Twaddle v Victorian WorkCover Authority
[2024] VCC 726
•27 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00964
| TEENA TWADDLE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2024 | |
DATE OF JUDGMENT: | 27 May 2024 | |
CASE MAY BE CITED AS: | Twaddle v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 726 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATON
Catchwords: Serious injury application – workplace accident – throughout the course of employment – left leg injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell with Mr R Lewis | Gordon Legal |
| For the Defendant | Ms M Williams | IDP Lawyers |
HIS HONOUR:
1Teena Twaddle has worked as a nurse from 1996 and remains in the healthcare field. Over the course of her employment, she has suffered from low back problems. She alleges specifically that on 24 February 2020, she sustained a permanent aggravation of pre-existing lumbar spondylosis as a result of the poor ergonomic setup at her work. She alleges that that injury constitutes a serious injury for the purposes of s335 of the Workplace Injury Rehabilitation and Compensation Act. The defendant opposes a determination of serious injury on three grounds:
(a) that the incident on 24 February 2020 was no more than a temporary aggravation of a long history of lumbar degenerative changes causing regular flareups;
(b) even if an injury could be demonstrated to have occurred, the consequences of that injury cannot be separated from the pre-existing problems in accordance with the principles in Petkovski v Galletti; [1]
(c) even if impairment consequences could be isolated from the alleged injury which occurred in the incident on 24 February 2020, those isolated consequences could not rise to a level sufficient to be considered impairment consequences that are more than significant or marked.[2]
[1] [1994] 1 VR 436
[2]The date of injury was agreed between the parties as being 24 February 2020. The parties agreed, however, that the plaintiff’s injuries occurred over a period of about four and a half days from 20 February onwards. For convenience, I have defined the date of injury as being on 24 February 2020.
2For the reasons which follow, I have accepted the plaintiff’s submissions. I have set out my reasons below.
Relevant background history
3The plaintiff was born in June 1968. She finished school at the end of Year 9 and began work at a chemist. She had two children and then began working in the linen service at the Warragul Hospital. She completed nursing studies shortly thereafter and qualified as a registered nurse. She worked at both the Warragul Hospital and then also for Latrobe Community Health. She describes suffering lower back pain from the time she commenced working as a nurse. In particular, she had flareups on occasion which necessitated investigation with radiological studies, for example, in 2009. No further investigation or treatment resulted from this flare-up. More relevantly, however, she had further CT scanning on a complaint of lumbar spinal pain in February 2017.[3]
[3]Plaintiff’s Court Book (“PCB”) 31
4A month later, on 6 March 2017, she started work with the defendant at Andrews House and then at Warragul Hospital. She worked on a fulltime basis as a flow coordinator in the Emergency Department, as a nurse educator, and also as a nurse navigator. She gave evidence in her first affidavit that her lower back pain was manageable during this period.[4]
[4]Plaintiff’s affidavit, paragraph 18, exhibit P1, PCB 31
The trip incident
5On 7 July 2018, the plaintiff tripped up a step and fell onto both hands. She complained of low back and left leg pain.
6The plaintiff was referred for scanning by her treating doctor, Dr Hrstic, and had an MRI on 24 August 2018. That showed degenerative change in the lumbar spine with no nerve root impingement.[5]
[5]PCB 32; PCB 53
The motor vehicle accident
7On 13 November 2018, she was a pedestrian when struck by a reversing car (“the MVA”).[6] She had a spike of lumbar back pain and was off work for five or six weeks and then returned on modified duties work. It is relevant to note that she made a TAC claim in respect of this incident, which claim accepted.
[6]PCB 32
The ‘Code Grey’ incident
8The plaintiff returned to work in an administrative role, but while at work on 2 January 2019, she was jostled by other staff members attending a Code Grey at the hospital and she fell against a desk (“the Code Grey incident”).[7] She ceased work after this incident and was referred by her treating doctor to see a neurosurgeon, Mr Paul D’Urso. A questionnaire filled out by her around this time indicates that she was in quite significant pain.[8]
[7]Plaintiff’s affidavit, paragraph 22, PCB 32
[8]DCB 9
9She saw Mr D’Urso on 29 January 2019. He did not record any history of the MVA, but did record “symptomatic from her lumbosacral disc degeneration”.[9] He considered that she needed to have a bone density scan. That was not immediately done and she returned to work shortly thereafter. Treating doctor notes suggest that she was also dealing with a kidney problem at this stage and ultimately was referred for pathology assessment.
