Topaltsis v Crane Distribution Limited
[2013] VCC 844
•28 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-03495
| LISA TOPALTSIS | Plaintiff |
| v | |
| CRANE DISTRIBUTION LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 9 May 2013 | |
DATE OF JUDGMENT: | 28 June 2013 | |
CASE MAY BE CITED AS: | Topaltsis v Crane Distribution Limited | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 844 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Garnham | Slater & Gordon Ltd |
| For the Defendant | Mrs B A Myers | Hall & Wilcox |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence a proceeding claiming for pain and suffering damages by reason of injuries suffered by her in the course of her employment with the defendant.
2 In the proceeding the plaintiff relies upon two affidavits sworn by her on 28 November 2011 and 22 April 2013 respectively, and an affidavit of her sister affirmed on 23 April 2013. In addition, the plaintiff gave viva voce evidence and was cross-examined in the course of the proceeding. Otherwise the parties rely upon medical and like reports tendered by them.
3 The contents of the affidavits relied upon by the plaintiff in this proceeding are a matter of record, and no purpose is served by setting out in detail the material contained in those affidavits, which I have read and taken account of in determining the issues which arise for me in this application. It is appropriate, however, that I provide a brief summary of the affidavit material relied upon by the plaintiff.
The Plaintiff’s affidavit evidence
4 In an affidavit dated 28 November 2011, the plaintiff deposed that following her injury on 20 August 2009, she suffered low-back pain and was taken to the Rosebud Hospital. She was initially absent from work for six weeks and then returned on reduced hours undertaking modified duties which involved lifting restrictions and avoiding strenuous activities such as vacuuming and cleaning.
5 As at November 2011, the plaintiff had returned to full-time work on modified duties which she described as entailing “the lifting restriction of no repetitive lifting of more than 5 kilograms”. The plaintiff at that time expressed concern that her employment was in jeopardy as she was failing to meet her sales targets, explaining that her back injury placed physical restrictions upon her work. The plaintiff said she was restricted in her household work and gardening work, was limited in her ability to play and interact with her nieces and nephews, and was restricted in her ability to go fishing and undertake activities such as riding a jet ski.
6 In her second affidavit dated 22 April 2013, the plaintiff said that she suffered from constant back pain which extended into her buttock region and into the back of her left leg. She said that because of this pain, she had difficulty carrying out activities involving bending, twisting and lifting heavier weights. She was limited in her ability to walk long distances. She said she took approximately two to four Panadol tablets a day, and if her pain was worse, she would use Nurofen. She also took two Voltaren tablets a day. She said that she received assistance with her household chores and was provided with two hours of house cleaning assistance each fortnight and one hour of gardening assistance per month. She said she employed the household assistance to undertake the vacuuming of the floors and the cleaning of her bathroom.
7 The plaintiff said that her employment with Tradelink had been terminated in November 2011, and that since her termination she had applied for a number of jobs including working as a showroom consultant and as a sales person. She described herself being limited in her leisure pursuits, such that she was no longer able to go fishing or ride a jet ski.
8 Mrs Sophie Balatsis, the plaintiff’s sister, in an affidavit dated 23 April 2013, deposed as follows:
· Before her sister injured her back they would go shopping, for a coffee or to the cinema nearly every week, and the plaintiff would regularly visit with her and her children at the house in Rye. She said that the plaintiff regularly went fishing and enjoyed jet skiing. She described the plaintiff as being physically active, playing with her nieces and nephews and going for walks around Rye.
· Following the plaintiff’s injury, she socialised less with her sister and her sister had put on a significant amount of weight, that whereas her sister had been a keen gardener, she was now limited in her ability to garden. Her sister had been unable to go fishing and that her sister had had to give up her fishing and jet skiing as those activities aggravated her symptoms.
The viva voce evidence of the Plaintiff
9 The plaintiff gave evidence that since being retrenched by the defendant she had applied for a large number of jobs such as sales assistant, showroom consultant, medical receptionist and working in a coffee shop. She said she also had undertaken a drop off with her résumé:
“I do a lot of drop offs to just local businesses. It could’ve been just – even everywhere. Coffee shops. I think towards the end I just felt like I needed to get a job.”
10 The plaintiff said that:
· Since 2009, the range of movement in her back had been pretty much the same and that it had not improved.
· She enjoyed the company of her four grandchildren, who are aged between seventeen and six, and that on occasions two of them would stay overnight with her during school holidays. She said that she retained the ability to socialise with friends and that she went out in the evenings with her girlfriends or with her previous boyfriend, maybe once a week - once a fortnight.
11 In cross-examination, the plaintiff presented as a poor historian who exhibited an extremely poor memory and a tendency towards evasiveness, the presence of which traits are evident in my opinion, to varying degrees, in the following passages of evidence:
(i) The plaintiff was questioned as to her symptoms as at January 2011. It was put to her that she consulted her physiotherapist on 20 January 2011, who recorded at that time:
“No back pain, hips a bit achy, but been doing heaps of walking. Uncle over from Greece.”
