Turner v Australian Home Care Services Pty Ltd
[2018] VCC 1536
•17 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05984
| DEBRA ELLEN TURNER | Plaintiff |
| v | |
| AUSTRALIAN HOME CARE SERVICES PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 September 2018 | |
DATE OF JUDGMENT: | 17 October 2018 | |
CASE MAY BE CITED AS: | Turner v Australian Home Care Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1536 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Workplace injury – injury to the lower back – pain and suffering consequences only – pre-existing psychological/psychiatric condition of significance – significance of plaintiff’s fitness to undertake alternative work in administration – whether the pain and suffering consequences are “serious” – whether the psychological/psychiatric condition contributed to the pain and suffering consequences – whether there was a prospect of improvement in the plaintiff’s condition by further treatment
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:O’Donnell v Reichard [1975] VR 916; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: The plaintiff’s Originating Motion is dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Shine Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff is a forty-six-year-old woman who suffered injury to her lower back in the course of and within the scope of her employment with the defendant on 1 April 2013.
2 The plaintiff submitted that she has suffered a serious permanent impairment of the function of her lower back, and that the pain and suffering consequences of the impairment are “serious”.
3 Mr M Walsh of counsel appeared for the plaintiff. Mr C Miles of counsel appeared for the defendant.
The Plaintiff’s injury
4 The plaintiff commenced employment as a cleaner with the defendant in 2011. On 1 April 2013, she was wringing out a mop through a mop bucket. She placed one foot on a “bucket stop” to steady the bucket, and with the other foot she pressed the “mop bucket lever” which closed the rollers on the mop bucket. As she was doing this she was pulling the mop through the rollers. It was that activity which resulted in the plaintiff suffering the sudden onset of sharp lower back pain.[1]
[1]Plaintiff’s Court Book (“PCB”) 4
The issues
5 The defendant submitted that there are a number of issues which militate against a finding that the plaintiff’s impairment consequences are serious:
· Whether the impairment consequences contended for by the plaintiff are serious.
· Whether the plaintiff suffered a pre-existing lower back condition, and therefore, the impairment consequences are the result of an aggravation of that pre-existing lower back condition.
· Whether a pre-existing psychological/psychiatric condition contributes to the impairment consequences which the plaintiff contends are caused by her lower back injury.
· Whether the pre-existing psychological/psychiatric condition causes or contributes to any of the impairment consequences which the plaintiff says are caused by her lower back injury.
· If the plaintiff were to have further rehabilitation and retraining whether her physical condition would return the plaintiff to better physical functioning and with respect to a capacity for alternative employment.
· Whether an adverse inference should be drawn against the plaintiff for failing to call relevant evidence.
· The plaintiff’s creditworthiness and reliability.
The Plaintiff’s medical treatment
6 The plaintiff first saw Dr Krigsman, general practitioner. The plaintiff did not obtain a report from him. There are three letters written by him dated 6 June 2014 to an insurance agent relevant to the costs of transport;[2] a letter dated 28 August 2014 to the same insurance agent requesting approval for psychological counselling,[3] and a letter dated 11 December 2014 to the same insurance agent requesting approval for specialist psychiatric management.[4]
[2]PCB 28
[3]PCB 29
[4]PCB 30
7 Despite the absence of a report from Dr Krigsman, what is apparent is that he referred the plaintiff to have a CT scan, which was performed on 2 April 2013. The radiologist commented that it demonstrated facet joint degeneration, left S1 compression at L5-S1 due to a disc problem, and mild central canal narrowing from L3-4 to L5-S1.[5]
[5]PCB 23
8 The plaintiff says that Dr Krigsman prescribed her pain-relieving medication and referred her to physiotherapy.[6] She was prescribed Voltaren. It would appear that she had physiotherapy treatment from April to August 2013 with a physiotherapist, and then with a different physiotherapist from August 2013.[7] The plaintiff did not obtain reports from the physiotherapists.
