Tamburro v Victorian WorkCover Authority
[2016] VCC 598
•20 May 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST
Case No. CI-14-03700
CHRISTINA TAMBURRO Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant ---
JUDGE:
HIS HONOUR JUDGE BROOKES
WHERE HELD:
Melbourne
DATE OF HEARING:
15 October 2015
DATE OF JUDGMENT:
20 May 2016
CASE MAY BE CITED AS:
Tamburro v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:
[2016] VCC 598
REASONS FOR JUDGMENT
---Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to thoracic spine, alternatively lumbar spine – whether the consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Application dismissed.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr J P Brett Arnold Thomas & Becker Lawyers For the Defendant Mr T J Ryan IDP Lawyers HIS HONOUR:
1 The plaintiff alleges that she injured her thoracic spine and/or her lumbar spine in the course of her employment as a casual waitress, working at the Rye Hotel, Rye, on 26 March 2001. She seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of impairment to her spine as a result of injury to the thoracic and/or lumbar spine.
2 The plaintiff’s right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as it is relevant to this application as:
“(a) permanent serious impairment or loss of a body function.”
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
5 I am required to consider the consequences to this particular plaintiff viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this application with other cases in the range of possible impairments or losses of body function.
6 The defendant concedes that the plaintiff has suffered an injury to the thoracic and/or lumbar spine in the course of her employment, as alleged, but says such physical injury has produced consequences which do not meet the threshold as set out by the Act for pain and suffering.
7 Plaintiff’s counsel opened the case that the plaintiff suffered a crush fracture of the vertebra at T12 and/or alternatively suffered an aggravation of pre-existing asymptomatic degenerative changes to the lumbosacral spine, as the result of a fall in the course of her employment on 26 March 2001. The resulting impairment relied upon was the spine. It was conceded by counsel that the main injury relied upon was the T12 vertebra injury.[3]
[3]Transcript (“T”) 1, Line (“L”) 22
8 The plaintiff relied upon two affidavits sworn 7 March 2014 and 24 September 2015. Both parties relied upon a number of medical reports, radiological investigations, extracts from the treating general practitioner’s notes and a WorkCover Certificate of Capacity dated 8 January 2002.
9 It was accepted that the plaintiff slipped on a slippery kitchen floor, landed on her buttocks and suffered the aforementioned injury. The principal issue in the case was whether the consequences suffered by the plaintiff as a result of the impairment met the threshold of “serious”.[4]
[4]T2, L6
Background
10 The plaintiff was born in 1952 and was aged forty-eight at the time of injury. At the time of hearing, she was aged sixty-three.
11 On the day of the injury, the plaintiff attended a general practitioner, Dr Coombes, who furnished a report dated 3 March 2002,[5] and obtained an x-ray[6] which showed a crushed fracture at T12 and some degeneration of the L5-S1 facet joints.
[5]Exhibit B
[6]Exhibit H
12 Physiotherapy was arranged by Ms Jodie Furness, who provided a report dated 21 June 2001.[7]
[7]Exhibit C
13 The plaintiff attempted a return to work on 13 May 2001, but lasted only a couple of hours. However, in August 2001, she returned to her employment and slowly increased her hours until she was at full duties by early 2002.
14 It is common ground that at some time thereafter, in 2002, the plaintiff stopped work as a result of a non-work-related condition concerning the development of a Deep Vein Thrombosis.
15 It is also common ground that the plaintiff has suffered, and continues to suffer, from unrelated medical conditions, the consequences of which must be disentangled from the work-related spinal impairment.[8]
[8]Peak Engineering & Anor v McKenzie [2014] VSCA 67
16 In mid-2001, the plaintiff was referred to a specialist orthopaedic surgeon, Mr Owen Williamson, who has provided a report dated 3 July 2001.[9]
[9]Exhibit F
17 After the plaintiff returned to full duties, the plaintiff has had little or no ongoing treatment with respect to the spinal impairment. She has, however, developed “quite florid arthritis in various areas of her body, particularly the left ankle”.[10] In addition to the Deep Vein Thrombosis, the plaintiff has experienced menopause, has suffered a broken rib in 2006 when picking up a child, and a broken leg in 2008 and, also, osteoporosis. Further, she suffered from Irritable Bowel Syndrome and blackouts thought to be vasovagal attacks. The plaintiff also suffers from high cholesterol and high blood pressure.
