Williamson v Victorian WorkCover Authority
[2018] VCC 464
•17 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00237
| KYLIE NARELLE WILLIAMSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 July 2017 | |
DATE OF JUDGMENT: | 17 April 2018 | |
CASE MAY BE CITED AS: | Williamson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 464 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering consequences of injury to spine; alternatively, lumbar spine – whether the consequences are “at least very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Bezzina v Phi [2012] VSCA 161; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167
Judgment: Leave granted to the plaintiff to issue proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J Purcell with Mr L Allan | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr D C Oldfield | Russell Kennedy |
HIS HONOUR:
1 The plaintiff alleges that she injured her cervical and/or lumbar spine in the course of her employment with Giordano Australia Pty Ltd (“Giordano”), as a store manager, on or about 8 February 2010. She seeks the leave of this Court to issue proceedings to recover pain and suffering damages in respect of impairment to her spine as a result of injury to the cervical and/or lumbar spine. The evidence adduced would appear to concentrate on the lumbar spine.
2 The plaintiff’s right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that she has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act. Insofar as is relevant to this application, “serious injury” is defined as:
“(a) permanent serious impairment or loss of a body function.”
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
5 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 application with other cases in the range of possible impairments or losses of body function.
6 The defendant concedes that the plaintiff has suffered an injury to the lumbar spine in the course of her employment, as alleged, but says such physical injury has produced consequences which do not meet the threshold as set out by the Act for pain and suffering. Further, the defendant alleges that the physical injury is attended by psychological consequences and by other stressful life events which requires the plaintiff to “disentangle” those consequences with the physical consequences flowing from the injury.
7 The plaintiff relied upon two affidavits sworn 22 December 2016 and 12 July 2017,[3] and the affidavit of her mother, Maureen White, sworn 12 July 2017.[4] Both parties relied upon a number of medical reports, radiological investigations, extracts from the treating general practitioners’ notes and various other exhibits.
[3]Exhibit “A”
[4]Exhibit “B”
8 It was accepted that the plaintiff injured her lumbar spine in the manner alleged on the date alleged. The principal issue in the case was whether the consequences suffered by the plaintiff as a result of the impairment met the threshold of “serious”.
Background
9 The plaintiff was born in March 1973 and was married, with one daughter. At the time of hearing, she was aged forty-four.
10 The plaintiff completed Year 10 at high school and essentially worked in various sales and managerial roles at a number of retail and food businesses. After the birth of her daughter in September 2001, she returned to the retail sector in a part-time position after approximately five months. In approximately 2006, she returned to a full-time position as a store manager at Jeans West. She began working for the defendant employer, “Giordano”, on or about 27 August 2008 as a store manager in a full-time position. Her duties included general sales and managerial responsibilities such as store layout and presentation, figures, profit and loss, stock control, packing and unpacking store, staff hiring and management, staff training, tidying and cleaning, and mannequin dressing and sales.[5]
[5]Exhibit “A”, plaintiff’s second affidavit dated 22 December 2016, paragraph [11], Plaintiff’s Court Book (“PCB”) 4
The injury
11 The plaintiff described the circumstances of her injury as follows:
“Approximately a few months before 8 February 2010, I had received new clothing racks for the external displays. The new clothing racks did not have wheels on them and had a flat and heavy metal base of approximately A4 size. I found it easy to manoeuvre the old racks as I could push them in and out of the store using the wheels.
