Tew, Katrina Joy v Ambercoat Pty Ltd and QBE Workers
[2009] VCC 854
•22 June 2009
Recreational activities Condition has stabilised and she is permanently limited in the performance of work involving bending and lifting
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-01097
| KATRINA JOY TEW | Plaintiff |
| v | |
| AMBERCOAT PTY LTD | First Named Defendant |
| QBE Workers’ Compensation (Vic) Limited | Second Named Defendant |
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| JUDGE: | JENKINS |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 25 & 26 May 2009 |
| DATE OF JUDGMENT: | 22 June 2009 |
| CASE MAY BE CITED AS: | Tew, Katrina Joy v Ambercoat Pty Ltd & QBE Workers Compensation (Vic) Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0854 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985, s.134AB; Serious injury: permanent serious impairment or loss of a body function; Claim for Pain & Suffering only; aggravation of pre existing lumbar spine degeneration; applicant working part time; Credit issues. Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D.G. Brookes SC with | Stringer Clark |
| Mr N.R. Bird | ||
| For the Defendant | Mr P.A. Scanlon QC with | Lander and Rogers |
| Mr P.B. Jens |
TABLE OF CONTENTS
Nature of Application ..........................................................................................................2
Significant Issues for Determination .................................................................................2
Relevant Statutory Provisions............................................................................................3
Evidence...............................................................................................................................4
Plaintiff Affidavits ..............................................................................................................5
Personal Background, Education and Employment ....................................................5
Workplace Incident .....................................................................................................5
Investigations and Treatment......................................................................................6Consequences of the Workplace Incident...................................................................6
Oral Evidence...................................................................................................................8
Investigations ....................................................................................................................12
Evidence of Treating Doctors...........................................................................................13
Medico-Legal Opinions requested by the Plaintiff..........................................................14
Medico-Legal Opinions requested by the Defendant .....................................................18
Video Surveillance.............................................................................................................20
Submissions of Defendant’s Counsel .............................................................................21
Submissions of Plaintiff’s Counsel..................................................................................22
Analysis of the Evidence and Findings ...........................................................................23
Findings..........................................................................................................................25
Summary ............................................................................................................................30
Conclusion .........................................................................................................................32
Orders.................................................................................................................................33
HER HONOUR:
Nature of Application
1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”) made by Originating Motion pursuant to section 134AB(4) on 25 March 2008 by the Plaintiff, in respect of injuries which she alleges occurred in the course of her employment with the Defendant on 10 July 2003.
2 The Plaintiff seeks a declaration that she suffered a serious injury as defined within section 134AB(37)(a), by reason of an injury to her lumbo sacral spine, specifically a disc bulge at L5/S1 indenting the thecal sac and consequent radiculopathy and sciatica. Leave is sought in relation to damages for pain and suffering only.
Significant Issues for Determination
3 The Defendant concedes that the Plaintiff suffered a compensable injury. However, they deny that the Plaintiff has suffered a serious injury as defined. In particular, the Defendant claims that any consequences suffered by the Plaintiff as a result of her physical injury do not qualify as a serious injury.
4 Clearly the Plaintiff carries the onus of establishing that she suffered serious injury, namely a permanent serious impairment or loss of function of the lumbo sacral spine.
5 I will now deal with this application as follows:
a) I will briefly deal with relevant statutory provisions;
b)
I will briefly summarize relevant evidence from the Plaintiff’s affidavits and oral evidence which attest to the occurrence, nature and extent of her injury and the effect upon her;
c)
I will refer to relevant medical opinions which characterise such injury and clinical findings made at various times subsequent to the workplace incident; and
d)
I will then give my factual findings and reasons as to the nature of the injury suffered and the consequences for the Plaintiff.
6 The Plaintiff bears the overall burden of proof.
Relevant Statutory Provisions
7 This application falls to be determined in accordance with Section 134AB of the Act. Sub-section 134AB(2) prescribes the conditions which must be satisfied before a compensable injury may give rise to an entitlement to recover damages:
(2) A worker may recover damages in respect of an injury arising
out of, or in the course of, or due to the nature of, employment
if employment of that nature was a significant contributing
factor, and the injury is a serious injury and arose on or after 20October 1999.”[1][1] By Act No. 95/2003 s.3(8) the words “employment of that nature was a significant contributing factor, and” were omitted from sub-section 134AB(2) as from 3 December 2003, but that was after the injury relied upon by the Plaintiff in this case.
8 For the purpose of the current application “injury” means any physical injury and includes:
[2] Reprint 12 (page 13).
(c) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration.”[2] 9 For the purpose of the current application “serious injury” means:
[3] Section 134AB (37)
(a) permanent serious impairment or loss of a body function[3] 10 Section 134AB (38)(b), so far as it is relevant to the present case, sets out what must be shown in order to establish that impairment or loss of a body function [under paragraph (a) of the definition] is “serious”. It does this by
reference only to the consequences to a worker.
(38) For the purposes of the assessment of “serious injury” in accordance
with the sub-sections (16) and (19)-(b) the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any… impairment or loss of a body function… with respect to- (i) pain and suffering; …
when judged by comparison with other cases in the range of
possible… … impairments or losses of a body function ….
11 Section 134AB (38)(c) provides, so far as it is relevant to this case, as follows:
(c) an impairment or loss of a body function … shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence … is, when judged by comparison with other cases in the range of possible impairments or losses of a body function,… fairly described as being more than significant or marked, and as being at least very considerable; 12 The Court of Appeal has emphasized the necessity for a Court to analyse the evidence in terms of the statutory requirements.[4] The appropriate approach to determine serious injury has been reduced to the following questions: first, what is the injury or injuries and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, i.e., likely to persist for the foreseeable future; and thirdly, are the consequences for the Plaintiff such as to satisfy the more than significant or marked and as being at least very considerable” test.[5]
Evidence
[4] @ paragraph 71
[5] Barwon Spinners @ paragraph 33
13 In support of the Application, the Plaintiff relied upon:
(a)
Exhibits identified and contained in the Plaintiff’s Court Book comprising medical reports, affidavits and other documents; and
(b) Oral evidence given to the Court by the Plaintiff. 14 Opposing the Application, the Defendant relied upon Exhibits identified and contained in the Defendant’s Court Book comprising medical reports, affidavits and other documents; tendered clinical notes of the Hamilton Medical Group.; and video surveillance.