The plaintiff was asked:
“Q: It was the position as you described it to the physiotherapist?---
A: I'm sure I described – I can’t remember exactly what I told her but I'm just going by what I'm seeing what she has written herself.
Q: Do you disagree that that’s an accurate account of how you were reporting your symptoms to her?---
A: I mean here it’s got no back pain. I wouldn’t say no back pain at all.
Q: So you would not have no back pain?---
A: I could have I can’t remember.”
(ii) It was put to the plaintiff that in March 2011, she had presented to her general practitioner, who had recorded a history that her back was much better.
“A: I can’t recall back - - -
Q: It might have been?---
A: I can’t recall.
…
Q: Do you think it’s right that you told the GP that you continued with intermittent lumbar pain and were having physiotherapy?---
A: I can’t recall.”
(iii) It was put to the plaintiff that in June 2011, she presented to her general practitioner with intermittent lumbar back pain, to which the plaintiff responded, “I can’t recall”. When pressed on this issue as to whether her symptoms were present continuously or intermittently, the plaintiff responded:
“I can’t say back then how it was, I mean, with my back pain.”
(iv) The plaintiff was asked whether in April 2012, she had told her general practitioner that she was suffering intermittent back pain, to which she responded:
“A: I really can’t recall exactly what I said – what words.
Q: About a year ago it is fair, would you describe your symptoms as then being intermittent, that is not always there but coming and going and not as being severe? So the two things I'm asking you. Did it come and go, was it not severe, as at 12 months ago?---
A: I sound like a parrot but I can’t, I'm sorry I can’t recall exactly. The pain – I've always had back pain. Intermittent, like that word, I can’t recall.
…
Q: In the last 12 months what do you say about whether your condition has got better or worse or stayed the same. What’s your impression?---
A: My impression is how I feel I've, I deal with the back pain every day.”
(v) The plaintiff was asked as to her presentation to her general practitioner in November 2012. It was put to her that she had provided a history that her back pain was “not flaring up too much, using less analgesics”, to which she responded: “I don’t recall saying those words”. The plaintiff was asked:
“Q: Is it possible, did you tell him that?---
A: I don’t recall. I can’t recall.
Q: Was that the position just a few months ago that your back wasn’t flaring up too much and you were using less pain relief?---
A: The pain relief I was still using, less, I don’t recall how many tablets but I use pain relief every day.
Q: Is it the position that in January 2013 you were having intermittent low back pain?---
A: I can’t recall.
Q: Was it the position in February this year that you only had occasion low back pain?---
A: It wouldn’t be occasional. I have lower back pain. … I wouldn’t use occasional I still have ongoing back pain … I constantly have pain in my back. There are times where it’s higher the pain but there is constant – I feel constant pressure on my back. I can feel that. … I can’t recall exactly what I would have said but I would have said I do have back pain on a daily basis.”
(vi) The plaintiff was questioned as to whether a few months ago her “back was not flaring up and you were using less pain relief”, to which she responded:
“The pain relief I was still using, less I don’t recall how many tablets but I use pain – relief every day.”
(vii) The plaintiff was questioned as to how often she had the symptoms emanating from her back into her leg, to which she responded:
“A: I do have pain in my leg like that runs down my bottom to the left but how often do I get it? I can’t say exactly how often but it is there.
Q: Every few months?---
A: It depends on activities my day, what I've done.
Q: So I could be every few months?---
A: I cannot say exactly.
Q: Well, can you do your best please?---
A: It could be, could be less. I can’t say exactly how often it is.
Q: Less often than every few months, you say it could be less, you mean less often than every few months. So perhaps every six months?---
A: No, it wouldn’t be six months.
Q: It’s more frequently than every six months you get pain in your left leg?---
A: I would say yes.
Q: But you couldn’t say how more frequently?---
A: No.
Q: During 2011 were you making an effort to walk frequently for exercise?---
A: I can’t recall how often I would walk.
Q: In 2011 did you walk for exercise?---
A: I did try to walk.
Q: How often?---
A: I can’t recall how often.
Q: More often than once a week?---
A: I can’t recall.
Q: You really don’t know?---
A: Well I can’t say exactly two years ago how many times I walked. No.”
(viii) The plaintiff was taken to records of her general practitioner, Dr Vasquez, which contained regular entries of the plaintiff presenting with back pain. On 21 March 2013, the following entry appears:
“Occasional flare up of the pain.”[1]
[1]This is clearly an entry relevant to back pain
On 19 February 2013, the following entry appears:
“Comes in to update certificate. Occasional low back pain.”
On 21 January 2013, the following entry appears:
“Having some intermittent low back pain.”
