White v Peppercorn Holdings No.4 Pty Ltd
[2010] VCC 1138
•19 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10 00360
| JUDITH EILEEN WHITE | Plaintiff |
| v | |
| PEPPERCORN HOLDINGS NO.4 PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE BOURKE |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 29 July 2010 |
| DATE OF JUDGMENT: | 19 August 2010 |
| CASE MAY BE CITED AS: | White v Peppercorn Holdings No.4 Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1138 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti and | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr W R Middleton SC and | Wisewould Mahony |
| Ms J M Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff on 23 May 2005 (“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 s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” 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.
Outline of Section 134AB
(i) 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;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (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 “at least very considerable” and “more than significant” or “marked”;
(v) 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;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. 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
6 The plaintiff is presently aged fifty three, having been born on 17 August 1957. She and her husband moved to Tura Beach in New South Wales in April this year.
7 The plaintiff worked for eleven years as a cleaner at a local golf club before completing her Diploma in Community Services.
8 The plaintiff commenced employment with the defendant in June 2002 as a qualified childcare worker. At the end of 2003 she became permanent part time with a guarantee of at least twelve hours a week but often worked more hours. In 2004, her minimum number of hours was increased.
9 As of the said date, the plaintiff was working a minimum of twenty two and a quarter hours a week and being paid $15.46 an hour – earning about $300 net per week, or $15,000 per annum.
10 The plaintiff deposed that prior to the said date, she had suffered muscular pain in her back but never to the point where she was unable to work, and she could not recall ever having received treatment.
11 In cross-examination, the plaintiff described minor back discomfort for which she used heat and Dencorub. At times she would rest after work for a short period and the pain would go away. She had had minor low back discomfort occurring every two to three months at the end of a working day since about 2000.
12 The plaintiff agreed that in mid 2004 she attended a physiotherapist for three visits for ultrasound and exercise treatment for her low back and the pain quickly resolved over a week or so. She could not recall having an x-ray for her back before the said date nor had she seen a doctor.
13 The plaintiff was cross-examined about entries in her general practitioner’s file. She may have complained of “pain all day” in her low back on a visit in October 1997. She may also have complained of back pain in June 2003 and January 2004.
14 The plaintiff woke on the morning of the said date with a stiff back and she applied some Dencorub. When she got to work she spoke to Mrs Zanin and Sue Boyd and had a conversation about the smell of the Dencorub.
15 The plaintiff suffered injury later on the said date when lifting a child out of a highchair and placing her on the floor (“the incident”).
16 As a result of the incident, the plaintiff immediately developed back pain. It felt like something just grabbed her back. In re-examination, the plaintiff described the pain when she lifted the child as “like ten out of ten,” but when she woke up that morning with a stiff back the pain was about a half out of ten.
17 The plaintiff reported the incident to another worker, and thereafter to her supervisor. The following day, the plaintiff’s doctor certified her unfit for work.
18 Thereafter, the plaintiff had intermittent periods off work with increasing severe back pain. She underwent physiotherapy treatment from Brendan Liddell who may have been the same physiotherapist she had seen in 2004.
19 In cross-examination, the plaintiff disagreed with her general practitioner, Dr Lu’s comments in his report that her back gradually improved. Her back condition was in fact fluctuating. What would actually happen “was unusual compared to anything she had ever had before”. She would be alright in the morning and in the afternoon she would be in such pain.
20 The “screaming agony pain” experienced on the said date abated to a certain degree but her back never got back to normal. The plaintiff just hoped it would and she kept going at work.
21 Dr Lu certified the plaintiff fit for normal duties and hours. The plaintiff remembered being “shocked and horrified” when Dr Lu told her she had to go back to full time work.
22 On her return to work, the plaintiff did relieving work. She never went back to her old job of just being in one room all day with the children. The hours she worked varied greatly, depending on what hours she was asked to work.
23 When cross-examined about the four visits to Dr Lu between 28 August and 28 November when he recorded that there was no complaint of back pain, the plaintiff said she “was just in shock.” She did not disagree, that as of the December 2005 visit to Dr Lu, her condition had improved a lot as he noted.
24 The plaintiff was becoming stressed at work and she sought treatment from a counsellor. In September 2005, whilst at work, a child spat in the plaintiff’s face, following which the plaintiff instinctively hit him. As a result of this episode, the plaintiff was dismissed.
25 The plaintiff was paid a year’s wages in relation to a stress claim associated with her dismissal.
26 The plaintiff’s pain level eventually settled down to about five out of ten around Christmas time, because she stayed at home and did nothing.
27 The plaintiff did some voluntary work at the Yarrawonga Tourist Information Centre at the end of 2005.
28 Despite ongoing conservative treatment, the plaintiff’s symptoms have continued since the incident.
29 Whilst in Yarrawonga, the plaintiff was under the care of Dr Lu and other doctors at the Yarrawonga Denis Medical Group (“the practice”). She took Panadol, Nurofen and Mersyndol. She was prescribed the anti-depressant Cipramil, although she did not like taking any medication. It assisted her with sleep and to control her depression.
30 The plaintiff saw Dr Murray at the practice for a number of years, perhaps more than two, and he “actually got things going”. He did not, however, refer her to a specialist.
31 The plaintiff also underwent regular hydrotherapy in Yarrawonga. She has tried hard to control her pain and exercises on a daily basis with strengthening exercises and walked frequently.