Plaintiff Affidavits[6]
Personal Background, Education and Employment
[6] 27 November 2007 and 19 May 2009
15 The Plaintiff was born on 15 January 1971 and is now 38 years old. She is married with two children now aged about 12 and 17 years. The Plaintiff relied upon two affidavits[7] and oral evidence.
[7] dated 27 November 2007 and 19 May 2009
16 The Plaintiff was born in Hamilton and completed year 10. After leaving school she worked at a takeaway shop for about four years and then ceased work to have children. In about 2000 she commenced employment at Hamilton Sheep Services as a receptionist/tester for about 12 months. She then cleaned motel rooms for a number of months.
17 She commenced employment as a nurse attendant/cleaner with the Defendant in June 2002. The work involved collecting patients from the wards at the Hamilton Base Hospital and taking them to the Radiology Department for x-rays and then returning them to the wards. She also did some cleaning duties
Workplace Incident
18 On 10 July 2003 she was required to push a bed containing a bedridden patient. There was a carpeted ramp in the corridor and it took a great effort for her to push the bed up the slope, even with the assistance of others. She had previously complained about the difficulty which she experienced in pushing beds and wheel chairs up and down the ramp but no action had been taken. As she was pushing the bed on this occasion she felt quite severe back pain.
19 Once the patient had been delivered to the Radiology Department she told the head of the Department about the incident. She continued working but did not perform any heavy pushing or cleaning.
20 She attended work the next day but was having a lot of back pain. The head of the Department told her to perform only those duties which she could manage. The pain worsened the next day and she also had referred pain into her right buttock, thigh and knee.
21 The Plaintiff attended her general practitioner and was given time off work and prescribed anti-inflammatory and painkilling medication. Soon after she was referred to a physiotherapist. She remained off work until about August 2003 when she returned to modified duties, three days per week. She managed this for about two weeks but when her back pain increased she had to stop work again. She has not returned to her pre injury employment.
Investigations and Treatment
22 She was referred for a CT scan in October 2003. She continued to have back pain with referred pain and pins and needles.
23 In April 2004 she was referred to Mr Kierce Orthopaedic Surgeon and underwent manipulation of the lumbar spine under general anaesthetic on 22 October 2004. This did not relieve her back pain and she had a caudal epidural injection on 16 November 2004 and again in 2005 which also did not reduce the pain.
Consequences of the Workplace Incident
24 Her current treatment consists of strong painkilling medication: Tramal 200mg twice per day, Lexapro, an antidepressant and Mersyndol, up to 12 tablets daily. She takes Panadeine Forte from time to time but it gives her side effects and makes her feel nauseous. She sometimes wears her husband's back brace.
25 She currently experiences constant low back pain of varying intensity. The pain is worse with activities such as prolonged standing, sitting and bending. She tries to perform only light household duties. She will perform most household work but at her own pace and with regular and lengthy breaks. At its worst the pain is severe and the right leg pain radiates into the sole of her right foot. Her ability to walk for lengthy distances is reduced.
26 Prior to the workplace injury she was working 50 hours per fortnight. Following the injury this was reduced to 30 hours and then 20 hours per fortnight but she was unable to cope and eventually had to cease.
27 Her pre-injury earnings were $727 gross per fortnight.
28 She enjoys her work and is frustrated and saddened that she could not continue her employment
29 In July 2007 she commenced employment in a milk bar in Hamilton serving customers and doing a small amount of stacking shelves and fridges. She worked for 10 weeks commencing on 20 hours per week - four hours five days per week. She began experiencing increasing back pain and reduced her hours to 12 per week working four hours on Monday Wednesday and Friday. However the back pain continued to be more severe than usual so she ceased work altogether. The back pain then reduced to a more manageable level.
30 The Plaintiff resumed her work at the milk bar in March 2008, initially 12 hours per week and this was increased to 20 hours per week in November 2008. Since another staff member left recently she has been working longer hours on occasions which often requires her to start early in the morning. She does not intend to continue to work extended hours because her back pain is much worse as a result.
31 As a result of the workplace injury she is unable to perform a wide range of activities. She is restricted in her ability to bend and lift and cannot stand or sit for prolonged periods. She is also restricted in her ability to play and interact with her children.
32 Previously she enjoyed fishing at Port Fairy and camping that these activities are now more difficult. She has difficulty riding a bike and performing her house work and shopping. She used to enjoy gardening but is now limited in this activity. It is difficult for her to drive lengthy distances. She has difficulty sleeping because of the pain. Her sexual relationship with her husband has been adversely affected. She is often short tempered with her family due to the pain.
