Tsetsos v Victorian WorkCover Authority
[2021] VCC 1209
•27 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05408
| EVANTHIA TSETSOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2021 | |
DATE OF JUDGMENT: | 27 August 2021 | |
CASE MAY BE CITED AS: | Tsetsos v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1209 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – ss325 and 335 – application in respect of pain and suffering only – reliance upon paragraph (a) of the definition – injury to the spine and in particular to the cervical spine, with referred symptoms in the left arm – reliability of the plaintiff as a witness – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Cameron | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
(a)General background
1This matter comes before me by way of an application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). In bringing her application, the plaintiff relies upon paragraph (a) of the definition of “serious injury” found in s325(1) of the Act. She is seeking leave to bring proceedings in respect of pain and suffering. In bringing her application, the plaintiff relies upon the course of her employment, but particularly upon an incident in or about 6 November 2017 and employment immediately following that date. This shall hereinafter be referred to as “the injury”. At the time, the plaintiff was performing her duties as a disability support worker at an establishment called the Don Tatnell Centre. This establishment was operated by Scope (Aust) Ltd, which was the employer of the plaintiff. It shall hereinafter be referred to as “Scope”.
2On approximately 6 November 2017, the plaintiff was assisting a resident in a wheelchair, when she began to experience pain in her lower back. This shall hereinafter be referred to as “the accident”. Approximately a week after the accident, she began to experience neck pain, which radiated down her left arm. Whilst there was acceptance of her claim and statutory benefits paid for a period, liability is contested by the defendant. Effectively the position of the defendant, as outlined by Mr Miles on its behalf, is that in the accident the plaintiff had suffered a passing back injury of no lasting effect and no work-related injury to the neck. Whether any injury suffered had consequences sufficient to satisfy the statutory test is also an issue.
3Ms M Cameron of counsel appeared on behalf of the plaintiff. Mr C Miles of counsel appeared on behalf of the defendant. The plaintiff adopted three affidavits as being true and correct. The balance of the evidence was documentary in nature, including affidavits from the plaintiff’s mother and partner, and was tendered either by consent or without objection.
(b)The plaintiff’s background, education and employment prior to the accident
4The plaintiff is aged 30 years, she having been born in 1990. She was educated to Year 12 level, which she completed. Subsequently, she obtained a Certificate IV in Disability Work. She also completed a course and became a Bachelor of Applied Science. She worked on a full-time basis for a year as a medical receptionist, before obtaining employment with Scope in approximately September 2010. She worked as a disability support worker on a permanent part-time basis, working approximately 33 hours per week. As stated, her place of employment was the Don Tatnell Centre, being a day centre for people with disabilities, the majority being in wheelchairs. Various activities, including physical therapy, exercises, arts and crafts and the like, are performed there. It was whilst the plaintiff was assisting in this regard that she suffered the injury.
5The plaintiff has a partner with whom she lives. She has no dependants. An affidavit of her partner was also placed in evidence.
(c)The state of the plaintiff’s health prior to the accident
6The plaintiff had been a keen soccer player and had injured both knees. She underwent a right knee reconstruction in approximately 2010 and a left knee reconstruction in approximately 2013, these surgeries being due to soccer injuries. She returned to playing soccer after the knee reconstructions. She was involved in a motor vehicle accident in 2012. Her right knee hit the dashboard of the car, and she had some minor whiplash, but these injuries also resolved. She would not appear to have suffered a previous spinal injury of any moment, if at all.
(d)The plaintiff as a witness
7Whilst the plaintiff’s credit was tested in cross-examination, I am of the view that essentially her credit remained undamaged.
8I note that Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, who saw the plaintiff at the request of her solicitors, specifically stated that no abnormal illness behaviour was observed and that the plaintiff answered questions in a frank and forthright manner. Mr Roy Carey, consultant orthopaedic spine surgeon, who examined the plaintiff at the request of the defendant, referred to her as being a pleasant and direct witness. He also referred to her as being a genuine witness to her complaints, with no evidence of embellishment. Dr Tim Hwang, consultant occupational physician, who also examined the plaintiff at the request of the defendant, stated that she was pleasant and cooperative and presented in a straightforward manner.