The plaintiff was asked whether it was the position in January 2013 that she was having intermittent low back pain to which she responded:
“I don’t know”
When pressed as to whether she had made such statements to Dr Vasquez the plaintiff said that she did not recall the words she had used when speaking to Dr Vasquez but maintained that she suffered from constant back pain which varied in intensity.
Given the above entries in the records of Dr Vanquez which are in turn consistent with the earlier entries in the plaintiff’s medical records as to the presence of a pattern of lumbar symptoms often described as intermittent and which are aggravated by activity and involve periodic flare ups, I do not find the evidence by the plaintiff as to the presence of constant symptoms of back pain to be persuasive.
(ix) The plaintiff was asked how long she continued with her gym program which she commenced in 2009. Her response was that she was not sure. The following exchange took place:
“Q: Months?---
A: It would have been a couple of months easy.
Q: Just two months or so?---
A: No it would have been more – long than that but the exact time I'm not sure.
Q: Well roughly?---
A: I can’t remember.”
(x) The plaintiff was asked as to whether she had been fishing since her injury.
“A: I might have gone but I know that consequences I was – yep, it really affected my back.
Q: How many times have you been fishing since you suffered your injury?---
A: Not even a handful – not – maybe once, I think, twice – maybe more. Just once, and I realised I couldn’t do it.
Q: So you think you’ve been once?---
A: Could have been once.
Q: No more than once?---
A: I wouldn’t think so, no.
Q: Where did you go when you went on the fishing trip?---
A: I can’t recall exactly where I went.
Q: Was it in the Bay?---
A: It would have been.
Q: Have you been away for fishing weekend since you suffered your injury?---
A: Not that I recall.
Q: Can you recall a fishing trip when you towed the boat and went somewhere? There were occasions when you and Arthur would tow his boat and go away for the weekend?---
A: I know we have towed been to Lakes Entrance, but exactly when, I think it might have been, gee, early 2000. I can’t remember exact dates. … We might have gone a way with a fishing boat but it doesn’t mean I actually went to the boat. His brother has a house. We might have gone to Lakes Entrance at the house but not specifically fishing myself.
Q: Because it would be inconsistent with what you’re saying about your restrictions if you went away with the boat and slept on the boat, wouldn’t it?---
A: I would think.
Q: Yes, it would?---
A: I would think.”
(xi) The plaintiff said that since her injury she had been on an interstate trip to Darwin. When asked what she did there, she responded: “Look around town”.
The plaintiff was asked specifically whether she had travelled to the Kakadu National Park. The plaintiff said that she had taken a coach tour to Kakadu, and was asked:
“Q: You took a coach into Kakadu and what did you do at Kakadu?---
A: Had a look around.
Q: And what did that involve?---
A: Having a look in the wild like the park.
Q: And going to waterholes?---
A: There was one waterhole, yes.
Q: Did you swim in the waterhole?---
A: I did.
Q: Did you do anything else when you were in Kakadu?---
A: No. Waterholes, had a look at the National Park.
Q: Did you go rock climbing?---
A: I wouldn’t say rock climbing, no.
Q: What did you do, then?---
A: I just had a look around in the National Park.
Q: So you didn’t go rock climbing?---
A: No the big rocks, no.”
12 The plaintiff was cross-examined as to a dialogue which appears in an entry recorded on her Facebook page dated 17 October 2011 as follows:
“Q: … Colleen Moffat asked the question: ‘Are you brown?’ And then did you make the response, ‘Not really a bit burnt but very hot sweating my arse off, 40 doing Kakadu and we went rock climbing was fun.’
A: I do read that, yes.
Q: No, my question is, did you make that reply?---
A: I can’t recall personally if I put it in. It is on my Facebook and rocking climbing I do recall Kakadu was a very rocky park. I wasn’t like rock climbing.
Q: It wasn’t scaling a wall, is that what you’re saying? You weren’t scaling walls by climbing vertical walls?---
A: No.
Q: So are you saying that you were doing boulder hopping across big rocks to get to waterholes?---
A: No.
Q: What did you mean when you referred to rock climbing?---
A: I think it was just – like the postcard, how can I put it, the – what’s the word, the surroundings it was rocky on the ground.
Q: Really – rocky?---
A: Yes.
Q: Rock climbing?---
A: Like rocky, the ground was like rocky.
Q: But rock climbing?---
A: But that term does not describe – rock climbing to me I suppose is - - -
Q: But they’re your words aren’t they?---
A: But I did not do rock climbing.
Q: Are they your words?---
A: They’re my Facebook page but did I put them in, look I really can’t recall three years ago exactly what I entered on my Facebook page but I've never done rock climbing.”
13 When further pressed as to whether she had made the above entry the plaintiff responded:
“Possibly I could, I can’t recall exactly, three or three years ago, three and a half years ago what entry I would have made but I did go to Darwin for three days.”