Oral Evidence
33 In her oral evidence the Plaintiff confirmed the contents of her affidavits. Under cross examination, the Plaintiff:
a)
Confirmed that her pre injury earnings were $363 gross per week and her current earnings are $423 gross per week;
b)
generally works 20 hours per week on weekdays 9 am to 1 pm but on occasions she will open the shop as early as 5 am and will generally work till 1 pm or up to 8 hours;
c)
is still capable of walking around the Hamilton Lake, although has not done so for sometime;
d)
confirmed that her husband worked as a tree surgeon in his father's business and has previously performed garden maintenance;
e)
during the period October 2003 to March 2008 she performed certain activities in the business such as taking telephone enquiries, doing quotes, arranging appointments, writing out accounts and attending on site with her husband, where she would assist in lifting branches for placement in a wood chipper. She has occasionally done banking for the business and received money from clients. She has also assisted her husband in performing garden maintenance by watering gardens;
f)
is the team manager for her daughter's basketball team while her husband is the coach; attends all matches and 90% of training; will occasionally assist with the coaching; and has participated in games between parents and children;
g)
has gone fishing since the accident and could continue to go fishing but it is not as comfortable. She admitted that her husband is the one who loves fishing and she uses any excuse to get out of it;
h)
admitted that between September 1996 and March 2002 she had taken Panadeine Forte regularly for migraine tablets which had side effects and made her nauseous, so she ceased. She now takes Mersyndol for her migraines as well as for her back pain;
i)
admitted that in August 2001 she attended her doctor complaining of loss of libido for 4 years, poor appetite and disturbed sleep and was prescribed antidepressant;
j)
prior to her accident she rode a bike a little bit…but could not remember when she had last ridden before the accident; she admitted she had not totally given up bike riding but was now more limited;
k)
agreed that her milk bar work was very light and she was capable of working additional hours but her back still hurts; and
l) admitted that she does bend and squat sometimes; 34 I note that the tendered medical records from the Hamilton Medical Group indicate that between 12 July 2003 until December 2003 the Plaintiff attended the Medical Group about 12 times. During 2004 and 2005, she attended approximately monthly and seven attendances in 2006. Thereafter it is unclear whether the Plaintiff was in fact examined on the entry dates or whether they mostly record prescriptions. Excluding medication related to asthma, respiratory and gastric upsets and antibiotics, the following relevant medications and notes are recorded:
• 5 October 2003 -Dr. Leesa Walker Examination: Unable to fully extend lumbar spine. Flexion to 30 degrees, 10 degrees of lateral flexion. Spasm +++ all of lower spine. Actions: Prescriptions printed: VALIUM TABLET 5mg 1-2 t.i.d. p.r.n. Awoke this AM with low back pain. Nil history of recent injury. Back injury from work was improving. Recent pneumonia. Impression - exacerbation of previous injury Management: Valium for muscle spasm. 1 week of work. Physio. review end of week
• in October 2003 - Tramadol;
• in November and December 2003 - Panadeine Forte;
• in March 2004 – Endep and Panadeine Forte for pain;
• in May, July, October & December 2004 – Endep for pain;
• in December 2004 - Panadeine Forte;
• 8 February 2005 – Tramal and Panadol;
Dr. A M Johnson made the following entry:
had epidural friday, some imp today. not sleeping, not coping at home.
cannot get comfortable at night. mersyndol not effective, try tramal
100mg bd, reg panadol 1g qid, and endep-3 at night review in one
week• 15 February 2005 – Tramal;
• 30 March 2005 – Endep & Tramal;
Dr. A M Johnson made the following entry:
wc: pain continues, ADL difficult without exacerbation, tired ? effect of
endep plan reduce endep , increase tramal. review 1/52 ? change
endep to other ?? SSRIt not fit protem cert to 28.04.05
• in April, May, June, July, October, December 2005 – Tramal;
• in April, October, December 2005 – Lexapro;
• in December 2005 Mersyndol Forte;
• in March 2006 – Lexapro & Tramal
• in May 2006– Lexapro;
• in July 2006 – Naprosyn…Reason for visit: Pain;
• in October, December 2006; & February 2007 – Lexapro;
• in December 2006, & April 2007 – Tramal;
• in July, September & November 2007 – Lexapro;
• in September 2007 –Tramal;
• in January 2008- Lexapro & Tramal
• 7 April 2008 – Dr McAllan records Back pain
• in May 2008 – Lexapro; and
• in December 2008 – Tramal
Investigations
35 On 24 October 2003 a CT Scan of the Lumbosacral Spine [8] was reported as follows:
The L5-S1 disc shows mild to moderate loss of height, with a mild central disc bulge minimally indenting the thecal sac. The other disc appear normal The spinal canal and neural foramina are adequate. The facet joints are normal. No pars defects.
Conclusion: Mild L5-S1 central disc bulge which slightly indents the thecal sac.
[8] PCB 38
36 In reviewing this CT Scan
• Mr Brownbill noted that it …showed a possible central L5-S1 disc bulge but the angle of the scans does not allow an accurate conclusion…[9];
[9] PCB 41
• Mr Brearley noted that it…. shows a mild central bulging of the L5/S1 disc space slightly indenting the thecal sac..[10];
[10] PCB 47
• Mr O’Brien noted that it … demonstrated some disc space bulging at the L5/S1 level.[11]
• Mr Shannon noted that it … shows some minor central bulging at L5/S1 and a mild right sided foraminal bulge at L4-5.[12]
[11] PCB 54
[12] DCB 26
37 On 27 April 2004 an X Ray of the Lumbar Spine[13] was reported as follows:
There is very slight rotational scoliosis of the upper lumbar spine convex to the right. The disc space height is well preserved with no degenerative disc disease identified. No facet joint osteoarthritis is noted. No pars defect are identified and the sacroiliac joints appear normal.
[13] PCB 39
38 In reviewing this X Ray:
• Mr Henderson also observed that …there was some disc narrowing at the L5-S1 level…[14];
[14] DCB 37
• Mr Brearley described… slight narrowing of the lumbosacral disk space…[15]; • Mr O’Brien noted that it… demonstrated minimal degenerative change and [15] PCB 47
the presence of a very mild scoliosis[16]
• Mr Shannon noted that it …demonstrates narrowing of the lumbosacral disc space[17]
Evidence of Treating Doctors
[16] PCB 54
[17] DCB 46
39 Dr Mark Johnson General Practitioner provided eight reports[18] which document the Plaintiff’s attendance at the practice of the Hamilton Medical Group. Following the workplace incident on 10 July 2003 the Plaintiff first consulted Dr McAllan on 12 July 2003 who prescribed rest. She commenced physiotherapy, which provided some improvement and returned to work in September 2003 but had to cease again a few weeks later. After a flareup in her back Dr McAllan ordered a CT scan which was performed on 24 October 2003.
