Ward v Clark Toop and Taylor

[2016] VCC 181

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-06463

CAROLYN ANN WARD	Plaintiff
v
CLARK TOOP & TAYLOR	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10 & 11 February 2016
DATE OF JUDGMENT:	7 March 2016
CASE MAY BE CITED AS:	Ward v Clark Toop & Taylor
MEDIUM NEUTRAL CITATION:	[2016] VCC 181

REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – leave sought in relation to pain and suffering damages and pecuniary loss damages – reliance upon paragraph (a) of the definition only – injury to the low back – prior surgery – reliance upon course of employment and specific incident – extensive surgery subsequently – whether statutory test satisfied – factors to be considered – observations concerning behaviour of the defendant as a Model Litigant and of an Independent Medical Examiner.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram with Ms M Pilipasidis	Melbourne Injury Lawyers Pty Ltd
For the Defendant	Ms J Forbes QC with Ms B Myers	Hall & Wilcox

HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. In so doing, she relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The physical injury relied upon is one to the spine and, in particular, to the mid and low back.

2   The application is based upon the course of employment generally between approximately September 2004 and February 2013, and on a specific incident on 9 October 2007.  There is no argument but that the plaintiff had suffered from symptoms of a low back injury prior to commencing employment with the defendant and had undergone two surgical procedures.  The broad allegation is that, whilst employed by the defendant, which is a firm of solicitors, the plaintiff, who had previously suffered back problems, was obliged to lift and manoeuvre heavy files and briefs and generally engage in activities adversely affecting the low back, in addition to suffering a specific incident on 9 October 2007.  On that occasion, she was pulling or manoeuvring a suitcase filled with legal documents when the wheels of such suitcase became caught on tram tracks.  As shall be discussed, there is no argument but that this incident occurred.  The defendant accepted liability for it and for all subsequent medical and like expenses relating to the back (with one exception).  Of these, there were plenty.  The defendant has also paid weekly payments of compensation and the plaintiff remains on the maximum applicable level of such weekly benefits.  She has not engaged in employment since February 2013.

3   Mr A Ingram of counsel with Ms M Pilipasidis of counsel appeared on behalf of the plaintiff.  Ms J Forbes QC of counsel with Ms B Myers of counsel appeared on behalf of the defendant.  The plaintiff gave evidence, including the adoption of three affidavits as being true and correct, and was cross-examined.  The balance of the evidence was documentary in nature, including surveillance material, and was tendered either by consent or without objection. 

Factual background

(a)The plaintiff’s background, training and employment prior to commencing work with the defendant

4   The plaintiff is aged 52 years, she having been born on 17 April 1963.  She is a married lady with adult children.  She was educated to Year 12 level.  Subsequently, she commenced general nursing training, working at the Alfred Hospital from 1982 until 1985.  As shall be discussed, her back problems commenced in 1984.  In 1986, she obtained a Graduate Diploma in Physical Education for the Disabled at the Victoria College.  She worked as a registered nurse in the operating suite at the William Angliss Community Hospital in Ferntree Gully in 1986 and 1987, performing similar duties at the Dandenong & District Hospital in 1987 and 1988.  In that latter year, she also completed a Certificate in Occupational Health & Practice at Latrobe University, having also undertaken a course in Industrial Screening Audiometry.

5   Between 1988 and 1990, the plaintiff worked as a theatre nurse at Cabrini Hospital in Malvern and at Monash Medical Centre.  She also completed a Perioperative Nursing Course.  She returned to Cabrini Hospital in 1992, remaining there until approximately 1998, working as a theatre nurse.  During that time she undertook continuing education programs for registered nurses at Latrobe University and also obtained a Graduate Diploma in Nursing in Perioperative Care.  She also completed a Bachelor of Health Science Degree at Monash University in 1994-95.  Whilst working at Cabrini Hospital, she became an agency nurse in 1996 and worked in that capacity until 1999.

6   During that time she had commenced legal proceedings against the Alfred Hospital in respect of her back condition, ultimately obtaining a settlement of $200,000.

7   Returning to the plaintiff’s background, she decided to change her career and studied law at Monash University, subsequently qualifying.  In March 1999 she commenced employment as a solicitor at what was then Maurice Blackburn Cashman, specialising in personal injuries.  She was ultimately admitted as a barrister and solicitor on 3 April 2000.  In September 2004, she commenced employment with the defendant as a solicitor, still working in the area of personal injuries and on a full-time basis.  In early 2005 she reduced her working hours with the defendant to three or four days per week.  For a limited period, for one day per week she did agency nursing.  I shall deal with both subsequent and ongoing medical problems shortly.

(b)      The plaintiff as a witness

8   The plaintiff impressed me as a particularly credible witness.  I found her to be frank, making appropriate concessions, and with essentially a good memory for dates and events.  I note that Mr Rodney Simm, orthopaedic surgeon, who examined and reported upon the plaintiff at the request of the defendant, used the following words in relation to her in his original report – “articulate, an accurate historian, straightforward, co-operative” and, in his most recent report, “… straightforward … cooperative … again impressing as an articulate historian”.  I agree entirely with the description that Mr Simm provided to the defendant.  I note in passing that Dr Michael Epstein, consultant psychiatrist, in a report to the plaintiff’s solicitors, described her as pleasant, polite and co-operative.  As shall be discussed, Dr Clive Kenna, consultant in musculoskeletal pain management, and examining the plaintiff at the request of the defendant, at least initially described her as a highly motivated individual with a high work ethic.  I agree with all of these observations.  The plaintiff impressed me as a reliable witness whose evidence I could readily accept.