32 The plaintiff sought pain management, ultimately seeing Dr Todhunter in 2006 after Dr Lu would not refer her to him as he advised the plaintiff that Dr Todhunter “would only want to give her drugs”.
33 The plaintiff saw Dr Todhunter twice: once before she underwent the pain management program in late 2006 and twelve months after that time, when they discussed nerve blocks. She has not had any such invasive treatments and is glad she has not, because she has heard of the dangers. She just tried to manage.
34 The plaintiff “absolutely” benefited from the pain management program.
35 In 2006, the plaintiff did a computer course in Yarrawonga but did not get a certificate as she could not complete all the requisite homework. In addition to this course, she also attended a business administration course in Yarrawonga but did not complete it.
36 The plaintiff had problems concentrating when studying and she had difficulty keeping herself stable and “physically balanced”.
37 After undergoing the pain management program, and building up her fitness in the following year, the plaintiff was able to get the job at a tobacco shop in late 2007. She worked for seven or eight weeks for about fifteen hours a week but because she was on her feet all day and also bending to carry out stock, she could not continue working.
38 The plaintiff has not looked for work since she worked in the tobacco shop as her involvement in computer courses showed her that she has a reduced capacity to be able to just keep going for hours at a time.
39 The plaintiff believes that if she was able to find any employment it would have to be on a very part time and limited basis.
40 She does not believe she would be fit to return to childcare because of the extent of her back injury.
41 The plaintiff considers her prospects for work are negligible and if she could find a job which does not place stress on her back it is almost certainly going to be on a part time basis. She would need to take rest breaks.
42 The plaintiff is presently in receipt of Centrelink benefits. There is not much work at Tura Beach which is a very small seaside town which only has jobs such as house cleaning which the plaintiff could not do because of her back injury.
43 In re-examination, the plaintiff explained she had not looked for work since going to Tura Beach because she and her husband had been very busy setting up house and had only been there for four months and “were working out everything there because everything was different”.
44 The plaintiff has been under the care of Dr Nimmo since moving to Tura Beach in April 2010. The plaintiff undertakes hydrotherapy but does not really have a set regime. One week she will go and then not go for two weeks. She last had physiotherapy a long time ago.
45 The plaintiff had been consulting a psychologist on a monthly basis until the psychologist recently left Merimbula.
46 The plaintiff now takes an anti-depressant, Escitalopram, 20 milligrams a day. She also takes over-the-counter medication, including Nurofen and Panadol very regularly during the day and especially at night to help her sleep. When her back is at its worst she also takes Mersyndol.
47 The plaintiff does not use opiate medication for her back. She takes sleeping tablets basically for her back. She is not getting any prescription medication for her back.
48 The plaintiff takes two Panadol every night but sometimes if she is feeling worse she takes Mersyndol instead. She takes two Nurofen occasionally but tries not to. They target the pain without making her sleepy so if she has to take something, she takes Nurofen.
49 The plaintiff probably has only taken Mersyndol once since she moved to Tura Beach during a day when things were so bad that she had to stay in bed all day.
50 Dr Nimmo has not referred the plaintiff to any specialists. The plaintiff has recently been sent to two doctors by her solicitors for medico-legal purposes but she could not remember their names.
51 The plaintiff deposed that she continued to suffer from constant unremitting low back pain which worsened with, in particular, bending and lifting. At its worst the pain was debilitating. In those circumstances, she would try and lie down to rest or relieve it
52 When the plaintiff described her pain as debilitating at worst, she said she started getting shaky in the leg and then she had to lie down straight flat. Because she planned a lot she did not get that level of pain that regularly, maybe once a fortnight or a week, depending on what she did. Her back pain had been worse through the winter and occasionally she had referred pain to her leg.
53 The plaintiff found standing and sitting for lengthy periods increased her pain. Her pain is variable on a day to day basis and sometimes it was quite severe. Her mobility was limited by her back pain.
54 When cross-examined about her ability to move relatively freely when she saw Mr Isbister in 2006, the plaintiff said she must have been having a good day.
55 The plaintiff does not have any altered sensation in her legs but they do ache and she moves them and keeps exercising them. The plaintiff has normal power in her legs. She uses her knees to bend and that is really helpful because she could not use her back. If there was a job that had to be done that minute, she would use her knees and be as cautious as she could. The plaintiff squats easily, using her knees.
56 Whilst standing giving evidence, the plaintiff arched her back in the witness box, supporting herself with her hands down just below her waist behind her back. She said she needed to arch her back regularly all throughout the day.
57 The plaintiff thought that her sitting tolerance was probably about ten minutes maximum and she had problems sitting on particular chairs. Without support she thought that probably after five or ten minutes she would start jiggling, moving from side to side and have to do exercises.
58 The plaintiff remained limited in the performance of many activities, including, in particular, washing clothes and lifting associated with the washing. It took her longer as she had to break up the tasks and she must be careful.
59 The plaintiff tried to avoid activities involving bending, such as low cleaning, as it worsened her pain and she kept things at mid height in the house to avoid bending.
60 The plaintiff has to hang out the washing as her husband cannot lift his arm above his shoulder and help her. The plaintiff did not vacuum because it provoked pain. She has cleaned the toilet twice since she moved to New South Wales.
61 The plaintiff and her husband “muddle along” looking after the house. As her husband was not working they could no longer afford home help as they had in Yarrawonga.