9I agree with these observations, which coincided with the manner in which the plaintiff presented in the witness box. In short, while she was well tested in cross-examination, I accept her as a witness of truth.
(e)The injury, its treatment, diagnosis and prognosis
10The clinical notes of the Keysborough Medical Centre were placed in evidence by the defendant. These indicate that, on 13 November 2017, the plaintiff consulted Dr Manjunath Nadiger. The reason for her visit was back pain, being an injury at the workplace whilst the plaintiff was bending over, this occurring some three days earlier. Movements of the lumbar spine were slightly painful, and modified duties were suggested. On 21 November 2017, the plaintiff again saw Dr Nadiger, and this again appears to have been in relation to back pain related to frequent bending whilst on light duties at the workplace. The plaintiff’s next visit to Dr Nadiger was on 7 December 2017, her complaint being of left-sided neck pain radiating to the left upper limb. There was also a reference to three weeks of paraesthesia over the C8/T1 area. In the history given in his report to the plaintiff’s solicitors on 28 March 2019, Dr Nadiger referred to the plaintiff having a sudden back pain whilst assisting a resident at work, and then later developing neck pain, also in mid-November 2017. The plaintiff denied any pain in her neck before this incident, and Dr Nadiger has recorded that neck pain has been persistent since then. He expressed the view that, since the neck pain started after the work incident, it was probably related to the work. There was no known pre-existing condition.
11It is apparent from the clinical notes that Dr Nadiger immediately referred the plaintiff for an MRI of the cervical spine, which was carried out on 8 December 2017. The conclusion of the radiologist was that there was moderate C5‑6 canal stenosis with flattening of the left hemicord and compression of preganglionic left C6 nerve rootlet. There was mild to moderate C6‑7 central canal stenosis. Dr Nadiger saw the plaintiff again on 11 December 2017 in order to discuss the radiology results. Apart from prescribing Lyrica, he wrote a letter of referral to Mr Rondhir Jithoo, consultant neurosurgeon.
12Mr Jithoo had reported back to Dr Nadiger on 19 December 2017. The plaintiff presented with left arm pain and paraesthesia. She had been having these symptoms for approximately three weeks, and there was no specific triggering factor. Sometimes her neck and left arm jerked at night. Mr Jithoo reviewed the radiology, and nerve conduction studies, which were normal. He recommended a left sided nerve sheath injection, believing it better to be conservative and adopt a non-surgical approach in a young patient. He considered that she would heal with time. It is apparent in a brief radiology report that, on 20 December 2017, the plaintiff was given a cervical spine injection into the left C5‑6 neural exit foramen.
13The neurologist who carried out the nerve conduction studies at the request of Mr Jithoo reported to him on 15 December 2017, this neurologist being Dr Janaka Seneviratne. The history taken by Dr Seneviratne was that the plaintiff had been experiencing left arm pain and paraesthesia and some neck pain with a radicular component. These symptoms had been experienced by her for approximately one week, and there was no specific trigger factor or injury. Dr Seneviratne expressed the view that most of the plaintiff’s symptoms were related to a mild left C6 radiculopathy/nerve root irritation. He thought that she may also have some superimposed soft tissue injury affecting the neck and shoulder regions. It was he who booked her in for a CT‑guided left C6 nerve root injection. He advised her to go on light duties, with restrictions in relation to heavy manual work and the lifting of no greater weight than 5 kilograms. Dr Seneviratne thought that the exact aetiology of the symptoms was unclear, but it was likely to be related to the type of work performed in her employment.