9   I should add that the surveillance videos of her which were shown to the Court, and which basically showed her walking and, on one occasion, using a leaf blower, did nothing to damage her credit.  I note that the video material was forwarded to Mr Simm who, as I pointed out, was examining at the request of the defendant.  In reporting following this, he pointed out that, when operating the leaf blower, the plaintiff did not bend from the waist and that, when walking, she was observed to rotate her body from side to side but not to bend forwards.  I note his observation that “The functionality exhibited by the worker in the footage was entirely consistent with the history she gave to me…”.

10Thus, the video footage, which was of no great length, showed nothing which damaged the credit of the plaintiff.  I have no hesitation in accepting her evidence.

(c)The state of the plaintiff’s health prior to commencing employment with the defendant

11There is no doubt but that the plaintiff had suffered quite significant back problems, requiring surgery, prior to the commencement of her employment with the defendant. 

12In December 1984, she had suffered an injury to her lumbar spine when lifting a heavy patient whilst in the course of her nursing training at the Alfred Hospital.  This was a quite severe injury, involving an admission to the Epworth Hospital.  A CT scan revealed a discrete prolapse at L5-S1 and surgery was performed by Mr David Wallace, orthopaedic surgeon, on 30 September 1984.  Mr Wallace’s assistant, Mr Robert Dickens, orthopaedic surgeon, was later to have care of the plaintiff.  At surgery, a ruptured disc and fragments were removed.  Thus, a discectomy was performed at the L5-S1 level.

13Following surgery, the plaintiff made a good recovery.  Essentially she then moved to being a theatre nurse.  In 1987, whilst working in that capacity at the Dandenong & District Hospital, she developed thoracic spine pain, which ultimately settled.

14The plaintiff saw Mr Wallace again in August 1988.  Apart from some neck discomfort and the like, she still had some problems with her back, in addition to suffering left sided sciatica and numbness of the left foot.  She underwent an MRI scan which revealed gross disc degeneration following surgery at the L5-S1 level and with a mild disc prolapse.  Mr Wallace referred the plaintiff to Mr Dickens in order to seek his view on the advisability of a spinal fusion procedure.  In November 1988, Mr Dickens performed a spinal fusion at L5-S1.  This had a successful outcome, and post-operatively the plaintiff was able to return to pre-injury activities, including horse riding, running and the like.  She married and commenced having her family.

15The plaintiff suffered another injury on 27 May 1994 when she tripped over lighting leads in an operating theatre at Cabrini Hospital.  She suffered from pain in the right buttock, but not in the leg.  With conservative treatment, the symptoms gradually resolved.  Nothing further of note occurred before the plaintiff commenced employment with the defendant.  I accept that, as at that time, she was in the condition of being able to carry out the wide variety of activities in which she had recommenced engaging following the spinal fusion.

(d)      The injury, its diagnosis and prognosis

16As stated, the plaintiff is relying upon the course of her employment and a specific incident on 9 October 2007.  In relation to the course of her employment, the plaintiff alleges that she was frequently required to place strain upon her spine when undertaking manual handling of large files, this also involving the lifting and transporting of same both to her home and to court.  Her practice was essentially concerned with industrial injuries and diseases, so that litigation was involved and the lifting and moving of substantial files was required.

17In late July 2005 the plaintiff developed a new symptom, namely pain extending down the right leg into the right foot and with right foot drop.  She saw Mr Dickens, who referred her to Mr Myron Rogers, neurosurgeon.  Mr Dickens had previously organised a further MRI on 24 August 2005, which essentially revealed minor disc bulges at L1-2 and L4-5 which did not lead to spinal canal or neural foraminal stenosis.  In any event, Mr Rogers discussed the possibility of conservative treatment or a discectomy with interbody grafting and internal fixation.  The plaintiff opted to proceed with surgery. 

18Mr Rogers proceeded to operate on 17 November 2005.  He performed a lumbar decompression and fusion, this involving laminectomy, discectomy, spinal rhizolysis and internal fixation.

19The outcome of this surgery was particularly successful.  The plaintiff was virtually pain free.  She was walking three times per week, involving distances up to 18 kilometres.  She was also swimming twice a week, this involving distances of 1.5 kilometres.

20On 12 April 2007, the plaintiff returned to see Mr Rogers by way of a review.  She told him that she was very pleased with the outcome of the surgery, had virtually no back pain and that the majority of her sciatica had settled.  Her quality of life had improved.  She had lost weight.  An x-ray of the lumbar spine performed that day demonstrated maintenance of alignment and clear incorporation of the interbody and postero-lateral bone graft.  Mr Rogers discharged her from his care.

21It should be said that, in April 2007, the plaintiff was operated upon by Professor Ian Jones.  This surgery was in the nature of a haemorrhoidectomy.  The relevance of this is that Professor Jones has observed in his report of 10 September 2015 that, presumably because of the plaintiff’s spinal injury, she had taken a large number of Codeine and opioid analgesics over several years and these are a well-known cause of various issues, such as the enlargement of haemorrhoids.  Thus, if the opinion of Professor Jones is accepted, there is a causative link between the plaintiff’s back injury and the condition for which he performed surgery.

22In any event, the plaintiff’s back condition seems to have settled well prior to Mr Rogers discharging her from his care in April 2007.  Unfortunately, there was then the incident of 9 October 2007 when the plaintiff, whilst in the course of her employment with the defendant, was walking from court and was dragging a large suitcase on wheels.  One of the wheels became caught when she was crossing a tram track.  This incident caused a deterioration in her spinal condition, as shall be discussed.

23The occurrence of this incident is not challenged by the defendant.  Indeed, the defendant has paid for all relevant medical expenses since, these including considerable surgical treatment and a period in excess of three weeks of hospitalisation.  (There is one exception to this, which relates to a procedure contemplated by Professor Teddy, but otherwise all relevant medical expenses have been paid.)  It should also be pointed out that, by letter dated 16 November 2007, the defendant’s insurer accepted liability to make weekly payments in respect of the incident of 9 October 2007.  Those payments have been made in respect of periods of both total and partial incapacity.  As at the present date, they continue at the maximum rate for total incapacity.