[6]PCB 5
[7]PCB 5
9 The plaintiff returned to light cleaning duties six weeks after suffering the lower back injury. She then performed administrative work until August 2014, when the defendant told her that it would not provide her with any further work.[8]
[8]PCB 5
10 Dr Krigsman then referred the plaintiff to Dr Vivian. The plaintiff did not obtain a report from him. He wrote a letter to an insurance agent dated 23 October 2013 informing the insurance agent that the plaintiff required a lumbar MRI scan.[9] For reasons which the plaintiff is unable to explain, she did not have an MRI scan performed at that stage.
[9]PCB 31
11 The plaintiff was then referred to Dr Hucker, pain specialist and anaesthetist, presumably by Dr Krigsman. The plaintiff did not obtain a report from him. He wrote a letter to an insurance agent dated 12 February 2014 requesting approval for pain management and treatment.[10]
[10]PCB 32
12 The plaintiff says that she was taken off Panadeine Forte by February 2014 and was prescribed Norflex. It is not clear whether that occurred at the direction of Dr Krigsman or Dr Hucker. Dr Hucker referred the plaintiff to have a bone scan. The plaintiff was then prescribed Panadeine Forte, as well as Norflex, presumably at the direction of Dr Hucker.[11]
[11]PCB 5
13 The plaintiff says that she commenced a pain management program at Empower Rehabilitation in Heidelberg on 10 June 2014. It is not clear whether that pain management program was organised and conducted by Dr Hucker. I note that the only report from Empower Rehabilitation is from Ms Davenport, clinical psychologist, dated 20 July 2015.[12] It only refers to psychological treatment and not physical treatment. The plaintiff says that the pain management program helped her to understand her “predicament”.[13]
[12]PCB 33
[13]PCB 6
14 By late 2014, the plaintiff’s psychological state was in decline. Dr Krigsman referred her to Dr Eimany, psychiatrist, in November 2014. In July 2015, she was referred to a different psychologist at Clarity Health Care. In October 2016, she was referred to Dr Kruk, psychiatrist.[14] She did not see him. I will return to the plaintiff’s psychological/psychiatric state later in these reasons, but for the time being I propose to concentrate on the medical evidence relevant to the plaintiff’s lower back injury.
[14]PCB 6-7
15 The plaintiff moved from Ferntree Gully to Frankston. After the move, she saw medical practitioners at Beach Street Family Medicine. The first was Dr Korol and later, Dr Butrev. The plaintiff says that she was experiencing symptoms of pain in her lower back, with radiation of pain into her left buttock and down her left leg. The plaintiff was referred to have a CT scan, which was performed on 14 October 2016. The radiologist reported that it did not demonstrate any abnormality.[15]
[15]PCB 24
16 Dr Koral has continued to treat the plaintiff. She says that she sees him on a regular basis about every three to four weeks. He prescribes her Panadeine Forte, which the plaintiff says she takes “on an as needs basis”.[16] More recently, the plaintiff has undergone further radiological investigations, including a CT scan, performed on 7 February 2017, not demonstrating any abnormality;[17] a further CT scan, performed on 7 March 2018, demonstrating minor facet-joint arthropathy with sclerosis at the L4 to S1 levels, and an MRI scan, which was performed on 2 August 2018, demonstrating mild degenerative changes with no disc protrusion, canal stenosis or foraminal stenosis.[18]
[16]PCB 12-13
[17]Defendant’s Court Book (“DCB”) 36-37
[18]PCB 25
17 Dr Koral provided a report dated 1 August 2018 in which he answered a number of relevant questions. In relation to the plaintiff’s capacity for work, he said that she has a capacity for office and administrative work. The restrictions that he would place on her are no sitting for more than 30 minutes without a break, avoiding repetitive bending, twisting, lifting of more than 5 kilograms and prolonged driving for more than 30 minutes. He also considered that there was likely to be a significant effect on her day-to-day activities, referring to her ability to socialise, move freely and pursue suitable job opportunities.[19]
[19]PCB 26-27
18 Dr Jayatilake, general practitioner, has temporarily taken over the treatment of the plaintiff while her usual general practitioner is away. He referred the plaintiff to Dr Gassin who the plaintiff understands to be a pain management specialist. She has not seen him. She said that she is unable to pay to see him.[20]
[20]Transcript 35
The medico-legal evidence
19 I propose firstly to set out the evidence relied upon by the plaintiff which she says demonstrates that the impairment consequences of her lower back injury are serious. I will then deal with her pre-existing psychological/psychiatric condition, and then the other issues which were raised by the defendant.