[10]T3, L29-31
18 In essence, the plaintiff relies on symptoms of continuing back pain which has called for the self-administration of heat packs and occasional Panadol Forte. She has limitations in movement of her lumbar spine and has apparently employed the use of a “pick-up stick” to obtain objects from the floor.
The issues
19 Defence counsel submitted that the plaintiff had not met the required threshold, principally for the following reasons:
(a)There had been no substantial treatment or medication prescribed after the plaintiff ceased employment in 2002;
(b)The plaintiff had returned to full-time pre-injury duties and there was no evidence that the work-related impairment had prevented her returning to employment since then;
(c)The plaintiff had a number of comorbid conditions which required treatment from her general practitioner and specialists from time-to-time, but virtually no treatment for her spinal complaint;
(d)The plaintiff had been referred to a rheumatologist, Dr Esther Yenson-Chu, on or about, April 2002, for her widespread arthritis affecting a range of areas of her body, including the wrists, hands, right knee, ankle and both feet. There was no specific treatment for the spinal problem.
The Plaintiff’s evidence
20 In her first affidavit sworn 7 March 2014, the plaintiff confirmed her injury on 26 March 2001 when she “fell down heavily and landed on [her] bottom.”[11] Thereafter, she was treated conservatively by general practitioner, Dr Coombes, for a short time, and then her regular general practitioner, Dr Neil Stitt. She was also referred to orthopaedic surgeon, Mr Owen Williamson, whom she saw once on 3 July 2001. She also underwent a period of physiotherapy from Ms Jodie Furness.
[11]Exhibit A, paragraph 7, Plaintiff’s Court Book (“PCB”) 8
21 By the beginning of January 2002, the plaintiff had a medical clearance to perform her pre-injury hours and duties, but she swore she continued to “experience back pain, particularly after working or when sitting”.[12]
[12]Exhibit A, paragraph 19, PCB 9-10
22 As a result of developing a right leg Deep Vein Thrombosis on or about 7 March 2002, the plaintiff had to cease work and had:
“… not worked since apart from manning a polling booth during elections. This involves being present at the polling booth area for about 10 hours on the day of the election.”[13]
[13]Exhibit A, paragraph 23, PCB 10
23 Prior to the subject injury, the plaintiff swore she had:
“… some aching joints involving my hands and my knees, but mostly the knees, and later the ankles, particularly the left ankle.
I was diagnosed with rheumatoid arthritis but I cannot now recall whether the diagnosis was made before or after the injury. In any event, I had some of the symptoms for a period of time prior to the injury.”[14]
[14]Exhibit A, paragraphs 25 and 26, PCB 10
24 Since the subject injury, the plaintiff suffered a fracture of her right tibia in 2008 when she fell over a block of wood in New South Wales.
25 Further, the plaintiff stated:
“I have continued to have treatment from my general practitioner, Dr. Stitt.”[15]
[15]Exhibit A, paragraph 16, PCB 9
26 As to her present condition, the plaintiff swore as follows:
“I continue to experience pain in the mid back. I experience this pain almost all the time. It is made worse by activity. As a result I have to avoid as much as possible bending, lifting or twisting. If I sit down, I have to move around because of discomfort in my upper back and eventually the pain will become very bad. If I stand in one position I experience a marked build up of mid back pain after a time.
Because of the injury I am now far less active. Before the injury I enjoyed gardening and I would mow the lawn and look after the garden. Now, I just water the garden and my daughter’s boyfriend mows the lawn for me. Before the injury I enjoyed going swimming, but now because of the injury I do not do that. Before the injury I enjoyed going bike riding but now because of the injury I do not do that.
Because of the injury I am limited in the amount of housework that I can do and I just do a little at a time and do the minimum.
I do not drive a car and I travel on public transport when I have to get about. Because of the injury travelling on public transport causes increased pain in my mid back. As well as pain in the mid back I occasionally experience low back pain.
On a scale of 0 to 10 where 10 is the worst pain imaginable, it is not uncommon for my level of pain to go up to 6. A very common level that I experience a lot of the time is about 4 or 5.
I just have to put up with the pain and I manage it as best I can by resting and avoiding strenuous activity.
