Tsaikos v Victorian WorkCover Authority

[2024] VCC 1361

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-24-00260

JODY-ANN TSAIKOS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE MYERS
WHERE HELD:	Geelong
DATE OF HEARING:	21 August 2024
DATE OF JUDGMENT:	12 September 2024
CASE MAY BE CITED AS:	Tsaikos v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 1361

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to the lumbar spine – pain and suffering

Legislation Cited:      Workplace Injury Rehabilitation and CompensationAct 2013

Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Davidson v Transport Accident Commission [2015] VSCA 12; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; TTB SMS Pty Ltd v Reading [2020] VSCA 203

Judgment:                  Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C W R Harrison KC with Ms P Prossor	Shine Lawyers
For the Defendant	Mr R Kumar with Ms J Clark	Wisewould Mahoney

HER HONOUR:

Introduction

1Mrs Jody-Ann Tsaikos, the plaintiff, is a forty-eight-year-old patient services assistant.  She claims that she suffered injury to her lower back in the course of her work at University Hospital Geelong (“Geelong Hospital”), in particular, in an incident on 23 August 2021. 

2Mrs Tsaikos applies for leave to bring a common law proceeding seeking pain and suffering damages pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). Her claim is that she has a “serious injury” of her lumbar spine.

3To succeed in her application, Mrs Tsaikos must establish that the permanent impairment consequences of her compensable lumbar spine injury are “serious”, that is, that they can be fairly described as being “more than significant or marked”, and as being “at least very considerable”. 

4The Victorian WorkCover Authority (“the VWA”), the defendant, accepted that Mrs Tsaikos suffered a compensable injury to her lumbar spine in the course of her employment. 

5The VWA contested the case on issues of credibility/reliability, the nature and extent of the claimed impairment consequences, whether those impairment consequences were permanent, and whether those impairment consequences met the statutory threshold.

6The issues for determination are:

(a)   Was Mrs Tsaikos a reliable witness?

(b)   What are the impairment consequences of Mrs Tsaikos’ compensable lumbar spine condition?

(c)   Are the impairment consequences permanent?

(d)   Are the permanent impairment consequences of Mrs Tsaikos’ compensable lumbar spine condition “serious”?

7The relevant legal principles are well known and were not in dispute.

8For the reasons that follow, I find that Mrs Tsaikos has satisfied her onus of establishing that the permanent impairment consequences of her lumbar spine condition meet the statutory threshold. 

Background

9The following, I believe, are uncontroversial matters.  As far as any were contested, these represent my findings unless otherwise stated.

10Mrs Tsaikos completed Year 12 at school.  She then worked as a pharmacy assistant for about eleven years.

11Thereafter, Mrs Tsaikos married and had two children.  She had some time off paid work while her children were very young and did some unpaid bookkeeping for her husband.

12In 2012, and while pregnant with her third child, Mrs Tsaikos completed a Certificate III in Allied Health – Patient Services Assistant, at the Gordon TAFE.  She then obtained casual employment as a patient services assistant at the Geelong Hospital. 

13In about 2013, Mrs Tsaikos transitioned to working on a permanent part-time basis as a patient services assistant at the Geelong Hospital.  She was rostered to work forty-eight hours per fortnight, but Mrs Tsaikos would pick up extra shifts from time to time, sometimes working up to sixty-four hours per fortnight.  Her work was primarily in the maternity ward.

14Mrs Tsaikos alleged her role involved heavy manual handling, moving patients, delivery meals using trolleys, and preparing and cleaning rooms.  Mrs Tsaikos alleged that, during the COVID-19 pandemic, there was a significant increase in room turnover, and some staff shortages, which added to her workload.

15On 23 August 2021, Mrs Tsaikos experienced severe lower back pain when bending to remove a tray which was “a bit stuck” in a food trolley.[1]  She reported her injury and ceased work.

