Whiffin v Roche Diagnostics Australia Pty Ltd
[2017] VCC 1490
•18 October 2017 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03600
| ELIZABETH WHIFFIN | Plaintiff |
| v | |
| ROCHE DIAGNOSTICS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 August 2017 | |
DATE OF JUDGMENT: | 18 October 2017 (Revised) | |
CASE MAY BE CITED AS: | Whiffin v Roche Diagnostics Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1490 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the spine – non compensable condition –pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors. [2006] VSCA 254; Philippiadis v Transport Accident Commission [2016] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Alcoa of Australia Ltd v McKenna (2003) 8 VR 452; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin QC with Mr S Jurica | Adviceline Lawyers |
| For the Defendant | Ms A Magee QC with Mr A Coote | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment on 3 May 2013 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, [may be] fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 In this case, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Grech v Orica Australia Pty Ltd & Anor[2] and Peak Engineering Pty Ltd & Anor v McKenzie[3] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
[3][2014] VSCA 67
15 The plaintiff relied upon three affidavits and was cross-examined. Given my findings as to credit, I have referred to the plaintiff’s affidavit evidence in some detail. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is aged forty-eight, having been born in January 1969. She is a single mother with a ten-year-old daughter. They live with the plaintiff’s parents near Gosford in New South Wales.
17 Having completed secondary school in Sydney, the plaintiff completed a Diploma of Nursing. She worked as a nurse in Sydney for about six years, and also completed her midwifery course.
18 The plaintiff then worked as a pharmaceutical sales representative for three years. She moved to Melbourne and worked for Pfizer for about three years, then CSL for eighteen months in that role. She then worked for Boots as a pharmacy sales representative for about four years.
19 In about February 2009, the plaintiff started full-time work with the defendant as a pharmacy sales representative, selling blood glucose meters to pharmacies. Her starting salary was about $70,000 gross per annum plus a company car and bonuses. As at the said date, she was earning about $84,000 gross a year, plus a company car and bonuses.[4]
[4]Transcript (“T”) 5
20 The plaintiff’s job included driving to appointments, carrying boxes of products and communicating with clients in person, over the phone or via email. Normally, she was set up from home and her driving work covered a number of hospitals in Melbourne, Geelong and some country areas. She probably attended the office for a monthly meeting, if that. She had everything she needed to work from home.[5]
[5]T68
21 In her first affidavit, the plaintiff described her health prior to the said date.
22 In about 2005, the plaintiff had bilateral shoulder pain, from which she recovered. She had depression on and off for many years, and post-natal depression in about 2007.
23 In around mid-2012, the plaintiff lodged a claim for work stress and had about a month off work.[6] That year, she also went through a stressful divorce, and about that time, commenced taking 50 milligrams of Zoloft daily for depression.
[6]30 July 2012
24 On about 17 December 2012, while driving between work clients, the plaintiff rear-ended another car, and her vehicle was a write-off (“the 2012 transport accident”). Shortly thereafter, the plaintiff saw her general practitioner at Guardian Medical Centre for pain in her left hip and groin. Over the Christmas holidays, her left hip pain deteriorated and she lodged a WorkCover claim in January 2013,[7] which was later accepted.
[7]18 January 2013 - car accident - 20 December 2012 - “left hip severe pain loss of function”
25 In her second affidavit, the plaintiff added that before the said date, from time to time, she had some back pain from which she recovered.
26 The plaintiff agreed there was an incident at a theme park in Sydney at the end of 2012 when she was on a water slide and her hip gave way and she fell. Her hip was pretty painful. It had been getting worse after the 2012 transport accident.[8]
[8]T22; Attendance with Dr Leer 7 January 2013 – left-sided low pelvic pain slipped onto top of water slide at Sydney Olympic Park
27 In about February 2013, the plaintiff was referred to Mr Burns, an orthopaedic surgeon, for her left hip pain. She told him her pain had become more troublesome a month earlier. He organised an ultrasound, which the plaintiff understood came back normal. He recommended conservative treatment.[9]
[9]T13
28 Prior to the said date, arrangements were made for the plaintiff to see Mr van Bavel, orthopaedic surgeon, for a second opinion. She also had some physiotherapy and chiropractic treatment. She was taking medication. After a short period of time off work, she returned to work on modified duties.[10]
[10]T12
29 The modified duties involved restrictions on the plaintiff’s ability to drive due to her hip pain. The majority of her duties could be performed from home. WorkCover funded taxi fares to the office in Hawthorn.[11]
[11]T12
30 The plaintiff’s driving gradually reduced between February and May 2013 as her hip problems increased. She might have had a couple of days off work during that time.[12]
[12]T14
31 The plaintiff agreed that as of April 2013, her seating tolerance was quite limited and she was having difficulty getting in and out of the car. If seated for more than 20 minutes, her hip seized up. Walking for longer than 5 minutes was difficult.[13]
[13]T15
32 On or about the said date, the plaintiff was required to take boxes of goods from home to the office. She loaded the boxes onto a trolley without assistance. Whilst wheeling the trolley down the car park ramp, she felt a tweak in her lower back (“the trolley incident”).
33 The plaintiff reported the trolley incident to the office manager. By that stage, she had worsening pain in the left hip and lower back. She bought some painkillers. She worked for the rest of the day despite being in pain, and then went home.
34 Next day, the plaintiff saw a general practitioner at the Guardian Healthcare Sanctuary Lakes Clinic (“Guardian Clinic”). The plaintiff agreed, as was noted, she then described left hip pain since the previous night. She was limping and was very sore.[14]
[14]T15; note of attendance with Dr Leer in April 2013
35 The plaintiff was given a prescription for pain relief and told to come back to see her usual general practitioner, Dr Leer. The plaintiff attended a couple of days later, when Dr Leer put her off work. By that stage, the plaintiff was suffering from lower back pain, along with worse pain in her left hip.[15]
[15]T17; hip pain was noted by Dr Leer
36 The plaintiff attended specialist, Mr van Bavel, on 14 May 2013. He recommended a left hip MRI scan, which the plaintiff had soon after. She agreed she did not tell him of any back problems.[16] She saw Mr van Bavel only once and did not see him again because her general practitioner did not recommend a further appointment.[17]
[16]T19
[17]T7; T74
37 After the trolley incident, the plaintiff returned to work on light duties, working her normal hours. She went back to driving duties for a period of time. She drove to Hamilton on 26 August 2013, which was part of her normal region. In July-August, she would have been working at home doing her driving.[18]
[18]T69
38 Around this time, the plaintiff also commenced physiotherapy for her lower back and left hip pain. Whilst there was no mention of a complaint of back pain when she saw the physiotherapist, Ms Foster, on 6 May 2013, the plaintiff told that treater and her general practitioner of low back pain.[19] She recalled getting physiotherapy treatment for both her hip and back in July and August 2013.[20]
[19]T17
[20]T25
39 The plaintiff was a hundred per cent sure she had mentioned her low back pain to her general practitioner when it was suggested in cross-examination that the notes of nearly 30 visits between 8 May and November 2013 contained no mention of such a complaint.[21] She had definitely mentioned her back pain to Dr Leer on many occasions.[22]
[21]T18 - 6 May “felt hip pain twinge on rolling stock down … sore back and neck developed after”
[22]T19
40 The plaintiff agreed that her medical certificates in 2013 related to the 2012 transport accident and the hip injury suffered in that accident.[23]
[23]T35
41 The plaintiff agreed she did not tell Mr Troy of any back pain related to the trolley incident when she saw him in August 2013. She told him her hip was still painful and she had some restrictions.[24]
[24]T29
42 In about November 2013,[25] when the plaintiff was getting out of her car in Sydney, her back froze up on her. She agreed her back had been problematic since that time.[26]
[25]Just after Melbourne Cup Day
[26]T26
43 On her return to Melbourne, the plaintiff saw Dr Leer. The plaintiff disagreed this was the first time she had mentioned her back to Dr Leer since 6 May 2013.[27] She did not feel confident in the way Dr Leer was managing her, so soon thereafter she started to see Dr Caric at the same practice.
[27]T19
44 Dr Caric referred the plaintiff to Ms Anna Manolopoulos, orthopaedic surgeon, whom the plaintiff later saw for her back and left hip pain.
45 The plaintiff agreed she told Ms Manolopoulos that she felt a ‘ping’ in her hip in the trolley incident. She also said she had more pain over her hip and that she was having daily pain across both hips and the lower part of her back.[28]
[28]T28
46 Ms Manolopoulos arranged a lumbar MRI scan in about early December 2013, which the plaintiff understood showed disc protrusions at L4-5 and L5-S1. Cortisone injections in the plaintiff’s lower back recommended by Ms Manolopoulos took place in about February 2014 and also in her left hip in about March that year.
47 In about late May 2014, Ms Manolopoulos referred the plaintiff to Mr John Cunningham, orthopaedic surgeon. He suggested she have a left hip arthroscopy and a SPECT scan. This investigation did not occur due to lack of WorkCover funding.
48 The plaintiff denied she told Mr Cunningham, as he recorded, that ever since the 2012 transport accident she had been experiencing low back pain. She presumed she told him about the trolley incident but if he had not noted it, she must not have told him.[29] She denied she did not tell him about that incident because she thought the 2012 transport accident was the cause of all her problems at that time. She denied she changed the emphasis of her history as she wanted to blame the trolley incident for her low back pain.[30]
[29]T30
[30]T31
49 In about late June 2014, while in a taxi on the way to a WorkCover medical appointment, the vehicle in which the plaintiff was travelling was rear-ended (“the June 2014 transport accident”). She recalled having some neck pain with some whiplash and seeing a general practitioner soon after, who organised spinal x-rays. She made a TAC claim for her neck. Her pain gradually subsided and she did not require any ongoing treatment for this injury.
50 In the June 2014 transport accident, the plaintiff had mostly neck pain, but also some back pain. Soon thereafter, the back pain returned to the level it was before that accident.
51 As the earlier cortisone injections had not helped much, around July 2014, Ms Manolopoulos referred the plaintiff to Dr Jason Chou, a pain physician. He recommended bilateral lumbar medial branch blocks and left-sided sacroiliac joint injections, which the plaintiff had in about August 2014. Dr Chou also referred her for a left groin scan because he was concerned she may have had a hernia, but that was not identified by the scans.
52 In about September 2014, the plaintiff tried to go back to work on a return to work program, increasing her hours gradually. She stopped working in about November because of back and left hip pain, and also because of some “work stresses”.[31] At that time, she was working a “handful” of hours.[32]
[31]T42; stressed having to pick up a heavy package from the post office
[32]T44
53 On about 15 April 2015, the defendant terminated the plaintiff’s employment.
54 As of 4 February 2016, when the plaintiff swore her first affidavit, she had pain across the middle of her low back. That pain became worse with physical activity or if she stood for long periods. She also found it difficult to stand for short periods of time without feeling as though she needed to rock back and forth. After sitting for about 15 to 20 minutes, her lower back pain became worse. After walking for about five minutes, her pain also increased. She found it difficult bending, lifting, or doing things that involved straining her back.
55 The plaintiff still has difficulty standing for short periods without the need to rock back and forth as she did whilst in the witness box. This has been her normal presentation since the trolley incident and “definitely not” since the 2012 transport accident.[33]
[33]T41
56 As of February 2016, the plaintiff also had a constant ache that was inside her left groin. She had about equal amounts of pain in the left groin and lower back, but the level of pain in each depended upon her activity.
57 The plaintiff was then seeing Dr Caric about once a month for lower back and left groin pain. Dr Caric provided certificates of capacity for the plaintiff’s left hip, back and stress and prescribed medication. The plaintiff was then taking 75 milligrams of Lyrica in the morning and 150 milligrams in the evening for her lower back and left groin pain. She took 5 to 10 milligrams of Endone about three times a week for both pains. However, she tried avoid taking this as it made her feel she wanted to vomit.