[18] 14 May 2004; 15 June 2004; 4 February 2005; 24 March 2005; 26 April 2005; 28 July 2005; 13 February 2006; 29 September 2008
40 Dr Johnson first saw the Plaintiff on 9 March 2004 when she was unable to perform her normal household duties and had no capacity to perform her previous employment. She continued to have chronic severe low back pain and Dr Johnson considered that she was unable to perform any lifting, or occupation that required that sort of work. Between July and October 2005, when Doctor Johnson last saw her, there was no significant improvement, and she continued to be unfit for any duties. During that period she also continued to take Tramal and Mersyndol and suffered a variable degree of depression for which she had been prescribed an antidepressant.
41 Dr Andrew McAllan General Practitioner reported on 23 February 2009 that the Plaintiff’s symptoms had always consisted of midline lower back pain with radiation to the left buttock and down her right leg. There was a variable amount of paraesthesia in her right foot and prolonged standing, sitting and bending tended to aggravate her back pain. Dr McAllan confirmed that the Plaintiff will never be able to return to her pre-injury employment.
42 It is not apparent from Dr McAllen’s report as to the last time he examined the Plaintiff. Dr McAllen makes no reference to the Plaintiff’s current employment or any other activities relating to her husband's business.
43 Mr Paul Kierce Orthopaedic Surgeon first examined the Plaintiff on referral by Dr Johnson on 27 April 2004. He concluded that the Plaintiff had aggravated a pre-existing lumbosacral disc lesion that had caused posterior bulging of the lumbosacral disc. The Plaintiff would always be permanently limited with regards to her lumbar spine because of the disc degeneration.
44 Mr Kierce performed an unsuccessful manipulation under anaesthetic and subsequently administered two epidural injections which also failed to provide any lasting relief. This appears to be the last occasion when the Plaintiff attended Mr Kierce.
Medico-Legal Opinions requested by the Plaintiff
45 Mr David Brownbill Neurosurgeon examined the Plaintiff on 20 January 2006 at which time she was taking Tramal, Mersyndol and Lexapro but not receiving any other physical therapy. She had ceased work at this stage and was looking after her children and performing limited house work only. She reported that her low back pain was present all the time, fluctuates in severity and is worse with increased physical activity, lifting bending or prolonged standing or sitting. There were no pins and needles, weakness or numbness but an occasional ache in the right ankle.
46 On examination Mr Brownbill noted …She was alert and cooperative without embellishment. She demonstrated non-uniform restrictions of the thoraco lumbar spinal movements with no objective neurological abnormality.
47 Radiological investigations suggest lumbo sacral intervertebral disc derangement with protrusion. Mr Brownbill concluded that the Plaintiff probably had long standing asymptomatic degenerative changes of the lumbo sacral spine which were aggravated by the workplace incident.
Clinical experience shows that once spinal degenerative changes are rendered symptomatic, pain may continue in a fluctuating manner indefinitely even when the precipitating factors are removed. She should in the future avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting… this lady is not able to undertake manual labour…[19]
[19] PCB 42
48 Two Orthopaedic Surgeons, Mr Kenneth Brearley and Mr John O’Brien both examined the Plaintiff on 8 February 2006 and again on 22 April 2009.
49 At her first attendance with Mr Brearley the Plaintiff reported constant variable discomfort in her low back worsened by activity and occasional right leg pain. She had difficulty with the heavier aspects of her house work, was unable to do her gardening properly and was unable to go bike riding, camping or for long walks. Mr Brearley diagnosed:
Chronic low back pain as a result of damage to and disruption of the lumbosacral disc with resultant low back pain and some referred pain in the right leg presumably as a result of L5 radiculopathy resultant from foraminal
exit stenosis.[20] Dr Brearley noted to the effect that this could not be
confirmed on MRI owing to the Plaintiff’s claustrophobia.[20] PCB 47
50 Mr Brearley confirmed that the Plaintiff was not fit to undertake her pre injury employment. Furthermore…
She is not fit to do any significant physical work at all. She could not do any cleaning or other labouring work. She could not do any work which involves long standing, repeated bending and stooping, lifting beyond 10 kg and repeated lifting. She is unable to squat. She cannot walk long distances… she is disabled by her back to such an extent that she is extremely unlikely to ever again engage in gainful employment for which she is reasonably qualified by education, training or experience… she will require ongoing treatment… medication such a she is currently having. She may require physiotherapy from time to time… there is no likelihood of her being able to resume any of her recreational activities. She did not play any sport but was active in other regards with bike riding, long walking, camping and gardening.[21]
[21] PCB 47-48
51 When Mr Brearley re examined the Plaintiff she reported that she was working 20 hours per week in a milk bar and that there had been some slight improvement in her condition. She further reported very frequent discomfort or pain in the lower back which occurs after any significant physical work or prolonged bending, stooping, standing or walking. She has occasional right leg pain. Her treatment comprised Tramadol SR twice per day and Mersyndol Forte at times. She also continues to take Lexapro and asthma medication. Mr Brearley noted that the Plaintiff is currently managing her job well and could increase her hours. However, she is permanently limited to lighter type work because of the back injury and provided she works within restrictions such as avoiding long-standing, much bending and stooping, repeated lifting or lifting weights above 10 kg.
52 At her first attendance with Mr O’Brien the Plaintiff reported constant low back pain that fluctuates in severity from day to day and aggravated by activity. She also suffered disturbed sleep.
