Thorn v Victorian WorkCover Authority
[2016] VCC 896
•1 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03975
| KERRY LEEANNE THORN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2016, 24 February 2016 | |
DATE OF JUDGMENT: | 1 March 2016 | |
CASE MAY BE CITED AS: | Thorn v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 896 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury application – Pain and Suffering – Aggravation to degenerative changes in the lumbar spine – Whether employment is a cause of injury relied upon in support of application
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited:
Judgment: Leave granted in respect of pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett SC with | Slater & Gordon |
| Mr N Dunstan | ||
| For the Defendant | Ms M Britbart SC with Ms L Glass | Hall &Wilcox |
HIS HONOUR:
1 This is an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) by the Plaintiff for leave to commence a proceeding for damages in respect of the pain and suffering consequences of an injury suffered by her whilst employed as a Disability Development Support officer for the Department of Health and Human Services (“DHHS”).
2 The injury relied upon by the Plaintiff is an aggravation to degenerative changes in the lumbar spine including a disc protrusion at L4/5 and L5/S1 with compression on the right S1 nerve root. The body function relied upon by the Plaintiff is her spine. The particulars of injury also identify anxiety and depression as an injury in the proceeding but no evidence was led in support of that injury and it was not relied upon by the Plaintiff in the hearing.
3 The Plaintiff was born in 1966 and is currently aged forty-nine years. She is married with two children aged twenty-two and seventeen. She completed Year 12 in secondary school and subsequently trained to become a registered nurse.
4 In 1994 the Plaintiff completed training as a registered nurse and commenced employment with the Melbourne City Mission working with persons with intellectual disabilities.
5 In 2001, the Plaintiff recommenced employment with the DHHS as a Disability Development Support officer. Her duties include the direct care of clients of the DHHS who suffer from intellectual and physical disabilities. The Plaintiff’s employment involves a high degree of manual handling and in particular attending to the hygiene, showering, toileting, dressing, eating and other requirements of the clients. She is required to provide them with assistance in most aspects of daily living. A number of the clients the Plaintiff cares for, have behavioural problems and from time to time are physically aggressive towards her.
6 It is clear that the manual handling aspect of the Plaintiff’s employment may properly be described as very physically demanding and involves repetitive bending, twisting, lifting and carrying. She is also required to perform regular shopping for the clients.
7 The Plaintiff is a 165 centimetres tall and prior to 2013 weighed approximately 78 kilograms. The clients that she is required to care for are all adult males.
8 In support of the application, the Plaintiff filed two affidavits sworn by her on 13 April 2015 and 10 February 2016 respectively.[1] In addition, the Plaintiff attended the hearing of the matter, gave evidence and was cross-examined. Otherwise the parties relied upon the medical material tendered by each of them.
[1]Plaintiff’s Court Book (“PCB”) pages 20-33
9 At the commencement of the proceeding, Senior Counsel for the Plaintiff sought to add to the Court Book material relied upon by the Plaintiff, the material being two statements the legal representatives of the Plaintiff had obtained by way of a Freedom of Information request. The statements were obtained on behalf of the Defendant during the course of an investigation into the circumstances of the Plaintiff’s injury. One of the statements is of Julie Martin, a Disability Development Support officer employed by the DHHS and is dated 2 April 2014.[2] The name of the maker of the second statement has been redacted. The maker of that statement is a part time Disability Support Officer employed by the DHHS and the statement is dated 23 March 2014.[3]
[2] PCB 75
[3] PCB 79
10 The Defendant did not object to these statements forming part of the evidence to be relied upon by the Plaintiff in support of her application.
11 In her affidavit of 13 April 2015, the Plaintiff states that during the course of her employment, she experienced aches and pains in her lower back from time to time. She further states that in approximately September 2012, after completing shopping requirements for the clients, and lifting a number of shopping bags, she felt pain in her lower back. She further states that she was at that time working in a house that was very demanding and very hands‑on. The Plaintiff states that she continued working and took holidays during December and January of 2012 and 2013. She returned to work on 10 February 2013.
12 On 12 February 2013, the Plaintiff experienced extreme pain in her lower back whilst showering before going to work[4]. The Plaintiff was admitted to the Austin Hospital on 12 February 2013 at 7.18am. She provided a history to the admitting medical practitioner and was provided with pain relief. She was again admitted to the Austin Hospital on 14 February 2013 complaining of back ache. She was again provided with further pain relief and discharged with a recommendation for urgent MRI and CT scans to be conducted of her lumbar spine. Her pain relief medication was also increased.