58 The plaintiff also saw a physiotherapist occasionally to work on her lower back and left hip. She tried to go to the gym two or three times a week to exercise or do Pilates. She felt depressed and teary and let down by the lack of support on her return to work. She was then taking 200 milligrams of Zoloft daily.
59 The plaintiff deposed that despite the pain in her left hip after the 2012 transport accident, she was managing to remain active and continue with most of her activities, along with returning to work. Since her lower back injury in the trolley incident, she needed to modify her lifestyle in very significant ways to manage her pain symptoms.
60 Since the trolley incident, the plaintiff had found it difficult getting to sleep and staying asleep, and she had broken sleep. Pain in her back or her left groin woke her during the night. Also due to stress, she found it hard to get back to sleep once awake.
61 As a single mother, the plaintiff used to do all the housework. However, she found that difficult since the trolley incident injury. WorkCover had approved a cleaner who came once a week, and the plaintiff struggled to do the remaining tasks.
62 The plaintiff had had no problems with shopping before the trolley incident, but now struggled with the lifting and bending involved.
63 Before the trolley incident injury, the plaintiff looked after her garden and lawn at the front and back. The garden was now extremely overgrown.
64 Before the trolley incident injury, the plaintiff enjoyed having a bath, but since had to take showers as it was really difficult, with her back and left groin pain, to get out of the bath. She also found it difficult putting on or taking off her socks, shoes and stockings due to her back and groin pain.
65 Since the trolley incident injury, the plaintiff’s concentration and memory had reduced significantly. She believed that was because of the medication, her pain and the stress caused by her injuries.
66 Before the trolley incident injury, the plaintiff helped with coaching her daughter, Grace’s, Auskick. Since then, the plaintiff did some administration tasks but had given up coaching which she found difficult and painful with her lower back and left groin pain.
67 Before the trolley incident injury, the plaintiff was involved with a lot of activities at Grace’s school. Her participation since, was more limited. She tended to help out if she could sit down and do some paperwork.
68 Before the trolley incident injury, the plaintiff went camping with her ex-partner, daughter and friends about three or four times a year, normally three or four days at a time. Since that injury, she found it difficult going camping and did not go anywhere near as much because of the pain.
69 In about October 2014, the plaintiff’s driving licence was changed to a limited licence because of the physical limitations imposed by her low back injury. She then understood she was not allowed to drive more than 15 kilometres from her home, thus restricting her ability to go to the airport or visit friends. She could only drive an automatic and an SUV. After about 10 minutes, her back and left groin pain was aggravated.
70 Before the trolley incident injury, the plaintiff enjoyed participating in physical activities with Grace, including getting on the floor or playing games with her. These activities were now difficult as was the 10-minute walk with Grace to school. The plaintiff believed she had a lot shorter fuse with her daughter because of her pain and stress.
71 The plaintiff swore a second affidavit on 22 April 2017.
72 The plaintiff’s injury affected her relationship with her ex-partner from about 2012 to 2014. She was more stressed being off work, and found it hard helping out around the house due to her back pain. Their sex life was reduced because of her back pain mostly.
73 In about 2015 and early 2016, the plaintiff had thoughts of harming herself and taking her life, but did not go through with anything because of Grace.
74 In about April-May 2016, the plaintiff’s weekly payments ceased and she started working as a flexi part-time customer engagement consultant with Suncorp. This was the only job she has applied for since the trolley incident.[34]
[34]T37
75 The plaintiff has been working in that role roughly 20 hours a week. She occasionally picks up an extra shift during the week. She works Monday to Thursday, 5 hours each day.[35] Generally, she does not tend to work extra hours because she finds it hard sitting for long periods of time, because of her back pain mostly, but also left groin pain.
[35]T38
76 As of April 2017, the plaintiff was generally working these hours. She had a wireless headset and took phone calls, dealing with home insurance claims.[36] She did not believe she would have told Dr Kenna earlier this year she could work on a full-time basis in that role as she does not believe this is the case. She agreed she is capable of working more than the current hours which she chooses to work.[37]
[36]T37
[37]T40
77 Working from home allowed the plaintiff to stand up, sit down or lie down when she needed to, which she often had to do during the day to help with her lower back pain mostly and also left groin pain. She earned about $20 net an hour and normally earned around $812 net a fortnight, unless she did extra shifts.
78 The plaintiff had found it difficult financially since her injury. She had not been able to repay the mortgage and had lost her work car.
79 Just before Christmas 2016, the plaintiff and Grace moved in with her parents near Gosford, in New South Wales, mostly because of the plaintiff’s finances. She was able to transfer her job with Suncorp to New South Wales as she worked from home.
80 Had she not been injured, the plaintiff would have liked to have worked in a job earning the same sort of money she had before the said date. Now when she worked more hours, she found it more difficult with her lower back pain mostly, and also her left groin pain. When she worked extra shifts, she had to take more pain medication generally and had more lower back and left groin symptoms. She did not believe she would able to work in an office, as it would not have the flexible environment she had at home.
81 As of 22 April 2017, pretty much of what the plaintiff had previously deposed to remained the same, but her lower back pain had got worse. She had that pain a lot of the time, especially after she had returned to work.
82 The plaintiff then also had a dull ache inside her left groin which she got anywhere from roughly once to four times a day, and usually experienced it when she moved her left hip in a certain way.
83 The plaintiff had more pain in her lower back than in her left groin. The left groin pain had stayed roughly the same. She confirmed this description was accurate in April this year.[38]
[38]T51
84 Frequently, the plaintiff felt depressed and sometimes teary. She felt like she had lost a part of her life, lifestyle and being able to work like she used to. She tried not to think about her financial troubles.
85 Since about May 2016, the plaintiff generally did not see her general practitioner for her lower back and groin pain, although a few times she attended for a Zoloft prescription. The plaintiff did not feel like she was getting anything out of these visits as they were not improving her lower back and groin pain.
86 As of April 2017, the plaintiff still took Lyrica in the morning and evening, for low back pain mostly and also for her left groin pain. She was not sure of the dosage. She also took her mother’s medication as she found it hard paying for the tablets herself.
87 The plaintiff took Nurofen Plus or Nurofen, normally once or twice a day, for lower back pain mostly and also her left groin pain. She then continued to take 200 milligrams of Zoloft nearly every day for depression. She had recently seen general practitioner, Dr Tong, who prescribed medication and was thinking about referring her to a pain physician. The plaintiff also used a TENS machine for her back pain, usually once a day.
88 Since moving house, the plaintiff no longer received WorkCover assistance with cleaning. She still found it very difficult trying to do some of the housework, because of her back pain mostly and her left groin pain. Grace helped with the housework.
89 The plaintiff still struggled with shopping, because of her lower back pain mostly and also her left groin pain. Her parents had a gardener to come and clean their garden. If it was not for her injury, the plaintiff would have liked to help out with the gardening.
90 Since the trolley incident, the plaintiff found it difficult putting on or taking off her shoes and stockings, because of her back pain mostly and also her left groin pain.
91 Since her earlier affidavit, the plaintiff’s concentration had improved a little. She now struggled sometimes with concentration and memory because of her pain and medication.
92 Since moving to New South Wales, the plaintiff had not become involved with coaching her daughter’s Auskick.
93 The plaintiff had been told by an occupational therapist for Allianz that she was not allowed to drive more than 15 kilometres from home. Since that advice, when she had to, the plaintiff drove for more than 15 kilometres but tried to avoid doing so. After driving for a short time, her lower back pain mostly got worse and also her left groin pain.
94 Since the trolley incident, the plaintiff had lost confidence and had low self-esteem, which she believed was because she was not able to work like she used to. Work had given her a sense of purpose and focus and she took pride in being able to provide for and support her daughter.
95 The plaintiff’s home was due to settle on 7 September 2017, after she was able to borrow some money from her parents to repay the bank.
96 In about February 2017, on referral from her general practitioner, the plaintiff started seeing Dr Rodney Steventon, a chiropractor, for her lower back pain.
97 The plaintiff was cross-examined about the nature of treatment given to her by this treater, denying that it related to her hip or groin, explaining that Dr Steventon concentrates solely on the area around her cervical spine and the middle of her lower back.[39]
[39]T32
98 Around that time, the plaintiff started to go to the gym to do light exercises on the recommendation of her general practitioner and chiropractor. She also bought a brand new bed as she was struggling to move with back pain when she got out of bed in the morning. This had helped a bit.
99 In about March 2017, the plaintiff started seeing a psychologist, Ms Stephens, to whom she was referred by her general practitioner under a mental healthcare plan.
100 The plaintiff agreed she told Ms Stephens how she has been and how she was coping with things.[40] She had told her she could not even put dishes into the dishwasher and that she avoided any similar activity “like the plague”.[41]
[40]T44
[41]T45
101 In her third affidavit of August 2017, the plaintiff deposed that her pain pretty much remains the same as deposed to in April 2017. She now has a dull ache inside her left groin which she gets usually once a day. She still gets lower back pain a lot of the time which is a lot worse. Generally, her left groin pain is not as bad as it was in April this year. Now, most of the things she finds difficult doing are due to her lower back pain. She now feels frequently depressed and anxious.
102 The plaintiff denied she told Dr Lewis in February this year that her left groin and hip pain could reach as high as 9 out of 10 and that her background back pain was a 3. She told him her back pain could increase to 9 out of 10 and that she had to constantly alternate her weight between her legs in order to make standing more comfortable.[42]
[42]T46
103 Every couple of weeks the plaintiff sees Dr Naumobski, a general practitioner at Dr Tong’s clinic. The plaintiff is now taking about four anti-inflammatory tablets a day for low back pain. She also takes Nurofen Plus, normally once a day for back pain. She is still taking 200 milligrams of Zoloft for her anxiety and depression. She may take Zoloft only once a week as she often forgets to take it.[43]
[43]T48
104 The plaintiff is still using a TENS machine on her back about once a day, and a heat pack on her lower back a couple of times a week. She attends the gym a few times a week. When there, although she does try to take it easy, she mostly cycles on a recumbent bike. She is now also trying to go for short walks a few times a week on the recommendation of her general practitioner and chiropractor. When walking, she takes her dog which is pretty calm and placid.
105 The plaintiff thought she was limping when she saw Dr Kenna in March this year. She limps on and off, not regularly anymore. This situation has improved since that time.[44]
[44]T40
106 The plaintiff agreed she can walk slowly for 20 minutes, as she told Dr Kenna. She has to sit very correctly – sitting upright or leaning forward, otherwise there is an onset of symptoms.[45] She needs to have a firm chair if she can get one.[46]
[45]T40
[46]T41
107 Surveillance of the plaintiff was undertaken on 28 March 2017 when she attended medico-legal examinations with Dr Kenna and Mr Love. She agreed she was shown outside Mr Love’s rooms getting out of a car and wheeling a bag very slowly, deliberately and carefully. She agreed that short video was a true snapshot of the restrictions she faces when walking and how deliberately she walks when she has to walk anywhere.[47]
[47]T58
108 On the film of 7 April 2017, the plaintiff was shown getting out of her four-wheel drive in the driveway at home and leaning forward and checking the letterbox.
109 On 2 June 2017, the plaintiff was shown moving freely for a couple of minutes on a very cold morning outside her Point Cook home.
110 On 24 June 2017, the plaintiff was shown briskly walking up hill on a footpath for a couple of minutes.
111 In the film of 3 June 2017, the plaintiff was shown attending Grace’s netball match for about 20 minutes. The plaintiff walked to the court carrying a canvas chair over her shoulder. She was shown seated in a fold-up chair for three periods of about 15 minutes watching the match and talking to other parents. She was also shown standing and bending, helping the girls with their netball bibs.