53 Upon examination the Plaintiff demonstrated signs which he considered were associated with discogenic pathology. However there was no evidence to suggest nerve root compromise and no evidence of neurological deficit in the lower limits.[22] Accordingly, given the radiological changes, it appeared that the problem emanated from the L5/S1 level. Mr O'Brien noted that the Plaintiff struggles with all forms of physical activity and at that stage appeared unlikely to return to the workforce.
[22] PCB 58
54 When Mr O’Brien re examined the Plaintiff she reported no real change in the severity or distribution of the pain since last examined three years ago. She currently experienced constant pain in her low back radiating into the right buttock aggravated by prolonged sitting and standing and increased physical activity. She is also awakened by pain and stiffness. She also told Mr O’Brien that she currently takes Tramadol 200mg twice daily and 8 Mersyndol tablets per day to control the pain. She performs activities of daily living, including most domestic duties, which aggravate her pain.
55 On examination Mr O'Brien confirmed that there were still no signs to suggest nerve root compromise or neurological deficit in the lower limbs. However physical signs demonstrate very definite restriction of lumbar movement with pain in particular aggravated by lumbar extension. Mr O'Brien considered that the Plaintiff would require ongoing pain management and is likely to continue to experience chronic back and leg pain. She has demonstrated her capability to undertake light duties on a limited hour basis.
Medico-Legal Opinions requested by the Defendant
56 Dr David Ho Occupational Health Consultant first examined the Plaintiff on 17 October 2003 when she presented with a constant dull pain in her lower back which is painful with bending and an ache in her right leg extending to the ankle. She had no pins and needles or numbness in her right leg but had restriction of back movement. There were no neurological signs in her lower limbs.[23] Doctor Ho diagnosed a soft tissue or facet joint strain in her lower back with a likely intervertebral disc lesion.
[23] DCB 18
57 Dr Ho re-examined the Plaintiff on 18 February 2005 when she described her back condition in similar terms. Clinical examination revealed persisting restriction of movements in her lower back up to a better range than the previous examination. The Plaintiff remained unfit for her pre-injury employment.
58 Mr John Henderson Orthopaedic Surgeon examined the Plaintiff on 28 June 2005 when she complained of constant low back pain and pain in her right leg all the way down to the ankle. She was then taking Tramadol but no other physical therapies.
59 Mr Henderson concluded, after examination of the Plaintiff, that there were no objective signs of radiculopathy as she did not have any loss of relevant reflexes, in either lower limb, nor any measured unilateral atrophy above or below the knee.[24]
[24] DCB 39
60 Mr Henderson concluded that the Plaintiff:
… suffered [a] fairly classical acute low back strain injury at work ... as a result of which she now has a chronic low back strain injury condition with associated somatic referred pain in her right lower limb…[ which] … has now completely stabilised…[25]
[25] DCB 38
61 Mr Michael Shannon Surgeon examined the Plaintiff on 20 August 2004 and diagnosed a lumbar disc lesion superimposed on pre-existing lumbar disc
degeneration. She does not have a major disc prolapse nor evidence of radiculopathy. She is not fit for her normal occupation or other work involving significant bending or lifting[26]
[26] DCB 26-27
62 Mr Shannon re-examined the Plaintiff on 21 July 2008 when she complained of ongoing pain present for the majority of every day predominantly in the low back but sometimes radiating to the buttock. Symptoms are worse with prolonged sitting. At that stage she was working 12 hours per week at the milk bar and seemed to be coping. She could walk up to half an hour at a time without any problem. Mr Shannon said that her condition had changed little since his previous examination.
She has ongoing symptoms and signs consistent with lumbar disc degeneration but she does not have significant symptoms nor signs of radiculopathy. Her condition has stabilised, she is permanently limited in the performance of work involving bending and lifting, including her previous occupation…[27]
[27] DCB 30
63 In a subsequent report[28] Mr Shannon confirmed that the Plaintiff could increase her working hours to 25 per week provided she could vary her posture and there were restrictions on bending and lifting.
[28] DCB 32
64 Dr Don Senadipathy Consultant Psychiatrist examined the Plaintiff on 21 May 2004. The history taken of the Plaintiff's physical symptoms and limitations are consistent with those reported to other reporting doctors. In addition the report records that the Plaintiff:
• does not have any hobbies; •
used to enjoy a walk with a friend about three days a week for about 4 km around the lake at a slow pace; and
• does not get any home help, other than her children, husband and mother. Video Surveillance
65 Covert video surveillance was shown of the Plaintiff on the following dates: 18 and 22 August 2008; 10 and 11 February 2009; 17 and 20 April 2009; and Channel 9 TDT Program dated 19 February 2009.
66 In the Channel 9 footage the Plaintiff is shown in a confident and even feisty manner and otherwise displays apparently unrestricted movement. In particular she is shown to actively handle the water tank hose, climb onto the water tank to presumably check its water level and bend and extend her back. In cross examination the Plaintiff conceded that the film showed her to have very good movement. She also admitted that she would water gardens from the water tank.
67 In the covert surveillance taken in August 2008 the Plaintiff is shown to be walking and getting in and out of her car in an apparently unrestricted manner. She walks down a laneway to an ATM and then attends a poker machine venue. While visiting her friend’s Coffee shop she is shown to fully bend over and fully squat down for a period.
68 In the covert surveillance taken in February 2009 the Plaintiff is present at work before 8 am and after leaving her work place at about 1.30 pm she is observed to go shopping, carry shopping bags which she placed in her car and attend a coffee shop with her son for a late lunch where she sits for about 15 minutes. Again the Plaintiff is shown throughout to be walking and carrying items in a free and unrestricted manner and sit without any apparent discomfort.
