Voigt, Wendy v Bellarine Community Health Inc. and VWA
[2009] VCC 997
•6 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01411
| WENDY VOIGT | Plaintiff |
| v | |
| BELLARINE COMMUNITY HEALTH INC. | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 28 and 29 July 2009 |
| DATE OF JUDGMENT: | 6 August 2009 |
| CASE MAY BE CITED AS: | Voigt, Wendy v Bellarine Community Health Inc. & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0997 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – lower back injury – pain and suffering only – whether consequences reach “very considerable” level.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with | Maurice Blackburn Pty Ltd |
| Mr D J N Purcell | ||
| For the Defendants | Mr J H Tebbutt with | Wisewoulds |
| Ms A M Magee | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff had worked from January 1996 for the first defendant at a palliative care facility at Portarlington. On 9 March 2005, she was assisting in the lifting a patient, when she suddenly took the weight of the patient with her spine in a twisted position and suffered lower back pain. From that time to the present she has continued to suffer lower back pain, with the pain referred from time to time particularly to the right buttock and thigh. She has been involved in a range of employment since the incident and currently works as a courier driver for a pathology company, working between 20 to 34 hours per week.
2 She claims to be restricted in a range of domestic, recreational and leisure activities and takes a significant quantity of medication because of the pain.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 9 March 2005.
4 Mr Mighell, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lower spine. The application is thus brought under sub- section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of pain and suffering only.
5 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of impairments or losses of the body function of the lower spine.
6 Following Ashley JA’s decision in Grech,[1] the proper analysis to determine whether a plaintiff ought be granted leave is:
[1] Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602
(a) to establish the plaintiff suffered compensable injury after October 1999; (b) to sufficiently establish what that injury was; (c) to determine the consequences the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and (d) to determine whether those consequences attain the “very considerable” level as to pain and suffering as the legislation requires. 7 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical reports, radiological investigations and other material was tendered into evidence. I have read all the tendered material.
8 On behalf of the defendants, Ms Magee outlined the position of her clients in response to the application as follows:
•
When compared to other cases in the range of possible impairments of the function of the lower spine, this case was at the lower end of the range.
•
The consequences to the plaintiff did not reach the “very considerable” level.
Relevant Background
9 The plaintiff was born in June 1956 and is currently fifty-three years of age. She is separated with an adult daughter. She was educated to Year 11 and then undertook a range of jobs, including at the Geelong Hospital in the food services area, before commencing with the first defendant in January 1996 at the Ann Nichol House (Bellarine Community Health) at Portarlington. Most of her employment was in the area of administration, although in the months before her injury, the plaintiff was working in a physical capacity as a carer.
10 Prior to the injury, the plaintiff enjoyed relatively good health, although had problems with migraines from time to time.
11 According to her affidavit,[2] the plaintiff enjoyed gardening, bike riding, badminton and social tennis. She was generally active and enjoyed regularly walking her dog. Her work at the health facility was a source of pleasure and satisfaction, and she needed to work full-time from a financial perspective. She was able to undertake a range of normal household domestic activities and was not taking any medication of significance.
[2] Plaintiff’s Court Book (“PCB”) 23
12 Over the years from 1989 until 1996, the plaintiff sought regular treatment from a chiropractor for “grumbling” problems in her neck and thoracic spine. On odd occasions she was treated for her lower back. She also had some short episodes of low back pain in 2002 and 2004, and had a week or so away from work as a result. However, none of these problems led to any significant time off, medication nor medical intervention.
The Injury and its Consequences
13 On 9 March 2005, the plaintiff was assisting another worker to lift a patient and suddenly she took the weight of the patient with her spine twisted sideways. She felt an immediate twinge of pain in the lower back, although continued to work over the next two or three days. Over that period the pain progressed and she commenced to feel pain down the right leg.
