Trejo v Waratah Aged Care Pty Ltd and VWA
[2011] VCC 1211
•14 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00735
| DELIA-LUISA TREJO | Plaintiff |
| v | |
| WARATAH AGED CARE PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 and 24 May 2011 |
| DATE OF JUDGMENT: | 14 June 2011 |
| CASE MAY BE CITED AS: | Trejo v Waratah Aged Care Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1211 |
REASONS FOR JUDGMENT
---
Catchwords: – ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB (16)(b) – application in respect of pain and suffering consequences associated with injury to the lumbar spine – aggravation of underlying condition to the spine – credit in issue – causation in issue.
---
| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Ms A MacTiernan | Grace Placencio Davies & Company Lawyers Pty Ltd |
| For the Defendants | Mr P Rattray QC with | Hall & Wilcox |
| Ms A Wood | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to commence a proceeding claiming damages for the pain and suffering consequences of an injury to her low-back which she sustained in the course of her employment with the first defendant. The injury relied upon by the plaintiff involves an aggravation, acceleration, exacerbation and/or deterioration of degenerative disc disease and facet joint arthritis between the L3-4 and the L5-S1 levels of the lumbar spine. The relevant impairment of function is that of the low-back.
2 In the application, the plaintiff relies upon three affidavits sworn by her on 14 September 2009, 15 October 2010 and 6 May 2011 respectively. In addition, the plaintiff gave viva voce evidence in the proceeding and was cross- examined. Otherwise the parties rely upon medical records and other material tendered by them.
3 In her first affidavit the plaintiff said:
•
That she had made a claim with respect to the injuries suffered to her back and to both of her hands in the course of her employment with the first defendant. (The plaintiff no longer relies in this application upon the injuries suffered by her to her hands);
•
That she commenced employment with the first defendant on 29 May 1999 and that the activities she was required to perform in the course of her employment would cause back pain from time to time, but nothing serious;
•
That in about November 2005, she commenced to feel symptoms of back pain in association with her work, as the result of which she consulted her local general practitioner, Dr Ayala. In this regard, the plaintiff deposed:
“I wanted to continue working because I had mortgage payments and car repayments, as well as other ordinary living expenses. Dr Ayala organised for me to have a CT scan but I put off having the scan because I thought the back pain might improve during the Christmas holidays.”[1]
[1] Plaintiff’s Court Book (“PCB”) 29
• That in January 2005, she underwent a CT scan and then: “Dr Ayala organised for me to have an injection put my back (sic)
to help get rid of the pain.”
• That early in 2006, she was absent from work for two weeks. Upon returning to work in March 2006, her hours of work were initially twenty- five hours a week, during which period she said she spent half her time working in the laundry and half her time working as a care attendant. The plaintiff said that during 2006 her hours were gradually increased until, by July 2006, she was working full-time duties with the assistance of a part-time worker in the laundry. She said: “Shortly after I returned to full time duties I had increased pain in the lower part of my left arm and also in the right wrist and forearm. I was supposed to be working fifteen hours a week’ light duties and the rest of the time in the laundry. I felt increased back pain after a couple of hours of working each shift, because I was still required to bend whilst putting items into the washing machine and out of the washing machine and into the drier and out of the drier.”
• That in late 2006, she was suffering from problems which involved pain and inflammation in her hands and wrists and in particular pins and needles and cramping in her right hand. The plaintiff said that notwithstanding the presence of these symptoms and the lodging of a compensation claim with respect to her right wrist by her, she continued to work until July 2007, at which time she was informed that the nursing home was being sold. Although she was told that all jobs would be retained, she was subsequently informed by letter dated 28 August 2007 that her employment was to be terminated. The plaintiff deposed: “I went to work the next day, a Thursday, and spoke to Wendy, a boss. I said ‘why is this happening’? And she said she hadn’t been able to get the new employers to employ me. Wendy said she couldn’t do anything. It turned out that every other staff member apart from me and a personal care attendant who was on afternoon shift and whose name I think is Pamela, who also had a WorkCover injury, were employed by the new owners.”
•
That since being retrenched by the first defendant she has not worked and that losing her job was the worst consequence of these injuries;
•
That her major problem at the time at which she swore her first affidavit related to the presence of back pain, about which she deposed:
“My sleep is interrupted, mainly because of back pain, but also I sometime wake with numbness in the hands. Because I don’t sleep well and because I have a constant level of pain and discomfort I feel tired during the day. I cannot do the same amount of work in [the] garden as I used to. I used to love gardening but I can’t do much digging because it causes increased pain in my back but also because I have weakness in both of the hands. My son helps me out with the gardening. Bending is uncomfortable. The pain increases with activities such as vacuuming, or bending, but at other times it will increase without activity. I don’t do any heavy lifting. I do my own housework but there is not much to do seeing as I am living by myself.”