[9] PCB 65
10The plaintiff remained at work.[10] There was some debate over the course of her symptoms in 2019. On 11 July 2019, she had the bone density scan completed. She gave evidence that she was continuing to complain of pain during the course of 2019 and her treating doctor referred her for MRI scanning which was conducted in August 2019.[11] She had 14 sessions of physiotherapy in the first half of 2019.[12] She continued to complain of pain and so was referred for a second opinion to an orthopaedic spinal surgeon, Mr John Cunningham. He saw her in late-2019. He took a history of current back and leg pain on a background of a degenerative lumbo-sacral disc. He considered her symptoms had improved, as did she and that she was neurologically intact.[13] He did not consider there was a role for surgery and, to this extent, his opinion echoed that of Dr D’Urso.[14]
[10] PCB 67
[11]PCB 55 – the clinical notes of the MRI state “Persistent LBP since being hit by a car as a pedestrian”
[12] Transcript (“T”) 50 L23-29
[13] PCB 67 - 68
[14]PCB 67
11The plaintiff’s evidence was that after consulting with Mr Cunningham, she attempted a number of different actions to deal with her back problems. She took up Pilates, walked regularly up to 5kms and lost nearly 10 kilograms of weight. She was working fulltime as a nurse navigator. Her role involved her predominantly performing administrative work and being at a desk. Her evidence was that she required a sit and stand desk to perform her role.[15] She deposed to her belief that this special ergonomic set up allowed her to continue working.[16] She deposed that her ergonomic setup was quite good and, in fact, mirrored that which she had at home, being a sit-and-stand desk. That allowed her to sit and stand at will and cope with her back.
[15] T51 L15
[16] PCB 33 Plaintiff’s sworn affidavit at [28] – [29]
The incident 24 February 2020
12However, she gave evidence that around 20 February 2020, she returned to her workstation and found that it had been completely dismantled and she was given simply a normal desk with a desktop computer. She attempted to work in this situation, but felt her back pain worsening, and hence on 24 February 2020, identified that her work station was causing worsening of her back problems. She attempted to work on, but within a few short weeks lodged a WorkCover claim. It will be recalled that around this time, the COVID‑19 pandemic struck. The plaintiff gave evidence that her initial claim form was lost and so she had to file it again before ultimately receiving an acceptance of her claim form. That claim form was dated 30 April 2020.[17] It describes the injury as both neck and shoulder pain with exacerbation of lower back pain. As to the reason for the claim, it was noted “removal of ergonomic desk facility. Required to work in poorly designed workspace for five days. Sitting and typing in a forced bent position for up to six hours/day”.[18] It is to be noted that it was only on 12 February 2021 that the WorkCover insurer, Allianz, accepted the claim. This delay in assessing and approving the claim led to considerable confusion as the plaintiff, during this time, had an open TAC claim relating to the MVA. I will return to this matter in the discussion below.
[17]PCB 9
[18]PCB 6
13The plaintiff’s evidence given in cross-examination was that her condition worsened significantly after 24 February 2020. She gave evidence it then plateaued and then began to worsen again. In that circumstance, she was referred by her treating doctor to see Mr Cunningham. He sent her for MRI scanning in September 2020. He considered that the MRI scanning demonstrated further degeneration at the L5/S1 level.[19] He ordered a bone scan and after reviewing that, he wrote to the treating doctor advising that the plaintiff required surgery, being an instrumented fusion at the L5/S1 level. The plaintiff advised Mr Cunningham that she was willing to have such surgery and he then took it upon himself to write to the TAC seeking approval for such surgery.[20] That approval was not forthcoming. Mr Cunningham then wrote to Allianz, the WorkCover insurer, on 19 February 2021, seeking approval and indemnity to perform the fusion due to “… multiple episodes of lower back pain following injuries at work”.[21] Allianz engaged a medico-legal practitioner, Dr Bruce Love, orthopaedic surgeon, who conducted an assessment and provided a report dated 9 March 2021. On the basis of that report, which recorded that there was degenerative disease as a result of cumulative strains on the back,[22] there was no immediate decision by Allianz.
[19]PCB 70
[20]Defendant’s Court Book (“DCB”) 11
[21]PCB 10
[22]DCB 23
14It appears that with no approval from the TAC and a pending decision from WorkCover, the plaintiff decided to pay for and have her own fusion surgery on 5 May 2021, performed by Mr Cunningham. Technically, the procedure was a success and the plaintiff was discharged from Mr Cunningham’s care by mid-2021. She returned to work at Warragul in July 2021 on restricted duties, but shortly thereafter ceased in November 2021. She began work at the Latrobe Regional Hospital as a clinical consultant in infection control in November 2021. She continues in that role on a full time basis. It was only on 17 December 2021 that Allianz approved the fusion surgery and reimbursed the plaintiff.
