Thornton v Australian Lamb Colac Labour Hire Pty Ltd
[2017] VCC 738
•13 June 2017
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01505
| ALLISHA JADE THORNTON | Plaintiff |
| v | |
| AUSTRALIAN LAMB COLAC LABOUR HIRE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 25, 26 May 2017 | |
DATE OF JUDGMENT: | 13 June 2017 | |
CASE MAY BE CITED AS: | Thornton v Australian Lamb Colac Labour Hire Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 738 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act 1985; s134AB application for leave to bring damages claim; definition of serious injury s134AB(37)(c); claim for pain and suffering s134AB(38)(h); reliance on (a) only of definition of serious injury in s134AB(37); injury not organically driven; Leave refused.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Transport Accident Commission v Zepic [2013] VSCA 232; Ansett v Taylor [2006] VSCA 171; Meadow v Lichmore Pty Ltd [2013] VSCA 201; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649
Judgment: Leave to bring a damages claim is refused. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Thomson Geer |
HIS HONOUR:
Background
1 Ms Thornton was born in 1983. Leaving school at the end of Year 11, she worked in a number of jobs in the retail and hospitality industry. From February 2006 to October 2010 she worked as an employee of the defendant as a meat packer for CRF Foods Pty Ltd.
2 On 1 December 2008 she was working in a cool-room with a line of lamb carcasses which were hanging from hooks in the ceiling. She said:
“Whilst attempting to untangle the lambs, one came off the chain and fell on top of me. The force of this threw me backwards to the floor and I felt severe pain in my back. I struggled to move. My neck was painful and I was taken to hospital by ambulance.” (Plaintiff’s Court Book (PCB) 3)
3 Ms Thornton remained in the Colac Hospital for five days. She took a week off work, and an initial attempt to return to work ended after four hours. (Ibid) Whilst she was officially assigned light duties, she said the meatworks was understaffed, and implicitly she had to take whatever duties were required. She had more time off, returning just before Christmas “with a five kilogram weight limit” working four hours per day, five days a week. Her load limit was lifted to six kilograms in the new year, and she eventually returned to full duties “just putting up with my back pain”. (PCB 4)
4 In August 2009, following a spell of heavy lifting of boxes weighing 25‑30 kilograms for an hour and a half up to head height, she came under the care of Dr Romulo Llave of the Otway Medical Clinic. She was certified unfit for work for some three weeks. An attempt to return to work was unsuccessful, and she was off work for a period of six months. She received treatment from a Mr Zampatti, a physiotherapist, and had acupuncture and hydrotherapy. (PCB 5)
5 Dr Llave referred Ms Thornton to a variety of practitioners: an orthopaedic surgeon, Mr Skelley; Mr Brandt, a breast surgeon; and orthopaedic surgeon Mr Peter Lugg. Ms Thornton began receiving osteopathic treatment, which she continues receiving to this day.
6 In late 2010 Ms Thornton was working in the administration area for two hours each Wednesday and Friday, which eventually increased to four hours a day, three days per week. In September 2011 she began working at retailer Coles for two eight-hour shifts per week. An attempt to work four shifts “proved too much for her”. (PCB 5-6) She also obtained work from Skills Connection as a personal carer. This is casual work, 7½ hours per week. It involves no heavy lifting. (PCB 6)
7 According to her affidavit sworn 20 November 2014, she was at that time taking Voltaren daily, with Panadol three or four times a week, and an ice gel daily. She had also had chiropractic treatment, but as at November 2014 was receiving osteopathy. She said she received help from her then fourteen-year-old daughter:
“Lifting heavy boxes is something I have to avoid and pushing and pulling can be painful.”
8 In 2014 she lived in the same household with her mother and daughter, who mow the lawns for her. Her inability to undertake this task, she said, was “due to the vibration”. Her mother and daughter also hang out the washing. Ms Thornton is now unable to assist her mother gardening. A renovation project for the house which she was undertaking had to be abandoned. Before her injury, Ms Thornton said she had undertaken a range of do-it-yourself work around the house. (PCB 6)
9 According to the affidavit, her ability to drive a car was now limited to a period of one hour, beyond which she suffers “increased pain”. Previously she had been able to have ten hours’ sleep, but now she is limited to six. She said “Often my sleep is broken up because of pain.” She said she experienced pins and needles down her right leg and foot and in her right arm. She said, if she had to use her arm above shoulder height, “it is painful”. She said her ability to assist her daughter in play is now restricted and she was unable to assist her mother and her mother’s friend with gardening. (PCB 7) She said she had to abandon going spear fishing and floundering at night with her brother-in‑law because she “found that the movement of the boat makes this really uncomfortable for me”. (PCB 7-8) She said her back was stiff all the time. She suffered constant pain, between the levels of “4 to 5 out of 10”. Sitting in a car makes it worse. She said, “I would describe the injury as having made a massive change in my life.” (PCB 8)
10 According to a supplementary affidavit sworn 28 April 2017, her symptoms have continued. She said that she attended doctors monthly, and had weekly treatment from an osteopath as well as physiotherapy from the Corio Bay Sports Treatment Clinic. She was having weekly hydrotherapy and taking Tramal. She had been taking daily doses of Lyrica, which had replaced Endone, but she “had a bad reaction to the Lyrica” and so she ceased taking it on medical advice. She said her work with Skills Connection had increased to 25 hours per week as a disability support worker. She was having ongoing pain and restrictions in her back.