(sic)
• That she was restricted in her ability to vacuum; to cook; to open jars and turn on taps by reason of the presence of symptoms in her hands; • That both the condition in her back and that which was present in her hands limited her in her ability to lift and carry her grandchildren; • That her average income prior to ceasing employment was a figure in the vicinity of $30,000 per annum. 4 In her second affidavit, the plaintiff said:
•
That she had separated from her husband in August 2008 and that by reason of the cessation of her worker’s compensation payments, she was unable to meet the mortgage payments in respect of the house which she jointly owned with her ex-husband in Hampton Park, the result being that she needed to sell her house, and that she had been forced to take up residence with one of her sons, his wife and their children;
•
That whist she enjoyed living with her son and his family, she would prefer to have her independence and to live in her own home;
•
That she suffered from pain and tingling in both her hands but that her major problem was back pain which varied from day to day and which was, on occasions, severe;
•
That her symptoms were aggravated by standing in one position, for which activity she had a tolerance of approximately ten minutes, and walking, in respect of which she had a tolerance of approximately one hour before she required a break. She said she employed Voltaren tablets which she took a couple of times a week to control her symptoms and also used Voltaren Gel on both her back and sometimes her right hand. She said she was unable to drive long distances;
•
That she had sought funding from WorkCover for lessons to improve her English or, alternatively, to undertake training as an activities officer but funding for neither of these programs was made available to her.
5 In her third affidavit, the plaintiff said:
• That her house had now been sold but that settlement had not taken place; • That she had never wished to become a WorkCover recipient and would have preferred to maintain her light duties employment with the first defendant; • That: “Ever since I got the back pain in late 2005 the pain in the back and legs has been up and down. The pain gets worse for no particular reason. Earlier this year it got bad again and I also had pain in the right buttock and down the back of the right thigh. Dr Ayala prescribed Prodeine Forte 500 milligrams and I took two of these tablets twice a day. They helped a little but not enough for me to do my already limited activities each day.
Dr Ayala organised another scan of my back … and another epidural into my back … the injection helped with the back pain a bit. The pain is still worse than it was last year. There were many days in January and February of this year when I was unable to leave the house because the pain was so bad.”
•
That she presently took Tramadol tablets in the morning and afternoon at least three times a week. She said that she tried to take the tablets only every second day because they caused her discomfort in her stomach. The plaintiff said she had difficulty sitting for long periods, with the result that she was no longer able to go to the cinema, that bending caused her discomfort and that the symptoms in her back were such that she would not presently be fit for work.
The Plaintiff’s Viva Voce Evidence
6 In evidence-in-chief, the plaintiff said that she presently took Tramadol – two tablets taken morning and night – with a frequency of approximately three days a week, to control her pain, and that she was required to take Buscopan to assist her with stomach pain associated with the use of her medication.
7 In cross-examination, the plaintiff said:
• That before she developed back pain whilst working for the first defendant she had suffered from symptoms of back pain which she described as being “on and off and not really bad pain”;[2] • That whilst she had no specific memory of these matters, she accepted that: [2] Transcript (“T”) 14
(i) she may have been prescribed Panamax for back pain in 1996 by her general practitioner, Dr Flores Vivas;
(ii) a CT scan of her lumbar spine may have been taken at that time and that she may have been referred for physiotherapy which she did not attend;[3]
[3] T 15-16
(iii) in July 1996, she consulted Dr Flores Vivas and was prescribed Voltaren for back pain;
(iv) she may have presented to Dr Flores Vivas in November 1999 with symptoms of back pain.
The plaintiff denied however, that symptoms of back pain caused her to be unfit for work in November 1999, commenting:
“That’s not true. I never stopped working since I start working
Springvale Nursing Home. I never had time off.”
(sic)
•
The plaintiff accepted that she misled Dr Kornan and Dr Duke as to the absence of any psychiatric problems in her life prior to the time at which she sustained her injury in 2005, accepting that:
(i) she had attempted suicide in 1997; (ii)
she had been prescribed Aropax for depression between 1997 and 1999; and that
(iii)
she had continued to suffer with depression by reason of family- related problems between that period and 2005, and explained her failure to acquaint Dr Kornan with her true history in the following terms:
“That didn’t have to be involved with my back pain.”[4]
[4] T 22
• As to the present source of her incapacity the plaintiff was asked:
Q:
“You’re blaming your work for your back pain, you’re also blaming your work for left arm pain, left carpal tunnel pain?---
A: Yes. Q: Does that affect you badly, the left carpal tunnel pain?--- A: Yes but I can’t cope with the pain.”[5] [5] T 26. An issue arises in the trial as to whether the transcript accurately records the plaintiff’s answer on this issue; specifically whether the plaintiff answered, “Yes, but I can’t cope with the pain” as distinct from, “Yes, but I can cope with the pain”. The impression I gained as the plaintiff spoke these words was that she was saying that she could cope with the symptoms in her arms. By reason of the fact that Counsel could not agree as to what was said by the plaintiff, the video recording of the plaintiff’s evidence was replayed in Court. Having listened to the video, whilst I am satisfied that the words spoken by the plaintiff sounded like “can’t’”, I am uncertain as to whether the sound of the word was influenced by the plaintiff’s strong accent, such that the transcript misrepresents the evidence actually given by the plaintiff. The fact that the plaintiff’s response included the word, “but”, heightens my concern in this regard, the result being that I am not satisfied that I should take into account the plaintiff’s evidence on this issue one way or another.