20 Mr Doig, orthopaedic surgeon, examined the plaintiff in August 2016 and provided a report dated 18 August 2016.[21] The plaintiff told him that she has ongoing lower back pain and occasional radiation of pain down the back of both legs to the thigh. She was not having any formal treatment when she saw him. She described her medication regime as Panadeine Forte for relief of her lower back symptoms.
[21]PCB 46-47
21 Mr Doig considered that the plaintiff had suffered an aggravation of L5-S1 disc degeneration and she may well have aggravated asymptomatic facet joint degeneration. He considered that she was not fit for her pre-injury employment. He considered that returning to administrative work was well within her capabilities. He considered that she would benefit by having pain management. In particular, he considered that if she was having problems with the facet joints, that an injection of local anaesthetic and steroid would be of considerable benefit to her, and if proven to be helpful, then radiofrequency denervation would also be of considerable benefit. Otherwise he considered her prognosis to be “somewhat guarded”.
22 Mr Doig re-examined the plaintiff in July 2018. He provided a report dated 26 July 2018.[22] It would appear that he made a comparison between his recent examination of the plaintiff and when he previously examined her. Having done so, he said that his assessment of the plaintiff was essentially unchanged.
[22]PCB 48-50
23 The plaintiff did not place much reliance on the medical report of Dr Middleton, occupational health and rehabilitation consultant, who examined the plaintiff on 1 September 2016. He provided a report dated 22 September 2016.[23] Nor on the report of Mr Goldwasser, orthopaedic surgeon, who examined the plaintiff on 16 July 2014. He provided a report dated 18 July 2014.[24] Neither of these reports add very much to the plaintiff’s case except to confirm that she suffered a lower back injury which has impaired the function of her lower back, and in particular, relevant to her capacity to work and function generally.
[23]PCB 51-65
[24]PCB 77-83
24 Mr Dooley, orthopaedic surgeon, examined the plaintiff for the defendant on 31 October 2017. He provided a report dated 13 November 2017.[25] The plaintiff told him that she suffers intermittent exacerbations of pain once or twice a week for which she takes Panadeine Forte. The pain sometimes radiates down into her left lower limb which sometimes gives way. She said that prolonged sitting aggravated her pain. She said that she could work productively in an administrative position. His opinion is very similar to the opinion of Mr Doig. He considered that the plaintiff had suffered an aggravation of underlying degenerative disc disease; that she was unfit for her pre-injury work, but had a capacity to work in administration.
[25]DCB 17-20
25 Mr Dooley re-examined the plaintiff on 23 July 2018. He provided a report dated 6 August 2018.[26] It would appear that he made a comparison between his recent examination of the plaintiff and when he previously examined her. Having done so, he said that his assessment of the plaintiff was essentially unchanged.
[26]DCB 21-25
26 Dr Bones, consultant occupational physician, examined the plaintiff on 22 August 2018. She provided a report dated 29 August 2018.[27] The plaintiff told her that she has constant pain in her lower back which can grab. She suffers an associated tightness in her shoulders as a result of her lower back pain. She said that bending increased her pain, and otherwise, days when she is troubled by her injuries vary and that she has become somewhat used to the pain and has learning to pace herself. She said that her fitness has been reduced because of the need to manage pain which she experiences every day. She said she needed to take up to eight Panadeine Forte tablets a day when she had the need for pain relief.
[27]DCB 26-33
27 Dr Bones was unable to reach a diagnosis, although, it is clear that she worked on the premise that the plaintiff had suffered an impairment of the function of her lower back. She considered that the plaintiff was fit for administrative work. She considered that there were two things that were of importance in the plaintiff returning to that sort of work – firstly, undertaking a vocational assessment; and, secondly, training in bookkeeping. Otherwise, she considered that the plaintiff should avoid prolonged sitting and standing, or manual handling, lifting above 5 kilograms, repetitive or sustained bending or stooping and undertake a phased return to work.