[1]        Plaintiff’s Court Book (“PCB”) 13

16Following this, Mrs Tsaikos was unable to work for about three months due to her lower back injury.  She then began a graduated return-to-work program. 

17On 9 February 2023, Mrs Tsaikos’ general practitioner (“GP”), Dr Nahid Asim, certified her fit to resume her pre-injury duties.[2]

[2]Defendant’s Court Book (“DCB”) 88-89

18Mrs Tsaikos has had other health issues.  She had a right shoulder injury at work in 2016, for which she had an ultrasound-guided injection.  She has had pain in both knees, for which she had physiotherapy in 2018.  She gained weight after her third pregnancy and had gastric-sleeve surgery in 2017, and a review surgery in 2018.  She underwent an emergency appendectomy in August 2023. 

19Mrs Tsaikos currently works fifty-six hours a fortnight in her pre-injury role.  However, Mrs Tsaikos alleged that the demands of the role are now lighter.  There are mechanical pushing and pulling aids available, and she is generally only required to push the smaller food trolleys which contain just five meals.  Further, Mrs Tsaikos alleged that an additional patient services assistant had been rostered onto the afternoon shift, and her co-workers assist her in avoiding some of the heavier duties.

20Mrs Tsaikos’ lower back injury has been treated conservatively. 

21She has been prescribed medication including Celebrex, Valium, Naprosyn and Somac.  She has undertaken physiotherapy, swimming and Keiser exercise physiotherapy. 

22Currently, Mrs Tsaikos takes ibuprofen and paracetamol for her lower back pain on an as-needs basis, usually two to three times a week.  She completes a twice-daily exercise regime at home. 

Was Mrs Tsaikos a reliable witness?

23Leading Counsel for the VWA submitted that Mrs Tsaikos’ affidavits did not properly reflect the position regarding her pre and post-injury work hours, or the level of her pre-injury participation in various recreational activities.

24Senior Counsel for Mrs Tsaikos submitted that, although she struggled with dates, Mrs Tsaikos was “transparently honest” and had not attempted any evasion or equivocation in her evidence.[3] 

[3]        Transcript (“T”) 50

25I found Mrs Tsaikos to be a straightforward and candid witness.  She struck me as a woman who was not prone to overstatement.  Although she struggled to remember some past dates and events, I am satisfied that her evidence regarding her pain and restrictions is reliable. 

26My view as to Mrs Tsaikos’ reliability is fortified by the observations of Professor Peter Teddy, neurosurgeon, who examined Mrs Tsaikos at the request of the VWA in 2023 and 2024.  He said that Mrs Tsaikos gave her history in a “very straightforward and uncomplicated manner”,[4] exhibited no signs of pain-related behaviour and was not unduly exaggerating her symptoms.[5]  Professor Teddy opined that Mrs Tsaikos’:

“… description of her pains and her level of disability [was] genuine and reasonably presented.

… the psychological component is small and minimised by her sensible and practical approach to both work and social activities.”[6]

[4]DCB 16

[5]DCB 18

[6]DCB 23

What are the impairment consequences of Mrs Tsaikos’ compensable lumbar spine condition?

27Mrs Tsaikos deposed to suffering constant pain at a level of 4/10, with regular muscle spasms and an increase in pain with activity, and unpredictable exacerbations when her pain reached 9/10.  She said she avoided taking strong medications as much as possible.  Instead, Mrs Tsaikos said she moderated her activities to avoid her back pain worsening.

28Mrs Tsaikos deposed that, once her youngest child was in high school, she had hoped to study to become a midwife.  However, she said that she would no longer be able to undertake the physical tasks required of a midwife because of her lower back injury.

29Mrs Tsaikos said she struggles to push, pull, bend, twist and perform heavy lifting.  Sitting and standing for prolonged periods cause her back pain to worsen.  This impacts upon her ability to perform household tasks and gardening.

30Mrs Tsaikos deposed to intimate relations with her husband being greatly affected.

