White v Lanteri Fruit Supplies
[2009] VCC 413
•1 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-07-03571
| VALMAI WHITE | Plaintiff |
| v | |
| LANTERI FRUIT SUPPLIES | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 & 27 February 2009 |
| DATE OF JUDGMENT: | 1 May 2009 |
| CASE MAY BE CITED AS: | White v Lanteri Fruit Supplies |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0413 |
REASONS FOR JUDGMENT
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Catchwords: s.134AB Accident Compensation Act 1985 – serious injury
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC | Maurice Blackburn |
| Mr B Hutchinson | ||
| For the Defendant | Mr J Ruskin QC | Minter Ellison |
| Mr C Hangay | ||
| HER HONOUR: |
Introduction
1 In the relevant period as part of its business, the defendant grew vegetables, including peas, beans and broccoli. From 17 November 1997, the plaintiff was employed by the defendant as a casual picker until either October or November 2000.
2 By an originating motion filed on 12 September 2007, pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”), the plaintiff seeks leave to commence proceedings for damages for injury to her lumbar spine suffered, she said, in the course of her employment on or about 18 October 2000. In particular, the plaintiff relied on the onset of severe low back pain whilst sitting on a mat and leaning forward to pick peas. The plaintiff said that she never returned to gainful employment, making a claim for compensation some 18 months or so after the alleged incident.
3 The application is made under paragraph (a) of the definition of serious injury, that is, serious permanent impairment or loss of function of the lumbar spine by reason of permanent aggravation of pre-existing degenerative disease.
4 The application is for leave in respect to pain and suffering damages only.
5 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering consequence of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the lumbar spine, is more than “significant” or “marked” and at least “very considerable”.
6 The decision of the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 explains the correct approach to the statutory formulation for determining an application for leave to commence proceedings for damages. In summary, the plaintiff must establish:
(a)
a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease;
(b) the nature of the injury; (c)
the consequences at the date of hearing, in this instance confined to pain and suffering, to which compensable injury materially contributes; and
(d)
that those consequences are serious in the sense that they are permanent and “very considerable”.
The areas of dispute
7 These were articulated in the joint statement of issues handed to the Court as follows:
“1. Causation. The Defendant disputes the plaintiff’s condition
is now work related.2. Seriousness of the consequences of the injury claimed. The Defendant disputes the consequences of plaintiff’s injury satisfies the test for pain and suffering under section 134AB. 3. Aggravation of pre-existing condition. The Defendant says the medical evidence shows the plaintiff suffered from a pre- existing symptomatic condition in her lower back. The Defendant disputes the consequences of the aggravation satisfies the test under section 134AB. 4. Permanency of the injuries claimed. The Defendant disputes the plaintiff is currently suffering from the effects of a work related injury. The effects of any aggravation component of the injury have since ceased.”
8 In his closing submissions, the defendant’s Senior Counsel conceded that on or about 18 October 2000 the plaintiff suffered compensable injury in the nature of an aggravation of degenerative changes in her lumbar spine. However, the defendant submitted that the compensable injury:
(a)
does not account for the consequences of which the plaintiff complains; or
(b)
accounts only for some of the consequences of which the plaintiff complains; or
(c)
even if it accounts for all of the consequences of which she complains, in accordance with the test for pain and suffering it does not amount to a serious injury.
9 Moreover, I think as it turned out with some justification, the defendant challenged the reliability of at least parts of the plaintiff’s evidence, a submission driven partly by contradictory answers given during cross- examination and by the inconsistencies evident in some of the medical histories reported. Nevertheless, as my discussion of these matters reveals in due course, having regard to all of the evidence, failings in the plaintiff’s evidence did not defeat the application.
The evidence called and tendered
10 At hearing the plaintiff deposed to the accuracy of her affidavits, sworn 16 April 2007 and 9 September 2008 respectively. She gave evidence and was cross-examined.
11 The material tendered from the plaintiff’s Court Book consisted of: (a) medical reports of treating doctors, Dr Ross De Steiger and Mr Malcolm Thomas; (b) medico-legal reports for the plaintiff from orthopaedic surgeons Mr Peter Wilde and Mr Peter Kudelka and occupational physician Dr Amanda Sillcock; (c) medico-legal reports for the defendant from surgeons Mr Michael Dooley and Mr David Conroy; and (d) Medical Panel Certificate of Opinion and the first page of the Medical Panel Reasons for Opinion, dated 27 April 2007.
12 Dr De Steiger was required by the defendant for cross-examination.
13 The plaintiff also tendered extracts of the clinical notes of Chiropractor, Mr James Evans, corresponding to the dates to which the plaintiff was taken in cross-examination (Exhibit “P2”).
14 The material tendered from the defendant’s Court Book consisted of: (a) paragraphs 1-6 and 11-12 of the affidavit of Pauline Lanteri, sworn 22 August 2007; (b) paragraphs 1 and 10-12 of the unsworn and undated affidavit of Mary Magdalene Swan; and (c) medico-legal reports of surgeons Mr John O’Brien and Professor Vernon Marshall.
15 The defendant also tendered 3 surveillance films (Exhibit “D2”): a VHS cassette dated 19 & 21 June 2006, a VHS cassette dated 2 & 4 July 2008, and a DVD dated 14 February 2009. Extracts from the clinical notes of the Bairnsdale Medical Group were tendered as Exhibit “D3”.