69 In the covert surveillance taken in April 2009 the Plaintiff is present at her workplace by 6.35 am –she admitted she would have started by 6 am. She is shown to assume a squat position while loading a fridge and otherwise to be serving customers and stacking shelves. She is then seen walking in the street to her car by 1.05 pm
Submissions of Defendant’s Counsel
70 Defendant’s Counsel made the following main points:
a)
The Plaintiff has failed to identify the nature of her injury. In particular, any impingement upon the nerve root would necessitate evidence of neurological involvement, or deficit with radiculopathy. Medical reports variously indicate no objective signs of radiculopathy;[29] no neurological abnormality;[30] no pins and needles or numbness in her legs; [31] no signs to suggest nerve root compromise; and no evidence of neurological deficit in the lower limbs;[32]
b)
The most recent radiological tests were performed nearly 6 years ago. Accordingly there is no current objective investigation to confirm the claimed pathology;
c)
The covert video surveillance together with the Channel 9 film depict the Plaintiff engaging in free and unrestricted movement with significant movement of her back which is inconsistent with any nerve root impingement or other significant pathology;
d)
The Plaintiff has not completely ceased any domestic, social or recreational activities;
e)
Prior to the workplace incident the Plaintiff had taken Panadeine Forte for her migraines and suffered side effects from it. She had also been treated with antidepressants because of problems with her libido, poor sleep and lack of appetite;
f)
Other than medication, there has been no physical therapy or other medical intervention or attendance upon any specialist for treatment or advice since the caudal injections given by Mr Kierce;
g)
The Plaintiff, at times works longer hours than in her previous employment and at her usual 20 hours per week her income is greater than before; and
h)
The Plaintiff has been actively involved in her husband’s business, which she did not disclose in her affidavits.
[29] Refer Henderson and Shannon above;
[30] Refer Brownbill above
[31] Refer Ho above
[32] Refer Shannon above
71 Subject to further analysis below I accept that the above submissions made by Defendant’s Counsel are an accurate reflection of the evidence.
Submissions of Plaintiff’s Counsel
72 Plaintiff’s Counsel made the following main points:
a)
Counsel clarified that the basis of the Plaintiff’s claimed injury is not primarily nerve root impingement consequent upon a protruding, or prolapsed disc directly impinging on the theca and causing sciatic pain down the leg. Rather, the basis of the claimed injury is internal disc damage causing referred pain. This is consistent with the assessment made by Mr Henderson who describes… low back strain injury with associated somatic referred pain in her right lower limb; and the diagnosis of Mr Shannon who concludes that… Her symptoms and signs are consistent with lumbar disc degeneration. However, Counsel also noted that there is support in the report of Dr Ho for a central L5-S1 disc protrusion which indents the theca;
b)
The Plaintiff has suffered a back injury in July 2003 which has continued to cause pain and limitation of movement until the present day and ongoing. Her chronic pain and physical limitations affect every aspect of her life. Her stoicism and commitment to her family should not diminish the adverse consequences which she is nevertheless suffering;
c)
Panadeine Forte was last prescribed for migraines in March 2002 whereas the workplace incident occurred in July 2003;
d)
The fact that she may have suffered a degree of reduced libido and other depressive symptoms does not detract from the adverse impact of the back injury upon the Plaintiff's sexual relations with her husband and other adverse consequences;
e)
None of the examining doctors suggested that the Plaintiff was embellishing her symptoms or was other than a reliable and cooperative historian; and
f)
Although she is currently performing work which derives a greater income, it is nevertheless a real and significant loss for her to have been unable to return to her work as a nurse's attendant.
73 I accept that there is some merit in each of the submissions made by Plaintiff’s Counsel. However, for the reasons outlined below, I am not persuaded that the Plaintiff has satisfied the test of serious injury.
Analysis of the Evidence and Findings
74 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence, including submissions of Counsel and the tendered documents and videos.
75 I have re examined carefully various authorities which potentially have a bearing on the correct approach to be taken in a case such as the present.[33]
[33] Humphries v Poljak [1992] 2 V.R. 129; Fleming v Hutchinson (1991) 66 A.L.J.R. 211; Ninkovic v Pajvancek [1991] 2 V.R. 427; Petkovski v Galletti [1994] 1 V.R. 436
76 In Cropp v TAC[34] the principle error identified on appeal was the application by the Trial Judge of a too stringent test of “serious injury”. The Trial Judge did not find that a serious injury had been sustained notwithstanding that he accepted that the appellant had suffered a soft tissue injury to his lower spine and also accepted the claimed consequences. The appellant in that case was just under 25 years old at the time of the injury and 28 years old at the time of the application. It was accepted that as a result of his injury he was no longer able to engage in vigourous sports and recreations. He had limited education and had only ever worked as a labourer or in unskilled occupations and he was now no longer fit to perform any labouring or heavy work. As a result of his injuries, he could not bend or raise his right arm above shoulder level, he suffered dizzy spells, had difficulty driving a motor car and required assistance to shower and dress. While it is not appropriate to make a detailed factual comparison between cases, Cropp and other cases[35] have highlighted the care which a trial judge must take in weighing the total circumstances, including:
[34] 1998 3VLR 357
[35] Refer in particular Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 @ para 17 – per Ashley JA
• the age of the applicant; • the activities formerly performed which can no longer be performed; • the significance of those activities to the applicant’s enjoyment of life; • pre injury employment record; • previous efforts to return to pre injury employment; • current limitations on employment; •
specific difficulties encountered in day to day living because of the claimed symptoms;
•
specific strategies which the applicant has adopted for dealing with their difficulties or whether they claim an inability to do almost anything; and
•
whether medication is used in a measured manner rather than asserting a need for strong painkillers every day.
