay at home and look after the children and then returning to work. When her third child was about eight years old and in about 1991, Ms Suleyman started work as a cleaner at shopping centres. She started at The Glen Shopping Centre in Glen Waverley. In about 1996, she started cleaning at the David Jones store at the Glen and continued for about fourteen years. She was transferred to the Fountain Gate Shopping Centre in early 2010. She had various employers during her time cleaning for David Jones at The Glen. Cleandomain became her employer in March 2008.
9 Ms Suleyman complained of back pain to doctors in 1996, 2002 and 2006. She had an x-ray of her low back on 16 June 1996, but there was no follow up. In 2002, she complained of low-back pain for two months. She was given a certificate for several days off work and there is a reference on the clinical notes to some medication being prescribed. The clinical notes of 23 July 2006 record two weeks of low-back pain radiating to both thighs which developed after cleaning at work. She was advised to see her company doctor as it was a work-related injury.
10 In 2011, Ms Suleyman had left knee pain and pins and needles in her right wrist. She was treated with a guided cortisone injection and said the pins and needles mainly went away after the injection.[1]
[1]Plaintiff’s Court Book (“PCB”) 32
11 When she saw Dr Karna, rheumatologist, for the defendants on 18 March 2015, she reported some pain in her knees, neck, shoulders and wrists.[2]
[2]Defendant’s Court Book (“DCB”) 9
12 Before her back injury, Ms Suleyman enjoyed cooking elaborate Cypriot meals, gardening and crochet. She was able to do all of her domestic tasks without difficulty. She enjoyed her work as a cleaner and the social outlet it provided.
The injury and its consequences
13 Ms Suleyman claimed the injury to her back arose during the course of her employment as a cleaner. Her work as a cleaner involved “sweeping, mopping, vacuuming, emptying bins, cleaning toilets and cleaning stairs”.[3] She had to do a lot of walking and standing and had to work quickly.
[3]PCB 28
14 Before she worked for Cleandomain, there were two cleaners who cleaned at David Jones and after she started she was the only cleaner when working the morning shift. She was required to clean one floor in about two hours and had to work at a very fast pace.[4] She was also required to put cardboard boxes into a waste compacting machine. Sometimes the machine was faulty and she had to pull out the bale of waste herself which was difficult as the bales were heavy:
“… Once the bail (sic) was on the trolley, I had to push the trolley to the lift and push the bail (sic) off the trolley. I found this task difficult too as the bails (sic) were heavy. … .”[5]
[4]PCB 29
[5]PCB 29
15 Ms Suleyman worked about 38 hours per week.
16 She had some pain in her right foot and back towards the end of 2009. Her back pain started to worsen in late 2009 and her right foot pain became a significant problem in early 2010. In about April 2010, she had pain in her right foot, hands and back, and was struggling at work. At that time, the pain in her right foot was the worst.[6] She paid less attention to her back pain because she was more concerned about the pain in her foot.
[6]PCB 29
17 Ms Suleyman stopped work on 31 May 2010 and had a couple of weeks off. From the material, this was because of her right foot pain. She returned to work in mid June 2010 on modified duties but found she could not cope and stopped finally on about 1 July 2010 due to her right foot pain and back pain.
18 Ms Suleyman saw her general practitioner, Dr Nguyen, about her right foot in April 2010. She first saw Dr Herath, a general practitioner to whom she was referred because he had more experience handling WorkCover cases, at the Valewood Clinic, on 24 May 2010. Dr Herath thought Ms Solomon had plantar fasciitis. On 31 May 2010, Dr Herath prescribed medication for her right foot pain. She remained under treatment at this clinic until January 2011. Over this period, there is no reference in the clinical notes[7] to any complaint of back pain until 20 January 2011, when the entry reads –
“[H]as had flare of psoriatic arthritis to hand and feet last 6/12 and now low back pain.”[8]
[7]DCB 63 – 69
[8]DCB 63
19 Dr Herath referred Ms Suleyman to Dr Bleischer, an orthopaedic specialist, about her right foot pain on 20 July 2010. That doctor referred her for an MRI scan of her right forefoot, which she had on 22 July 2010. He diagnosed psoriatic arthritis and referred her to Dr Rasaratnam, rheumatologist. He diagnosed psoriatic arthritis in her right hand and prescribed her Salazopyrin. The pain in her hands and right foot improved but her back pain continued to worsen.[9]
[9]PCB 31
20 Ms Suleyman then saw Dr Le, rheumatologist, on 8 February 2011 for a second opinion, and was referred for a whole-body scan, which was performed on 16 February 2011. Dr Le noted restriction of movement in her thoracolumbar spine. She had an MRI scan of her lumbar spine and sacroiliac joints on 21 February 2011. Ms Suleyman had bad side-effects from the Salazopyrin and stopped taking it. Her main concern at the time was right foot pain, but her back pain continued to worsen.
