Webb v Victorian WorkCover Authority
[2023] VCC 398
•23 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-02732
| BELINDA WEBB | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2023 | |
DATE OF JUDGMENT: | 23 March 2023 | |
CASE MAY BE CITED AS: | Webb v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 398 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – sub-paragraph (a) - injury to lumbar spine - pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd (2007) VSCA 267
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie KC with Mr S Lean | Slater & Gordon Lawyers |
| For the Defendant | Mr E Makowski | Lander & Rogers |
HER HONOUR:
Introduction
1This is a claim by the plaintiff, Ms Belinda Webb who suffered an injury to her back whilst working for McArthur (Vic) Pty Ltd (“McArthur”), an employment agency.[1]
[1] Defendant’s Court Book (“DCB”) 22
2The plaintiff started working for McArthur in October 2015. She was contracted to work at the Hume City Council where she assisted with ‘Meals on Wheels’.[2]
[2]Plaintiff’s Court Book (“PCB”) 46
3In 2017, she experienced back pain and required time off work in late 2017 and in early 2018. In January 2018, she experienced severe pain in her back whilst carrying a tray of food.[3]
[3]PCB 47
4This is a serious injury application pursuant to section 335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff. She seeks leave of the Court to commence common law proceedings pursuant to paragraph (a) of the definition of ‘serious injury’ in section 325(1) of the Act for pain and suffering for the injury to her spine.
5The onus of proof is on the plaintiff. In Humphries v Poljak,[4] the question whether an injury is a serious injury, considers when regard is had to the consequences, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as ‘more than significant or marked, and as being at least very considerable.’
[4][1992] 2 VR 129 at 140
6The defendant conceded the plaintiff suffered a compensable injury. The defendant raised two issues in dispute. The main issue was whether the plaintiff’s impairment meets the relevant statutory threshold of being “more than significant or marked” and as being “at least very considerable” in relation to pain and suffering. The defendant’s case is that whilst the plaintiff’s consequences are significant, “they do not reach the stern legislative narrative test.”[5] The second issue was how the plaintiff’s injury was characterised.
[5] Transcript (“T”) 4-5
The plaintiff’s case
7The plaintiff provided two affidavits, dated 24 February 2022 and 27 February 2023 in support of her application. She also provided an affidavit by her housemate, Mr Luke Behrendt dated 1 March 2023.
8The affidavits disclose the plaintiff is forty-four years old. She lives with her twelve year old son and her friend Mr Behrendt. She has obtained a Certificate III in Aged Care and Home and Community Care and is a division two Nurse.
9After her injury, the plaintiff had a few months off work. She returned to work attempting some office work, but her employment was terminated by McArthur.[6]
[6] PCB 48
10Her termination was disputed in cross-examination on the basis that she resigned. It was put she was looking for work closer to home and she agreed she was having trouble with the commute, parking and petrol costs.[7] In her evidence the plaintiff stated, “I did resign…Because there is an email where I sent to Jane Nielson stating I had gained employment elsewhere.”[8]
[7] T 21
[8] T 19
11In about October 2018, she started working at Glenroy Medical Centre as a clinic nurse. She works approximately 34 hours per week, from Monday to Friday and on Saturdays. Her tasks include patient assessments, care plans and pre and post-natal care. She described it as light work that is not physically demanding. However, she would have preferred to work in a hospital, as a theatre nurse but does not believe she would now be capable of doing that work because of her injury.[9]
[9]PCB 48-49
What is the nature of the plaintiff’s compensable injury?
Medical evidence
12The plaintiff’s general practitioner, Dr Deepakanthi Wijayathilaka prepared a report dated 1 March 2023. She diagnosed the plaintiff as suffering from ongoing lower back pain with radiculopathy. She noted her CT scan shows “L1S1 (sic) disk protrusion with nerve impingement which explains her symptoms back pain with radiculopathy”.[10]
[10] PCB 60
13Ms Samantha Baxter, osteopath, treated the plaintiff between 10 November 2020 and 18 December 2020. She prepared a report dated 18 March 2021. Her working diagnosis is the plaintiff has a “chronic L5/S1 disc bulge with associated hypertonic left periformis.”[11] She noted her long term prognosis as poor due to the impact of her activities of daily living (sitting or standing in one position) and the chronic nature of her pain.