112 In the film of 29 July 2017, the plaintiff was again shown at Grace’s netball match with a backpack on one arm and holding a dog in her hand. When moving, around the area near the court, she did so freely and without any apparent restriction. She was shown sitting for about 50 minutes on a wooden log, very low to the ground, at times, leaning forward. When asked whether this was a true snapshot of her level of activity, the plaintiff replied “Yes and No”. She agreed she was shown moving pretty freely, interacting with other people. She agreed there was quite a contrast in those films with her movements shown on 28 March 2017.[48]
[48]T64
113 On the day before the netball on 29 July 2017, the plaintiff could have worked for five hours and had basically done nothing in the morning.[49]
[49]T66
114 The plaintiff agreed that save for the March 2017 film, she was shown in the various films standing sitting and bending at will, moving in an unrestricted manner. She agreed it was a very different presentation to her presentation in Court and to doctors, when she swayed on either foot. She denied she had exaggerated her level of disability to doctors for the purposes of her case.[50]
[50]T65
115 On the morning of 28 March 2017, the plaintiff left home at 2.00am in a taxi to Newcastle airport, an hour and a half trip, and then flew to Melbourne. She did a few things then sat in the shops and went to Dr Kenna’s rooms but went to the wrong address. She panicked about missing the appointment and rushed to the correct address. She then caught a taxi to Mr Love’s rooms. By that time, she was feeling pretty exhausted and sore. When she does a lot like that, her level of soreness changes.[51]
[51]T66
116 In re-examination, the plaintiff described her activities in the 36 hours before coming to Court. The previous day, she had seen the Swans play in Sydney and then stayed in a hotel in Sydney that night. At 7.00am the following day, she and Grace flew to Melbourne. They then caught up with some friends and went to the football and then had a night in the hotel.[52]
[52]T65
117 The level of the plaintiff’s symptoms in the witness box was higher than normal. She was then experiencing pain in the middle of her lower back. She had done nothing significant in the 12 hours before she was shown on film attending the netball.[53]
[53]T67
118 The plaintiff’s back condition really depends on the treatment she has had at the time and what she had done the previous day. At the moment, it is a “roller coaster of good and bad days”. She does what she has to because she has a ten-year old daughter who needs her to be there and who does not have a father. The plaintiff is trying to start a new life and does what she has to survive.[54]
[54]T74
119 When the plaintiff knows she has to do something, she takes Nurofen Plus before and after that activity and uses her TENS machine in the morning. After an activity like watching her daughter’s netball, the plaintiff’s back gets very stiff and she has to take it a bit easy for the rest of the day because she has overdone it a bit.[55]
[55]T75
120 The plaintiff still finds it very difficult trying to do some of the housework because of her back pain. She denied she also had problems in this regard with her hip. She now struggles with shopping because of her lower back pain. She also finds it difficult putting on or taking off her shoes and stockings because of her back pain. [56]
[56]T48
121 Since the plaintiff stopped taking stronger medication, her concentration and memory has become a bit better, although sometimes she still struggles in this regard because of her back pain.
122 The plaintiff still finds it difficult driving more than 15 kilometres or so because of her back pain, and after a short time, her lower back pain gets worse. She presently drives a Mazda SUV which she finds that easier to get in and out of with her back pain, rather than a sedan.
123 The plaintiff still finds it difficult getting to sleep and staying asleep due to her back pain. Now sometimes she wakes in the middle of the night with back pain and she also finds it hard to get back to sleep with her stress.
124 Since the trolley incident injury, the plaintiff’s sex life has reduced because of her back pain. Now if she has sex, it is more painful because of mostly her lower back pain, but also pain in her left hip.
125 Before the trolley incident injury, the plaintiff actively played with Grace a lot more but that is now difficult because of back pain. Before the injury, they went bike riding about once every couple of weeks, but since, the plaintiff has found it difficult doing activities of this nature. She would like to be able to play sports, like netball or badminton, with Grace, but now avoids doing so because of her back pain.
126 The plaintiff agreed that in her April 2017 affidavit, she described problems with both her hip and lower back and how they impacted upon her. Between then and August 2017, the pain has been getting better as she has told the chiropractor, the general practitioner and anyone who would listen to her.[57]
[57]T33
127 Various activities are not affected by the plaintiff’s hip anymore. Hip pain stopped affecting those activities back in 2013-2014. It is now definitely her back. Her hip is the issue when it is moved and rotated in certain areas. If she does a lunge, her hip would hurt but the hip pain itself is not “detrimental” to her activities of daily living.[58]
[58]T49
128 Since swearing her April 2017 affidavit, the plaintiff’s groin pain has improved. She imagined she would have told medico-legal examiners this. The improvement started as soon as she started getting treatment in NSW. When asked the nature of this treatment, the plaintiff mentioned the fact she did not have to do as much as she used to as she was getting assistance from her parents.[59]
[59]T52
129 The plaintiff then said the treatment was from the chiropractor and pain relief. Her understanding was less stress had led to the improvement of her left hip. She had the support of her parents and her daughter. She felt her general practitioner was listening to her and she felt she was getting somewhere with the pain in her hip and she “just felt a lot lighter.”[60]
[60]T52
130 However, the plaintiff agreed, as Ms Stephens reported in July 2017, she was experiencing extremely severe stress.[61]
[61]T53
Summary of the Plaintiff’s taxable income
Financial Year ending Gross Income 30 June 2009 $79,311 30 June 2010 $82,157 30 June 2011 $99,201 30 June 2012 $119,871 30 June 2013 $102,388 30 June 2014 $77,791 30 June 2015 $57,224
The Plaintiff’s treaters
131 Before the trolley incident, on 8 February 2013, the plaintiff was seen by Mr Paul Burns, orthopaedic surgeon, on referral from Dr Leer.
132 The plaintiff then presented with six to eight weeks of problems with left groin pain, which she first noticed after the 2012 transport accident. There was a background ache in the groin, particularly in the morning and evening, and intermittent sharp pain with certain activities.
133 From a clinical perspective, Mr Burns thought the signs seemed more related to the ilio-psoas, and he arranged for an ultrasound, which was reported to be completely normal.
134 On re-examination on 19 February 2013, Mr Burns thought the plaintiff’s symptoms were not severe, and completely eliminated with anti-inflammatories. He recommended conservative therapy. It was a matter of waiting to see if the condition settled; and the next option, if it did not, would be an MRI scan of the hip. Even if the plaintiff had some labral or chondral pathology, Mr Burns would be recommending a conservative course for several months to see if the symptoms would subside.
135 Mr van Bavel, orthopaedic surgeon, wrote to Dr Leer on 14 May 2013, thanking her for referring the plaintiff who had injured her left hip in the 2012 transport accident.
136 On that examination,[62] Mr van Bavel noted that following the 2012 transport accident, the plaintiff had had multiple re‑injuries and most recently ten days ago. She now described pain which was a constant ache felt in the groin, with a severity between 3 to 8 out of 10. She was more comfortable lying than sitting, and driving a car was quite uncomfortable. She often woke once or twice a night due to hip pain.
[62]Ten days after the trolley incident
137 Following examination, Mr van Bavel wondered whether the plaintiff had an internal derangement of the hip, in particular a labral tear, and advised he would like to get an MRI scan and discuss this with her thereafter.
138 The plaintiff’s general practitioner, Dr Caric at Point Cook, last saw her on 16 May 2016 for a work capacity form, noting she had moved interstate to New South Wales.
139 Dr Caric reported that despite feeling psychologically better, the plaintiff was then still in pain, walking with a left leg limp, intermittently pressing the left groin by the left hand. He would not suggest that she perform any job requiring physical straining, long walking, or extended periods of driving, since during consultations she was never calm when seated. He thought she would need some administrative job without physical, and in particular, emotional strain, and in a friendly environment, doing it at her own pace depending on her pain.
140 Dr Caric noted the 2012 transport accident and that the plaintiff was later diagnosed with issues in the lumbar and cervical spine, and also an Adjustment Disorder with Depressed Mood due to physical injury, stress, and anxiety that were work related.
141 Dr Caric listed the various specialists to whom the plaintiff had been referred and that treatment had also included physiotherapy and medications for pain relief: initially Voltaren, then Panadeine Forte, Lyrica, Endone, and Tramadol, as well as, for her mental condition, Zoloft. She also underwent a procedure of corticosteroid injection into the lower back, but she was still in significant pain when last seen.
142 Dr Caric did not think the plaintiff would ever be pain-free, since, after an extended period of time and complex treatment by different medical specialists and physiotherapy, she was in considerable pain. Due to the side-effects of painkillers she could be drowsy, and he thought it important she do her job at her own pace. He noted during her second-last visit to the clinic she was happy for the first time after a long period. Getting a new job greatly improved her mood.
143 Dr Caric referred the plaintiff to orthopaedic surgeon, Ms Manolopoulos, who first saw her on 22 November 2013.
144 In her report of 22 November 2013, Ms Manolopoulos noted the 2012 transport accident and the previous attendance on Mr Burns for hip pain. Further, there was a particular episode at work when the plaintiff was involved in lifting, and she felt a “ping in the hip”, and had ten days off work.
145 Ms Manolopoulos reported that the plaintiff had some pain, particularly over the anterior and was unable to get into the car when visiting her relatives in Sydney. At present, the plaintiff was experiencing daily pain across both hips and across the lower part of her back.
146 Ms Manolopoulos concluded the plaintiff was likely to have back pathology, and her hip findings on MRI were pretty much a “red herring”.
147 Having arranged a lumbar MRI scan with WorkCover funding, Ms Manolopoulos discussed the results thereof with the plaintiff on review on 6 December 2013. In a letter to Dr Caric of that date, she described the plaintiff’s “terrible, terrible pain”. She then planned for the plaintiff to have nerve-root injection under CT.
148 On review on 21 February 2014, seven days after the injection, the plaintiff advised it did not change her pain. She then had 6 to 8 out of 10 pain across her back and in the hip.
149 There were further reviews by Ms Manolopoulos on 7 March, 6 June, 25 July, 8 August and 31 October 2014, and finally, on 16 January 2015.
150 In her report of February 2016, Ms Manolopoulos noted the injury to the spine and hip after the 2012 transport accident. From her point of view, she thought the plaintiff sustained injury to her spine as a disc bulge was seen on the MRI, and also an irritation of her hip, noting the pre-existing pathology.
151 Ms Manolopoulos thought the plaintiff’s current condition had been materially contributed to by the 2012 transport accident, and in addition, the lifting (trolley) incident which occurred in May 2013 had also exacerbated her symptoms.
152 Ms Manolopoulos noted that anaesthetic injections to both the spine and hip had not provided any suggestion of relief. She considered the plaintiff’s prognosis quite guarded, as they really did not have a good handle on where most of her pathology was coming from.
153 Ms Manolopoulos referred the plaintiff to Mr Cunningham, orthopaedic surgeon, in May 2014.
154 Mr Cunningham then noted the plaintiff presented with back pain she had been suffering from ever since she was involved in the 2012 transport accident. She had also been experiencing pain around the left groin.
155 Mr Cunningham noted that Mr van Bavel and Ms Manolopoulos had seen the plaintiff, and she had been diagnosed with femoroacetabular impingement on MRI. The plaintiff’s low back and left groin pain were causing her considerable discomfort, and she had trouble standing for long periods. Her pain was situated across the lower back and was worse with physical activity.
156 Mr Cunningham thought the lumbar MRI showed foraminal disc herniation at L4-5, but he could not really convince himself that it was the source of the plaintiff’s symptoms. He ordered an SPECT scan that day.
157 Mr Cunningham’s diagnosis was that the plaintiff was suffering from axial mechanical back pain without an obvious source, and most likely hip pathology from femoroacetabular impingement. It was his impression the latter condition was causing the bulk of her symptoms, but he lacked the expertise to comment further on that condition.