11 On 10 November 2015 she was involved in a transport accident when a truck struck her vehicle from the rear. She spent five days in Geelong Hospital, suffering injuries to her head, neck, back, right shoulder and chest. She said “The motor vehicle accident certainly made my back difficulties worse.” At that time she had obtained employment with Colanda “as a Communications Officer doing light administrative work”, two nights a week, 4:00pm to 9:20pm; two days per fortnight on a weekend from 8:30am to 9:30pm. Following the motor accident she returned to Colanda and Skills Connection, but in both cases on restricted hours. Study for a Certificate IV in Disability was interrupted by the transport accident, and as at the date of her second affidavit she said “I am having trouble concentrating and the back pain makes it difficult for me to sit.” She further remarked, “I don’t believe I could have gone back to my old job, even before the motor accident. I certainly couldn’t do so now.” (PCB 10-11)
12 Ms Thornton’s mother, Ms Kay Walton, made an affidavit sworn 5 May 2017 supportive of the account which Ms Thornton gives of her life in recent years. Her mother says that Ms Thornton has been unable to vacuum for about three years. Attempts since her injury have been unsuccessful. According to her mother, she saw Ms Thornton “grab her back and wince in pain whilst bending over”. Again, her mother says Ms Thornton is unable now to contribute by lawn-mowing, and her daughter Tara has had to step in and take over those duties. Her mother says Ms Thornton “struggles greatly to hang the washing out”. (PCB 12)
13 Ms Walton said her daughter now avoids doing weekly shopping, breaking it up into several visits, “which means that she only has to carry a smaller number of bags [each time]”. Ms Walton says that her daughter, previously a keen bike-rider, has stopped, and disposed of her bicycle. Ms Walton describes her daughter’s now-disturbed sleep during the family’s summer holiday at Rosebud, in contrast to previous years. She sees her daughter sitting in the swimming pool and in the sea, rather than swimming. Again, she and her granddaughter Tara now carry the heavy bags. On the journey to Rosebud, Ms Thornton now requires to make one or more stops in the journey to stretch her back. Ms Thornton has to sit down to put on shoes and socks, rather than bend as she did in the past. She avoids bending to pick up dropped objects. (PCB 13)
14 Ms Veronica Lowe, a friend of Ms Thornton, swore an affidavit dated 23 May 2017. She said she has observed Ms Thornton, her car pulled over to the side, because “she has been in pain and I have seen her get out of the car and stretch her lower back. She is uncomfortable sitting for long periods of time.” (PCB 14A) Ms Lowe has also noted Ms Thornton’s difficulty walking extended distances. What should have been a 20‑minute walk from a car park to view glow-worms at Melba Gully had to be abandoned “because Allisha was struggling with back pain.” Only getting halfway to the gully, they had to stop two or three times on the outward journey, and two or three times on the way back. Ms Lowe describes Ms Thornton as struggling with household tasks, particularly dealing with baskets of washing and the task of hanging it out on the line.
15 Through her solicitors, Ms Thornton seeks leave to bring a claim for damages against her former employer pursuant to s134AB of the Accident Compensation Act 1985. Her solicitors filed “Particulars of Injury” dated 27 May 2015 stating that Ms Thornton would rely on the following injuries for the purposes of a Serious Injury Certificate:
(i) Right shoulder injury;
(ii) Injury to the lumbar spine.
16 Ms Thornton seeks leave to bring her claim for pain and suffering, only. It is based on reliance upon paragraph (a) of the definition of “serious injury” in s134AB. (Transcript (T) 1, Lines (L) 9-16)
17 On the second day of the hearing, Mr Fehring and Mr Pierorazio obtained leave to add to the reference to “lumbar spine” reference to the thoracic spine. Tramadol has been ceased as part of Ms Thornton’s painkiller regime and replaced with Targin, which is a morphine pain relief. (T4, L15-20) She also takes Nurofen. (T4, L21-22) When Mr Fehring was opening the plaintiff’s case, he said the locus of spinal pain is now in the upper lumbar or the thoracic area of the spine. He agreed with my characterisation of this pain as interscapular. (T4, L25-30) Mr Fehring conceded that there was no particular pathology of the spine or radiological finding explaining or supporting the existence of the interscapular pain. (T4, L29-30)
Statutory provisions
18 Section 134AB(16) precludes a “worker” as defined in the Act from bringing a damages claim in respect of a work-related injury unless the WorkCover Authority or a self-insurer issues the worker with a certificate or a court grants leave to bring the proceedings. Sub-section (19)(a) provides that the court must not grant leave “unless it is satisfied on the balance of probabilities that the injury is a serious injury”. The expression “serious injury” is defined in sub‑s(37), and the relevant part of the definition for the purposes of this proceeding is as follows:
“(a) permanent serious impairment or loss of a body function; ...”
19 Paragraph (h) of sub‑s(38) provides as follows:
“(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise”
20 Sub-section (38) of 134AB makes further provision as to what constitutes “serious injury” in paragraphs (b) and (c) which provide as follows:
“(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, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable”
Expert opinions
21 Dr Llave provided a report by way of letter dated 2 December 2009 addressed to the plaintiff’s solicitors. Dr Llave described an attendance on 22 May 2008 in which Ms Thornton complained of pain and an enlarged right breast. He said he next saw Ms Thornton on 27 August 2009 when she presented with right shoulder discomfort, right arm paraesthesia, and right breast swelling. She reported that her work entailed heavy lifting.
22 Dr Llave noted that Dr Madden of the Otway Medical Clinic had attended Ms Thornton at the Accident and Emergency Department of the Colac Hospital on 1 December 2008 after she had hit her head on a concrete floor following the fall of the 25‑kilogram sheep carcass. On that occasion, according to the record, she complained of occipital pain and pain in the low back with no neurological deficits. He noted continuing presentations to the clinic “with intermittent right shoulder pain and right arm paraesthesia despite medications, physiotherapy, and osteopathy”. He reported on his referrals of Ms Thornton to Mr John Skelley, orthopaedic surgeon, and Mr Conrad Brandt, a breast surgeon. (PCB 15)
23 Mr Skelley provided a report by way of letter dated 25 January 2010 to Ms Thornton’s solicitors. He described a consultation on 6 October 2009 on referral from Dr Llave of the Otway Medical Clinic. He noted that she had been injured at work as a result of a fall, but was working normal duties when he saw her. Her complaints were of pain at the back of her right shoulder which worsened on movement of the arm. She said it was “associated with paraesthesia down the arm and numbness in the fingers”. Mr Skelley found no deformity in the neck or right shoulder area. He said:
“There was no neck tenderness, which moved normally. There was some tenderness along the length of the right clavicle and over the right shoulder. Shoulder movements were reduced slightly, and there was pain near the end range of movement, particularly internal rotation. The shoulder joint was stable. Neurology in the right arm was normal.”