14 She went to see her general practitioner, Dr Robyn Edwards on 15 March 2005.[3] By that time she was struggling at work. Dr Edwards prescribed anti- inflammatory medication and muscle relaxants and referred her for physiotherapy treatment with Ms Elise Riley.[4] A spinal x-ray taken at this time showed disc space narrowing. A CT scan of the lumbar spine of 24 March 2005 showed mild degenerative changes at L4-5 and L5-S1 discs without evidence of significant neural compression.[5]
[3] PCB 31
[4] PCB 51-52
[5] PCB 69B
15 Dr Edwards further referred the plaintiff to Mr Walters, physiotherapist, for a graduated strengthening program,[6] and she was treated by Mr Walters at various times over a twelve-month period from July 2005 to July 2006. While the low-back pain persisted, the plaintiff derived considerable improvement and assistance from his program.
[6] PCB 46-50
16 In August 2005, Dr Edwards referred the plaintiff to Mr Carey, orthopaedic surgeon. At that time, she was taking Brufen, Ducene and Panadeine for the back pain. She had returned to work, working three hours a day, three days a week. Mr Carey arranged an MRI scan which showed a central disc protrusion at L5-S1 which may have been contacting the traversing right S1 nerve root.[7] When seen by Mr Carey again in November 2005, there had been some improvement. Mr Carey arranged lumbar discography in February 2006, an invasive procedure which caused the plaintiff significant back pain, and showed three lower lumbar degenerative discs, all of which reproduced some pain. Mr Carey determined that any surgical procedure was inappropriate. He suggested she undertake an exercise program and remain active.
[7] PCB 69D
17 During 2006, the plaintiff remained under the treatment of Dr Edwards and was referred to the Pain Management Unit of the Geelong Hospital in July 2006, where she saw Dr McCoy, specialist in pain management.[8] It is unclear for how long the plaintiff attended this program, but she was assessed both physically and psychologically and provided with an exercise program, and a mechanism to cope with the ongoing pain. She was also provided with a number of spinal injections, none of which gave significant long term relief. Dr McCoy reflected on the difficulty of treating chronic pain.[9]
[8] PCB 53-55
[9] PCB 55
18 The plaintiff continued to suffer exacerbations in her low-back from time to time, but the referred pain, particularly to her right leg, was less prominent. In December 2008, she was referred to Mr Tange, neurosurgeon, for further review. He confirmed Mr Carey’s view that surgical intervention was not appropriate and suggested a program to strengthen paraspinal and abdominal muscles with weight loss.[10] He further arranged an up-to-date MRI scan[11] which showed a central disc protrusion with a small annular tear at L5-S1 which indented the thecal sac but without impingement or central canal stenosis. At L4-5 there was a minor disc bulge with annular tear, but without central canal compromise.
[10] PCB 69
[11] PCB 69A
19 At the present time the plaintiff takes a range of medication:
ƒ Brufen (anti-inflammatory) – two to three times per day ƒ Tramahexal (pain relief) – two per day ƒ Panadol Osteo (pain relief) – two, three times per day ƒ Ducene (pain relief at night) – each night ƒ Lexapro (anti-depressant) – regularly. 20 The plaintiff claims the Tramahexal causes drowsiness and constipation.
21 She remained at work, on restricted hours, until June 2006, when she applied for and secured a position as the residential care co-ordinator at Ann Nichol House. Eventually she was able to increase her hours to full-time work. This was an administrative position involving a range of duties including generally the management of the facility, dealing with patients and staff, and which allowed her to sit and stand and move about the facility at will.
22 The plaintiff remained in this administrative position until December 2007, when she left for reasons unrelated to her back pain.
23 After several months away from employment, in March 2008, she commenced work at a recycle plant three to four nights a week, working between four and ten hours on each nightshift. This job required the plaintiff to stand at a belt line sorting refuse. She found the job too physically stressful, and resigned after two months. She then obtained employment at a bakery in Geelong, working three to four nights per week and working between three to six hours on each shift. Again, she found this work beyond her as she was required to lift bakery items onto a trolley, and resigned.
24 In July 2008, she commenced work with a pathology company as a courier. She has a contractual arrangement where she works at least five hours per week, and at the present time works between twenty and thirty-four hours per week. She stated in evidence that she was able to cope with this employment and has the assistance of a swivel seat in the vehicle that she drives to enable her to more easily get in and out of the car. This work involves the plaintiff in travelling from Geelong to various places as far away as Lorne (a distance of about 100 kilometers) and Melbourne. She stops regularly along the way for drop offs and pick ups. On rare occasions she may travel 400 kilometres in one day. She says she stops regularly to stretch, and move about.