158 Mr Cunningham believed the plaintiff’s condition had been materially contributed to by the 2012 transport accident. It was quite possibly aggravated by the May 2013 incident.
159 Mr Cunningham’s prognosis was that the pain would resolve with time. His impression was the plaintiff should be able to work with that pain as long as she was able to take regular breaks, analgesics, and not perform any lifting, bending or twisting.
160 On 8 July 2014, Dr Jason Chou, pain specialist, first saw the plaintiff on referral from Ms Manolopoulos. The plaintiff saw him three times, the last being in late November 2014.
161 The history given was of hip pain after the 2012 transport accident, complicated by a mechanical fall a week later. The plaintiff believed her pain was exacerbated by the lifting (trolley) incident. Further, in June 2014, she was involved in another car accident. She described low axial back pain radiating down to the anterior part of her thigh, but not below the knee.
162 Dr Chou diagnosed chronic low axial back pain and left hip pain.
163 From the plaintiff’s description of the 2012 transport accident, Dr Chou thought it appeared there was a relationship between the low axial back pain and left hip pain, and that accident. The plaintiff also described her left hip pain and low axial back pain may have been exacerbated by the trolley incident.
164 Dr Chou noted other factors, including a mechanical fall one week after the 2012 transport accident, and also another car accident in late June 2014.
165 Dr Chou sought funding from Allianz for radiofrequency ablation of the lumbar medical branches bilaterally, and a left-sided sacroiliac joint injection. He was not able to comment on the plaintiff’s ability to perform pre-injury duties and/or alternative employment.
166 The plaintiff is currently under the care of Reliance Medical Practice in West Gosford, New South Wales. Dr Tong from that practice reported on 3 May 2017.
167 Dr Tong advised that the plaintiff’s current diagnosis is chronic back pain from a work injury in 2013. He believed there were still treatment options available to the plaintiff to improve her condition and quality of life. In his view, these could include, but were not exclusive to, ongoing pain relief, physiotherapy, chiropractic review, exercise, physiology review, psychological review and support, pain clinic review, and possibly orthopaedic surgery review.
168 Dr Tong noted the plaintiff’s current medications were two tablets of Zoloft, 100 milligrams daily, and Mobic, one tablet of 15 milligrams per day.
169 The plaintiff is presently having chiropractic treatment from Dr Steventon at Central Coast Spinal Care Centre, to whom she was referred by Dr Tong.
170 In his report of May 2017, Dr Steventon noted that on examination the plaintiff was very protective of the lumbosacral spine and left hip. There was a limited range of motion in both the lumbar spine and hip.
171 Dr Steventon concluded that history and examination findings were consistent with a combination of chronic lumbar discopathy, chronic post-traumatic left hip derangement predisposed by cam type femoroacetabular impingement, bilateral S1 joint degeneration, mild lower lumbar scoliosis, pelvis torsion and shortening and left psoas syndrome, and central sensitisation and chronic pain syndrome.
172 Dr Steventon thought the plaintiff’s case was further complicated by the psychological overlays provided by depression, anxiety, divorce, workplace drama, compensation influences, and the influence of litigation.
173 Due to the chronicity, psychological overlay, and complexity of the multiple issues co‑presenting, Dr Steventon thought the plaintiff’s prognosis must be given as guarded. He expected to make progress with her lower back, but the hip would be “more of a trial of care”.
174 Trish Stephens, psychologist, reported in July 2017. She then thought the plaintiff was currently experiencing extremely severe stress, mild depression and anxiety.
175 Ms Stephens considered the plaintiff would respond well to treatment for her psychological state, and after a period of time, her stress levels should reduce. She noted, however, the plaintiff’s physical injuries had impacted on her daily functioning, which would continue to cause distress until they are resolved.
176 The plaintiff was unable to wash her car, had difficulty putting dishes into the dishwasher, putting clothes on the line or lifting a basket of washing.
177 Ms Stephens reported that she considered the plaintiff had a great level of disability, noting the plaintiff felt her job had been taken away from her because of false allegations of bullying made by a co worker
178 Ms Stephens thought the plaintiff would benefit from further psychological assistance to manage her stress and physical levels
Medico-legal examiners
179 The plaintiff first saw Mr Kossmann, orthopaedic surgeon, in October 2014.
180 The plaintiff then told him of the 2012 transport accident, following which she had some slight pain in her left hip and treated herself with Panadeine Forte.
181 Ten days after that accident when in Sydney, the plaintiff’s left leg gave way, and since then her left hip pain had become worse. She returned to work on 7 January 2017; however, she had a feeling her left hip joint was going to dislocate.
182 The left hip pain became worse, and the plaintiff was referred to Mr Burns, who saw her in February 2013 and recommended an ultrasound, which came back completely normal. The plaintiff was referred to a physiotherapist and chiropractor and returned to work on light duties.
183 In May 2013, the plaintiff had another incident, following which she began to suffer from pain in her lumbar spine as well as her left hip. She was treated with painkillers and given some days off work.
184 Mr Kossmann noted the referral to Mr van Bavel.
185 The plaintiff told Mr Kossmann she had another incident in November 2013 when she was getting out of a car and her back suddenly froze. She was referred by her general practitioner to Ms Manolopoulos, orthopaedic surgeon, and later, Mr Cunningham.
186 The plaintiff then had a car accident whilst in a taxi.
187 The plaintiff was later referred to Dr Chou, who suggested left-sided sacroiliac joint injections and bilateral lumbar medial branch blocks that were performed in August 2014. He also suggested treatment for the left groin.
188 The plaintiff told Mr Kossmann she was not able to stand for long periods. She had pain when she was walking. She had developed pain in her right shoulder, for which she underwent massage. Previous depression had become more severe.
189 The plaintiff had then returned to work, in a return to work program, and had worked for two hours the previous week and for four hours that week, and was slowly increasing her working hours.
190 The plaintiff told Mr Kossmann her social, domestic, and recreational activities had been affected by her lumbar spine and left hip condition.
191 Mr Kossmann diagnosed pain and movement restriction of the left hip, most likely caused by cam type femoroacetabular impingement. He also diagnosed discogenic back pain on the basis of disc protrusions at L4‑5 and L5‑S1 levels, with moderate to severe left foraminal stenosis and impingement of the exiting left L4 nerve root.
192 Mr Kossmann concluded the plaintiff suffered injuries to her lumbar spine and left hip in the 2012 transport accident, and since then had had increasing levels of pain in those areas.
193 Ms Kossmann thought the plaintiff’s injury to her lumbar spine had been caused in the course of her employment. There may have been some degenerative changes in her lumbar spine which were aggravated by the 2012 transport accident. He noted the plaintiff had had several other incidents in which she aggravated her lumbar spine condition as well as her left hip. He then thought that her current condition had been materially contributed to, in part, by the 2012 transport accident, and then as a result of the trolley incident.
194 In Mr Kossmann’s view, time would tell if the plaintiff was able to increase her hours. He thought she would not be able to return to work in her pre-injury duties, but may regain some further work capacity for modified duties. However, she would not be able to walk for long distances on uneven ground, or up and down stairs, or on inclines or declines, or climb up and down ladders, kneel, squat, or carry heavy items weighing more than 10 kilograms.
195 Mr Kossmann re‑examined the plaintiff in February 2017.
196 In his report, Mr Kossmann repeated essentially the same history. He noted the plaintiff’s present complaints were that she was not able to stand for long periods of time, she had ongoing pain when she was walking, and she had gained weight. She told him her previous depression had become more severe.
197 The plaintiff advised Mr Kossmann that since the last examination, she had had to stop work due to back pain and psychological issues at the end of 2014. Since 3 March 2016, she had worked for a call centre, five hours a day, four days a week, from home.
198 The plaintiff told Mr Kossmann her social, domestic and recreational activities had been affected by her lumbar spine and hip condition.
199 On examination, Mr Kossman noted the plaintiff was suffering from pain in her left hip whilst performing internal and external rotation. He thought she should be investigated for advancing osteoarthritis or even an avascular necrosis of the femoral head on the left side.
200 On this occasion, Mr Kossmann diagnosed pain and movement restriction of the left hip and discogenic back pain on the basis of disc protrusions at L4‑5 and L5‑S1 levels, with moderate to severe left foraminal stenosis and impingement of the exiting L4 nerve root. His diagnosis also included “light movement restrictions right shoulder joint”.
201 Mr Kossmann considered the trolley incident in May 2013 was a material cause to the causing, aggravating, accelerating or exacerbating the left hip condition. He made a similar comment as to the plaintiff’s lumbar spine condition, attributing it also to the 2012 transport accident.
202 Mr Kossmann noted as a result of both the plaintiff’s left hip and lumbar spine condition she was not able to walk long distances, walk on uneven ground or inclines or declines, go up or down stairs, climb ladders, kneel, or squat. Depending on the MRI scan he suggested of both areas, he thought the plaintiff may have to undergo further treatment, which may have an impact on her work capacity.
203 Mr Kossmann considered the plaintiff’s lumbar spine and hip condition had an impact on her social, domestic, and recreational activities. He noted she was previously very sporty; however, she was not able to pursue her previous sporting pursuits.
204 Dr Justin Lewis, psychiatrist, examined the plaintiff in February 2017.
205 The plaintiff then described pain in the left hip/groin area which was intermittent in nature, and aggravated with movement. It could reach 9 out of 10 intensity.
206 The plaintiff described chronic back pain, with a background pain of 3 out of 10 which could increase to 9 out of 10 and varied with movement. The pain was aggravated with standing, and she had to constantly alternate her weight between her legs in order for standing to be more comfortable. She had difficulties bending and kneeling, secondary to back pain.
207 The plaintiff told Dr Lewis her pain symptoms had impacted on her ability to engage with her daughter. She had difficulty driving. She had some difficulty with heavier domestic tasks, and had given up a number of recreational interests, including running and netball. She also complained her pain symptoms had contributed to lower libido.
208 Dr Lewis diagnosed an Adjustment Disorder with Depressed Mood, and also thought the plaintiff would meet the criteria for Chronic Pain Disorder. He noted she presented with intermittent depressed mood, sleep disturbance, lack of confidence, and passive suicidal ideation in the context of her changed life circumstances.
209 The plaintiff was then working 20 hours a week in an administrative capacity. She reported reasonably good concentration and motivation. Although her sleep was erratic, this did not appear to be impacting her in an occupational sense.
210 On the history available, and findings on mental state examination, Dr Lewis thought the plaintiff’s work week should not exceed 20 to 25 hours, noting she continued to present with high levels of emotionality on a background of erratic sleep and lowered confidence.
211 Dr Lewis reported the plaintiff had significant difficulty with bending and lifting, which impacted her domestic ability, particularly with respect to heavier items. She had given up a number of recreational interests, including running and netball. She found it difficult at times physically engaging with her daughter in an unrestricted fashion. She described lowered libido and difficulties with intimacy. He noted the plaintiff had been able to maintain an active social life.
The Defendant’s medical evidence
Medical certificates
212 In July 2012, Dr Nguyen certified the plaintiff fit for modified duties because of “reactive stress and depression post bullying complaints and written warnings”.
213 In February and March 2013, as a result of injury at waterpark, the plaintiff was certified fit for alternative duties because of left hip and groin pain. She was then alternating between sitting and standing every half an hour, and able to complete a full day at work with that restriction.
214 In April 2013, the certificate set out symptoms were exacerbated with movements, able to attend work for desk duties only. Full day at work possible.
215 Certificates following examinations in June 2013 detailed “walking down ramp exacerbating hip pain”. The description of injury was “as per previous certificate”. It was noted: “walking for a maximum of 10 minutes; no lifting beyond 3 kilograms; allow to alternate between sitting and standing, as per symptoms; no other restrictions. Able to be in car seated position for half an hour currently before requiring a break: after this, can resume being in car for a further half hour.”