Radiological investigations included x‑rays of the neck and lumbo sacral spine on 1 December 2008, a right shoulder ultrasound on 26 May 2009, an x‑ray of the neck on 1 June 2009, and an ultrasound of the right shoulder on 10 September 2009, all of which were normal.
24 He commented, “This lady had seen an Osteopath, which didn’t help.” She had been prescribed anti-inflammatory medication “which she had to stop because she got side-effects”. Mr Skelley commented:
“I do not have a specific diagnosis for this lady’s symptoms. I suggested she have an MRI scan on her neck and shoulder, but has not had this yet.”
25 He said he was unable to give a prognosis or comment. He noted that as at 6 October Ms Thornton was working normal duties again. (PCB 16-17)
26 Orthopaedic surgeon Mr Lugg provided a report to Ms Thornton’s solicitors by way of letter dated 1 March 2010. He examined her on the first anniversary of the incident with the lamb carcass. Mr Lugg took a history that since this incident:
“she had suffered pain on the right side of her neck, down the right arm from the upper shoulder into the right forearm. ... This was associated with some posterior scapula pain, and tingling in the right arm as well, particularly when she abducted it beyond 90 degrees. She said sometimes there is a tendency for her to drop things because of her symptoms.”
27 He recorded that Ms Thornton had complained to him that she had been:
“... ridiculed by doctors who examined her on behalf of her employers (sic) Workcover insurer, by intimating that nothing was wrong with her, and by the fact that they disregarded statements made by her treating doctor.”
28 Mr Lugg found no particular abnormality in the neck or the shoulder. He said:
“There was no sign of any rotator cuff pathology, the AC joint was normal, the range of movement was normal in both the neck and the shoulder.”
29 He found no neurological abnormality. (PCB 18) Mr Lugg conceded he had not tested her shoulder for instability, but he said there was no complaint of symptoms which would indicate instability. He said:
“Movements of her neck did not reproduce any of the symptoms she described; although movements of the neck did reproduce some aching in the shoulder.” (PCB 19)
30 Under the heading ‘Imaging’, Mr Lugg said:
“I have not only read the reports but looked at the MRI scan myself. I could find no abnormality in either the plain x‑rays of the cervical spine or shoulder, nor any abnormality in the MRI scan of the cervical spine or shoulder.” (PCB 19)
31 Mr Lugg said that Ms Thornton was “genuine in her complaints”. Nevertheless, he said:
“My examination failed to pinpoint a likely diagnosis, and imaging was equally unhelpful in defining pathology within the shoulder or neck.”
32 Dr Connor of the Otway Medical Clinic furnished a report by way of letter dated 10 October 2013 to Ms Thornton’s solicitors. Dr Connor said that he had seen Ms Thornton on three occasions only relative to the injury sustained on 1 December 2008. He quoted a note from his clinical record of a consultation on 25 September 2012 which said:
“says Workcover have dumped her one year ago over her chronic low back pain, which started 1st December 2008 when a lamb fell off the chain at work and hit her head, knocking her to the ground. She has been paying for osteopathy privately, but this is now not helping much. Pain in the interscapular area for the last three years, enquiring re steroid injection etc. MRI in 2010 showed L2‑3 and L4‑5 and L5 S1 disc degeneration and broad based non compressive disc bulges without nerve compression, but thoracic spine [has] not been looked at.”
33 Dr Connor noted his finding, “tender spinal kinks at T4 and T7 and noted as a reason for contact – `thoracic spinal pain’”. He said that he ordered a “plain X‑ray and CT” scan of the thoracic spine and discussed a possible referral to the Metropolitan Spinal Clinic. He recorded himself as having said that “[Ms Thornton’s] Workcover case would need to be re-opened to fund possible treatment by the Metropolitan Spinal Clinic”. He said that his note of 16 October 2012 had him reporting to her that the scan of her thoracic spine “showed only calcification of the T7/8 and T8/9 discs”. He wrote a referral to Dr David Vivian and advised Ms Thornton to see her solicitors about reopening her WorkCover case. (PCB 20) He said a consultation with Ms Thornton on 23 July 2013 concerned an unrelated matter, but Ms Thornton said she had done nothing about seeing the Metropolitan Spinal Clinic, “but was now keen to proceed with that but that she had lost the previous referral, so I re‑referred her to Dr David Vivian.”
34 Dr Connor said that his limited involvement with Ms Thornton left him unable to respond to the solicitors’ detailed questions. He remarked, however, “Obviously the original MRI of her lumbar spine showed significant changes which make her totally unsuited for the heavy manual work that working at the abattoirs would entail.” (PCB 21)
35 Dr Connor sent a further report by way of letter dated 29 April 2015, stating that he had only seen Ms Thornton on one further occasion since his last report. On that occasion he said she was keen to pursue possible treatment at the Metropolitan Pain Clinic “for treatment of her mid thoracic spinal pain at about the T/7-8 level”. She told him at that time that she was paying privately to go to an osteopath every three weeks, finding it gave her relief and kept her able to work part time. (PCB 22)
36 Mr Alexander Adams, a registered osteopath, reported to Ms Thornton’s solicitors in a letter dated 18 October 2013. He noted Ms Thornton’s first attendance at the Colac Osteopathic Clinic as being on 11 December 2008 “with signs and symptoms suggestive of a lumbar disc/s prolapse”. He said, according to her osteopathic file: “Ms Thornton has had constant lower back and mid thoracic pain which is only temporarily relieved by manual therapy and medication”. (PCB 23) As of 19 April 2013, when Mr Adams first began treating Ms Thornton:
“She presented to me complaining of bilateral (right worse than left) pain through her mid thoracic region (inter scapular) which becomes worse with constant standing, relieved only ever temporarily by osteopathic treatment and medication.”
37 He reported her as saying that she had had that pain “since the initial incident on December 1st, 2008” but it had become worse “over the last 2 years”. Mr Adams’ diagnosis was of “chronic mid thoracic facet (T6-T9) joint irritation associated with chronic thoracic erector spinae postural strain, predisposed by her initial workplace injury (lumbar disc/s prolapse) and maintained by her poor posture”. (PCB 23)
38 Mr Adams said that leaving aside psychological or psychiatric issues, Ms Thornton was unfit for pre-injury duties for the foreseeable future. He said she would:
“... struggle to be able to perform any duties where she has to lift anything at or over 90 degrees repetitively. She may be able to do light duties where she is not continually lifting or straining, but to be able to go back to the job she was performing without pain would be unrealistic.”