16 I note that the plaintiff relied on the Medical Panel Certificate as evidence that in February 2006 the independent assessors had formed a view that the plaintiff’s work-related injury continued to contribute (and would do so permanently) to impairment of the plaintiff’s lower back. Nevertheless, as submitted by the defendant this Certificate does not constitute an admission of permanent injury.
The plaintiff’s background
17 The plaintiff is sixty-three years of age, having been born on 2 February 1946 in New South Wales where she was educated to the age of fifteen.
18 In her first affidavit, the plaintiff described a work life since leaving school consisting of “various jobs carrying out process type work”. Nevertheless, it appears that by late 1997, the plaintiff had commenced employment with the defendant as a picker.
19 In paragraphs 5 and 25 of her first affidavit the plaintiff said of this casual employment that she worked six hours per day, four days per week and that depending on the work available, she often earned less than $100 per week.
20 However, the defendant tendered copy handwritten wage records which, in opening the plaintiff’s case, her Senior Counsel accepted as accurate, in addition to which he said that the job was an opportunity for the plaintiff to get out of the house rather than “an income earning exercise”.
21 The wage records reveal that for short and irregular periods between November 1997 and November 2000 the plaintiff picked vegetables. For instance, these records indicate that the plaintiff worked 1 day in November 1997, 13 days between 3 January and 12 March and 22 October and 22 November 1998, 27 days between 28 January and 22 April and 30 September and 30 December 1999, and 22 days between 7 January and 13 July and 13 October and 27 November 2000.
22 Notably allowing for the wage record for 2000, in opening her case, the plaintiff’s Senior Counsel was at a loss to explain (and the plaintiff was not specifically cross-examined about this) the contradiction between this and the plaintiff’s evidence (and general practitioner Dr De Steiger’s belief) that she never returned to picking or any other employment. Without more, I am likewise unable to resolve the discrepancy in the evidence.
23 In cross-examination the plaintiff appeared surprised by the brevity of the periods recorded as worked, although it was also evident from her answers that she accepted that her workload varied depending on whether the peas or beans were ready to be picked. Otherwise, the plaintiff could not remember or identify the days on which she worked. Accordingly, allowing for this evidence, her counsel’s comments in opening, and the records, I think it clear that in the years between 1997 and 2000 the plaintiff’s work as a picker was seasonal, intermittent, and for short periods. However, this notwithstanding, in cross-examination the plaintiff rejected the suggestion that she so limited her workload to accommodate a pre-existing back condition.
The circumstances of the injury
24 In paragraphs 5 to 9 inclusive of her first affidavit, the plaintiff described her duties and the incident on which she relied on 18 October 2000 in the following words:
“5. … I generally picked peas or beans. The work was not full time but I would generally work around 6 hours per day, 4 days per week. 6. The picking of peas required me to sit on a carpet mat on the ground. Beans were generally picked while standing up and I had to bend from the waist to reach the beans in order to pick them. 7. On or about 18th October 2000 I was carrying out my usual picking tasks. I had been picking beans in the morning and in the afternoon worked in the top end of the Defendant’s paddock picking peas while sitting on a mat. 8. Whilst sitting on the mat leaning forward to pick the peas, I felt the onset of quite severe low back pain. This happened at about 2.30 in the afternoon. 9. The pain was so bad that I could not stand up on my own. I was helped up by some co-workers, Mary Swan and Sharon Swan.”
25 According to her first affidavit, notwithstanding the pain, the plaintiff was able to drive home and to have a hot shower, the latter of which, she said, failed to ease the pain that by then had spread into her legs “about down to knee level”. However, allowing for Dr De Steiger’s evidence and his clinical notes (Exhibit “D3” discussed in some detail below), I think it unlikely that any complaint of pain in the plaintiff’s leg or legs was made prior to 21 December 2000, the date on which Dr De Steiger first recorded complaint of “pain to her bottom and the right thigh”.
26 In any event, when her chiropractor, James Evans, could not help her the plaintiff apparently attended the clinic operated by the Bairnsdale Medical Group where she sought treatment from Dr De Steiger, who, apart from a referral in April 2001 to orthopaedic surgeon, Mr Thomas, and various periods of physiotherapy, has had primary responsibility for treatment of the plaintiff’s lower back condition.
27 Dr De Steiger’s report dated 11 October 2006 (and clinical notes), amongst other things, confirmed that on 19 October 2000, the plaintiff consulted him, complaining of “painful back after picking peas today, sitting on bottom and
picking. She told me she had a past history of low back pain and she pointed to L 4-5 and L 5- S1 to the right side of the midline, I advised her to rest, use Voltaren 50mg bd and Panadeine Forte. She was a casual picker and she went off work I believe, from that day onwards.”
28 As he acknowledged in cross-examination, Dr De Steiger initially attributed the plaintiff’s symptoms to back strain.
29 As I have already mentioned, according to the plaintiff, she never returned to work stating in her first affidavit that she:
“13. …was virtually housebound for some weeks being able to only have hot showers, apply hot packs to the low back and carry out exercises that I was recommended by the doctor. 14. The back and leg pain persisted over the following days and weeks at a slightly reduced level and I also began to notice occasional numbness in the right foot which has continued to date. 15. I underwent physiotherapy as an outpatient at the Bairnsdale Hospital at this time. 16. I remain off work and do not believe that I could go back to work as physical as that which I was performing for the Defendant.”