25 At the present time she complains of pain everyday. From time to time she has exacerbations of the pain and on occasions pain is referred, particularly to the right thigh and leg. She has particular difficulty sitting or standing for any length of time and needs to be able to move about to gain some pain relief.
26 She is restricted in the heavier household duties, and avoids heavier cleaning, vacuuming and mopping. She lives in shared accommodation, and her housemate assists with the heavier jobs. She states[12] she is no longer able to ride a bike for pleasure nor enjoy social tennis, and badminton. She does some work in the garden and is able to mow her small lawn, although has difficulty starting the mower. She continues an exercise program, and regularly walks with her dog.
[12] PCB 23
27 So far as she is aware, none of her doctors are able to offer any resolution of the ongoing pain. She is treated by Dr Edwards but does not receive any current specialist treatment. Dr Edwards provides prescriptions for her medication.
Medical Evidence
28 The plaintiff has been treated from the date of injury to the present time by Dr Edwards, general practitioner, of Geelong. She has provided a number of reports.[13] Dr Edwards gave an extensive history of her treatment of the plaintiff in relation to her back problem. She noted she first saw the plaintiff as a result of the injury on 15 March 2005. She arranged an x-ray which she said showed minor osteoarthritis and disc narrowing at L5-S1. She noted the plaintiff complained of pain into her right leg to mid-calf which she thought, at that time, was consistent with sciatica. The CT scan of 24 March 2005,[14] she said, showed mild degenerative changes at L4-5 and L5-S1 discs, but without evidence of neural compression. She noted the plaintiff improved with physiotherapy. She referred the plaintiff to Mr Carey, orthopaedic surgeon, and to a pain clinic program at the Geelong Hospital. Mr Carey performed a discogram in March 2006, and Dr Edwards noted the plaintiff had considerable pain and time away from work following that procedure. She considered the plaintiff had suffered a disc lesion at L5-S1 and that the plaintiff would be unable to return to her work as a carer. She noted in August 2006, the plaintiff suffered an exacerbation of her back pain which occurred over about six weeks. She trialed various drugs, including powerful pain- relieving medication, Endone. She noted in February 2007, the plaintiff received medial branch block injections at L4-5 and L5-S1 while attending the pain clinic. There was no long lasting improvement. In April 2007, Dr Edwards noted there had been an improvement to sixty per cent of the plaintiff’s pre-injury state. She concluded[15] in her report of August 2007 that the plaintiff had acute, chronic lower back pain. She was uncertain whether there was disc involvement or not, but thought it likely the pain emanated as a result of a combination of musculoskeletal pain with perhaps some disc involvement. It was all related, she said, to the injury of March 2005. At that point she was cautiously optimistic about the plaintiff’s prognosis. In a letter of September 2007[16] to the insurer, Dr Edwards said that the plaintiff’s injury was interfering significantly with what the plaintiff was able to do physically. She suggested psychological sessions. Dr Edwards also recommended the plaintiff return for physiotherapy treatment with Dr Walters from whom she had obtained considerable benefit at an earlier time. Funding for this was, however, rejected by the insurer.
[13] PCB 31-39
[14] PCB 69B
[15] PCB 38
[16] D14
29 In a final report of 21 November 2008,[17] Dr Edwards noted that the plaintiff had had a flare-up of back pain in September 2008 following an injection of local anaesthetic at the pain clinic. On examination, she found a good range of movement in the lower back, and because of the exacerbation, referred her to Mr Tange, neurosurgeon. She noted the plaintiff was waking several times during the week with back pain and there was occasional pain into the right thigh. She concluded the plaintiff had chronic low-back pain which was initially thought to be a disc prolapse, but her impression was that there had been some resolution, and thought that the problem originated from musculo- ligamentous sources. The plaintiff may be able to increase her hours as a courier from twenty to twenty-five providing that the work did not involve repeated bending, pushing, prolonged sitting, standing or repetitive lifting.