[4] PCB 23 – 24
13 A CT scan of the Plaintiff’s lumbar spine conducted on 7 March 2013 revealed:
“Moderate broad based disc bulge at the L4/L5 level contacts the anterior aspect of the thecal sac without compression. Moderate left L4/L5 neural exit foraminal stenosis without nerve impingement. Minor right L5/S1 foraminal stenosis without nerve impingement.”[5]
[5] PCB 46
14 An MRI scan of the Plaintiff’s lumbar spine conducted on 14 March 2013 revealed:
“Right paracentral disc extrusion at the L5/S1 level with compression of the right S1 nerve root. Very minor broad based disc bulge at the L4-L5 level with no associated nerve root compression.”[6]
[6] PCB 44
15 These findings support the conclusion that on 12 February 2013, the Plaintiff sustained a lumbosacral disc prolapse causing right S1 nerve root compression.
16 On 22 May 2013, the Plaintiff consulted her general practitioner, Dr Elaine Rodgers, who noted that the Plaintiff had been experiencing back pain for six weeks with loss of sensation in her right foot. The Plaintiff was also taking paracetamol, ibuprofen and OxyContin, for pain relief. The Plaintiff again saw Dr Rodgers on 27 March 2013 and Dr Rodgers noted that physiotherapy had provided the Plaintiff with some pain relief.
17 On 2 May 2013, the Plaintiff again saw Dr Rodgers and the Plaintiff advised her that the pain was now liveable and she was going to return to work the following week. The Plaintiff returned to work in May 2013 on restricted duties.
18 On 23 September 2013, Dr Rodgers provided a report to the Accident Compensation Conciliation Service recording as follows:
“I am a GP working at Banyule Community Health Service and have been treating Kerry Thorn since 22nd March 2013 for right sided sciatic pain. This pain commenced in late January 2013 as pain in her back radiating into her right leg. This pain became worse and in late February she experienced weakness in her right leg manifesting as a foot drop and loss of sensation in her right foot. She attended the emergency department at the Austin hospital where on examination this weakness and loss of sensation was confirmed and an absent right ankle jerk documented. MRI confirmed a disc bulge at L4-L5 level and a disc protrusion at L5-S1 which compressed the right S1 nerve root. Kerry has received analgesia and physiotherapy and was able to return to modified duties on 6th May 2013. Her symptoms are gradually resolving and she has increased her duties during the intervening months but still has pain and some weakness and is still unable to perform all of her usual duties at home and at work.
There was no single incident precipitating her injury but rather a gradual increase of pain then weakness over time. Since her duties involve bending and lifting which are activities accepted as increasing the incidence of such injuries and she has noted symptoms were increased at work performing this type of activities it is reasonable to conclude that her duties at work have materially contributed to the development of this condition.
Kerry is currently working at her previous job with modified duties to avoid lifting bending or any activity which could exacerbate the injury. Her symptoms are easing and under normal circumstances would continue to substantially resolve over a time period of 18-24 months although she would still be prudent to avoid heavy lifting in future.[7]
[7] PCB 64-65
19 In a further report dated 26 May 2014, Dr Rodgers concluded:
“Kerry has continued to improve and has recently returned to almost full duties. She still has some pain which can be worse at the end of her shift, but the weakness and numbness has substantially resolved. I would consider her consider her condition has stabilised and further treatment or surgery is unlikely. She needs to be cautious with her back with heavy lifting or bending as there is disc degeneration at other levels and a similar prolapse could occur.”[8]
[8] PCB 62
20 Following physiotherapy treatment, the Plaintiff was referred to Dr Michael Szabo, a chiropractor, for regular treatment. She commenced treatment with Dr Szabo on 25 July 2013 and on 1 October 2013, Dr Szabo concluded:
“Mrs Thorn has so far responded very well to chiropractic care, and a recent re-assessment (6 September 2013) demonstrated some encouraging changes. Her symptoms have improved considerably and she currently does not require any kind of pain medication her range of motion is showing signs of improvement, as is her posture and segmental spinal motion.
Kerry’s prognosis, both in the medium and longer term, remains guarded as degenerative/injured discs, especially when showing evidence of compressing nerve roots, may not ever fully heal.”[9]
[9] PCB 52
21 Following the Plaintiff’s return to work, she continued to receive regular chiropractic treatment from Dr Szabo and self-managed her pain, taking ibuprofen on a needs basis.
22 It is the case for the Defendant that the Plaintiff has not established that her L5/S1 disc extrusion or L4/5 minor disc bulge are related to her employment; that is, the Plaintiff has not established that her employment is a cause of the injury relied upon in support of this application.