The injury interferes with my sleep, and early every night I will wake up with mid back pain. I wake up 2 or 3 times a night. Once the pain wakes me up it is difficult for me to get back to sleep and I usually have to get up and move around. Thus, I often feel sleep deprived.”[16]
[16]Exhibit A, paragraphs 30-36, PCB 11-12
27 In her second affidavit sworn 29 September 2015, the plaintiff related that she had also been injured in 2006 when she fractured a rib when she was picking up a child. Further, when she fractured her right tibia she did not seek treatment for around a week. She stated, “I believe that I have a reasonably good threshold of pain”.[17]
[17]Exhibit A, paragraph 5, PCB 14
28 Further, the plaintiff swore that over the last ten years she had had a number of health issues, “some of which were referred to in my first affidavit”.[18] She swore:
“I have developed arthritis. I had a period of irritable bowel syndrome, and I have been through the onset of menopause. I accept that these health issues cause some limitation on my activities. However, my other issues rarely cause actual pain. The only other pain that I had is an occasional mild ache in my left ankle, particularly after walking. Otherwise, the pain issue that I have arises wholly in relation to my back. My back is painful all the time. I use a heat pack which provides good but temporary relief. I use that around 4 or 5 times a week, I estimate. I also occasionally take Panadol. The pain is made worse by sitting, but particularly is made worse by standing for more than 5 to 10 minutes. When I sit, I have to shift around in my position. I wake at nights, as described in my first affidavit. I did not have trouble sleeping prior to this injury.”[19]
[18]Exhibit A, paragraph 6, PCB 14
[19]Exhibit A, paragraph 6, PCB 14
29 The plaintiff further swore as follows:
“I rarely see a doctor about my back pain because I don’t believe there is anything he can do. The heat pack is the most effective treatment that I have found. I also find that I have to avoid bending and as a result, some of my activities are limited by that. For example, even with my other health issues, I would otherwise be able to attend to my garden but because I am unable to bend freely, I am (sic) cannot do much gardening now. My daughter and my son-in-law help with it. I do grow herbs in pots, which I keep on a table so that I can access them.
I generally get around by walking or by public transport. I have never held a driver[s] licence. If I take a long trip such as on a train, the pain becomes severe and I often have to lie down. I get some pain in my lower back as well at times. As well as using a heat pack, I sometimes treat that with Ice gel.
I use a pincer grip to pick things up off the floor at home. This is because I can’t bend freely. I don’t use low cupboards, because of the bending problem, and I also have to avoid stretching up to high cupboards. Accordingly, my injury to my back causes me problems in many ways, as well as the pain.”[20]
[20]Exhibit A, paragraphs 7-9, PCB 14-15
Cross-examination of the Plaintiff
30 The plaintiff conceded she had been a patient of the South Coast Medical Clinic for many years, including before the subject injury.[21] She was asked:
[21]T12, L10-17
Q:“And whatever the condition is, you will be perhaps, prescribed, some medication?---
A:Often.
Q:And in the 14 or so years from 2001 to 2015 you’ve regularly been prescribed medication?---
A:Yes.
Q:And that’s all been for your other conditions?---
A:Yes.
Q:The only medication that you’re now on for your back condition is over-the-counter Panadol, according to your affidavit; is that right?---
A:Yes.”[22]
[22]T13, L14-22
31 In 2000, the plaintiff attended her general practitioner concerning her left foot, her right knee and was prescribed Celebrex, a non-steroidal anti-inflammatory for arthritis.[23] She further considered she was not being prescribed any anti-inflammatories or any prescription medications for her back problem.[24] Further, there was no physical treatment from any doctor or paramedical person in relation to her back at present.[25]
[23]T14, L1-8
[24]T14, L9-11
[25]T14, L12-14
32 The only attendance on Dr Stitt for the plaintiff’s back condition in the last ten years was on 20 May 2015, where he recorded “has ongoing low back pain”.[26]
[26]T17, L24
Medical treatment
33 The plaintiff first saw Dr John Coombes, general practitioner, on 27 March 2001. He took a relevant history and, on examination, noted pain and tenderness over the lumbar spine, and limitation of movement, particularly with respect to forward flexion. An x-ray demonstrated a crush fracture at T12, and slight disc compression. He noted:
“Her progress was slow as expected with a spine crush fracture but she steadily improved with analgesia, NSAIDS, and physiotherapy.”[27]
[27]Exhibit E, PCB 16
34 Dr Coombes further stated:
“The injury caused the main incapacity which may be problematic, but there should be no major permanent incapacity. Another problem not related which may involve work capacity is osteoarthritis of the right knee.”[28]
[28]Exhibit B, PCB 16
35 The plaintiff attended physiotherapist, Jodie Furness, on 7 April 2001, complaining of lower-back pain. In a report to orthopaedic surgeon, Mr Williamson, dated 21 June 2001, Ms Furness noted:
“Christina’s lower back pain has settled down but now she is experiencing lower thoracic pain, which I am treating with SWD, massage and a progressive gymnasium and hydrotherapy program specifically for paravertebral strengthening.