31Mrs Tsaikos said she had been a keen netball player since childhood.  She said this was her main hobby.  In the years prior to her work injury, she played in a netball team on Monday nights and would also pick up extra games filling in for others.  Mrs Tsaikos described this as a “huge part of [her] life”.[7] 

[7]        PCB 21

32Mrs Tsaikos said that she has been unable to return to playing netball since suffering her injury in 2021.  She misses playing and the social aspect of being part of a team.

33Prior to her back injury, Mrs Tsaikos had participated in a weekly outdoor group exercise program which she said she had intended to return to after the pandemic.

34Mrs Tsaikos deposed to a reduction in her ability to enjoy other recreational activities with her young family, including long walks, cycling, riding motorbikes, horse riding and fishing.

35Mrs Tsaikos tendered affidavits affirmed by her husband, Theo Tsaikos, on 18 July 2024 and her son, Jake Tsaikos, affirmed on 10 July 2024.  These affidavits were generally corroborative of Mrs Tsaikos’ claimed impairment consequences, but cast in more general terms.

36The VWA did not seek leave to cross-examine Mrs Tsaikos’ husband or son, but I am required to consider those affidavits in the context of the evidence as a whole.

37This is a convenient point to consider the medical evidence tendered by the parties.

Imaging

38An MRI scan of Mrs Tsaikos’ lumbar spine on 6 September 2021 was reported to reveal:

“Posterior disc protrusion at L2/3 mildly indents the anterior theca without significant central canal narrowing.  No neurally compressive lesion is detected throughout.”[8]

Treating doctors

[8]PCB 44

Dr Nahid Asim, GP

39Mrs Tsaikos tendered a medical questionnaire completed on 14 September 2021 and a report dated 22 May 2024. 

40Dr Asim stated that Mrs Tsaikos suffered from lumbar back pain due to an L2-3 disc protrusion.[9]  The prognosis was “slow but good”.[10]  The future treatment requirements were for regular muscle strengthening exercises, weight control and the avoidance of strenuous activities.  As a precaution, Mrs Tsaikos should avoid performing duties that involve pushing, pulling, bending and lifting.[11]  

[9]PCB 48

[10]Ibid

[11]Ibid

41Dr Asim opined that Mrs Tsaikos’ ability to participate in netball, perform gardening, ride motorbikes and ride a horse “can improve over time with gradual strengthening exercises and self care”.[12]

[12]        Ibid

Julia Twigg, physiotherapist

42Mrs Tsaikos tendered a report of Ms Twigg dated 27 May 2022.

43Ms Twigg’s preliminary diagnosis was discogenic lower back pain and lumbar muscle deconditioning.  She noted that Mrs Tsaikos’ number-one goal was to “return to playing Netball”.[13]

[13]PCB 52

Barwon Health staffcare clinical notes

44Mrs Tsaikos tendered clinical notes of her attendances upon a physiotherapist in the staff clinic on 23 May 2024,[14] 4 June 2024[15] and 20 June 2024.[16] 

[14]PCB 69

[15]PCB 71

[16]PCB 72

45Ms Tsaikos attended the staff clinic on 23 May 2024 due to a significant flare-up of her back pain when walking and reaching into the fridge at home.  By 20 June 2024, the flare-up had subsided.

Clinical records

46Extracts of the clinical records of the Gateway Plaza Family Medical Practice,[17] Keiser Physiotherapy[18] and Orbit Medical Centre[19] were tendered.

Medico-legal doctors

[17]PCB 76

[18]PCB 85

[19]PCB 92

Professor Paul D’Urso, neurosurgeon

47Mrs Tsaikos tendered a report from Professor D’Urso dated 3 May 2024.  Professor D’Urso examined Mrs Tsaikos on 2 May 2024.