[11] PCB 57
14Dr Hazem Akil, neurosurgeon, prepared a medico-legal report dated 6 December 2022. Dr Akil reviewed the CT scans from 2018 and 2019 and he observed both images showed a disc prolapse at the level of L5/S1 with the displacement of the descending right S1 nerve root. He also noted evidence of spondylosis.[12]
[12]PCB 69
15Dr Akil diagnosed the plaintiff as having an “aggravation of lumbar spondylosis caused by her duties at work, which involved repetitive lifting, bending, pushing as well as pulling.”[13] He was of the opinion her prognosis is guarded.
[13] PCB 69
16Mr Kevin Siu, a neurosurgeon, prepared a report dated 10 January 2023 for the defendant.
17He diagnosed the plaintiff with an “unresolved symptomatic low back pain following a soft tissue injury in 2017/2018. The soft tissue injury has resolved.”[14] In his view, the employment was “not a significant contributing factor nor it caused her aggravation, acceleration and exacerbation of the degenerative condition at L5/S1.”[15]
[14] DCB 13
[15] DCB 13
18Associate Professor E Romas, consultant rheumatologist prepared a medico-legal report for the insurer dated 8 July 2021. He diagnosed the plaintiff with unresolved aggravation of lumbosacral (L5/S1) disc degeneration with no clinical radiculopathy.[16] He confirmed the MRI imaging reported a right L5/S1 disc protrusion impinging on the right S1 nerve root.[17]
[16] DCB 16
[17] DCB 15
19Dr David Barton, consultant occupational therapist assessed the plaintiff and prepared a report dated 22 June 2018. His view was she initially may have had some mild soft tissue discomfort and believed the physical problem had since resolved.[18] Although he refers to reviewing diagnostic investigations, they are not specified.
[18] DCB 23
20The plaintiff had a CT scan of her lumbar spine on 30 January 2018, the report commented:
“Right paracentral posterior disc herniation L5/S1 which impinges the budding S1 nerve root. No cause for the described left sided symptoms detected. Clinical correlation suggested.”[19]
[19] PCB 76
21On 7 February 2018, the plaintiff had an MRI scan of her spine. The report concluded:
“1. L5-S1 disk degeneration with a focal right paracentral focal disk protrusion causing impingement of the right descending S1 nerve root.
2. No other significant abnormality detected.”[20]
[20] PCB 74
22The CT scan identified the herniation or L5/S1 disc bulge. The MRI found L5/S1 disc degeneration with a focal right paracentral disc protrusion causing impingement of the right descending S1 nerve root.
23The radiology reports a disc prolapse at L5/S1. I accept the evidence of Dr Akil and Associate Professor Romas there is an organic basis for the plaintiff’s injury which is in the form of an aggravation of an underlying degenerative back pathology which was previously asymptomatic.
Do the consequences meet the test for a serious injury?
24As previously noted, the onus of proof is on the plaintiff and the relevant test is in Humphries v Poljak.[21]
[21][1992] 2 VR 129 at 140
25The experience of pain and the four factors to consider in its evidentiary assessment are referred to Haden Engineering Pty Ltd v McKinnon,[22] however I also note that the assessment of pain and suffering consequences “is a question of fact, degree and value judgment”.[23]
[22] [2010] VSCA 69 at [11]
[23] [2010] VSCA 69 at [51]
Pain
26In the plaintiff’s first affidavit, she states she experiences constant low back pain which is either a stabbing pain or an ache. She has pain and aching pain in her left leg and spasms in her lower back.[24]
[24]PCB 49
27The long-term consequences for the plaintiff include that she has difficulty bending, lifting, twisting, standing and sitting for long periods as well as lifting heavy items. She also has difficulty sleeping because of pain.[25]
[25]PCB 49
28Prior to her injury, she was very active and fit and would go to the gym. She has since gained 30 kilograms in weight. [26]
[26]PCB 49
29She has difficulty driving for long periods, bringing her garbage bins in, as well as gardening for which she now needs help.[27]
[27]PCB 49
30She is less physically able, and the injury has affected her ability to have an intimate relationship. She is very self-conscious about her body. She is no longer able to run as it is too painful.[28]
[28]PCB 50
31Although her work is lighter than her previous employment, sitting and standing is difficult and she has to push herself to work, which takes a lot of her energy. She believes her career options are now limited which is upsetting for her. [29]
[29]PCB 50
32She has difficulties shaving her legs. In terms of housework, she has difficulties with cleaning, such as vacuuming, washing the floors, and cleaning the shower. This is due to the bending involved with these tasks.