14I note that the plaintiff saw a different doctor, namely Dr Janaki Gharti-Magar, at Keysborough medical Centre, on 16 February 2018. The reason for the visit related to a worker’s compensation certificate. The plaintiff had a history of neck pain since mid-November 2017. It is apparent that the plaintiff was placed upon restricted duties at some stage. Apart from the provision of certificates, there is little of significance in the clinical records, save that the plaintiff was anxious concerning workplace issues when seen on 10 January 2019. There seems to have been some stress at work.
15The plaintiff has also been seen for medico-legal purposes. By arrangement with her solicitors, she saw Mr Mohammed Awad, neurosurgeon and spinal surgeon, on 9 April 2021. He reported on that day. The plaintiff’s history of injury given to him was that she felt something go in her back when she was doing some manual handling of a patient in a wheelchair. I might add that it appears that either she or Mr Awad appear to have got the wrong date for the occurrence of this incident, with there being reference to late in 2016 instead of late 2017. In any event, the history given is of pain initially being in her back, but with increasing neck pain as she continued to work. Mr Awad took a history of ongoing both neck and lower back pain, but with the neck pain described as being constant.
16The diagnosis of Mr Awad was of aggravation of cervical spondylosis; left arm radiculopathy and cervicogenic headaches; and aggravation of lumbar spondylosis. He implicated employment, specifically stating that the incident at work remained a significant contributing factor to the plaintiff’s ongoing pain and disability. She was currently managing her present employment, but would not have the capacity to return on a full-time basis to work which involved manual handling. He did not believe that surgery was an option and recommended ongoing conservative treatment. He expressed the view that the plaintiff was likely to suffer consequences of the injuries in the form of ongoing pain and disability into the foreseeable future. He placed various restrictions upon her, particularly in relation to pushing, pulling, or lifting and prolonged sitting, standing, or walking. He also thought that she was likely to be restricted in relation to activities involving bending, reaching, twisting or stooping. Her incapacities were likely to continue into the foreseeable future. Further, she would be restricted in relation to social, domestic and recreational activities and this situation is also likely to continue into the foreseeable future.
17Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, saw the plaintiff at the request of her solicitors on 28 April 2021, reporting on that day. The complaints of the plaintiff to Dr Sullivan essentially concerned chronic pain affecting the neck, head and upper limbs, this being described as constant, of mild-to-moderate severity, and with exacerbation resulting in significant sustained pain. He noted that there was lower back pain, this being described as intermittent in nature, but which can be severe and debilitating.
18Dr Sullivan also appears to have been under the impression that the plaintiff sustained injury in the early part of 2017, so that this erroneous information may well have been conveyed to both him and Mr Awad by the plaintiff or in letters of referral. Dr Sullivan noted that, prior to her injury, the plaintiff had been an avid soccer player, both outdoor and indoor, and also enjoyed snowboarding in the winter months. He noted that her lifting and carrying capacity was approximately 5 kilograms before she felt exacerbations of pain.
19The diagnosis of Dr Sullivan was of aggravation of cervical spondylosis, with likely irritation of the left C6 nerve root. He also thought that the plaintiff had a chronic pain condition predominantly affecting her neck, head and left upper limb, with a notable degree of sensory change consistent with a C6 distribution. Whilst he mentioned that she may have sustained a secondary psychological injury, Dr Sullivan stated that the plaintiff’s presentation was wholly organic in nature. He implicated employment. He also stated that the plaintiff could expect chronic pain affecting her neck, head and left upper limb into the foreseeable future. He did not see any cause for surgical intervention. He placed various restrictions upon the employment in which she could engage, and his expectation was that such limitations could be considered permanent. The plaintiff did have the capacity to continue engaging in her current employment, providing that she was afforded her existing work limitations. The plaintiff was unlikely to return to her pre-injury social engagements or recreational engagements, and this could be considered a permanent situation.