21 In early 2011, she started to experience left knee pain. At the same time, she also changed general practitioners and started seeing Dr Balvin at the Kealba Clinic as she had moved house. Her back pain worsened throughout 2011 and 2012. She saw Dr Le again in April 2012, and it is clear from a letter to Dr Balvin that the main issue was back pain,[10] which she described as mechanical in origin and arising from multi-level degenerative disc disease. She was advised to lose weight and do gentle exercise in the pool.[11]
[10]PCB 47
[11]PCB 32
22 In her affidavit of 17 December 2014, Ms Suleyman reported pain and stiffness in the joints of her hands and knees, as well some pain in her right foot. She suffered from psoriasis of her skin and hypertension, but it was her back, she said, that caused her the most pain. She took Panadeine Forte or Nurofen about twice per week for her back pain. She did not like taking tablets and was scared of needles. She went to the pool most weekdays, for about two hours, and did exercises for her back.
23 In April 2011, Dr Balvin referred her to a physiotherapist, Mr Boulionis, for treatment but her back pain did not improve so she stopped attending.
24 In her second affidavit dated 6 April 2016, Ms Suleyman reported that she did not start complaining about her back pain to doctors until about early 2011, “when my right foot pain was feeling a bit better, but my back pain was not”.[12]
[12]PCB 37
25 She further recorded that she continued to see her general practitioner, Dr Masanthaubi Govender, regularly but that she no longer went to the swimming pool as she was unmotivated and the chlorine was causing her psoriasis to flare-up. She usually took two tablets of Panadeine every two hours for her back and right leg pain and she only took Panadeine Forte occasionally when the pain in the back was severe, as it upset her stomach. The pain and swelling in her right foot had largely resolved and she did not have any significant pain in the hands.
26 As a result of the injury to her back, Ms Suleyman claims the following consequences:
· She has lower back pain all the time: hot stabbing pain in her low back as well as an aching pain that travels from her low back.[13] In her second affidavit she reported she continued to suffer constant pain in her low back radiating up the sides of her middle and upper back. The pain in her low back started to travel into her groin, her right buttock, down the side and front of her right thigh, into her knee and into the side of her right calf. This pain comes and goes.[14]
[13]PCB 34
[14]PCB 38
· Walking for longer than 30 minutes, bending or twisting, lifting anything heavy or turning her head from side to side causes severe pain or causes the pain to increase.[15]
[15]PCB 33
· She has difficulty showering and getting dressed.[16]
[16]PCB 33
· She is limited in the housework she can do and her daughter does the vacuuming, washes big loads of clothes and helps her to change the bed and to do a larger shop at the supermarket.[17]
[17]PCB 33
· She is able to only drive the car short distances, and getting in and out of the car causes increased back pain. Turning her head to check for traffic causes increased pain to the sides of her upper back.[18]
[18]PCB 34
· She has difficulty sleeping and usually wakes up every hour during the night.[19]
[19]PCB 34
· She can no longer cook the elaborate Cypriot meals and sweets that she used to and now only cooks simple things that do not require her to stand up in the kitchen for too long.[20]
[20]PCB 34
· She no longer looks after her garden as much as she used to.[21] She used to enjoy gardening but now finds it very difficult as bending down causes her back pain.[22]
[21]PCB 39
[22]PCB 34
· She now rarely crochets as she cannot sit comfortably for more than 30 minutes.[23]
· She misses working as a cleaner, taking pride in her work and socialising with friends and colleagues at work.[24]
[23]PCB 34
[24]PCB 34
Medical evidence
27 Dr Herath, general practitioner, in a letter dated 15 December 2010 to the Accident Compensation Conciliation Service, noted that he first saw Ms Suleyman on 24 May 2010 as a new WorkCover case. He said she had a past medical history of hypertension and psoriasis and that she presented with right foot pain on the sole of her foot. She came back a week later with worsening pain. He referred her to Mr Andrew Bleischer, who specialised in foot-related orthopaedic conditions. His diagnosis was that of psoriatic arthritis of the 3rd metatarsophalangeal joint. In a review in August 2010, Ms Suleyman reported a mild improvement with anti-inflammatory medication.
