Westen v Victorian WorkCover Authority
[2025] VCC 193
•6 March 2025
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-03209
| MICHELLE ANN WESTEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 30 and 31 January and 3 February 2025 | |
DATE OF JUDGMENT: | 6 March 2025 | |
CASE MAY BE CITED AS: | Westen v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 193 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr B Johnson | Arnold Thomas & Becker |
| For the Defendant | Mr A Saunders with Ms C Kusiak | IDP Lawyers |
HER HONOUR:
Introduction
1Ms Michelle Westen, the plaintiff, is a forty-eight-year-old accountant. She claims to have suffered an injury to her lumbar spine in an incident that occurred on 26 September 2019 (“the work incident”) while working as a cashier at a Caltex service station.
2Ms Westen seeks leave to bring a common law proceeding for pain and suffering damages pursuant to the Workplace Injury Rehabilitation and CompensationAct 2013 (Vic) (“the Act”). Her claim is that she has a “serious injury” to her lumbar spine.
3To succeed, Ms Westen must establish that the permanent impairment consequences arising from her compensable lumbar spine injury are “serious”. That is, that the impairment consequences can be fairly described as being “more than significant or marked” and as being “at least very considerable”.
4The Victorian WorkCover Authority (“the VWA”), the defendant, accepted that Ms Westen suffered a compensable injury to her lumbar spine. The VWA contested the proceeding on the basis that Ms Westen was not a credible and/or reliable witness, that Ms Westen had not satisfied her onus to disentangle the impairment consequences of an unrelated left ankle condition. Further, the VWA submitted that the impairment consequences of the compensable lumbar spine injury did not satisfy the statutory threshold.
5The issues for determination are:
(a) Was Ms Westen a credible and/or reliable witness?
(b) What are the permanent impairment consequences of Ms Westen’s compensable lumbar spine injury?
(c) Are the permanent impairment consequences “serious”?
6The relevant legal principles are well known and were not in dispute.
7For the reasons that follow, I am not satisfied that Ms Westen has established that the permanent impairment consequences of her lumbar spine injury are “serious”.
Background
8The following, I believe, are uncontroversial matters. As far as any were contested, these represent my findings unless otherwise stated.
9In 1994, Ms Westen completed Year 12 at Mater Cristi College, Belgrave. She then began an accountancy degree. At the same time, she worked as a shop assistant for Safeway. At some unspecified time, Ms Westen dropped out of her university studies.
10On 28 January 1996, when aged nineteen years, Ms Westen was involved in a transport accident. She was riding a motorcycle and was struck by a vehicle and thrown from her motorcycle. She suffered an injury to her neck and left ankle.
11In August 1996, Ms Westen underwent left ankle ligament reconstruction surgery performed by Mr David Chamberlain, orthopaedic surgeon.
12On 25 March 1999, Ms Westen was involved in a second transport accident in which she aggravated her previous neck injury.
13In July 1999, Ms Westen left her employment with Safeway and obtained work as a postal delivery worker for Australia Post. She also performed weekend work, initially for JB Hi-Fi and subsequently for the Good Guys.
14In 2003, Ms Westen came under the care of Mr Peter Lugg, orthopaedic surgeon, for her left ankle condition.
15Mr Lugg performed the following surgeries on Ms Westen’s left ankle:
(a) In August 2003, an arthroscopy and chondroplasty of the lateral talar dome;
(b) In August 2004, a medial malleolar osteotomy and medial talar dome debridement;
(c) In March 2005, medial malleolar screw removal;
(d) In June 2010, an arthroscopic debridement of talar and tibial plafond chondral damage affecting two thirds of the lateral plafond;
(e) In August 2010, a debridement of the medial wound, joint washout and chondroplasty.
16In 2011, Ms Westen stopped working for Australia Post. She obtained part-time employment at a BP service station and also worked for Coles.
17In mid-2012, Ms Westen left her employment with BP and Coles and obtained work on a production line at a milk product manufacturing company. She stayed in that employment for about six months.
18In July 2013, Ms Westen started working part time at the Caltex service station in Longwarry at which the work incident occurred. She generally worked from 7.30am to 3.00pm on Mondays, Thursdays and Fridays.
19Ms Westen continued to have difficulties with her left ankle.
20In January 2015, Mr Lugg performed an open reduction internal fixation with bone grafting of the medial malleolar non-union with an “LMT plate”.
21In about 2016, Ms Westen began an online degree in accounting. She did this because she believed that she needed to retrain to obtain sedentary employment because of the ongoing difficulties caused by her left ankle condition. She expected to complete her studies in about 2020.
22In January 2017, Mr Lugg performed a revision fixation and bone grafting of the medial malleolar non-union with an “LMT plate” and cannulated screws.
23In September 2018, Ms Westen consulted Mr Hamish Curry, orthopaedic surgeon, regarding her left ankle. Mr Curry recommended weight-bearing x-rays, a CT scan and an ultrasound scan be performed.
24On 12 November 2018, Ms Westen attended Mr Curry again with imaging results.
25Mr Curry diagnosed post-traumatic left ankle arthritis with medial malleolar osteotomy non-union. Mr Curry reported:
“I explained to her that I would not recommend revision fixation unless she developed failure of the fixation or increasing pain that could be attributed to the fixation.
I also did not feel an ankle joint debridement at that stage was going to change her function significantly.
I recommended simple pain relief, activity modification and continued retraining in a sedentary job.”[1]
[1]Plaintiff’s Court Book (“PCB”) 53
26In January 2019, Ms Westen consulted Mr Otis Wang, orthopaedic surgeon, regarding her left ankle.
27No report from Mr Wang was tendered.
28As I have said, the work incident in which Ms Westen suffered the injury to her lumbar spine occurred on 26 September 2019. In the work incident, Ms Westen tripped on the raised edge of an anti-fatigue mat. She fell forward, striking her right shoulder and arm on a countertop and her knees on a safety step she was carrying. She developed lower back pain.