39 Mr Adams said that Ms Thornton required “ongoing osteopathic treatment (once per month) to be able to manage her current pain levels”. (PCB 24) As to prognosis, he said:
“Since the original injury in December 2008, it is of my opinion that Ms Thornton’s original condition has progressed from being a lumbar disc bulge with associated lower back muscle pain and stiffness, to the thoracic spine, where she now suffers from chronically aggravated thoracic facet joints and postural based muscle strain through the thoracic erector spinae musculature.” (PCB 25)
40 Mr Adams provided a further report for the solicitors in a letter dated 10 October 2014. He maintained his diagnosis and his opinion as to Ms Thornton’s unfitness for her pre-accident duties. (PCB 26-27) He said, nevertheless that she would be able to retrain:
“... for a job, which does not involve repetitive standing or lifting movements (Ie a desk job) however; she may find that she is still in pain when doing this job. I believe that she needs ongoing treatment (once per month) to be able to manage her pain levels [I presume he is referring to osteopathic treatment].” (PCB 27)
41 Mr Adams repeated his comment about Ms Thornton’s original condition progressing from lumbar disc bulge to mid-thoracic problems deriving from aggravated thoracic facet joints.
42 Mr Adams provided a further report, undated, but fax markings suggest it was transmitted to Ms Thornton’s solicitors on 6 July 2015. He reported on his continuing treatment of Ms Thornton for interscapular pain commencing March 2013. (PCB 30) This report was generally to the same effect as the two previous ones.
43 The most recent report from the osteopathic clinic was over the signature of Mr Chris Huxtable. It said that in the period 10 October 2014 to 30 January 2016 Ms Thornton had received treatment “from various practitioners on fourteen occasions”. Her treatment related to complaints of:
· Thoracic spine (upper back)
· Cervical Spine (neck)
· Lumbar Spine (lower back)
· Shoulder.
44 He said she was now being treated following her involvement in a motorcar accident for the following:
· Right Shoulder
· Headaches
· Chronic Whiplash
· Chronic Pain Syndrome
· Right Hip
· Left Leg Compression
· Lumbar Spine - L2/3 disc desiccation.
45 Neurosurgeon Mr S Girish Nair examined Ms Thornton on referral from Dr Fatmira Pojani of the Otway Medical Clinic on 10 February 2016. He recorded her as complaining of:
“... constant headaches, pain on (sic) her right shoulder and also pain in her low back, hip and right buttock. She does not have any radicular pain down her arms and no pain extending beyond her right buttock. She does not have any problems with her left leg.” (PCB 35)
46 Commenting on radiological examinations, Mr Nair said:
“there does not seem to be any significant problems in her lumbar or thoracic spine or in the MRI of her cervical spine.” (PCB 36)
47 Mr Nair said he would investigate further by having Ms Thornton’s shoulder and clavicle x‑rayed with a CT scan of her brain and an MRI of her lumbosacral spine. He remarked:
“It is quite likely that most of her symptoms are related to soft tissue injury and post-concussion syndrome in which case she will need ongoing physiotherapy, pain relief and possible involvement of psychologist, etc to help her recover.” (PCB 36)
48 The most recent report from the Otway Medical Clinic was provided by Dr Fatmira Pojani. The doctor noted that she did not provide the initial treatment to Ms Thornton following the incident with the lamb carcass. She noted that in addition to this incident, Ms Thornton had received treatment from “multiple” doctors for the right shoulder injury in May 2009 and a left ankle injury in January 2016. She referred to the complicating effect of the 2015 transport accident. The doctor remarked:
“Allisha has continued to be able to work albeit in a less physically demanding environment moving since from the abattoirs to work with disability clients at Colanda.”
49 Dr Pojani said she was last consulted by Ms Thornton on 17 March 2017 with complaints of “ongoing pain in her lower back, hip and lower left lower leg.” She noted advice provided to her by “an independent specialist per TAC (Dr Tony Kostos) advising to go to a pain clinic. Dr Pojani said she made the necessary referral. (PCB 37) As to the pain clinic, the doctor said:
“I would imagine that [Ms Thornton] will have to wait several months before being seen.” (PCB 38)
50 Ms Thornton’s solicitors sent her assessment to orthopaedic surgeon, Mr Thomas Kossmann, where the solicitors apparently asked him to “provide an opinion with respect to the back injury that Ms Thornton suffered during the course of her employment with CRF Foods Pty Ltd [on 1 December 2008].” (PCB 39) Ms Thornton complained to Mr Kossmann of “ongoing back pain. She has difficulty sleeping as she cannot find a comfortable position and wakes up. She is able to walk.” (PCB 40)
51 Mr Kossmann noted that Ms Thornton brought with her an MRI of her lumbar spine and right and left hips, dated 11 October 2010. In addition, he had been provided by the solicitors with some 27 enclosures including various investigations and medical reports and what was described as “a number of affidavits”. Mr Kossmann measured Ms Thornton’s “whole spine movements”. (PCB 41) He diagnosed “discogenic back pain on the basis of mild degenerative changes lumbar spine” for the purposes of an impairment of permanent assessment in accordance with the AMA Guideline 4th Ed. He found:
“DRE Lumbosacral Category II [and therefore Whole Person Impairment of] 5%” (PCB 42)
52 He said that Ms Thornton had not “undergone any up-to-date imaging and I recommend a standing x‑ray of her lumbar spine, AP and lateral as well as an MRI.” (Ibid) He said that Ms Thornton had a work capacity “on a limited basis. She now works two 8-hour shifts per week and seems to cope with this.” (PCB 43)
53 Mr Kossmann carried out a further assessment for medico-legal purposes on which he reported in a letter to Ms Thornton’s solicitors dated 10 December 2016. Since the previous examination, Ms Thornton had been involved in a transport accident. Mr Kossmann noted:
“you have again advised me that I should answer the questions at the end of my report in relation to the work-related injury only and that I should exclude any impact of the motor vehicle accident, which Ms Thornton may have suffered.” (PCB 45)
54 He said that Ms Thornton “complained of ongoing back pain and this has not changed since I saw her back in April 2015.” He noted her complaining of difficulty in sleeping and reaching a comfortable position at night. He measured range of motion with the use of a goniometer of the thoracolumbar spine, the left hip, the right hip, the left knee and the right knee. (PCB 48) As to her prognosis, he said that it was
“… guarded. She suffers from ongoing pain in her lumbar spine, for which she will require further treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. There is a small risk that she may have to undergo surgery to her lumbar spine, if she suffers from increasing pain which cannot be treated conservatively or she suffers from a catastrophic disc prolapse.” (PCB 50)
55 He said that she had a work capacity and “works in two jobs in disability support, working full time hours.” (Ibid) He diagnosed:
“Discogenic back pain on the basis of mild degenerative changes lumbar spine as a result of the work-related injury from 1 December 2008.”