216 A total incapacity certificate, following examination on 20 November 2013, set out the injury as being “MVA and injury to the left hip doing job as sales representative on 17.12.12”. The diagnosis was left hip joint effusion and pain for further investigation.
217 Total incapacity certificates following examination in January-May 2014 set out the same description of injuries, but in addition to left hip nerve root impingement, the plaintiff’s condition was diagnosed as left L5 foraminal stenosis due to the disc protrusion, disc bulge at L5 and L5-S1, Adjustment Disorder - Depression.
218 In August 2013, the same injuries and diagnosis were noted and the plaintiff was certified fit for modified duties on a return to work plan following a case conference on 17 July 2014.
219 Following examination on 12 September 2014, there was the same diagnosis and a 2-kilogram lifting limit, avoiding repeated bending and twisting and no stairs, and return to work as per the return to work plan.
220 From 12 October to 8 November 2014, the plaintiff was certified fit for modified duties as per return to work plan.
221 Following examination on 18 November 2014, Dr Caric noted that due to deterioration of physical symptoms, pain and mobility, as well as, in particular, mental health symptoms, the certification was changed from modified duties to no duties.
222 The parties agreed that weekly payments for total incapacity were paid between November 2013 and July 2014. There was a work capacity for about a month and then alternate duties in August 2014. The plaintiff was certified fit to work from September through to November 2014 – weekly payments were all made pursuant to the 2012 transport accident claim.[63]
[63]T119
Summary of clinical notes
223 Extracts of the clinical records of Regenerate Physiotherapy detailed eight attendances by the plaintiff from 6 May until 17 December 2013.
224 The “current history” on the first examination was noted as “MVA rear-ended another driver on 14 December 2012. Initially not painful injury but gradually developed left hip/leg pain, constant 8 out of 10. Worsened recently when pushed trolley down ramp.”
225 There was no specific reference to any low back complaint or treatment in relation thereto.
226 Clare Foster from Regenerative Physiotherapy reported on 15 November 2013.
227 Ms Foster noted that treatment included pelvic stability exercises, hip and lumbar mobilisation and muscle reactivation with encouragement to swim. It was variable in its result, although the plaintiff said she was receiving relief and able to cope with life if treatment continued.
228 When Ms Manolopoulos first saw the plaintiff on 22 November 2013, she noted the 2012 transport accident and also that the plaintiff was getting worse, “injured on slide on holiday, felt hip give way. Returned to work, felt hip click on out.” There was reference to the trolley incident when the plaintiff felt her hip “ping.” “Now pain across both hips and back.”
229 In a letter dated 15 May 2014, Ms Manolopoulos thanked Dr Chou for referring the plaintiff who had had back pain since the 2012 transport accident.
Investigations
230 The following investigations were carried out:
·X-ray of the left hip and coccyx – 14 January 2013
·MRI scan of the left hip – 30 May 2013
·MRI scan of the lumbar spine – 2 December 2013
·Lumbar nerve root sheath injection – 13 February 2014
·Full spine x-ray – 24 June 2014
·Medial branch blocks and sacroiliac joint injection – 27 August 2014
·X-ray of the left hip and pelvis – 17 October 2014
·CT scan of the lumbar spine – 26 April 2017
·X-ray of the lumbosacral spine, pelvis and hip – 23 May 2017.
The Defendant’s medico-legal evidence
231 In August 2013, the plaintiff was examined by Michael Troy, general surgeon, in relation to the 2012 transport accident injury.
232 The plaintiff told Mr Troy that after that accident, she had pain in the arm, left elbow, left shoulder, and developed a painful leg. Her left hip continued to be sore. Somewhere between Christmas and New Year, her left hip gave way and she literally fell. She then stayed in the office all through April and May and went to work by taxi. There was then the trolley incident.[64]
[64]No mention of back pain
233 The plaintiff complained on examination that her left hip was still painful.
234 Mr Troy diagnosed an internal lesion to the left hip, plus an adductor muscle enthesopathy of the left hip.
235 Mr Troy thought the plaintiff continued to have an impairment syndrome in the left hip, plus an adductor muscle enthesopathy. In his view, she could return to modified duties as she was then doing, with less activity on the road, less walking, squatting and lifting. He thought her current condition directly related to the 2012 transport accident.
236 Mr Bruce Love, orthopaedic surgeon, first examined the plaintiff on 22 January 2014 in relation to the 2012 transport accident.
237 The plaintiff told Mr Love that following that accident, hip pain had persisted. He noted principally injuries to her spine and hip in that accident.
238 The plaintiff also told Mr Love of the trolley incident, where she developed an exacerbation of pain. There was a further episode of severe pain in the left hip in November 2013, and she was also complaining of pain in the lower back.
239 Mr Love thought the diagnosis was inconclusive. The plaintiff appeared to have significant symptoms in the left hip, and he considered an injection of local anaesthetic as a diagnostic test would be useful. He also noted the pattern of pain was not entirely consistent with the lumbar disc injury either. It was reasonable to have an epidural injection. The prognosis was then uncertain.
240 Mr Love noted a precise diagnosis had not been reached, but essentially, the plaintiff was suffering from intense left groin and low back pain. He thought it reasonable these symptoms were a consequence of the 2012 transport accident, and that the current incapacity was still being materially contributed to by the claimed injury.
241 Mr Love re-examined the plaintiff in March 2017.
242 The plaintiff then told him of the 2012 transport accident in which she developed pain in her left hip, and then the trolley incident where she felt a twinging pain in the lower back.
243 Mr Love noted the plaintiff was quite certain that the pain she experiences in the lower back is separate to that which she developed in the left groin as a consequence of the 2012 transport accident. She advised she consulted Mr Cunningham for both her hip and back pain.
244 On examination, the plaintiff was extremely tender in the midline of the lumbar spine and had a negligible range of movement. She walked with a significant limp and could scarcely weight-bear on the left leg with the right leg raised from the ground.
245 Mr Love did not detect any inconsistencies on examination.
246 Mr Love thought the plaintiff was experiencing symptoms which he believed arose from both the lumbar spine and left hip. He noted such a combination of symptoms always made it difficult for practitioners to have absolute confidence as to the source of pain. In his view, the only way the accuracy of a diagnosis could be enhanced would be to perform local anaesthetic infiltration into the hip joint and lumbar nerve roots to see if the pain could be abolished, at least temporarily, in order to make a diagnosis.
247 Mr Love concluded it reasonable to accept that the low back symptoms the plaintiff describes are a consequence of the trolley incident, and the groin/hip pain is a consequence of the 2012 transport accident.
248 Observation of the plaintiff’s gait and a requirement to stand during the consultation suggested to Mr Love that the symptoms were significant in terms of limiting her activities of daily living. He noted that she had to fly from Newcastle to Melbourne for the interview, and that may have contributed to her significant symptoms. The plaintiff’s only current treatment was Lyrica, and she took Zoloft for depression, with the former now an extremely commonly prescribed medication for people with chronic pain.
249 Mr Love noted the plaintiff appeared to be having no other treatment, and in his view, had been inadequately investigated. He thought her prognosis was poor in view of her failure to have a precise diagnosis achieved.
250 Mr Love concluded the plaintiff has a musculoligamentous injury of the lumbar spine, possibly involving facet joints and lumbar intervertebral discs, but the provisions of those findings had not been confirmed in terms of symptoms. He thought she also had an internal derangement of the left hip, which again had been inadequately investigated. He concluded the lumbar spine symptoms were a direct consequence of the trolley incident and that the plaintiff’s pre-existing condition related to the left hip as a consequence of the 2012 transport accident.
251 The plaintiff said the 23 June 2014 transport accident was minor, and did not contribute to her symptomatology. Mr Love therefore concluded the transport accident and the June 2014 motor vehicle accident had not contributed to the plaintiff’s back condition.
252 Mr Love thought the plaintiff could not return to her pre-injury duties, but noted she is now engaged in suitable employment working from home, and he believed her home duties could be on a full-time basis.
253 Dr Shashi Varma, psychiatrist, first saw the plaintiff in February 2014.
254 The plaintiff told Dr Varma of the 2012 transport accident in which she hurt her hip. She returned to work, but gradually her body was falling apart, and she kept stumbling and her hip would be aching.
255 There was a return to work on light duties. The plaintiff was starting to feel a lot of stress. She saw her general practitioner weekly until November 2013, then she stopped work because she collapsed at the hip while she was in Sydney. In the meantime, she put in a bullying case against her employer.
256 Dr Varma noted that nowadays, the plaintiff continues to be in pain. There were also issues in late 2013 regarding the plaintiff’s performance and communication issues at work. At one stage, she was so frustrated she mentioned that if they were not going to help her, she might slash her wrists.
257 Dr Varma thought the plaintiff suffered from an Adjustment Disorder secondary to chronic pain in the hip and back. He did not think psychological treatment was going to help much, noting the plaintiff was receiving Zoloft. He thought her main problem was pain.
258 On examination in November 2014, the plaintiff mentioned things had not changed much since her last visit and she continued to have pain.
259 During the examination, the plaintiff cried profusely and non-stop, and said that the defendant made her life very difficult. She knew they wanted to get rid of her and made ridiculous allegations against her. She had been taken off work by her general practitioner.
260 Dr Varma reported that mental examination revealed a woman who was walking in pain and walking very slowly, putting her hand on her left hip and the left side of her abdomen.
261 Dr Varma thought the plaintiff was suffering an Adjustment Disorder with depression, secondary to chronic pain. He felt that Zoloft may be increased, and that she also needed the support of her psychologist.
262 On re-examination in February 2015, the plaintiff said she had not made any progress. When she was dismissed by the defendant, it also affected her mental health quite a lot, and she felt it was like a kick in the guts. There was also no improvement in her left hip pain, and at times she felt quite hopeless and helpless. She was then taking 200 milligrams of Zoloft per day.
263 Dr Varma diagnosed an Adjustment Disorder with depression, secondary to chronic left thigh pain, which was not improving. He thought that injury was caused by the 2012 transport accident, which hurt her left hip, and the chronicity of pain and being sacked had affected the plaintiff’s mental illness. In his view, she could not return to pre-injury hours of duty, and did not have a work capacity from a psychiatric point of view.
264 In April 2015, the plaintiff was examined by Dr Kenna, consultant in musculoskeletal pain management, in relation to the 2012 transport accident.
265 Dr Kenna noted that in that accident, the nature of injury was severe pain in the left hip and burns to the left arm. On examination, the plaintiff’s complaint was one of back and left groin pain.
266 The plaintiff told Dr Kenna that she had suffered injuries to her back and left hip, which had continued since the accident as the pain diagram indicated. She stated the injuries were as a result of the 2012 transport accident and that the further car accident in late 2014 was minor.
267 On examination, the plaintiff had an altered gait, with a complaint not so much of back, but of left hip or groin pain.
268 Dr Kenna commented that the overall presentation pertaining to the left groin most likely related to left hip symptomatology or pathology. Most likely, the diagnosis was an impingement-type syndrome, and possibly labral tear. He thought it may well be that part of the lumbar symptoms will dissipate with the left hip, if that condition improves.
269 In Dr Kenna’s view, it was difficult to know whether the conditions are actually related or if they are separate. Certainly, he believed a left sacroiliac injection had been performed. Whether it was worth pursuing again was conjectural. Either way, he thought the plaintiff appeared to have certainly a left hip injury, and in view of the substantive reduction of movement in that area, one would have to presume there was an intrinsic lesion. Dr Kenna then thought the plaintiff could work light duties part time, but not pre-injury duties.
270 Dr Kenna re-examined the plaintiff in March 2017 in relation to the trolley incident.
271 Dr Kenna went through with the plaintiff the details of the earlier examination. She stated her back pain results from the trolley incident and her left hip relates to the 2012 transport accident.