23 The Plaintiff was examined by Mr Michael Dooley, an orthopaedic surgeon, on 14 July 2015. Mr Dooley took a history from the Plaintiff but it is unclear from his report what other material he was provided with by the Defendant’s solicitors. Mr Dooley concluded:
“Mrs Thorn has naturally occurring and age-related degenerative disc disease of the lower lumbar spine.”[10]
[10] Defendant’s Court Book (“DCB”) page 20
24 He further states:
“ Disc prolapses occur in degenerating lumbar discs. In the majority of situations lumbar disc prolapses occur spontaneously as part of the natural evolution of the underlying condition. They can occur after an episode of acute trauma. It is clear that in late 2012, Mrs Thorn had established naturally occurring degenerative disc disease of the low lumbar spine. She describes having low back pain after shopping for disabled residents. Clearly, the activities involved in shopping in terms of lifting, manoeuvring, pushing trolleys, etc., could aggravate underlying degenerative disc disease.”[11]
[11] DCB 21
25 Mr Dooley goes on to state:
“It would be my view that when Mrs Thorn noted pain in September 2012 while shopping, this most likely related to her underlying degenerative lumbar spine condition having heightened effect, ie increased pain while bending, manoeuvring etc. ongoing intermittent pain related to her underlying degeneration. In my view the development of the right-sided lumbosacral disc prolapse occurred either spontaneously or in relation to Mrs Thorn’s manoeuvring during the course of washing her hair in February 2013. My view would be that on the balance of probabilities the development of the disc prolapse did not relate directly or indirectly to her employment.”[12]
[12] DCB 21-22
26 This is the opinion relied upon by the Defendant in support of its submission in relation to the cause of the Plaintiff’s injury. It is not disputed by the Defendant that the Plaintiff’s employment involved continuous and arduous manual labour but the Defendant submits that there is no evidence of the Plaintiff experiencing more than niggling pain as a result of her duties prior to her disc prolapse in February 2013.
27 In my opinion, the contents of the two witness statements obtained by the Plaintiff by way of a Freedom of Information request evidence the fact that the Plaintiff was experiencing back pain prior to her disc prolapse.
28 In the statement of Julie Martin dated 2 April 2014, the witness states that the Plaintiff told her that she had felt a twinge in her back when she was doing grocery shopping a few months before December 2012. She further states:
“I am bad with dates and times but I think it was October or November 2012. I saw Kerry walking around at work holding her back, limping and walking awkwardly. I asked her what was wrong and she her back hurt and she was sore. I could see she was in pain. I asked her what she was going to do about it and she said she was going on holidays soon and maybe resting would make it better.”[13]
[13] PCB 77
29 In the statement of witness whose name has been redacted and not supplied to the Plaintiff, the following is recorded:
“I know that Kerry complained about pain in her back before she went on holiday late 2012. You could see pain by the way she walked. She was always holding her back. I remember approximately three months prior to her holiday her back was sore. I saw her massaging her back after shopping.”[14]
And further:
“I remember the first day Kerry came back from that holiday. She told me it wasn’t really a holiday because she had back pain all the time. Kerry was only back at work for a day or two. She was then off work for a while.”[15]
[14] PCB 81
[15] PCB 81
30 I do not accept that the contents of these witness statements “should not assist the Court in making findings about the nature of the Plaintiff’s symptoms prior to her going on leave”, because inter alia the statements are not on oath and should be the subject of an affidavit “so the Defendant may have the opportunity to test it”.[16] The statements each contain a clause stating that the contents of the statements are true and the witnesses aware that they would be liable to prosecution if the content of the statement is knowingly false to the witness. Furthermore, I do not accept that the statements should not be accorded due weight because of the date upon which they were made or that the contents of the statements are unclear.
[16] See Defendant’s closing submissions paragraph 13
31 In my opinion, the statements provide cogent evidence that the Plaintiff was experiencing more than niggling back pain prior to her disc prolapse occurring on 12 February 2013
32 It would also appear that the statements were not provided to Mr Dooley in order to assist him in arriving at an opinion based on all available relevant material.
33 In my opinion, it is plain, having regard to the nature of the Plaintiff’s duties, that her employment is a cause of the injury relied upon in support of the application.
34 The pain and suffering consequences relied upon by the Plaintiff in support of the application are as follows:
(i)ongoing daily lower back pain;
(ii)cramping in her right leg;
(iii)limitation in her ability to bend, twist and lift, which in turn makes her employment duties more arduous;
(iv)loss of sensation in her right foot;
(v)an inability to sit or stand for prolonged periods;
(vi)disturbed sleep, wherein the Plaintiff wakes up at least once or twice each night;
(vii)impaired sexual relationship with her husband;
(viii)limitation on her recreational activities including walking and participation in poker competitions;
(ix)inability to garden at home;
(x)increased weight gain (although it is probable that the Plaintiff ceasing cigarette smoking has also contributed to this).
35 The evidence discloses that the Plaintiff returned to work on 6 May 2013 and following a period of restricted duties has now resumed her pre-injury duties, albeit in the context of the limitations referred to above. As I observed during the course of the hearing, the arduous nature of the Plaintiff’s duties and the fact that she has worked in that capacity for 15 years, is evidence of both her commitment to her employment and also a high degree of physical resilience. The plaintiff may properly be described as a good example of a “stoic Plaintiff”.