29On 10 October 2019, Ms Westen had an x-ray of her right shoulder, her lumbosacral spine, her right forearm and right femur.
30In October 2019, Ms Westen started having physiotherapy for her lumbar spine condition.
31On 15 October 2019, Ms Westen swore an affidavit in support of an application pursuant to s93 of the Transport Accident Act 1986 (“the TAC affidavit”). She sought a determination that she had suffered a “serious injury” of her left ankle because of the transport accident on 28 January 1996.
32In the TAC affidavit, Ms Westen deposed as follows regarding Mr Wang’s then opinion:
“… He too informed me that I might ultimately come to a fusion operation although indicated that it may be preferable first to take the plate out of my ankle and see if that made any difference. In saying that, however, he indicated that whilst performing that procedure, if warranted, he might go onto (sic) perform a fusion at the same time, which I am not inclined to risk at this stage.”[2]
[2]Defendant’s Court Book (“DCB”) 110-111
33In the TAC affidavit, Ms Westen deposed to the pain, restrictions and impairment consequences from which she suffered by reason of her left ankle injury.
34On 22 November 2019, Ms Westen had a CT-guided epidural injection at L4-5.
35The evidence was sparse regarding the extent to which Ms Westen worked for Caltex after the work incident and when that employment ceased. Doing the best I can, it appears that Ms Westen had a period of time off work, and a period working modified duties on reduced hours.
36In April 2020, Ms Westen underwent further surgery to her left ankle, performed by Mr Wang. This was a further ankle reconstruction.[3]
[3]Transcript (“T”) 19
37It was not clear from the evidence how long Ms Westen was unable to work following that further ankle surgery.
38Ms Westen appears to have been awarded her degree in accountancy in early 2021. At some point thereafter she began working as an accountant on a part-time basis.
39Ms Westen was referred to Dr Hazem Akil, neurosurgeon, for treatment of her lumbar spine injury. Dr Akil advised that Ms Westen did not require surgery.
40Ms Westen’s lumbar spine injury has been treated conservatively. She has had physiotherapy, chiropractic and osteopathic treatment.
41Ms Westen currently attends a chiropractor and osteopath. She takes Endone and Zopiclone “sparingly”.[4]
[4] T11
42At the time of the hearing, Ms Westen was working 30 hours a week as an accountant, and an average of 10 to 15 hours a week auditing a self-managed superannuation fund. She lives with her young daughter in Longwarry, Victoria.
Was Ms Westen a credible and/or reliable witness?
43The Court of Appeal has observed on many occasions that the credit and/or reliability of a plaintiff will often be of critical importance in an application such as this. It can be significant when assessing what a plaintiff has said about his or her impairment consequences in court and to doctors. Further, medical opinions reliant upon a plaintiff’s account of symptoms may be of reduced weight if a plaintiff is shown to be an inaccurate historian or prone to exaggeration.[5]
[5]Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [74]; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
44The VWA made a sustained attack upon Ms Westen’s credibility. Leading Counsel for the VWA put this on four bases:
(a) Aspects of Ms Westen’s evidence were “patently false and deliberately so”;[6]
(b) Ms Westen’s evidence was non-responsive at times, and she was keen to highlight matters which she believed assisted her case rather than truthfully answer the questions asked;
(c) Ms Westen was evasive at times;
(d) The TAC affidavit made no reference to the work incident and lower back injury despite being sworn two weeks or so after the work incident.
[6] T53
45Senior Counsel for Ms Westen submitted that Ms Westen’s credit was intact. It was submitted she was doing her best in her evidence to recall the state of her ankle before the work incident, and before the April 2020 surgery, and the state of her back since then. Senior Counsel submitted that the relevant events were five or six years ago, and Ms Westen was doing her best to reconstruct her memory of things. Senior Counsel submitted that Ms Westen’s evidence that her left ankle was now “90%” was unchallenged.
46In my view, the most troubling matter in relation to Ms Westen’s reliability was her evidence about the state of her ankle in the months prior to the work incident. This issue was relevant to Ms Westen’s functioning and impairment prior to sustaining the compensable injury.
47The following transcript extract highlights the issue:
Q: “And it was troubling you, in particular, in 2019, wasn’t it?---
A: Yes
Q: Yes. It was giving you real trouble, if we’re getting right down to the nuts and bolts of it, wasn’t it?---
A: I wouldn’t say ‘real trouble’. There was pain.
Q: Pain. Not ‘real trouble’, so you wouldn’t agree with that?---
A: Not to the extent that you’re implying, no.
Q: I’m saying it was giving you real trouble, and you – well, and you just answered the question. You don’t agree?---
A: I don’t agree.”[7]
[7]T12
48Counsel then asked Ms Westen about the state of her ankle during 2020, prior to the further ankle surgery performed by Mr Wang in April 2020:
Q: “… Now was the ankle giving you trouble then?---
A: Yes
Q: Yes. Real trouble, was it? Would you agree with that?---
A: Am I able to explain something?
Q: Of course you are.
A: The reason that you – you’re pushing on ‘trouble’ is that there was two screws holding my ankle together and if ah – if I was to do the wrong thing it possibly could have snapped. If I was, like, ah I don’t know. So it wasn’t that I was in full on pain. So it was the fact that two screws were holding it together, and it – it was fine the way it was. But the back aggravated it.
Q: Hang on. So you say that as at just prior to the operation of your ankle in 2020, your ankle was in what state?---
A: It’s stable but um because I wasn’t walking on it properly because of my back, it was aggravated and at risk.
Q: So you said before it was ‘at risk of snapping’, you said?---
A: That’s putting it very um loose – um simplifying it.
Q: So was it causing you significant pain or not?---
A: No
Q: All right. So you say at that time it wasn’t causing you significant pain?---
A: There was pain, but not significant.
Q: Not significant pain? So some pain, but not significant pain?---
A: Yep.
Q: Was it affecting you on a day to day basis?---
A: Not to do my job.