56 He also found signs of bursitis and pain and restriction of movement in the right hip. Once again he said that her prognosis was guarded. As to work capacity he noted her employment in two jobs in disability support and commented:
“Time will tell how long she will be able to continue with this work. I recommend that she abstain from walking long distances on uneven ground, up and down stairs, on inclines/declines, climbing up and down ladders and she should not kneel, squat or carry heavy items weighing more than 5 kg.” (PCB 52)
57 Mr Kossmann provided a supplementary report to the solicitors dated 14 May 2017. This report was not prepared following a further examination but in answer to a query from the solicitors who provided Mr Kossmann with clinical notes from Barwon Health, from Otway Medical Clinic and from Colac Osteo Clinic. They asked him to review that material and stated:
“we would be grateful if you could please provide a supplementary report commenting specifically on her work related injury and the impairment and effect this has had on her, excluding any impact from the motor vehicle accident she had on 10 November 2015.” (PCB 54)
58 Mr Kossmann adhered to his previous diagnosis and that the 2008 injury had, according to his supplementary report, the following impairment and effect on her as outlined in [his] previous report dated 10 December 2016, namely ongoing back pain and resultant sleep disturbance, pain in the left leg below the kneecap and pain in the right hip. (PCB 55)
59 Ms Thornton also underwent a range of medico-legal assessments at the request of the defendant.
60 She was examined by general and trauma surgeon, Mr Timothy Gale, at his rooms on 18 September 2009; that is, after the lamb carcass incident and the further incident and WorkCover claim in 2009. He recorded her describing the December 2008 incident and reporting:
“She had pain in the neck, pain in the lower back and right buttock region but at that stage had no symptoms affecting the right upper extremity [that is, the right arm].”
61 Mr Gale noted:
“About four months ago, the worker noted that she was suffering from intermittent tingling ‘pins and needles’ feeling affecting the whole of the right arm from the top of the shoulder down to the fingertips and ‘I'd lose all feeling’.”
62 This seems to be a reference to the incident or incidents in May of 2009. (Defendant’s Court Book (“DCB”) 6) Mr Gale noted:
“The worker has no symptoms referrable to the neck. She still has some intermittent discomfort in the low lumbar spine area and right buttock area that she dates from the previous fall at work in December 2008.” (Ibid)
63 He said:
“The precise pathology is difficult to determine based on current clinical evaluation. She has a variety of symptoms that cannot be explained on the basis of one single pathology. It is probable that as a result of this repetitive use of the right upper extremity, she has an occupational regional pain syndrome centred on the right shoulder girdle with possibly some musculoligamentous strain.” (DCB 7)
64 Mr Gale said that Ms Thornton’s medical condition had not stabilised:
“…and as I believe there is likely to be, based on current physical examination findings today, a non-organic component to her symptomology … “ (DCB 10)
65 On 28 October 2009, Ms Thornton attended Dr Ralph Poppenbeek, occupational physician. The doctor reported the results of his examination and assessment to the WorkCover insurer. The doctor took a history from Ms Thornton that at the time of the lamb carcass incident:
“she had pain in the lower back and right buttock and also interscapular pain, which occurred when she was having physiotherapy later.”
66 He recorded development:
“in about June this year [viz 2009], she developed right shoulder girdle/trapezius pain, extending to the base of the neck and the right shoulder blade.”
67 Dr Poppenbeek also noted that Ms Thornton said she was forced to attend an osteopath by her employer and:
“She claims that she attended for two treatments, which increased her pain. She states that her doctor advised her not to continue with this treatment.” (DCB 13)
68 The doctor referred to Ms Thornton’s “back condition”:
“but I understand that the back condition is not the subject of the current claim.” (DCB 16-17)
69 The doctor was assessing Ms Thornton relative to the claim for the 2009 problem with her right shoulder. The doctor provided a supplementary report to the insurer dated 9 April 2010. He note that:
“As it is well over one year since injury, I would expect the work injury to have resolved by now. Employment should not continue to materially contribute to her current incapacity.” (DCB 20)
70 Dr Poppenbeek conducted a further examination of Ms Thornton on 30 April 2010 reporting to the insurer in a letter dated 7 May 2010. The doctor said:
“I think there has still been a problem with a correct, precision diagnosis for this patient. On this occasion tests for thoracic outlet syndrome are mildly and equivocally positive, but I note that there is no evidence of cervical rib or other obvious abnormality in the cervical spine/right shoulder region. … Nonetheless, the examination findings are not conclusive and thoracic outlet syndrome is only suggested really from the history.” (DCB 23)
71 He said:
“Thoracic outlet syndrome and fibrositis in my view, are constitutional disorders. These would have been aggravated by the work injuries as outlined in my last report. There is therefore a combination of constitutional disorder and work aggravation of such disorder.” (DCB 24)
72 Ms Thornton was assessed by Dr Hedley T Griffiths of Barwon Rheumatology Service, Bone and Joint Specialists. The doctor reported in a letter to the WorkCover insurer. The doctor took a history from Ms Thornton of the event in December 2008, saying:
“She stated that she immediately felt diffuse pain across the low back and also on the right side of her neck.”