28 Mr Andrew Bleischer referred Ms Suleyman to Dr Rasaratnam, rheumatologist, and she was seen on 6 September 2010. He prescribed Salazopyrin, a disease-modifying anti-rheumatic drug. He noted that Ms Suleyman was reporting a 25 per cent improvement in pain, that this had stabilised, and that she had a significant disability which prevented her from walking more than a few metres without pain.[25]
[25]PCB 45-6
29 Dr Christine Le, a treating rheumatologist, in a report dated 8 February 2011 to the Valewood Clinic, saw Ms Suleyman for pain affecting the soles of her feet, the small joints of her hand and low-back pain. She noted Ms Suleyman had restriction of movement in her thoracolumbar spine. She confirmed the diagnosis of psoriatic arthritis. She also noted:
“… I do believe in addition that there is a degree of a degenerative and soft tissue basis for her pain, which has probably been exacerbated by her work as a cleaner. … .”[26]
[26]PCB 46.1
30 On 18 April 2012, Dr Le reported that the cause of Ms Suleyman’s back pain is:
“… mechanical in origin that is arising from multi level degenerative disc disease and facet joint osteoarthritis. … .”[27]
[27]PCB 47
31 In a report dated 26 June 2014 to the plaintiff’s lawyers, Dr Le noted that Ms Suleyman gave a history of her pain deteriorating in April 2010, saying that she “hobbled home at the end of every workday” and that she tried to restart work in July 2010 but was unable to manage it due to widespread pain.[28] She noted that an isotope bone scan of the lower limbs dated 17 May 2010 showed features consistent with active planter fasciitis on the right. She also noted that an MRI scan of the lumbar spine and sacroiliac joints dated 21 February 2011 showed some degenerative disc disease with narrowed exit foraminae at L4-5 with possible changes of Grade I-II sacroiliitis affecting the left sacroiliac joint.
[28]PCB 48
32 When Dr Le reviewed Ms Suleyman on 28 February 2011, she advised her to stop taking the Salazopyrin as it caused adverse effects. Mr Le saw Ms Suleyman next on 28 March 2011 for ongoing low-back symptoms, as well as left knee pain. She advised her to start some physical therapy by walking in a pool but she reported that Ms Suleyman was unable logistically to get to a swimming pool. She also reported carpal tunnel-type symptoms in the right hand with pins and needles occurring every day and was referred for treatment.
33 When she saw Ms Suleyman next on 16 May 2011, the right carpal tunnel symptoms had mostly settled. She continued to complain of low-back pain and stiffness. She was not on any medication at this time for the psoriatic arthritis because of the bad experience with Salazopyrin. She saw Ms Suleyman again 15 August 2011, reporting worsening symptoms of low-back pain that caused her difficulty standing in the kitchen to cook. Dr Le advised Ms Suleyman that the best treatment option was for her to lose 20 kilograms to help control the mechanical low-back pain. When she saw Ms Suleyman again on 16 April 2012:
“… the main presenting symptom on this date was of severe upper and lower back pain, which she said had worsened and had caused her difficulty in bending over. There was no sign of peripheral joint synovitis to suggest active psoriatic arthritis and on this occasion I explained to Mrs Suleyman that her back pain is mechanical in origin arising from multi level degenerative disc disease and facet joint osteoarthritis rather than from her psoriatic arthritis. … .”[29]
[29]PCB 50
34 Dr Le’s opinion was that the –
“b) … mechanical low back pain condition is work related in that the worker’s employment was a significant contributing factor to the aggravation of her mechanical backpain.
c) Diagnosis. Your client suffers from multi level degenerative disc disease of the lumbar spine with mild facet joint osteoarthritis of the lumbar spine and chronic musculoligamentous strain of the thoracolumbar spine causing mechanical low back pain. This is work related. She also suffers from the following:
1) Psoriatic arthritis.