77 I also am mindful of the observations made by Chernov JA in Sumbul v Melbourne All Toya Wreckers Pty Ltd[36] where the credibility of the Plaintiff was also a significant factor influencing the trial judge:
If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly 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…
[36] Sumbul v. Melbourne All Tyre Wreckers Pty Ltd, 2006 VSCA 292 @ para 24
78 It is necessary to identify… … the pain and suffering consequence [which]…
is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, … fairly described as being more
than significant or marked, and as being at least very considerable. [37]:
[37] Humphries and Anor v Poljak [1992] 2 VR 129 Crockett and Southwell JJ @ 140
79 There are certain facts and circumstances about which I am satisfied on the preponderance of evidence, which I set out below. However, there are a number of other matters which in my view are difficult to resolve or unclear, which arise from the cross-examination of the Plaintiff, her presentation in the covert video surveillance; and her pre-workplace incident medical history.
Findings
80 I accept that all reporting doctors found that the Plaintiff presented in a cooperative and frank manner without any suggestion of embellishment.
81 I accept that the Radiological investigations reveal relatively mild degenerative changes. There is no evidence of any major disc prolapse and the medical opinion is consistent in the view that the Plaintiff displayed no objective evidence to suggest nerve root compromise and no evidence of neurological deficit in the lower limits. However, beyond a general consensus that the Plaintiff probably had long standing asymptomatic degenerative changes of the lumbo sacral spine, which were aggravated by the workplace incident, the precise nature of the resultant injury or damage has been variously described:
• Mr Brownbill refers to lumbo sacral intervertebral disc derangement; • Mr Henderson refers to Chronic low back strain injury condition with
associated somatic referred pain in her right lower limb; and
• Mr Shannon refers to a lumbar disc lesion superimposed on pre-
existing lumbar disc degeneration
82 Nevertheless, I accept that all reporting doctors agree that as a result of the workplace incident the Plaintiff suffered an aggravation to her previously asymptomatic degenerate spine which has resulted in a permanent impairment with consequent restriction of lumbar movement and chronic pain aggravated by certain activity.
83 Furthermore, I accept that all reporting doctors agree that the Plaintiff is unfit for her pre-injury employment or any similar employment involving heavy lifting or repetitive or prolonged sitting, standing, bending or stooping.
84 However, in recognising the above degree of consensus in medical opinion, it is critical to note that most of the opinions were given prior to the Plaintiff recommencing her current employment on a continuous basis. Clearly the prognosis contained in the initial reports of her general practitioners, and Orthopaedic Surgeons O’Brien and Brearley were overly pessimistic in terms of the Plaintiff's likely future progress or employment capacity.
85 Furthermore the reporting doctors were either unaware or did not otherwise comment upon the level of medication prescribed for the Plaintiff prior to her workplace incident as compared to the level of medication prescribed subsequently.
86 Furthermore, none of the reporting doctors were either aware or did not otherwise comment upon the extent to which the Plaintiff engaged in additional working hours in her current employment or had previously engaged in work activities to support her husband's business.
87 There are a number of pertinent observations which I make about the evidence. In particular, it has been difficult to assess the extent of domestic social and recreational activities before the workplace incident. The information contained in the Plaintiff's affidavits and her responses under cross-examination were mostly general, non-specific and sometimes quite vague. She did not refer to any specific sporting activities either alone or in company with her children and she did not give any details as to the extent to which she and/or the family engaged in long walks, bike riding, fishing and camping trips. She admitted to no hobbies other than her children.
88 In her affidavits and oral evidence the Plaintiff referred to her inability to participate in recreational activities such as bike riding and fishing in the same manner as before her workplace incident. However she was unable to recall where or when she had ridden a bike prior to her injury or how regularly she undertook this activity. Furthermore, in relation to fishing, she admitted under cross examination that she could go fishing but hated killing animals and would do anything to get out of going fishing, whereas her husband loved to take the children.
89 While I accept that there has been some reduction in these activities, to a significant extent her answers under cross-examination indicate that that has been by choice or changed family circumstances.
90 In my view the video surveillance showed the Plaintiff performing free and unrestricted movement and extensive back movements, including extension, bending, stooping and squatting. The Plaintiff’s demonstrated range of activities was not consistent with her claimed level of chronic pain and restricted mobility.
91 In my view it is significant that there are few if any activities of daily living or social recreation which the Plaintiff has ceased altogether. The Plaintiff admitted that she performs household shopping, drives her own car and performs gardening and housework. She says that she performs all of these activities in pain and has to pace herself and reduce the weight of what she may be handling, such as light loads of washing. Having regard to the extent of activities which she continues to perform and the manner of her presentation in the covert video surveillance, I am satisfied that the Plaintiff is capable of performing such activities in a voluntary and controlled manner so as to minimise any aggravation to her back.
92 The Plaintiff is the Team Manager for her daughter’s basketball team. She attends every match and 90 per cent of the training sessions. She runs up and down the court and bounces the ball from time to time at training. She has played in games of basketball between the children and the adults. The Plaintiff said that if it were not for her injury then she would be involved in the basketball to a far greater extent and perhaps be coaching. However, there is no evidence that her participation in her daughter’s sporting activities was in fact any greater before the work place incident. I note that the Plaintiff made no mention of her involvement with her daughter's basketball team in her affidavits. In my view this was a significant omission.
93 The Plaintiff admitted under cross examination to quite extensive involvement in her husband’s business. In particular, in the period between ceasing her pre injury employment and March 2008 she would accompany her husband on site from time to time; deliver branches into the chipper; pick up sawn logs from time to time; answer the phone for the business, provide quotations and arrange appointments. She also attended with her husband when they collected water for sale, which occurred over a few months. She agreed that the work with her husband involved her bending, lifting and stooping. In my view these activities were another significant omission from her affidavits.