15In a report back to the treating doctor, Mr Cunningham reported as of May 2022 that the plaintiff was doing really well and had turned a corner as a result of the surgery. The plaintiff made an impairment benefit claim against the WorkCover insurer in July 2022 and was ultimately awarded an impairment benefit payment on the basis that she had a 5 per cent impairment as a result of work-related injuries. It is relevant to note that no specific incident was nominated in the impairment benefit claim, but rather that it was for an accumulation of injuries pertaining to her lower back throughout the course of employment. This claim was accepted and liability was found for the lower back.[23]
[23] PCB 13
What is the injury?
16The defendant’s primary argument is that the plaintiff has suffered no more than a temporary exacerbation of underlying degenerative changes which have been present for some period of time.[24] Particularly, the defendant nominates the long history of lower back pain stretching back to at least 2009, the trip incident, the MVA and the Code Grey incident. The parties agree that the plaintiff has a long history of lower back pain and includes all those specific incidents that the defendant relies on. In addition, and fairly, the plaintiff admitted in cross-examination that after each of the specific incidents the defendant relies on, she sustained worsened pain for a particular period which gradually settled but never went back to the level it was at the time of the incident. That is, the plaintiff conceded that each one of the specific incidents made her problems a little worse.
[24] T92 L12 - 14
Plaintiff’s credibility and reliability
17In the giving of that evidence, something must be said about the credit and reliability of the plaintiff. Both were put in issue by the defendant. While I can accept there was some unreliability in the plaintiff’s evidence as to the recounting of impairment consequences in this period, I would not accept the categorisation of the plaintiff as being one who was uncreditworthy. As I have indicated above, the plaintiff made very open and fair concessions against her own interest. Primarily, this was in relation to the fact that after each of the specific incidents, she experienced a worsening of pain which never resolved to the level it was before the incident. She struck me as a witness who tried to give honest and direct answers. At times, she was precise in the way that she answered questions but not in a way which I considered to be misleading or unhelpful. For example, on numerous occasions, she was taken to medical notes and she was asked whether they were accurate. She was precise in saying that she could not recall if she had said particular words to doctors and to draw a distinction between what she had said and what she felt at a particular moment in time. I do not consider that her level of precision in answering the questions in any way demonstrates an unwillingness to answer accurately or truthfully. It is also to her credit that despite these various incidents which have acted upon her low back problems, she continued to work even with substantial modifications in her role. All this allowed her to manage her back condition.
18It is also apparent that she was a person of honesty, as was revealed in her cross-examination. She was taken to material which suggested that she had been overpaid by both the TAC and WorkCover. This arose because of the delay in acceptance of each of the claims. As such, she was paid weekly payments in a lump sum amount which occurred at a time when she was in receipt of TAC payments. The plaintiff gave evidence that it was a situation which concerned her the moment it occurred so she contacted the TAC immediately to advise them of the overpayment. After the TAC became aware of the issue, they then sought to recover the money and the plaintiff paid it back immediately. That is also a matter that goes to her credit and I take it into account.
19That fact reinforced my view that she was a witness who was trying as best she could to answer the questions as were put to her. I consider that she was a witness of truth. She was, however, unreliable as to some of the impairment consequences. So, for example, she freely admitted that where she had deposed to going fishing and hiking prior to the February 2020 incident, in fact, such activities likely ceased in early 2019 after the flareups from the trip incident, the MVA and Code Grey incident. On these matters, she was unreliable and I have taken that into account.
20The plaintiff was also tested about what the extent of her symptoms was during the course of 2019. The defendant essentially argued that the plaintiff was seeking to downplay her symptoms during this period of time in order to draw a bright line between her situation in 2019 and that which eventuated after the February 2020 incident.
21However, the plaintiff’s evidence was clear that by the end of 2019, she had seen both Dr D’Urso and Mr Cunningham and neither had recommended surgery. In addition, she gave evidence about the walking she was doing, the Pilates, physiotherapy, and the fact that she was back at work and had significant weight loss to assist with her back problems. All of this evidence works against the defendant’s argument.
22In contrast, the situation after February 2020 is significantly different. The history shows that when she was referred back to Mr Cunningham in about September 2020, she reported and he recorded a few months of increasing symptoms. While that letter did not recite anything to do with the February 2020 incident, in my experience, letters from specialists back to treating doctors are often not very detailed, simply recounting the salient points of future treatment. It is also relevant that the plaintiff gave very strident evidence about the conversations she had with Mr Cunningham about her condition as of about September 2020. She gave evidence that she was in tears and complaining about “the freaking” workstation. As I have found the plaintiff to be a witness of truth, I accept that evidence and I consider any omission of the history of the February 2020 incident from Mr Cunningham’s report to be a matter of him seeking brevity in his reporting rather than the plaintiff not recounting the details of the February 2020 incident accurately to him.