2) Right retrocalcaneal bursitis.
3) Right carpal tunnel syndrome.
4) Salazopyrin side effects consisting of dizzy spells, depression, lack of energy and nausea, resolved on ceasing the drug.
d) The worker when I last saw her was unfit for work.”[30]
[30]PCB 48 – 50
35 The radiology report for the MRI scan of the lumbar spine and sacroiliac joints dated 21 February 2011 noted:
“… At L4-5 a diffuse disc bulge is noted extending into the inferior aspect of both exit foramina. The disc bulge combines with facet joint and ligamentum flavum hypertrophy to produce a mild central canal stenosis. There is mild narrowing of the sub foraminal lateral recess bilaterally with contact without convincing impingement upon the traversing L5 nerve roots.”[31]
[31]PCB 59
36 The report concludes:
“… Mild bilateral exit foraminal narrowing at L4-5. Possible grade I-II sacroiliitis left sacroiliac joint. … .”[32]
[32]PCB 60
37 Dr Govender, a treating general practitioner, in a letter dated 22 June 2014 to the Accident Compensation Conciliation Service, reported that Ms Suleyman first presented to her on 11 March 2014 and that she had been attending the Kealba Clinic since 2 February 2011.
38 Dr Govender noted:
“Ms Suleyman is a 63 year old female cleaner who has degenerative back pain exacerbated by her job as a cleaner.
Ms Suleyman’s incapacity results from the injury sustained during her work as a cleaner.
Ms Suleyman is medically unfit to return to her previous occupation … .
… It is unlikely she will ever be able to return to work in a physical capacity… .”[33]
[33]PCB 63 – 64
39 Reporting to the plaintiff’s solicitors on 13 December 2015, Dr Govender recorded that Ms Suleyman first saw her on 11 March 2014. She mentioned ongoing low-backache. She previously saw Dr Hana Balvin at the Kealba Clinic from 2 February 2011, before Dr Balvin left the practice. Dr Govender wrote that Ms Suleyman had been –
“… complaining of pain of her low back radiating down to right knee; she mentioned burning pain and stiffness of her back.”[34]
[34]PCB 68
40 Dr Govender opined that Mrs Suleyman’s –
“… Mechanical Low Backache is work related. She had worked as a cleaner for 14 years; she worked 38 hours per week; she was on her feet during all hours of her work. This resulted in ‘wear and tear’ on her low back. The worker’s employment has been a contributing factor to the worker’s condition.”[35]
[35]PCB 68
41 Dr Govender continued:
“An organic basis for Ms Suleyman’s pain is suggested by the MRI report of 2011 …
Mrs Suleyman still gets intermittent flares of psoriatic arthritis involving her feet; the main reason for presentation to me remains her low back pain.
Mrs Suleyman is unfit to return to her previous occupation. … .”[36]
[36]PCB 69
42 Dr Govender wrote that Ms Suleyman had no current work capacity and that she would continue to have no work capacity into the foreseeable future. She said Ms Suleyman’s pain, restriction and incapacity derived solely from the physical injury to the lower back and the right foot pain.[37] Dr Govender noted Ms Suleyman had been taking Panadol, one six hourly if needed, and two Panadeine Forte at night.
[37]PCB 69
43 In a supplementary report dated 13 April 2016, Dr Govender recorded:
“… THE PLAINTIFF’S EMPLOYMENT FROM LATE MARCH 2008 TO 1 JULY 2010 IS A MATERIAL CONTRIBUTING FACTOR TO HER LOW BACK INJURY.
SHE HAS NO CAPACITY TO WORK DUE TO THE INJURY OF HER LOW BACK.”[38]
[38]PCB 72.1
44 Dr David Morrell, treating psychologist, in a report for the plaintiff’s solicitors dated 12 November 2015, noted he saw Ms Suleyman three times between 24 September 2015 and 12 November 2015. He recorded her psychological symptoms secondary to work place injuries as:
·“Severe stress.
·Sleep disturbance.