…
I believe Christina will continue to improve and should be able to return to work (two hour shifts, twice a week).”[29]
[29]Exhibit C, PCB 17
36 The plaintiff’s regular general practitioner, Dr Stitt, first saw her in November 2001, although she had previously been seen by a Dr Young at the same clinic some time prior to that.
37 In a report dated 11 April 2002, Dr Stitt stated:
“She embarked on a program of simple analgesia, anti-inflammatory medication and physiotherapy.” [30]
[30]Exhibit E, PCB 34
38 Dr Stitt referred the plaintiff to orthopaedic surgeon, Mr Owen Williamson, for an opinion on 3 July 2001, whom, he said, noted some synovitis (swelling suggestive of inflammation) in both knees, and thought she should see a rheumatologist. He felt that her T12 crush fracture was stable and should improve with time, but that she should have an active exercise program aimed at strengthening the lower-back muscles that support the spine.[31]
[31]Exhibit E, PCB 34
39 The treatment regime seemed to:
“… work very well and by 8th January 2002 she was able to return to normal duties, although being casual, her hours varied with the demands of the hotel.”[32]
[32]Exhibit E, PCB 35
40 In the same report, Dr Stitt noted the plaintiff had other problems in recent times that have impacted on her inability to work.
“She has had a couple of fainting episodes and was noted to be iron deficient last year which has been corrected and recent tests haven’t shown any underlying problem and they may just be vaso-vagal episodes (simple faints). She has also had other joint pains and swelling, worse in recent weeks, and is currently undergoing tests and is booked in to see a rheumatologist in the next couple of weeks. Certainly she has swelling of both ankles, both knees (right greater than left), both thumbs at the metacarpocarpo-phalangeal (sic) joint, the right third finger and a suspicion of bilateral wrist swelling. She also has some pain in the lower back, lower down than what she experienced with her crush fracture and I suspect unrelated to it. All this is suggestive of an inflammatory arthritis such as rheumatoid arthritis but blood tests so far have not been conclusive.”[33]
[33]Exhibit E, PCB 35
41 In a follow-up report dated 9 September 2014, addressed to the plaintiff’s solicitors, Dr Stitt stated:
“I am not too sure how much her back has bothered her in recent years. There is not a lot of mention of it in her notes as an ongoing problem. She has had several other medical problems and the impression I have is that they have been affecting her health more than her back. These include seronegative arthritis diagnosed in April 2002, a large right lower limb deep vein thrombosis and pulmonary emblolus (sic) in 2002, a right tibial plateau fracture with open reduction and internal fixation on 31/01/2008 and severe osteoarthritis of her left foot diagnosed in 2011. The combined result of all of this is that she is on the disability pension-or certainly was the last time I saw her on 30/12/2011.”[34]
[34]Exhibit E, PCB 37
42 The plaintiff returned to see Dr Stitt in May 2015 and he reported on 29 July 2015 to the plaintiff’s solicitors. He stated:
“I had not seen the patient a lot in recent years until she came in on 20/05/2015-primarily to update me on her condition for this report. There had not been a lot of mention of it in her notes as an ongoing problem.
…
When I saw her in May this year she told me her main current problem was her ongoing low back pain which causes her stiffness and decreased her ability to sit for long periods of time and to do any physically challenging tasks-such as cleaning. She also got some pain medially in the area of the right knee-presumably from her previous fractured tibial plateau-and some ongoing pain from her left foot osteoarthritis but her low back pain is her main ongoing problem.”[35]
[35]Exhibit E, PCB 39
43 Dr Stitt further stated:
“Her pain is in the same area as previously and we did an updated x-ray which showed the same crush fracture of the T12 vertebra with 30 % loss of height without signs of other problems with her spine. I would conclude that her ongoing pain is highly likely to still be related to her injury of 2001. The other possible contributing factor to her pain is seronegative inflammatory arthritis which was diagnosed I believe in the early 2000s-I am not sure of the exact date.