• The plaintiff agreed:
(i)
That her De Quervain’s Syndrome and her carpal tunnel syndrome had caused her problems in undertaking repetitive activity in the course of her employment during 2006 and at the present time she would be fit for work which involved no repetitive use of her arms or repetitive bending;[6]
(ii)
That she performed exercises at home every day for both her back and her hands;
(iii)
That at present one of her regular activities involved taking her grandchildren to school and picking them up;
(iv)
That she was able to drive locally but that she was unable to drive long distances because her hands became numb;
(v)
That she would do more cooking and cleaning of the house in which she resided with her son and daughter-in-law if both her son and daughter-in-law allowed her to perform those activities;
(vi)
That she went to watch her grandsons play soccer every week and would accompany her son’s family to Warrnambool each year for a holiday.
(vii)
That she had consulted Dr Ayala with severe symptoms of back pain in January 2011 which resulted in the plaintiff being referred for a CT scan and undergoing an epidural injection and that having consulted Dr Ayala in late March 2011 and in April 2011, she had not consulted her for that pain after that date:
[6] T 28-30
A: “Because I just go to ask for my prescription for them. Q: So you haven’t had any treatment apart from getting
more prescriptions?---A: Yes, because I have to do my exercise at home.”
(Viii) That she employed Tramadol both with respect to the pain in her arms and in her back and made use of Voltaren Gel on both her arms and sometimes in her back.
8 In re-examination, the plaintiff said that the strongest medication she had employed for the pain she suffered in her left and right arms was Voltaren, and that she had never been free of back pain since 2005.
9 When the plaintiff was asked as to why she had not told Dr Kornan about the depression associated with her family problems, she responded:
“I don’t know, I – I thought maybe what’s important for this case.”[7]
(sic)[7] T 58. I understood the plaintiff to be asserting that she considered the matter as not being relevant to her case; this being consistent with the plaintiff’s evidence at T 24.
10 The plaintiff was asked:
[8] T 58
Q: “What’s the problem that’s stopping you from working today?--- A: I don’t feel confident to go to find another job with another person, or working and assisting them if I can stop because I got pain in my back.”[8] (sic)
11 The plaintiff agreed that as at October 2010, the medical certificates provided by her general practitioner as to her capacity for work certified her as being fit for alternate duties involving no repetitive use of her left arm or repetitive bending.
The Surveillance Evidence
12 Video evidence was shown of the plaintiff which depicted her loading light items into her son’s caravan in December 2009 and both moving and bending without apparent restriction. When asked to comment as to the video evidence, the plaintiff said that while she had pain all the time, she had good days and bad days and that the extent of her ability to move as depicted in the video may have been influenced by medication which she took on that day.
13 Further very brief surveillance footage of the plaintiff taken on 6 November 2010 was shown, during which the plaintiff was depicted shopping with her grandson and generally moving in an unrestricted manner. This evoked the following passage of evidence:
“Q: Then again, it showed a person moving without any apparent
restriction?---A: That’s what I – you see me here, the same thing. Q: So you are having good day today, are you?--- A: I took some tablet this morning. Q: You’re having a good day today? A: Yes. Q: Did you take tablets on the day of that film of November 2010?--- A: Could be. Q: And in December 2009?--- A: Could be. Q: What tablets were you taking back in December 2009?--- A: Voltaren. Q: That’s all?--- A: Yes. Q: What about November 2010?--- A: Voltaren. Q: What about today?--- A: Tramadol.”[9] [9] T 49
14 I accept that the surveillance depicted the plaintiff to be moving in a generally unrestricted manner. I am of the opinion however, that the surveillance evidence is of little relevance to the issues which arise in the trial, both as to the plaintiff’s credit or her capacity, for the following reasons:
(i)
the range of movement which the plaintiff demonstrated in the course of the surveillance evidence is not inconsistent with that demonstrated by the plaintiff upon the repeated medico-legal examinations which she has undergone;
(ii)
The plaintiff was not, in my opinion, depicted as performing any activity which was inconsistent with the evidence she gave as to her capacity for activity;
(iii)
The evidence the plaintiff gave was that her symptoms varied in intensity between mild and severe which was also consistent with the history provided by her to Mr Klug;
(iv)
The surveillance evidence must be considered in light of the fact that it occupied no more than nine minutes and thirty seconds in total and yet surveillance was undertaken of the plaintiff for more than sixty hours.
The Medical Evidence
15 Dr Leena Ayala, the plaintiff’s general practitioner, in a report dated 6 March 2007, stated that the plaintiff first presented to her on 24 December 2005 with a history of –
“about one month … of worsening lower back pain, radiated to posterior aspect of right leg. She had been told by previous GP that she had a problem with her lumbar spine disc but no action was taking to investigate further.”