33She struggles to be an active and involved mother. She used to play sports with her son and take him on drives and other outings. She also stated she “used to be very involved in his football games and was sometimes a runner and first aider. I am no longer able to do this.”[30]
[30] PCB 50
34In her second affidavit, she confirmed the pain and consequences from her first affidavit. She noted her sleep was disrupted. The pain often wakes her at night, and she is consequently exhausted during the day.[31]
[31]PCB 11
35She has difficulty going to the gym. She was very fit and active prior to her injury and was going to the gym five to six days a week. She has found it hard to be active since the injury and has “gained about 30kg since my injury, which makes me feel very badly about myself. I find this really upsetting.”[32]
[32] PCB 11-12
36The plaintiff was cross-examined about her pre-injury activities. She found it difficult to be precise in her evidence and could not recall when she went to the gym. The injury occurred in late 2017 and early 2018, however she did not know if she went to the gym in 2017.[33] She did not know if she went to the gym whilst she was working with Meals on Wheels, stating, “My days were very busy”. She further stated during this time “I was still fit, I was still exercising”.[34] She could not say if she was running regularly at that time but stated, “I used to be active, yes.”[35] She agreed she would run on the weekends, “there was a park down the road”, but could not be more specific about the name of the park or how regularly she ran, stating she would run, “at times”, whenever she could.[36]
[33] T 24
[34] T 24
[35]T 25
[36] T 25
37In re-examination, the plaintiff explained she went to the gym when her son was in kindergarten in 2015. She would go to the gym after university and after work, and on the weekend she could take her son with her. From when he started school until late 2017, she estimated she went to the gym two or three days a week if she could manage it.[37]
[37] T 46-47
38The plaintiff was also cross-examined about her weight gain. The report of Dr David Barton dated 22 June 2018 states on examination, her weight was 81 kilograms.[38] This is about six months after the work injury. In the report by Associate Professor E Romas dated 8 July 2021, he also noted she weighed 81 kilograms.[39]
[38] DCB 22
[39] DCB 16
39It was suggested these reports indicate between June 2018 and 8 July 2021 her weight remained the same.
40The plaintiff was taken to an entry from 20 January 2019 by general practitioner, Dr Peter Bakhoum which noted “Lost 16 kgs – on good diet and exercise.” In cross-examination the plaintiff had no memory of this or what diet and exercise she was doing.[40] In re-examination, she recalled at the time she was “eating better.”[41]
[40] T 30-31
[41] T 48
41In re-examination, the plaintiff stated prior to her back injury, she weighed between 50 and 54 kilograms.[42] She put the weight on when she was using crutches and agreed from experiencing back pain in August 2017, she put on 30 kilograms. By July 2018, she was assessed by Dr Barton and weighed 81 kilograms.[43] She now estimates her weight is 72 kilograms.[44]
[42] T 47
[43] T 47
[44] T 48
42She has moved somewhere that does not have a yard.[45] In cross-examination, she stated she has garden “patches” and that she can pull out weeds.[46]
[45] PCB 12
[46] T 43
43Intimate relations cause her pain, and she has very negative feelings about her body and is self-conscious.[47]
[47] PCB 12
44In terms of tasks around the house, her son “helps out a lot” with the cleaning, such as loading and unloading the dishwasher, he cleans the shower base and other tasks involving bending.[48]
[48] PCB 12
45She used to play sports with her son and take him to drives and outings. They used to hike, rock climb, play laser tag and go bowling, which they do rarely now. This is because the plaintiff is limited in the things she can do, which she finds heartbreaking.[49]
[49] PCB 12
46In cross-examination, she could not recall if she was rock climbing when she was doing Meals on Wheels, but stated she was an active person.[50]
[50] T 39
47In her second affidavit, she stated last year when her son played football, she volunteered as a first aider but had to take pain killers before the games and have the children brought to her, rather than going to them.[51]
[51] PCB 12-13
48The plaintiff finds lifting heavy bags of groceries difficult and leads to increased back pain.[52]
[52] PCB 13
49As she finds it hard to socialise when she is in pain, she goes out much less often than she used to. In cross-examination, she said she still socialises, although rarely sees friends on the weekend, and that her social life comprises of “phone calls”.[53] She agreed she could take her son on outings on the weekend.[54]
[53] T 43
[54] T43-44
50For the sake of her son, at times she pushes herself to be active, but she will “pay for it with a lot of pain afterwards. I usually have to resort to painkillers and a lot of rest.”[55]
[55] PCB 13
Current treatment
51Following her injury, she has been treated by general practitioners at Gap Road Medical Centre and Goonawarra Medical Centre. She first saw Dr Wijayathilaka on 9 April 2018.