272 The plaintiff advised she could walk slowly for about 20 minutes. She has to sit very correctly, otherwise there is an onset of symptoms. She does not do any household cleaning.
273 Clinical examination indicated an individual who had slight alteration of gait, but on examination of the left hip, the plaintiff had a fairly substantial reduction in movement, particularly in abduction, flexion and internal rotation. Her left leg was naturally slightly externally rotated.
274 Dr Kenna thought the plaintiff had lost about 70 per cent of movement of the left hip, but there was no neurological deficit distally at the time of his assessment. On palpation, she was clearly stiff in the lumbar spine, but there was not any frank muscle spasm, and range of movement was better than expected in her thoracolumbar region.
275 Dr Kenna noted Dr Chou’s report, in which he stated the plaintiff had chronic low axial back pain and left hip symptoms, and considered a relationship between the 2012 transport accident and the back as well as the left hip, although the plaintiff begged to differ.
276 Dr Kenna noted from the body of literature, the 2012 transport accident was a causative factor pertaining to the left hip. The back related to the May 2013 trolley incident and a second motor vehicle accident in June 2014 appeared inconsequential.
277 Dr Kenna thought the plaintiff’s condition had remained largely unchanged, and she presented with chronic pain pertaining to the back and left hip. He considered the findings were consistent with the radiological examination, noting there was no frank disc prolapse and normal neurological finding.
278 Dr Kenna thought the plaintiff presented with what now would be a chronic low back condition presenting as stiff and painful. He would therefore consider the lifting incident, which she stated was the causative factor initially, would certainly partially, if not substantially, improve if not resolve. In view of the overall state, he thought it difficult to categorically be definite that the trolley incident continued to be a materially contributing factor to the plaintiff’s current medical condition.
279 Dr Kenna stated, as noted throughout, it was considered that frankly the left hip was more problematic, and that was due to the 2012 transport accident. The plaintiff does not attribute the hip to the lifting incident. She considers the back was injured in the lifting incident, but clinical examination now indicates there is little to find.
280 The plaintiff was quite definite that the trolley incident caused the back pain and the 2012 transport accident caused the left hip pain, and that both were ongoing. Dr Kenna was of the considered view with regard to the alleged trolley incident that any initial causative injury pertaining to the lower lumbar spine has significantly improved, rendering the plaintiff to have a clear work capacity, which she is subsequently now demonstrating.
281 Dr Kenna confirmed that he was of the view any work-related aggravation had substantially ceased. While the plaintiff remained symptomatic in part, taking a look at the historical records, there had clearly been improvement to some extent over time, where she is able to drive, shop and work part time.
282 Dr Kenna asked the plaintiff whether she could perform the duties she was currently doing from home on a full-time basis. After some hesitation, she considered she could possibly just be able to do it. Hence, there is a potential to upgrade from 20 hours per week at this stage.
283 Dr Kenna thought the plaintiff may be most comfortable working from currently 20 hours per week to about 32 hours, “but in a press”, she may be able to get to 38. Certainly, he believed 30 to 32 hours would be well within her capacity.
284 Dr Jager, psychiatrist, examined the plaintiff in August 2017.
285 Dr Jager noted the plaintiff’s marital problems in 2011-2012, and a bullying issue in April 2012. There was then the 2012 transport accident, where the plaintiff developed left hip pain and she hurt her back at work in the trolley incident.
286 The plaintiff told Dr Jager she still has low back pain which does not spread, and she still has left groin pain. She had been referred to a psychologist two months earlier, and she was taking 200 milligrams of an anti-depressant in the morning. She described mood ranging between zero to seven out of 10, and feeling depressed most of the time.
287 The plaintiff reported her current stressors include the pain and injury process, financial difficulties, her ex-husband, her parents’ health, family issues, issues with friends, dislocation and loss of her driver’s licence.
288 Dr Jager diagnosed Chronic Major Depressive Disorder, currently of mild severity. It was constitutional in nature, pre-existing, and at times aggravated by current stressors, some of which are chronic and some of which have come and gone. The current active stressors include pain, financial issues, her daughter’s ADHD and Asperger’s Syndrome, her ex-husband, her parents’ health, housing issues, other family issues, issues with friends, dislocation and loss of her licence.
289 Dr Jager expected, given the plaintiff’s circumstances, that in the future she would experience some symptoms of her Chronic Major Depressive Disorder.
290 In Dr Jager’s opinion, the plaintiff’s maximum work capacity was six hours a day, five days a week, undertaking whatever role she could possibly be trained to undertake.
Surveillance
291 There was a total period of surveillance of 89 hours and 15 minutes, starting in late May 2016, of which there was nearly two hours film.[65]
[65]T77
Vocational evidence
292 In 2014, IPAR suggested a number of suitable jobs for the plaintiff to perform.
293 Rehabilitation counsellor, Mr Stolzenhein, conducted a further vocational assessment for IPAR in August 2017. The plaintiff was then working for five hours a day for up to 22 hours a week with Suncorp.
294 On interview, the plaintiff was observed to stand every 10 to 15 minutes and swaying side to side when standing. She could sit for 10 to 15 minutes before standing for up to 10 minutes.
295 The following jobs were suggested as suitable: call centre worker – $969 per week; telemarketer – $961 per week; general clerk – $1,000 per week.
Overview
296 The defendant does not admit the plaintiff suffered an injury to her lumbar spine in the trolley incident, no claim having ever been made in relation thereto.[66] Counsel for the defendant submitted the plaintiff has not identified either a discrete low back injury or, if so, the extent of any aggravation to her low back as a result of that incident.
[66]T78
Credit
297 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[67]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[67](2010) 31 VR 1 at paragraph [12]
298 Counsel for the defendant submitted the plaintiff’s credit and reliability are very much in issue and that her final affidavit is a “construct” attempting to attribute all her current problems to the trolley incident.[68]
[68]T79
299 It was submitted there was a real conflict between the way the plaintiff presented in Court and to medical examiners, swaying from side to side and leaning forward, with how she was shown on film, particularly moving freely at the netball. Further, she quickly adopted her very limited movement outside Mr Love’s room as being a true snapshot of her level of mobility, not giving “a good and bad day” explanation until re-examination.[69]
[69]T80
300 Given the plaintiff’s relatively normal movements on film, particularly at the netball on two occasions, it was submitted it was an exaggeration when she told her psychologist, Ms Stephens, that she could not even wash the dishes. [70]
[70]T88
301 It was also submitted the plaintiff’s evidence that her hip stopped being a problem in 2013-2014 was utterly irreconcilable with her later affidavits.[71]
[71]T81
302 Further, having denied currently undergoing chiropractic treatment for her hip, the plaintiff then explained a recent improvement in her hip condition was due to treatment. [72]
[72]T87
303 Counsel for the plaintiff submitted that the credit attack based on the film was “unexpected.” I advised however that I disagreed.[73]
[73]T103
304 Counsel for the plaintiff sought to explain the plaintiff’s behaviour, relying on her description of her significant activities before her disabled presentation when attending Mr Love and her evidence as to her relative level of inactivity prior to attending her daughter’s netball matches when she was filmed moving freely and without apparent restriction.[74]
[74]T104
305 Further, it was submitted that neither Mr Love nor Mr Kenna thought the plaintiff was “putting it on” when they examined her in late March this year and they had not been asked to comment on the film.[75]
[75]T104
306 It was submitted the plaintiff had taken medication before undertaking the activities shown on film.[76]
[76]T104
307 I indicated to counsel for the plaintiff that I found it difficult to accept, with her level of complaint the plaintiff chose to sit for almost an hour on a low, log fence watching the netball.[77]
[77]T105
308 In response, counsel for the plaintiff simply replied, the films had to be looked at in context and submitted they were not damaging when so viewed.[78]
[78]T106; Alcoa of Australia Ltd v McKenna (2003) 8 VR 452
309 In my view, the plaintiff is an intelligent woman who was aware of the importance of focussing on the trolley incident back injury and downplaying any role played by her hip condition. Very telling evidence in this regard was her attempt to attribute a recent improvement in her hip condition to treatment after specifically denying she had undergone any treatment for her hip from her current chiropractor.
310 For the plaintiff to say her hip has not really been a problem since 2013-2014 is totally inconsistent with her affidavit evidence of ongoing complaints and her history to doctors as recently as Dr Lewis in early 2017 of hip pain of 9 out of 10, a history she denied.
311 The plaintiff also complained of significant hip pain when examined by Mr Love and Dr Kenna in March 2017, the later having found she had then lost 70 per cent of movement in the hip. Clearly, from Mr Steventon’s report, hip pain is an ongoing problem for the plaintiff.
312 I do not accept the plaintiff was a credible witness and in those circumstances, rely to a large extent on the objective evidence of the progress and severity of her lumbar and hip condition and her contemporaneous reporting in relation thereto rather then what I find to be a reconstruction by her to suit the purposes of this application.
313 Whilst Dr Kenna and Mr Love did not comment on any exaggeration or inconsistencies on examination, their ultimate view was based largely on a definitive history given by the plaintiff to them, attributing significant problems for the first time to the trolley incident alone. In any event, Dr Kenna considered the plaintiff’s main problem was her hip and that any back injury from the trolley incident had certainly partially, if not substantially, improved, if not resolved.
314 In these circumstances, I am mindful of what was said by the Court of Appeal in Dordev v Cowan[79] in relation to the plaintiff’s credit in this type of case. As Chernov JA said, a plaintiff’s credibility is relevant not only to whether her evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[80]
[79][2006] VSCA 254
[80](supra) at paragraph [14]
315 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to her credit.
Compensable injury
316 Counsel for the defendant submitted the plaintiff’s contemporaneous reporting is more likely to be accurate than the “recent retrospective analysis” which was an “attempt to reconstruct and to mould things into fitting into the pigeon hole for the purposes of this case”.[81]
[81]T79
317 It was submitted the plaintiff’s evidence about a “twang” or “ping” in her hip in the trolley incident is an accurate description and only recently that has changed to a twinge in her low back.[82]
[82]T81; Mr Love 2017 and psychologist Ms Stephens
318 On 4 May 2013, when the plaintiff was first seen after the trolley incident, she made no mention of back pain, stating minutes after moving boxes, she experienced severe hip pain. On examination two days later, Dr Leer noted the plaintiff felt hip pains/twinge on rolling stock down the ramp … took Nurofen Plus felt much worse back and neck developed afterwards”.
319 This appears to be the only mention by that doctor of there being any back pain associated with the trolley incident.
320 Dr Leer recorded normal lumbar movements when the plaintiff was examined on 23 May 2013. Further, apart from these two visits, there were 28 further visits to this practise before low back pain was noted again on 3 December 2013, despite the plaintiff’s evidence that she made such complaints to Dr Leer. As the Court stated in Philippiadis v Transport Accident Commission:[83]
“Where an injury is having serious health consequences for a patient, and that patient visits his or her general practitioner on a regular basis, it would be very unusual for the patient not to mention those consequences and for the medical practitioner‘s clinical notes not to refer to them over a lengthy, continuous period of time.”
[83][2016] VSCA 1 at paragraph [106]; T91
321 Medical certificates completed by Dr Leer in June 2013 refer to the trolley incident exacerbating the plaintiff’s hip problems. The first mention of a back injury was on the 17 January 2014 certificate and that was said to be an injury resulting from the 2012 transport accident.[84]
[84]T86
322 In his 2017 report, Dr Caric diagnosed hip and back following the 2012 transport accident. There was no mention of the trolley incident.[85]
[85]T85
323 Counsel for the defendant submitted physiotherapist, Clare Foster’s, clinical notes contained no reference to low back pain nor did her report of 15 November 2013.