62 The plaintiff “keeps her energy for providing food on the table” because she had had years of just eating takeaway food because of her back pain.
63 The plaintiff is limited in car travel for periods of time because it increases her low back pain. Her driving tolerance is minimal; she can drive for an hour but not without pain. If she has driven for that long she has to have medication afterwards. When she drives she has a series of little cushions in the car.
64 In cross-examination, the plaintiff said that she and her husband shared the driving to court in Wangaratta from Tura Beach. She drove two hundred kilometres over two hours on the trip. She took Mersyndol as soon as they arrived at the motel. She is “always planning moves and travel”.
65 The plaintiff remains limited in socialising where she is required to stand or sit for long periods and she is more regularly consigned to home. The plaintiff also used to enjoy socialising and rock and roll dancing. Although she has done it occasionally since the incident, she has done it nowhere near and with the same amount of movement as before injury.
66 The plaintiff used to play social tennis and would be playing in Tura if she had not suffered injury.
67 The plaintiff used to do gardening in Yarrawonga with restrictions. She was able to throw some mulch on the garden last year. She does not have much of a garden in Tura, so it is not an issue.
68 The plaintiff is unable to perform sustained activities, such as walking long distances or bending to low levels. She can walk for a maximum of about an hour. She does the shopping.
The Plaintiff’s Medical Evidence
69 The plaintiff underwent physiotherapy treatment for her back pain from Brendan Liddell in August 2005. He also suggested she undertake a home exercise program.
70 Mr Liddell completed a treating practitioner questionnaire on 30 June 2006.
71 He noted he was rarely seeing the plaintiff now and she was continuing with an independent exercise program. He noted functional improvement in walking and sitting tolerance. He did not think further treatment was indicated and that self management was appropriate. He suggested the plaintiff be provided with funding for twenty casual visits to the pool at the Barooga Sports Club.
72 Whilst in Yarrawonga, the plaintiff was a patient of the practice.
73 Dr Lu from the practice saw the plaintiff on 24 May 2005 when she stated she had lower back pain since lifting a child on the said date. He provided a report dated 2 February 2006 detailing his treatment of the plaintiff.
74 On initial examination on 24 May 2005, Dr Lu noted that the plaintiff had palpable tenderness on her lower back, otherwise she did not have any neurological signs. At that stage the plaintiff was being treated with analgesia and physiotherapy. She was on modified duties doing part time work which involved lifting not more than five kilograms and not sitting for more than fifteen minutes.
75 Dr Lu noted the plaintiff’s back pain gradually improved. There were subsequent visits to the practice for back pain on 1 June, 6 June, 20 June, 15 July and 28 August 2005.
76 Dr Lu reviewed the plaintiff on 28 August 2005 when he noted she did not complain of lower back pain and clinically there was no palpable lower back tenderness. He noted the plaintiff resumed normal duties after he discussed this with her and that she was still seeing a physiotherapist at that time.
77 Dr Lu noted that during the last three months (from December 2005) the plaintiff had been quite stressed in her workplace and she was bitten by a child. Unfortunately, following another incident later on at work, the plaintiff lost her job which caused her more stress.
78 Dr Lu noted the plaintiff had been to see him four times in the clinic since August 2005 with no complaint of any lower back pain.
79 On 28 November 2005, the plaintiff presented at the practice with lower back pain again and he examined her. On examination, she also had mild palpable tenderness. Dr Lu noted meanwhile the plaintiff’s stress level could contribute to and worsen her lower back pain as it was likely to be related to her injury.
80 Dr Lu last reviewed the plaintiff on 22 December 2005. At that time he noted her stress and lower back pain had improved a lot. She was then working at the Information Centre at Yarrawonga for a few hours a week as a volunteer.
81 Dr Lu concluded the plaintiff’s employment was a significant contributing factor to her injury on the said date. In his view, she was capable to return to her pre-injury employment, which she did, and she had lost her job due to a different incident.
82 Dr Emery saw the plaintiff at the practice on 24 February 2006 regarding her worker’s compensation situation. He noted that her situation was complicated, she had had a back injury, first sustained on the said date which had subsequently been treated and apparently settled down.
83 Dr Emery referred to an incident when the plaintiff was bitten by a child on 25 August 2005 and a further incident when she was spat upon by a child on 14 September, after which the plaintiff was dismissed. He noted the plaintiff had been working part time twenty to twenty two hours a week prior to the incident.
84 It was Dr Emery’s understanding that the plaintiff was pursuing further her claim relating to the incident and for stress arising from the incident on 14 September 2005 and her subsequent dismissal.
85 When Dr Emery saw the plaintiff on 24 February 2006 she had not submitted a claim in relation to stress. She had been seeing a counsellor at her own expense and had started retraining for office work but was finding that too stressful.
86 Dr Emery completed a medical practitioner questionnaire on 21 June 2006. He noted that the patient’s employment had been terminated for a different reason to her injury. In his view, if the plaintiff returned to work, she would have limited ability to lift and bend.
87 Dr Murray from the practice provided a report dated 3 August 2006. He noted the plaintiff’s initial attendance after the incident and her subsequent attendances with Dr Lu.
88 Dr Murray noted that over the next twelve months the plaintiff’s pain failed to resolve. She developed pain in her lower back after sitting for extended periods and if she tried to lift something heavy. The pain often kept her awake at night. Dr Murray noted the plaintiff had been referred to the pain management service at Albury and was awaiting further cognitive behavioural therapy and interventions with the service.