20The plaintiff also put in evidence a report dated 26 February 2018 from Associate Professor Bruce Love, consultant orthopaedic surgeon, to the defendant. He examined the plaintiff on the date to which reference has just been made. The history obtained by Associate Professor Love referred to the plaintiff supporting a man and placing him in a wheelchair, correctly describing this as occurring in November 2017. He also recorded that her initial symptoms were in the low back, with the development of neck pain approximately one week later. Associate Professor Love noted that the back pain had subsequently significantly subsided.
21The plaintiff’s current complaint was of neck pain and migraine-type headaches. The previous low back pain had settled, as had left arm symptoms. Associate Professor Love noted non-specific paraspinal muscle tenderness in the cervical spine, with a near full range of movement. There was some discomfort with motion of the left shoulder, and pain at the extremes of abduction and flexion. There was some global weakness in the left arm and sensory changes on the radial border of that arm towards the thumb. He inspected the radiological reports. The assessment of Associate Professor Love was that the plaintiff had cervical disc pathology, which had produced symptoms in the left arm. He implicated the nature of her work. He thought that her treatment to date had been moderately successful in relieving symptoms, but recommended a trial of physiotherapy. He noted that the plaintiff had been prescribed Lyrica and Nurofen.
22Associate Professor Love’s overall diagnosis was that the plaintiff had a C5-6 disc lesion on the left side of her cervical spine. He considered this to be a new condition and not an aggravation. The plaintiff did not have capacity for every aspect of her pre-injury work, but could perform modified duties. He thought it difficult to predict the duration of incapacity, but thought that it could well be over an extended period of time and that ultimately surgery could be a consideration. However, such treatment need not be considered at the present time.
23Associate Professor Love forwarded a supplementary medico-legal report to the defendant on 8 March 2018, and this was also placed in evidence by the plaintiff. Having reviewed additional documentation, he remained of the opinion that the incident of November 2017 induced the symptoms from which the plaintiff now suffered. The incident may not have caused the identified pathology, but has been responsible for inducing the symptoms from which the plaintiff suffers.
24Mr Roy Carey, consultant orthopaedic surgeon, saw the plaintiff at the request of the defendant on 11 December 2019. His report to the defendant of that date was also placed in evidence by the plaintiff. He recounted a history of injury on 6 November 2017, following which the plaintiff developed acute back pain, but, at that stage, no cervical component. She awoke with a sore neck approximately a week later. Rapidly she developed classical left brachialgia down to the thumb and perhaps to the index finger. She had severe pain in the neck and arm, with some dysaesthesia in the hand.
25Mr Carey referred to the treatment which the plaintiff had undergone, but also recorded that she had improved constantly over the last two years and that the pain in the neck and arm had largely gone. However, she had developed increasing occipito-cervical headaches. He considered the situation to be stable. He noted that the plaintiff had ceased her employment with Scope largely because of ongoing neck discomfort. Her present work was generally light and supervisory. Upon examination, cervical movements included normal flexion with minimal pain, but restriction of extension was subject to pain, including occipital radiation. Rotations were satisfactory, but lateral flexions, particularly to the left, reproduced occipito-cervical discomfort. These movements did not produce left brachialgia. There was no muscle wasting and Mr Carey could not detect any muscular weakness. All reflexes were present, but were of low amplitude. Mr Carey stated that the initial acute cause, namely a left C5-6 disc extrusion causing neck pain and left brachialgia, had now substantially resolved, but the plaintiff still had neck pain and occipito-cervical headaches.
26Perhaps somewhat surprisingly, given his earlier observations, Mr Carey nevertheless reported that the plaintiff (whom, as discussed earlier, he regarded as a pleasant and direct witness) had almost constant symptoms in her neck and with occipito-cervical headaches. Her range of motion observed at the time of examination was consistent with her observed behaviour during the consultation. His diagnosis was of a now largely resolved left C5-6 disc extrusion producing neck pain and left brachialgia, and the prognosis was for continued discomfort for the foreseeable future. Mr Carey went on to deal with a whole person impairment, as such had obviously been requested. Mr Carey’s concluding remark was that the plaintiff seemed a pleasant and genuine witness with no evidence of embellishment.