…
You could seek the opinion of a rheumatologist as to the likely contributions of her crush fracture and her seronegative arthritis to her ongoing pain.”[36]
[36]Exhibit E, PCB 39
44 Dr Stitt referred the plaintiff to a rheumatologist, Dr Esther Yenson-Chu, who reported back to him on 22 April 2002.[37] Her history was as follows:
“She said that she has had problems with her joints for three to four years. She initially had swelling and discomfort in her Right Knee. Symptoms have been less severe in her Left Knee. In the past six months she has noticed swelling of the Ankles. This was initially noticeable at the end of the day but is now constant. She also feels numb down that Right Leg with difficulty walking. More recently, she has had Arthralgias of the small joints of her Hands with noticeable swelling of the Right Middle PIP Joint and the bases of both Thumbs.
She had a fall 12 months ago when she fell onto her Coccyx. Follow up X-Rays demonstrated a Compression fracture of T12, which was at the site of her Back Pain. She was off work for six months. She still gets back pain with prolonged sitting.”
[37]Exhibit G, PCB 42
45 Dr Yenson-Chu referred to a number of other co-morbidities. Relevantly, she recorded:
“She complained of a soreness at the base of her Spine but there was no localised tenderness to palpation or percussion. Range of Cervical, Thoracic and Lumbar Spine movements were satisfactory.”[38]
[38]Exhibit G, PCB 42
46 Specifically, Dr Yenson-Chu also found:
“She had mildly decreased power in her Right 1st Toe Dorsi-Flexion. I was unable to elicit either ankle jerks. She had decreased sensation to pin-prick in the Right L to S1 Dermatones.
I note that she did have a markedly elevated ESR of 81 in early April, last year. Her current ESR is 34 and her CRP is 9. Her ANA and Rheumatoid Factor Titres are negative.
The cause of her symptoms and signs are not clear at this stage. She had a number of worrying symptoms. Most certainly she does have inflammatory Arthritis and appears to have a Sensory Neuropathy affecting her Right Leg. I think this is unlikely to be related to her Compression Fracture of T12. She has bowel symptoms which may be an Inflammatory Bowel condition and may need to be investigated further with a Colonoscopy. Her Blackouts are also a concern and may need referral to a Neurologist.”[39]
[39]Exhibit G, PCB 42−43
47 Dr Yenson-Chu reported again to Dr Stitt on 13 October 2004.[40] Her diagnoses were as follows:
·Inflammatory arthritis – controlled.
·Mechanical back and ankle/foot pain.
[40]Exhibit G, PCB 44
48 Further, it was recorded:
“I reviewed [the plaintiff] today. Overall she feels she has improved since her last review at the end of May. Her main complaint is mild thoracic Back pain and pains in her right Ankle/Foot. It does restrict her walking at times.
She does not complain of significant morning stiffness. The swelling of her Knees and Ankles has improved over the last several months.”
49 Significantly, the examination was recorded as follows:
“… there is mild swelling of the PIP’s of the middle Fingers. The Knees are not swollen. The right Ankle is tender but minimally swollen. There is pain with subtalar movement. There is tenderness of the right MTP’s.”[41]
[41]Exhibit G, PCB 44
50 The only reference to her thoracic spine is:
“I have given her exercises for her upper spine.”[42]
[42]Exhibit G, PCB 44
51 It is recorded that the plaintiff was taking a number of medications, none related to her spine.
52 The defendant tendered in evidence a number of reports by Dr Yenson-Chu dated 7 May 2002, 30 May 2002, 26 August 2002, 7 October 2002, 23 October 2002, 4 December 2002, 5 February 2003, 2 April 2003, 10 September 2003 and 27 November 2003.[43] None of these reports refer to any problems with her thoracic or lumbar spine.
[43]Exhibit 5
53 Finally, the plaintiff was referred to Mr Owen Williamson, orthopaedic surgeon, by Dr Coombes, and he reported on 3 July 2001.[44] He took a relevant history and noted, on examination, as follows:
“Examination of the lumbo-sacral spine revealed no obvious deformity. There was a restricted range of forward flexion. There was some mild tenderness to palpation, particularly around the thoraco-lumbar junction but no paravertebral muscle spasm. Straight leg raising was to 90° bilaterally, the sciatic and femoral nerve stretch tests were negative and neurological examination of the lower limbs was normal. Incidentally examination of the knees revealed synovitis bilaterally.”