24What followed the incident of 9 October 2007 for the plaintiff could be described as a litany of treatment.  Another CT scan was organised by her general practitioner, Dr Ian Fowler, this being carried out on 16 October 2007.  This did not show any residual or recurrence of central canal stenosis or disc protrusion.  However, Dr Fowler also referred the plaintiff back to Mr Rogers.  He suspected either a facet joint problem or an annular tear.  Another MRI was then performed on 9 November 2007, this showing a minor disc protrusion at L1-2 and a minor disc bulge at L5-S1, but with no recurrent disc prolapse at L4-5.  Mr Rogers recommended referral to Dr Terence Lim, consultant in rehabilitation and pain medicine and who had previously reviewed the plaintiff following the surgery in 2005. 

25There then commenced a regime of treatment from a number of practitioners and which included surgical intervention.  This continued up to and beyond the cessation of the plaintiff’s employment with the defendant in February 2013.  I shall not go into each item of treatment in detail.  The setting out of a list should give some idea of the amount of further treatment undergone by the plaintiff in respect of her back injury.  That list follows:

·    November 2007, referral by Dr Lim to Ms Maxine Thompson, Feldenkrais Pain Physiotherapist, and prescription of Lyrica and OxyContin because of significant amount of pain.

·    February 2008, Dr Lim orders reduced working hours to maximum of four hours per day, four days per week with Wednesdays off and a doubling of the Lyrica consumption from 75mg to 150mg.

·    April 2008, Dr Lim again doubles the Lyrica intake to 300mg with OxyContin to continue.  Further MRI scan ordered, this again showing scarring together with mild disc protrusion at L1-2 and mild broad based disc bulge at L5-S1 associated with a slight hyper intense annular fissure.

·    May 2008, because of the plaintiff’s chronic pain she is taking Lyrica, OxyContin, Endone and Panadeine Forte.

·    June 2008, Dr Lim puts the plaintiff off work for one month and prescribes Cymbalta in an attempt to wean the plaintiff off Lyrica and OxyContin.  Physiotherapy suspended.

·    June 2008, referral to Mr Peter Dorhmann, neurosurgeon, who believed that the plaintiff’s persisting symptoms in the right leg were indicative of an interstitial nerve root problem and referred her to Professor Robert Helme, consultant neurologist. 

·    September 2008, Professor Helme reports that the plaintiff’s nerve root irritation is disturbing her quality of life and refers her to Mr Max Neufeld, spinal physiotherapist.  Professor Helme advises that the plaintiff should take Lyrica, OxyContin and Endep during the exercise program and that her general practitioner will need to consider taking out a permit to prescribe narcotics as, in the opinion of Professor Helme, that form of medication would be required on an ongoing basis into the medium, if not long, term future.  A nerve root injection and increased medication is also foreshadowed.

·    September 2008, the plaintiff commences treatment with Mr Neufeld, which treatment continues thereafter and to the present date.

·    October 2008, the plaintiff undergoes CT guided lumbar spine injection at Cabrini Hospital and has ongoing prescriptions for Lyrica, OxyContin, Endone, Panadeine Forte, Endep and Nexium.  It should be said that the plaintiff continued to work for the defendant, at times working from home or working reduced hours, this being intermingled with time off work.

·    Late 2008, at the suggestion of Professor Helme and Mr Neufeld, the plaintiff commences use of a TENS machine, which provides some benefit and which she uses for some time thereafter.

·    January 2009, the plaintiff is referred by Professor Helme to Dr Andrew Muir, consultant in pain management.  Dr Muir’s working diagnosis is radicular pain.  He commences her on Buprenorphine/Norspan patches (an opioid like OxyContin and Endone).  Dr Muir also requests that approval be granted to carry out an epidural steroid injection.

·    April 2009, the epidural injection is not possible due to the plaintiff’s anatomy and a caudal injection is performed.  This aggravates the plaintiff’s pain.  Dr Muir seeks permission for a trial of spinal stimulation.

·    Early 2009, Dr Fowler refers the plaintiff to Dr Euahna Varigs, who performs 10 laser acupuncture treatments.  These do not help.

·    July 2009, surgery is performed by Dr Muir involving the implantation of a spinal cord stimulator on a trial basis, this being performed at Glenferrie Private Hospital.

·    August 2009, the plaintiff is reviewed by Professor Helme.

·    Throughout 2009, the plaintiff develops urinary problems, including loss of sensation of the bladder.  On 9 September 2009, the plaintiff undergoes cystoscopy performed by Associate Professor O’Connell, urological surgeon.  No benefit results.

·    September 2009, Dr Muir performs further surgery in the form of implantation of a spinal cord stimulator on a more permanent basis.

·    December 2009, more surgery is performed by Dr Muir in the form of revision of the position of the leads of the stimulator.

·    February 2010, the plaintiff is reviewed by Professor Helme.  Continuing symptoms are noted, but the stimulator appears to be working well and medication is reduced.

·    Early 2010, the medication causes the plaintiff to have bowel problems.  She is seen by Professor Ian Jones, colorectal surgeon, who had previously treated her in 2007.  Professor Jones expresses the opinion that the Codeine contains compounds which have been the cause of enlargement of haemorrhoids.  A colonoscopy is performed on 19 August 2010.

·    August 2010, the plaintiff attends Dr Muir in relation to irritation caused by a wire in the stimulator.  Dr Muir advises removal. 

·    October 2010, Dr Muir performs revision surgery in relation to the stimulator and its wires.  During this procedure, the plaintiff suffers a dural puncture. 