On the morning of 8 February 2010 at approximately 8.50am, I bent down to pick up a clothing rack and carried the rack from the inside of the store to the outside footpath. As I was putting the rack down on the footpath I felt a grabbing and throbbing like pain in my lower back area. I was in pain for the best of the day but I took it easy and I did not do the more physically demanding tasks such as vacuuming or lifting boxes. I also took a few Nurofen Plus throughout the day, and another two that night.”[6]
[6]Exhibit “A”, plaintiff’s second affidavit dated 22 December 2016, paragraphs [15] – [16], PCB 5
Identifying the injury
12 Defence counsel submits that the injury has been identified by the defendant’s doctors, Dr Mutton, in his report dated 7 April 2010,[7] and Mr Roth, in his report dated 21 February 2014,[8] as a musculoligamentous injury to the lumbar spine. Another defence doctor, Dr Susanne Homolka, occupational physician, in a report dated 31 August 2011,[9] described the injury as:
“Mild residual dysfunction of the lumbar spine following an initial soft tissue injury.”[10]
[7]Exhibit 1
[8]Exhibit 4
[9]Exhibit 3
[10](Supra) Defendant’s Court Book (“DCB”) 24
13 Another defendant medico-legal examiner, Mr B G Reid, surgeon, in his report dated 13 July 2010, stated as follows:
“… She has an injury of the lower back, mainly on the right side. It is not possible to rule out a disc injury as she has not had a CT scan or an MRI.”[11]
[11]Exhibit 2, DCB 16
14 The defendant also relies on a medico-legal report tendered on behalf of the plaintiff from neurosurgeon, Professor Teddy, who, in his report dated 18 January 2017,[12] described the symptoms to –
“… appear to be of a musculoskeletal/soft tissue nature and she has no evidence clinically of neural compromise affecting either upper or lower limbs. … .”[13]
[12]Exhibit “J”
[13](Supra), PCB 69
15 However, none of the above medico-legal examiners were in possession of, or referred to, an MRI scan of the lumbar spine taken on 16 August 2016,[14] to the effect that there were:
“Mild broad based disc bulge[s] at L3/4 and L4/5, and bilateral facet joint arthropathy at these levels”[15]
[14]Exhibit “C”, PCB 25-27
[15](Supra), PCB 25
16 In a report dated 3 July 2017, the treating general practitioner, Dr Michael Glasby, stated that:
“Her diagnosis is traumatic exacerbation of spondylosis, lumbar and cervical spine with radicular pain of the L3/4 and T6/7, both on the R[ight].
Nerve irritation from either disc bulge or facet joint irritation with the injury in the form of radicular pain and numbness, in the above nerve distributions.”[16]
[16]Exhibit “D”, PCB 55
17 Defence counsel submits that this diagnosis, on the face of it, is hard to reconcile with his comment that the MRI scan of the lower back was organised “with no abnormalities of note”.[17]
[17](Supra), PCB 55
18 In any event, Royal Melbourne Hospital neurosurgeon and spinal surgeon, Mr Mohammed Awad, examined the plaintiff on 23 June 2017 and reported on the same date.[18] Mr Awad referred to the recent MRI scan from 16 August 2016 which revealed:
“… She also has a[n] L3/4 mild broad-based disc bulge an L4/5 and L5/S1 spondylosis. There is also evidence of bilateral facet joint arthropathy at the L4/5 and L5/S1 level. … .”[19]
[18]Exhibit “K”, PCB 80-83
[19](Supra), PCB 81
19 Mr Awad described the plaintiff’s current symptoms as follows:
“1.Constant low back pain. She describes this as anything between 5 to an 8/10. She has broken sleep and has a maximum walking time of approximately 30 minutes or so. She also has a maximum sitting time of 15 to 20 minutes before the onset of pain.
2.Right leg sciatica. She has two components one in her lateral thigh and also a medial component radiating down to her groin.
… .”[20]
[20](Supra), PCB 81
20 Mr Awad’s diagnosis was that of:
“Traumatic aggravation of lumbar spondylosis.”[21]
[21](Supra), PCB 82
21 Mr Awad considered her employment in February 2010 –
“… has most likely been a significant contributing factor to aggravation of her cervical/lumbar spondylosis. … .”[22]
[22](Supra), PCB 82
22 In support of his diagnosis, Mr Awad made relevant findings on examination, to wit:
“… With regards to her lower limb examination, she had reduced power in the right L5, which is 4/5. The remainder of her muscle groups bilaterally were 5/5. She had flexion to approximately 45o and extension to about 10 o. She had subjectively reduced sensation in the right L5 dermatome. Her right knee reflex was not performed as this causes her significant pain from previous experience.”[23]
[23](Supra), PCB 82
23 Mr Awad’s opinion had some corroboration from Dr Mutton, referred to above, who stated:
“… She may have suffered a disc injury, although this is less likely given her progress to date. … .”[24]
[24]Exhibit 1, DCB 10
24 Further, Dr Homolka, occupational physician, on clinical examination, found:
“… diffuse soft tissue tenderness to palpation to the right of the spine at the L5/S1 level, and there was some ‘tightness’ of the right lumbar paraspinal muscles palpable in that area. …
In the lower limbs there was an area of altered sensation over the postero-lateral aspect of the right thigh and the right femoral nerve stretch test was positive. … .”[25]
[25]Exhibit 3, DCB 23
25 Professor Teddy, in a follow-up report dated 25 July 2017, was forwarded the MRI of 16 August 2010 and confirmed that the appearances were exactly as those reported.[26] He considered that specifically, the MRI of the lumbar spine showed:
“… mild degenerative changes compatible with her age with no obvious neural compromise at any level … .”[27]
[26]Exhibit “J”, PCB 70A
[27](Supra), PCB 70B
26 Professor Teddy did not comment as to whether these degenerative changes had been rendered symptomatic or indeed caused by the subject injury.