36 Mr John O’Brien, an orthopaedic surgeon, examined the Plaintiff on 1 July 2014 and concluded:
“The patient does present with moderate ongoing disability. I would suggest the patient is not capable of totally unrestricted physical activity. Thus I would consider the patient now is not capable of her pre-injury occupation. The patient however has demonstrated her ability to continue with modified duties on a full-time basis and I would expect this to continue. [17]
[17] PCB 69
37 He further states:
“Indeed at present it is impossible to predict when the patient would be capable of a return to unrestricted employment. Indeed this patient does remain limited in her general, social, domestic and recreational activities and this certainly appears that it will be an ongoing concern.”[18]
[18] PCB 70
38 On 23 October 2015, the Plaintiff was also examined by Mr Paul D’Urso, a neurosurgeon, who concluded:
“There would appear to be a mild affect [sic] on Kerry’s social, domestic and recreational spheres. Kerry does not have capacity to perform more arduous domestic, cleaning or gardening activities. She does not have capacity to perform more strenuous recreational sporting activity or hard-court sporting activity. Kerry has limited capacity beyond the restrictions mentioned in the text above in social, domestic and recreational spheres.
I would consider that these restrictions would be of a permanent nature.”[19]
[19] PCB 60
39 Further, he concluded:
“Her condition appears to have had a mild to moderate effect on her social, domestic and recreational spheres as well as on her capacity to perform any type of employment.”[20]
[20] PCB 61
40 The Plaintiff has continued to consult Dr Michael Szabo, her chiropractor, who states in a report dated 30 December 2015:
“My prognosis both in the short and long term remains guarded yet hopeful. For the last 3-4 months, she has been symptomatically much better, and accompanying this improvement appears to be a steadfast commitment to doing the things she needs to further strengthen her spine.
Due to the significant deterioration in her lower spine, and the disc extrusion at L4 - S1, one cannot rule out episodic exacerbations, but with continued chiropractic care and active participation in the management of her problems, I am hopeful that Mrs Thorn can continue to get better, both symptomatically and functionally and retain her ability to work.”[21]
[21] PCB 48
41 I accept that the Plaintiff’s condition has improved in response to the chiropractic treatment she has received.
42 The Plaintiff was also examined by Mr Armin Drnda, a neurosurgeon, on 27 February 2015. Mr Drnda concluded:
“Straight leg raising was negative. The right ankle jerk was significantly diminished. She did not have any weakness in any of the myolomes, so she was able to walk on tippy toes and on her heels without a problem.
A new MRI scan shows that she now has a hardened disc protrusion, broad-based more towards the right nerve root S1 which is displaced posteriorly but it is not compressed against the facel [sic]. The nerve root is surrounded from two-thirds circumference with fat tissue, so this is definitely not compression, this is only displacement of the nerve.”[22]
[22] DCB 25
43 And further:
“I do not think surgery would be helpful for this patient. She is not that symptomatic now. Her radiculopathy is mild and probably fluctuates. Overall, to expose patient to surgery without much of a gain would not be my preference. I have referred the patient to our Physiotherapy Department for a more structured exercise program, aiming to strengthen core muscle improved posture and basically to educate the patient for future self-managing. Hydrotherapy swimming would probably also be helpful. I do not think a chiropractor can help the patient anymore.”[23]
[23] DCB 25
44 It is clear from the findings of Mr Drnda that the Plaintiff’s ongoing pain is organically based by reference to a new MRI scan showing a “hardened disc protrusion”.
45 Mr Drnda does not express an opinion in relation to the degree of restriction experienced by the Plaintiff by reason of her lower back injury, and I accept, by reference to the opinions of Mr O’Brien and Mr D’Urso, that the Plaintiff is materially restricted in her work and daily life as a result of her injury and suffers the consequences relied on in support of the application.
46 The Plaintiff’s credit was not placed in issue in the proceeding and I accept that she was a truthful and credible witness. I accept that the Plaintiff has ongoing daily pain of mild to moderate severity by reason of her lumbar spine pathology and that this pain has materially contributed to the consequences that she relies upon in support of the application. Furthermore, I accept that whilst the Plaintiff has returned to full time employment, she carries out her duties whilst suffering from the pain that she has attested to.
47 Upon careful consideration of all of the evidence, I am satisfied that the pain and suffering consequences relied on by the Plaintiff may fairly be described as being more than significant or marked and as being at least very considerable.
48 It follows that the Plaintiff is entitled to the orders sought in this application; namely, leave to commence a proceeding claiming damages for the pain and suffering consequences of the injury sustained by her, the subject of this application.
49 I will hear the parties as to the precise form of orders sought in the matter and also upon the issue of costs.
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