89 Dr Murray noted the plaintiff’s pain was experienced on a daily basis and continued to limit the amount and type of work that she felt she could do. He thought desk work would be suitable provided she did not have to sit for more than twenty minutes at a time and that any other work would be limited by her inability to lift more than five kilograms at a time without exacerbating her pain.
90 Dr Murray noted at that time the plaintiff was studying for a Certificate in Information Technology which she would like to make use of in future employment. He commented that that course should fit in with her work limitations provided she could avoid sitting for extended periods.
91 The plaintiff’s physiotherapist, Ben Herde, suggested that she see Dr Todhunter, specialist in pain management, for her persisting pain.
92 Dr Todhunter wrote to Dr Emery on 28 April 2006. He advised that the plaintiff had ongoing lower back pain and while it was not as severe as when the incident occurred, it was still of moderate severity and certainly interfering with her life significantly.
93 Dr Todhunter advised Dr Emery that he had had a long discussion with the plaintiff, pointing out the complexity of her persistent pain and difficulties of finding the exact source thereof and that the pain was real.
94 Dr Todhunter thought it was evident that the plaintiff had mechanical back pain, as it was increased by activity. There were no signs or symptoms of any neurological problem, and hence, no further investigations were going to be helpful. Dr Todhunter commented that while one might consider diagnostic facet joint blocks, it was obviously possible that there were sources of pain other than the facet joints in the majority of people and the plaintiff felt more inclined towards the cognitive behavioural approach.
95 Dr Todhunter noted that whilst the plaintiff was not as affected by her pain as she was initially, it was still a major issue in her life and interfering with it severely. He suggested to Dr Emery the best approach in the plaintiff’s case would be taking part in a cognitive behavioural pain management program which he would organise for her.
96 Bernadette Quin, psychologist, provided a report dated 14 August 2006 at the request of Accident Compensation Conciliation Service.
97 Ms Quin reported that after the incident, the plaintiff’s job was changed to lunchtime reliever. Ms Quin noted the incidents with the two children and the plaintiff’s subsequent dismissal from employment.
98 As of August 2006, Ms Quin thought the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. In her view, this was the result of the plaintiff’s initial back injury and the subsequent dismissal from work. She thought the plaintiff had significant impairment in social and occupational functioning as a result of the disorder. The plaintiff had difficulties sleeping, had chronic headaches and was moody and tearful. She was often agitated and responded with anxiety and hypervigilance to situations. Ms Quin noted the plaintiff’s chronic pain exacerbated her depressed mood.
99 Ms Quin stated that the plaintiff was keen to engage in the workforce again but had lost confidence as time went on and was concerned with her ability to manage with her back. It was noted the plaintiff had done training on her own initiative in computer skills but she was unable to sustain this study due to pain, anxiety and depression. Further, the plaintiff had managed to complete a small course in Yarrawonga, however she was frequently exhausted.
100 In Ms Quin’s view, the plaintiff was likely to need assistance in finding employment and developing realistic goals. She noted the plaintiff was willing to complete a pain management course and engage in any other future suggested treatment.
101 The plaintiff participated in the pain management course provided by Wodonga Regional Health Service (“the Health Service”) between 20 November and 8 December 2006.
102 The Health Service reported that the plaintiff viewed activity planning as beneficial. There was a very significant increase in performance and satisfaction scores regarding everyday activities. These scores indicated the plaintiff had made significant performance gains in all functional areas.
103 It was recommended that the plaintiff enrol and complete the MYOB course, increase the amount of her voluntary work and continue exercises and current pain management strategies.
104 The plaintiff reported an improved overall change in her psychological state, having been in the program, with a more positive outlook. She reported the use of a variety of long term psychosocial strategies. She reported better pain medication management, fewer pain flare ups and overall reduced pain level. It was noted that physical tests indicated the plaintiff had changes in her level of speed, fitness, flexibility and strength. It was suggested that the plaintiff continue seeing a psychologist on a monthly basis, review relaxation techniques and put some strategies into place.
105 Dr Angela Nimmo, the plaintiff’s current general practitioner at Tura Beach, provided a report dated 22 July 2010.
106 Dr Nimmo noted that the plaintiff first attended her practice on 19 April 2010 and told her about the incident and subsequent stress and anxiety.
107 The plaintiff told Dr Nimmo her back had been sore prior to the acute injury. She had also told her that the workplace had been stressful prior to the incident and that working with pain had escalated her stress levels.
108 Dr Nimmo has not carried out any investigations or referred the plaintiff for specialist treatment.
109 Dr Nimmo believed that the plaintiff’s employment was a significant contributing factor to the back injury. She did not believe that the plaintiff could perform her pre injury duties as a childcare worker.
110 Dr Nimmo noted the plaintiff was currently certified as fit for four hours’ work twice a week of light duties. She noted the plaintiff’s condition had been temporarily aggravated by moving to the local area and there had been increased stress which had aggravated her back pain.
111 In Dr Nimmo’s view, when that settled down the plaintiff should be fit for up to twenty hours a week of light duties. Dr Nimmo noted that the plaintiff told her that he had done some computer courses and so may be able to get clerical work.
112 Dr Nimmo stated that the local area had a high unemployment rate due to limited work opportunities and there was not a huge likelihood of the plaintiff being able to obtain suitable employment.