27 It was not submitted by defence counsel that the plaintiff was not suffering from any physical consequences as a result of the subject injury and I consider it sufficient for present purposes to find that she was suffering chronic physical pain at the date of hearing consistent with the original injury. Whether the correct diagnosis was one of chronic musculoligamentous strain or aggravation of degenerative change with intermittent sciatica remains a moot point. The defence medico-legal practitioners reported at an earlier time than the plaintiff’s medico-legal practitioners and I find the opinion of Mr Awad as being one that is most likely to report a reliable up-to-date diagnosis.
Issues
28 In any event, the identity of the injury does not adequately address the defendant’s two main submissions in this matter.
29 Defence counsel submits that the extent of the plaintiff’s treatment regime following her injuries is as follows:
“(a)The plaintiff attended her general practitioner 2 days following the subject workplace incident on 10 February 2010. He issued a medical certificate certifying a week off. The plaintiff took some samples of Mobic.
(b)The plaintiff returned to work at the Mornington store on 16 February 2010, initially two half days per week, increasing to three five hour days from 22 February 2010. (Plaintiff statement 30 June 2010). By 15 March 2010 the plaintiff had increased her hours to 32 per week. That (scil the) plaintiff agreed in cross examination she was only one or two hours short of her normal working week. At this time she was taking one neurofen (sic) a day and was attending a physiotherapist.
(c) In his report of 7 April 2010, Dr Mutton describes the nature of the plaintiff’s condition and her treatment at that stage. She was close to working normal hours, save leaving early on Fridays to attend a physio. (DCB 8). She was at that stage attending physio on a weekly basis. She was at that stage improving and assessed herself at 85%. (DCB 9). She was reported to be undertaking normal functions, which would be a range of seeling (scil selling) on the shop floor and administrative tasks. (DCB 11).
(d)In April 2010 the plaintiff took annual leave and following her return was told that she was being moved to Frankston. She was moved to a store in Moorab[b]in and then a week later Karingal. Clinical records reveal [th]at this resulted in significant stress. Dr Glasby certified her unfit for work then on her return certified her fit for reduced hours of 20 per week. She was prescribed Pri[s]tiq.
(e)The plaintiff continued to attend physio until about July 2010. She then started attending Pilates.
(f)The plaintiff’s GP clinical notes reveal that from July 2010 to August 2011 the plaintiff attended once every two or three months with various complaints relating to the lower back and stress and anxiety. The plaintiff agreed in cross examination that during this period she was taking neurofen (sic) on an as needs basis, perhaps two or three times per week (See also Homolka DCB 22).
(g)The plaintiff attended [a] physiotherapist once in July 2011 (PCB 32) and remedial massage once in December 2011.
(h)…
…
(m)The plaintiff has been referred to no specialists for treatment for her organic injuries. She takes no prescription pain medication. She does take prescription medication for her psychiatric condition.”[28]
[28]Outline of Defendant’s Submissions, pages 3-5, paragraph [12]
30 Defence Counsel further submits that the treatment regime thus disclosed is consistent with a mild residual dysfunction of the spine as diagnosed by Dr Homolka, and when compared to other cases in the range of possible cases, it cannot be described as treatment consistent with serious injury.
31 Defence Counsel further submits that there are matters raised by the evidence which require the plaintiff to perform “disentangling” from the consequences from the subject injury, to wit:
“(i)From March 2013 the plaintiff also started attending psychologist Fran Malcolm. She was commenced on Setraline and Temazepam. (Clinical notes 10/5/13).
(j)During this period, the plaintiff’s primary diagnoses (sic) was stress from her husband’s motor bike accident and inability to work, with resultant depression and anxiety, sleep disturbance, low mood and tearfulness, and poor memory. (Glasby PCB 47). In mid-2013 the plaintiff’s work with NAB was terminated. She lodged a claim with TAC for compensation and then a claim with AIA insurance for income protection. The statements contained in the claim form and supporting medical material disclose that the reason for the plaintiff’s incapacity was depression and anxiety.
(k)It was during this time that the plaintiff started attending again her remedial massage therapist (PCB 57) and physiotherapist (PCB 32 and 33). The notes from the massage therapist describe more diffuse and wide spread pain symptoms that those previously, including pain in the hips, shoulders, neck, feet. (PCB 58).