28 On the basis of this evidence, I think it is more likely than not that the plaintiff suffered an aggravation of spondylitic changes in her lumbar spine and not a frank disc injury. The extent to which the injury impairs her capacity for work is related to undertaking arduous work outside the type of restrictions referred to, but she has a retained capacity to return to work in an administrative job.
The Plaintiff’s consequences
29 The following is a summary of the impairment consequences on which the plaintiff gave evidence caused by her lower back injury:
· Pain in the lower back which varies from day to day.[28]
[28]PCB 7
· Standing and sitting for too long, causing a steadily increasing ache.[29]
[29]PCB 7
· Pain radiating into the left leg which is somewhere between 5 and 9 out of 10 daily. Sometimes the radiating pain results in a grabbing sensation in her buttocks and numbness in the left leg.[30] She suffers significant flare ups of pain about twice a week which she estimates to be between 8 or 9 out of 10.[31]
[30]PCB 8 and 14
[31]PCB 14
· Interference with sleep, with numbness in the left leg at night. She averages four or five hours’ sleep per night. Interference with sleep causes her to feel tired and groggy the next day and interferes with her ability to concentrate.[32]
[32]PCB 8 and 14
· Difficulties with bending, stooping, squatting, lifting, reaching and activities such as putting on her shoes, socks and dressing.[33]
[33]PCB 9 and 15
· Difficulty walking up and down stairs.[34]
[34]PCB 10
· Difficulty undertaking gardening, such as operating a lawnmower and a Whipper Snipper.[35]
[35]PCB 10
· Interference with housework, such as activities involving reaching and vacuuming.[36]
· Consumption of three Panadeine Forte tablets per day on average and up to eight when the pain is particularly bad.[37]
· Need to use a TENS machine, massage, heat packs, dry needling and walking to obtain relief from lower back pain.[38]
[36]PCB 9
[37]PCB 8
[38]PCB 8
30 The defendant submitted that the plaintiff’s case is not as simple as an analysis of the medical evidence and the plaintiff’s evidence of her impairment consequences. It submitted that there are a number of other factors which need to be seriously weighed into consideration.
The lower back
31 The defendant submitted that the plaintiff suffered a pre-existing lower back condition demonstrated by the following – attendances on a medical practitioner complaining of lower back pain on 7 December 2005, 21 February 2006, 13 August 2008, 19 January 2012, and 30 August 2012.[39]
[39]Transcript 14, 15 and 16
32 The plaintiff was cross-examined from clinical notes which were produced pursuant to subpoena. The clinical notes which were of some significance were:
· 13 August 2008 – referred to the plaintiff suffering one year of slowly increasing pain in her left upper back due to lifting her child.[40]
· 19 January 2012 – referred to the plaintiff suffering lower back pain for seven days and being prescribed Voltaren Rapid tablets.[41]
[40]Transcript 15
[41]Transcript 15-16
33 The plaintiff said that she could not remember suffering lower back pain in the past. She thought that perhaps some of the lower back pain earlier on might have been due to her pregnancy with her son, who is now twelve years of age. That seems to add up.[42]
[42]Transcript 14-16
34 The issue whether the plaintiff had a pre-existing lower back injury was not pressed with any particular emphasis by the defendant. In any event, I am not satisfied that the plaintiff suffered a prior lower back injury. The evidence does not satisfy me that this is an aggravation case.