30 To the extent that portions of these were admitted into evidence, the defendant relied on the affidavits of a partner in the defendant’s business, Pauline Lanteri, and a retired picker, Mary Magdalene Swan, the latter of whom said that she worked for the defendant picking mainly peas and beans from approximately 1987 to approximately 2003.
31 In her affidavit, Ms Lanteri confirmed that when the defendant grew vegetables, it employed half a dozen casual pickers, one of whom, the plaintiff, worked from 17 November 1997, picking peas and snow peas “… at
times which suited her. She, like other pickers would be paid for the produce
picked that day”.32 However, whilst she said that the plaintiff “did not lift any weights as it was known that she had a bad back”, Ms Lanteri was unable to shed light on whether, as claimed, the plaintiff suffered injury on 18 October 2000. This was because Ms Lanteri said that she had never received a report from the plaintiff of any injury to her back and that there was no record of injury in the defendant’s WorkCover Register of Injuries book.
33 Whilst Ms Swan was obviously reluctant to be involved in any claim, her affidavit (unsworn, as it turns out) did provide some limited corroboration of the plaintiff’s claim that an incident occurred at work, inasmuch as she said:
“10. The only thing I remember that one day she was sitting down and had trouble getting up one day. This was not unusual though, because she would complain about her back on many occasions. 11. I know that Valmai left work and I believe that she said that this was because of her back. I would go shopping with her because she would drive me to the shops once a fortnight. She seemed to be able to do her shopping alright.
12. I do not remember Valmai ever reporting any back pain to Pauline or Angelo and I know that quite a while after she left work she said to me that she was thinking about putting in a claim. I said to her, Valmai please don’t talk to me about it because I don’t want to be involved.”
34 Both the plaintiff and Dr De Steiger were cross-examined at some length about the delay in lodging a claim for compensation. Indeed, it appears that the plaintiff at first applied to Centrelink for a pension which, it seems, was refused both because of the assessment of the level of her disability and her husband’s earnings.
35 However, I note that in his only report, treating orthopaedic surgeon, Mr Thomas, who examined the plaintiff once on 30 April 2001, amongst other things, said that he had advised the plaintiff “that she would be eligible to
make a workcover claim given that her symptoms developed at work and
despite the fact that she has degenerative changes”. In these circumstances, in my view, questioning the plaintiff and Dr De Steiger about any delay probably only served two relevant purposes. The first was that it exposed inconsistencies in the plaintiff’s behaviour and responses, and the second was that it exposed the difficulty the treating doctor said he had, some time after the injury, in attributing all or any of the plaintiff’s symptoms to the work- related injury.
36 For instance, whilst accepting that a work-related aggravation injury occurred in October 2000, Dr De Steiger also indicated that when, in March 2002, he was eventually approached to provide a WorkCover certificate then, as now, he did not feel that he had the required level of expertise to attempt to apportion as between the aggravation injury and the plaintiff’s significant pre- existing degenerative condition any contribution to the back pain and symptoms of which the plaintiff continued to complain.
37 On her part, when questioned about the delay in lodging a claim, the plaintiff said that Mary Swan suggested that she sue the defendant and lodge a WorkCover claim for her back injury. Yet, after she was also pressed to accept this as accurate, the plaintiff rejected Ms Swan’s specific claim that she “complained about her back on many occasions”, asserting, in all the circumstances I think illogically, that the plaintiff was “sticking up” for her former longstanding employer.
38 Moreover, given the evidence of both Ms Swan and Ms Lanteri concerning complaints of pre-existing back problems, when pressed to accept that she complained about her back “a lot” and that she was “very careful with it even working with the company”, I note that the plaintiff replied (I felt at the time somewhat disingenuously) “I may have complained about my back being sore, yes”.
39 This brings me to the evidence concerning any pre-existing back condition.
Pre-existing back condition
40 As my summary of some responses demonstrate, at times the plaintiff’s evidence was unsatisfactory. This was also evident when the plaintiff was questioned about any history of back pain prior to the commencement of her employment in 1997 as a picker. For instance, the plaintiff:
(a) conceded that prior to October 2000, she “more or less had a bit of back pain for a fair while, but not as bad as what it
was when I was working”; and
(b) in a roundabout fashion also said that she had a bit of back pain from when she started picking, but not that she could remember before 1997.
41 I formed the view that until she was prompted to recall these, the plaintiff was unwilling to acknowledge any treatment prior to commencing her employment with the defendant in 1997. This was so despite having received treatment from her chiropractor for low back pain in July 1993 and July 1995 (in association with events such as lifting wood or gardening), although she did agree, albeit reluctantly, that she “could have” consulted the chiropractor in December 1996 “with some low back pain”.
42 In contrast to the last-mentioned responses I note that, having commenced picking, the plaintiff more readily agreed that in June 1998 she sought chiropractic treatment for low backache on the right side (which she ascribed to her picking duties) and that again in June 1999 she sought treatment for some low back pain which was “getting a bit better”. Nevertheless, as my discussion of the wage records above reveals, there is no correlation between her chiropractic treatment for low back pain during 1998 and 1999 and the periods in which the plaintiff performed casual picking work.
There is a lower lumbar right sided organic scoliosis with a lower degeneration is present affecting L1-L2 and L2-L3, but there is severe degeneration affecting L5-S1. The disc is markedly narrowed. There is extensive sclerosis affecting the inferior aspect of the L5 vertebrae and the superior aspect of the first sacral segment.