94 The Plaintiff's current work comprises 20 hours per week. However she admitted to opening the milk bar on occasions from 5 am and working until 1.30 pm. She also admitted to performing more work if she was needed. While I accept that her pre injury employment provided particular satisfaction to her, in my view, objectively, the Plaintiff has now secured a responsible position as a retail assistant where she is trusted to open the business and work extended hours at a rate of pay well in excess of her pre-injury earnings.
95 In her affidavits the Plaintiff stated that the Panadeine Forte which she had taken for pain relief subsequent to her injury had caused side-effects. Furthermore, following her injury, sexual relations with her husband were adversely affected, and she suffered disturbed sleep and loss of appetite. Under cross examination, she agreed that she had been taking Panadeine Forte to relieve her migraines since September 1996 and had previously suffered side-effects and nausea. She also agreed that she had been prescribed antidepressant medication from 2001 onwards after she consulted her local doctor complaining of a four-year history of reduced libido and suffering from poor sleep, reduced appetite and that she was tearful.
96 I accept that the Plaintiff has suffered additional stress as a consequence of her workplace incident, resulting in an exacerbation of her depressive symptoms; and I accept that she requires additional pain relief to cope with both her continuing migraines and back pain. However, it is difficult to make any objective assessment of the extent to which her depressive symptoms have been increased and the extent to which her pain relief relates to migraines or back pain. Again, in my view these matters were a significant omission from her affidavits and/or the medical evidence.
97 Finally, I refer to the reports of the Plaintiff's treating doctors and note that she has required no further specialist consultation or treatment since 2005. In relation to her general practitioners, the tendered clinical notes provide minimal information as to the Plaintiff's presentation and any clinical examination from late 2007 onwards. I also note that there is no report from any treating doctor which reflects a current examination and assessment of the Plaintiff. The prescriptions for pain relief and antidepressant medication has varied significantly over the years with a marked reduction in recent years. For instance, about 13 prescriptions for Tramal were issued in 2005 compared to 2 prescriptions per year thereafter and none for 2009. Furthermore, I note that the radiological investigations are now 5 to 5 ½ years old and are therefore of limited assistance in verifying the Plaintiff's current injury and impairment.
Summary
98 I am of course required to make an assessment of the Plaintiff’s physical injury and consequent impairment to which her employment is a significant contributing factor as at the time of hearing the application. Having regard to the total circumstances as I have found and outlined above:
a)
I am satisfied that the Plaintiff does have a proven and significant capacity for work. Medical opinion confirms that the Plaintiff is coping well and has recommended that she maintain certain limitations relating to lifting heavy weights and avoiding prolonged sitting, standing, bending or stooping. However it is quite apparent that she does have a reasonable capacity for these activities while performing her current employment. I accept that the Plaintiff has some degree of lower back pain while performing certain activities. However, she has demonstrated a capacity to work within her limitations while fulfilling a part time position as a retail assistant. While the duties are light there is no evidence that her current employer is treating her as a special case;
b)
Her demonstrated capacity for employment, including providing assistance in the husband's business, directly bears upon whether her pain and suffering consequences have otherwise reached the requisite degree;
c)
While I accept that the Plaintiff’s recreational and domestic activities have been affected to a moderate degree, I am satisfied that the Plaintiff does engage in pre-injury and other activities to a significant and tolerable degree, to the extent which she chooses and consistent with current family circumstances, and/or in a manner designed to minimise any aggravation to her back pain;
d)
While her medication for pain relief has continued since her workplace incident in addition to medication for depressive symptoms, part of this medication relates to pre-existing conditions. Furthermore, the clinical records indicate that the requirement for such medication has fluctuated significantly from time to time and reduced in frequency in recent years;
e) The Plaintiff requires no other physical therapies; and
f) The covert video surveillance portrays the Plaintiff engaging in work and other everyday activities in an unrestricted manner without any apparent discomfort. 99 If the Plaintiff currently suffers a compensable injury as a consequence of the workplace incident, I am not persuaded that the Plaintiff has proven an impairment and consequences which satisfies the requisite test of serious injury. I accept all of the points raised on behalf of the Defendant as set out above which in my view also reflect adversely upon the Plaintiff’s credibility. In both her affidavits and oral evidence she has tended to over state her limitations and under cross examination, she reluctantly conceded activities in which she is still engaged.
100 Even taking the Plaintiff’s evidence at its highest, it is not indicative of the Plaintiff experiencing such significant pain which cannot be controlled, avoided or minimised by observing appropriate physical limitations. She is gainfully employed part time and undertakes extended hours as required. While she suffers limitations in her domestic and social activities she otherwise engages in a range of activities and social interaction.
101 I do not dismiss the Plaintiff’s experience of pain and physical limitations as trivial and they clearly cause her some distress and frustration. However, in combination, the consequences of the impairment to her lower back are not in my view to be fairly described as being more than significant or marked, and
as being at least very considerable… when judged by comparison with other
cases in the range of possible impairments …to the same body function.
Conclusion
102 While I accept that the Plaintiff probably suffers a permanent impairment of her lower lumbar back arising out of, or in the course of, or due to the nature of, employment with the Defendant on 10 July 2003, I am not satisfied on the balance of probabilities that the consequences are serious within the meaning of the Act.
Orders
103 The Plaintiff’s application for leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, to commence proceedings for the recovery of damages for pain and suffering in respect of a workplace incident on 10 July 2003, relying upon paragraph (a) of the definition of serious injury, is refused.
104 The proceeding be dismissed.
105 The following cost orders were made after hearing the parties:
1. The Plaintiff pay the Defendant’s costs, including Reserve costs, on County Court Scale D to be taxed in default of agreement;
2. Certify for:
a) one refresher; circuit fee at scale and one circuit refresher; and
b) the reasonable costs of the preparation, filing and service of court books, the first copy at scale and each subsequent necessary copy at the commercial rate to be fixed by the taxing registrar.
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