14 The plaintiff was cross-examined with respect to the number of further entries appearing on her on her Facebook page. She was taken to an entry dated 21 January 2010 which contained the following caption:
“Hey everyone, been away to Lakes Entrance, we took off for five days, hooked up the boat and off we went, time out and relaxed. Slept in the boat on the Tambo River. It was great, and of course I caught the biggest bream fish 44 cms, I told Arthur I should be called Lisa [Rex] Hunt, minus the kissing of the fish.”
15 The plaintiff did not deny making the entry but neither did she accept that she was the author of the entry, commenting:
“I'm trying to think back only because of what was happening with my father.” [2]
[2]The plaintiff explained that her Father was terminally ill at this time and had been admitted to hospital on 17 January and for this reason she was unsure whether this entry was correct.
16 The plaintiff was asked:
“Q: The last fishing trip you made to Lakes Entrance, did you sleep on the boat?---
A: Oh we did in the year 2000 I remember we slept on the boat.
Q: The last fishing trip you made to Lakes Entrance, do you recall sleeping on the boat?---
A: No, I can’t remember.
Q: But it’s possible?---
A: I honestly can’t remember if it was.”
17 In response to a question directed to the plaintiff from myself as to whether she recalled having made this particular entry, the plaintiff responded:
“I honestly can’t remember the entry, I think because of the timing – I can’t.”[3]
[3]I find this evidence to be unpersuasive having regard to the plaintiff’s statement that she had gone fishing very rarely since her injury which would suggest that if the rare occasion arose upon which she had engaged her previous hobby and she had “caught a large bream” (sic) and made a specific reference to Rex Hunt (which I interpret as being a reference to the well known practice of that fishing expert of kissing large fish which he had caught before releasing them) the occasion would have been memorable to her such that she would be in a position to confirm or deny both being involved in the activity and having made the entry.
18 The plaintiff was taken to a further photograph from her Facebook which depicted her with her uncle in the course of his visit from Greece. The plaintiff was asked:
“Q: There was a reference to you doing a lot of walking because your uncle from Greece was visiting?---
A: I know my uncle did a lot of walking while he was here.
Q: And we have a reference to you saying you had done a lot of walking because he was visiting?---
A: I can’t recall how much walking I would have done with him.”
19 In response to a question as to whether another entry on her Facebook as to activities which she had undertaken with her niece and nephew was made by her, and whether there was any reason for her to think that it was not made by her, the plaintiff responded:
“I can recall once we had an outing with a couple of girls and everyone’s phones became available and everyone was jumping on putting ridiculous comments. So it’s possible that anyone could grab my phone and made comments. It’s been done in the past.”
20 Having regard to the fact the relevant entry was made via the plaintiff’s mobile phone at 8.18am at a time at which the plaintiff was out with her niece and nephew, the plaintiff was asked:
Q: “You weren’t out and about with girlfriends?---
A: I wouldn’t have been out and about with girlfriends. I could have had a girlfriend over visiting. I can’t recall exactly.”[4]
[4]I find the plaintiff’s response to this question to be defensive and unpersuasive.
21 Immediately before video surveillance of the plaintiff was shown to her, the plaintiff was asked as to whether she could bend towards the ground at 90 degrees to which the plaintiff responded:
“I might – I would feel it. I would have a lot of pain doing it. I – possibly my body could do it but … I can’t say how many times I could do it. I'm sure my body could be it would be painful for me.”
22 Video surveillance was then shown to the plaintiff which depicted her sweeping her driveway and bending to collect material to place into a wheelie bin. The film was stopped at one stage and the plaintiff was asked whether she was sweeping with a broom:
A: “It must have been a broom.
Q: Yes, a large outside broom?---
A: Oh, a light broom, I'm not sure which broom but it looks like I could have swept a few leaves off the - - -
Q: Are you saying you were using a small inside broom?---
A: I’ve got like a soft inside broom.
Q: So is that what you were using there?---
A: I can’t recall what broom I was using. I can’t see the broom like - - -
Q: Can you not remember it was on 13 January this year?---
A: I can’t recall what broom but I do have two brooms outside in the garden.
Q: Would you agree you were repeatedly squatting and bending down at right angles to your legs picking things up?---
A: I was picking something off the ground yes some kind of leaves or - - -
Q: Do you agree you were squatting down repeatedly?---
A: Squatting, I was picking, squatting? I was picking up items off the ground - - -
Q: With a dust pan and brush you were picking things up?---
A: It’s what it appears to, yes.
Q: And you were putting them in a bin, were you?---
A: It would have been.”
23 Further video was then shown to the plaintiff which clearly depicted her employing a large outside broom and repeatedly moving either by bending her back or squatting to collect material and place it in a wheelie bin.
24 In my opinion, the video evidence did not depict the plaintiff performing any activity which was inconsistent with the nature of the injury with which she presents. It is rare that any video evidence could be persuasive as demonstrating a true capacity for activity having regard to the selective nature of such evidence which provides only a minuscule snapshot of activity from which the level of tolerance for repetitive activity is difficult to ascertain.