·    The plaintiff develops severe headaches and meningitis.  On 23 October 2010 she is transferred by ambulance to St Vincent’s Hospital where she is admitted for 22 days.  Antibiotics are administered intravenously.  An extremely painful spinal tap procedure is attempted and fails.  As stated, the defendant paid for this hospitalisation and treatment.

·    Thereafter, the stimulation system fails to work in a manner that provides to the plaintiff any beneficial result.

·    February 2011, Dr Muir refers the plaintiff to Professor Peter Teddy, neurosurgeon, in order to obtain an opinion as to whether the plaintiff will be suitable for implantation of new leads with a view to re-establishing control of her symptoms with a plate electrode.

·    March 2011, Professor Teddy sees the plaintiff and organises a CT scan in order to demonstrate the adequacy of the spinal canal for a plate electrode.  The plaintiff is prepared to undergo surgery despite associated risks, including a small risk of paraplegia.  It is worth noting that, in his letter to Dr Muir of 4 March 2011, Professor Teddy recorded that the plaintiff had returned to part-time work on 31 January, but would like to return to full-time duties.

·    March 2011, the plaintiff undergoes further surgery performed by Professor Teddy.  The implanted stimulation system is removed and replaced with a Penta plate electrode system. 

·    2011, the Penta plate system is not successful in providing relief.

·    November 2011, the plaintiff undergoes further surgery performed by Professor Teddy to revise the position of the Penta electrode.

·    2011-12, the plaintiff develops severe stomach cramps related to medication consumption.  A gastroscopy is performed on 14 May 2012 by Dr Andrew Jakobovits.  He reports that, because the plaintiff has taken large doses of opioid analgesics, her upper and lower gastrointestinal tracts have been affected.  As a result she has suffered symptomatic gastro oesophageal reflux and medication-related constipation.  He implicates employment.  He also expresses the view that her gastro intestinal injuries will not get better with time and will continue indefinitely.

·    July 2012, the plaintiff is reviewed by Professor Helme.  He observes that her back pain is now under good control, but she continues to have quite severe right leg pain in the distribution of the L4 dermatome. 

·    October 2012, Professor Helme indicates that he is retiring from practice.  The plaintiff will be under the care of Professor Teddy.  The removal of the spinal cord stimulator in 2013 is foreshadowed, as, in the opinion of Professor Helme, it is causing some pinching pain in the plaintiff’s back.

·    February 2013, the plaintiff ceases employment.  Her medication as at this time consists of OxyContin, Panadeine Forte, Endone, Nexium, Endep, Nurofen and Voltaren.  Whilst we have now passed the date when the plaintiff ceased work, I shall continue with this very long history of treatment, as there is no suggestion that it relates to anything other than injury sustained in the workplace.

·    March 2013, surgery is performed by Professor Teddy, who removes the entire stimulation system from the plaintiff’s spine.

·    August 2013, an x-ray shows a residual device within the subcutaneous tissues in the lumbar region at L3-4.  This is thought to relate to part of the neuro-stimulator device.  Professor Teddy expresses the view that this is most likely the anchor device that Dr Muir had earlier told him was lost during the surgery undertaken on 20 October 2010.

·    January 2014, Professor Teddy performs surgery to remove the subcutaneous anchor at L3-4.  Post-operatively, the plaintiff develops severe constipation due to high dosage of Endone.  This in turn leads to her suffering such severe constipation that, on 31 January 2014, she passes out whilst on the toilet and collapses, striking her head on the floor and being rendered unconscious.  The plaintiff is taken by ambulance to Frankston Hospital, where she remains an inpatient until 2 February 2014.

·    During 2014, the plaintiff’s medication is altered because of side effects caused by OxyContin, Endone and Panadeine Forte.  The medication is altered to Neurontin and Panadol Osteo.  The end result is not as effective for pain relief, but reduces side effects.

·    June 2014, the plaintiff is seen by Dr Ronnie Freilich, neurologist and neuro-oncologist.  This seems to have been basically for headaches following the incident in January 2014 when the plaintiff struck her head upon the bathroom floor.  MRI of the brain reveals normal result.  Dr Freilich diagnoses post-traumatic headaches resulting from the head injury suffered, relating the whole thing back to the medication given to the plaintiff in relation to her back injury.

·    During 2014 and as recently as May 2015, further reviews by Dr Freilich.

·    February 2016, referral of the plaintiff by Dr Fowler to Dr Clayton Thomas, rehabilitation physician.  A brief report from Dr Thomas indicates that he has recommended some fine tuning of her medications and that she undergo a pain management program.  He is not of the view that this treatment is likely to result in any substantial change in her capacity for employment.  The proposed program is not “a functional restoration-type program”.

·    The plaintiff continues to consult Dr Fowler each three months.  She continues to see the spinal physiotherapist, Mr Neufeld, approximately fortnightly.  The present medication prescribed for her is Nurofen, Panadol Osteo, OxyContin, Panadeine Forte, Endep, Coloxyl, Lactulose and Nexium.

26That concludes what is only a summary of the enormous regime of treatment undergone by the plaintiff.  That she has improved considerably since ceasing employment is something which I accept.  However, I also accept that she continues to have problems through the right buttock into the right lower leg, heel and foot.  She continues to have some bladder and bowel problems.  She also has some ongoing spinal pain and disability.  I have dealt with many serious injury applications over the years, but cannot recall encountering one where a plaintiff has undergone so much treatment and surgical intervention.  It is to the plaintiff’s credit that she is now doing such things as swimming twice a week and walking twice a week in an endeavour to maintain her fitness.