324 In his May 2013 report, whilst noting the 2012 transport accident, Mr van Bavel referred to multiple re-injuries including ten days ago earlier where there was hip and groin pain. It was submitted “it beggars belief” the plaintiff did not then tell him of any back problem. [86]
[86]T84
325 Ms Manopoulos, on 2 November 2013, took a history of the plaintiff feeling a “ping” in her hip in the trolley incident with no mention of back pain.
326 Mr Cunningham, in his May 2015 report, made no mention of the trolley incident, and attributed low back and hip to the 2012 transport accident.
327 Whilst the plaintiff’s main complaint from the trolley incident was hip pain, I do accept she also suffered injury to her back.[87]
[87]T83
328 Dr Leer did note a complaint of back pain on 6 May 013.
329 Ms Foster’s report mentioned the L3 facet being markedly tender. Further, her diagnosis in correspondence to Allianz was “right sacroiliac stiffness ...”. Treatment was proposed for session of mobilisation and manipulation of the lumbar and SIJ, pelvic soft tissue release with muscle balance”.[88]
[88]T108
330 As counsel for the defendant conceded, Dr Chou in his report of 8 July 2014 thought the plaintiff had low axial back pain as a result of the trolley incident.[89]
[89]T90
331 Ms Manopoulos noted in November 2013 that the plaintiff was then suffering pain across the lower part of her back and later reported in February 2016 that she thought the plaintiff had exacerbated her symptoms in the trolley incident.[90]
[90]T90
332 In my view however, any back injury from the trolley incident was of not real significance to the plaintiff who did not even mention it when examined by Mr Van Bavel ten days later of to Mr Troy on examination in August 2013.
333 Further, whilst I accept that there was some evidence of a back injury in the trolley incident, there was also evidence that the plaintiff injured her lumbar spine in the 2012 transport accident. In those circumstances, any back injury in the trolley incident five months later is an aggravation thereof.[91]
[91]T83
334 As counsel for the defendant submitted, the plaintiff’s own treaters almost universally say the low back was implicated in the 2012 transport accident.[92]
[92]T81
335 The general practitioners’ certificates and reports to this effect have been detailed earlier in this judgment. In her February 2016 report, Ms Manopoulos stated she thought the plaintiff’s spine and hip were injured in the 2012 transport accident.
336 Mr Cunningham, having made no mention of the trolley incident in his May 2014 report, in his report of May 2016, stated that the plaintiff’s back pain had been materially contributed to by the 2012 transport accident and it was also quite possible it had been aggravated by the trolley incident.
337 Dr Chou, in his June 2015 report, attributed low back and hip pain to the 2012 transport accident and thought there may have been an exacerbation in the trolley incident.
338 In his reports of October 2014 and February 2017, Mr Kossman thought the plaintiff had injured her back and hip in the 2012 transport accident.
339 In his April 2015 report, Dr Kenna noted the plaintiff stated that injuries to her left hip and back were as a result of the major 2012 transport accident.
340 In January 2014, Mr Love also thought the 2012 transport accident was implicated in the plaintiff’s back complaints.[93]
[93]T90
341 Both Dr Kenna and Mr Love changed their view, having been given a different history by the plaintiff in 2017.
342 I must then determine the extent of trolley incident back injury in light of the paucity of early complaints of back pain, attribution by doctors of back pain to the 2012 transport accident and what I consider to be significant ongoing hip problems thereafter.
343 Whether there is a pre-existing hip or back condition, issues of aggravation arise involving the principles in Petkovski v Galletti.[94]
[94](1994) 1 VR 436, followed in AG Staff Pty Ltd v Filipowicz [2012] VSCA 60
344 In these circumstances, I must consider what the evidence discloses as to the plaintiff’s condition prior to the said date and determine whether the additional impairment resulting from the trolley incident is serious and permanent.
345 In Petkovski,[95] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
[95] (supra)
346 Counsel for the plaintiff submitted the plaintiff’s own evidence and that of Mr Love can establish there was a serious aggravation of the plaintiff’s lumbar condition in the trolley incident.[96]
[96]T111
347 Whilst there was an impaired ability to drive due to the hip injury, that did not persist. It was submitted that when one looked at the progress of the hip injury, by June 2013, the plaintiff was back on the road, working from home.[97] During August 2013, she drove to Hamilton and also was driving when she saw Mr Troy that month.[98]
[97]T114
[98]T113
348 It was submitted as at the said date, the plaintiff was back at work, although needing treatment and still in pain and under investigation.[99] As at mid 2013, her hip was not incapacitating her for employment.[100] Further, there was no evidence her hip had deteriorated from that time.[101]
[99]T116
[100]T125
[101]T13
349 The plaintiff then undertook normal duties with the defendant until having a back spasm in Sydney in November, following which she was grossly restricted.[102] It was submitted that spasm was a progression of her back condition, not a new injury.[103]
[102]T115
[103]T116
350 It was submitted the plaintiff ceased work at that time due to this back spasm and back pain was her main problem thereafter.[104] As the plaintiff deposed in her first affidavit, following the lower back injury in the trolley incident, she needed to modify her lifestyle in very significant ways to manage her pain symptoms.
[104]T116
351 Counsel for the plaintiff submitted the back injury from the trolley incident in May “rumbled” along until the spasm, when it became more florid and incapacitating, causing the plaintiff to be put off work and undergo injections in her back. It was submitted the fact that she benefitted from that procedure confirmed her back was the site of the pain.[105]
[105]T124
352 However, on a close analysis of Dr Leer’s notes, it is apparent the plaintiff had ongoing problems during 2013 with her hip both at work and in other activities leading to a flare up of hip pain in November 2013, causing her to cease work - not due to back pain as her counsel submitted.
353 Dr Leer’s notes contain reference to ongoing hip complaints on 14 and 21 January and 1 February 2013. She noted, on 18 February 2013, there was no change in symptoms and the plaintiff was to see Mr Burns the following day.
354 The following are extracts from Dr Leer’s clinical notes leading up to the trolley incident.
·5 March 2013 – The plaintiff was referred for a second opinion:
“Pain ongoing esp on internal rotation ++limitation on squatting and when in flat shoes.”
· 8 April 2013:
“Over the last week has become more achey…. Worse on sitting in car constantly present with intermittent exacerbations, can be exacerbated randomly by either sitting or walking, increasing use of pain relief now. Now not able to drive as easily, lifting leg into the car, walking limited. Now not able to walk as much as previously. ‘over it’. Can be rated up to 7/10 at its peak.”
A certificate was issued until 2 April 2013.
· 16 April 2013 – The plaintiff doing desk duties. Advised getting in and out of the car repeatedly was the problem. If seated for more than twenty minutes, hip seizes up:
“Long walks are difficult, greater than five minutes. Wants to be left alone to do her job. feels hysterical.”
A bullying allegation was noted.
·30 April 2013:
“Can have aches sitting in the car, ongoing, but not until after two hours driving. Despite that, felt best to limit driving to half an hour.”
355 On 4 May 2013, the plaintiff reported to Dr Nagla severe hip pain after the trolley incident. On attendance two days later with Dr Leer, the plaintiff first mentioned a sore back.
356 Following the trolley incident, it is the plaintiff’s hip which continues to be mentioned in the clinical notes, with the next lumbar spine reference on 3 December in the context of recent investigations organised by Ms Manopoulos - not a complaint of lumbar pain by the plaintiff.
·8 May 2013:
“Reviewed post aggravation of hip pains on Friday, no change in symptoms.“
Attendance with Mr van Bavel.
·15 May 2013 – The plaintiff had been seen by an orthopaedic surgeon yesterday who had no idea what was going on. WorkCover certificate for desk duties from home, vibration of car causing pains.
·23 May 2013 – Passive flexion of the hip causing discomfort. Overall the symptoms felt improved.
·7 June 2013:
“Getting better. Had been driving again now, not working from home and found that stopping frequently helped. After thirty minutes in the car, onset of aching hip. Took break. Walking for more than ten minutes, recurs. By the end of the week can have ache onset earlier by five minutes timeframe. Felt will defer steroid injection for now.”
·14 June 2013 – Improved after physiotherapy. Input felt longer. Can have pains if acts quickly, for example, running to a parking metre.
·28 June 2013:
“Back at work. Drove to Colac yesterday. 1.5 hours no issues with hip pain on outward journey- but on return journey needed to stop and stretch x 2 came good quickly- when tries to rush can cause pain… can be unpredictable. .. with slight jogging at Auskick felt soreness.”
·12 July 2013:
“Driving was most problematic, restricted to half an hour ongoing with breaks if needs to do further. No issues with walking now. Pain in hip area. plan for a review in a week increase duties which are not causing problems now at all, such as walking and lifting, allow driving restriction to remain.”
·22 July 2013 – (Dr Nguyen) had motor vehicle accident and left hip pain soon after that, now occasional aches with walking and also in the car for long periods.
·12 August 2013 – Feels ongoing aching in hip, driving ongoing limitation. No walking issues, restriction removed.
·16 August 2013:
“Crying today, sick of it, not knowing what wrong with it. Taking Nurofen regularly, feels as though back to decreased mobility which she had in May. Had contact Mr van Bavel re an injection into the hip area. On examination, extreme pain.”
·19 August 2013 – constant ache, encouraged re increased pain relief. Physiotherapy helped with pain. Reduced walking, and sitting and driving times.
·26 August 2013 – Did drive to Hamilton. Three hours, stopping every half hour. Was able to do this, but needed to stop as Certificate. Ongoing input physiotherapy. To see orthopaedic back specialist next week. ? hip injection.
·30 August 2013 - note from Ms Foster:
“Her hip anterolateral pain continues with prolonged driving and fast walking. Though she has no back pain, L3 facet left refers direct pain to the hip. Consider referral to Dr Jensen in Footscray? Felt there was some spinal reference there, and though there is no nerve root compression, there may be some way of blocking her pain from the spinal level.”
·2 September 2013 – Feels much improved, used manual car over the week. Pushing clutch problematic but, overall, felt back to preset back stage.
·9 September 2013 – “Getting a bit better.” Examination showed internal rotation slight movements caused pain, as did external rotation. Encouraged to keep restriction same when at and out of work.
·16 September 2013 – “Fine”, but aching more in the last two weeks, rated 3 out of 10.
·23 September 2013 – Alternating position means symptoms less likely to occur.
·1 October 2013 – Increased limitations by 15-minutes’ duration, allow alternating position, ongoing. Will be doing some driving this week, so see how it goes.
·7 October 2013 – Going to Hamilton this afternoon, driving.
·14 October 2013 – Drove to Hamilton, but stopped every hour, onset of aching at this time.
·21 October 2013 – Duration of restriction lifted - longer duration of activities.
357 The plaintiff deposed that in November 2013, she was getting out of car in Sydney when she remembered her back freezing up on her.[106] Her history to Mr Love in January 2014 however was that there was a further episode of severe pain in the left hip in November 2013.
[106]History to Mr Kossmann in 2014
358 However, as I indicated during the hearing, Dr Leer’s notes as at November 2013 refer to the hip flaring up.[107]
[107]T131
·12 November 2013 – Hip flared up again in the last forty-eight hours. Due for physiotherapy yesterday. Rescheduled same. Went to Sydney for weekend to visit mother. No provoking movements. Has increased analgesia for this today. No lifting etc. Pain on hip examination.
·13 November 2013 – Represented as no better post flare up. Hip strapped
·15 November 2013 – Constant pain and difficulty to get into the car and walking problematic. Sitting painful also. Not able to drive her daughter to school. Distraught. Increased Panadeine Forte.
·19 November 2013 – Reviewed regarding flare up. Not happy to sit in taxi for half an hour for fear of damage to the hip.
·20 November 2013 – Coming from waiting room limping and holding her left hand in her pocket. Pressure on the inguinal area, obviously in pain despite the use of Panadeine Forte. Crying during consultation because of frustration and pain. She stated she has got present desk duties. Queried. Ask why WorkCover when she had problem in the car accident.