25 In this instance the plaintiff did not suggest that the video misrepresented her normal capacity for activity appropriately paced and the fact that the plaintiff was employing a large handled broom to undertake sweeping activities in circumstances in which she appeared to move freely and without inhibition so as to protect her back, when considered in the context of the plaintiff’s evidence that she was able only to sweep within her house minimally[5], is suggestive of the fact that the plaintiff was not providing a true statement as to her level of capacity and incapacity when she gave that evidence.
[5]See the plaintiff’s evidence referred to at paragraph25 of these reasons
26 Further, the plaintiff gave evidence as to a level of incapacity which I found to be inconsistent with that which I would have expected to be present having regard to the medical evidence adduced by the parties to which I will subsequently refer in these reasons, for example;
· When cross-examined as to activities she could perform in her house, the plaintiff said that she had a cleaner who mopped her floors, that she could not push a mop, that she undertook sweeping at a level which she described as being “very minimum” which response provoked the following questioning.
Q: “Minimally?---
A: Yes.
Q: What do you mean by that?---
A: I have a cleaner who does my chores and in between if it needs a little bit I – as minimally as I can”.
And further:
Q: “Do you do dusting at home?---
A: As minimalist as I can.
Q: So is that yes or no?---
A: To my limitations I can do a little bit of dusting.
Q: So you do dusting?---
A: Yes.
Q: And the home help that’s paid by WorkCover that’s two hours a fortnight, is it?---
A: That’s correct.”
· The plaintiff agreed that an occupational therapist had attended her house in order to assess her. She was asked:
Q: “Did you say to her you could do sweeping but with difficulty?---
A: I could have.
…
Q: Did you tell her you could do mopping but with difficulty?---
A: Maybe I could do a little bit but I have quite a big home so to the extent that I can do - - -
Q: Did you tell her you were able to do dusting at your home?---
A: My dusting at this height yes.”[6]
[6]The plaintiff demonstrated dusting at a height above her waist.
27 I find this evidence by the plaintiff as to the level of her inability to employ a broom or to dust to be unpersuasive given; the evidence as to the plaintiff’s symptoms detailed by Dr Vasquez in his 2013 report and the opinion expressed by Dr Vasquez as to the plaintiff’s capacity for activity in that report; when considered in the context of the plaintiff’s activities as depicted in the course of the video surveillance to which I have referred earlier.
28 The plaintiff was cross-examined as activities she undertook in her garden.
Q:“What have you been able to do in the garden since you suffered your injury?---
A:Specifically to tell you I can’t say exactly what but … very limited to what I can do in the garden.
Q:So what have you been able to do in the garden since your injury?---
A:I haven’t been able to jump into the gardens because the levels – just very limited garden. Maybe like I dig out a couple of weeds at like level from like the bottom level.
…
Q:So you’ve been able to pull out a couple of weeds at waist height. What else have you been able to do in the garden since you were injured?---
A:I don’t seem to get out a lot in the garden because of my restrictions so I can’t specifically say what I have and haven’t done in the garden.
Q:Well you have been working in the garden, have you not?---
A:Not specifically, no, maybe a couple of weeks. I wouldn’t say I'm out there digging.
Q:So you haven’t been digging, you have been pulling out a few weeks, there’s a lot in between that. I want to understand and I'm asking you to explain to the Court what is it that you have done in your garden since you’ve suffered your injury?---
A:I can’t answer that specifically what exactly I have done but due to the gardeners I don’t do a lot in the garden.
…
Q:So there’s sweeping and raking presumably to be done in the garden is there?---
A:No raking.
Q:Is there sweeping to be done in the garden?---
A:I know the garden does blower - - -
Q:I'm sorry?---
A:A blower – the gardener uses a blower.
Q:The gardener uses a blower, yes, so have you have been able to do sweeping in the garden since you were injured?---
A:No that I recall, no.
Q:You have not swept in the garden since you were injured?---
A:I can’t, maybe, I can’t recall exactly what I've done in the garden.
Q:You have told us that struggled to push a mop in the house and you sweep minimally in the house, so why would you be more likely to sweep in the garden with a garden broom?---
A:Yeah, I can’t recall exactly what. I know I can do limited things with restrictions. Exactly what I've done, I can’t recall exactly to what level I have gone in.”
29 In a response to a question directed to the plaintiff by myself seeking an explanation of her statement that she was able to do limited things with restrictions, the plaintiff said:
“I think with my issues – I have light back issues and it just, it depends on the activities what I can and can’t do. … Maybe I could do certain things but I would pay for them later. I can’t specifically say exactly what items, but I know if I ever push myself I do pay for the consequences with pain.”
30 Counsel then asked the plaintiff:
Q:“So you say you’ve pushed yourself on occasion?---
A:I might have, I might have, I can’t recall exactly days and times that I have but if I have I do realise I will pay for it.”