(sic)
16 Dr Ayala continued:
“At that stage she had not initiated a WorkCover claim because she was
afraid of this affecting her job stability.”[10]
[10] PCB 59
17 Dr Ayala reported:
•
that she had referred the plaintiff for a CT scan (which revealed the presence of disc bulging at the L3-4 and L4-5 level which at the lower level caused mild central canal narrowing and possible compression of the exiting right L5 nerve root); and that by reason of the correlation between the plaintiff’s symptoms and the CT scan finding, the plaintiff was referred for a right L4-L5 transforaminal epidural which was administered on 25 January 2006 which achieved an improvement in the plaintiff’s symptoms of approximately thirty per cent;
•
that as at January 2006, the plaintiff had presented complaining of severe pain and swelling of the left forearm and that by August 2006, the plaintiff was suffering from bilateral forearm tendonitis, and opined that:
ƒ the plaintiff was employed by the first defendant in light duties with
which the plaintiff was coping well;ƒ the plaintiff presented with: (i) chronic lower back pain secondary to demonstrated lumbar disc prolapses at L3-4 and L4-5;
(ii) tendonitis of the extensor tendons of the left thumb and left forearm;
(iii) right carpal tunnel syndrome;
and that each of these conditions were likely to be related to the
plaintiff’s work duties.
18 On 17 July 2009, Dr Ayala opined that the plaintiff had a permanent partial incapacity for work and that she was struggling in her work at the nursing home where, notwithstanding that she was performing light duties with the assistance of a part-time worker -
“… she was getting back pain after 2-3 hours of duties, associated to
hands and forearms pain.”
(sic).”
19 As to the condition of the plaintiff’s lumbar spine, Dr Ayala opined:
“She has a severe lumbar spine injury with mechanical compression of a nerve root. This is not going to improve by itself. Due to work-related overuse and aging processes, the injury is likely to deteriorate. The epidural injection gave her a transient relief of symptoms and later [she was] able to return to work, on light modified duties, but she will never be able to perform pre-injury duties.”
20 On 18 August 2009, Dr Ayala reported that the plaintiff had lost her position with the first defendant when the nursing home in which she was employed was sold and that this had caused her to become depressed and anxious.
21 On 1 November 2009, Dr Ayala opined that the plaintiff’s lumbar spine injury was likely to deteriorate and that a recent MRI scan:
“… showed central canal stenosis and foraminal stenosis at level L5/S1
that were not present on CT scan performed 11 January 06.”
(sic)
22 Dr Ayala continued:
“About bilateral forearm tendonitis, her symptoms fluctuate depending on use of hands. Considering aging process she’s likely to deteriorate as well. About lateral carpal tunnel syndrome, we know she did not have a good result from left side surgery, and she needs to have the surgery on left side.”
(sic)
23 In a report dated 14 September 2010, Dr Ayala reported:
(i)
with respect to the plaintiff’s lower back, that there had been little change in her presentation and that she was likely to continue to suffer from chronic lower back pain;
(ii)
that the plaintiff’s left De Quervain’s tenosynovitis had plateaued with a background of dull pain exacerbated by use;
(iii)
that the plaintiff’s bilateral forearm tendonitis was associated with swelling in the forearms, that this limited the plaintiff in her ability to perform home duties and that her condition had become chronic;
(iv)
that the plaintiff had undergone a right carpal tunnel decompression in April 2010 which had improved her condition only slightly and that the condition on the plaintiff’s left side was uncertain as she required surgery.
24 Dr Ayela commented:
“In my opinion, Mrs Trejo will have serious difficulties to be able to perform an alternative work because her work-related injuries affect both upper limbs and lower back. Her restrictions would be no repetitive use or lifting using both upper limbs, and no lifting or bending, or to be seated or standing for long periods. Considering the above restrictions, she could only perform office kind of work, but she does not have the skills or training to do it.”
25 In her final report dated 16 March 2011, Dr Ayala commented that the plaintiff had continued to consult her on a monthly basis and that in January 2011, she had experienced an exacerbation of her back pain which required treatment in the form of a CT-guided corticoid injection.
26 The plaintiff was examined by Mr Geoffrey Klug, neurosurgeon, on 10 November 2009. Mr Klug obtained from the plaintiff a history that she had developed back pain associated with duties performed by her in the course of her employment with the first defendant which involved:
“… considerable bending, twisting and lifting which were required on a repetitive basis. Up until the year 2005, when she first developed symptoms, she considered herself to be in good health.”
27 The plaintiff told Mr Klug that she continued to experience low-back pain of variable intensity which spread to the back of her right thigh and that whilst she had both good and bad days, the symptoms in her back and right thigh had never resolved.
28 Mr Klug opined:
• That the plaintiff presented with symptomatic lumbar spondylosis which was responsible for the presence of back pain with referred pain into the right lower limb. He commented that whilst the plaintiff presented with slight asymmetry of ankle tendon reflexes, it was his overall feeling that there was no clear evidence to suggest that the plaintiff was suffering from radiculopathy or other impairment of neurological function. • That it was probable that the nature of the plaintiff’s employment had led to an aggravation of – “… an underlying disorder with such being responsible for the emergence of symptoms which persist with some severity up until the present time.”
• That the plaintiff was unfit for unrestricted work involving the need to repetitively bend or lift or handle pressure or weights but that she would be fit for light physical activities such as working at a bench top but commented (overall) when one considers her background, it would be difficult to find suitable employment in the open market. 29 He described the plaintiff as presenting with moderate restriction of movement in the lumbar spine and commented that it was probable that the plaintiff’s current symptoms would persist, albeit with some waxing and waning on an indefinite basis.
