Tsikrikos v Cushman & Wakefield (Australia) Pty Ltd
[2022] VCC 1578
•26 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04666
| ANNA TSIKRIKOS | Plaintiff |
| v | |
| CUSHMAN & WAKEFIELD (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2022 | |
DATE OF JUDGMENT: | 26 September 2022 | |
CASE MAY BE CITED AS: | Tsikrikos v Cushman & Wakefield (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1578 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Lower back injury – whether the pain and suffering consequences meet the statutory threshold
Cases Cited:Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey | Arnold Thomas & Becker |
| For the Defendant | Mr B McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1The plaintiff commenced employment with the defendant in about 2011. By 2013, she was a permanent employee employed as a workplace facilities coordinator. The defendant managed premises occupied by businesses. The defendant managed the tenth and twelfth floors of 101 Collins Street, Melbourne, which was occupied by the National Australia Bank. The plaintiff’s duties involved, among other things, moving furniture and other items in meeting rooms, usually on her own. It was in the course of engaging in those tasks that, by mid-2015, she suffered a lower back injury.
2The plaintiff submitted that she has suffered a permanent serious impairment or loss of the function of her lower back. The defendant conceded that the plaintiff has suffered a compensable injury, however her impairment consequences cannot meet the statutory threshold. The plaintiff’s application was limited to pain and suffering.
3Mr Dimsey of counsel appeared for the plaintiff. Mr McKenzie of counsel appeared for the defendant.
4Before summarising the evidence, I should make it clear that the plaintiff’s affidavits did not disclose the medical evidence, nor the plaintiff’s consequences, in the detail which one would expect to find in affidavits. A lot of the detail that was not in the affidavits was to be found in the medical reports. The parties were content to aggregate the content of the affidavits and the medical reports as the plaintiff’s evidence.
The Plaintiff’s medical treatment
5The plaintiff experienced lower back pain, and then the development of pain radiating into her left leg. The level of pain she was experiencing in the month preceding 11 March 2017 was worsening and, in particular, over the week preceding that date, she was particularly busy in the work tasks she was required to perform. On 11 March 2017, she experienced severe pain in her left leg as she rolled out of bed. She had difficulty standing because of shooting pain she was experiencing in her left leg, which extended down underneath her left foot.[1]
[1] Plaintiff’s Amended Court Book (“PACB”) 20
6The plaintiff’s situation worsened over the next few days. On the day following 11 March 2017, she had difficulty walking and was experiencing significantly worsening pain. She had difficulty working over the subsequent three days, and eventually called a locum general practitioner, who provided her with analgesia. She experienced little improvement in the pain and called on a further locum general practitioner. She remained at home for a week convalescing.
7The plaintiff’s situation then worsened to the extent that she called an ambulance. She was admitted to The Alfred hospital, where she was an inpatient for seven or eight days. An MRI scan was taken on 23 March 2017.[2] The radiologist reported that there were a number of abnormalities evident on the MRI scan, including an L2-3 left foraminal annular fissure, and a disc protrusion at L5-S1, causing compression of the traversing left S1 nerve root. The plaintiff saw a neurosurgeon, who advised her on treatment options. She pursued conservative treatment.
[2] PACB 17-18
8The plaintiff was discharged from The Alfred hospital, but because of her failure to improve, she was re-admitted, and then transferred to the Caulfield Rehabilitation Hospital, where she was an inpatient for three-and-a-half weeks. She improved sufficiently to then be discharged. She attended as an outpatient and had physiotherapy, Pilates, hydrotherapy and chiropractic treatment. She also underwent a pain management program over a period of two-and-a-half months. During the course of all of this treatment, she was prescribed appropriate pain medication.
9The plaintiff was absent from her employment from March to October 2017. She returned to work with the defendant in a customer service role. The plaintiff’s employment was terminated by the defendant because she was asked if she could return to her normal duties. The termination occurred when she responded that she was unable to do that.