52In her first affidavit dated 24 February 2022, she noted she had treatment from an osteopath and a physiotherapist. She would like more osteopathic treatment but cannot afford it. She has also had hydrotherapy.[56]
[56] PCB 48
53The plaintiff’s treatment then comprised of regular consultations with her general practitioner, two to four Panadeine Forte tablets per day, 5 mg of Diazepam at night, as well as regular use of ointments and rubs.[57]
[57] PCB 48
54In her second affidavit dated 27 February 2023, the plaintiff noted she has continued with the same treatment, seeing her general practitioner regularly, however her medication regime has increased.[58]
[58] PCB 10
55Her Panadeine Forte intake has increased to usually four to six tablets per day. She also now takes Panadol, two to four tablets per day. Although she tries to limit her use, she takes Endone (an opioid pain relief) as needed when she has flare ups, as well as Imovane (for sleeping) as required, although she tries to limit her use. She still takes Diazepam, regularly uses ointments and rubs, as well as heat packs and cold packs and does regular home exercises and stretches.[59]
[59] PCB 10
56The plaintiff’s evidence regarding her pain medication regime was subject to scrutiny in cross-examination because she did not mention in her affidavits having previously been prescribed Panadeine Forte for migraines.
57In her first affidavit, she stated she usually took two to four Panadeine Forte per day for her back pain. She stated in cross-examination, the minimum she would have after work is three and agreed she would have three or four after work.[60] She also agreed she has used Panadeine Forte extensively, for many years and prior to her back injury for migraines. Her migraines are related to her hormones.[61]
[60] T 9
[61] T 12
58The pre-injury excerpts of general practitioner records from Goonawarra Medical Centre, indicated the plaintiff was prescribed Panadeine Forte on 3 February 2014 and 2 April 2014 (2 tablets dosage every six hours for her migraines). Panadeine Forte for her migraines was prescribed at consultations on 18 December 2015 (2 tablets), 5 March 2016 (2 tablets as needed), 11 April 2016 (Migraine management plan, 1 tablet dosage every six hours) and 23 June 2016 (2 tablets dosage every six hours). Further, Panadeine Forte was prescribed for headaches on 25 October 2016 (1-2 tablets as required) and 10 November 2016 (2 tablets dosage every six hours). On 6 December 2016, Panadeine Forte was prescribed for a sore throat (2 tablets dosage every six hours). Further, Panadeine Forte was prescribed for headaches on 2 February 2017 (2 tablets) and 22 March 2017 (2 tablets dosage every six hours) and 7 April 2016 for urine symptoms (2 tablets dosage every six hours). On 29 August 2017, her medication had been stolen and she was prescribed Panadeine Forte (2 tablets dosage every six hours) for tooth pain and sleep.
59The pre-injury excerpts of general practitioner records from the Gap Road Medical Centre show the plaintiff was prescribed Panadeine Forte for migraine on 21 March 2016 (1-2 tablets every 4 hours) and for reason not noted on 28 July 2016 (1-2 tablets every 4 hours) and for migraine on 9 January 2017 (1-2 tablets every 4 hours).