113 Dr Nimmo thought there was a significant impact of the back injury on the plaintiff’s activities. The plaintiff was not able to do gardening, vacuuming, clean floors and the bathroom, hang out the washing, carry groceries and she was not able to participate in any sporting activities.
114 Dr Nimmo thought the plaintiff’s injury had stabilised and her pain would continue to be chronic with periodic exacerbations. She thought analgesics and intermittent physiotherapy plus hydrotherapy would be necessary long term.
Medico-Legal Evidence
115 Mr Leitl, orthopaedic surgeon, examined the plaintiff on behalf of JLT Workers’ Compensation Services, initially on 12 July 2005.
116 At that stage the plaintiff gave a history of recurrent lower back discomfort occurring every two to three months at the end of a working day over the last five years. Further, she told him that a year ago she attended a physiotherapist for three visits for ultrasound and exercise for her lower back, stating that back discomfort resolved quickly over a week or so.
117 In July 2005, the plaintiff was working three to four days a week on five hour shifts with a maximum of two hours working and then having a break for about an hour.
118 On examination, the plaintiff indicated the midline at the L4-5 areas as the site of backache and stiffness. She complained of occasional radiation to the posterior aspects of both thighs but this was never associated with any numbness or paresthesia. Further, the plaintiff complained of mild morning stiffness but no back pain as such but ongoing lower back discomfort as the day progressed.
119 At the time of that examination, the plaintiff was not taking any medication and she was attending physiotherapy and using a heat pack. The plaintiff avoided carrying heavy loads and she had help from her son with shopping.
120 On examination of the lumbar spine, there was a normal lordosis. There was mild midline tenderness in the L4-5 area and Mr Leitl noted there was a virtual full range of lumbar spine movement. He had available to him the x-ray.
121 Mr Leitl diagnosed chronic soft tissue strain - lumbar spine. He noted that the plaintiff appeared to have sustained a musculoligamentous strain of the lower back as a result of the incident. He thought that she had been appropriately treated to date and he considered her condition appeared to be slowly resolving but with an incomplete recovery as yet.
122 Mr Leitl thought it appropriate the plaintiff continue on restricted duties at work and commented that with her past history of recurrent lower back discomfort, it would suggest that she had suffered lumbar degenerative disc disease which made her lower back more vulnerable to injury. He thought her current employment at that time was suitable.
123 Mr Leitl re-examined the plaintiff at the request of the defendant’s solicitors on 4 November 2009. The plaintiff told him that since the earlier examination, her back condition had essentially remained unchanged.
124 Her lower back was such that there was constant pain which, on a visual analogue scale was level five, flaring to eight at other times, such as with prolonged sitting or prolonged car travel. There was no radiation of pain to suggest true sciatica, and back pain was aggravated by static postures. The plaintiff also had ongoing headaches resulting from increased stress or when she was more tired as she was unable to “hold her frame up”.
125 At that stage the plaintiff was taking analgesics such as Panadol, Nurofen or Mersyndol. She was not having any physical therapy and she was doing daily stretching. She was continuing to see Bernadette Quin.
126 An examination of the lumbar spine showed a normal lordosis, mild lower lumbar discomfort to deep palpation, no paravertebral spinal spasm and a full range of movement.
127 Mr Leitl noted a previous CT scan of 30 April 2007 showed slight bulging of the discs at L4-5 and L5-S1 with associated ligamentum flavum hypertrophy showing early mild canal stenosis at those levels.
128 Mr Leitl diagnosed aggravation of a lumbar degenerative condition. He thought there were no significant abnormal signs on examination of the plaintiff’s lumbar spine and noted she continued to suffer chronic lower back pain that had followed the incident.
129 Mr Leitl noted that the plaintiff complained of back pain but she did not have significant physical signs. In his view, she did not present with any functional component or psychological reaction to her examination.
130 Based on his assessment of her examination findings, Mr Leitl considered that the plaintiff had a capacity for work, albeit on a part time basis, but he believed that she could work for more than twenty hours per week. He thought she had the capacity to work as a secretary, keyboard operator and a ticket sales person on a half time basis but that she would not have the capacity to work as a checkout operator, an office cashier or domestic cleaner because of the lifting and bending required. He thought she would have the capacity to work half time as an administration assistant.
131 Mr Isbister, orthopaedic surgeon, examined the plaintiff on behalf of Allianz on 10 August 2006 for the purposes an impairment assessment.
132 The plaintiff told him that on her return to work her symptoms gradually deteriorated to the extent she was unable to continue with her work, leaving in September 2005. She also reported restriction in domestic duties.
133 Mr Isbister had available to him the x-ray of the lumbar spine taken on 6 July 2007.
134 To Mr Isbister’s knowledge, there was no previous history of back complaints or injury.
135 On examination, there was some restriction of lumbar movement. Tenderness was palpable in the lower lumbar area. Straight leg raising was to eighty degrees bilaterally.
136 Mr Isbister considered that the plaintiff’s condition was mild lumbar spondylosis and facet joint arthropathy, together with musculoligamentous strain of the lumbar spine. He thought these conditions are exhibited indicated in the plaintiff’s clinical history and radiological investigations confirmed them. He thought the referred leg pain appeared to be caused by the facet joint irritation.
137 In his view, there was evidence of increased muscle spasm and tone. A scoliotic tilt was evident with asymmetry on x-rays and a non-verifiable radiculopathy was reported. He thought that the plaintiff’s condition had stabilised.