43 Ultimately, when pressed, the plaintiff’s explanation for denying any earlier problems was equivocal – “I don’t know. Maybe because my back wasn’t so sore”, that is, it either reflected an attempt to advance her application or, adopting a more generous approach, it was consistent with the plaintiff’s assertion that her degenerative back condition was not especially symptomatic prior to the incident on or about 18 October 2000. That prior to 19 October 2000 the plaintiff –
(a) exercised a work capacity, albeit a modest engagement in the workforce; (b)
did not seek or receive any medication or formal medical intervention to treat an occasionally symptomatic low back condition; and
(c)
visited her chiropractor on a handful of occasions for treatment of low back pain;
tends to favour the latter view.
The treatment received
44 Despite reports of slow improvement during October and November 2000, Dr De Steiger arranged both x-ray and CT scan investigations on 25 October and 7 December 2000 respectively, the results of which are reported as follows:
“LUMBAR SPINE
CLINICAL HISTORY
Low back pain.
REPORT
thoracic and upper lumbar compensatory curve.
No sacro-iliac pathology is seen.
CONCLUSION
Spondylosis superimposed on a scoliosis with severe degeneration at L5-S1.”; and
“CT LUMBAR SPINE
A non contrast CT examination was performed on the lumbar spine with block cuts from L3-L4 to L5-S1 and with angled cuts through individual discs.
In the preliminary scanogram, gross degenerative changes are noted at L5-S1.
The L1-L2, L2-L3, L3-L4 and L4-L5 disc space levels are satisfactory.
At L5-S1 there is a calcified posterior disc bulge into the canal, but the canal appears adequate.
Gross degenerative changes are noted in the facet joints at the lower disc space level.”
45 Relevantly, as Dr De Steiger agreed in cross-examination, the level of pre- existing degenerative change revealed by these early radiological investigations was such that, of itself, it could have given rise to back pain. In other words, along with the incidents reported to her chiropractor, the pathology revealed explained the plaintiff’s need for chiropractic treatment and the earlier complaints about low back problems to which Ms Lanteri and Ms Swan said they were privy.
46 As I have already said, apart from her general practitioner, the only specialist opinion the plaintiff sought was in early 2001, and this was generated by her ongoing complaints of lower back pain.
47 When Mr Thomas examined the plaintiff on 30 April 2001, amongst other things, she reported:
“… some pain in her thighs going down to the knees which is worse with activity, particularly walking, although it doesn’t stop her walking… She described occasional paraesthesia and numbness in her right foot… She was taking Celebrex and Panamaz. [sic] She was not certain whether she should make a workcover claim for this.”
48 Mr Thomas’ clinical examination apparently revealed that the plaintiff:
“… was in no distress and moved reasonably well. She had a flexible lumbar spine. She was moderately obese. Neurologically I found absent right knee and absent ankle reflexes but no other focal neurological signs. She had no weakness. Straight leg raising was negative. Both hips moved freely. She had normal pedal pulses. Her lumbar spine was slightly tender.”
49 Judging from his report, Mr Thomas appears to have reviewed the radiological film noting, as he did, the marked degenerative changes, the calcified central disc at the L5/S1 level and the absence of evidence of neural encroachment.
50 More than a year after he examined the plaintiff, in his report to the claims agent, Mr Thomas diagnosed chronic lower back pain with leg pain that “was probably a referred phenomenon”. However, whilst this specialist accepted that in October 2000 the plaintiff’s pre-existing condition had been aggravated by her employment picking peas, without any proper understanding of the extent to which the plaintiff had been involved in this occupation (which, as I have already said, the wage records demonstrate was intermittent and for short periods), Mr Thomas declined to offer an opinion on whether the plaintiff’s employment was a significant contributing factor. Nevertheless, Mr Thomas added that in his opinion when he examined the plaintiff she was unable to return to her pre-injury duties, and, having ruled out surgery, he felt that the plaintiff still required treatment such as physiotherapy, hydrotherapy and analgesia.
51 Therefore, the treating general practitioner’s evidence and the only treating specialist’s opinion do not establish the current contribution, if any, to the plaintiff’s symptoms by an aggravation injury suffered in compensable circumstances in October 2000.
52 In the period following Mr Thomas’ examination the plaintiff apparently commenced physiotherapy which was reported to Dr De Steiger as being beneficial.
53 Clearly the plaintiff did not have a good recall of the regularity with which she attended for treatment at the Bairnsdale Medical Clinic during the eight years or so since the injury, although she obviously thought that her attendances were more regular than the clinical records demonstrated.