Psychological/Psychiatric problems
35 The plaintiff admitted to having a history of depression requiring the prescription of medication and counselling. She said that it occurred as a consequence of her being in an abusive matrimonial relationship with her former partner and compounded by custody and access issues relevant to her son.[43]
[43]PCB 3
36 During cross-examination, the plaintiff described the treatment she suffered at the hands of her former partner as amounting to emotional, physical and sexual abuse. She described going through a “very nasty time” with her former partner over custody and access issues which persist to the present time.[44]
[44]Transcript 21
37 The plaintiff admitted to needing treatment. She attended the Greater Knox Family Practice[45] on many occasions relevant to her psychological/psychiatric reaction to her marriage breakdown, as well as produced by the treatment she suffered at the hands of her former partner and through court proceedings relevant to custody and access of her son. She was prescribed medication for depression and anxiety.[46] She has recently ceased using medication to treat depression. She said that she is not really managing without that medication.[47]
[45]It is the same practice where Dr Krigsman works
[46]Transcript 17 and 19
[47]Transcript 21
38 One of the consequences of the plaintiff’s matrimonial problems was interference with her sleep. The plaintiff was cross-examined from clinical notes which were produced pursuant to subpoena. The clinical notes which were of some significance were:
· 19 February 2009 – sleeping problems.
· 28 May 2009 – sleeping problems. Prescribed Temaze.
· 8 December 2009 – sleeping problems.
· 14 May 2010, 31 January 2011, 9 May 2011, 19 January 2012, 22 February 2013 and 26 February 2013 – sleeping problems. Prescribed Temaze.[48]
[48]Transcript 18-19
39 The plaintiff said that she could not remember the dates on which she sought medical treatment, but she admitted that she had suffered sleeping problems, had been prescribed Temaze, and that she had suffered nightmares caused by her matrimonial problems.[49]
[49]Transcript 18-20
40 The plaintiff has been treated by a number of practitioners for her psychological/psychiatric problems. In her affidavit, she referred to Ms Davenport and Dr Eimany. Under cross-examination, she referred to being treated by Mr Grimshaw, psychologist, which appears to have occurred through a Magistrates’ Court order relating to the plaintiff and her former partner’s alcohol consumption.[50] She admitted to having seen a number of psychologists since she was injured. It is unclear to me from the answers she gave under cross-examination whether some or all of them treated her for pre-existing psychological/psychiatric problems or in relation to any psychological/ psychiatric problems related to her lower back injury.[51]
[50]Transcript 29-31
[51]Transcript 32-34
41 The plaintiff did not obtain any evidence from any of the treaters just referred to for the purpose of demonstrating the nature and extent of her pre-existing psychological/psychiatric problems and their cause. That was left to the medico/legal psychiatrists whose evidence I will now summarise.
42 Dr Serry, psychiatrist, examined the plaintiff on 2 August 2016, and he provided a report bearing the same date.[52] He was not given any history of the nature of the plaintiff’s relationship with her former partner or her prior psychological/ psychiatric treatment and, in particular, the prescription of medication to treat depression, anxiety and interference with her sleep. He considered that she was suffering from Major Depression with Anxious features and a Somatic Symptom Disorder of moderate severity. He recommended that she have psychiatric treatment.
[52]PCB 36-43
43 Dr Shan examined the plaintiff on 26 September 2017 and provided a report bearing the same date.[53] He then later examined the plaintiff on 14 August 2018 and provided a report bearing the same date.[54] He obtained a partial history of the plaintiff’s matrimonial issues and her resort to counselling over several years. He also obtained a history of family psychiatric problems. After examining the plaintiff, he concluded that the plaintiff was not deserving of a psychiatric diagnosis in any way related to her lower back injury.[55] Dr Shan considered that the plaintiff probably had a long-standing diagnosis of either an Anxiety Disorder, not otherwise specified, or mild episodes of a Major Depressive Disorder.[56]
[53]DCB 1-9
[54]DCB 10-16
[55]DCB 2 and 5
[56]DCB 6 and 14-15
44 The plaintiff’s pre-existing psychological/psychiatric condition was something which Dr Serry and Dr Shan should have been told in significant detail for the purpose of then determining its cause, and whether the impairment of the function of the plaintiff’s lower back was due partly to her pre-existing psychological/psychiatric condition requiring disentangling.
45 The plaintiff’s pre-existing psychological/psychiatric condition was something which the likes of Mr Doig, Mr Dooley and Dr Bones should have been told for the purpose of them determining whether the impairment of function of the plaintiff’s lower back was due the injury to her lower back or whether it was due partly her pre-existing psychological/psychiatric condition requiring disentangling. The importance of that is made so very obvious by the opinion of Mr Dooley which I will refer to later in these reasons.