73 He referred to the increase in shoulder symptoms in 2009 and remarked:
“The low back symptoms were described as being provoked by standing or walking more than half an hour and also if working with a slightly flexed/stooped posture. She tries to avoid forward bending.” (DCB 29)
74 Dr Griffiths reported:
“Ms Thornton had clinical features of a regional pain syndrome which I think can be classified as myofascial pain syndrome. The condition is a variant of fibromyalgia syndrome with more localised pain and soft tissue tenderness. … The definitive aetiology of myofascial pain syndrome is unknown. The basis of this condition is thought to relate predominantly to psychosocial factors interacting with individuals’ personalities, coping skills, expectations and beliefs. She described the onset of her pain occurring after being pushed to the ground by a lamb carcass falling from an overhanging hook. I do not think that this incident resulted in any direct damage to the soft tissues, it is more likely her psychological reaction to the incident that has resulted in the chronic pain syndrome. There are no physical aspects of her employment that are causal to this condition.” (DCB 31)
75 The WorkCover insurer had Ms Thornton attend psychiatrist, Dr Rod Farnbach, for assessment on 19 July 2011. The doctor provided his report to the insurer by letter of the same date. The doctor took a history of the December 2008 incident and said:
“Ms Thornton complained of pain in her right shoulder and between the scapulae and in her lower back, the latter pain being the most severe.” (DCB 34)
76 Dr Farnbach concluded that Ms Thornton “has no diagnosable psychiatric condition and needs no treatment.” (DCB 38)
77 On 1 August 2011, Ms Thornton attended Dr Gary Davison, occupational physician. Dr Davison recorded that Ms Thornton told him:
“she continues to experience pain and stiffness in the lower back, aggravated by prolonged postures. She said, ‘it’s terrible at the moment’ and 10 weeks ago inexplicably [she] experienced worsening pain, for which she has sought osteopathic treatment.” (DCB 44)
78 The doctor said “the worker noted similar but less severe symptoms in the left scapular region.” (Ibid)
79 On examination, the doctor recorded:
“Waddell’s signs were positive for light touch, light axial pressure and apparent spinal movement. There was widespread myofascial tenderness to light touch throughout the neck and shoulder girdles bilaterally, namely in the distribution of the trapezius muscles bilaterally. There was no tenderness within the sternomastoid muscles bilaterally.” (DCB 45)
80 The doctor diagnosed Ms Thornton as having developed “a Chronic Regional Pain Syndrome.” He said:
“the worker’s condition has become medicalised through the ongoing prescription of various passive treatments and the prescribing of opiate-based analgesia. … Passive therapies are likely to entrench illness belief and result in worsening symptoms.” (DCB 47)
81 On 23 March 2015, Ms Thornton attended general surgeon, Mr Michael Long, for assessment. Mr Long reported on his examination to the defendant’s solicitors in a letter dated 29 March 2015. Mr Long reported a complaint of pain in the thoracic spine, stating:
“This is mid-thoracic and present ’70% of the time’ and is 6/10 in severity. It is more marked in the morning and aggravated by bending and movement. It also troubles her when travelling by car when it is necessary to stop every 40 minutes or so and walk around.” (DCB 52)
82 Mr Long recorded tenderness in the lumbar spine and as to the thoracic spine:
“Tenderness to light percussion mid-thoracic region, but no other specific abnormality.” (DCB 56)
83 Mr Long recorded a history of the aftermath of the December 2008 accident as follows:
“Initially she was aware of pain in her lumbar back, which was severe and she was admitted to hospital for up to five days for pain relief. After some time off work, she returned to lighter duties and then full duties, probably in February/March 2009. She indicated that her back pain gradually diminished, however, following the injury she was aware of pain in the mid-thoracic back, which has continued.”
84 Mr Long commented:
“Radiological investigations of her neck, right shoulder, thoracic and lumbar spine have not revealed any particular abnormality.” (DCB 57)
85 Mr Long said:
“It is regarded that the injuries sustained at work on 1 December 2008 caused soft tissue ligamentous injury to her lumbar and thoracic spine.”
86 Mr Long said:
“Although she continues to have symptoms, particular in her thoracic back and minimal symptoms in her right shoulder, no specific clinical abnormality was noted, apart from mild tenderness in the mid-thoracic and lower lumbar region and some tenderness in the right trapezius and pain on full abduction of the right shoulder.” (DCB 59)
87 Mr Long said that, as at the date of his report, Ms Thornton had made a generally good recovery and was fit for duties in a more sedentary capacity than her heavy work at the abattoir. (Ibid)
88 Dr Peter Boys, consultant orthopaedic surgeon, provided a report to the Transport Accident Commission dated 31 August 2016, on the results from an examination which he conducted on Ms Thornton on 26 August 2016. Dr Boys was carrying out an assessment at the Commission’s request in connection with the transport accident in which Ms Thornton was involved on 10 November 2015. Recording the history which Ms Thornton gave him of her medical condition before the transport accident, Dr Boys recorded:
“This lady does relate a past thoracolumbar injury occurring in the course of employment at the abattoir in 2008 … Her lower back complaints resolved but she relates ongoing thoracic pain, the subject of osteopathic treatment [to the December 2008 incident]. Intermittent soreness in the mid-back region has been ongoing subsequent to that time. (DCB 63)
89 Dr Boys concluded that he could “identify no pre-existing condition referrable to the cervical or lumbar regions which is material to this lady’s presentation.” (DCB 66) He said, “I can identify no other non-transport accident related barriers to this lady’s return to work.” (DCB 68)
90 The Transport Accident Commission also had Ms Thornton assessed by Dr Tony Kostos, rheumatologist. She attended his rooms on 5 September 2016 and he furnished a report to the Commission by way of letter dated 13 September 2016. The history he received of the 2008 incident was as follows:
“She claims that she was told that she had ‘2 bulging discs’ and since then she has had ‘Osteo to keep me working’.” (DCB 72)
91 Dr Kostos remarked:
“This woman claims to have had pre-existing problems with her thoracic spine requiring ongoing osteopathic treatment but I note that she never continued with an exercise program.”