Investigations
138 An x-ray of the plaintiff’s lumbar spine taken on 6 July 2005 showed minor degenerative changes with anterior marginal lipping of the lumbar spine. There was no intervertebral disc space narrowing seen. There was mild facet joint osteoarthritis seen at L5-S1.
139 On 3 July 2006, the plaintiff underwent an x-ray of her lumbosacral spine. It was noted alignment was normal and there was no spondylolisthesis. Small osteophytes were noted at the end plates of L3-4 and L5. The disc spaces were satisfactory. Facet joint degenerative changes were present at L5-S1 bilaterally.
140 A CT scan of the lumbar spine was carried out on 26 April 2007. Mr Leitl noted that this scan showed slight bulging of the discs at L4-5 and L5-/S1 with associated ligamentum flavum hypertrophy showing early mid canal stenosis at those levels.
The Plaintiff’s Other Evidence
141 The plaintiff lodged a Claim for Compensation on 1 June 2005 in relation to the incident. It set out that the plaintiff suffered injury lifting a child from a highchair on the said date when she felt intense gripping pain in her lower back. She noted also that more frequent lifting of children had caused or contributed to her injury.
142 The plaintiff answered “no” to the question whether she had had any previous pain or disability in the area of her present injury.
143 The plaintiff was then working 22.25 hours a week earning $15.40 an hour with pre-injury ordinary weekly gross earnings of $342 per week. She was working regular overtime of four hours per week and earned $61.50.
144 The employer’s Claim Form set out the plaintiff was working twenty six and a quarter hours a week at $15.46 per hour, earning $405.83 a week.
Schedule of Income
Financial Year Employer Gross Earnings 30 June 2003 Cobram Barooga Cubby Corner Childcare $13,803.00
Rutherglen Kindergarten Committee
Incorporated$335.00 J & K Furtures $1,640.00 Total $15,778.00
30 June 2004 Cobram Barooga Cubby Corner Childcare $4,349.00
Rutherglen Kindergarten Committee
Incorporated$96.00 Peppercorn Holdings No. 4 Pty Ltd $10,631.00 Total $15,076.00
30 June 2005 Peppercorn Holdings No. 4 Pty Ltd $15,205.00 Total $15,205.00
30 June 2006 Nil 30 June 2007 Nil
30 June 2008 Allianz Insurance $15,922.00
R & D Investment Pty Ltd $983.00 Total $16,905.00
The Defendant’s Medical Evidence
145 Dr Emery from the practice wrote to Ms Quinn on 23 June 2006.
146 Dr Emery noted the plaintiff continued to have multiple vague complaints – headaches, dizziness and a few true migraines. The plaintiff described tiredness and an inability to concentrate. She felt unable to continue a computer course in Corowa but was now waiting to attend hydrotherapy in Barooga.
147 Dr Emery noted there was obviously still a large resentment regarding the plaintiff’s treatment at her former employment and some residual back pain, though her physical findings were minimal.
148 Dr Emery advised that the plaintiff had been assessed by Dr Todhunter, enclosing a letter from him.
Claim Documentation
149 The defendant tendered the plaintiff’s Claim Form signed on 11 April 2006, for a stress injury on the said date, claiming stress and anxiety after lifting child from highchair.
Video Surveillance
150 Film was taken of the plaintiff’s activities on 28 April and 30 March 2010.
151 On the first date the plaintiff was shown shopping at the supermarket at 11.25 am. At 11.35 am, she put a plastic bag of shopping into the back seat of her car, bending into the car with no apparent difficulty.
152 The plaintiff agreed she was shown on 30 March 2010 at Permewan’s Home Hardware at Yarrawonga where she was collecting some cardboard packing boxes. The flat boxes were in J J Richards’ large skip in the car park. The skip appeared to be made of metal and it had two lids on the top. The skip was about half the length of the station wagon the plaintiff was driving and it was about the same height as that vehicle.
153 The plaintiff initially lifted one of the lids on the skip and looked into the skip and took out a flattened cardboard box. She then went to the side of the skip and climbed up one metal step. From that position she lifted one of the lids so it stayed up. She then bent deeply into the skip and took out three or four flattened boxes, closed the lid with one hand and then went down the one step carrying the boxes. The plaintiff put the boxes on the ground and then bent freely to pick them up and put them in the back of her vehicle and then closed the back of the vehicle.
154 There was further footage taken of the plaintiff in the shop at Permewans Home Hardware later that day.
155 On 6 April 2010, there was film taken outside the plaintiff’s house where a moving van was located. The plaintiff was not engaged in moving or loading the truck. She was seen to drive up behind the van and take what appeared to be a plastic rubbish bin from the back seat of her car. She bent freely into her vehicle to get the bin.
156 Later that day the plaintiff was shown at a petrol station for about eight minutes. She was then shown having a drink parked next to her husband’s car for about nine minutes.
157 In cross-examination, the plaintiff said it was hard to bend into the skip “but that was what I had to do”. She agreed she did it a couple of times, getting three boxes or so.
158 When it was suggested to her that she displayed no restriction when doing so, she said, “well, no, but it would have hurt while I did it”.
159 When it was put to the plaintiff that there was no apparent restriction in any activities, she said: “Well, it’s hard to see people’s pain when they’re doing things.” She said she could see how she was holding a bag and making sure she held things correctly and “stuff like that”. She said: “Yeah, I did not fall down screaming in pain or anything like that.”