[44]Exhibit F, PCB 41
54 An x-ray of the lumbar spine dated 25 March 2001 revealed a crush fracture of the T12 vertebral body and degenerative changes at the lumbo-sacral junction. At that stage, Mr Williamson reassured the plaintiff that her fracture was stable and was well on the way to union. He recommended an active exercise program aimed at strengthening the muscles that support the thoracic and lumbar spines.[45] It was Mr Williamson who recommended the referral to a rheumatologist in view of the synovitis in both knees and the marked degenerative changes at the lumbosacral junction.
[45]Exhibit F, PCB 41
55 Defence counsel tendered a follow-up report from Mr Williamson dated 28 August 2011.[46] Mr Williamson recorded that since he had last seen her, the plaintiff’s low-back pain had improved. She described to him some activity related low-back discomfort, but no lower limb pain, weakness or paresthesia or disturbance of bladder or bowel control or sensation. Examination of the lumbosacral spine revealed a full range of motion. The sciatic and femoral stretch tests were negative and neurological examination of the lower limbs was normal. Finally, he stated he encouraged her to gradually return to all of her normal duties, including work-related duties. He had not arranged to review her again, but expressed that he would be happy to do so in the future, should the need arise.[47]
[46]Exhibit 4, DCB 108
[47]Exhibit 4, DCB 108
Medico-legal opinion
56 The plaintiff’s solicitors have had the plaintiff examined by consulting surgeon, Mr Thomas Kossmann, who has reported on 19 September 2013, 28 May 2015, 23 September 2015 and 15 October 2015.[48] On the first occasion, Mr Kossmann noted a relevant history and the treatment undertaken until 2002. His diagnosis was one of:
“Pain thoracolumbar spine on the basis of a T12 fracture … [which] has been caused by her employment on 26 March 2001.”[49]
[48]Exhibit D, PCB 18−33
[49]Exhibit D, PCB 20
57 Further, Mr Kossmann was of the opinion the plaintiff had a work capacity, but she would be unable to work in strenuous physical work. Further, she may develop osteoarthritic changes in her spine, in particular the facet joints above and below the fracture site.[50] However, he considered that the work injury had substantially stabilised and there was no need for any further treatment for the time being.[51] He recorded her present complaints as follows:
“The plaintiff complains of pain in her thoracic spine and wakes at night with pain. She is able to walk.”[52]
[50]PCB 21
[51]PCB 20
[52]PCB 19
58 As to additional consequences, Mr Kossmann states:
“Lifestyle evaluation:
[The plaintiff] told me that the injuries to the thoracolumbar junction has had an impact on her social, domestic and recreational activities. She lives in a house and does not undertake any gardening. She also does not undertake any recreational or sporting activities.”
59 On the second occasion he examined her, Mr Kossmann recorded the plaintiff’s present complaints identically as to the first occasion, except that he added:
“[The plaintiff] continues to have trouble sitting for long periods or standing for long periods due to constant back pain.”[53]
[53]PCB 26
60 The lifestyle evaluation was described in identical terms to those in the first report.
61 In his third report dated 23 September 2015, there had been no further examinations, but Mr Kossmann was asked to comment on a report from defence surgeon, Mr Rodney Simms, dated 19 August 2015. In essence, his comment was that the T12 fracture was probably the cause of symptoms experienced in her spine and still related to the accident.