92 He said that she had a stiff spine and “there are some elements of a chronic pain syndrome present.” He remarked, “As is the case in the majority of patients with spinal pain the exact cause of the pain cannot be determined.” (DCB 74) Dr Kostos felt that Ms Thornton should not continue with osteopathic treatment. He said:
“She has had osteopathic treatment for the majority of this year [viz 2016] without any improvement in her pain and although she claims that her spine is moving more freely it is still stiff. She admits the Osteopath only provides a temporary improvement in pain for a day or two. She would be far better off being reassured about the nature of her spinal problems and be encouraged to go to the pool every day to exercise. This would be far more beneficial for her.” (DCB 74)
93 The defendant in this proceeding had Ms Thornton attend a re-examination by Mr Long on 9 November 2016. He provided a report of the results of his examination to the defendant’s solicitors by way of letter dated 12 November 2016. Mr Long reported a history that prior to the motor vehicle accident: “Thoracic spinal pain: had in part, resolved and she could ‘handle it with regular osteopathic treatments’.” (DCB 80) Following the transport accident, Ms Thornton told him:
“Upper thoracic spinal pain, which had been tolerable prior to the motor vehicle accident and controlled by osteopathic treatment is now constant and severe, ranging from 6 – 10/10 in severity. It is aggravated by physical activity.”
94 On examination of the thoracic spine, Mr Long found “Slight tenderness to percussion in the upper thoracic spine, maximal about T4, but no other specific abnormality.” Mr Long concluded:
“It is regarded that the contribution of Australian Lamb Colac Labour Hire Pty Ltd is negligible with regard to her present symptomology and disability.” (DCB 88)
95 Ms Thornton’s counsel, Mr Fehring and Mr Pierorazio, also placed reliance upon an impairment assessment under the Accident Compensation Act relative to the 1 December 2008 incident made by orthopaedic surgeon, Mr Brendan Dooley, which he made by way of letter to the WorkCover insurer dated 22 July 2010. Mr Dooley remarked:
“In this examination I am assessing only the nature of the worker’s lumbar-sacral spinal condition. The history and examination are consistent with soft tissue injury to the lumbar-sacral spine without referral of pain to either of her lower extremities and with no evidence of radiculopathy affecting either leg. Associated with the injury, at the same time she has probably suffered soft tissue injury to the thoracic spine as well with referred pain to her right shoulder, but she has no signs of a separate physical injury sustained to her right shoulder joint.” (PCB 71).
Conclusion
96 I have already narrated how in the course of the hearing of this application counsel for the plaintiff sought and obtained leave to amend her particulars of injury so as to add a reference to the thoracic spine. In opening Ms Thornton’s case, her leading counsel, Mr Fehring, said that Ms Thornton’s application depended upon persisting back pain caused by the incident with the lamb carcass on 1 December 2008, which pain was at the level between the shoulder blades, either the upper lumbar spine or the thoracic spine. I suggested a description of the pain as interscapular and he agreed. (T4, L23‑27) Mr Fehring said that, whilst his client “did have difficulties with her [right] shoulder … we do not claim that now to be productive of the serious injury.” (T7, L4-6) He agreed that the focus [was] now “ … on thoracic spine”. (Ibid, L8 and 9)
97 In his opening remarks, Mr Middleton QC, senior counsel for the defendant, identified the issue on which his client relied to oppose the grant of leave was that: “through the course of events preceding the transport accident [and after the lamb carcass incident], that the plaintiff complained of right shoulder problems, and then there is, what we call for want of a better word, a morphing of her condition to the osteopath in about 2013.”, the osteopath being Mr Adams, in his report to the plaintiff’s solicitors of 18 October 2013. (PCB 23) Mr Middleton QC’s cross-examination was aimed at making good this interpretation of events and suggesting that thoracic pain manifesting itself as late as 2013 could not have been a consequence of the transport accident in December 2008.
98 Mr Fehring made a number of responses. He said there was no doubt that his client had suffered an injury to her back. He referred to the WorkCover claim form filed following the carcass incident which in paragraph 3, in answer to the question: “For what injury/condition(s) are you claiming impairment benefits?” the word inserted was “Back”. He took me to the determination by the WorkCover Authority granting Ms Thornton impairment benefits based on a finding of a 5 per cent whole person impairment, based upon the opinion of orthopaedic surgeon, Mr Brendan Dooley. (PCB 64-69) He referred to Mr Dooley’s opinion which formed the basis for the impairment assessment in his letter to the WorkCover insurer dated 22 July 2010, where he took a history of back pain suffered by Ms Thornton, detailing complaints of pain mainly in the lower back and right buttock region but later radiating to the thoracic area of the spine. (PCB 70) He noted that Mr Dooley stated in his determination that he was:
“… assessing only the nature of the worker’s lumbo-sacral spinal condition. The history and examination are consistent with soft tissue injury to the lumbo-sacral spine without referral of pain to either of her lower extremities and with no evidence of radiculopathy affecting either leg. Associated with the injury at the same time she has probably suffered soft tissue injury to the thoracic spine as well with referred pain to her right shoulder, but she has no signs of a separate physical injury sustained to her right shoulder joint.” (PCB 71)
99 Mr Fehring noted that for the application of the definition of “serious injury”, the spine is to be treated as a single bodily unit. (Transport Accident Commission v Zepic [2013] VSCA 232) This, he said, made good an entitlement on Ms Thornton’s part to be found to have suffered a serious injury to her spine based on pain in the upper thoracic or interscapular region.
100 The opinion of Mr Dooley just quoted and other references in Ms Thornton’s clinical history demonstrate that the thoracic or interscapular pain was not something which manifested itself for the first time by way of complaint to an osteopath in 2013 as Mr Middleton QC had contended.