Q: All right. We’ll do it that way. Was it affecting your ability to do your job?---
A: No
Q: No. Was it affecting you on a day to day basis to do other things?---
A: No
Q: No? All right. So as at just prior to the operation, your ankle wasn’t too bad?---
A: Not too bad, no.
Q: It wasn’t stopping you working?---
A: No
…
Q: And that it wasn’t slowing you down outside of work?---
A: Nope.”[8]
[8]T13-14
49Leading Counsel for the VWA then took Ms Westen to the contents of the TAC affidavit.
50In the TAC affidavit, Ms Westen deposed that:[9]
[9] DCB 108-113
(a) She continued to suffer from ongoing pain and restriction in her left ankle;
(b) If she banged her left ankle, it produced “excruciating pain”;
(c) Mr Curry and Mr Wang advised her that she might ultimately come to fusion surgery;
(d) The condition of her left ankle precluded her from being on her feet for prolonged periods as this exacerbated her pain;
(e) She had been working part time for Caltex for seven years, at about the limit of her work capacity, which was restricted because of the condition of her left ankle;
(f) She declined additional hours from Caltex because of the state of her left ankle;
(g) At the end of the working day she limped, but she “simply put up with the pain as [she was] fearful of losing that job”;
(h) She had difficulty squatting, and had to kneel on one leg to stock shelves;
(i) She had begun to retrain as an accountant as “I know that I will not be able to keep this up”;
(j) That she took Endone from time to time when her pain was “really bad”;
(k) She attended a chiropractor once every two to three weeks and tried to perform exercises she had been given as much as possible;
(l) She gave up work as a motorcycle instructor because her ankle was causing her “grief”;
(m) She was unable to perform labouring work such as landscaping because of the state of her left ankle;
(n) She had not been able to participate in ballroom dancing, could not surf, and could not run or jog because of her left ankle injury;
(o) She had been unable to have a second child as she believed that she would not be able to get through another pregnancy because of her left ankle injury.
51When the contents of the TAC affidavit were put to her, Ms Westen agreed that the account of her pain and restrictions in that affidavit was true; however, she said she could not now remember whether she would limp at the end of a day on her feet; she could not remember the frequency or amount of Endone she was then taking, and she struggled to remember the frequency with which she attended the chiropractor.[10]
[10] T22 and T27
52Senior Counsel for Ms Westen submitted that the explanation for the difference between her evidence in cross-examination about the state of her ankle in 2019, and up to the time of the surgery in April 2020, was that Ms Westen struggled to remember the state of her ankle from time to time.
53Prior to being taken to the TAC affidavit, Ms Westen did not suggest she had difficult remembering how her left ankle condition affected her in 2019 and early 2020. It was not until several of the inconsistencies had been put to her that Ms Westen indicated that she struggled to remember.
54When it was put to Ms Westen that the evidence she had given to the Court about the state of her ankle was very different to the picture presented in the TAC affidavit, she said she did not believe that was so. She was cross-examined further as follows:
Q: “You were anxious to tell her Honour that the ankle injury, as at that time, did not interfere with your ability to work, weren’t you?---
A: Well, it didn’t, cause I still worked.
Q: Come on. Come on, Ms Westen. And you were very anxious to tell Her Honour that it wasn’t slowing you down outside of work?---
A: After the surgery it wasn’t slowing me down.
Q: No, but I was asking you, Ms Westen – Ms Westen, I was asking you about your employment, about the period before the surgery?---
A: Yeah.
Q: And you well understand that, don’t you?---
A: Yes.
Q: The true position is it was interfering with your ability to work, isn’t it?---
A: I don’t believe so. I was at work, and I was in pain at the end of the day. I worked.
Q: You worked. That wasn’t my question was it, Ms Westen?---
A: It didn’t – to me, it didn’t interfere. Not like you’re implying.”[11]
[11] T24
55Ms Westen’s evidence to the Court, in particular that the condition of her left ankle did not affect her ability to do her job, was not affecting her on a day-to-day basis to do other things, was not slowing her down outside of work and was “not too bad”, raises important issues as to Ms Westen’s reliability as a witness.
56I bear in mind that Ms Westen appeared to find the process of giving evidence, particularly cross-examination, difficult. However, I find that Ms Westen was, at times, non-responsive and evasive in answer to questions during cross-examination. On occasion, rather than simply answering the question asked, Ms Westen gave an answer directed at minimising her prior issues and emphasising her current issues. For instance, when it was suggested to her that there was a parallel between the treatment regime she had now with her chiropractor and osteopath and that which was in place before the work incident, Ms Westen said the current treatment was “more aggressive”.[12] When it was put to her that in October 2019, she experienced excruciating pain if she banged her ankle, Ms Westen said “it didn’t stop me working”. When asked about Mr Wang’s advice that she may require a fusion for her ankle, Ms Westen suggested that an ankle fusion was not a major operation, stating it was “[n]ot as major as you think these days”, although Ms Westen went on to accept it was significant, “like every other operation”.[13]
[12] T8
[13] T17-18
57There is some force in the submission made by Leading Counsel for the VWA that Ms Westen’s affidavits sworn for the purpose of this application created an incorrect impression about some claimed impairment consequences of her lumbar spine injury by omission. For example:
(a) Rock climbing and abseiling – in my view, the reader of paragraph 28 of Ms Westen’s first affidavit, and paragraph 14 of her second affidavit, would get the impression that rock climbing and abseiling had been active hobbies in and around the previous ankle surgeries. Whereas in cross-examination, Ms Westen accepted that she had not been rock climbing since long before 2012. She said it was a “long, long time” since she last went rock climbing;[14]
(b) Bushwalking – in my view, the reader of paragraph 29 of Ms Westen’s first affidavit, and paragraph 14 of her second affidavit, would get the impression that Ms Westen was a “keen” bushwalker in and around her previous ankle surgeries. In cross-examination, Ms Westen said she had not been bushwalking since 2012.[15]
(c) Ballroom dancing – paragraph 32 of Ms Westen’s first affidavit, and paragraph 16 of her second affidavit, did not make clear that Ms Westen had last actively participated in ballroom dancing as a teenager.[16]
[14]T30
[15]T30
[16]DCB 112
58I note the absence of any reference to the work incident and lower back injury in the TAC affidavit. Ms Westen was not asked about this during cross-examination. She was not given any opportunity to provide an explanation. I therefore do not make any adverse finding in relation to this.