60The approximate date of the plaintiff’s injury was late 2017 to early 2018, I note the records from Goonawarra Medical Centre indicated the plaintiff on 29 September 2017 attended for care plan preparation and repeat prescription noting history of ongoing left shoulder and neck pain causing headaches and was prescribed Panadeine Forte (1 tablet twice daily), on 22 November 2017 she attended for a repeat prescription and was prescribed Panadeine Forte (2 tablets), on 12 January 2018 she attended for repeat scripts noting history of neck pain and migraine and was prescribed Panadeine Forte (2 tablets dosage every six hours), on 9 April 2018 she attended noting history of hurt back at work and was prescribed Panadeine Forte (2 tablets dosage every six hours). On 29 May 2018, she reported her migraine and was prescribed Panadeine Forte (2 tablets dosage every six hours). On 9 August 2018, she attended for a repeat script for her headaches and was prescribed Panadeine Forte (2 tablets dosage every six hours).
61On 20 September 2018, she had an upper respiratory tract infection and as prescribed, in addition to antibiotics, Panadeine Forte (2 tablets dosage every six hours). On 18 November 2018, she had difficulty sleeping and was prescribed, amongst other things, Panadeine Forte (2 tablets dosage four times a day). On 5 September 2019 for repeat scripts for headaches, she was prescribed Panadeine Forte (2 tablets dosage four times a day). On 30 October 2019, for sciatic pain she was prescribed Panadeine Forte (2 tablets dosage every six hours). On 5 February 2021, reporting a history of work-related injury she was prescribed Panadeine Forte (2 tablets dosage every six hours). On 22 March 2021, she requested a repeat prescription and was prescribed Panadeine Forte (2 tablets dosage every six hours). On 13 May 2021, she was suffering chronic back pain and was prescribed Panadeine Forte (2 tablets dosage every six hours). On 9 July 2021, she sought repeat scripts for back pain and was prescribed Panadeine Forte (2 tablets dosage every six hours). On 26 August 2021 and 14 October 2021, she requested repeat scripts and was prescribed Panadeine Forte (2 tablets dosage every six hours).
62From the post-injury records from Gap Road Medical Centre, on 22 May 2018 her history was Workcover and back pain has deteriorated and she was prescribed Panadeine Forte (1-2 tablets dosage four times a day as required for pain). On 12 June 2018, for reason not stated, she was prescribed Panadeine Forte (1-2 tablets dosage four times a day as required for pain). On each of 26 June 2018 and 7 July 2018, 16 July 2018 and 30 July 2018 she attended the doctors who recorded history; Workcover or chronic pain and she was prescribed Panadeine Forte (1-2 tablets dosage four times a day as required for pain). Further, on 30 October 2018 she was prescribed Panadeine Forte (1-2 tablets dosage four times a day as required for pain), and on 20 January 2019, for back pain she was prescribed Mobic, 15 mg twice a day as needed after meals.
63The above information is taken from selected excerpts from the plaintiff’s medical records from Goonawarra Medical Centre (as at 21 September 2022) and Gap Road Medical Centre (as at 15 June 2022) tendered by the defendant. The Gap Road Medical Centre records noted as at 15 June 2022, the plaintiff’s current medication was Diazepam, Mobic and Panadeine Forte.[62]
[62] Exhibit D-B Extracts of Progress Notes tendered by the Defendant.
64The excerpts from the pre-injury records show attendances at the doctors where Panadeine Forte has been prescribed for migraines and headaches, as well as for sore throat, tooth pain, urine symptoms and reasons not stated. Post-injury excerpts show the plaintiff has attended for Panadeine Forte prescriptions for shoulder and neck pain causing headaches, back pain, migraine, headache, upper respiratory tract infection and repeat prescriptions for chronic back pain.
Medical evidence regarding pain
65A report from the plaintiff’s treating general practitioner, Dr Wijayathilaka dated 1 March 2023 noted the plaintiff has presented with ongoing back pain for which she has prescribed her pain relief but provides no details. There is no reference to referring her to a pain clinic or specialist.[63]
[63] PCB 60
66Dr Wijayathilaka notes the plaintiff’s physical activities are very limited due to her symptoms, she is unable to push, pull or lift heavy items, and is unable to do repetitive activities involving the spine.