62 In his final report dated 5 October 2015, Mr Kossmann opined that it was 95 per cent certain that the plaintiff would develop osteoarthritic changes in her spine based on the finding that her T12 body is 40 per cent wedged. Such changes may lead to stenosis, which may be the source of further pain or even neurological symptoms for which she may have to undergo further conservative or operative treatment thereafter.[54]
[54]PCB 32
63 For completeness, the defendant has had the plaintiff examined by Mr Michael Troy, who reported on 3 May 2010[55] and Mr Rodney Simm, who reported on 19 August 2015.[56] Mr Troy confirmed the diagnosis of a crush fracture of the anterior margin of the T12 thoracic vertebra. He recorded her present complaints as follows:
“The back is painful from the area of T10 to L5. She can sit in a chair for an hour or on the train today after 45 minutes, it was painful. Standing, she has to get up and down. Walking she does every second day for about 45 minutes at a time. Coughing or sneezing does not worry her. Bending she can do. She is worse getting out of bed in the morning.”[57]
[55]Exhibit 1
[56]Exhibit 2
[57]DCB 14
64 As to present activities, he recorded:
“She is at home. She does not drive. She came into the city today by train. She can shop. She can do some of her own housework. Occasionally she gardens. She plays no sport.”[58]
[58]DCB 14
65 Examination of the thoracolumbar spine appeared to be essentially normal.[59]
[59]DCB 15
66 Mr Simm also arrived at a diagnosis of ─
“… moderate wedge compression fracture of the T12 vertebral body with approximately 30% loss of anterior vertebral body height.”[60]
[60]DCB 36
67 Mr Simm considered that the plaintiff would report ongoing chronic thoracic spine symptoms which would not improve. He did not consider she needed formal treatment and that her current self-management was all that was required.[61] Although he had some doubts as to whether the symptoms complained of were related to the compression fracture at T12, it appears to me he is on his own in this regard and I would consider that overall, the symptoms complained about at his consultation were related to the T12 wedge fracture.
[61]DCB 36
68 As to her ongoing treatment, Mr Simm noted the plaintiff took Panadol “one to two days per month and uses a hot pack on her back”.[62] He noted that her symptoms of back pain were experienced “essentially every day, from the time of the fall at work up until the present time. The pain is almost constant.”[63] On examination, he noted that she had limited movement of the spine and was not able to bend over to reach the floor or reach her feet. The plaintiff has a pick-up stick to pick up objects off the floor and her pain increases when standing for only five to ten minutes. She had to change her posture frequently. She had increased pain sitting for one hour and walking for one hour. She walked occasionally on the beach, but was not walking regularly for exercise.
[62]DCB 33
[63]DCB 33
69 Pain levels were described as usually four to five out of ten and would rise to seven out of ten on a few occasions each week.[64] On the other hand, she gave a history of using the community bus to go to the local shops and was independent with personal activities of daily living and was responsible for her own shopping, cooking and cleaning. It was noted that a member of the family may help with some of the heavier cleaning and with chores such as mowing the lawn.
[64]DCB 34
70 The plaintiff was said to have an interest in photography.[65] Otherwise, physical examination revealed pain from osteoarthritis of the left foot and knee pain. However, forward flexion of the thoracic spine resulted in a complaint of quite severe thoracic back pain.[66] Mr Simm considered that the vertebral fracture had the potential to cause ongoing chronic lumbosacral back pain. However, he noted:
“… these fractures usually have a reasonable prognosis for return to at least moderate levels of activity and in some cases full activity.”[67]
[65]DCB 34
[66]DCB 35
[67]DCB 36
Pain and suffering consequences – principles
71 Maxwell P set out a template for evaluating the pain and suffering consequences of an injury such as that suffered by the plaintiff in Haden Engineering Pty Ltd v McKinnon.[68] At paragraph 9 therein and following, his Honour stated:
[68](2010) 31 VR 1
“9.In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
The experience of pain
10.As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
11.The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
12.As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
13.As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.
The disabling effect of pain
14.As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.
15.As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’
16.Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
· sleep;
· mobility;
· cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
· capacity for self-care and self-management;
· performance of household and family duties;
· recreational activities;
· social activities;
· sexual life; and
· enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.
17.When judging the pain and suffering consequences for the plaintiff by comparison with other cases, it is relevant to look at the plaintiff’s life expectancy in order to determine the likely period for which those consequences will be experienced.”
Analysis
72 The plaintiff injured her lumbar spine in a work-related accident on 26 March 2001 and probably suffered a T12 fracture which progressed to anterior wedging and a reduction in height of about 40 per cent.
73 The plaintiff was able to return to her pre-injury duties by approximately January 2002 and ceased work later that year due to unrelated medical conditions.
74 The plaintiff has suffered, unfortunately, from a number of pre-existing and post-injury medical conditions unrelated to the workplace injury, which have been documented above.
75 The plaintiff has had little or no ongoing conservative treatment between 2002 and 2015 with respect to the work-related injury. In particular, she has not required prescriptions for pain relief or sleeping tablets with respect to same. In my view, this qualifies her evidence somewhat, that the injury interferes with her sleep virtually every night. Although she swears that “I often feel sleep-deprived”,[69] she does not attest as to how often she feels sleep-deprived or why it is that she does not seek medication to assist in that regard when she has obtained medication for her other comorbid conditions.