[17] PCB 61-64
30 Mr Carey, orthopaedic surgeon, reported in September 2006 and September 2008.[18] He first saw the plaintiff in August 2005 and obtained a history of constant low-back discomfort. The plaintiff complained that she had difficulty sitting, standing, walking, leaning, bending or lifting. Coughing and sneezing aggravated the pain. He considered the plaintiff had back pain but without neurological leg pain. He noted that under lumbar discography, the three lower lumbar discs were all degenerate and reproduced some pain. He thought surgery was not indicated and suggested a pain management program. He came to a diagnosis of multi-level lumbar disc disruption. The appropriate treatment was a continued exercise program. In his subsequent report, he noted he when saw the plaintiff again in September 2008, she complained of ongoing lower back pain with some referred pain into the buttocks. On occasions the plaintiff said she had discomfort into the right calf. Overall, when he examined her in 2008, there had been “a slight improvement”. He noted that she was coping with her employment as a courier driver. He also noted that the plaintiff was able to go and visit friends, go to the movies and the football, and able to pace herself with home duties. Upon examination, there was no nerve root irritation. He maintained his earlier diagnosis of lumbar disc disruption. He thought that she could continue her work into the foreseeable future and that ongoing medical treatment was likely to continue to be conservative with prescription medication and episodic exercise programs and physiotherapy.
[18] PCB 40-45, 56-60
31 Ms Riley, physiotherapist, treated the plaintiff over a period of four months from March 2005.[19] She thought the signs were consistent with lower lumbar facet joint dysfunction with disc involvement at the lower levels.
[19] PCB 51-52
32 Mr Walters, physiotherapist, provided an extensive report of his treatment of the plaintiff from July 2005 for a period of about a year.[20] He also provided letters as to his treatment to the general practitioner over the same period.[21] In evidence, the plaintiff stated that Mr Walters had been her “savior”. She stated that he, through the exercise program, enabled her to achieve a significant improvement in movement of her lower spine. He thought the plaintiff had suffered internal disc disruption in the lumbar spine and arranged a formal active rehabilitation program. By July 2006, the plaintiff had reported less pain into her right leg and her symptoms in the lumbar region had stabilized. He thought she was able to undertake a home-based exercise program to continue to manage her condition. He noted there had been considerable improvement in her pain and movement capacity over the time of his treatment and anticipated there may be some ongoing functional and symptomatic improvement.
[20] PCB 46-50
[21] DCB 15-23
33 Dr McCoy, pain management specialist at the Geelong Hospital, provided a report of 23 August 2006.[22] Initially, there was a report of pain radiating into the plaintiff’s right leg but in the course of treatment at the clinic, the pain had largely resolved. He noted on examination an extensive range of movement in the lumbar spine with some restrictions, secondary to pain. He thought there was no specific neuropathic nor radicular component. He thought the pain was possibly discogenic, as a result of the discogram, but also there was likely a musculoskeletal element. Various mechanisms were provided to the plaintiff in the course of his treatment to attempt to adapt and cope with the pain.
[22] PCB 53-55
34 Dr Clayton Thomas, consultant pain management specialist, examined the plaintiff at the behest of her solicitors in March 2009[23]. He noted persistent back pain, worsening during the course of a working week. When he examined the plaintiff she made a maximum effort to co-operate. Having reviewed the various radiology, he thought that the plaintiff’s pain was emanating from one or other of the two lower discs. He noted the injury complained of was not uncommon amongst care workers, and the incident gave rise to symptomatic spondylosis in the lower spine. He thought the plaintiff’s incapacity was partial but permanent and it was likely she would suffer ongoing and persistent pain into the foreseeable future. He did not expect the plaintiff would be able to continue to perform her courier driving work as she was suited to more sedentary occupations.
[23] PCB 65-68
35 Mr Tange, neurosurgeon, examined the plaintiff in December 2008 and January 2009.[24] He noted the plaintiff’s main problem was low-back pain, rather than leg pain. He did not think there was any value in surgical intervention. He did not think there was any nerve root compression and that her continuing treatment ought to include strengthening of her abdominal and spinal muscles through an exercise program, together with weight loss.