59Given the above matters, I approach my analysis in this case on the basis that I should look for some persuasive medical or other evidence which supports the reliability of Ms Westen’s evidence of the impairment consequences of the injury to her lumbar spine.
What are the permanent impairment consequences of Ms Westen’s compensable lumbar spine injury?
60Ms Westen relied upon two affidavits sworn by her in support of her application.
61In her first affidavit, sworn on 18 January 2024, Ms Westen relevantly deposed:
“6.… By the time of my workplace injury I would say that with treatment, my ankle was about 60-70% good. I did not have pain at rest, and I could do what I needed to do. I could walk on uneven ground, and could walk for more than 3km with some discomfort and at times I would stretch myself to about 8km. I had a normal gait, but some swelling around my ankle. I saw surgeon Mr Curry in September 2018 and he reported that I was functioning very well despite the long history, that my ankle moved freely, and I was able to undertake normal activities. I recall that he recommended a fusion, if there were any future issues. After my back injury, my ankle worsened, but I then had surgery in around April 2020 with Mr Wang which made things much better. My ankle is now pretty good. I believe that absent my back injury, I would be able to walk and stand much better given the improvement in my ankle following surgery.
…
21.I am not keen to have invasive treatments like nerve blocks or take heavy pain medication. I do not want to take opiates even though they would give me some relief, because I need to be able to drive.
…
24.I continue to experience constant pain and stiffness in my lower back. It is like a rod that radiates across my lower back. If it has been a while since my last hands-on treatment, I will start to have neck pain which will ultimately lead to headaches. I struggle to sit, stand or walk for prolonged periods because of my back pain. I find it difficult to complete tasks that requires (sic) me to bend, lift or twist repeatedly. Standing is particularly difficult for me. The pain starts off mild and worsens over the course of the day.
25.I struggle with my housework and gardening, but I have little option but to do it in pain.
26.Despite my ankle injury, I was able to work on my own home. I have lived in my home for 14 years, and I had landscaped the garden. I am not longer able to do heavy landscaping.
27.I find driving uncomfortable and painful; it is particularly hard and painful for me to drive to Melbourne. I find it a struggle to get in and out of my car. I am currently in receipt of a disability parking permit for my back injury. Previously I had received a disability parking permit for my ankle as I was using a mobility aid. I would not be entitled to one for my ankle now.
28.I was going rock climbing and abseiling between ankle surgeries, and I believe that following my most recent ankle surgery, I would have been able to return to rock climbing and abseiling if it was not for my back injury.
29.I used to be a keen bushwalker and given the success of my most recent ankle surgery, I believe I would be able to go bushwalking, if it was not for my back injury.
30.I am having significant issues with my sleep. It does not take me long to get to sleep, but once I am asleep I tend to wake up after an hour or two with pain in my back. I will tend to fall asleep and wake after an hour for the rest of the night. I would be lucky to get four hours sleep per night due to back pain. At times, if my back pain is bad throughout the day, I struggle to sleep at night. I don’t like taking sleeping tablets unless I know I don’t have to drive the next day, as the tablets affect my ability to drive due to drowsiness.
31.I sold my motorbike a few years ago. In any event, I would struggle to ride a motorbike on account of my back injury. I believe that absent my back injury, with the improvement in my ankle following surgery, I could have returned to motorbike riding.
32.I used to enjoy ballroom dancing. Originally, I could not do this because of my ankle, but following the success of my most recent ankle surgery, I believe I could have returned to ballroom dancing. The problem I now face with ballroom dancing, is that I would not be able to hold my form, because of my back injury.
33.My daughter plays basketball. I was playing basketball between ankle surgeries, and following my most recent surgery, I believe I would have been able to return to basketball and play with my daughter, if it was not for my back injury.
34.Sex with my partner has been very difficult and painful due to my back injury. I am disinclined to have sex, which has affected my ability to have another child, which I dearly wanted. I am also worried that now, I would not be able to cope with the physical aspects of parenting, in the same way that I was able to cope with raising my daughter despite my ankle injury.”[17]
[17] PCB 6 to PCB 9
62In her second affidavit, sworn on 20 December 2024, Ms Westen relevantly deposed:
“4.The consequences of my lumbar spine injury have largely remained the same since swearing the first affidavit. I remain significantly restricted in my ability to work and enjoy the activities of daily living.
…
9.… My left ankle has continued to be quite good following my ankle surgery, and the main issue for me in terms of pain and restriction of movement is my lower back.
10.… I have continued to work around 30 hours per week as an accountant for Smith, McCarthy Wilson in Warragul. This is around 15 minutes drive from home. I also perform a second job working from home auditing self managed superannuation funds for Assured Super. I do this for around 10-15 hours per week on the weekends but can manage this at the moment because I am able to stand up and move around as I want to and take rest breaks as I need. I continue working through the pain that I experience in order to complete this work as I am a single mother, and my 11-year-old daughter relies on me to provide income for us. At my work for Smith, McCarthy Wilson, I am having some difficulties because I need to regularly get up and stretch and I have noticed management at work have been ‘frosty’ at work about my injury. Smith, McCarthy Wilson require me to avoid carrying heavier items, and I am restricted in performing work on ladders.
11.… I continue to experience an ongoing constant pain in my lower back. The back pain becomes worse with prolonged sitting or standing. The pain fluctuates depending on my level of activity, but does not go away. The pain is generally an aching dull pain, but becomes a sharper pain at times and also becomes a throbbing pain after repetitive or prolonged activity.