·Unable to engage in many activities that she had enjoyed prior to workplace injuries.
·Poor motivation.
·Poor concentration and attention.
·Depression.
·Anxiety.
·Loss of enjoyment in most activities.
·Feeling helpless and hopeless.
·Suicidal Ideation has not been present.”[39]
[39]PCB 79
45 Dr Morrell diagnosed Ms Suleyman as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Ms Suleyman, he said, from a psychological perspective, had no fitness for pre-injury employment, nor was she fit for alternative duties.
46 Professor Richard Bittar, consultant neurosurgeon, in a report for the plaintiff dated 29 September 2015, noted that Ms Suleyman’s back pain became a more significant problem for her than her foot pain. She reported to him she had –
“… constant lower back pain which has a minimum severity of 4/10 and a maximum severity of 8/10.”[40]
[40]PCB 84
47 Professor Bittar said her lower back pain (and leg pain) was a result of aggravation of lumbar spondylosis and that –
“[t]aking into account the fairly heavy physical nature of her work over the course of a number of years, it is my opinion that her employment has most likely been a significant contributing factor.
…
In terms of her prognosis, she is likely to continue to experience significant lower back pain into the foreseeable future.
…
In my opinion she is permanently incapacitated for her full pre-injury duties as a result of her work-related lumbar spine condition.
…
… there is most likely an organic basis for her pain.
Putting aside any mental or behavioural aspect which might be said to be contributing to the perception of symptoms and looking at the organic effects of the back injury only, it is my opinion that her back injury presently renders her incapable of undertaking pre-injury employment or alternative suitable employment.”[41]
[41]PCB 85 – 86
48 In a supplementary report dated 13 April 2016, Professor Bittar noted that he had read the clinical notes of Dr Nguyen and the Valewood Clinic which recorded Ms Suleyman’s back pain as evidenced by attendances in 2002 and 2006 for back pain radiating in to both thighs and also on 11 March 2010. He wrote:
“The additional material reviewed does not change my opinion in relation to the issue of causation. I remain of the view that her very heavy workplace activities over a number of years has (sic) most likely been a significant contributing factor to her lumbar spine condition. In my opinion, it is highly likely that her employment from about late March 2008 to July 1, 2010 is a material contributing factor to her low back injury.”[42]
[42]PCB 87.2
49 Dr Joseph Slesenger, occupational physician, in a report for the plaintiff dated 2 April 2016, recorded:
“I am of the opinion that with regard to Mrs Suleyman’s lower back injury, her impairment and disability are related to the organic effect. …
With regard to Mrs Suleyman’s right foot injury, I am of the opinion that she has no current functional limitation.
With regard to Mrs Suleyman’s lower back pain,…it is unlikely that there will be a significant improvement in her symptoms and all functions in the foreseeable future.”[43]
[43]PCB 98
50 Mr Michael Dooley, orthopaedic surgeon, in a report dated 2 February 2016 for the defendant, wrote:
“Ms Suleyman has naturally occurring and age related degenerative disc disease of the lumbar spine affecting the L4/5 level. Based on the description of her work, I believe it is probable that Ms Suleyman sustained a soft tissue injury to her lumbar spine during the course of her work that involved aggravation of degenerative disc disease at the L4/5 level … the constancy and intensity of her ongoing pain and her described disability are greater than one would expect to see for her condition. In my view, there are no clinical signs of objective neurological deficit affecting the lower limbs. There are some inconsistent signs on physical examination. I believe that Ms Suleyman has had a psychological reaction to her situation and that this reaction significantly influences her ongoing symptoms …
…
… I believe that it is her psychological reaction to her situation that is responsible for this disproportionate pain.”[44]
[44]DCB 3 – 4
51 Dr Roy Karna, rheumatologist, provided a report dated 18 March 2015 for the defendant. He received complaints of –
“… pain … in her neck and shoulders and occasionally in her wrists, but in particular has lumbosacral back pain. … Clearly back pain is worse than any leg pain she has and she says that it is made worse by bending, lifting and twisting and this restricts her in terms of the performance of her household daily activities.”[45]
[45]DCB 9
52 Dr Karna said:
“… she has only mild age related degenerative changes in her back which suggests that these are fundamentally constitutional an[d] unrelated to work.”[46]
[46]DCB 10
Conclusions
53 The Act relevantly provides that there is no entitlement to compensation in respect of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease unless the worker’s employment was a significant contributing factor to the injury.[47]
[47]Section 82(2C) of the Act
54 It is clear that Ms Suleyman had pre-existing back symptoms with flare ups in 1996, 2002 and 2006.[48]
[48]Transcript (“T”) 82
55 Mr Stanley, for the defendant, submitted that the plaintiff had failed to identify what injury Ms Suleyman suffered in the relevant period. He further submitted that:
· in the absence of an incident report;
· in the absence of early reports of back pain to doctors;
· the only early complaint of back pain (said to be unrelated to work) was on 11 March 2010;
· the lack of complaints of back pain to the Valewood Clinic until January 2011, despite many attendances; and
· the note of Dr Stabelos that Ms Suleyman “now [had] low back pain” on 20 January 2011 (emphasis added)
all supported a finding that there was not sufficient evidence, the onus being with the plaintiff, that there was an aggravation of Ms Suleyman’s lower back condition in the period of employment with Cleandomain.