54 Nevertheless, one matter pursued in cross-examination was the extent to which the plaintiff was treated for any ongoing aggravation of her lower back condition. For instance:
(a)
As I have already indicated, it appears that from mid-2001 the plaintiff commenced physiotherapy which was eventually superseded by a regime of back exercises recommended by Dr De Steiger. Relevantly, the clinical records also show that during 2001 the plaintiff was treated with Celebrex and Vioxx for a mild right extensor tendonitis which apparently settled by October 2001;
(b)
On 6 October 2001, the plaintiff reported to Dr De Steiger that her “back was still sore with aches and pains intermittently”, and by late November with “pain down the lower left buttock” having, she said, “twisted and flared up the pain” the plaintiff again presented to Dr De Steiger for treatment, an episode he subsequently described as an “acute flare up of chronic lower back pain”. This was apparently treated with Tramal (100mg reduced to 50mg by 3 December 2000), Valium (for treatment of the plaintiff’s “occasional lumbar muscle spasm”) and physiotherapy;
(c)
In March 2002, the plaintiff apparently reported no change to her back condition for which she continued to have physiotherapy;
(d)
As far as I can tell from the doctor’s evidence and the clinical records during 2002 and 2003 there was reference to four attendances with no change reported, ongoing physiotherapy, and complaint of “aches and pains”;
(e)
As Dr De Steiger explained to the court, typically back injuries flare and settle, and to some extent this observation is borne out by the entries in the clinical notes for the three attendances in 2004. For example, on 19 July 2004, having reportedly suffered backache for some time, the plaintiff presented complaining of lower back spasm and pain radiating to the left leg, and in October 2004 she reported “acute pain bending over” for which another doctor at the clinic recommended analgesia, rest, exercise and heat treatment;
(f)
In 2005 the plaintiff attended for treatment of other conditions, as for example neck pain which the plaintiff said she now experiences occasionally, and a painful right hip, although she also persisted with “basic back exercises”;
(g)
In 2006 it appears that the plaintiff reported that she continued taking Mobic tablets (15 mg daily) intermittently to treat back flare-ups;
(h)
In 2007 a number of attendances were recorded which confirm ongoing use of medication such as Mobic as well as prescriptions for Panadeine Forte and Valium. Relevantly, Dr De Steiger could not determine from the clinical notes whether this additional medication was prescribed for either or both the plaintiff’s back and neck conditions. Indeed, I note that in 2007 there were a number of attendances on other doctors for treatment of an unrelated shoulder condition, which the plaintiff claimed was no longer a problem.
55 Therefore, until the end of 2007, based on a combination of clinical records and the general practitioner’s evidence, the plaintiff’s visits to the Bairnsdale Medical Group for treatment and/or the prescription of medication were not frequent, and where they concerned her lower back condition they were at times linked to complaint of a flare-up and referred leg pain. However, according to the plaintiff, since she finished physiotherapy, she has maintained an exercise and medication regime relating to her lower back condition.
56 More recently, I note that in March 2008, the plaintiff reported a flare-up to another general practitioner (including pain radiating down her right leg) which led to a further x-ray of the plaintiff’s lumbar spine. The accompanying report prepared by radiologist, Dr Brown (who apparently prepared the report on the CT scan but not the earlier x-ray report) stated:
“LUMBAR SPINE
There are degenerative changes at all levels. There is disc degeneration at T12-L1 with anterior lipping. There is posterior slip of L1 on L2 and there is posterior slip of L2 on L3. This is associated with disc degeneration. There is forward slip of L4 on L5. There is disc degeneration at L5-S1 with degenerative changes in the facet joints.”
57 Not surprisingly, when in re-examination Dr De Steiger was taken to this x-ray report, he confirmed that it revealed progression of the plaintiff’s degenerative disease, which the defendant submitted has now overtaken a minor aggravation injury in 2000, that is to say the consequences of which the plaintiff currently complains are probably all referable to the advancing degenerative changes.
58 Consistent with a worsening in her lower back condition, the last report of a flare-up to which Dr De Steiger referred in cross-examination was in February 2009 when the plaintiff apparently reported:
“Right buttock gripping her, painful sometimes up higher in the low back, mid-line, will go down to the back of her right thigh to the mid-point. Presume this is related to low back pain but we should check her hips also. No falls, no heavy lifting. Examination, she could stand on her tiptoes and her knees, she could squat with support though and up against. She was taking Panadol Osteo and Mobic anti-inflammatory. She did not want to use a walking stick. I said we’d get an X-ray done. She stated she had a court case coming up soon.”
The medico-legal reports
59 Dealing with these in chronological order I note that Professor Emeritus of General Trauma Surgery, Professor Vernon Marshall, examined the plaintiff once on 1 October 2001. He submitted two reports, the second of which in June 2002, followed receipt of copies of the general practitioner’s report as well as an insurance adjuster’s report.
60 Having regard to the materials he received, Professor Marshall appears to have been distracted by some early uncertainty about there being a work- related injury, that is an aggravation injury the defendant has conceded. Nevertheless, he took a history of pre-existing pain in the plaintiff’s lumbar spine characterised by her as “muscular” which she said resolved after using ice gel and having a hot shower. However, following the injury the plaintiff described:
“…intermittent pain across the lower back and also in the legs with pins and needles going down her feet on both sides into the soles. She sometimes also has pain in the front of the thigh and in her knees.
She has been on non-steroidal anti-inflammatory medication, originally Celebrex but now Vioxx, taking one Vioxx per day and feels this helps. She is also on Panamax, 1 or 2, three times a day. She does not get the pain every day. It is on and off and she has good days and bad days. It is not so bad when she walks but prolonged walking or sitting for long periods will bring it on. It is eased by lying down. She is able to do her own housework but has to pace herself doing washing, cooking and shopping and her husband helps. She likes walking but she can’t garden.
She had physiotherapy for a month some months ago and this consisted of massage and back exercises which she continues to do at home and finds this helps. She is not currently having physiotherapy. She sees Dr De Steiger, her local medical officer as required for pain relief and last saw him about a month ago.”
61 Allowing for these background matters, unremarkable clinical findings and the radiological evidence, Professor Marshall diagnosed: “longstanding
degenerative disc disease of the lumbar vertebrae associated with chronic low back pain. The history of low back pain occupies several years and pre-dates her alleged injury and the multi-level degenerative disc disease seen on
imaging also clearly pre-dates the injury”. In other words he opined that if an injury was sustained when he examined her the plaintiff’s status was “not … significantly different from her pre-injury status…”.