27In addition to Associate Professor Love and Mr Carey, whose reports have just been discussed, the defendant has had the plaintiff examined by Associate Professor Trevor Jones, general surgeon, who reported on 3 May 2018, having seen her on 26 April. Whilst he obtained a history of the incident which was in similar terms to that recorded in other reports, Associate Professor Jones noted the date of it as being 17 November 2017 (as opposed to 6 November 2017).
28Associate Professor Jones noted that that the plaintiff originally felt a twinge in her back, but that a few days later she had developed neck pain. The back pain has since resolved. Her present problems were neck pain extending into the left shoulder, the left arm and the left thumb. After a steroid injection into her neck, the pain had been intermittent, but was worse at night. Her symptoms were aggravated by sudden movement and sleeping was difficult.
29Associate Professor Jones obviously had access to the report of the MRI of 16 December 2017. He was of the view that the plaintiff was suffering from a degenerative condition affecting her cervical spine. He thought that to be longstanding, but believed that the injury described had aggravated the situation. He did not believe that there were any non-work related factors influencing her recovery. Her incapacity for work was materially contributed to by the claimed injury, which, he repeated, was an aggravation of an underlying degenerative process. However, Associate Professor Jones considered the plaintiff’s employment with Scope to be a significant contributing factor to her cervical injury and to be the cause of her symptoms.
30At the time that he saw the plaintiff, Associate Professor Jones thought that she would be able to return to pre-injury duties and hours in the comparatively near future. However, he added that her work had involved a lot of manual handling and that this would need to be modified before a return to work. He anticipated that such return should be reviewed in two to three months’ time, but added that the work-related injury had not resolved. The only medical treatment required was physiotherapy.
31Dr Tim Hwang, consultant occupational physician, saw the plaintiff at the request of the defendant on 1 February 2019, reporting on the same day. Dr Hwang took a history of injury on 6 November 2017, following which the plaintiff felt acute pain in her lower back for a few days. This settled, but approximately a week after the accident the plaintiff woke up with a sore neck. The pain radiated down her left arm.
32Dr Hwang took a history of the plaintiff’s treatment. It is evident that Dr Hwang had earlier seen the plaintiff for the purposes of a worksite assessment and of her fitness for duties. On this occasion, the plaintiff complained of a constant background ache at all times on the left side of her neck and down her left shoulder to the arm. The background ache was quite manageable, but at times, and particularly during certain movements, there could be a sudden sharp pain down the arm. She also described stiffness in moving or turning her head. As earlier stated, Dr Hwang described the plaintiff as being pleasant, cooperative and presenting in a straightforward manner.
33Dr Hwang considered that the plaintiff had multilevel degeneration and that her symptomatic level was most likely to be at C5-6, referring to a posterior disc osteophyte complex with a left pre-foraminal focal disc protrusion compressing the left C6 nerve root. As the claim had been accepted, Dr Hwang refrained from providing any further opinion on the matter of causation. A considerable portion of his report was directed towards suitability for employment. He observed that the plaintiff’s neck movements were significantly limited by discomfort, although not accompanied by any sharp pain. Whilst she had previously been highly active, including playing soccer, she now described very low levels of physical activity, with resultant deterioration of fitness. Dr Hwang recommended a referral to a pain management specialist with access to a multidisciplinary pain management program.
34Mr Kevin Siu, neurosurgeon, saw the plaintiff at the request of the defendant’s solicitors on 28 October 2020, reporting on 10 November. Mr Siu prefaced his report by expressing surprise that there was an application for serious injury, given that the plaintiff had fully recovered and that, apart from migrainous headaches, really there was no disability or impairment. He then moved on to the body of the report.