23It is also relevant to take into account the further MRI of 9 September 2020 which Mr Cunningham considered on 4 October 2020.[25] He considered that to demonstrate a worsening degenerative picture.[26] While that is at odds with the radiologist’s report of a stable condition, it must be recognised that it is Mr Cunningham who was the treating specialist who was examining the plaintiff in a clinical setting. It is his role not only to look at a radiological picture but also at clinical findings and to record a history of the plaintiff’s situation. In that setting, I accept his interpretation of the radiology in preference to others who have opined in this case.
[25] PCB 63
[26] PCB 70
24This change in her physiological state is also apparent in respect of her reporting of pain. Beginning the assessment in 2018 and before the trip incident in July 2018, the Plaintiff did not regularly see her treating doctor, Dr Hrstic for back pain. The trip incident then occurred. Within a month the Plaintiff was placed onto Valium and then in September 2018 she was prescribed Mersyndol Forte and Targin.[27] It is unclear how many scripts were dispensed of these medications at the time of the MVA in November 2018. Diazepam was prescribed and then one script of Targin immediately after the MVA. This was repeated immediately after the Code Grey incident on 2 January 2019.[28] The notes of the treating doctor then begin to record an improvement with physiotherapy.[29] She continued on with that medication regime and appears to have had good pain control. Then the workplace incident occurred in on 24 February 2020. While initially there was a continuation of the Palexia, her doctor began to record much more significant pain by September 2020.[30] At times Lyrica was added to the mix of medications. This continued on until the time of surgery. A review of the clinical notes and the prescription of medications makes clear that after the incident on 24 February 2020 within a short time the Plaintiff lost the ability to control her pain by the use of medications. This is clearly different to the situation which existed before the workplace incident.
[27]DCB 78-80
[28]DCB 82-83.
[29]DCB 11 January 2019 and 29 January 2019 “Doing well with the physiotherapy from the point of managing pain” DCB 83, “managing will with current pain regime sleeping better…now able to put full days in. Managing well with Palexia” DCB86
[30]DCB 96 - 101
25It was also urged upon the Court that by its acceptance of the impairment benefit claim and acceptance ultimately of Mr Cunningham’s application for approval for surgery, there had been an admission by the defendant that there was a workplace injury caused on 24 February 2020. This was said to be in line with the decision in Sepe v Club Italia Sporting Club Inc.[31] I would not accept the plaintiff’s submission on this point. It is abundantly clear when the impairment benefit claim is looked at and also the report of Mr Gale, a surgeon, who performed the impairment assessment upon which the insurer accepted the claim and calculated the benefit that it was not for a specific date of injury but, rather, throughout the course of employment, encompassing general work duties and perhaps the Code Grey incident in combination with the February 2020 incident. The same could be said for the medical and like surgical expenses acceptance.[32]
[31] (Ruling) [2023] VSC 191
[32]PCB 11 and PCB 76
26Having assessed that material, I come to find then, in keeping with Mr Carey’s report, that the plaintiff has sustained a permanent aggravation of pre-existing lower lumbar spondylosis as a result of her workstation being altered on about 24 February 2020. I reject Mr Siu’s opinion to the contrary that there was a temporary exacerbation. I consider that Mr Siu’s report is not to be preferred for the following reasons. First, he never performed a clinical examination of the plaintiff, but rather provided a report on the papers. In my opinion a clinical examination is critical for an expert to conduct in the assessment of the physical condition of an injured person because it provides valuable insight which is often not readily apparent from the papers alone. Second, he did not accept Mr Cunningham’s view of the radiology. As I have indicated above, that opinion was well-formed by a treating specialist over a period of time in a clinical setting. It ought not be lightly set aside. Third, Mr Siu has not considered the evidence of the plaintiff’s state in about December 2019 to be as robust as I have found it to be. While it can be accepted that the plaintiff was continuing to suffer from low back pain that was persistent, it was manageable, and the plaintiff was in fact, with her weight loss, doing Pilates, physiotherapy and walking, overall able to obtain a decent level of physical fitness. I therefore prefer Mr Carey’s opinion.
The impairment consequences
27Firstly, to perform the task required in accordance with Petkovski v Galletti.[33] As I have set out, the plaintiff’s condition before February 2020 must be isolated from that which occurred after it.