48Professor D’Urso opined that Mrs Tsaikos’ work activities contributed to the degree of degeneration and prolapse at L2-3, L4-5 and L5-S1.  Further, the incident in August 2021 caused an increased prolapse at L2-3, where there is a persisting right paracentral prolapse.[20] 

[20]PCB 55

49Professor D’Urso opined that the prognosis was satisfactory with appropriate management, although Mrs Tsaikos was at risk of degenerative progression and at risk of a more significant prolapse developing particularly at the L2-3 level.[21]

[21]PCB 56

50Professor D’Urso further opined that Mrs Tsaikos:

“… should not be required to perform repetitive bending, twisting or lifting activity … lift from below the knee or above the shoulder … avoid lifting weight in excess of 10kgs … avoid sitting, standing and walking postures in excess of one hour … avoid kneeling, squatting or crouching … These restrictions would be of a permanent nature into the foreseeable future.”[22]

[22]PCB 56

51Professor D’Urso acknowledged that Mrs Tsaikos’ permanent restrictions:

“… could affect the ability to advance her career in the role as a nurse or midwife given that these occupants (sic) require bending, twisting and lifting activity beyond the restrictions mentioned in the text above.  The restrictions would prevent [Mrs Tsaikos] from playing vigorous recreational sporting activity such as netball and ride a motorcycle or horses.  … .”[23]

[23]PCB 57

Dr Sachin Khullar, sport and exercise medicine physician

52Mrs Tsaikos tendered a report from Dr Khullar dated 13 January 2023.  Dr Khullar examined Mrs Tsaikos on 13 January 2023 at the request of the VWA and performed a permanent impairment assessment.

53Dr Khullar opined that Mrs Tsaikos:

“… has residual pain related to her back which is now primarily a soft tissue pain problem with back deconditioning and a background of lumbar spondylosis.

…

… [the] injuries related to her lumbar spine have stabilised … .”[24]

[24]        PCB 62

Professor Peter Teddy, neurosurgeon

54The VWA tendered two reports from Professor Teddy dated 29 November 2023 and 26 June 2024.  Professor Teddy examined Mrs Tsaikos on those dates.

55When Professor Teddy first examined Mrs Tsaikos, he relevantly found:

“… she could bend to touch the mid-shins.  Extension of the lumbar spine was reduced by about 50%.  Tilting to the right produced pain in the right lower back and some para-spinal spasm.  Straight leg raising was 75 degrees to 90 degrees bilaterally and limited predominantly by abdominal girth and tightness of her hamstrings … .”[25]

[25]DCB 16

56Professor Teddy opined that Mrs Tsaikos had suffered an aggravation of a largely asymptomatic pre-existing lumbar spondylosis and her condition had “stabilised”.  He said her described symptoms were compatible with the radiological appearance.

57On examination on the second occasion in June 2024, Professor Teddy relevantly noted:

“… She could bend to touch low shins while tilt and rotation to either side were full and pain free.  She had pain on extension of her spine, but it was relatively full in amplitude.  Her back pain was indicated as being across the midline at around L5.  Straight leg raising was 75⁰-90⁰ on the right and 90⁰ on the left.  … .”[26]

Findings

[26]        DCB 22

Pain

58The VWA did not challenge the nature of Mrs Tsaikos’ pain during cross-examination.  I accept that she suffers from constant pain at a level of 4/10, which can reach 9/10 when exacerbated. 

59I find that Mrs Tsaikos uses over-the-counter medication two to three times a week for her pain, as she is keen to avoid prescription medication.  Further, she moderates her activities to limit exacerbations.

Treatment

60Mrs Tsaikos has had limited conservative treatment for her back injury.  She has not been referred to a neurosurgeon or orthopaedic surgeon for treatment.  Her current regime is a twice-daily home exercise program, and physiotherapy treatment when she has a significant flare-up of pain.

Sleep

61Mrs Tsaikos did not depose to her sleep being affected by her back pain, but reported some sleep disturbance to Professor D’Urso[27] and Dr Khullar.[28]  Taking the evidence as a whole, I find that regular sleep disturbance is not an impairment consequence of particular significance to her.