[24] PCB 69
36 The defendants arranged for the plaintiff to be examined by Dr Davison, occupational physician, in February 2006 and April 2009.[25] He obtained a history that the plaintiff had suffered some low-back problems prior to the injury, including an episode of “sciatica” in 2002. In addition there had been “niggles” over the previous ten years. He obtained a history of constant, dull low-back ache which led to restrictions in sitting, standing and walking. The plaintiff reported a reduction in her household activities, in vacuuming, mopping and cleaning the bathroom. He observed no illness behaviour and found the plaintiff co-operative. Having reviewed the radiology, he thought that the pain emanated from the L5-S1 disc with associated referred pain into the right leg. He thought this was all consistent with the strain injury to the lumbosacral region. The plaintiff was not fit for pre-injury duties, but could undertake suitable employment. The radiology, he said did not show nerve root involvement and he considered that the plaintiff did have some pre- existing pathology at L5-S1 as was shown on initial x-rays, and that the radiology showed changes quite common in a person of the plaintiff’s age. He thought, in terms of prognosis, that the plaintiff would continue to experience persisting symptoms which would vary in intensity into the foreseeable future.
[25] DCB 3-11
Findings in Relation to the Medical Evidence
37 Essentially, there is little difference in the opinions of the various treating and consultant doctors who have examined the plaintiff. It would appear clear the plaintiff had some modest low-back problems prior to the incident of March 2005. She did receive some chiropractic treatment, and there appears to have been two episodes in 2002 and again in 2004 with lower back pain. In her affidavit,[26] the plaintiff stated that she had some time off prior to the incident of perhaps a week. I am of the view, however, that the incident in question did cause the plaintiff’s relatively symptom-free lumbar spine to become symptomatic. It may be, as suggested by Dr Davison, and particularly given the initial x-ray findings, that the plaintiff had a pre-existing but largely asymptomatic lower back degenerative condition. The relevant lifting incident caused a major exacerbation of that condition which has led to significant medical treatment and time away from employment.
[26] PCB 21
38 I am satisfied, particularly given the views of Mr Carey, the treating orthopedic surgeon,[27] that the plaintiff suffered disc disruption at a number of the lower lumbar discs. That is also the view of Dr Clayton Thomas[28] and the defendants’ specialist, Dr Davison.[29] It is difficult to say with precision which of the lumbar disc specifically is the source of the pain. The discography reproduced some pain at the three lower lumbar disc levels. Dr Clayton Thomas considered it was one or other of the two lower discs.[30] Dr Davison thought it was the L5-S1 disc. While the authorities require me to determine what injury was suffered by the plaintiff,[31] I do not believe this requires me to identify the specific lumbar level at which the injury occurred. I am satisfied that there has been a discal injury at one of the three lower lumbar discs, probably L4-5, or L5-S1, or both.
[27] PCB 44
[28] PCB 67
[29] D9
[30] PCB 67
[31] see Grech (supra)
39 The opinion of the various medical practitioners is confirmed by the findings upon the radiological investigations. In general, those investigations show there is disc bulging at L4-5 and L5-S1, but without specific nerve root compression. In addition, annular tears are shown. Again, it is not possible to say whether these findings were specifically caused by the incident of March 2005, or whether the plaintiff suffered an underlying condition and the incident exacerbated the situation.
40 Again, there is uniformity, generally, amongst the practitioners that there is no nerve root compromise leading to referred pain along specific pathways. However, I do accept the plaintiff has suffered some pain referred from the relevant discs into particularly the right leg. This problem has ebbed and flowed over the years, although on the basis of the more recent reports, is not the plaintiff’s main problem.
41 Likewise, the medical practitioners agree that the plaintiff has restrictions in her work capacity. She is unable to return to work as a healthcare provider, nor any other occupation involving heavy or repetitive lifting, bending, twisting and the like. I am satisfied the plaintiff has the capacity to undertake a range of alternative, lighter duties, including the administrative work she performed on a full-time basis for the first defendant up until December 2007.
42 I am further satisfied that the plaintiff’s condition is permanent. The authorities have defined this to mean “for the foreseeable future”. I am satisfied that the plaintiff’s condition is likely to continue on a long-term basis and that she is likely to have constant lower back pain with exacerbations from time to time, depending upon the activities in which she is engaged. No doctor has proposed lumbar surgery. There is no medical opinion to the effect that there is some form of treatment which is likely to lead to significant improvement in her condition, although many doctors recommend the plaintiff undertake an active exercise program, with weight reduction. Even if successful, there is no opinion to suggest such a program would provide any very significant relief of the plaintiff’s symptoms.