67In a report dated 18 March 2021, her treating osteopath Ms Baxter stated the plaintiff is experiencing symptoms such as acute non-specific neck and thoracic pain intermittently, when her lower back pain is increasing.[64] Although noting it was outside her scope, Ms Baxter recommended the plaintiff to a chronic pain educator or a pain psychologist.[65]
[64] PCB 57
[65] PCB 58
68In cross-examination, the plaintiff stated she did not know what a pain management course was or what a pain clinic actually is.[66] She gave a series of answers which were difficult to follow. For example, when asked if she had raised the issue of going to such a clinic with her general practitioner she stated “I don’t believe so” and when asked why, stated “I’m not a doctor.” She seemed bemused by the suggestion, and when asked if it was recommended, she stated, “I can’t say yes or no…I don’t know. It hasn’t been brought up before.”[67]
[66] T 40
[67] T 42
69The plaintiff’s answers about pain management appear at odds with her nursing qualification and current role as a clinic nurse.
70Further medical evidence about the plaintiff’s pain is contained in the medico-legal reports.
71In Dr Hazem Akil’s first report dated 6 December 2022, he notes the plaintiff’s symptoms as, firstly, persistent lower back pain affecting the lumbosacral region radiating to the left side. The pain increases if she sits or stands for more than 20 minutes. She can walk but getting up in the morning is very difficult. Secondly, she continues to have left leg pain. It starts in her buttock and radiates to the left calf. There is sometimes pain on the left sole of the foot if she sits longer than 20 minutes. Thirdly, when the pain is very severe it is accompanied by episodes of urinary frequency.[68]
[68] PCB 68
72Dr Akil notes she is taking Diazepam, Panadeine Forte for the pain, and Endone.[69] He recommended a further MRI scan as well as referral to a specialist spine surgeon specialist, neurosurgeon and orthopaedic surgeon. He recommended a pain specialist review and a psychiatrist review.[70]
[69] PCB 68
[70] PCB 69
73Mr Kevin Sui, neurosurgeon, prepared a medico-legal report for the defendant dated 10 January 2023. He noted the plaintiff reported; pain present in her low back all the time which is severe at 7/10 and for a few hours in a week it might drop to 4/10. The pain radiates down the left side, from the buttock to the calf. She has pins and needles in her left foot, as well as a stabbing type of pain.[71] As of January 2023 he noted she was taking two to four Panadol a day with six Panadeine Forte a day and occasional Endone (last taken three months prior.)[72] In terms of treatment or management, he recommended she attend a pain management course.
[71] DCB 9
[72] DCB 11
74Associate Professor E Romas assessed the plaintiff for the defendant and prepared a report dated 8 July 2021. He described her pain as “low back pain spreading to the left posterior thigh region and sometimes the toes. The pain was sharp.”[73] He noted she was taking “diazepam for back spasms. Sometimes she will take Panadeine Forte at night, to settle.”[74] In cross-examination, the plaintiff denied stating this to Professor Romas. In his opinion, conservative non-operative management has been appropriate.[75]
[73] DCB 15
[74] DCB 16
[75] DCB 16
75Dr Ivan Bhaskar recommended the plaintiff have an epidural injection to assist with her back pain. She was cross-examined as to why she had not taken up this option. She stated it was because he had not explained either the short or long-term outcomes, for example that she could not drive following the procedure, nor that there would be ‘down time’ following the procedure. [76] She ultimately explained she elected not to have the procedure because she is a single parent and down time affects “everybody differently so there is no absolute answer.”[77] She later described the intervention as “extremely scary and unknown.”[78]
[76] T 22
[77] T 23
[78] T 30
Other evidence about pain
76The plaintiff’s house mate, Mr Luke Behrendt prepared an affidavit dated 1 March 2023. He is a long-term friend and has known the plaintiff for 25 years. He recalled prior to her injury she was very active and noted she has gained a lot of weight since her injury.[79]
[79] PCB 15-16
77He noted the plaintiff does not go to the gym or socialise much. She usually comes home after work and has a rest. He further stated:
“When I see her, she is often lying down. It is clear to me that she is in a lot of pain. Not only does she tell me this, but I can see it from her facial expressions and her actions.”[80]
[80] PCB 16
78He helps with tasks such as washing, grocery shopping, helping with her son and washing her car. He does a lot of the ‘domestic responsibilities’ such as cleaning, vacuuming, mopping, mowing the lawn and taking out the garbage bins.[81]
[81]PCB 16
79He noted the plaintiff says she is completely exhausted when she gets home from work, and he states the plaintiff’s light or TV is often on late at night and she does not sleep well.[82] She rarely cooks and often eats take away meals. He noted she does not take the same level of care with her appearance as she did pre-injury.[83]
[82] PCB 16
[83] PCB 17
80The plaintiff made no mention in her affidavits about Mr Behrendt living with her and helping with the cleaning. When asked why not, she answered, “I can’t speak to that.”[84]
[84] T 43
Employment
81The plaintiff is a qualified nurse. In October 2018, she started working at the Glenroy Medical Centre as a clinic nurse and she works 34 hours a week. She performs assessments, care plans, and pre and post-natal care.[85]
[85] PCB 48
82The job is light and not physically demanding.