31 The plaintiff was asked if there was a weed at floor level, would she be able to “weed that?”:
“I’m sure I could get down there but I would suffer. I would pay the consequences.”
32 As I have commented, there were some aspects of the plaintiff’s evidence in the course of cross-examination which I found to be unconvincing namely;
· The plaintiff’s inability to remember whether she engaged in activities which were unusual and in respect of which I would have expected her to have some memory (such as the reported fishing trip);
· The plaintiff’s assertion that her condition was such that she could only undertake the most limited of sweeping or dusting when the plaintiff’s activity depicted in the video-surveillance to which I have referred gave an impression to the contrary.
· The plaintiff’s statements that she suffered from constant pain when the records of her various treating doctors over the years suggested otherwise.
33 Further, the plaintiff’s repeated inability to recall:
· Whether she made the statements appearing on her Facebook page as to activities she had undertaken; and
· Her vagueness as the activities she was actually capable of performing;[7]
created a strong impression for me that the plaintiff was being evasive; the activities depicted in the video evidence video to which I have referred, and the plaintiff’s viva voce evidence as to her ability to engage in that type of activity tending, in my opinion, to reinforce that impression.
[7] Examples of this can be seen in the instances of specific evidence given by the plaintiff to which I have previously referred, the following passage of evidence providing a good a good example:
34 For these reasons I find myself in a position in which I have such concerns as to the plaintiff’s reliability as a witness, that in determining this application I am satisfied that the approach which I should adopt is one in which I should;
· Scrutinize the plaintiff’s evidence as to her level of disability carefully;
· Rely significantly upon the opinions expressed by the plaintiff’s treating medical practitioners together with any other medical evidence which I consider to be persuasive as to the plaintiff’s level of capacity and symptoms;
and, should a dispute arise between those two sources of evidence, I should not prefer the plaintiff’s evidence over that of the relevant medical practitioners.
The medical evidence
35 In a report dated 15 December 2010, the plaintiff’s treating general practitioner, Dr Philip Basser, adopted the conclusion expressed by the radiologist, who reported upon a CT scan of the plaintiff’s spine dated 13 July 2010, namely, that the plaintiff presented with a small, posterolateral disc lesion at L4-5 which appeared to be causing some compromise of the exiting nerve root on the left which was unrelated to the plaintiff’s clinical features. At that time, Dr Basser opined that the prognosis for the plaintiff’s condition was that it was “likely to cause back pain from time to time”.
36 In a report dated 16 December 2010, Ms Erica Whitfield, a physiotherapist, reported that, upon the settlement of the acute phase of the plaintiff’s presentation, the plaintiff had a graduated return to work and, “As her injury improved appropriate tasks were added until she was able to complete all pre-injury duties”.
37 Ms Whitfield reported that the plaintiff consulted her in November 2010 with respect to a flare-up of her back, commenting:
“She stated that this wasn’t the first time it had been aggravated but this was considerably more debilitating than previous episodes. I feel that her core control is lacking and this is the reason for her recurrent flare ups of back pain. She feels that vacuuming the showroom tends to aggravate her back most. I was able to settle her acute symptoms quickly with ultrasound, soft tissue work, mobilising and Lumbar taping. She did not miss any work with this incident but once again Lisa was to avoid bending lifting and twisting movements for a week. I have seen her 6 times since the 16th November and all seems to be going well, with no problems at work.”
38 Dr Gamini Beneragama, general practitioner, first examined the plaintiff on 27 August 2009, at which time the plaintiff presented with tenderness in her back and buttocks but with a full range of movement, at which time Dr Beneragama arrived at “a clinical diagnosis of soft tissue damage”. Dr Beneragama certified the plaintiff as unfit for work between 24 August 2009 and 5 September 2009 and advised that she undergo physiotherapy treatment. He reports that he saw the plaintiff in January 2010, at which time the plaintiff reported that her back was still stiff, and again in September 2010, at which time the plaintiff reported that she was still having back pain. At that time, Dr Beneragama certified the plaintiff as being fit for alternate duties for the period of one month.
39 Dr Ivan Vasquez, general practitioner, in an undated report headed “Medical Certificate” and addressed to the plaintiff’s solicitors, opined that the plaintiff presented with a lumbar disc injury “causing intermittent lumbar pain”, commenting, “This type of condition will cause intermittent lumbar pain”, and opined:
· That there was no likelihood of any long term deterioration in the plaintiff’s condition as long as she avoided repetitive heavy lifting;
· That the plaintiff had a current capacity for pre-injury work in terms of hours, but with a restriction upon her activities so as to exclude repetitive activities involving heavy lifting, over 5 kilograms; and
· That “The pain at first impacted on some domestic chores which continues to do if it flares up (sic)”.