Pain
46 I do not accept that the plaintiff’s evidence that the impairment consequences of her lower back injury are nearly as serious as she has made them out to be. The thrust of the plaintiff’s affidavits is that the pain emanating from her lower back is very disabling. For example she described the level of pain as resulting in her going “… through hell every day on account of the back pain”.[57] I do not accept that the pain and experienced by the plaintiff is anywhere near as severe as she says it is.
[57]PCB 11
47 The medical evidence clearly points to the plaintiff having a retained capacity to undertake administrative work full time. It is difficult to accept that she could do so if she was in as much disabling pain as she describes in her affidavits.
48 The plaintiff returned to work with the defendant six weeks after the incident, eventually performing administrative work at normal hours until August 2014 when the defendant told her that it would not provide her with any further work.[58]
[58]Transcript 27
49 The plaintiff subsequently worked with a facility management company for six weeks between 4 June and 11 July 2018. Although, she says she had difficulties with pain during that six-week period, it would appear that she ceased working with that employer because she was told she was no longer needed.[59] She was in fact on a six-month contract filling in for someone who then came back to that job.[60]
[59]PCB 15-16
[60]Transcript 27
50 Recently she worked for a company known as Bodyworks Clinic for three days. The main reason why she ceased working for that company was over a misunderstanding about wages.[61]
[61]Transcript 12-13
51 Although, the plaintiff says that she experienced problems with her lower back while performing the work required by her in those two jobs, she nonetheless performed that work without incident.[62] Additionally, the plaintiff says that she has been actively looking for suitable full-time work.[63]
[62]Transcript 26-27
[63]Transcript 23
52 I think it is reasonable to conclude that the plaintiff would not have returned to work and subsequently taken up the other two jobs unless the pain that she experiences is tolerable. I think the pain about which she complains needs to be seen in that context. I accept that she has some pain, and that it does interfere with some activities, but I do not accept that that interference is particularly significant. I do not accept that she suffers pain as significantly as she described in her affidavits. To describe pain as being between 5 and 9 out of 10 daily and significant flare ups of pain to be between 8 or 9 out of 10 requiring the consumption of up to eight Panadeine Forte per day is to describe very disabling pain very likely to significantly interfere with her capacity to work even in administrative work.
53 The plaintiff gave differing accounts of the quantity of Panadeine Forte that she is consuming. She told Mr Goldwasser in 2014 that she was taking about six Panadeine Forte per day.[64] She told Dr Middleton in 2016 that she was taking between four and eight tablets per day.[65] She told Mr Doig that she takes Panadeine Forte occasionally.[66] She told Mr Dooley and Dr Bones in 2018 that she takes up to eight Panadeine Forte tablets per day;[67] however, under cross-examination, a rather different picture emerged. She said that she might take up to eight Panadeine Forte once a week. It is difficult to determine just what the plaintiff was saying about how many Panadeine Forte she was taking per day or per week, but my impression from her evidence, and after re-reading the transcript, is that she does not take it every day, but on some days, and it may be that one day a week she takes up to eight in a day.[68]
[64]PCB 79
[65]PCB 53
[66]PCB 48
[67]DCB 21 and 29
[68]Transcript 38
54 The plaintiff was asked whether she last obtained a prescription for Panadeine Forte on 4 February 2017. She did not give a direct answer, but it would appear that she has some old prescriptions for Panadeine Forte obtained by her father. She added that she has a cupboard full of Panadeine Forte.[69] It is curious evidence. For some reason the plaintiff has not had a prescription for a very long time, but has old ones and an alternative source of Panadeine Forte from the stockpile apparently created by her father. I found this evidence to be very unsatisfactory because it came out of the blue on a point of some importance. I was left with the impression that the evidence was contrived by the plaintiff to explain how she could be taking such large quantities of Panadeine Forte at present with no prescriptions since 4 February 2017.
[69]Transcript 38-39
55 I find it very difficult to accept the plaintiff’s evidence that she has such a significant level of pain and is taking such large quantities of Panadeine Forte. The fact that she is able to work and wants to work full time in administration strongly points to her not being as disabled as she has made out.