[27]PCB 54

[28]PCB 60

Functional tolerances

62I find that Mrs Tsaikos is limited in her ability to push, pull, bend, twist and perform heavy lifting.  She struggles to sit and stand for prolonged periods. 

Personal care

63Mrs Tsaikos did not depose to any restriction in her ability to shower, dress or perform personal care.  I find that she is able to perform those activities.

Intimate relations

64I accept Mrs Tsaikos’ unchallenged evidence that intimate relations with her husband have been significantly impacted by her lower back injury.

Domestic activities

65I find that Mrs Tsaikos is limited in her capacity to perform household tasks due to the functional restrictions caused by her lower back injury.  Her evidence as to these restrictions was unchallenged and was corroborated by the affidavits of her husband and son.

66I find that Mrs Tsaikos is limited in her ability to undertake gardening activities.  This was a hobby she previously enjoyed with her husband on a regular basis.  Mrs Tsaikos has been unable to play any significant role in landscaping the large block where she now lives with her family.  I accept that this is a significant loss to her.

Recreational activities

67Consideration of this issue is affected to an extent by the impact of the COVID-19 pandemic.  Between about March 2020 and Mrs Tsaikos’ injury in August 2021, group recreational activities essentially stopped in Victoria.  Extra care is therefore required to assess the pre-injury participation in recreational activities.

68I find that netball has been Mrs Tsaikos’ primary sporting activity since she was a child and is very important to her.  There were periods prior to August 2021 when she was unable to play due to injury, surgery, or other circumstances, but I accept that, absent those discrete periods, Mrs Tsaikos participated in netball regularly, and at least weekly, during the season.  I accept Mrs Tsaikos’ evidence that, prior to the COVID-19 pandemic, she last played netball in about mid-2019.

69I accept that, following her back injury, Mrs Tsaikos was told by her physiotherapist that she should not play netball.  I find that Mrs Tsaikos has repeatedly told her treating practitioners that her hope is to get back to playing netball.  Indeed, the tendered clinical records contain multiple references to Mrs Tsaikos’ desire to get back to playing netball.

70I find that Mrs Tsaikos’ current functional restrictions would not allow her to play netball, which requires running, jumping, and the ability to dynamically change direction.  That finding is supported by the explicit opinion of Professor D’Urso and implicitly by the restrictions outlined by Professor Teddy. 

71I accept the inability to play netball is a very significant loss to Mrs Tsaikos.

72I also accept that Mrs Tsaikos was an active woman prior to her back injury.  She is now restricted in her ability to participate in various recreational pursuits, including outdoor group training, cycling, horse riding, motorcycling and fishing, by reason of her lower back injury.  I find that Mrs Tsaikos’ ability to participate in these activities is now significantly reduced.  While none of those activities could be described as a particular passion, the overall diminution in Mrs Tsaikos’ capacity to enjoy this range of activities is a further impairment consequence that must be considered.

Work

73I find that Mrs Tsaikos remains capable of performing her pre-injury role as a patient services assistant.  I find that she is regularly working more hours than prior to her injury.  However, I also find that, as a result of changes made by the employer, Mrs Tsaikos’ work duties are lighter than they were prior to her injury.

74The VWA submitted that the Court ought not to attach much weight to Mrs Tsaikos’ consequential loss of her ability to work as a midwife as this was not a “fixed position” and, in any event, Mrs Tsaikos accepted that her age may have been an issue.

75I accept Mrs Tsaikos’ evidence that she aspired to study to become a midwife once her youngest child started high school.[29]  Her youngest child is currently in Grade 5. 

[29]Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [45]; Davidson v Transport Accident Commission [2015] VSCA 12 at paragraph [30]

76I find that Mrs Tsaikos understands the physical requirements of the role of midwife, given her many years working in maternity wards.  Her belief that her lower back injury would likely prevent her from working as a midwife is supported by the opinion of Professor D’Urso, which I accept. 