12.... I continue to perform housework as best I can, as there is only my 11-year-old daughter to otherwise perform it. I was previously unrestricted in my ability to perform housework and gardening, but now do so with pain and struggle in particular with whipper snipping because of the rotation and pain I experience in my lower back. I am able to mow the lawn, and do so around every two days in order to stay on top of it. I am able to cope with this, but not the heavier aspects of gardening such as landscaping.
13.… I continue to drive, but try to limit my driving to work and to drop my daughter at school. I can drive for longer periods, but pay for this later with pain in my lower back and then need to use a roller and stretch my back. I try to avoid longer driving where possible as a result.
14.… I have not been able to return to rock climbing, abseiling or bushwalking, due to the pain and restriction from my lower back injury. If anything, my back injury hindered my ankle recovery, and believe I would otherwise have continued rock climbing and bushwalking if I had not suffered my lower back injury.
15.… My sleep continues to be disturbed by the pain in my lower back. I continue to get four hours sleep per night with disturbed sleep due to the pain in my lower back. This makes me tired and lack concentration during the day. I do the best I can, but struggle due to my lack of sleep.
16.… I have not returned to ballroom dancing, as I do not wish to risk further injury to my back, and otherwise believe I would have been capable of returning to ballroom dancing after recovery from my ankle injury. I miss the enjoyment of this activity greatly.
17.I continue to be significantly restricted in my interactions with my 11-year-old daughter which require physical exertion and use of my back. This continues to interfere with simple things like playing basketball and other ball sports.
18.I had been enrolled to study law through the University of New England, but after my injury the subject of this claim found it too difficult and painful to sit for long periods reading, and have instead had to focus on spending my time working to support myself and my daughter.
19.My social life has been significantly affected as my friends don’t understand my situation now with my pain and restriction due to my lower back pain. I try my best to socialise, but am restricted with activities involving longer periods of sitting or standing due to my lower back pain.”[18]
[18] PCB 11-14
63This is a convenient point to consider the medical evidence tendered by the parties.
Treater material
Imaging
64Ms Westen tendered the report of an x-ray of her lumbosacral spine undertaken on 10 October 2019. This was reported to reveal:
“No malalignment. Vertebral body height and intervertebral disc spaces are maintained at all levels. Multilevel mild degenerative changes particularly in the lower thoracic spine with end plate spurring. No acute fracture. Mild lumbar scoliosis convex to the left. No paravertebral soft tissue swelling/haematoma.”[19]
[19] PCB 22
65Ms Westen tendered the report of an MRI scan of her lumbar spine dated 12 November 2019. This was reported to reveal:
“Early disc changes at multiple levels. Right foraminal/extraforaminal protrusion at L4/5 resulting in mild/moderate foraminal narrowing where there is abutment and slight displacement of the exiting L4 nerve, considered potentially symptomatic. No high grade canal/foraminal narrowing elsewhere.”[20]
[20] PCB 23
Mr Hamish Curry, orthopaedic surgeon
66Ms Westen tendered a report from Mr Curry dated 18 February 2019.
67In addition to the matters set out above, Mr Curry opined that, as at late 2018, Ms Westen was functioning very well despite the long history and problems she had suffered with her ankle and the non-union. Mr Curry noted Ms Westen continued to have occasional “bad days”, but that she did not take any pain relief. He was of the view that it was likely that the arthritis in her ankle would deteriorate and cause more pain and functional impairment, but the timeframe within which that would occur was not possible to predict.
Ebony Axford, physiotherapist
68Ms Westen tendered a Physiotherapy Management Plan authored by Ms Axford, dated 28 October 2019, and a letter dated 11 November 2019.
69The management plan provided for twice weekly treatment for twelve weeks.
70The letter sought funding for a three-month pool membership.
Henry-George Emery, physiotherapist
71Ms Westen tendered a report from Mr Emery dated 17 February 2021. Mr Emery took over the physiotherapy treatment of Ms Westen from Ms Axford from 26 November 2019.
72Mr Emery noted that Ms Westen experienced limited improvement from the physiotherapy treatment. He suggested she may benefit from intervention by a pain specialist.
Daniel Willis, chiropractor
73Ms Westen tendered a report from Mr Willis dated 23 February 2024. The VWA tendered a clinical note authored by him on 1 March 2023.
74The clinical note recorded the following under the heading “Patient Progress Reports”:
“… not sleeping; not sure why
Back is moving well and feeling ok
No numbness and no tingling no weakness
Still consulting with Osteo – Lauren for work cover.”[21]
[21] DCB 140
75Mr Willis reported that he had treated Ms Westen:
“… in the past for her sore neck which often has a great deal of muscular tension. These can on occasion bring about and be brought about by headaches.
…
I have also treated … [Ms Westen] for occasional low back pain and utilise similar treatment techniques. However, … [Ms Westen] predominantly consults a massage therapist (Wes Lis[s]enden) and Osteopath (Lauren Burridge) for her Work[C]over related injuries.”[22]
[22] PCB 86
76Mr Willis noted Ms Westen last consulted him in March 2023 for a neck and thumb injury.
Wesley Lissenden, massage therapist
77Ms Westen tendered a one-page, undated, unsigned document, described as a report from Wesley Lissenden dated 23 February 2024. Mr Lissenden’s qualifications are not apparent from the document.
78Mr Lissenden noted Ms Westen complained of “significant discomfort during nighttime hours”. Mr Lissenden stated that remedial massage therapy had been beneficial in managing Ms Westen’s symptoms.
Dr Nenad Vasic, general practitioner (“GP”)
79Ms Westen tendered a letter dated 23 January 2020 from Dr Vasic, referring Ms Westen to Professor Richard Bittar, neurosurgeon.
80Professor Bittar did not see Ms Westen until December 2024, and then he did so in a medico-legal capacity. It appears from the material that she was reviewed by Dr Akil, neurosurgeon, instead.