The Plaintiff’s Credibility
43 I had the opportunity to observe the plaintiff in the course of extensive cross- examination. I formed the view that she was answering questions honestly and made the concessions which I would expect of an honest witness.
44 There is no medical practitioner suggesting that the plaintiff’s presentation is exaggerated or inappropriate given the findings on examination and investigation. I am further impressed by the plaintiff’s attempts to obtain employment since her injury. She returned to work with the first defendant and in fact increased the hours in her position as residential care co-ordinator to full-time. After she left that job in December 2007, she attempted employment in a recycling plant, and a bakery, both jobs involving physical work. I am satisfied she made reasonable attempts to continue those jobs, but was unable to do so. The plaintiff even considered undertaking work as a prison officer which would probably have been unsuitable. These attempts at employment and the plaintiff’s continued rehabilitation by exercise and walking programs, in my view, enhances her credibility.
45 Surveillance film of the plaintiff was taken in July and August 2008 and April 2009, and tendered into evidence. In the first film, the plaintiff is shown in a queue at the Geelong Football Stadium, known as “Skilled Stadium”, from 9.47 to 9.49 am, and further, from 9.53 to 10.26 am. She is standing with others, moving around from time to time for a total period of thirty-five minutes.
46 On 30 August 2008, again at the Skilled Stadium, the plaintiff is again shown in a queue waiting to get into the ground from 10.21 to 10.33 am, a period of twelve minutes. Again, she is seen to move around while standing in the queue. Thereafter, the plaintiff is shown seated in the stadium, firstly from 11.24 to 11.36 am, a total of twelve minutes, and then again from 1.43 to 2.40 pm, a total of fifty-seven minutes. At the end of the surveillance film, at 5.03 pm, she is seen to walk home, her house being a short distance from the stadium.
47 On 28 April 2009, the plaintiff was the subject of further surveillance while attending a medical appointment. She is seen to walk slowly along a road to go into an appointment, and then sit for a period of approximately eighteen minutes in a coffee lounge.
48 In cross-examination after the surveillance film was shown, the plaintiff admitted as follows:
•
On the date of the first surveillance film, 19 July 2008, she arrived at the ground at about 9.30 am and waited in a queue to get into the ground for about an hour;[32]
• Thereafter, she watched the football from 10.30 am; •
In the second surveillance film of 30 August 2008, she arrived at the ground at approximately 10.00 am and waited in a queue to get into the ground for approximately thirty-seven minutes;[33]
• She watched two games of football on that day from a seated position;[34] •
At one point while seated, she was able to lean a considerable distance forward;[35]
•
Throughout the video surveillance at the football, the plaintiff was seen to sit comfortably;[36]
•
She attends most Geelong home games, and games in Melbourne, but does not travel interstate;[37]
•
She may miss games if she is rostered to work, if the weather is inclement, or if she is unwell because of back pain, or migraines;[38]
•
She had not complained to her general practitioner about any difficulties with back pain while attending the football.[39]
[32] Transcript (“Transcript”) 70
[33] T 70
[34] T 70
[35] T 71
[36] T 72
[37] T 72
[38] T 84
[39] T 75
49 In re-examination, the plaintiff stated that at the end of each quarter while watching the football she was able to stand, stretch and move around to relieve back pain. Also, she would take increased medication.
50 Before the video surveillance was shown, Ms Magee asked the plaintiff questions about her sitting and standing capacity. She accepted that if she was required to stand in the one position without moving, she would be able to do so for approximately fifteen minutes. If she was able to move around, she was able to remain standing for half an hour to three-quarters of an hour.[40]
[40] T 23-24
51 The plaintiff was asked by Ms Magee about her sitting tolerance.[41] She said she could sit for approximately half to three-quarters of an hour without pain, although she could sit longer. After twenty or twenty-five minutes, she would need to move around, and move the weight from one side of her body to the other.