10The plaintiff has had very little medical treatment in recent years. She continues to attend the St Kilda Superclinic for general medical needs. She last attended about a month ago to obtain an inoculation for Covid-19.[3] She was prescribed Lyrica for pain relief about a year ago. She no longer uses it.[4] She last used Panadol Osteo for pain relief in March/April 2022.[5] She last saw a chiropractor in about 2019.[6] She last had hydrotherapy in about 2018 or 2019.[7]
[3] Transcript (“T”) 12
[4] T12
[5] T13
[6] T14
[7] T14
11She has two active forms of treatment currently. She uses hot or cold packs. The last occasion she used a hot or cold pack was on the weekend preceding the date of hearing. The occasion previous to that was about a month beforehand. My impression was that her use of hot or cold packs is dependent upon the increase in pain. She has used hot and cold packs up to twice a week.[8] The other form of treatment is massage. She has a massage about once a week. It is directed to pain, soreness, tightness and stiffness in her lower back. The massage is also a full-body massage to deal with what she described as “stiffness, muscle stiffness, aches, pain, I get a tightening in my buttocks and it sort of releases it. They do deep tissue massage”.[9]
[8] T13
[9] T14-15
12The plaintiff agreed that the pain she experiences fluctuates to the extent that she has occasional bad days. She also agreed that, over time, the problems she has experienced with her lower back have improved to the extent that she has the modest treatment which I have summarised above.[10]
[10] T13-14
13The plaintiff agreed that the histories taken by a number of medical practitioners relevant to her capacity to sit, stand, walk and drive a car, are accurate. Dr Ian Dickinson, orthopaedic surgeon, recorded that she could stand for thirty to forty-five minutes; walk for about fifteen minutes, and drive a car for about forty-five to fifty minutes.[11] Mr Michael Dooley, orthopaedic surgeon, recorded that the plaintiff told him she can walk for thirty to forty minutes on a beach.[12] Dr Joseph Slesenger recorded that she can drive a car for about sixty minutes.[13] Mr Garry Grossbard recorded that she can sit for about one hour; stand for thirty to forty-five minutes; walk for about fifteen minutes; and drive for about one hour.[14]
[11] Defendant's Court Book ("DCB") 6 and T15
[12] DCB 23 and T15
[13] DCB 29 and T16
[14] PACB 21 and T16
14The plaintiff agreed that she could engage in sitting, standing, walking and driving to the extent recorded by these medical practitioners. She essentially said that this is her level of tolerance before she experiences lower back pain and left leg pain. I will return to this later in these reasons, when I summarise the medical evidence.
The medical evidence
15I will summarise the plaintiff’s medical evidence first. The plaintiff relied on the reports of Mr Grossbard. He examined the plaintiff on 23 September 2019 and provided a report dated 24 September 2019.[15] He reviewed the plaintiff on 28 June 2022 and provided a report bearing the same date.[16] I will limit my summary to his second report, which encompasses the history, examination and opinion contained in his first report.
[15] PACB 19-22
[16] PACB 23-25
16Mr Grossbard recorded a history that the plaintiff experienced three exacerbations of pain since he first examined her. She dealt with the exacerbations by rest and using heat packs. Each episode took two or three days to gradually settle. On the occasion of the exacerbations, she used Lyrica for pain relief. The plaintiff told him that her level of pain tended to fluctuate, and that there were occasional bad days. She used Panadol Osteo of up to four per day, but sporadically. She also resorted to the use of Lyrica. She used hot and cold packs about twice a week. She told Mr Grossbard that she experiences a burning sensation when she sits. The pain is better when she moves around, and is worse in the mornings and late in the day. When she experiences pain, it moves to her left thigh and is accompanied by numbness. She occasionally experiences shooting pain down her left leg, which can last up to five to ten minutes. She has numbness in her left thigh, which is present most of the time, and can be associated with a burning sensation. She then described her capacity to sit, walk, and drive. She also told him that she has difficulty vacuuming and making beds.