62 I found Professor Marshall’s report unsatisfactory for at least two reasons. The first is that he appeared to place too much emphasis on the at best intermittent prior history of treatment for lower back pain. The second is that he appeared to significantly underrate the contrast between the plaintiff’s lower-back symptoms and restrictions before and after the work-related incident on 18 October 2000.
63 After an interval of some years, on 3 August 2006 orthopaedic surgeon, Mr Michael Dooley, examined the plaintiff at the request of the WorkCover authority. To summarise the relevant parts of his report I note that Mr Dooley:
(a)
took a pre-injury history of intermittent low back pain which tended to settle quickly;
(b)
found both ankle jerks “symmetrically reduced”, a clinical find consistent with that reported by Mr Thomas more than five years earlier;
(c)
diagnosed a work-related aggravation injury of underlying degenerative disc disease of particularly the lumbosacral spine;
(d)
attributed the plaintiff’s ongoing lumbar spine pain (that is, her ongoing symptoms) to both the pre-existing condition and a permanent aggravation injury without, it seems, placing more significance on one or the other;
(e) opined that in general “an aggravation of underlying degenerative disc disease of the lumbar spine does involve some permanent
aggravation”;
(f) deemed the plaintiff unfit for her pre-injury duties and heavy household chores. 64 Orthopaedic surgeon, Mr Wilde, examined the plaintiff at the request of her solicitors on 12 September 2006. I note that the matters reported by Mr Wilde raised concern about the consistency of the histories given by the plaintiff as well as the reliability of her description of the circumstances in which her injury occurred. For example, Mr Wilde reported that:
“She told me that in 1996 she commenced employment on a part-time basis, as a fruit and vegetable picker, with Lanteri Fruit Supplies. The work was difficult and awkward and occasionally she experienced stiffness in her lumbar spine but the pain was never severe enough for her to require time off work or specific therapy for her back.
Whilst at work in October 1999, she was working close to the ground picking peas, an awkward position in which to constantly work and so she devised a method to avoid constant bending and twisting. She brought a square of carpet from home and used this to sit upon while she lent forward to pick the peas. As she moved along she simply dragged the carpet on the ground under her buttocks. On the day that she injured her back it suddenly began to rain and she leaped up to look for shelter. In doing so, she strained her back with the immediate onset acute, severe stabbing pain into her back and buttocks. She remembers that the pain was excruciating and that she had difficultly (sic) getting up from the ground. Indeed, she required assistance. She could not drive home but somehow managed after taking painkillers.”
65 Without cross-examination of the doctor I cannot unravel the internal inconsistency as between the reports from him that the plaintiff lept up or got up from the ground. In any event, accepting, as the defendant did, that the dates to which the doctor referred were probably erroneous, the plaintiff was pressed but nevertheless denied that she had in fact injured her back as she lept up to seek shelter (T 26).
66 I note that when Mr Wilde examined the plaintiff he was armed with a copy of Mr Thomas’ report and, whilst he does not expressly state this, it is likely that Mr Wilde also viewed the radiological film obtained in 2000 as well as later x-ray film of the plaintiff’s pelvis and hips.
67 Against a background of “widespread degenerative changes affecting the discs and facet joints of all lumbar motion segments”, that Mr Wilde diagnosed
“mechanical lumbar back pain secondary to calcified lumbosacral disc
prolapse without clinical evidence for radiculopathy” is probably unremarkable. However, his further conclusion that the injury suffered was a lumbosacral disc prolapse which is now chronic and calcified is difficult to reconcile with the other medical opinion which, neither directly nor indirectly, attributes the calcified posterior disc bulge revealed by the CT scan (obtained less than two months after the incident) to a work-related frank disc prolapse in October 2000. As submitted by the defendant, I suspect that a likely explanation for this divergence of opinion lies in Mr Wilde’s confused understanding of the circumstances in which the back pain occurred. In any event, whether or not the injury involved disc prolapse, I note that Mr Wilde:
(a) considered that the injury on 18 October 2000 “triggered a chronic pain response”; (b) considered that the plaintiff’s work was a significant contributing factor and continues to be a contributing factor “into the present time”; (c) offered a guarded prognosis for the future but also said that in his opinion the plaintiff “will always suffer with low-grade symptoms of chronic lumbar pain and stiffness. She will have to modify personal and work activity to accommodate her symptoms to avoid further
deterioration”;
(d)
formed the view that the plaintiff no longer possessed a work capacity for either her pre-injury work or other forms of physical or manual work.
68 The plaintiff was also taken to task about particular aspects of the impairment assessment report submitted by surgeon, Mr Conroy, who on 12 December 2006 determined that she had suffered a lumbosacral intervertebral disc injury with referred pain to the right leg.
69 Relevantly, when questioned about the content of his report, the plaintiff admitted that she “could have”, as Mr Conroy reported, denied any previous spinal complaints or injuries and “described how on 18th October 2000 she
was bent over picking peas when there was the onset of pain in her low
back.”.
70 As submitted by the defendant, this evidence does affect the weight afforded Mr Conroy’s conclusions.
71 The most recent collection of medico-legal reports was obtained in 2008. The first of these was from orthopaedic surgeon, Mr O’Brien, who examined the plaintiff at the request of the defendant’s solicitors on 23 June 2008. Having read the schedule accompanying his report, it seems that Mr O’Brien had regard to Professor Marshall’s report, the radiological film obtained in 2000, and various accounts for the plaintiff.