[41] T 52-53
52 Again, before the film was shown, the plaintiff stated that she lived close to Skilled Stadium and when she went to the football she would generally stand, but take a chair to relieve her back pain.[42] Over the last several years when there was seating available, her daughter would go to the ground earlier to reserve a seat for her. She would attend the ground at about 1.00 pm.[43]
[42] T 63
[43] T 64-65
53 Throughout the course of the plaintiff’s evidence, she appeared from time to time to be in discomfort, and moved from the sitting to the standing position and back. There were a number of inconsistencies between, firstly, the plaintiff’s presentation in court and her presentation on the surveillance film and, secondly, her description of her activities at the football, and what was shown on the surveillance film. The plaintiff appeared to stand in the queues without any particular difficulty, and was seen to sit for periods of time without the need to stand and move around, as was evident in court. Further, in evidence she gave the impression that when she went to the football, she arrived late and generally went to a standing area.
54 Ms Magee urges that this evidence, firstly, affects the plaintiff’s credit, and, secondly, shows that she is able to sit and stand for periods longer than she stated in her evidence. I am of the view that the surveillance film, and the plaintiff’s admissions do, to some extent, affect her credibility. There was, in my opinion, a difference between her presentation in court and that which was shown on the surveillance film. The plaintiff is a keen football supporter and regularly attends Geelong Football Club games. There is no reference in her affidavit material to her attending the football, although she did disclose it to Mr Carey in 2008.[44]
[44] PCB 59
55 In this proceeding, the assessment of the plaintiff’s credit is a balancing exercise. On the one hand I was impressed by the manner in which the plaintiff gave evidence, and her efforts, without the assistance of rehabilitation providers, to obtain employment. On the other hand, she was less than forthcoming about her involvement in the Geelong Football Club, and her ability to stand and sit for periods of time when attending the football. At the end of the day, I do not think the plaintiff’s credibility was severely affected as a result of the video film and cross-examination and I do not reject her evidence about the extent to which she is affected by the constant pain in her low-back. However, I am of the view that she has the ability to participate in her passion for football on a regular basis, and without being significantly affected by her back condition.
Submissions on behalf of the Defendants
56 Ms Magee, correctly in my view, assessed this proceeding as essentially a determination of whether the consequences to the plaintiff as a result of her back injury reached the “very considerable” level when a comparison is made with other cases in the range of lower back injuries.
57 She referred me to Sumbul v Melbourne All Toya Wreckers Pty Ltd,[45] where Chernov JA,[46] stated:
“… If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’. In my view, there was no such evidence before her Honour.”
[45] [2006] VSCA 292
[46] at paragraph 24
58 The key words in this passage are: “unless there was some other evidence that showed that he experienced significant pain …”. While undoubtedly I must take into account that for a considerable period up to December 2007 the plaintiff was able to work full-time in administrative duties for the first defendant, that, of itself does not mean the plaintiff’s application fails. I am satisfied in this proceeding that the plaintiff does suffer ongoing lower back pain which considerably inhibits her capacity to enjoy a range of recreational, domestic and work activities.
59 Ms Magee submits that the plaintiff has a significant capacity given the administrative duties she carried out for the first defendant. The plaintiff was responsible for the running and management of the hospice and this involved a range of duties to do with staffing, clients and general administration. Further, although she was unable to continue in the work in the bakery, or the recycling plant, her current job as a courier driver requires her to drive considerable distances, on occasions 400 kilometres in one day, an activity Ms Magee submits is generally regarded as incompatible with lower back problems.
60 Ms Magee submits the significance of the surveillance film ought significantly affect the plaintiff’s credibility, and in addition shows her having the capacity to sit and stand for considerable periods.
61 The plaintiff, she says, has a reasonably active social life, attending social occasions with friends, going to the movies, and, in particular, involved in following Geelong Football Club.
62 In terms of the medical evidence, Ms Magee submits that there is no nerve root compression caused as a result of the pathology in the lower spine and generally that the pathology is at the lower end of the scale when viewed with other cases in the range.
Submissions on Behalf of the Plaintiff
63 Mr Mighell, while accepting that there is no nerve root compression nonetheless urges me to accept that the plaintiff does have referred pain into the right leg from the lower back injury. He says that there is consistent medical opinion that the plaintiff has suffered a lower lumbar disc injury and that that is the opinion of a number of the plaintiff’s doctors, and particularly the opinion of Dr Davison, who saw the plaintiff on behalf of the defendants.