83She was cross-examined about her work, and explained she was a practice nurse working seven hours a day, Monday to Friday and she has worked on Saturdays for the last six months.[86] Patients assessments are blocked at 40-minute intervals. She takes patients measurements and family histories, “a lot of sitting at the computer and clicking buttons.”[87]
[86] T 31-32
[87] T 32-33
84Her duties also include immunisations and pre and post-natal care. She described that physically, sitting, standing, and moving all take a toll on her. She could not say how much of her day is spent seated or standing, “if my leg is hurting or if my back is hurting I will get up and talk to the patient as I’m doing that.”[88]
[88] T 34
85She was asked whether her current work was, as described in Associate Professor Ramos’ report as ‘more appropriate to her nursing skills’. She did not recall stating that and did not agree that her current work was more appropriate to her nursing skills, or that she got the job particularly for her nursing skills.[89]
[89] T 37
86These answers appear to be at odds with the plaintiff’s qualifications as a division two nurse and her role as a clinic nurse in a medical centre.
Analysis of impairment consequences
87The plaintiff’s credit was not attacked but she was an unresponsive witness who struggled to articulate. Some of her answers were confusing. Her counsel submitted she was very nervous. She was not straightforward or forthcoming in her evidence but became more so in re-examination.
88My reservations of her as a witness impact the weight I give to her pain medication regime as well as the extent of her engagement in fitness activities pre-injury.
Employment
89The plaintiff works 34 hours a week as a clinic nurse doing physically light work. The evidence suggests she is completely exhausted when she gets home, and that work takes all her energy. Mr Behrendt’s affidavit confirmed the plaintiff is “completely exhausted” most days when she gets home from work.
90I note in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at [47], the Court of Appeal stated:
“…if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”
91The fact the plaintiff is able to work is relevant to the question whether the pain and suffering consequence of the injury is ‘serious’, but it is not determinative, and it is necessary to consider the evidence as a whole.[90]
[90] Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [26] (Ross AJA)
92I also take into account Haden Engineering Pty Ltd v McKinnon,[91] where the President of the Court of Appeal noted “the cases recognise that some plaintiffs may be more ‘stoical’ than others,” and that the injury is not to be viewed as any less serious merely because he or she manages to remain more active than might have been expected given the level of pain. It could be said, in effect, a plaintiff is “prepared to put up with his pain and suffering and get on with his business as best he can”.[92]
[91][2010] VSCA 69 at paragraph [13] (Maxwell P)
[92] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3] (Nettle JA)
93I take into account the plaintiff’s stoicism.
94The plaintiff states she has lost potential future career opportunities. The fact she is working as a clinic nurse and is a qualified division two nurse supports her reported desire to work in theatre in a hospital.
95I take into account the plaintiff’s disappointment and frustration at her now limited career options, as part of assessing her pain and suffering.
Medication
96The plaintiff’s evidence in her second affidavit was she takes four to six Panadeine Forte per day for her pain.