72 Under a heading “Initial History’, Mr O’Brien reported the following:
“Mrs White stated that in approximately 1997 she commenced casual seasonal work picking vegetables which involved mainly beans and peas. The patient stated that to undertake this work she would generally sit on a piece of carpet on the ground. The patient stated she was unable to bend due to the fact that she had experienced in the past intermittent low back pain which she stated had required occasional chiropractic treatment.
In October 2000, Mrs White was a little uncertain of the exact date, she had been sitting on the ground for a short time picking vegetables. She went to get up and noted sudden back pain and indicated that she subsequently required help from colleagues to get herself to her feet. The patient stated that she was then unable to continue her work due to back pain and thus drove home.
Mrs White stated that she experienced severe continuing back pain which she described was associated with spasm. She thus attended the chiropractor however the pain persisted causing significant disturbance of her sleep.
A few days following the incident Mrs White stated she did consult her local medical officer who apparently arranged some x-rays and advised her to sleep on a very firm surface. The patient stated she was also at that time referred for physiotherapy treatment and apparently given some anti- inflammatory medication. The patient stated that she attended physiotherapy for a month or so and then ceased. The pain lasted, according to the patient, a few months and was told that she should not undertake any heavy lifting and the patient stated that she did not return to her casual work. (sic)
Since that time Mrs White states that she has had intermittent episodes of low back pain, which she states tends to be aggravated by excessive activity, as well as bending, prolonged sitting or indeed prolonged standing at the sink. The patient stated that in general these episodes of pain would be controlled by some anti-inflammatory medication. She did indicate that she remained active but avoided heavy physical tasks and indeed indicated that generally her son would do heavy housework such as vacuuming.”
73 I have set out a large segment of this specialist’s report because subject to a couple of qualifications it generally provides a fair summary. Nevertheless, the history is at odds with the clinical records, Mr Thomas’ report, and in particular Dr De Steiger’s evidence, where it states that the plaintiff’s pain settled within a few months and that the onset of right buttock pain and referred pain first occurred in March or early April 2008.
74 Having also viewed the radiological material, including the more recent x-ray obtained in April 2008, Mr O’Brien’s opinion that the plaintiff is suffering from a progressive degenerative condition, one aspect of which is degenerative spondylolisthesis at the L4/5 level, is defensible. However, his flawed understanding of her history necessarily affects the cogency of his further opinion that the event described by the plaintiff in October 2000, at best represented a mild episode of back pain which had resolved and that the plaintiff’s progressive degenerative condition is entirely age-related.
75 Orthopaedic surgeon, Mr Kudelka, examined the plaintiff on 29 July 2008 at the request of her solicitors, reporting at the same time that the plaintiff claimed to have been well “... until while picking peas 18.10.2000, she noticed sudden back pain and spasm”. However, having regard to the multiple medical reports to which he referred, including reports from Dr De Steiger, Mr Thomas and Mr Wilde, I have proceeded on the assumption that Mr Kudelka probably understood that there was some history of earlier back pain.
76 Mr Kudelka appears to have viewed the relevant radiological film (including the film obtained in 2008) from which he concluded “… that the predominant abnormality is significant narrowing at the lumbosacral disc level”.
77 A copy of the questions to which Mr Kudelka responded were not tendered. However, this specialist’s opinion is relevantly summarised in his responses as follows:
“(a) This patient’s diagnosis is back pain and right sciatic nerve root irritation due to work aggravated degenerative changes in the lumbar spine. (b) The injury was aggravated by the patient’s employment as a seasonal Picker between 1997 and 2000. (c) I believe this patient presently has no capacity to return to her pre-injury level of employment. (d) I believe this reduced capacity for employment will be permanent. I do not think she will have the capacity in the future to carry out physical work such as picking vegetables. (e) The prognosis is that backache and restricted back movements will persist indefinitely. I think future medical treatment will be palliative and conservative and consist of the advice to reduce her excess by 20kg. by dieting under the supervision of Dr. deSteiger and continue with a programme of exercises to mobilise and strengthen her back muscles. She will require three-monthly visits to Dr. deSteiger for such supervision and prescription of appropriate medication. I do not think spinal injections or surgery will be required.” (sic)
78 On behalf of the plaintiff it was submitted that Mr Kudelka’s diagnosis is consistent with Mr Wilde’s opinion that the plaintiff suffered a disc prolapse in association with the work-related incident in October 2000. Having read it, I cannot accept that this is an accurate summation of Mr Kudelka’s report, although, allowing for the earlier reports to which he had regard, Mr Kudelka clearly accepted that there was evidence of an aggravation injury.
79 Whilst the opinion expressed by Mr Kudelka in this report does not expressly distinguish between the contribution made by the plaintiff’s working life as a picker to her symptomatic lower back degenerative condition and any contribution made by the specific incident of aggravation on 18 October 2000, I think on any fair reading of the report this specialist has linked the aggravation injury and the plaintiff’s ongoing symptoms to the incident on 18 October 2000.