77I find that the loss of opportunity to pursue her ambition to retrain and work as a midwife in the future is a significant loss to Mrs Tsaikos.

Are the impairment consequences permanent?

78The VWA submitted that the evidence did not support a finding that Mrs Tsaikos was permanently unable to return to playing netball.  The submission was primarily based upon the following:

(a)   16 March 2023 consultation note of Julia Twigg, physiotherapist:

“Edu/discussed return to running/netball.  Likely to feel sore or aware of muscles after but fear should not be stopping her.”[30]

(b)   20 June 2024 consultation note of Anita Ciach, staff clinic physiotherapist, in which it was noted that Mrs Tsaikos occasionally practises netball passing with her daughter in the backyard and that Mrs Tsaikos was very keen to return to netball:

“Discussed steps to RT netball - need tostart (sic) with walk then progress to jog/jump/change direction etc

Have encouraged to begin brisk walk min x 3/week in well-lit, level area

Have encouraged regular passing and defending/shooting with Dtr at home”[31]

[30]Defendant’s Supplementary Court Book 4

[31]PCB 73

79It was submitted that Mrs Tsaikos was likely to see an improvement in her functional tolerances and be able to graduate back to playing netball.  I do not accept that submission. 

80I find that a fair reading of the physiotherapy notes supports the view that Mrs Tsaikos has been reassured that soreness when exercising does not equate to further injury and has been encouraged to try elements of netball activity as part of her treatment regime.  This is consistent with Mrs Tsaikos’ wish to continue to exercise as part of her treatment regime and return to netball in the long term if her lower back symptoms improve sufficiently. 

81In my view, the notes do not record an opinion from the physiotherapists that Mrs Tsaikos is likely to be able to play netball in the foreseeable future.

82I prefer the opinions of Dr Khullar and Professor D’Urso that Mrs Tsaikos’ lower back impairment consequences are stable and permanent in the requisite sense. 

Are the permanent impairment consequences of Mrs Tsaikos’ compensable lumbar spine condition “serious”?

83The fact that Mrs Tsaikos is able to continue to work part time in her pre-injury role does not preclude a finding that she satisfies the statutory threshold.  It is just one matter to consider.[32] 

[32]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

84I am required to consider the range of impairments and impairment consequences and not just those that come before the Court.[33]  What has been lost must be considered, as well as what has been retained. 

[33]TTB SMS Pty Ltd v Reading [2020] VSCA 203

85Mrs Tsaikos suffers from constant, but variable, pain requiring over-the-counter medication and intermittent physiotherapy treatment.  She retains the capacity to work part time in her pre-injury employment, albeit that her role has become somewhat lighter.  She is no longer able to pursue her ambition to retrain as a midwife.  She can undertake all aspects of her personal care.  She can perform lighter domestic and gardening activities.  She can still drive and has been able to travel.  She does not suffer from significant sleep disturbance, but intimate relations with her husband have been significantly affected.  Mrs Tsaikos previously enjoyed a wide range of recreational pursuits, but netball was her particular passion.  Netball is lost to her, and there has been a diminution in her ability to enjoy her other recreational activities.   

86I find that Mrs Tsaikos has adapted the way she goes about most day-to-day activities, either because of her lower back pain or in an effort to avoid exacerbating her lower back pain.

87In making the value judgement required of me, and in considering the various impairment consequences collectively, the factors which tip the balance in favour of a finding that the impairment consequences are very considerable in this case are that Mrs Tsaikos is not able to pursue her ambition to requalify as a midwife, and that she is no longer able to play netball.  I therefore find that the permanent impairment consequences of Mrs Tsaikos’ spinal condition are “more than significant or marked” and “at least very considerable” when compared with the range of possible impairments, including those which do not come before the Court.

Conclusion

88Mrs Tsaikos is granted leave to bring a common law damages claim seeking pain and suffering damages.

89I will hear the parties on the issue of costs.

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