17Mr Grossbard considered that the plaintiff had suffered a discal injury at the lumbosacral level with left-sided sciatica caused by S1 nerve root compression. He considered that she did have a capacity for work, but would not be able to return to work which involved lifting, pulling and pushing activity. He considered that she could manage work where she could sit and stand and was not required to bend or lift. He considered that she would continue to have ongoing back pain with exacerbations from time to time, and that the exacerbations might gradually increase in severity.
18Mr Merenstein, general surgeon examined the plaintiff on 1 February 2019 and provided a report dated 4 February 2019.[17] Neither party relied upon his opinion nor the content of his report to any material degree. I think it is sufficient to say that he diagnosed the same lower back injury as did other examiners. Otherwise, his opinion relevant to the plaintiff’s fitness for work, treatment and other matters on which he was asked to express an opinion are overtaken by the opinions of the more recent assessors.
[17] PCB 47-55
19Dr Dickinson examined the plaintiff on 4 July 2019 and provided a report dated 15 July 2019.[18] He provided a supplementary report dated 30 October 2019.[19] Dr Dickinson’s report is quite stale, however the importance in providing a summary of it is because of the reliance on aspects of it by the defendant. He recorded a history that the plaintiff had ongoing numbness in her left buttock, and a feeling of tightness in the left buttock and upper thigh posteriorly. She experiences shooting pain into the left little toes and sometimes numbness in the second and third toes. Her main pain was always in the left buttock, with an aching pain in her lower back in a band across her lower back, with a feeling of heaviness in her left thigh. She then described her capacity to walk and stand.
[18] DCB 4-9
[19] DCB 11-12
20Dr Dickinson considered that the episode of rolling out of bed on 17 March 2017 was unrelated to her work, and was the essential cause of the discal injury and the onset of sciatica. I think that opinion then coloured the balance of his expression of opinion. He appears to have considered that the plaintiff was fit to perform her pre-injury work if he ignored the event which occurred on 17 March 2017. I am not convinced that Dr Dickinson’s opinion is of any use in this proceeding.
21Mr Dooley examined the plaintiff on 15 February 2022 and provided a report dated 25 March 2022.[20] She told Mr Dooley that she had experienced significant improvement over time. She continues to experience lower back pain and intermittent left lower limb pain. She paces herself in her home, and I presume that means when undertaking domestic tasks. She avoided taking medication. She continues to do clinical Pilates. She described two of her recreational activities as being an active swimmer and engaging in yoga.
[20] DCB 22-25
22Mr Dooley weighed up the causation question, concluding that it was equally possible that the disc prolapse suffered by the plaintiff resulted from the plaintiff’s work in the lead up to 17 March 2017. Mr Dooley said very little, apart from noting that the plaintiff had sensibly modified her activities and that, from a causation point of view, her limitations were consistent with an organic condition and, otherwise, she was fit to continue with her employment. He did not expect that the plaintiff would suffer any deterioration over and above the normal expected evolution of underlying degenerative changes in her lower back.
23The plaintiff was also examined by Dr Dush Shan, psychiatrist on 14 October 2021 and he provided a report bearing the same date.[21] The defendant relied on a history taken by Dr Shan that the plaintiff had returned to being sociable and was keeping in touch with family and friends. It was to counter the plaintiff’s evidence that she is somewhat socially withdrawn.[22]
[21] DCB 13-19
[22] Transcript 22
The Plaintiff’s consequences
24The plaintiff has made a significant recovery from her lower back injury and is left with some consequences. It is abundantly clear from my summary of the plaintiff’s evidence that she is no longer resorting to any medical or paramedical treatment, or the use of painkilling medication. Her current treatment regime is massage, but it is not limited to treatment for her lower back. It encompasses a full-body massage. She also uses hot or cold packs intermittently. She told Mr Dooley that she is doing clinical Pilates, but that is not something which is referred to anywhere else in the evidence.