97As mentioned, her medication regime was challenged on the basis that her general practitioner records show that she had been taking Panadeine Forte for migraines since 2014 and there is no mention of this in her affidavits.
98The plaintiff’s other pain medication includes two to four Panadol per day and Endone, a strong opioid, as needed for flare ups.
99At a minimum, these figures suggest she is taking at least 42 tablets a week, not including the Endone.
100I take into account Dodds-Streeton JA in Kelso v Tatiara Meat Co Pty Ltd,[93] where her Honour stated:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[93] (2007) VSCA 267 at [199]
101The plaintiff’s treatment comprises of seeing her general practitioner regularly, her medication regime, as well as regular use of ointments and rubs.
102The analysis of the selected records from her general practitioners shows a long history of Panadeine Forte use for multiple ailments pre and post-injury. Although there are repeated prescriptions for chronic back pain, it is not possible to identify her back injury pain as the sole source of her Panadeine Forte usage. The amount of opioid medication she is consuming is at odds with her not having been referred to a pain specialist or program. Mr Sui, Ms Baxter and Dr Akil all suggest this course. The plaintiff could not recall discussing potential addiction problems with her doctor regarding Panadeine Forte although she thought she had discussed Valium.[94]
[94] T 44
103Whilst the requirement to take frequent pain medication is an indicator of a ‘very considerable’ consequence, the evidence supports significant use prior to the injury and a number of factors as reasons for the plaintiff’s current consumption.
Enjoyment of life
104The plaintiff is particularly affected by the effect of pain upon her enjoyment of life.
105The physical pain has affected greatly upon many aspects of her life such as her ability to bend, twist, lift, as well as stand and sit for long periods. She has difficulty sleeping and driving long distances as well as performing household tasks such as cooking (she admitted to ordering a lot of takeaway meals), and cleaning.
106Mr Siu in his report dated 10 January 2023 noted that “she is certainly very unhappy”.[95]
[95] DCB 11
107She suffers through work and is exhausted by it.
108The most striking of impacts is on her parenting role. She was greatly affected by the role her pain has had on her relationship with her son and her ability to be an active and engaged parent.
109She used to play sports with her son and take him on drives and outings. She describes her limitations now as “heartbreaking”. In her first affidavit she stated she was no longer able to be a runner or first aider at his football games. In her second affidavit she stated she was able to do first aid last year (with modifications and medication) and in cross-examination she stated she was still able to take him on outings.
110In terms of enjoyment of life, the plaintiff described herself as struggling with feelings of anger, frustration, and depression. In her second affidavit, she repeated this and describes herself as “shorter tempered” and that her son calls her “angry mum” which she finds upsetting.[96]
[96] PCB 11
111I accept as a sole parent her options are more limited regarding both work and partaking in activities which cause her pain.
Conclusion
112I give less weight to the significance of the amount of pain medication consumed by the plaintiff. Her consumption of Panadeine Forte pre-injury was significant and whilst she clearly takes it for back pain there are also other reasons.
113The plaintiff is stoic and disappointed about lost career options. I take that into account as part of her pain and suffering. However, the plaintiff is working six days a week in a job which is suited to her nursing qualifications (although she did not concede this).
114She has put on weight and can no longer do the physical activity she used to pre-injury. In my view, her evidence was vague when pressed about the details of her pre-injury exercise regime. She has not established either the extent of her pre-injury exercise regime or that the loss was a serious consequence for her.
115She can attend her son’s football games, and last year volunteered in first aid despite some challenges. She agreed she can still take him on outings on the weekend.
116Her pain impacts on her performance of household and cleaning tasks, her sleep, and her lack of enjoyment of life. She can cook and drive to the supermarket.
117I note the significance of what is lost can be informed, to an extent, by what is retained.
118Her prognosis is poor, and her symptoms have not improved since 2018. I accept her condition is permanent for the foreseeable future.
119I accept the consequences for the plaintiff are significant, however taking all the evidence into consideration she has not discharged her burden. When judged in comparison with other cases in the range of possible impairments and losses, I am not satisfied the consequences can fairly be described as more than significant or marked, and as being at least very considerable.
120The proceeding is dismissed.
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