30 In a report dated 5 October 2010, Mr Klug opined that the plaintiff’s presentation –
“… appears to be much as it was and that it was likely that her condition would persist indefinitely with ‘waxing and waning’ as regards the severity of the symptoms related to her back.”
and that the plaintiff was unfit for activities involving the need to bend, twist or lift on a repetitive basis or activity in which she was required to stand for lengthy periods; and commented that it was possible that the plaintiff could undertake some restricted type of employment which would not place strain upon her low-back, that her condition was stable and that there was unlikely to be any improvement in the condition which would have some adverse affect upon her ability to undertake the activities of daily living.
31 In a further report dated 2 May 2011, Mr Klug opined that the plaintiff had suffered a recent flare-up on 17 January 2011 and in the absence of any obvious cause for this flare-up, he was of the opinion that it was almost certainly related to her low-back disorder, in respect of which her employment was a material, although probably not the sole, contributing factor.
32 In a report dated 6 October 2010, Mr Hugh Weaver, an orthopaedic surgeon, obtained a history from the plaintiff that she commenced to experience pain in the low-back which affected her right buttock and right thigh; and opined:
• that the plaintiff was suffering from “a degree of genuine lumbar intervertebral disc degeneration” and that here was additional evidence that bilateral carpal tunnel syndrome might be present; • that the plaintiff’s lumbar disc pathology would make it difficult for her to undertake heavier physical forms of employment; and • that it was highly unlikely that the plaintiff was fit to return to her previous type of employment and that she was now limited to performing work of a much lighter character. 33 In a report dated 1 December 2010, Mr Weaver opined that the plaintiff’s work activities were –
“… responsible at the very least for aggravating problems involving her lumbar spine. In other words, I have accepted that there is a genuine low back problem present, something which reflects at least in part the aggravating effects of her employment activities as performed with the Springvale Nursing Home up to the point that Mrs Trejo was obliged to leave work with effect from September 2007 or thereabouts.”
34 In a further report dated 19 April 2011, Mr Weaver opined that –
“Mrs Trejo would again have little difficulty in arguing that the incident in which she was obliged to seek further treatment from her general practitioner, Dr Leena Ayala, on or about 17 January 2011 continues to reflect the overall character of her low back problem. As I have suggested previously, this lumbar condition reflects at least in part the continuing effects of work-related aggravation of a low back problem, then I think that Mrs Trejo can once again argue that the most recent incident which allegedly took place on 17 January 2011, does still reflect the effects of this low back problem which indeed I understand to have been troubling her from as far back as sometime around 2005.”
35 Mr Peter Scott, a general surgeon, who examined the plaintiff on behalf of the defendants, opined in a report dated 5 November 2010 that the plaintiff presented with:
“Chronic low-back pain, aggravated degenerative changes in the lumbosacral spine, best described as a chronic pain syndrome without evidence of lower-limb radiculopathy … .”
36 Mr Scott was of the view that the plaintiff’s prognosis was poor, that her incapacity resulted materially from her compensable condition,[11] and that the plaintiff was fit for light work which did not require –
“ … prolonged standing, prolonged sitting or repetitive bending or heavy lifting or twisting or turning or any activity which requires her to perform any repeated pulling or pushing movements with either upper limb.”
[11] Defendants’ Court Book (DCB”) 121
37 In a further report dated 7 April 2011, Mr Scott opined that his overall opinion had not changed; that the plaintiff presented with a Chronic Pain Syndrome affecting her lumbosacral spine, together with other problems, including bilateral carpal-tunnel syndrome and a left De Quervain’s tenosynovitis, and that he suspected that the plaintiff’s anxiety and depression magnified her overall presentation.
The Relationship between the Plaintiff’s Current Symptoms and her
Employment with the First Defendant38 Dr Chris Baker, specialist in occupational medicine, has examined the plaintiff on a number of occasions on behalf of the defendants. In a report dated 12 December 2006, Dr Baker opined that the plaintiff’s employment did not materially contribute to her complaint of pain and incapacity. In expressing that opinion, it would appear that Dr Baker relied on the following process of reasoning:
“Mrs Trejo is suffering from two separate conditions. She has symptomatic degenerative changes in her lower back. She notes that she has had symptoms for the last two years and they have progressed with time. I note that she did not make any complaint of back problems prior to going on holidays but appears to have suffered some right leg symptoms while on holiday and was investigated by her doctor when she returned and advised that her problems were coming from her back. From the history she gives, there is no obvious evidence of any significant work-related aggravation. I consider she has symptomatic degenerative changes in the back which have progressed with time.”
39 In a series of reports dated 6 August 2008, 14 April 2009, 22 July 2009, 31 July 2009, 20 August 2009, 13 August 2010 and 6 April 2011, Dr Baker maintained the position adopted by him in his initial report as to the relationship between the plaintiff’s symptoms and the work performed by her in the course of her employment with the first defendant. I do not find Dr Baker’s opinion in this regard persuasive, given what appears to be a flaw in his process of reasoning. Dr Baker opined that there was no obvious evidence of any significant work-related aggravation of the degenerative condition present in her spine. Contrary to that statement, it is not in issue that:
•
the plaintiff’s work involved repetitive bending as she handled heavy bags of linen and other items; and
•
the plaintiff developed back pain in November 2005, in respect of which she consulted Dr Ayala but made no claim for compensation at that time because she thought her back pain might improve during the Christmas holidays.