64 In terms of the plaintiff’s credit, he notes that no medical practitioner has suggested the plaintiff is misleading nor exaggerating, and further, that the plaintiff gave her evidence in an honest and forthright manner.
65 The surveillance film, he says that is of limited assistance and when an overall view of the evidence is taken there is little inconsistency between what the plaintiff stated she was capable of doing in terms of sitting and standing, and that which is shown on the video film.
66 Most importantly, according to Mr Mighell, the consequences to the plaintiff of her lower back injury are substantial. They include:
•
She suffers ongoing fluctuating low-back pain with significant flare-ups from time to time. The most recent flare-up resulted in the plaintiff being referred to Mr Tange, neurosurgeon. Even Dr Davison accepts the plaintiff’s pain is chronic.
• This pain affects the plaintiff’s capacity to sit, stand, bend and lift. •
The plaintiff’s capacity for sleep is significantly affected. The plaintiff wakes several times a night and is required to take painkilling medication, Ducene, to assist.[47]
•
The plaintiff takes a range of powerful medication on a daily basis. The medication has a range of side-effects, including constipation, drowsiness and requires the plaintiff to maintain a certain diet.
•
The plaintiff has undergone a raft of treatment, including physiotherapy, spinal injections and a discogram. While surgery is not recommended, it has been actively considered.
•
The plaintiff has suffered a significant curtailing of her sporting interests. She formerly represented Victoria at badminton and stated in evidence that she was passionate about her sports, particularly social tennis, bike riding and badminton, all of which are now lost to her.
•
The plaintiff will continue to suffer pain into the future. The predictions of Dr Clayton Thomas about her future are somewhat dire. She may well require additional physiotherapy.[48]
•
She has restrictions in her domestic life and her flat mate has to assist with the heavier cleaning duties, particularly cleaning the bathroom and even making the plaintiff’s bed.
•
She is unable to return to work as a carer nor in any capacity which will require repetitive lifting, bending or standing or sitting for long periods of time.
•
While she has current employment, she is able to undertake this with the assistance of medication, reduced hours, and a sympathetic employer who assists her by structuring the rosters in a way to cause less aggravation to her back pain.
[47] T 6-7
[48] see the opinion of Dr Edwards, PCB 64
Conclusions
67 As submitted by Ms Magee, the plaintiff clearly has the capacity to be involved in a range of domestic and work activities. She is a passionate follower of her football club and attends matches regularly. This requires her to stand from time to time and sit for significant periods. There is very little restriction in that regard. Further, she has maintained her social involvement and is not a person so affected by pain that she is forced to stay at home, rarely going out.
68 It is significant that the plaintiff, over the period from 2006 to December 2007 worked in a full-time capacity undertaking a range of administrative duties. In fact, this was the employment the plaintiff had maintained over the period from 2002 to 2005, and it was only in the several months before the incident that the plaintiff’s duties shifted to those of a personal carer.
69 When I reflect upon the range of injuries suffered by persons to the lower spine, at the one end of the scale are minor strains which require little time away from work, medication and treatment, and at the other end of the scale a major back injury requiring surgery, significant periods of rehabilitation and strong medication. The plaintiff’s condition lies somewhere in between. It is impossible to say precisely where.
70 I am of the view, however, that a significant aspect of this case is the complaint by the plaintiff of ongoing lower lumbar pain. This requires the daily consumption of large quantities of medication and, on any view, has led to a restriction in the plaintiff’s employment capacity. There is no relief in sight for the plaintiff in this regard, and it is likely she will continue to suffer this pain, with exacerbations from time to time, into the foreseeable future.
71 The plaintiff has considerable support from almost all of the doctors that she has seen. There is significant pathology, particularly at the two lower lumbar discs, and all doctors accept that the plaintiff suffers the pain she claims, and her complaints are consistent with the findings upon examination and upon radiology.
72 On balance, I accept the submissions of Mr Mighell as to the consequences to the plaintiff of her lower back injury and when I consider the plaintiff’s life both before and after injury, I am satisfied that those consequences achieve the “very considerable” level as the legislation requires, in respect of pain and suffering.
73 I therefore grant leave to the plaintiff to bring proceedings at common law, and will make appropriate consequential orders.
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