27I do not intend to go through the diagnoses and comments of the numerous people who have treated the plaintiff and whose names are listed above.  I will refer briefly to three medico-legal assessments carried out on behalf of the defendant.  Mr Daryl Nye, neurosurgeon, whose report of 22 August 2013 was in fact put into evidence by the plaintiff, examined her on that date.  Having taken a lengthy history and carried out an examination, as well as looking at radiological studies, Mr Nye concluded as follows.  He was of the opinion that the plaintiff had multilevel lumbar disc degeneration, also referring to the multiple procedures which she had undergone.  He was of the view that there had been aggravation of the condition consequential upon the incident of 9 October 2007.  (Mr Nye seems to have been under the impression that the purpose of the examination related solely to that incident insofar as relationship to employment was concerned.)

28Mr Nye considered it significant that there had been a general improvement in the plaintiff’s condition following cessation of employment.  He also referred to development of chronic pain syndrome and evidence of S1 sensory radiculopathy affecting the right leg.  He considered that the plaintiff, as currently presenting, had no capacity to resume pre-injury duties or any alternative.  This incapacity was likely to continue indefinitely. 

29Mr Rodney Simm, orthopaedic surgeon, originally examined the plaintiff at the request of the defendant on 24 September 2014.  I have already referred to Mr Simm considering the plaintiff to be straightforward, co-operative, articulate and an accurate historian.  He was not able to give a specific diagnosis in relation to some of her symptoms, but referred to the original diagnosis in 1984 of aggravation of lumbosacral disc degeneration.  In any event, he considered that her employment was a significant contributing factor, referring specifically to the incident of 9 October 2007.  His overall diagnosis was somewhat broad – namely, a chronic spinal pain condition.  He considered that she had a physical capacity for suitable employment, at least on a part-time basis.

30Mr Simm reported again on 12 May 2015.  He had not seen the plaintiff again.  He had been forwarded a report from Dr Clive Kenna, to whom I shall turn shortly, such report being dated 18 March 2015.  He had also viewed the surveillance material.  Mr Simm considered that the “functionality” exhibited by the plaintiff in the video footage was entirely consistent with the history which he had obtained.  He pointed out that, when examined by him, she had demonstrated a normal gait.  He remained of the view that she had a physical capacity for suitable employment of a light, non-physical form.  He also thought that her prognosis was poor and that she had chronic entrenched symptoms that were unlikely to improve.

31Mr Simm examined the plaintiff again on 1 December 2015, reporting on that day.  He reported that her condition had remained largely unchanged.  She had required much higher doses of opioid analgesia when working and had felt tired and in pain after work.  This was in response to questioning about a possible return to work.  Mr Simm also felt that the diagnosis remained unchanged.  He thought that her clinical course and analgesic requirements were consistent with the development of chronic pain syndrome, which could also be referred to as “failed back surgery syndrome”.

32Mr Simm was of the view that the relatively short period of employment with the defendant prior to the recurrence of symptoms in 2005 had not actually changed the pathology in her back, but such work did have the potential to exacerbate symptoms.  He also referred to the incident of 9 October 2007, saying that, in the absence of pre-existing pathology, such incident would not be expected to cause an injury.  This is an interesting observation, given that there was pre-existing pathology.  His further comment that, in the absence of employment, similar loading of the back would have occurred in the course of domestic or recreational pursuits does not seem to me to the point.  However, he did express the view that employment continues to materially contribute to the injury.

33Mr Simm felt that the plaintiff could return to work in a non-physical occupation, such as that of a solicitor, although some flexibility would be required.  However, he also said that a full assessment of the plaintiff’s capacity for work should include a psychiatric assessment and possibly assessment by a chronic pain specialist.  He expected her condition to persist.

34Dr Clive Kenna, consultant in musculoskeletal pain management, originally examined the plaintiff at the request of the defendant on 18 March 2015.  Interestingly, he observed at the outset that “this is an enormously complex case” – medically, that is certainly so.  He also observed that the plaintiff had not worked for a considerable period of time and that this was understandable in view of the overall level of symptomatology and disability.

35Dr Kenna expressed the view that the plaintiff did not have the capacity to participate in retraining and that she had no current work capacity.  He stated that she viewed herself as retired.  He was of the view that the condition from which she was suffering was still contributed to by the injury sustained in the course of her employment.  In addition, he referred to her as being a highly motivated individual with a high work ethic.

36Dr Kenna reported to the solicitors for the defendant on 29 May 2015 without seeing the plaintiff again, but having been provided with considerable documentation.  The material sent to Dr Kenna seems to have had a considerable impact upon his opinion.  On this occasion, he stated that much of the aggravation caused by employment had ceased.  He referred to the plaintiff’s symptomatology as essentially mild.  He stated that she was clearly capable of suitable employment and that she had a good prognosis in point of view of work capacity.  He stated that the problem was now one of motivational lack of desire to return to work.

37This very substantial change in opinion in the space of two months and without seeing the plaintiff again is to me somewhat staggering.  Some might consider that the letter and enclosures sent by the defendant’s solicitors to Dr Kenna on 1 May 2015 put pressure upon him to change his opinion and, indeed, certain submissions of Mr Ingram addressed this concern.  It is a topic to which I shall return.

38Dr Kenna saw the plaintiff again on 25 September 2015.  Interestingly, Dr Kenna reported that the plaintiff had been seen by a number of practitioners who, at the time, considered that she was unfit for work in any capacity, without mentioning that he was one such practitioner.  He then referred to the documentation forwarded to him by Hall & Wilcox.  In his report, Dr Kenna stated that the plaintiff had maximised her capabilities and minimised her disability, concluding that she would have a work capacity “if she so chooses”, adding an exclamation mark for good measure.  He concluded that, from her own mindset, he did not believe that she saw work as part of the future.  Dr Kenna was of the view that the plaintiff had a capacity to return to work, at least in part-time modified duties.