(l)The plaintiff said in evidence that she has since continued to take neurofen (sic) as needs. Reports of Dr Glasby suggest that in 2015 [an] attempt was made for the plaintiff to attend a RESTORE program arranged through her income protection insurance provider but [she] was not able to attend because of stress related issues. The goal of the program appears to have been to return the plaintiff to normal capability at work and at home. (PCB 49, PCB 52).”[29]
[29]Outline of Defendant’s Submissions, page 5, paragraph [12]
32 With respect to the “disentangling” requirement, defence Counsel further submits that the consequences as disclosed in the affidavit material and medical reports are multifactorial and not related solely to the claimed workplace injury. In particular, he refers to the following matters:
“(a)Having returned to almost full time work within a month of the accident, the plaintiff decided to go on stress leave because of her being moved from the Mornington Store and decided to start looking for work elsewhere. (clinical note 19/4/10; plaintiff statement 30/6/10 DCB 95-96).
(b)From May to September 2010 the plaintiff was rostered to work Sundays and night shift. This conflicted with her personal commitments and caused her to become stressed and experience headaches, dizziness and insomnia. This caused her to become angry and short tempered. (plaintiff’s statement 30/6/10 DCB 99). The plaintiff states in her affidavit that she ceased working in retail in September 2010 because she was overwhelmed by pain. However, she agreed in cross examination that there were also other factors in her decision to leave, including the stress from being moved and rostered to work Sundays. She was not at that time certified medically unfit to work in retail.
(c)The plaintiff commenced working at NAB from September 2010, having applied for the position in May 2010 and offered it in August 2010. She worked on a full time basis 34 hours per week at NAB.
(d)In May 2013, the plaintiff became stressed from work at NAB, resulting in headaches, difficulty sleeping, anger, lack of patience, nauseous and depressed. This occurred on the background of the plaintiff’s husband being involved in a motorbike incident in March 2013 and her being required to care for him, upgrade of her house to put in a ramp, assist with husband’s papers work, look after her then 11 year old daughter. (clinical notes 7/5/13 - 22 May 2013; Malcolm report PCB 43). In July 2013, the plaintiff made a TAC claim for compensation and further made a claim for income protection with AIA Insurance as a result of these matters. (DCB 101, DCD (sic) 117, DCD (sic) 131.)
(e)In a medical report dated 23 July 2013, Dr Glasby states that the cumulative effect of increasing dissatisfaction with the work environment and pressure to perform and severe motor bike accident with husband invaldid (sic) for nearly 6 months caused depression and stress (DCB 124).
(f)In an undated report prepared by treating psychologist Fran Malcolm for AIA insurance of about July 2013, the plaintiff is described as suffering reactive depression and anxiety. She couldn’t cope or concentrate on her work and felt unsupported by her workplace. The lack of support and understanding resulted in appraisal and eventual termination of employment at NAB. (See also clinical note 7/5/13 to 22/5/13; Malcolm report PCB 43).
(g)In about August 2013 the plaintiff and her family started being harassed by a person who was making serious threats to her and her family. This resulted in a report to police and intervention orders being taken out. (Malcolm report of 14 August 2013). This appears to have continued to January 2015 (see clinical note 22 January 2015).”[30]
[30]Outline of Defendant’s Submissions, pages 6-8, paragraph [18]
33 Defence Counsel then further submits:
“19.The symptoms, restrictions, and consequences that are reported to arise from these non-work related issues from being moved and re-rostered in 2010 and then from her husband’s accident and home related issues from 2013 and onwards include depression, shock, migraine, stress, anxiety, sleep difficulty and emotional, nausea, poor memory (TAC claim DCB 104; Glasby report PCB 47). The evidence reveals that it was because of these things that she started making mistakes at NAB (TAC med cert DCB 114). The plaintiff has not been able to return to work because of stress and anxiety (Malcolm PCB 44). She can’t function normally. She is unable to renovate her investment properties, go on family holidays and go walking. (AIA claim form DCB 122). She is restricted in household duties and has nil work capacity (Glasby PCB 49). The plaintiff agreed in cross examination that it is a result of the above non-work injury contributors that she has been on and remains on income protection. She further agreed that her general practitioner continues to provide medical reports in support of her income protection.”[31]
[31]Outline of Defendant’s Submissions, page 8
34 Defence Counsel further alleges that these are the same consequences that the plaintiff has attributed as being solely caused by her workplace injury.