Dr Abolfazl Pourhossein, GP
81Ms Westen tendered two letters from Dr Pourhossein, dated 6 March 2024 and 23 September 2024. Both were addressed “To Whom it May Concern”.
82In the first report, Dr Pourhossein noted he treated Ms Westen between October 2022 and October 2023 for issues other than her WorkCover injury. He noted that her WorkCover injury was first treated on 26 July 2021, but the GP whom she consulted was no longer at the clinic. His report was therefore based on the clinical record.
83Dr Pourhossein answered a series of questions. The questions were not tendered.
84Dr Pourhossein recommended physiotherapy, sessions with a psychologist, and a second opinion from a neurosurgeon. He also recommended the use of Panadol Osteo and non-steroidal anti-inflammatory medications as needed. Sleeping tablets were for short-term use only. In the long-term, sleep hygiene and cognitive behavioural therapy were recommended.
85In his second report, Dr Pourhossein again noted he had not treated Ms Westen for her WorkCover injury, and his report was based on the clinical file.
86Dr Pourhossein said Ms Westen had reported worsening lumbar pain and significant stress. She was referred to a pain specialist, a neurosurgeon, an osteopath and an exercise physiologist.
87Dr Pourhossein noted that Ms Westen was reportedly diagnosed with ADHD as a child and medicated for this, that she has “lots of energy and doesn’t sleep much, approx 6 hours a day.”[23]
[23]PCB 93
88Dr Pourhossein opined:
“Currently Miss Westen’s condition is stable. I expect that she will continue to have long-term issues with pain, mobility and mental health. However, it’s important to note that chronic back pain and mental health conditions can be fluctuating, and ongoing evaluation and support may still be necessary if a patient’s condition appears stabilized.”[24]
[24] PCB 96
Clinical entry of Dr Georgios Manolis, GP, dated 3 August 2022
89The VWA tendered a single entry from the clinical records of Dr Manolis.
90The entry noted that Ms Westen had achieved some weightloss with the assistance of Duromine. She sought an updated certificate of capacity as she was working. The clinical note also recorded:
“#chronic insomnia
- may be related to stress
- did not find amitriptyline worked very well
- made her feel ‘crappy’ the next day- would like to try another medication.”[25]
[25] DCB 137
91Dr Manolis prescribed Zopiclone.
Dr Hazem Akil, neurosurgeon
92Ms Westen tendered two reports from Dr Akil dated 3 March 2020 and 28 November 2020. Dr Akil examined Ms Westen on one occasion, on 3 March 2020.
93In his reports, Dr Akil noted Ms Westen reported significant pain, particularly in the right lumbosacral region, radiating to the lower thoracic region and towards the right buttock and thigh. Dr Akil noted that Ms Westen did not take pain analgesia “as she does not believe in them” but took turmeric.[26]
[26] PCB 62
94On examination, Ms Westen walked with a normal gait. Dr Akil could not detect any sensory or motor deficit in the lower limbs. Pain was noted to be much worse on extension compared to flexion, which relieved the pain. Dr Akil looked at the MRI scan and thought there might be evidence of facet arthropathy at L4-5 and possibly L5-S1.
95Dr Akil’s working diagnosis was an aggravation of lumbar spondylosis in the form of facet joint arthropathy. Surgery was not necessary. He recommended Ms Westen see a pain specialist, and suggested she continue with physiotherapy. He had no plan to review her.
Medico-legal material
Dr Symon McCallum, pain physician
96Ms Westen tendered a report from Dr McCallum dated 22 October 2024. Dr McCallum examined Ms Westen on 9 October 2024.
97Dr McCallum reported that Ms Westen told him that despite her previous ankle injury, she was very active prior to the work incident. She felt she made a slow recovery from her 2020 ankle surgery due to her lower back pain. Ms Westen reported that her back hurt now and then prior to the work incident.
98Ms Westen reportedly told Dr McCallum that she had pain in a wide area of her lumbar spine, it was very stiff at night, and moving hurt it. Ms Westen reported that during the day her pain could be mild, but it increased throughout the day. It could become painful at the end of the day. It could flare up occasionally. Housework and gardening hurt. There was no leg pain. Ms Westen reported that if she walked for 30 to 60 minutes, her back pain increased but she could continue walking.
99Ms Westen reportedly told Dr McCallum that she took half a tablet of Zopiclone at the weekend, and Endone “very rarely” when she could not sleep at night.[27] Later in his report, Dr McCallum noted “her sleep is the main problem. The back pain wakes her up.”[28]
[27] PCB 33
[28] PCB 34
100Dr McCallum believed there were no elements of –
“… voluntary or involuntary exaggerations.
Psychological factors are always involved in chronic pain. This is as pain results in an emotional and therefore psychological response.”[29]
[29] PCB 34
101On examination, Dr McCallum noted the following:
“… [S]he has got normal reflexes in the lower limbs.
She has got normal power and sensation in the lower limbs and saddle area.
Lumbar flexion is 90 degrees. Extension rotation increases the pain. The hips are normal and she has clinically negative sacroiliac joint pain.
…
She is tender in the lower lumbar spine to palpation.”[30]
[30] PCB 35
102Dr McCallum opined that Ms Westen suffered an aggravation of lumbar spondylosis, and it was “likely she has undergone the process of central sensitisation”.[31] He recommended Ms Westen continue seeing her osteopath and that she may be a candidate for Norgesic to help with the pain. He opined the prognosis was poor given her poor response to treatment. He further opined there was a “chance that she may have deterioration of lower back pain”.[32] He did not explain the basis upon which this was said to be so.
[31] PCB 35
[32] PCB 36
Professor Richard Bittar, neurosurgeon
103Ms Westen tendered a report from Professor Bittar dated 6 December 2024. Professor Bittar examined Ms Westen that day.