39I turn now to the diagnosis.  This seems to me to be uncontroversial.  The plaintiff suffered aggravation of a degenerate spine which had previously been the subject of major surgery at the L5-S1 level. 

40As the injury is in the nature of an aggravation, I shall take this into account.  I accept the evidence of the plaintiff that, prior to commencing work with the defendant, she had been able to return to a wide range of activities, including such things as horse riding, riding a bicycle approximately 25 kilometres per day, running up to 20 kilometres approximately three times per week, and working full-time.  There seems little argument but that the two major surgical procedures which she had, one in 1984 and the other in 1988, produced good results and were successful.

41Accordingly, whilst the plaintiff undoubtedly had degeneration in the lower areas of her spine and had been the subject of substantial, invasive surgery, at the time of commencing employment with the defendant she was very fit and had been working on a full-time basis for some years.  It is against this background that the consequences of the aggravation are to be measured. 

42I might add that I am quite satisfied that the plaintiff, when employed by the defendant, carried out the physical duties which she has described and that the incident of 9 October 2007 occurred as described.  Thus, for the purposes of this application, I am satisfied that the plaintiff suffered injury both whilst in the course of her employment with the defendant generally and also on 9 October 2007. 

43There is a reference in the report of Mr Simm to the fact that a full assessment of the plaintiff’s capacity for work should include a psychiatric assessment.  In fact, the plaintiff was seen for medico-legal purposes by Dr Michael Epstein, consultant psychiatrist, this being at the request of the plaintiff’s solicitors.  The conclusion of Dr Epstein was that the plaintiff had no diagnosable psychiatric disorder.  He described her as a confident, strong-willed, somewhat impressive person who had coped well with a series of operations, setbacks and the like.  He concluded that she did not require any psychiatric or psychological treatment or counselling, that her condition was stable and that her prognosis with regard to her mental state was good.  The views expressed by Dr Epstein are consistent with the impression made by the plaintiff in the witness box.  In accordance with s134AB(38)(h) of the Act, the psychological or psychiatric consequences of the physical injury shall not be taken into account, but the evidence would point to the conclusion that these are minimal. 

44I am also satisfied that the consequences of injury suffered by the plaintiff are permanent within the meaning of the Act, in that they will persist for the foreseeable future.  In August 2013, Mr Nye, examining on behalf of the defendant, expressed the view that her incapacity was likely to continue indefinitely.  Mr Rogers, one of the plaintiff’s treating neurosurgeons, stated in his report of 5 August 2015 that the plaintiff’s injury and impairment are permanent.  Professor Helme, her treating neurologist, also expressed the opinion in August 2015 that the plaintiff’s injury and level of impairment are permanent.  The plaintiff’s treating spinal physiotherapist, Mr Neufeld, who has had a lot to do with her over the last seven to eight years, has given the opinion that the plaintiff’s inability to work is likely to continue for the foreseeable future.  Dr Clayton Thomas, who has only commenced to see the plaintiff recently, has reported that he would not expect any significant alteration in her overall functionality or any substantial change in her capacity for employment.

45I am quite satisfied that the consequences of the plaintiff’s injury are permanent within the meaning of the Act. 

The plaintiff’s cessation of employment with the defendant and the circumstances preceding it

46It is apparent from the affidavit of Mr Clark of 27 August 2015 that, as an employer of the plaintiff, he was aware of her back problems.  At some time after the incident of 9 October 2007, he organised for her to be provided with an electronic height-adjustable desk which would allow her to work in either a seated or standing position and also arranged for a purpose built lounge to be placed in her office to enable her to lie down when necessary.  I accept that the plaintiff was having difficulties in carrying out her employment.  At times she worked from home.  I accept that she had difficulty carrying or moving the large files that were involved and, when taking work home, would get the assistance of her husband to move them into her house.  Thus, she was working reduced hours and with considerable difficulty.

47The circumstances surrounding the plaintiff’s actual cessation of work with the defendant are not altogether clear.  In his affidavit, Mr Clark has sworn that the plaintiff was made redundant along with many other staff at the time that Slater & Gordon Limited purchased the defendant.  A letter of Mr Clark was put before me in which it appeared that the plaintiff’s services were abruptly terminated, allegedly because of rumours which she was spreading about the upcoming purchase.  The letter was put to the plaintiff, who denied receiving it.  After I raised the issue, further instructions were obtained from Mr Clark who, very fairly, passed on information to the effect that he could not be certain that such letter was ever sent.  I accept that the plaintiff did not receive any such letter.  I also accept that she was struggling to keep going at the time that her employment ceased. 

48It was opened by Mr Ingram that the plaintiff in fact ceased employment voluntarily before the redundancies occurred and his opening was adopted as being correct by the plaintiff.  Whether the plaintiff ceased work voluntarily or was made redundant, I accept, as she stated at Transcript (hereinafter referred to as “T”) 79, that she was “really struggling to stay at work”.  She had talked to Dr Fowler about stopping work, and he had encouraged this.  When she was not at work, she was lying down at home – see T81. 

49The plaintiff did cease work after a meeting in which she appears to have been criticised, and this may have precipitated her departure.  However, she repeated that she was struggling and had a lot of pain.  She handed in her resignation – see T83.

50The plaintiff has not engaged in employment since ceasing with the defendant.  I accept that her cessation of employment was followed by a marked improvement in symptomatology.  However, significant symptoms do continue.  She remains on a considerable regime of medication, involving some eight medicines of varying strengths, but including OxyContin and Panadeine Forte.  She continues to see Mr Neufeld fortnightly.

Ruling

(a)      Pecuniary loss damages

51I am of the opinion that the plaintiff has discharged the burden of proof.  She is entitled to bring proceedings for pecuniary loss damages.  I have come to that conclusion for the following reasons.