Mr Stanley further submitted that to the extent Ms Suleyman suffered an injury, its genesis was prior to 2008, and there was nothing to suggest any physiological change to her lower back in the course of her employment with Cleandomain.[49]
[49]See Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602
56 I find that in the course of her employment with Cleandomain, Ms Suleyman suffered an aggravation of the underlying degenerative process in her lower spine, in particular at L4-5 as a result of her cleaning duties and while it could be said that her work over a long period of time as a cleaner aggravated this degenerative spinal condition, I find that her employment with Cleandomain was a significant contributing factor for the following reasons.
57 I prefer the opinions of the treating practitioner, Dr Govender and Professor Bittar, to that of Dr Karna, that her back pain was a result of aggravation of degenerative disc disease at the L4-5 level and that it is highly likely that her employment with the defendant was a material contributing factor to her injury.
58 Those opinions are to some extent supported by those of Dr Le and Mr Dooley, that her work contributed to the aggravation of her back condition, although those opinions refer to her work over a longer period, going back many years.
59 Further, the uncontested evidence of Ms Suleyman that she had a heavier workload during the relevant period, doing the work formerly done by two staff members, extracting material from a faulty machine and of having to move heavy bales of cardboard on a trolley, is supportive of the proposition that her work aggravated her previous back condition.
60 Mr Stanley relies on the opinion of Mr Karna, who reported that Ms Suleyman had age-related degeneration that is not related to her work and that the injury she suffers was not caused by her employment with the defendant.
61 However, both Counsel agree that the relevant test is whether her employment with the defendant was a cause of her injury. I am satisfied that her employment with the defendant was a cause.
62 While Ms Suleyman had back pain previously, and had been to the doctor, she continued to go to work[50] and was able to perform her usual domestic duties. Over the years, she had aches and pains in her back from time to time, but did not have any ongoing pain or difficulties.[51] Ms Suleyman’s evidence in re-examination, was:
[50]T33, L14; T43, L23 – 24
[51]PCB 37
Q:“… , over that time from 1996 to March 2008 did you take any time off work because of trouble with your back?---
A:(Direct) I don’t think so, never, I can’t remember, never, … [no].
Q:Over that period from 1996 until March 2008 did your back stop you from doing any of your normal activities at home?---
A:No.
Q:Over that period from 1996 until March 2008 did your back cause you any interference with doing cooking?---
A:No.
…
Q:Over that period from 1996 until March 2008 did your back ever cause you any difficulties with sleep?---
A:(Indirect) No.
Q:Over the period from 1996 until March 2008 did your back ever stop you from being able to shower and dress yourself and do your feet and all the normal things to do with your personal care?---
A:No.”[52]
[52]T43 – 44
63 This strongly contrasts with the evidence of the consequences of her injury after the relevant period of employment with the defendant.
64 The defendant admitted that liability for weekly payments, medical and like expenses for the plaintiff’s claimed back injury was accepted by the insurer.