40 In a further report dated 1 May 2013, Dr Vasquez opined that the plaintiff’s “current intermittent pain and restrictions continue to relate to the initial injury”. He opined that the plaintiff was likely to continue to be restricted in activities which involve repetitive movement such as bending, lifting over 5 kilograms, twisting, pushing, pulling and kneeling, crouching or stooping, and that this position was likely to continue for the foreseeable future, and that the plaintiff was likely to be restricted in relation to social, domestic and recreational activities that require repetitive movements for the foreseeable future.
41 The tenor of the medical reports from the plaintiff’s treating doctors consistently suggest the presence of a condition in the plaintiff’s spine which is intermittent; aggravated by activities involving repetitive bending, lifting, twisting or handling weights, or the repetitive handling of weights greater than 5 kilograms.
42 Dr David Brownbill, consultant neurosurgeon, examined the plaintiff on 2 December 2011. On that occasion, Dr Brownbill obtained from the plaintiff a history of fluctuating back and leg pain which was present all the time and restricted every day domestic and recreational activities. He opined that the plaintiff had suffered soft tissue injuries to the structures about the lumbar spine with likely L4-5 intervertebral disc damage and that her condition had essentially stabilised, and he opined:
“I anticipate the pain is likely to continue in a fluctuating manner indefinitely although perhaps with overall some improvement with the passage of time”.
43 Dr Brownbill opined further that the plaintiff did not have a capacity to perform her full pre-injury duties and that her capacity for work involved –
“… employment that avoids heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.”
44 In a further report dated 21 March 2013, Dr Brownbill essentially maintained the position expressed by him in his earlier report.
45 Dr Helen Sutcliffe, occupational physician, in a report dated 30 November 2011, commented that the plaintiff had sustained a disc derangement at the L4-5 level of the lumbar spine with nerve root involvement and that the plaintiff presented with some findings consistent with radiculopathy in the left leg. She commented:
“I believe that Ms Topaltsis has permanent impairment of function as the result of the injury sustained and that she will have persisting loss of capacity to undertake lifting, bending, pushing, pulling or forceful movement of the lumbo sacral spine.”
46 Dr Sutcliffe opined that the plaintiff had no capacity to perform her pre-injury duties, commenting:
“Ms Topaltsis is continuing to perform modified duties as provided by her employer where she performs part of the tasks she previously undertook but avoiding prolonged sitting and standing and also avoiding lifting, bending, twisting, turning, pushing and pulling. She currently works in full time modified duties. Such modified duties would not be available with another employer. Ms Topaltsis has experience only in the occupation of show room consultant in the plumbing industry and so has limited capacity for other occupations.”
47 Mr Michael Dooley, orthopaedic surgeon, in a report dated 2 June 2012, reported that the plaintiff presented with ongoing intermittent back pain with superimposed exacerbations of pain and that she struggled with bending and lifting. He opined:
“From an orthopaedic point of view only, I believe Ms Topaltsis will continue to note some intermittent low back pain and lower limb pain. I would not expect her orthopaedic condition to deteriorate in time. I believe Ms Topaltsis can self-manage her condition.”
48 Mr Dooley further commented that the plaintiff’s presentation was contributed to by −
“… her psychological reaction to the circumstances of injury and subsequent pain. On balance, her described disability and the constancy and intensity of her ongoing pain are greater than one would expect to see for the injury sustained.”
49 In a further report dated 2 April 2013, Mr Dooley commented that his diagnosis and clinical impression was essentially as outlined in his previous report, opining that the plaintiff would be unfit to carry out heavy physical work which involved −
“… a lot of bending, twisting and lifting. She would be able to carry out light physical work and clerical duties.
The loss of lumbar spine function that has occurred as a result of the original injury will persist for the foreseeable future.”
50 Dr Kevin Fraser, rheumatologist, expressed an opinion that he was not convinced that the plaintiff presented with any ongoing work-related injury. Having regard to the extreme position taken by Mr Fraser, I find his opinion to be unconvincing.
51 Mr Robin Williams, orthopaedic surgeon, in a report dated 6 February 2013, opined that the plaintiff had sustained a contusion to her lower back “out of which she developed a type of chronic pain syndrome”, and that the plaintiff did not have a capacity to return to her pre-injury employment but that he believed that the plaintiff had a capacity to make use of a light weight broom or a mop, clean a bathroom including a bath and shower, dust at waist level employing a long-handled duster and vacuum at a self-paced level.
52 In a report dated 22 March 2012, Dr P D Clark opined that the plaintiff presented with a small, intervertebral disc lesion at the L4-5 level which was probably “an initial injury at the time and therefore I believe is work related”. Other than for the above, I do not find that the opinion expressed by Dr Clark to be of significant assistance in the task required of me, namely, to assess the consequences of the plaintiff’s injury upon her life and lifestyle.