[33] [1994] 1 VR 436
Pain
28As to pain. The Court must make an assessment at the date of the hearing as to the pain and suffering consequences. I have set out above the condition of the Plaintiff prior to the workplace injury. That is, she had low back pain that was manageable with the use of Palexia and on occasion Targin as well. After the workplace incident, her pain worsened and was not manageable by the use of those medications. In that setting she had surgery on 5 May 2021. That surgery was a technical success. Her pain medication after the surgery stabilised and was Palexia and Targin. On my review of the treating doctor notes the use of prescription medication has not varied much from what it was from before the workplace incident. The notes reveal that before the workplace injury she took a combination of Palexia, Targin and on occasion Diazepam. That seems similar to the situation now. An assessment of the pain medication she takes before and after the date of injury does not reveal a great change in her pain levels. However the Plaintiff deposes to requiring in addition to prescription medication up to four tablets of Panadol a day.[34] This suggests a slight increase in her pain symptoms prior to the injury and after her surgery. She describes the pain as constant with occasional flareups and extending into her left leg.[35] The extension of pain to her leg was also something which occurred on occasion prior to February 2020 and I do not consider this to be markedly different to the pre-existing situation. She currently uses a lumbar corset and heat packs on a regular basis.
[34]PCB 36 at [47] and PCB 42 at [14]
[35]PCB 42 at [15]
29Isolating those matters I find that since the workplace injury the Plaintiff required very significant lumbar surgery in the form of a fusion to treat her worsened condition. That did not resolve her problems however and she has been left with a worsened condition as a result of the workplace injury. The Plaintiff has been left requiring the use of additional daily medication in the form of Panadol up to four per day. I find that she has constant low back pain which now requires the use of a lumbar corset and heat pack on a very regular basis to deal with the pain. While she has given up physiotherapy she still checks in with a physiologist once per month. These matters represent a significant consequence for her in my estimation, particularly the fact of having to undergo a surgery such as a lumbar fusion.
Sleep
30In relation to sleep, the plaintiff deposes that her sleep is interrupted every night due to her low back pain. I note there is minimal mention of the impact of her sleep in the recording history of the treating practitioners and specialists following the February 2020 incident. I do not accept an impact on her sleep as a result of the workplace incident.
Recreational and domestic activities
31The plaintiff deposes that her recreational and domestic activities have been affected by her low back pain. Prior to February 2020, she deposed to enjoying long walks several times a week, including walking to work which was around 10 kilometres. She deposes that she is unable to go camping and fishing as she used to. As previously indicated, Ms Twaddle confirmed in cross-examination she was unable to camp or fish prior to January 2019.[36] I consider that fishing and camping were beyond her physical abilities well prior to February 2020. I do not place weight on these restrictions.
[36]T60 L24 - T61 L1
32I accept however that she is unable to walk for longer distances as she previously did.[37]
[37]T61
33As to her domestic activities, the plaintiff previously looked after the animals, including her dogs at the property, such as feeding and walking them. She used to cut firewood and do a range of gardening activities. She deposes that these activities are now beyond her physical ability. For example she gave evidence in cross examination that she can chop wood but not as freely as she used to. More recently, she deposes to being able to vacuum or mop, albeit carefully and slowly in case of increasing her low back pain. Overall, I accept that her low back pain has limited her ability, in a marginal way, to complete these domestic tasks as she used to.
Work activities
34It is relevant to note that the plaintiff retains the ability to work as a clinical consultant on a full time basis. The plaintiff submits that by reason of her work injury, her work capacity has been compromised due to her “flare ups” of pain. I accept her low back pain somewhat affects her ability to work, as she has had to take time off work due to “flare ups” as recently as February 2024. On balance, I find that whilst she has capacity to work full time, she does so in a more administrative based role. I do not accept that her workplace injury affects her ability to work as this was comprised to an extent by her pre-existing condition and the evidence was not in a state to accept the Plaintiff’s submission on this point.
35It was also suggested that the plaintiff now was likely to develop adjacent segment disease. This was said to be supported by Mr Carey’s opinion. While I accept that the injury has resulted in the current fusion, the evidence as to the adjacent segment disease and the need for further treatment I consider to be speculative. While Mr Carey says that it is inevitable, it is not said over what period of time this inevitability will come home nor does it descend to detail as to pain and suffering consequences which are likely to be experienced in any detail to allow an assessment of those matters. I put that impairment consequence to one side.
36Overall, having assessed the impairment consequences flowing from the injury, as identified above, I find that they meet the requisite test prescribed in s335. I therefore make a determination that the plaintiff is entitled to a pain and suffering determination.
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