25The consequences which the plaintiff can point to are her reduction in her capacity to sit, stand, walk and drive a car. However, the estimates over the time that she is able to engage in those activities demonstrates that it is only after a reasonably-significant period of time that she then experiences the onset of a level of pain in her lower back and left leg. The impact upon her of that reduction has not figured in any way in an inability to work and, indeed, the plaintiff is working full time, and made it tolerably clear that she does not see her lower back injury interfering with her capacity to work for the foreseeable future.
26The plaintiff does not do any physical work, as she did when she was injured, for example, moving furniture. She is essentially deskbound. Her work involves database and administrative work. She is accommodated in having a sit/stand desk arrangement, which means that she can sit to the extent that she is comfortable, and then can change her posture to standing, to the extent that she is comfortable in doing that. That arrangement appears to have accommodated the plaintiff’s problems with sitting and standing for periods when she will then experience the onset of lower back pain.
27The other consequences which the plaintiff relies on is interference with physical activities such as rollerblading and cycling; overseas travel; social activities; and yoga, which was a major interest. There is also passing reference in a medical history to the plaintiff engaging in swimming, but it is not something referred to by the plaintiff in any detail. The impression I have is that she engaged in rollerblading every couple of weeks when the weather was good, possibly on a Saturday and Sunday.[23] She engaged in cycling every couple of months or so. The last time she had travelled overseas was in 2006.[24] She has no current plans to travel overseas again. However, she considered that sitting for an extended period of time on a plane would be difficult, as would dealing with luggage. It would appear that she has resumed some level of contact with friends and family, but not to the same extent that was the case before she suffered the lower back injury.
[23] T20
[24] T21
28The plaintiff’s involvement with yoga was no doubt a major interest for her. She submitted, during her final address, that it was a central part of her life. She engaged in yoga five times a week. Each session was about an hour and a half. She described the sessions as “workshops”. The impression I was left with was that the level of yoga she engaged in was physically strenuous. It was after 17 March 2017 that she reduced the frequency she engaged in yoga. She currently engages in yoga, but does not have the same energy levels that she had previously, and she experiences pain when engaging in certain postures. She now engages in lower impact yoga, which she describes as being very restorative, comprising lower-impact work and stretching, to return to some measure of suppleness in her lower back.[25]
[25] T24-26
29The plaintiff is able to perform the necessary domestic activities to maintain her second-floor one-bedroom apartment. She is able to otherwise do her own cleaning, washing and shopping. She suffers an interference with her sleep at intervals, which might be every couple of months, or every couple of weeks, and it would appear that the interference is associated with a flare up.[26]
[26] T16-18
Disposition
30The plaintiff struck me as being an entirely creditworthy and reliable witness. She candidly described a significant recovery from her lower back injury, to the point where she appears to me to have a relatively-modest level of pain, which occurs when she sits, stands, walks and drives for reasonably significant periods of time. She is able to work without interference, and she is able to engage in some level of social activities, and otherwise engage in domestic activities as she did prior to suffering the lower back injury.
31I am not convinced that the loss of rollerblading, cycling and swimming are significant losses to the plaintiff. I am not convinced that the interference with the plaintiff’s sleep is significant. I am not convinced that the plaintiff suffered anything other than a modest interference with her capacity to work. However, I accept the plaintiff’s evidence that she is no longer able to engage in yoga to the degree and extent to which she was accustomed to prior to suffering the lower back injury.
32It is permissible to look at each of the pain and suffering consequences contended for by the plaintiff individually in order to understand whether the plaintiff has in fact suffered a loss or a reduction in being able to engage in a particular activity. However, the test is to be applied to the pain and suffering consequences of the impairment considered as a whole.[27] Even though the plaintiff’s loss of engagement with yoga may be characterised as significant, when all of the consequences contended for by her are collected together and looked at as a whole, they may approach “marked” or “significant”, but I am not persuaded that they meet the statutory threshold.
[27] Sutton v Laminex Group Pty Ltdd (2011) 31 VR 100 at paragraphs [112]-[114]
33I will order that the Originating Motion be dismissed.
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