104Professor Bittar said that Ms Westen “has not worked since 26/09/2019, when she was working full time at Caltex”.[33]
[33] PCB 37
105Professor Bittar noted Ms Westen complained of constant lower back pain, which varied in character between sharp, aching, dull and throbbing. The average severity was reportedly “6/10” and maximum severity “8/10”. The pain was exacerbated by sitting for one to two hours, standing for 15 minutes, and lifting 15 kilograms. Ms Westen was “particularly troubled by sleep disruption, difficulty playing with her daughter, as well as the detrimental impact on her intimate life and inability to have another child”.[34]
[34] PCB 38
106Professor Bittar was reportedly told:
“… [Ms Westen] only takes Ziplocline (scil. Zopiclone), a sleeping tablet, half a tablet if needed on Friday or Saturday nights. She avoids pain medications due to fear of side effects and lack of benefit.
She sees an osteopath fortnightly which provides some benefit. She also has self-funded massages from time to time.”[35]
[35] PCB 38
107On examination, Professor Bittar noted:
“She was pleasant and cooperative had a normal gait (sic).
Flexion of the lumbar spine was normal, but extension was restricted and painful.
There was no tenderness or muscle spasm in the lower back. She had a diminished right knee reflex. Ankle reflexes were symmetrical.
Lower limb motor power was normal.
There was no abnormal illness behaviour.”[36]
[36] PCB 40
108Professor Bittar opined that Ms Westen presented with an aggravation of lumbar spondylosis, right L4 radiculopathy and an L4/5 intervertebral disc prolapse.
109Professor Bittar recommended further investigations and treatment. He opined her prognosis was guarded. She was unfit for her pre-injury duties but fit to work full time as an accountant.
Dr Reza Sabetghadam, occupational physician
110The VWA tendered a report from Dr Sabetghadam dated 9 April 2024. Dr Sabetghadam examined Ms Westen on 4 April 2024.
111Dr Sabetghadam noted that Ms Westen reported the following complaints and symptoms:
“… constant back pain and occasionally experiences pins and needles in her thighs and buttocks. … symptoms occasionally radiate to her upper back and neck, particularly if she does not attend massage therapy or chiropractic sessions in a timely manner.
… she ‘struggles’ to stand for more than 15 minutes. … she has difficulty sitting for more than two hours.
… she occasionally experiences a pulling sensation in her right shoulder with certain movements, such as wiping her back after toileting.
…
… she develops back pain during sexual activity.
…. her sleep is disrupted. Specifically, she wakes up regularly at night. She stated that she is ‘lucky’ if she gets four hours of sleep. She reported that she often experiences disjointed sleep patterns. She reported that she occasionally takes half a tablet of zopiclone on weekends to assist with sleep.”[37]
(emphasis in original)
[37] DCB 50-51
112On examination, Dr Sabetghadam noted as follows:
“On general observation, she was a straightforward lady who complained of back pain. She managed to walk on her toes and heels without significant difficulty. While sitting in my examination room, I informally observed that she comfortably crossed her legs and placed her left ankle over the right knee and her right ankle over the left knee.
On inspection of the lower back, I noted that she had a large tattoo …
On light palpation she complained of diffuse tenderness non-specific to any anatomical landmark in her lower back over a wide area.
Range of motion of the lumbosacral spine appeared to be unremarkable and symmetrical.
Sensory, motor and reflexes examination of the lower limbs appeared to be unremarkable and symmetrical.”[38]
[38] DCB 56-57
113Dr Sabetghadam opined:
“She also has had non-specific lower back pain probably related to underlying degenerative disease of [the] lumbosacral spine, irrelevant to the index accident. Her left ankle condition could contribute to her non-specific lower back pain as well due to abnormal biomechanics of left lower limb.
…
… Ms Westen had temporary exacerbation of symptoms of a pre-existing condition, which has now resolved.”[39]
[39] DCB 59
Findings
114I find this is an aggravation case, in that pre-existing degenerative changes in Ms Westen’s lumbar spine, which were effectively asymptomatic, were rendered symptomatic in the work incident. That finding is supported by the opinion of Dr Akil, and Dr McCallum.
115Dr Sabetghadam also diagnosed an aggravation of pre-existing degenerative change, although he opined that the aggravation had ceased. I do not accept his opinion the aggravation has ceased as the path of reasoning for that opinion was not sufficiently explained.
116Professor Bittar diagnosed an aggravation of lumbar spondylosis. He also opined that Ms Westen suffered from right L4 radiculopathy and an L4-5 intervertebral disc prolapse. Insofar as those diagnoses are different to the aggravation of lumbar spondylosis, I am not persuaded by those additional opinions. No other medical practitioner has diagnosed those conditions. Further, the additional diagnoses are not sufficiently explained. Professor Bittar referred to the MRI scan of November 2019 and stated that it demonstrated a “prolapse” at L4-5. The report of the MRI scan noted a “protrusion”. Professor Bittar does not state that he viewed the MRI scan images. If he did so, he does not state that he formed a different view of the imaging, or state the basis upon which he disagreed with the reported conclusions of the radiographer. The absence of identified reasoning is particularly important given the modest findings Professor Bittar noted on physical examination of Ms Westen.
117In this case, the imaging does not provide objective support for Ms Westen’s claimed symptoms given my finding as to the nature of the injury. The imaging results are consistent both with Ms Westen’s claimed symptoms and impairment consequences and consistent with there being few or no symptoms and impairment consequences.
118Senior Counsel for Ms Westen submitted that Professor Bittar’s finding of a diminished right knee reflex was an objective finding. I accept that submission. However, that finding is of limited assistance given that Professor Bittar did not identify the extent to which the right knee reflex was diminished, the cause for such diminution, or comment on the consequences for Ms Westen of having a diminished right knee reflex.
119Senior Counsel for Ms Westen submitted that Ms Westen’s presentation on examination provided some objective support for her claimed impairment consequences. The proposition was put in the following way:
“Well, we say the examination of the extension being restricted and painful … [i]s an objective sign, partially subjective and partially objective, one could be feigning it, the right knee reflex can’t be feigned. Someone might be feigning it, why would you feign that and not deflexion, and of course the average person wouldn’t know where extension would start and finish and so on. So we say that’s an objective sign. … .”[40]
[40]T77-78
120I accept that, in an appropriate context, the finding of restricted extension could provide some corroboration of some ongoing impairment. In my view, such a finding is not properly characterised as objective.