35 As to the analysis that the Court is required to adopt, defence Counsel submits as follows:
“21.The Court is bound when examining the consequences of any claimed serious injury to look at how those consequences affect the plaintiff as she was and would likely have been absent the injuries she sustained in the subject workplace. This includes looking at the likely effect (and likely effect in the future) of any co-existing injuries. Responsibility for this task lies with the plaintiff and the plaintiff’s legal advisors.[32]
22.The onus rests on the plaintiff to ‘disentangle’ the various contributors to her pain and disability, in order to:
(a)identify whether any physical injury was sustained in the subject workplace incident and if so the impairment attributable to that injury.
(b)identify the consequences attributable to that injury; and
(c)establish that those consequences are ‘serious’.
23.The Court must exclude from its assessment any consequences resulting from any psychological consequence of the claimed injury. It must also exclude from its assessment those consequences that are the result of subsequent injury or condition.”[33]
[32]See Bezzina v Phi [2012] VSCA 161 at paragraph [23]
[33]AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Meadows v Lichmore [2013] VSCA 201; Outline of Defendant’s Submissions, pages 8-9
36 Finally, the defendant submits that the plaintiff is unable to discharge the onus because:
“24.The defendant submits that the plaintiff is unable to discharge that onus because:
(a)She has consistently failed to disclose the true nature and extent of a (sic) non-workplace accident injuries and illnesses and, in doing so, has exaggerated the true extent of any injury that is attributable to the subject accident.
(b)By reasons of that exaggeration, the probative force of the medical opinions and lay evidence upon which the plaintiff seeks to rely is significantly diminished.”[34]
[34]Outline of Defendant’s Submissions, page 9
37 Finally, defence Counsel submits:
“25.It is clear from the evidence that not only is (sic) the plaintiff’s non-work injury contributors continue to prevent her from working. They also impact upon her treatment and recovery in respect of her workplace injury. So much is plain from the reports of Dr Glasby, which reports reveal that the plaintiff’s non-work contributors not only cause pain and restriction but also adversely affect treatment and recovery in respect of the subject workplace injury. In this respect, reference is made to Dr Glasby’s reports of 20 May 2015 (PCB 50), and 18 November 2016 (DCB 128).”[35]
[35]Outline of Defendant’s Submissions, pages 9-10
38 With respect to this submission, however, it appears to me that if recovery has been prevented or prolonged due to extraneous circumstances, this does not necessarily break the chain of causation of the physical consequences emanating from the subject injury. It seems to me there is no evidence that there has been recovery from the physical consequences of the injury and in fact occupational physician, Dr Homolka, was of the opinion there was a permanent impairment relevant to the original injury of about January 2010.[36]
[36]Exhibit 3, DCB 24
39 In any event, defence Counsel’s submissions are comprehensive and fair and need to be addressed.
40 The first point to make is that I find that the plaintiff was a witness of truth and was quite frank in all of her evidence. In particular, she gave evidence that she was unable to continue in employment with Man to Man at a time after the subject injury because of back pain.
41 In final addresses, I asked defence Counsel:
Q:“Is there any reason why I shouldn’t accept her as a witness of truth? I didn’t - I mean, my impression was she was not evasive.”
MR OLDFIELD:
A:“No. She made appropriate concessions, and most concessions were not in her favour at all, and I will be making submissions about that. So she wasn't a witness of - well, credibility as far as being a witness who didn’t tell the truth – that’s not an issue, but ‑ ‑ ‑
HIS HONOUR:
Q:No, she was quite frank.”[37]
[37]Transcript 55, Lines 21-29
42 The second point is that none of the doctors who examined the plaintiff stated there was any illness behaviour or exaggeration. This was also conceded by Counsel in final addresses.[38]
[38]Transcript 57, Lines 17-25
43 Thus, it seems to me that the plaintiff has adequately identified a physical injury which has produced chronic organic pain from which she is yet to recover and the weight of the medical evidence is that there is no imminent end in sight.
44 Further, the plaintiff’s Counsel submits the cross-examination of the plaintiff was almost wholly directed to 2013 and 2014 in a situation where the plaintiff’s credit was not in issue. It was submitted the plaintiff was not seriously challenged insofar as she identified discrete physical consequences of the compensable injury as set out in the affidavit material.
45 In her first affidavit sworn 22 December 2016, the plaintiff swore:
“49.I have continuous pain in my right hip area, buttocks and my lower back. It is a constant dull pain that I would rate 2 or 3 out of 10. The pain from my right pelvic, waist and lower back area occasionally refers down the upper part of [my] right leg to my knee including inside my right thigh.