40 Whilst these matters alone call into question the opinion expressed by Dr Baker as to causation, when Dr Baker’s opinion is considered in light of:
(i) the support given by Dr Ayala, Mr Klug and Mr Weaver in respect of the plaintiff’s case as to causation; (ii) the finding of the Medical Panel of 9 June 2010 that the plaintiff was presenting with a residual lower-back dysfunction secondary to a soft- tissue injury to her spine which was compensable;[12] and (iii) the admission constituted by the determination made by the defendants on 14 May 2008 that the plaintiff had suffered an injury to her low-back which entitled her to compensation pursuant to s.98C of the Act;[13] [12] DCB 111
[13] PCB 141
I am satisfied that the plaintiff has established that her employment with the first defendant continues to materially contribute to the symptoms from which she suffers by reason of the aggravation by her work-related duties of the degenerative condition which was present in her lumbar spine.
41 It is appropriate to note that Dr Baker opined that the plaintiff presented with an organic injury which rendered her unfit for her pre-injury employment[14] and that her opportunities for employment, having regard to her level of literacy, was extremely limited.[15] I accept Dr Baker’s opinion in this respect, having regard to his specialist qualifications in occupational medicine, and confirm that I am satisfied that the condition which gives rise to those restrictions continues to be materially contributed to by the injury sustained by the plaintiff the subject of this application.
[14] DCB 31
[15] DCB 41B
Is the Reliability of the Medical Opinion Expressed in the Matter Compromised?
42 In this matter, the defendants call into question the reliability of the opinions expressed by each of the medical practitioners whose medical evidence is relied upon by both parties to the proceeding on the basis that the medical history provided by the plaintiff to those practitioners was inaccurate in that:
(i)
each of the practitioners was provided with a history from the plaintiff that prior to the onset of her symptoms in 2005, she had not suffered from symptoms in her low-back;
(ii)
the true history of the plaintiff’s low-back condition was one of repeated incidents of low-back pain.
43 There is no issue that the true history of the plaintiff’s low-back condition is as follows:
(i)
In August 1993, the plaintiff presented to her medical practitioner on one occasion with low-back pain, in respect of which she was prescribed Panadeine Forte. Following this attendance, the plaintiff’s subsequent presentations to her medical practitioner in October and November of that year involved no complaint of ongoing symptoms of back pain;
(ii)
In January 1996, the plaintiff presented to her general practitioner with low-back pain and right straight leg-raising limited to 45 degrees. The plaintiff was prescribed Panamax and was referred for a CT scan which revealed the presence of a small disc prolapse at the L4-5 level. Following the plaintiff’s presentation to her general practitioner in January 1996, her presentations in February, March, April and May of that year involved no complaint of back pain;
(iii)
On 9 July 1996, the plaintiff presented to her doctor with back pain and was prescribed Voltaren Gel. Following this presentation to her general practitioner, the plaintiff then re-presented on seventeen occasions during 1996 and 1997 with no complaint of back pain, before an isolated presentation on 13 September 1997 with symptoms associated with a muscle strain which precluded her from working for two days; this presentation then being followed by twenty-two presentations to her general practitioner in which no complaint of back pain was made;
(iv)
On 9 November 1999, the plaintiff presented to her general practitioner with low-back pain and depression notated as being “depression++”, which presentation of the plaintiff was treated with the prescription of Aropax (an anti-depressant), and she was provided with a medical certificate certifying her as unfit for work for a period between three and six months by reason of a diagnosis described in the certificate as acute low-back pain/major depression. This presentation did not result in any treatment being administered for her back pain, but rather treatment in the form of an increase in the medication being prescribed for her depression and anxiety.[16]
[16] The position of the defendant that as this presentation by the plaintiff was one involving a back complaint of some significance is also undermined by the fact that the plaintiff’s evidence that she missed no time from her employment with the first defendant in November 1999 by reason of back pain or other symptoms; the fact that a medical certificate dated November 1999 referred to both back pain and major depression as being the reason for the plaintiff’s incapacity for work; and finally, the fact that between the plaintiff’s November 1999 consultation and her attendance upon Dr Ayala on 24 December 2005, there were numerous attendances by the plaintiff upon her general practitioner, Dr Flores Vivas, in the course of which no complaints were made as to the presence of back pain.
44 It is put on behalf of the defendants that the failure by the plaintiff to provide the detailed history of her back condition to which I have referred to the medical practitioners who have opined in this case, necessarily undermines the opinions expressed by those medical practitioners as to the relationship between the plaintiff’s work-related injury and her present incapacity. I do not accept that position.
45 Contrary to the position contended for by the defendants, given the intervals between the plaintiff’s complaints of back pain and the spasmodic nature of the treatment which she received in respect of those complaints, I am of the opinion the plaintiff’s history is more consistent with the pattern expected as the result of isolated incidents of back pain which appear to have resolved spontaneously rather than the presence of an ongoing condition.