101 Mr Fehring conceded that there was no clear radiological evidence which was supportive of serious back pain in the mid-thoracic or interscapular area or at other levels for that matter. There was some minor degeneration in the lumbo-sacral spine with no evidence of nerve impingement and at the thoracic level no evidence of anything other than some calcification at T7/8 and T8/9. (PCB 20)
102 Mr Fehring submitted that the proper approach to the complication constituted by the 2015 transport accident was to consider the situation which obtained prior to the further injuries which were sustained at that time. He said that a consideration of these matters which are described in Ms Thornton’s first affidavit sworn 20 November 2014, would demonstrate that a finding of a serious injury on the basis of which leave to bring a damages claim should be granted ought to be made. He said acceptance of the compensation claim was properly to be treated as an admission and evidence of the existence of the relevant injury. He referred to Ansett v Taylor [2006] VSCA 171. He did not contend that the acceptance of the claim for impairment benefits was conclusive. (T115-16)
103 Mr Fehring noted that his client had complained of interscapular pain to Dr Farnbach, psychiatrist, who assessed her for the Transport Accident Commission (DCB 33) and this complaint was made in 2011. One may also refer to the clinical note of Ms Thornton’s consultation at Otway Medical Clinic on 25 September 2012 with Dr Michael Connor, where he recorded her as complaining that she had suffered interscapular pain for the previous three years and inquired about a spinal injection at the Metropolitan Spinal Clinic. Dr Connor at that point suggested that her WorkCover case would need to be reopened. This entry is referred to in his report to the plaintiff’s solicitors of 10 October 2013. (PCB 20)
104 It follows that I cannot accept as being accurate the contention on behalf of the defendant that the interscapular pain was first raised as late as 2013. Nevertheless, the situation remains that the emphasis in Ms Thornton’s treatment remained upon her shoulder and her low back and not upon the thoracic spine. She was referred to orthopaedic specialists such as Dr Lugg and Mr Skelley relative to the shoulder with no mention of the thoracic spine at all. When, in his clinical note of 25 September 2012, Dr Connor referred to reopening Ms Thornton’s WorkCover case, he was implicitly conceding that the focus of her ongoing treatment which was managed by Otway Medical Clinic had not until then, that is for a period of almost four years after the carcass incident, been directed to dealing with pain in the thoracic spine at all.
105 It is a striking feature of the manner in which the plaintiff’s application for leave has been conducted that there is no reference at all in her principal affidavit in support sworn in November 2014 to pain in the thoracic spine or interscapular pain. There are references to back pain but nothing to suggest that the back pain was other than of the typical low back variety suffered by those injured doing heavy physical work such as Ms Thornton was doing at the abattoir. We find the same lack of specific reference to interscapular pain in her second affidavit sworn 28 April 2017. The concept of the back pain as having “morphed”, as Mr Middleton QC put it, seems to be supported by the statement by osteopath, Mr Adams, in his report of 18 October 2013 that:
“Since the original injury in December 2008, it is of my opinion that Ms Thornton’s original condition has progressed from being a lumbar disc bulge with associated lower back muscle pain and stiffness, to the thoracic spine, where she now suffers from chronically aggravated thoracic facet joints …” (PCB 25),
though at PCB 23, he does describe Ms Thornton as having complained to him in April 2013 that she had suffered interscapular pain “since the original incident”. Within the total volume of material relative to Ms Thornton’s injuries in the carcass incident, the thoracic spine makes only fleeting appearances during the early years. This, together with the lack of pathology to explain it, leads one to be sceptical, as a number of defendant’s examiners have been, as to whether there is an organic basis for the interscapular pain.
106 As noted above, rheumatologist, Dr Kostos said that there are elements of a chronic pain syndrome present. (DCB 74) Dr Nigel Wood found, “clinical features of a regional pain syndrome.” (DCB 31) Dr Gary Davison, occupational physician, said that Ms Thornton had chronic regional pain syndrome and that her condition had become “medicalised through the ongoing prescription of various passive treatments and the prescribing of opiate-based analgesia.” (DCB 47) He noted positive findings for Waddell’s signs. [79 above]
107 Expressions such as “chronic pain syndrome” denote pain which is non-organically generated. Section 134AB(38)(h) requires that such non-organically generated pain consequences be stripped away for the purposes of determining the evidence of a serious injury under paragraph (a) of the definition.
108 Where a question arises as to whether the consequences of an allegedly serious injury are driven organically or functionally by some form of pain syndrome, the Court of Appeal has approved analysis in a two-step manner.
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contribution.
If, however, that first question is not – or cannot be – answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.” (Meadow v Lichmore Pty Ltd [2013] VSCA 201 [21] – [22] and [24] per Maxwell ACJ.)
109 For the purposes of the application of the definition of “serious injury” in s134AB of the Accident Compensation Act, it is necessary to exclude physical consequences of psychological injury from consideration of whether the consequences satisfy paragraph (a) of the definition of serious injury. These are to be considered solely for the purposes of paragraph (c) of the definition as a psychological or behavioural disorder.
110 I raised this issue with Mr Fehring in the course of his final address. (T118, L27 – T119, L12) Mr Fehring said, “I'll come to that, perhaps shortly, your Honour.” Ultimately, the only comment he seemed to make on the point was to refer to a passage from the report of Dr Kostos. (DCB 74). The doctor said, “As is the case in the majority of patients with spinal pain the exact cause of the pain cannot be determined.”
111 In my view, it has not been demonstrated that there was a substantially organic cause for the interscapular back pain. Mr Dooley accepted that there was a soft tissue injury to the thoracic spine without suggesting that the soft tissue injury could itself provide consequences such that it could be regarded as a serious injury. The relative lack of emphasis on the thoracic spine, which I have noted above, and the absence of any objective evidence of any injury to the bony structures or in any persisting way to soft tissue in that region, means that the plaintiff has not demonstrated an organic basis for the pain and suffering consequences relative to this injury.
112 Ms Thornton referred to “the back” as the injury for which she claimed impairment benefits; but in answer to the next question on the claim form she said the body part affected was the “lower back”.
113 I do not believe that a finding that Ms Thornton’s pain is not organically driven requires a finding that she suffers a diagnosable psychological disorder. Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 referred to “Pain Disorder” as described in the Diagnostic and Statistical Manual of Mental Disorders. Dr Farnbach made no such diagnosis; nevertheless, he did refer to her having a “pain syndrome”. (DCB 39)
114 It follows, therefore, that these matters can be considered as consequences pointing to a serious injury only for the purposes of paragraph (c) of the definition of “serious injury”; that is, the one relating to psychological disorders or disturbances. No reliance has been placed by the plaintiff on this paragraph. Her application for leave to bring a damages claim must be rejected on that basis alone.
115 Leave to bring a damages claim is refused.
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