53 I make a similar finding as to the report of Mr Peter Battlay dated 3 June 2011.
Findings
54 Adopting the analysis to which I have previously referred, and taking into account the medical opinions expressed by Dr Basser, Ms Whitfield, Dr Beneragama, Dr Vasquez and Mr Brownbill and Mr Dooley[8] I am satisfied that the plaintiff presents with a condition which involves not constant but fluctuating symptoms of pain which are exacerbated by activities which place pressure upon her spine, but that they do not preclude such activity.
[8]These two consultants have seen the plaintiff in 2013 are in my opinion in a good position to opine as to the plaintiff’s current presentation. Their opinions as to the plaintiff’s capacity for employment are consistent with that expressed by Dr Vasquez making their combined opinions persuasive.
55 In particular, I find the opinion expressed by Dr Vasquez, Mr Brownbill and Mr Dooley that the plaintiff would be fit to carry out light physical activity to be persuasive, taking into account in particular the fact that this was the type of work which the plaintiff was able to undertake during the period of her employment with the defendant which followed the sustaining by her of her injury.
56 Having made this finding, I do not find the plaintiff’s evidence:
· that she suffers from continuous symptoms of pain; or
· that she is limited in her ability to engage in any activity to the extent described by her both in her affidavit material and in her viva voce evidence, which suggests the presence of a very severe incapacity to undertake any activity other than those of the lightest nature;
to be persuasive, as it is inconsistent with the plaintiff possessing the capacity to engage in the physical activity involved in the work which I am satisfied the medical evidence establishes she is fit to undertake.
57 Further, much of the plaintiff’s evidence as to the limitations which her symptoms placed upon her level of activity was so vague, in particular as to:
(i) The frequency with which she suffered from leg pain;[9]
[9]T19-20
(ii) The activities she was able to undertake or not able to undertake in her garden;[10]
[10]T29-30
(iii) The level of her symptoms during the previous twelve months;[11]
[11]T52-53
that when this vagueness as to the consequences of her condition is considered in the context of:
· the finding I have made in paragraph 56 of these reasons;
· the medical records of Dr Vanquez, which present a picture of the plaintiff’s symptoms waxing and waning and being present on an intermittent basis in January 2013;
I find the evidence generally to be such that it is difficult for me to assess with any degree of satisfaction the severity of the plaintiff’s symptoms or the impact of those symptoms upon the plaintiff’s life and lifestyle.
58 I am satisfied that the plaintiff suffers from an injury to her lumbar spine which has permanent consequences in that it occasions to her intermittent symptoms of pain such that she should not undertake repetitive activity involving handling weights in excess of 5 kilograms or repetitive twisting, pushing, pulling, kneeling, crouching or stooping movements as opined upon by Dr Vanquez in his May 2013 report ( this being general the tenor of the medical evidence to which I have previously referred).
59 I am further satisfied for the reasons earlier set out that the plaintiff most probably suffers from intermittent symptoms of pain which are exacerbated by activity.
60 I am satisfied that the plaintiff’s symptoms are such that she would be able to engage in employment-related activity of the type she was undertaking in the course of her employment with the defendant at the time of her termination in November 2011 and general physical activity commensurate with that capacity for employment.
61 I am not satisfied that the plaintiff’s level of back pain is such that it impacts upon her life continuously, but rather that its presence is intermittent and is managed by the use by the plaintiff of non-prescription medication, her recourse to which I find myself unable to fix with any degree of certainty.
62 Equally, I am satisfied that the plaintiff remains able to engage in a broad range of social and recreational activity consistent with that depicted upon the plaintiff’s Facebook page and which involves activity commensurate with the plaintiff’s capacity for employment related activity. I accept that the plaintiff’s ability to engage in such activity would be, at times, precluded by her symptoms. I find myself however unable to fix with the requisite degree of certainty the regularity with which such restrictions would manifest themselves or the severity of such restrictions.
63 In all the circumstances, I am satisfied that whilst it is appropriate to describe the plaintiff as presenting with an impairment of function of her lumbar spine which may be appropriately described as being “significant”. I am not satisfied however that the plaintiff has established that her impairment the subject of this application meets the high threshold established by the definition of “serious injury” as employed by the Accident Compensation Act 1985, namely that the impairment is appropriately 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 or losses of body function.
64 Accordingly, I am not satisfied that the plaintiff is entitled to the leave which she seeks in this application.
65 I will hear the parties as to the form of the order which should be made having regard to my findings and also upon the issue of costs.
- - -
Q:“So what are the limited things that you could do in the garden, that’s what you’re being asked?---
A:Maybe I could do certain items but I would pay for them later on. I can’t specifically say exactly what items but I know if I ever push myself I do pay for the consequences with the pain.
Q:So you say you’ve pushed yourself on occasion?---
A:I might have, I might have, I can’t recall exactly, those times that I have but if I have I do realise I will pay for it.”
A further example being the plaintiff’s evidence as to the level of walking she engaged in with her Uncle whilst he was visiting from overseas to which I have previously referred.
0
0
0