65 The plaintiff relies on the principle established by Ansett Australia Ltd v Taylor[53] that acceptance of liability under a statutory compensation scheme is an admission by the defendant that the plaintiff suffered compensable injury in particular compensable circumstances, affecting a particular part of the body. Although the plaintiff admitted no medical payments were claimed, this admission is a significant, but not conclusive, evidence of causation.
[53][2006] VSCA 171
66 Mr Stanley says that Ms Suleyman’s claim that she had back pain during the relevant period does not match the contemporaneous records and is therefore not credible.
67 It is clear Mrs Suleyman had considerable problems with her right foot over the period from late 2009 until early 2011. In fact, that injury was the reason she left employment with Cleandomain in May 2010. However, I accept her evidence that she did have low-back pain over this period but to a large extent that pain was “masked” by the problems with her right foot. It was only when the problems with her right foot were diagnosed as psoriatic arthritis and properly treated, that the problem started to resolve. While she has occasional difficulties at the present time, I am satisfied that these are relatively modest, and only occur from time to time when she spends a lot of time on her feet.
68 As the right foot pain became controlled, the low-back pain became the far more significant factor. It is probable it developed and increased over time and by the time she saw Dr Le in February 2011, she was complaining of low-back pain. By April 2012, her complaint to Dr Le was that the low-back pain was her main problem. The fact that it was the right foot pain, rather than the low-back pain which took her out of the workforce and considerably restricted her over the years 2010 to 2012, does not preclude a finding, firstly, that the low-back injury was related to her work with Cleandomain, and, secondly, that it is currently a predominant cause of a range of consequences affecting her work and domestic life.
69 Mr Stanley further submitted that, at present, the pain in Ms Suleyman’s foot, knees, neck and shoulder contribute to the consequences that she suffers, and that she minimises their affect in a desire to assist her case. Generally, I accept her as a witness of truth, giving a fair account of her various physical problems, in particular, of the extent of the severity of her low-back pain and therefore accept her account of the consequences suffered as a result. I accept as credible Ms Suleyman’s evidence that the pain in her right foot was severe and that as that pain reduced, she became more aware of the pain in her back. She does have other physical ailments, but I am satisfied the lower back is the most significant and debilitating.
70 Mr Stanley submitted that the psychological or psychiatric consequences of the physical injury consequences need to be disentangled as they are not to be taken into account in determining whether there has been a permanent serious impairment of loss of body function.[54] He noted that the psychologist reported that psychiatric injury has caused problems with sleep, motivation and sadness and that the plaintiff’s psychiatric condition alone prevented her from work. He also pointed to Mr Dooley’s opinion that the consistency and intensity of the ongoing pain is greater than one would expect.
[54]Section 134AB(38)(h) of the Act
71 In my view it is unnecessary to undertake a comprehensive disentangling exercise, as I am satisfied there is a substantial organic basis for the back injury.[55] Dr Govender noted that an organic basis was confirmed by the MRI, Dr Le described mechanical low-back pain, Dr Bittar said that the injury most likely has an organic basis and Mr Dooley described it as a soft-tissue injury.
[55]See Meadows v Lichmore Pty Ltd [2013] VSCA 201
72 Petkovski v Galletti[56] is authority for the proposition that where a plaintiff brings proceedings for a serious injury in the form of an aggravation of an earlier injury, the Court must examine whether the later aggravation satisfies the “very considerable” test in respect of pain and suffering. I accept Ms Suleyman did have problems from time to time with her back prior to the period of employment with the defendant, but they were not particularly significant.
[56][1994] 1 VR 436
73 I accept the submissions of Ms Hartley as to the consequences which arise directly from the aggravation of Ms Suleyman’s back condition. I accept that she has back pain all the time that varies in intensity and that this limits the amount of time she can sit and walk comfortably.
74 I further accept that her driving is limited and that she is affected by pain in turning her head from side to side, and that she needs to avoid bending, twisting and lifting anything heavy. I accept that a range of domestic activities have been affected and that she needs to rely on her daughter for assistance.
75 I accept that the pain-relieving medication is largely used to treat her back pain, although she also uses for her other conditions.
76 In considering these matters, I have concluded that the consequences related to the back injury do reach the “very considerable” test. There is no issue the low-back condition is permanent. Consequently, I shall grant leave for proceedings to be issued at common law, and will make relevant orders.
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