35Mr Siu took a detailed history. This included that, after having an injection, the plaintiff had no pain and had no pain ever since. However, she said that she had suffered from bad headaches. Effectively, he found nothing on examination, adding the observation that the range of movement in her neck was excellent.
36Mr Siu diagnosed that the plaintiff had suffered an exacerbation of mild cervical spondylosis. He emphasised that the plaintiff had been a soccer player and that soccer was a contact sport, with the use of the head and neck. He could not offer an explanation as to how bending down and undoing a strap could have caused a minor injury to the neck.
37Mr Siu concluded by saying that the plaintiff had not been able to return to soccer, partly because of the alleged injury to the neck and partly because of COVID-19 restrictions.
38I am satisfied that the plaintiff suffered injury to her neck, with some radiation of pain and symptoms into the left upper limb. I am satisfied that this injury and its consequences resulted from the accident. I appreciate that there may have been some days between the occurrence of the accident and the onset of symptoms.
39The plaintiff’s treating general practitioner, Dr Nadiger, has expressed the opinion that the neck pain was probably related to the work incident.
40She had no cervical symptoms prior to the occurrence of the accident. It is not suggested that she engaged in any relevant behaviour or activity in the period between the occurrence of the accident and the onset of symptoms. Turning to medico-legal examiners, Mr Awad and Dr Sullivan both implicated employment, with Mr Awad specifically referring to the incident. Associate Professor Love, examining on behalf of the defendant, had a history of the incident, but also implicated the nature of the plaintiff’s work. Indeed, in his supplementary report, he specifically stated that the accident of November 2017 induced the symptoms from which the plaintiff was suffering. Mr Roy Carey, also examining on behalf of the defendant, took a history of the injury occurring on 6 November 2017, the plaintiff originally having acute back pain, but awakening with neck symptoms approximately a week later. He expressed the opinion that there had been an initial acute cause. Associate Professor Jones, also examining on behalf of the defendant, thought that the injury was an aggravation of an underlying degenerative process. He also had a history of the sequence of events. Whilst Mr Siu believed that the plaintiff had fully recovered, he also referred to an exacerbation of mild cervical spondylosis, although also referring to the plaintiff’s engaging in soccer. The evidence seems to me to clearly support the proposition that the plaintiff suffered an injury to the cervical spine in the accident.
41The diagnosis of Mr Awad was of aggravation of cervical spondylosis, with left arm radiculopathy and cervicogenic headaches. This is very similar to the diagnosis of Dr Sullivan of aggravation of cervical spondylosis, with likely irritation of the left C6 nerve root. It is not vastly different from the diagnosis of Associate Professor Love of a C5/6 disc lesion on the left side or that of Mr Carey, who referred to her left C5/6 disc extrusion. The diagnosis of Associate Professor Jones of aggravation of underlying degenerative process is broader in nature, whilst Dr Hwang referred to a posterior disc osteophyte complex at C5/6, with a left pre‑foraminal focal disc protrusion compressing the left C6 nerve root. I prefer these diagnoses to that of Mr Siu of an exacerbation of mild cervical spondylosis. The bulk of the other diagnoses seem to be more precise. I might add that I am not particularly impressed by Mr Siu expressing his opinion in a medico-legal report by stating at the outset that he was surprised that there was an application for serious injury.
42In short, I am satisfied that the plaintiff suffered from what could be described as a discal lesion or injury at the C5/6 level, with left arm radiculopathy, the probable result of likely irritation of the left C6 nerve root.
43I note that, whilst Associate Professor Love considers the plaintiff’s condition to be new and not an aggravation, there are other opinions to the effect that the injury is in the nature of an aggravation. However, whichever way it be treated, I am satisfied that before the accident the plaintiff was totally asymptomatic and that the symptoms and restrictions from which she now suffers are consequences of the accident.