Disentangling
56 Mr Dooley considered that the plaintiff’s pain was disproportionate to his diagnosis of the injury to her lower back. He considered that the disproportion was caused by a psychological reaction to her lower back injury. He explained that he considered that because her lower back injury occurred in compensable circumstances, that it is a setting in which there tends to be a failure to respond to treatment.[70]
[70]DCB 24
57 The authorities make it clear that if the plaintiff’s back injury is the major contributor to her impairment consequences then there is no necessity to undertake what has been described as disentangling of the psychological/psychiatric condition.[71]
[71]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, and Meadows v Lichmore Pty Ltd [2013] VSCA 201
58 The difficulty in determining whether there is a need for disentangling is the absence of informed evidence from many of the medical practitioners whether the presence of the plaintiff’s pre-existing psychological/psychiatric condition is in some way and to some extent contributing to the impairment consequences which she says are entirely due to her lower back injury.
59 The evidence is very unsatisfactory, but I have analysed the evidence as carefully as I can. I think there is sufficient analysis of the pathological process by most of the medical practitioners who were concerned to comment on the impairment consequences of the plaintiff’s lower back injury for me to be reasonably satisfied that the major cause of her impairment consequences is her lower back injury.
Prospect of improvement
60 The defendant submitted that the plaintiff has failed to prove that the impairment consequences for which she contends were caused by the lower back injury will persist at their present level.
61 The evidence relied upon by the defendant starts with Dr Middleton. He referred to a Network Pain Management Program which the plaintiff commenced in August 2013. He was provided with more information than I have been provided about that program. According to Dr Middleton, it comprised physiotherapy, gym physiotherapy, psychology and psychological relaxation. The plaintiff did not complete the program.[72] He considered that the physical program and the pain management program was inadequate.[73]
[72]PCB 55 and 58
[73]PCB 61
62 A number of medical practitioners consider that the plaintiff should have further treatment. Dr Serry considered that the plaintiff needed psychiatric treatment.[74] Mr Doig considered that the plaintiff should have pain management.[75]
[74]PCB 42
[75]PCB 47 and 49
63 Dr Jayatilake, general practitioner, has treated the plaintiff in the absence of her usual general practitioner. He referred the plaintiff to Dr Gassin, who the plaintiff described as a pain management specialist. She is yet to see him.[76]
[76]Transcript 35-36
64 I can only conclude that Dr Shan considered that the plaintiff requires psychiatric treatment because it has some realistic chance of improving the plaintiff’s pre-existing psychological/psychiatric condition, and if that occurs, then the plaintiff will have improved psychological/psychiatric function. To the extent that her pre-existing psychological/psychiatric condition is contributing to her presentation as Mr Dooley saw it, then an improvement in that condition may see an improvement in her physical condition.
65 Similarly, I can only conclude that Mr Doig considered that pain management might have some realistic chance of improving the plaintiff’s physical condition. That would appear to be the thinking of Dr Jayatilake when he considered that the plaintiff would benefit from referral to Dr Gassin.
66 The plaintiff submitted that because she has endured the impairment consequences of her lower back injury for so long, that I should conclude that no other medical intervention of any kind would improve her condition. I think that is contrary to the evidence. It would be another matter altogether if there were medical opinion to that effect, but there is none.
Conclusion
67 I am satisfied that the plaintiff has suffered an impairment of the function of her lower back to the extent that it has resulted in some impairment consequences which are rather modest. The lengthy analysis I have undertaken of the evidence demonstrates clearly that she is able to function of the reasonable level – she does not have pain nearly to the extent that she initially contended for; has not had any significant medical treatment for some time; does not take as much medication as she initially contended for; is unlikely to suffer deterioration, but rather has a basis for improvement with further treatment, and has a concurrent psychological/psychiatric problem which appears to be responsible for at least her interference with sleep which she initially attributed to the impairment of the function of her lower back.
68 After considering all of the evidence I am not satisfied that the impairment consequences contended for by the plaintiff are serious, and I have reached that conclusion after making the comparison with like impairments as I’m required to do.
- - -
0
4
0