46 When that history is considered in the context of:
(i) the plaintiff’s presentation to Dr Ayala in December 2005 and her history thereafter which has included an epidural injection administered in 2006; (ii) the plaintiff’s unchallenged evidence that she experienced continuing problems with her back during the period between December 2005 and the cessation of her employment with the first defendant in mid 2007; and (iii) the plaintiff’s history of continued symptoms of back pain since 2007; I consider it to be unlikely that, had the medical practitioners who have opined in this matter been provided with the true history of the plaintiff’s intermittent back problems between 1993 and 1999, this would have caused them to alter the opinions which they have expressed in the proceeding.
(iv) In these circumstances, when account is also taken of:
•
The opinion expressed by Mr Klug as at 30 November 2009, that the effect of the aggravation of the underlying degenerative condition present in the plaintiff’s lumbar spine by her employment was “responsible for the
emergence of symptoms which persist with some severity up until the
present time” and his further opinion expressed as at 5 October 2010 that the plaintiff’s back condition was at that time stable, was unlikely to improve and would persist with waxing and waning; and finally, his opinion that the plaintiff’s employment was a material factor, although probably not the sole factor, which was responsible for the recent flare- up in the plaintiff’s symptoms;
•
The opinion expressed by Dr Ayala in November 2009 that the plaintiff’s symptoms as at that time arose by reason of the duties she was required to perform in the course of her employment with the first defendant, that her symptoms were likely to be permanent, and Dr Ayala’s opinion expressed in September 2010 that there had been little change in the plaintiff’s symptoms, that they were likely to deteriorate, that her condition was chronic and would fluctuate in severity;
•
The opinion of Mr Scott that the plaintiff presents with chronic low-back pain in respect of which her prognosis was poor, having regard to the lack of resolution of most of her symptoms since their onset in 2005;
I am satisfied that the aggravation of the plaintiff’s underlying condition by reason of the work activity the subject of this application continues in a significant way to be materially responsible for the symptoms and disability present in the plaintiff’s lumbar spine.
The Issue as to the Plaintiff’s Credit
47 The defendants point to:
(i) The failure by the plaintiff to provide an accurate history as to her symptoms of back pain prior to 2005; (ii) The plaintiff’s failure to provide an accurate history as to the extent of her anxiety and depression prior to 2005; (iii) The plaintiff’s evidence that she was largely unable to remember that she had presented to doctors prior to 2005 with back pain or that she had undergone a CT scan in 1996; as being matters which call into question the reliability of the plaintiff as a
witness. I accept this position as put on behalf of the defendants.48 In considering the issue as to whether the plaintiff is a credible witness, I balance these matters against:
(i)
Firstly, the evidence given by the plaintiff as to the extent of her present capacity for activity by reason of her symptoms. I am of the opinion that there is little sign of exaggeration by the plaintiff upon this issue when one analyses her affidavit evidence, her viva voce evidence[17] and the complaints made by the plaintiff to the various medical practitioners whose evidence is relied upon in this proceeding. This would tend to suggest that the plaintiff was not prone to inaccuracy when describing matters of crucial relevance to the issue which I am required to determine in this case namely, the consequences to the plaintiff of her injury;
(ii)
Secondly, the unchallenged evidence of the plaintiff that she continued to work between December 2005 and her retrenchment in mid-2007 notwithstanding the presence of back pain and bilateral arm pain, which in turn suggests that the plaintiff was not compensation-motivated but rather, was doing her best to minimise the impact of her injuries upon her.
[17] The plaintiff, for example, volunteered that she had the capacity to do more around the house, both in respect of cooking and cleaning, but was prevented from doing so by her son and daughter-in-law.
49 Taking all of the aforementioned matters into account, the overall impression which I have of the plaintiff is one of a unskilled worker who was keen to maintain her employment by reason of its importance to her both socially and economically and who has generally provided reliable evidence as to the consequences of her injury upon her.
The Issue Raised by the Defendants that the Plaintiff has Failed to Demonstrate the Extent of the Aggravation of her Underlying Condition in Terms of Consequences
50 It was put by Mr Rattray QC, who appeared with Ms Wood on behalf of the defendants, that this case involves an aggravation of a pre-existing condition; that it was incumbent upon the plaintiff to demonstrate the extent of that aggravation and the consequences associated with that aggravation; and that the plaintiff has failed in that task.
51 It is clear that the plaintiff’s injury involves an aggravation of a pre-existing degenerative condition in her lumbar spine. Having regard, however, to the findings which I have made as to the nature and significance of the symptoms from which the plaintiff suffered prior to 2005, I am satisfied that I should approach my analysis of the consequences of the work activity the subject of the present application, on the basis that the plaintiff’s underlying degenerative condition was largely asymptomatic prior to the exacerbation of her symptoms during the period of her employment with the first defendant.
Findings
52 I am satisfied that the condition in the plaintiff’s lumbar spine, when considered independently of that present in her arms, restricts the plaintiff from engaging in any activity which requires prolonged standing, prolonged sitting, repetitive bending, heavy lifting or twisting or turning.[18]
[18] See the report of Mr Scott at DCB 121.