(i)        I am satisfied that the plaintiff has no capacity for employment.  Mr Rogers has stated that a return to work would result in the worsening of her clinical state and have a significant impact upon her quality of life.  Mr Nye, examining on behalf of the defendant, pointed out that, significantly, there had been a general improvement in her well-being following cessation of work.  Further, he made the somewhat forthright statement that the plaintiff’s current presentation indicated that she had no capacity to resume pre-injury duties or any alternative.  Dr Fowler expressed the opinion that, with appropriate pain management treatment, the plaintiff’s symptoms could improve “over a long period of time”.  Unless such pain management treatment was successful, he thought it unlikely that the plaintiff would return to work.

It is to be remembered that the plaintiff has in recent times been referred to Dr Clayton Thomas, who is a consultant in pain medicine.  In response to a query as to whether treatment recommended by him was likely to change the plaintiff’s capacity for employment, he expressed the view that he would not expect any significant alteration in her overall functionality or any substantial change in her capacity for employment.

Mr Neufeld has seen the plaintiff on many occasions over the last seven to eight years.  He continues to see her fortnightly.  In his detailed report of 22 June 2014, he stated that the plaintiff had not worked for many months and was not capable of maintaining any form of employment successfully by reason of her physical intolerances.  Her pain state had improved noticeably since she ceased work and there had been a reduction in her need for strong opioid analgesics.  He stated that he was “almost certain” that the plaintiff’s condition would significantly deteriorate if she returned to any form of regular employment.  She will be unable to work for the foreseeable future.

Bearing in mind the history of events, the impression created by the plaintiff as a witness, and the determination which she has previously shown to remain in employment in the face of almost overwhelming physical problems and interventions, I prefer and accept the above opinions.

(ii)      In addition to the medical evidence to which I have referred, I also accept the evidence of the plaintiff and her husband.  In her affidavit of 12 September 2013, the plaintiff has described how she struggled at work and, in the end, her injuries got the better of her and she ceased work.  In her affidavit of 5 January 2016, she has described her various symptoms and the medication which she takes.  She expressed her belief that she is incapacitated for all forms of employment.  In her oral evidence, the plaintiff frankly agreed that she was in a financial position to retire, but again emphasised the improvement in her quality of life once she stopped working – see T103‒4.  In relation to possibly updating her nursing qualifications, the plaintiff described the difficulties that she has in relation to sitting at a computer.  She disagreed with the proposition that her decision to retire from the workforce permanently did not relate to her ability to manage pain.  She described it as being “the whole reason” – see T110.  She conceded that, over a week, she might be able to work eight hours in sedentary work, but expressed doubts as to her reliability, saying that she might have to have a break or lie down every hour.  She emphasised her desire not to end up on more painkillers.  Her incapacity to work as a lawyer was all about pain – see T115.

In re-examination, the plaintiff again described how giving up work had “definitely lessened the pain in my back” – see T136.  She also described how she can now arrange her day so as to be able to lie down and adjust her day if her back is hurting.  I also accept her evidence that Dr Fowler was putting pressure upon her to give up work.  She also emphasised that staying at work was “a huge struggle” – see T144.  She was taking 60 milligrams of Oxycontin over the day, together with four Panadeine Forte during the working day.  She also described at some length the effort put into improving her condition after she ceased work.  She conceded that she could do work such as testing hearing, but that would require retraining.  I note that earlier she had referred to the difficulties involved in relation to, for example, sitting in front of a computer.  She also emphasised that she would be taking narcotic medication.  Work that she performed as a lawyer would only be possible if there were gaps when she could lie down or walk and there was still the problem of medication.

In summary, as I have previously indicated, I regard the plaintiff as being a reliable witness.  I appreciate that she has said that, theoretically, she could do a small number of hours work per week under certain conditions.  I appreciate that she has shown great resolve in remaining in employment despite great difficulties.  Bearing in mind the medical opinions to which I have referred, and also taking into account the qualifications which she puts upon even a very modest capacity for part‑time employment, I remain of the view that she has no capacity for employment.

(iii)     The organisation IPAR has provided to the defendant’s solicitors a Labour Market Analysis Report.  Whether or not that organisation in fact interviewed the plaintiff appears to be uncertain.  In any event, as pointed out by Mr Ingram, the available jobs referred to in this report are as high flying as work as a corporate senior associate and special counsel with Hydrogen Group Pty Ltd with a salary that could reach $280,000 per annum.  I regard many of the suggestions in the IPAR report as being fanciful.  An earlier report apparently placed considerable reliance upon the views and recommendations of Dr Kenna, and particularly his supplementary report prepared at the request of the defendant’s solicitors, it being a report prior to which he did not review the plaintiff and where he did something approaching a complete reversal of opinion.  I am not impressed by the IPAR reports.

The plaintiff’s solicitors obtained a report from Ms Mary Kikas, whose qualifications relate to physiotherapy, ergonomics and occupational health and safety risk management.  It is a very lengthy report, and it is apparent that she in fact interviewed the plaintiff on 22 August 2015.  She has looked at some of the possible employments recommended by IPAR.  Her conclusion is that there are extremely complex challenges in relation to the plaintiff returning to meaningful employment.  She has borne in mind that the plaintiff’s condition is likely to be aggravated by returning to work and the substantial improvement which the plaintiff has demonstrated since ceasing her employment.  I prefer the conclusions reached by Ms Kikas.  They seem to me to be logical and more in accordance with my impression of the overall evidence.  What the plaintiff had been through, her endeavours to remain in employment of decreasing weekly duration and the improvement shown by her since ceasing employment are to be borne in mind.  Also to be considered are problems associated with a lack of reliability to attend at or engage in employment.  The plaintiff has understandable and considerable doubts in this regard.