80 The most recent medico-legal examination was undertaken on 7 August 2008 by occupational physician, Dr Sillcock, at the request of the plaintiff’s solicitors. As is evident from her report, the doctor had available to her a selection of medical reports (similar to that received by Mr Kudelka), the film and results of the x-ray and CT scan obtained in 2000, but only the film of the x-ray obtained in 2008. Like Mr O’Brien, Dr Sillcock apparently understood that the plaintiff “had not had any pain in her leg and till a couple of months
ago when it started radiating down her right leg to the toes and this was
accompanied by generalised numbness and paraesthesia in the leg.” (sic)81 Relevantly, amongst other things:
(a) the plaintiff reported some pain-free days “but these were not very frequent”; (b) on examination Dr Sillcock noted “a patchy reduction in sensation to pin prick all over her right leg but did have a more definite loss over the outer aspect of the right thigh in the distribution of the lateral cutaneous
nerve of the thigh”;
(c) Dr Sillcock summarised the plaintiff’s position in the following way: “Mrs White has a history of long-standing low back pain, but this became significantly worse when she was working as a vegetable picker. This required a lot of bending and on one occasion she was unable to get up at all. She has not worked since then. In my opinion her condition was an aggravation of underlying lumbar spondylosis/osteoar- thritis. Her pain has never settled back to the pre-injury level. In my opinion she is not fit to undertake her preinjury duties and she does not have the education, qualifications or experience to undertake anything that would be more physically suitable.”
82 Segments of surveillance film were shown for dates on 19 and 21 June 2006, 2 and 4 July 2008, and 14 February 2009. Generally the film captures the plaintiff walking, shopping, and driving. In my view none of the activities filmed were incompatible with the plaintiff’s claimed restrictions. Indeed, if anything, some of the film assists her case; as, for instance, the film of her leaning on a shopping trolley as she loaded items into a car boot, as well as the film capturing the plaintiff carefully negotiating a flight of stairs.
Compensable injury
83 Consistent with the severity of the symptoms reported and treated, and allowing for the radiological material and most of the medical opinion, I am satisfied that on or about 18 October 2000 the plaintiff probably suffered a significant work-related aggravation and/or exacerbation of pre-existing degenerative disease in her lumbar spine. Without more, I am not satisfied that the injury involved an actual prolapse at the L5-S1 level. However, the injury probably triggered the onset of symptoms reported by the plaintiff in her buttock, leg, and thigh.
84 The defendant submitted that any aggravation was mild and had resolved well before the hearing date, by which time the progressive deterioration of the degenerative condition was entirely responsible for the plaintiff’s symptomatic lower-back condition. In my view the evidence, including most of the medico- legal evidence, indicates to the contrary; that is, notwithstanding the degenerative condition, the compensable aggravation injury materially contributes to the consequences of which the plaintiff complains, and those consequences summarised below are both permanent and very considerable.
Pain and suffering consequences
85 In her evidence-in-chief, amongst other things, the plaintiff said that currently her daily medication consisted of six Panadol Osteo tablets, one anti- inflammatory tablet, Mobic, and two Rani tablets to counteract the gastric side effects from taking the anti-inflammatory medication.
86 Relevantly, the plaintiff also explained that:
(a) she has pain in her back “most of the time”, “nearly every day” which lasts for “a fair while”; that is, it can last for one hour to all day; (b) if her back is really painful, as advised by her doctor, she mobilises and goes for a walk which eases the pain; (c) for the past few months the pain has spread down her right leg although previously she has had pain into her right buttock and less severe pain down her right leg; (d) if she sits for too long she experiences pain in her lower back and buttocks which is eased by walking around or by using a hot water bottle and electric blanket; (e) the pain has stopped her from looking after her “20-odd” grandchildren, lifting heavy items such as washing baskets or standing for long periods of time and, if her legs and back are aching too much, she occasionally uses a walking stick.
87 Apart from the abovementioned evidence, the pain and suffering consequences on which the plaintiff relied were articulated in her affidavit, in particular paragraphs 17 through to 21 as follows:
“17.
I am able to carry out basic day to day chores such as standing at the sink to do the dishes but jobs like vacuuming put pressure on my low back causing severe pain and I do not carry them out.
18
I am generally helped with heavier tasks by my son or my sister who comes over to give me a hand. I still get out in the garden but not as much as I did before my injuries. I can garden for short periods of time but need to take breaks as the pain in the low back increases.
19.
I have been told by my GP that walking should help the low back pain and I try to walk every day. I will walk down by the river at Bairnsdale or park a little way out of the town and walk in. I feel that the walking does help as when I do not walk I feel stiff and the pain becomes worse.
20.
I have trouble getting to sleep because of low back pain. It is a stabbing type pain and usually keeps me awake until the early hours of the morning. I take Panamax tablets and warm milk which help me to get off to sleep. If I do get to sleep by about 2.00 or 3.00 in the morning, I will generally wake again by about 8.30 am.
21.
I am still able to go shopping for groceries and am generally helped by my son, Steve, to carry bags and the like.”
88 In addition to the abovementioned matters, the plaintiff also relied on the loss of her earning capacity, albeit a modest one.
89 My overall impression is that the aggravation injury and the consequent impairment has significantly impacted on the quality of this 62-year-old woman’s life. Indeed, in my view the pain and suffering consequences summarised in the affidavit, and on which the plaintiff elaborated at hearing, when judged by comparison with other cases in the range of possible impairments or loss of function of the lumbar spine, are fairly described as being very considerable. Moreover, on the evidence, the plaintiff has satisfied me that the injury-related impairment of her lumbar spine is permanent in the sense that it is likely to last into the foreseeable future.
90 In these circumstances I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect to pain and suffering damages.
Orders 91 I will hear from the parties as to the making of appropriate orders.
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