359 Dr Caric’s certificate following examination on 20 November 2013 was for total incapacity for the following month, due to the left hip injury suffered in the 2012 transport accident.
360 On 3 December 2013, Dr Caric noted:
“Seen by Ms Manolopoulos, presumed there was a bulging disc. Plaintiff was still on painkillers, and still in pain, but with smile walking slowly from waiting room. Started to cry when mentioned workplace and that they don’t believe she is in pain. Thereafter, there were references to disc bulge at L5 and L5-S1, L4 nerve root impingement MRI scan.”
361 I do not accept, as counsel for the plaintiff submitted, that the plaintiff “certainly was put off work around that time because of back problems”. Whether or not Ms Manopoulos thought the hip was a red herring, clearly it was causing the plaintiff significant problems at this time. [108]
[108]T132
362 The plaintiff deposed she tried to return to work in September 2014 but stopped in November that year because of back and left hip pain and also some work stress. Her employment was terminated in April 2015.
363 There was a couple of months during which she returned to work October to November 2014 and she had worked since.[109]
[109]T116
364 As noted earlier, the certificates throughout 2014 are for a range of conditions which are said to be attributable to the 2012 transport accident and weekly payments were made under that claim.
365 An examination of the clinical notes leading up to November 2014 does not show increasing lumbar complaints during that time although every entry from Dr Caric starts with:
“Disc bulge at L5 and L5-S1, L4 nerve root impingement (MRI) left hip joint effusion and pain for further lx, Left L5 foraminal stenosis due to disc protrusion (left).”
366 Norspan patches were prescribed in mid December 2013 and Lyrica was prescribed in January 2014 but the notes do not indicate for what condition they were prescribed.
367 Further, during that year, the plaintiff complained of significant psychiatric problems. In February, she advised her general practitioner that she had told WorkCover she would slash her wrists as she was frustrated her payments had not been made.[110] At that time, stress and an Adjustment Disorder were added to the list of diagnoses, and the plaintiff was prescribed Zoloft.
[110]History to Dr Varma
368 When Dr Varma, psychiatrist, examined the plaintiff in November 2014, he reported she was walking very slowly, putting her hand on her left hip. The plaintiff cried profusely and non-stop about her treatment by the employer which had made ridiculous allegations against her. He then diagnosed an Adjustment Disorder with depression, secondary to chronic pain. On re-examination in February 2015, there was no improvement in hip pain. The plaintiff felt quite hopeless and helpless and Dr Varna thought there was no work capacity from a psychiatric point of view.
369 The plaintiff also had persisting right shoulder pain in November 2014 which she reported to medico-legal examiner, Mr Kossmann, at that time
370 It is clear the plaintiff went off work finally in November 2014 for a number of health reasons, with Dr Caric mentioning mental health issues in particular, noting symptoms of a Major Depressive Disorder on 25 November.
371 In these circumstances, I do not accept, as counsel for the plaintiff submitted, that the plaintiff’s back condition put her off work, nor is it the reason she has continued to stay off work.[111]
[111]T128
372 Further, I do not accept that treatment after the November spasm was principally focussed on the back as counsel for the plaintiff submitted.[112]
[112]T133
373 From May 2013 to late 2014, it appears the plaintiff had physiotherapy for both her back and hip from Ms Foster. From February 2017, the plaintiff has been having chiropractic treatment from Dr Steventon in relation to both the back and hip, with that treater describing hip treatment as a “trial of care”. On examination in May this year, he noted the plaintiff was very protective of both her hip and back and there was a limited range of movement in both areas.
374 In earlier years, treatment for the back and hip was along similar lines, with investigations being arranged by both treaters and medico legal examiners.
375 Mr van Bavel organised a left hip MRI scan on 30 May 2013. Mr Cunningham suggested further investigations of the hip in May 2014, at which time he thought the bulk of the plaintiff’s symptoms were hip related.
376 The plaintiff had injections into her hip in March and August 2014. Dr Chou suggested a further injection in late 2014 which did not take place.
377 A scan of the groin and then x-rays of the left hip were organised by Mr Love in late 2014.
378 Following the trolley incident, an MRI scan of the lumbar spine was organised by Ms Manolopoulos on 2 December 2013 and a full spine x-ray was undertaken on 24 June 2014,
379 The plaintiff had a cortisone injection in the lumbar spine on 13 February 2014 and lumbar medial branch blocks on 27 August that year. Further blocks and also radiofrequency denervation suggested by Dr Chou at the end of 2014 did not take place.
380 There was a CT scan of the lumbar spine on 26 April 2017 and on 24 May 2017, both the plaintiff’s spine and hip were x-rayed.
381 The plaintiff has not been seen by a specialist for either her hip or back since early 2015 when last seen by Miss Manopoulos who, at that stage, was not sure of the cause of the plaintiff’s pain.
382 Having last seen the plaintiff in May 2016, Dr Caric did not mention her medication regime in his report nor for what condition any medication was being prescribed. Further, having made no mention of the trolley incident and noting only the 2012 transport accident, he simply listed the hip, back and psychiatric problems referred to at the start off all the entries in the plaintiff’s clinical notes during 2014.[113]
[113]See paragraph 364 of this judgment
383 Dr Caric did note however when he last saw the plaintiff, she was then still in pain, walking with a left leg limp intermittently pressing the left groin by her left hand.
384 There is little evidence from the plaintiff’s current treater, Dr Tong, as to her medication regime and condition generally. In his brief May 2017 report, he diagnosed chronic back pain, made no mention of any current hip problems and simply stated the plaintiff was taking one Mobic a day.
385 In February 2016, the plaintiff deposed she was taking Lyrica and Endone for both her back and hip. In April 2017, she was taking Lyrica mostly for back, also left groin, and also Nurofen – one to two per day for back pain mostly, and also left groin pain. In August 2017, she was taking Nurofen Plus, one a day for the back and about four anti-inflammatories a day for back pain.
386 The plaintiff deposed in April 2017 that her back pain had worsened and she suggested her hip had improved. However, it is not apparent from any treater this is the case, or why the plaintiff’s current medication is just for her back as she recently deposed.
387 In Peak Engineering & Anor v McKenzie,[114] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[114]Supra
388 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[115]
[115]At 1
389 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the non compensable injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[116]
[116](supra) at paragraph [2]
390 Counsel for the defendant submitted the plaintiff’s hip still plays a significant part in her current presentation. Further, the August 2017 affidavit is a “construct” and tries to step away from the continuing hip complaints for which the plaintiff is still being treated.[117]
[117]T98
391 It was submitted examiners like Mr Kossmann attribute the same consequences to both the compensable back injury and non-compensable hip injury, thus the disentangling required has not been done with identical descriptors.[118]
[118]T99
392 Further, it was submitted the plaintiff’s psychiatric condition also contributes to her to work incapacity.[119] There is no doctor who says she cannot work more than 20 hours and she herself she says she could work more hours.[120]
[119]T100
[120]T102
393 In any event, it was submitted the plaintiff cannot establish the limited hours presently worked relate to her back alone. It is a combination of back, hip and psychiatric issues.[121]
[121]T10
394 Whilst counsel for the plaintiff submitted the plaintiff’s back condition is her major problem, it was conceded the plaintiff’s hip problem persists. Her hip condition has not deteriorated but her back injury has.[122] The plaintiff still mentioned a hip problem in her August affidavit and did not say it is recovered.[123]
[122]T119
[123]T121
395 As I indicated during the hearing, I had great difficulty reconciling the plaintiff’s earlier affidavit evidence and history to numerous doctors with her evidence given in court, now attributing most of her problems to the trolley incident injury.
396 Counsel for the plaintiff submitted the non-compensable hip injury was not being minimised by the plaintiff; it is persisting. I disagree. In my view, the plaintiff played down the effects of any hip problems and maximised the consequences of the compensable back injury.[124]
[124]T127
397 The plaintiff attributed all her problems to both conditions, particularly in her first affidavit, but then the hip involvement gradually decreased in the second and final affidavit without any satisfactory explanation.
398 The plaintiff’s current evidence is that various activities are no longer affected by hip pain. Her hip stopped affecting the range of activities mentioned in her affidavits back in 2013-2014. It is now “definitely her back”. Her hip is the issue when it is moved and rotated in certain areas. If she does a lunge, her hip would hurt but the hip pain itself is not “detrimental” to her activities of daily living.[125]
[125]T49
399 The plaintiff agreed that in her April 2017 affidavit, she described problems with both her hip and lower back and how they impacted upon her. Between then and August 2017, she explained the pain has been getting better “as she has told anyone who would listen”.[126]
[126]T33
400 The plaintiff however told examiners such as Mr Kossman in February this year that her social domestic and recreational activities had been affected by both her hip and back, and he accepted that was the case.
401 Problems with mobility, interference with social, domestic and recreational activities, in my view, result from both the plaintiff’s hip and back condition, as examiners such as Mr Kossman opined.
402 I am unable on the evidence available in this complicated case to identify the consequences properly referable to the trolley incident injury and therefore cannot be satisfied that any such consequences thereof are serious in terms of pain and suffering and loss of earning capacity.
403 This task has been made extremely difficult in this case by the following:
· The role of the 2012 transport accident in the plaintiff’s present lumbar condition.
· The lack of early complaint of back pain after the trolley incident.
· The flare up of hip injury causing the plaintiff to initially go off work in November 2013.
· A range of health problems, primarily psychiatric, resulting in the plaintiff finally ceasing work in November 2014.
· Lack of evidence as to any deterioration in the plaintiff’s lumbar condition in recent times as a consequence of the trolley incident.
· Significant issues with the plaintiff’s credit.
· Significant ongoing hip and psychiatric problems.
404 Clearly working her present 20 to 25 hours per week earning approximately $800 per fortnight, the plaintiff is earning significantly less than the amount of $119,000 she earned in the year of the incident.
405 It is not disputed that the appropriate “without injury” earnings figure is about $1,400.[127]
[127]T134
406 Counsel for the plaintiff submitted, whilst there some evidence of incapacity on psychiatric grounds, there is medical evidence of physical incapacity.[128] Dr Kenna and Mr Love considered the plaintiff is now doing suitable employment. Whilst they thought the plaintiff could work further hours, even on a full-time basis, the plaintiff would suffer the requisite loss.
[128]T133
407 Having established the requisite loss, it was submitted the plaintiff would also succeed on the basis of Acir,[129] under both heads.[130]
[129]Supra
[130]T134
408 For the reasons earlier expressed as to the pain and suffering application, taking into account all the evidence, I am not satisfied the plaintiff has suffered the requisite loss of earning capacity as a result of a lumbar condition related to the trolley incident. The necessary disentanglement simply has not be done.
409 In addition to ongoing significant problems with hip pain and restriction, the plaintiff continues to suffer from anxiety and depression and requires Zoloft 200 milligrams daily. She is undergoing counselling with Ms Stephens, who considers her to be currently experiencing severe stress.
410 Earlier this year, Dr Lewis thought psychiatrically, the plaintiff could not work more than 20 to 25 hours per week, noting she continued to present with high levels of emotionality on a background of erratic sleep, lowered confidence and passive suicidal ideation in light of her changed circumstances. He diagnosed an Adjustment Disorder with Depressed Mood, also meeting the criteria for Chronic Pain Disorder.
411 As of August this year, Dr Jager diagnosed a Chronic Major Depressive Disorder of mild severity, noting a long history of psychiatric problems. He thought the plaintiff’s maximum work capacity was 30 hours per week.
412 Having found the consequences of any back injury suffered in the trolley incident alone are not serious consequences in terms of pain and suffering and that the plaintiff has not established a loss of earning capacity of 40 per cent, the applications are dismissed.
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