(iv)     The bottom line is that this particular plaintiff has battled on in the face of enormous physical and surgical obstacles, including what could be described as a massive amount of surgery.  The treatment of her spine has resulted in interference with other bodily functions, such as those of the bowel and bladder.  Without hesitation, I accept that she had reached the point of being unable to continue in employment.  That is so despite the endeavours of the defendant to accommodate her situation.  I am quite satisfied that she has no capacity for employment and that such situation will continue for the foreseeable future.

52As I have found that the plaintiff has no capacity for employment, the comparisons set out in s134AB(38)(e) and (f) do not come into play.  Even if it were thought that the plaintiff had the capacity to engage in some form of employment for sporadic hours on an occasional basis, the onus of proof would still have been discharged.  However, there is no need for me to go into that, as I have found that she has no capacity for suitable employment.  Accordingly, she discharges the burden of proof in relation to pecuniary loss.  I might say that this includes discharging the burden pursuant to s134AB(38)(c), as a total loss of earning capacity seems to me to be something that could fairly be described as being more than significant or marked and as being at least very considerable.

(b)      Pain and suffering damages

53As the burden of proof in relation to pecuniary loss damages has been discharged, there is then no need for me to consider the situation concerning pain and suffering.  I would refer to the decision of the Court of Appeal in Advance Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court.

54I would add that, even if this were not so, the plaintiff seems to me to have clearly established that her pain and suffering consequences are more than significant or marked and are at least very considerable.  Indeed, many might consider it staggering that there was not consent to her having leave to proceed in this regard.  She has been through an enormous amount of surgical intervention.  This in turn has impacted upon her bowel and bladder condition.  She is on a very high level of medication, including opioids, and at times this has been even greater.  She has pain in the right lower limb and foot.  She has sexual dysfunction.  Her social life is restricted.  She has ongoing pain, including headaches.  Her sleep is constantly disturbed.  These, essentially, are problems which did not exist prior to her commencing employment with the defendant.  As stated, there is no necessity for me to rule upon it, but the consequences of the relevant injuries clearly seem to me to satisfy the statutory test.  Whilst this was not previously conceded, and apart from the fact that a ruling is not required following my finding in relation to pecuniary loss, I have no hesitation in saying that the burden of proof has also been satisfied in this regard.

Some further observations

55There are a few aspects of this matter which cause me some concern.  Firstly, I struggle to see why there was no concession by the defendant that the plaintiff was at least entitled to a certificate in relation to pain and suffering damages.  Without going through the enormous amount of sometimes very painful treatment, including a large amount of surgery, which the plaintiff has undergone, and without again discussing the very large and powerful medication regime on which she has been and continues to be, it is perhaps sufficient if I say that this is one of the most apparently obvious cases of entitlement to a pain and suffering certificate which I have encountered.  The very fact that the defendant essentially has paid for this enormous amount of treatment and medication and has kept the plaintiff on the maximum level of weekly payments underlines the proposition that this plaintiff has been through a great deal and that there is no great argument concerning liability for what she has suffered.  To assert that the plaintiff is not entitled to a certificate for pain and suffering seems to me to be one of those tenuous assertions which appears to be non‑compliant with the obligations of a model litigant – see the observations of Warren CJ in Solak v Registrar of Title & Ors [2011] VSCA 279 at paragraphs 85 and following. I appreciate that a forensic decision presumably was taken as to what to admit and what not to admit. However, I still struggle with the concept that this particular plaintiff did not qualify as a recipient for a pain and suffering certificate, regardless of what the situation was as far as pecuniary loss was concerned.

56Secondly, I am not overly impressed with the decision of the defendant, having received a report from Dr Kenna that was adverse to it, to forward to him, inter alia, the report of Mr Simm.  Both are Independent Medical Experts.  To obtain a further report from Dr Kenna, having sent to him, a report of Mr Simm, could be interpreted as an attempt to persuade an Independent Medical Examiner to change his opinion and provide a report more favourable to the defendant.  This is without any re-examination of the plaintiff.  Again, it is a forensic decision, which, indeed, could result in an attack in cross-examination or, as occurred in the present case, in submissions.  Perhaps, in the present case, the dubious nature of such a practice was underlined by the fact that Dr Kenna, without re-examining the plaintiff, provided a report much more favourable to the defendant.

57Thirdly, the second report of Dr Kenna, in which, within three months of providing his original report and without again seeing the plaintiff, he does what could legitimately be described as a complete reversal, has an unfortunate appearance.  In his report of 18 March 2015, the plaintiff is described as a highly motivated individual with a high work ethic, who has no current work capacity and does not even have the capacity to participate in retraining.  Without seeing her again, but having been sent the report of Mr Simm and some surveillance material (which Dr Kenna says is not inconsistent with her presentation), the plaintiff is described as someone clearly capable of suitable employment and with the problem being lack of motivation or lack of desire to return to the workplace.  Again, at trial, Dr Kenna could be cross-examined at length concerning this.  He could have been required to attend for cross-examination in the present application.  However, it is to be remembered that he is an Independent Medical Examiner.  Independent Medical Examiners, like Model Litigants, have certain obligations.  Perhaps the reports of Dr Kenna have not been expressed as well as they might have been.  It is further to be remembered that only extracts from Dr Kenna’s second report favourable to the defendant’s position seem to have been sent on to IPAR for its vocational assessment report on behalf of the defendant.

58I repeat that some of these have been forensic decisions or matters that can be the subject of cross-examination.  However, the overall impression of what has been created by the refusal to grant a pain and suffering certificate, what went on with Dr Kenna and the sending of select excerpts to IPAR does not create a happy impression.  There may be explanations for what occurred.  The defendant, the interests of which are represented by the Victorian WorkCover Authority, and Dr Kenna should be reminded of the positions that they are in and the ease with which unfavourable impressions, warranted or not, can be formed.