[69]Exhibit A, PCB 12
76 Further, although she attests that her back is painful all the time, she states that she uses a heat-pack “around 4 or 5 times a week, I estimate”,[70] but otherwise does not state the duration of each application or whether she is, nonetheless, able to continue to engage in her activities.
[70]Exhibit A, PCB 14
77 In essence, the only up-to-date medical material is from medico-legal practitioners: Mr Kossmann, on behalf of the plaintiff, and Mr Simm on behalf of the defendant. At examination on 28 May 2015, Mr Kossmann records the plaintiff’s present complaints as:
“… pain in her thoracic spine and wakes as night with pain. She is able to walk. [The plaintiff] continued to have trouble sitting for long periods or standing for long periods due to constant back pain.”[71]
[71]Exhibit D, PCB 26
78 Further in his report, Mr Kossmann records that the thoracolumbar fracture “has had an impact on her social, domestic and recreational activities”.[72] Apart from those complaints, Mr Kossmann records that the plaintiff does not need any further treatment for the time being, and that although there was a small to moderate chance that she would suffer degenerative changes in the adjacent facet joints of her thoracic and lumbar spine, he considered that the probability that she may need to undergo surgical intervention was remote.[73]
[72]Exhibit D, PCB 28
[73]Exhibit D, PCB 29
79 Mr Rodney Simm saw the plaintiff on behalf of the defendant on 19 August 2015.[74] Although he takes a history of constant back pain, essentially every day from the time of the fall, he notes that there has been no formal treatment for many years and the plaintiff takes Panadol “one to two days per month and uses a hot pack on her back”.[75] Further, he took a history that the plaintiff was not able to bend over to reach the floor or reach her feet and that she had to sit and bend her knees up to deal with her footwear. He also recorded her use of a pick-up stick to pick up objects from the floor and that she suffered increased pain when sitting for one hour or walking for one hour. Her pain levels were stated to be 4 to 5 out of 10 , but can rise to 7 out of 10 “on a few occasions each week”.[76] Otherwise, he notes the treating general practitioner, Dr Stitt, stating that other medical problems had been affecting her health more than her back and, further:
“… Her three children are adults and live independently. She uses the community bus to go to the local shops. She is independent with the personal activities of daily living and she is responsible for her own shopping, cooking and cleaning. A member of the family may help with some of the heavier cleaning and with chores such as mowing the lawn. She has an interest in photography.”[77]
[74]Exhibit 2
[75]Exhibit 2, DCB 33
[76]Exhibit 2, DCB 34
[77]Exhibit 2, DCB 34
Findings
80 The plaintiff faces, in the foreseeable future, a continuation of painful symptoms and consequences as attested to by her.
81 In reaching the conclusion whether a plaintiff has established that she has suffered serious injury, the Court is required to take account of whether “the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained”.[78] In this regard, I am mindful of the retained capacities referred to by Mr Simm above.
[78]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260 at paragraph [27]
82 Further, I take into account the observation of Chernov JA, in Sumbul v Melbourne All Toya Wreckers Pty Ltd,[79] where his Honour stated that where a plaintiff is physically able to return to alternative employment, then, unless there was some other evidence that showed that she experienced significant pain, or that she otherwise suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are “at least very considerable”.
[79][2006] VSCA 292
83 Nonetheless, I accept the qualification of this dicta referred to in the Court of Appeal decision of Stijepic v One Force Group Aust Pty Ltd & Anor[80] to the extent that such a finding is not determinative against a plaintiff on the issue of pain and suffering consequences, rather a factor which must be taken into account when assessing the evidence as a whole.
[80][2009] VSCA 181 at paragraphs [46] and [47]
84 Finally, in making a value judgement, I acknowledge there are matters of fact and degree, and impression which are operative. At the end of the day, I consider the fact that the plaintiff’s pain appears to be controlled by infrequent recourse to non-prescription medication and that whilst the evidence referred to discloses pain and suffering consequences which are both marked and significant, I am unable to be persuaded that these consequences can be fairly described as being more than significant or marked, or as being at least very considerable.[81]
[81]Section 134AB(38)(c) of the Act
85 The application will be dismissed and I will hear the parties as to further orders.
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