53 Having regard to the description by the plaintiff of the duties required of her in the course of her employment with the first defendant which involved the requirement to bend and lift on a repeated basis, I am satisfied that the injury to her lumbar spine when considered independently of the condition which was present in the plaintiff’s arms, was a cause of the loss of her employment with the first defendant and remains a cause of her inability to find alternative employment.
54 In assessing the loss of enjoyment of life consequences to the plaintiff of her low-back insofar as it impacts upon her capacity to engage in the employment, which I accept was a very important part of her life,[19] I take into account:
[19] The plaintiff’s evidence on this issue was not the subject of challenge. Further, it is consistent with her reluctance to initiate a compensation claim as reported by Dr Ayala at PCB 59.
(i) the following expressions of opinion: • Mr Geoffrey Klug:[20] [20] Report dated 30 November 2009
“I do not believe it would be possible for her to undertake physical activities involving the need to bend, twist and lift on a repetitive basis. Activities where she was required to stand for lengthy periods of time would also not be suitable. On the other hand, I do believe that when one considers her back condition, it is possible that she could undertake some restricted types of employment which did not place undue strain on her low back. Sedentary activities, at least in a part time way, with flexibility in the workplace would, in my opinion, be consistent with the ongoing back condition.
As defined, I believe her back condition would be considered stable.”
• Mr Weaver:[21] [21] Report dated 6 October 2010 at PCB 91
“Mrs Trejo may be considered theoretically capable of attempting various alternative lighter forms of employment with appropriate restrictions imposed. However, I do not discount the difficulty which is likely to be experienced by a 55 year old woman with fairly limited employment skills overall, attempting to obtain alternative employment of some kind at this late stage. My expectation would therefore be that Mrs Trejo is much likely to remain out of the workforce on an indefinite continuing basis.”
• Dr Baker:[22] [22] Report dated 6 April 2011 at DCB 41A
“… she could undertake some simple receptionist tasks. The argument is, however, how good is her use of English? I note that she attended with an interpreter but I consider that she had a reasonable use of English. To undertake clerical and administrative work, I believe would require a good use of written English and I would consider that she would be capable of undertaking less skilled work, such as I noted undertaking cashier tasks where she is working out the purchases on a tray and charging the appropriate amount to the customer.”
• Mr Scott:[23] [23] Report dated 5 November 2010 at DCB 113
“The prognosis appears to be poor due to the lack of resolution of
most symptoms since their onset in 2005.It is my believe (sic) that the worker is fit for light work, only work which does not require prolonged standing, prolonged sitting or repetitive bending or heavy lifting or twisting or turning or any activity which requires her to perform any repeated pulling or pushing movements with either upper limb.”
(ii) The fact that the impairment of function of the plaintiff’s lumbar spine has had the effect of further narrowing the range of employment opportunities which are available to the plaintiff, those opportunities having already been narrowed by the disability with which the plaintiff presents in her left and right arms.
55 In these circumstances, I find the statements made by Mr Weaver as to the likelihood of the plaintiff remaining out of the workforce on an indefinite continuing basis, as being persuasive.
56 I am satisfied that the impairment of function of the plaintiff’s lumbar spine was a cause of the loss of her employment with the first defendant and her continued inability to find work and that, accordingly, it is a cause of the plaintiff’s present impecuniosity which has resulted in the loss by the plaintiff of her house and the loss both of her financial independence and social independence, in that she is dependent upon the charity of her son for her place of residence, and that this situation is likely to continue for the foreseeable future.
57 I am further satisfied that the plaintiff’s employment was very important to her, in that it gave her a social outlet and allowed her to maintain her independence. Her attempts to retrain herself for appropriate employment,[24] her evidence that the worse consequence of her injury was the loss of her job and that that loss brought with it a dislocation from her network of companions,[25] is not in issue and I regard these consequences as being very significant.
[24] PCB 48
[25] PCB 38-39
58 I am satisfied that the plaintiff’s back pain waxes and wanes from relatively modest levels to more severe levels and that the level of the plaintiff’s pain is influenced by activities such as standing for long periods of time, prolonged sitting or repetitive bending and that it often interferes with her sleep. I accept the plaintiff’s evidence that her condition causes her to experience at least modest levels of discomfort on a continuous basis, and regular instances of severe pain. The fact that the plaintiff has the need to resort regularly, but not constantly, to prescription-strength pain control, in my opinion confirms that she suffers from significant levels of pain and attests to her accuracy as an historian upon this issue, in that she made no attempt to exaggerate her dependency upon medication.
59 When account is taken of the consequences of the plaintiff’s work-related injury to her lumbar spine insofar as they have impacted upon her level of income and financial independence, her social independence, and her day-to- day life, both with respect to pain and activity in the way in which I have previously described, I am of the opinion that it is appropriate to describe the effect of the employment-related aggravation of the degenerative condition present in the plaintiff’s lumbar spine as being more than significant or marked and as being at least very considerable.
60 Accordingly, I am satisfied that the plaintiff is entitled to the leave sought by her in this application.
61 I will hear the parties as to the precise form of the order which is sought and also as to the issue of costs.
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