160 The plaintiff’s husband packed all the boxes and she helped in the move to Tura, assisting with some packing. She probably put some lighter bags in the car. The moving was undertaken by her husband. Also, she assisted with packing.
161 When it was suggested to the plaintiff that her presentation in the witness box was different to that in the film and when sitting in court and having to get up and stretch, she said the video only showed her over short periods of time. She was pretty sure she had been doing stretches and this was just not shown on the video.
162 In re-examination, the plaintiff said she had to go cautiously when doing things like getting boxes from the skip. Having done something like that, she probably would have had to have a rest when she got home.
163 The plaintiff explained she was having a “bad day” in the witness box because she had sat in the car all the previous day. Her condition just depended on what she had done.
164 There are good days. She would really like to be part of the workforce and be able to go out and be with people. On some days she could do three hours’ work; some days she could do two hours; she really did not know. She still did not know what was the best thing for her.
Findings
165 I accept that the plaintiff suffered a compensable injury to her back in the incident which has been described as an aggravation of lumbar degenerative condition and a musculoligamentous strain of the lumbar spine.
166 In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2005 incident was serious and permanent.
167 In Petkovski v Galletti [1994] 1 VR 436, 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 … .”
168 In the recent case of Guppy v Victorian WorkCover Authority (2010) VSCA 164, the Court of Appeal accepted that the principles in Petkovski v Galletti applied equally to Section 134AB applications. Further, the Court held there was no inconsistency between that approach and that enunciated by Ashley JA in Grech (supra).
169 The plaintiff, therefore, to reach the threshold of serious injury, is required to establish the aggravation is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be very considerable – Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622.
170 I must be satisfied, therefore, that the aggravation resulting from the 2005 incident can be described as “serious”, namely, whether the consequences to the plaintiff of the lower back injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).
171 The statutory test requires a judgment based on an evaluation of all the evidence.
172 The relevant evaluation is of impairment consequences not injury.
173 The term “serious” requires the impairment and its consequences to be reviewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441; see in particular Chernov JA at paragraph 29.
174 Whilst the plaintiff had some problems with her back prior to the said date and in fact was experiencing back stiffness on the morning thereof, she was able to work in excess of twenty hours per week requiring no time off for back stiffness. She had very limited treatment, the most recent being three visits to the physiotherapist a year earlier.
175 Although I accept the plaintiff has suffered some ongoing pain and restriction and interference with activities as a result of the back injury suffered in the incident, I do not accept that the plaintiff has a serious and permanent impairment of her lumbar spine.
176 The plaintiff has received limited treatment in relation to her incident injury. In the first twelve months thereafter, she attended the practice and reports are available from doctors at the practice who saw her at that time.
177 In the main, those reports are not particularly helpful to the plaintiff’s application as they detail recovery in the early months after the incident and then later problems with stress associated with the plaintiff’s dismissal from her employment for reasons unrelated to her back injury.
178 Dr Lu, the plaintiff’s main treater in the months after the incident, thought that the plaintiff had improved to the stage where he certified her fit for normal duties after three months after the incident. Further, he noted the reason for ceasing work was unrelated to her back injury.
179 Dr Emery at the practice reported once having examined the plaintiff in February 2006. He noted that the plaintiff’s back injury, which had been treated and apparently settled down. He saw the plaintiff in relation to the stress she experienced as a result of her dismissal.
180 In the questionnaire competed by Dr Emery on 21 June 2006, he noted the plaintiff left work with the defendant because her employment was terminated but he noted if she returned to work she would have problems with lifting and bending.
181 When Dr Emery wrote to Ms Quin, psychologist in June 2006, he advised her of the plaintiff’s continuing vague complaints, such as headaches et cetera. He noted there was obviously still a large resentment regarding the plaintiff’s treatment by her former employer. He thought there was some residual back pain although the plaintiff’s physical findings were minimal.
182 Dr Murray’s report dated 3 August 2006 simply summarised the plaintiff’s treatment at the practice. He noted the pain had not resolved in the last twelve months and that the plaintiff had problems with sitting and lifting. Dr Murray thought desk work was suitable for twenty minutes at a time and that there should be a five kilogram limit on any lifting duties. He noted the course of study undertaken at that time by the plaintiff would fit in with these restrictions.
183 No doctor from the practice saw fit to refer the plaintiff to a specialist. In fact, the plaintiff’s evidence was that Dr Lu refused to refer her to Dr Todhunter and a referral in this regard was obtained from a physiotherapist.
184 Dr Todhunter reported on only one occasion on 28 April 2006. He noted, at that time, the plaintiff’s pain, which he described as mechanical with no neurological problem, was not as severe as at the time of the incident but it was still of moderate severity and certainly interfering with her life significantly.
185 The plaintiff has not undergone physiotherapy treatment since 2006 when she was discharged by Mr Liddell who noted in mid 2006 that no treatment had been required for a long time and that the plaintiff could self manage, having improved her walking and standing tolerance.
186 The plaintiff underwent the pain management program in late 2006, after which it was noted by the Wodonga Regional Health Service that the plaintiff had made significant gains in all functional areas. In the plaintiff’s words, she had “absolutely” benefited from the program.
187 There is no report from any treating doctor or therapist until three and half years later when Dr Nimmo briefly reported in April 2010.