121In addition to the concerns expressed earlier regarding Ms Westen’s reliability, I found Ms Westen’s evidence in re-examination about the nature and extent of her lower back pain was inconsistent with the remainder of the evidence. Senior Counsel for Ms Westen submitted that the evidence about pain levels in re-examination was to the same effect as paragraph 11 of her second affidavit, and that Ms Westen is a person who understates her level of pain. I do not accept those submissions. Ms Westen’s evidence in re-examination was that most days she must lie down after work because of the level of her lower back pain. That account was not given in Ms Westen’s affidavits. Nor was it reportedly given to any of the medical practitioners whose reports were tendered.
122As I have said, given my concerns as to Ms Westen’s reliability, I look for other persuasive evidence to support Ms Westen’s account of her impairment consequences. There is very limited objective medical evidence for Ms Westen’s claimed impairment consequences of her lumbar spine condition.
123Senior Counsel for Ms Westen submitted that her evidence that her left ankle was 90% better was not challenged during cross-examination. However, the mere fact that evidence is not challenged does not inevitably mean it must be accepted. I am required to consider the whole of the evidence. I note that Ms Westen suffered the initial left ankle injury in 1996 when aged 19. She has endured numerous surgeries over the following twenty-four years. The report tendered from Mr Curry identified the presence of degenerative arthritis which was likely to deteriorate over time.
124No report was tendered from Mr Wang or any medical practitioner regarding the state of Ms Westen’s ankle following her surgery in April 2020.
125I accept that the April 2020 surgery improved the condition of Ms Westen’s ankle but am not persuaded that it is “90 per cent” better as Ms Westen stated.[41] I am not satisfied that each of the impairment consequences detailed in the TAC affidavit have ceased given that there is no medical or other persuasive evidence supporting Ms Westen’s account of the current state of her left ankle or its impairment consequences.
[41] T32
126This makes the task of assessing the current impairment consequences properly attributable to Ms Westen’s lumbar spine condition that much more difficult.[42]
[42]Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
127I find that Ms Westen experiences some ongoing lower back pain. I accept her evidence that there are periods when she experiences “minimal” pain.[43]
[43]T34
128I accept Ms Westen’s evidence that she takes medication for her back pain “sparingly”. Her explanation for the absence of any reference to medication use in her second affidavit was because she takes it so infrequently that it did not cross her mind to mention it.[44] I accept that explanation. I find that Ms Westen very occasionally takes Endone for lower back pain and occasionally takes half a Zopiclone tablet to assist with sleep.
[44]T11-12
129I find that Ms Westen attended a chiropractor every two to three weeks, and an osteopath, for her ankle injury and for overall “maintenance” prior to the work incident. She continues to attend a chiropractor and osteopath.
130The most recent report from Ms Westen’s treating chiropractor, Mr Willis, indicated that he had not treated her since March 2023. No report was tendered from an osteopath, who is, according to Mr Willis, the current practitioner treating Ms Westen’s lower back condition. I am unable to determine on the evidence how often Ms Westen has that treatment at the current time.
131I find that Ms Westen suffers from some sleep difficulties. In light of my findings about Ms Westen’s reliability, I look for other evidence to corroborate her account of the extent of her sleep difficulties and the cause or causes of it. The fact of the sleep difficulties is supported by contemporaneous complaints to Dr Manolis and Mr Willis, and the prescription for Zopiclone. However, the clinical records do not provide support for Ms Westen’s account that the primary cause of her sleep difficulties is lower back pain.
132I find that Ms Westen qualified as an accountant because she needed to seek sedentary work by reason of her ankle injury. She currently works on average 40-45 hours a week in two jobs, and sometimes as many as 50 hours a week.
133I find that Ms Westen continues to undertake household chores and maintain her garden. On the evidence, I am unable to assess the nature and extent of any adaptations she has made to those activities by reason of her lower back injury.
Are the permanent impairment consequences “serious”?
134I bear in mind what was said by the Court of Appeal in TTB SMS Pty Ltd v Reading:[45]
“… The evaluation required of the trial judge … involves a comparison of the worker’s impairment not just with other impairments of the hand, but also with other types of physical impairment that may be suffered, including impairment of the brain, the spine, and large joints such as the knee and shoulder. Those other physical impairments may involve constant pain, significant medical treatment and medication. They may involve sleep deprivation, or an inability or reduced ability to socialise or work.”
[45][2020] VSCA 203 at paragraph [31]
135I am required to consider what has been lost as well as what has been retained.
136The fact that Ms Westen is able to work full time as an accountant does not preclude a finding that she satisfies the statutory test.[46]
[46]Haden Engineering Pty Ltd v McKinnon (supra)
137Ms Westen has had a modest amount of conservative treatment for her lumbar spine injury. No change is proposed to that regime.
138Senior Counsel for Ms Westen submitted that she was stoic and tended to understate the level of her pain and mask the true dimension of her pain consequence.[47] I am unable to accept that Ms Westen ought properly to be described as “stoic” with reference to her lumbar spine condition. There is no persuasive evidence that she has understated the level of her pain, masked the true extent of her pain consequences or has otherwise “pushed on” in circumstances where others with the same injury might not have.
[47]Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144, at paragraphs [68] and [69]
139It follows from the above that I am not satisfied that Ms Westen suffers from the claimed level of impairment due to her lumbar spine condition.
140I find that the impairment consequences of the lumbar spine condition of which I am persuaded are not appropriately described as being more than significant or marked and at least very considerable when compared with the range of possible impairments including those which do not come before the Court.
Conclusion
141It follows from the above that Ms Westen’s application must be dismissed.
142I will hear the parties on the issue of costs.
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