44I am also satisfied that the effects and consequences of the accident are permanent within the meaning of the Act, in that they will persist for the foreseeable future. That is the opinion of Mr Awad. Dr Sullivan considered it unlikely that the plaintiff would return to her pre-injury social engagements or recreational engagements, and that could be considered a permanent situation. He also referred to the fact that his expectation was that restrictions upon the plaintiff in relation to employment could be considered permanent. Mr Carey stated that the prognosis was for continued discomfort for the foreseeable future. I am of the opinion that the permanence of symptoms and restrictions has been established within the meaning of the Act.
45Consequences of a psychological or psychiatric nature are not to be taken into account. Dr Sullivan stated that the plaintiff may have sustained a secondary psychological injury, but that her presentation was wholly organic in nature. There is no suggestion of the plaintiff having had any psychiatric or psychological treatment. No report from either a psychiatrist or psychologist has been placed in evidence. The presentation of the witness in the hearing certainly was not one of a person having mental health problems. Any such consequences shall not be taken into account, but I am of the view that, in any event, they are minimal, if they exist at all.
(f)Other developments since the injury
46Following the accident, the plaintiff continued in her employment on restricted duties. These continued until the plaintiff had approximately four weeks off for the Christmas holiday break. She returned to modified duties, but ceased work again on 23 January 2018. She was away until 9 April 2018, when she returned on modified duties and for reduced hours. She continued on modified duties until ceasing work with Scope in April 2019. Eventually she found suitable employment as a social mentor with Pride Victoria. Whilst this commenced as a casual job, it has become her permanent employment. Although she has some difficulties when holding her neck in one position, as she does when working on a computer, the work which she performs is generally within her capacity. She now occupies a permanent position and is the South Eastern Regional Manager for Pride Victoria. This is a “desk job”.
47In July 2020, she moved in with her current partner. There have been no other events of significance since the accident.
Ruling
48I am satisfied that the plaintiff has discharged the burden of proof. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(a) The plaintiff has sworn that she has pain in her neck all the time. She rates her basic neck pain as being 2 out of 10 but with regular flareups several times per week. When this occurs, her level of pain goes up to approximately 8 out of 10. She also gets headaches almost daily, with the pain travelling up the back of the neck and into the left side of the head. The presence of constant pain, with flareups, has long been regarded as an important factor in applications such as this.
(b) The plaintiff takes approximately six to eight Panadol or Nurofen tablets every day. More recently, the plaintiff has commenced taking Lyrica at night for her neck pain. The level of medication which a person is consuming is also a useful indication of pain and suffering levels.
(c) The plaintiff’s neck pain has been disturbing her sleep. That is particularly so in more recent times. Only limited importance can be attributed to this symptom because of its comparatively recent onset, but it has been of sufficient magnitude to cause the plaintiff to start taking Lyrica at night.
(d) Prior to the accident, the plaintiff was an active sportswoman. In particular, she loved playing soccer. On the recommendation of her surgeon, she had to cease doing this. She has also been unable to participate in snowboarding and skateboarding. She is a young woman and has been forced to cease involvement in sporting activities, particularly the soccer which she loved.
(e) Because of the injury, the plaintiff has been forced to change occupations. Her previous work involved her in active personal care attendant duties and she has sworn that it was an area of work which she loved. She had completed a Bachelor of Applied Science before the injury and was passionate about working in the disabilities sector and ensuring people had the opportunity to enjoy physical activities and sports. The affidavit of her partner also contains reference to the plaintiff’s passion for working in the disability sector. Similarly, the plaintiff’s mother has sworn an affidavit as to the plaintiff’s sporting activities and her love of working as a personal care assistant. There was no challenge to the deponents of either of these affidavits.
(f) As a result of the injury, there has also been interference with the plaintiff’s intimate relationship with her partner. That is also a factor which should be borne in mind.
49When all of the above is taken into account, it is my opinion that the plaintiff has discharged the burden of proof and satisfied the statutory test.
Conclusion
50The plaintiff is successful. She has discharged the burden of proof. I shall hear the parties as to any further orders that are required.
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