188 The plaintiff’s current treatment for her back is only occasional hydrotherapy and non-prescription medication. Dr Nimmo’s expected the plaintiff’s condition would improve when she settled into the local area.
189 The medico-legal evidence does not support any ongoing significant back problems.
190 Mr Leitl, on both initial examination in 2005 and more recently in November 2009, found a full range of lumbar movement on examination. Whilst the plaintiff complained to him of constant pain when she saw him in 2009 and he considered she was suffering chronic back pain that time, Mr Leitl did not think there were significant physical signs and he diagnosed an aggravation of a lumbar degenerative condition.
191 The plaintiff also told Mr Leitl on examination in 2009 that she had ongoing headaches resulting from increased stress or when she was more tired as she was unable “to hold her frame up”.
192 Mr Leitl did not attach any particular significance to the investigations findings available to him.
193 Mr Isbister, who was not given a history of any pre-existing back problems when he examined the plaintiff in 2006, and was told by her she ceased work because of her back injury, found lumbar movement was pretty unremarkable on examination.
194 The plaintiff has recently attended two medico-legal examinations arranged by her solicitors. Reports have not been provided by either examiner. In these circumstances, in the absence of any explanation as to the failure to provide such reports, I am entitled to infer that the opinions expressed therein would not have assisted the plaintiff’s case: see O’Donnell v Reichardt [1975] VR 916.
195 In the absence of supporting evidence from treating doctors or any lay witnesses, much turns on the plaintiff’s evidence when considering the extent of any ongoing impairment related to her back injury.
196 In this case, I have difficulty accepting the plaintiff’s complaint of constant unremitting back pain, debilitating at worst, which worsens with, in particular, bending and lifting.
197 I have difficulty reconciling that description of pain with the manner in which the plaintiff presented on the video surveillance at the supermarket, Permewans, the service station and just engaging in normal daily activities with no apparent difficulty – a level of movement consistent with Mr Leitl’s findings on the two occasions he examined her.
198 In particular, albeit only for a few minutes, I found it quite extraordinary, with her reported level of pain and disability and problems with bending in particular, that the plaintiff would attempt to climb onto the skip at Permewans, let alone do so with apparent ease, lifting the lid of the skip and almost bending totally into the skip to pick out three flattened boxes.
199 The ability to undertake this type of activity was also totally inconsistent with the plaintiff’s presentation in the witness box, when she constantly arched her back, and her evidence that she needed to arch her back regularly throughout the day.
200 A similar posture was not shown at any time on any part of the video, nor was the plaintiff shown to stretch at all after doing any bending.
201 I am unable to accept, with the level of free movement on the film, that the plaintiff is unable to engage in household and gardening duties as she claims.
202 I do not accept a good day/bad day explanation for the difference in the plaintiff’s presentation on film and her evidence as to her pain and the manner in which she presented in the witness box.
203 The plaintiff was shown at other times during the video bending freely to get things out of her car. She also bent to the ground with no difficulty to pick up various items.
204 I do not accept that the plaintiff suffers the level of pain and disablement which she deposed to and confirmed in her viva voce evidence.
205 I do accept that she suffers from a moderate level of back pain and discomfort for which she has required minimal treatment since 2007.
206 I accept that the plaintiff would experience difficulty performing long hours of childcare work because of her back condition but she was working her normal hours and had been certified fit to do so when her employment was terminated for an unrelated reason nearly five years ago.
207 Taking into account all the evidence, I am not satisfied that the plaintiff has a serious and permanent impairment of her back.
208 Accordingly, her application to bring proceedings for damages for pain and suffering is dismissed.
Loss of Earning Capacity
209 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –
(a) at the date of the hearing she has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 210 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 211 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
212 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
213 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
214 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
215 I am therefore required to determine a “without injury” earnings figure.
216 Whilst no submissions were made in this regard, it appears from the limited evidence available that plaintiff earned approximately $15,000 gross per annum from her job in childcare, working about twenty two to twenty six hours per week at $15 per hour.
217 To succeed in her claim in relation to loss of earnings, the plaintiff must establish that on a permanent basis she does not have the capacity to earn in excess of sixty per cent of that sum - namely $9,000 per annum.
218 I do not accept the submission by counsel for the plaintiff that the plaintiff does not have a capacity for employment.
219 Dr Lu had certified the plaintiff fit for normal duties and that was the situation when she was dismissed in September 2005. The following year, Dr Murray thought the plaintiff could engage in limited office work and duties which did not require lifting in excess of five kilograms.
220 The only recent medical opinion that addresses the issue of the plaintiff’s work capacity is that expressed by Dr Nimmo in April this year and also medico- legal examiner, Mr Leitl, in November 2009.
221 Both doctors agreed that the plaintiff had a capacity to work twenty hours per week. Dr Nimmo thought this would be the case when the plaintiff settled down at Tura Beach.
222 Whilst the plaintiff thought she could only do part time light work, said she had not looked for work as she and her husband busy setting up house and settling into the local area.
223 In this application the onus is on the plaintiff to establish the requisite loss of earning capacity on a permanent basis. As counsel for the plaintiff conceded, there could be more evidence in relation to the loss of earnings claim.
224 Although I have no evidence as to wage rates for suitable jobs the plaintiff could perform, an ability to work in the range of twenty hours per week would not result in the requisite loss of earning capacity of forty per cent on a permanent basis.
225 Accordingly, the plaintiff’s application for leave to bring proceedings for damages loss of earning capacity is also dismissed.
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