…
53.In relation to my lower back and right hip, I find that being in any one position for long periods of time makes me uncomfortable, stiff and increases the pain across my lower back and right hip. I have to change positions between sitting and standing. I find that standing still for more than a few minutes puts pressure on my right leg and across my lumbar spine and l have to move around. Sitting and standing does not have any impact on my right shoulder injury.
54.I wear a lumbar support heat pack around the house that I strap to my waist.
55.I find driving difficult because it requires me to sit in one position and this causes pain across my lower back and right hip pain. I can drive but find it uncomfortable.
56.Before the injury, I used to walk roughly 8 km approximately three to four times a week, usually with my daughter. I have tried walking since but whenever I come back from a walk, I find that I have increased pain in my lower back and right hip for approximately a week. I continue to put on weight because of this and I hate my body[;] it has really impacted my confidence.
57. I find bending causes pain across my lower back and right hip that radiates across my stomach and down my right leg. I find it very difficult to bend down to cut my toe nails and my mother does this for me, because I find it difficult and painful to bend. I find it difficult to put on shoes and socks. I have to do this while seated, slowly and on the couch.
58.I find it difficult to shave my legs in the shower as it requires me to bend over which can aggravate the pain in my lower back and right hip. I now sit on the floor of the shower to shave my legs. I have had a rail installed in the shower so that I can lift myself up from the floor.
59.I used to do the housework. Now, I find it difficult to do all of the housework and my husband assists me. I find it very difficult to scrub and clean the shower anymore as I am right handed and struggle to be able to use the force required in my right shoulder without aggravating the pain across my right shoulder and neck. I have resorted to pouring Domestos all over the shower and then rinsing the shower. I cannot vacuum without causing pain in my lower back. I used to vacuum the house two to three times a week and now I manage once every four to six weeks. I have to ask my daughter to vacuum the house and she often doesn’t. Following the injuries in approximately 2010, my mother-in-law gave me a self-pushing type vacuum, which means I do not have to use force in my right shoulder.
60.I ask my husband to assist me in hanging out any bigger things of washing such as big towels and blankets. I generally do not use the clothes line as it requires me to lift with my right arm above my shoulder. I use the clothes horse for most washing, apart from the bigger things which I generally ask my husband to hang on the line.
61.I used to turn our mattresses monthly but now I do not do this because of my right lower back and hip pain and the motion of turning a mattress forces me to use both arms.
62.I struggle to sleep because of the pain. I used to sleep heavily without interruption. Now I wake constantly throughout the night because of pain in my right leg, right lower back and right hip and I can only sleep for two or three hours. If I sleep on my right neck and shoulder the pain wakes me up; if I sleep on my back I feel pain cross my right shoulder blade. I have to sleep with a heat pack.
63.My husband and I used to have a hobby of buying houses and renovating them including doing the painting, and laying the floors and tiles. I would struggle to do this now as all of these activities require significant physical effort and aggravate the pain across my lower back, right shoulder, neck and right hip.
64.I go on an annual camping trip with my family to Waratah Bay. I used to enjoy walking on the beach and the physical activity of this holiday including the 50-stairwalk down to the beach. I now find the physical activity difficult and challenging because of my lower back and hip injury and I struggle to go down to the beach more than once a day. I now use the ramp to get down to the beach.
65.I used to go out on weekends generally once a fortnight to pubs and to see bands. Mentally, I no longer feel like going out. Physically, I also find that going out increases the pain – for example, any prolonged standing or sitting or walking aggravates my lower .back and right hip pain … .
…
67.I am constantly irritable and rude because of the pain and this has affected my relationship with my husband and daughter. Following my injuries my memory and concentration has deteriorated, for example l often forget to turn up to appointments.
68.My inability to work has affected our family financially. Working was my favourite thing. I loved working. I felt pride because of my job. I am really upset that I am injured. If l could return to work, I would return straight away. My jobs depended on my body.”[39]
[39]PCB 11-14
46 In her second affidavit sworn 12 July 2017, the plaintiff attested as follows:
“9. I currently take around 3-4 tablets of Nurofen Plus each day. I am taking more than when I swore my last affidavit because the cold in winter time makes my pain worse. Occasionally, I use my brother’s Valium if he is around and I don’t have anything else handy but that is rare.
10.I see the doctors at Dr Glasby’s clinic when I need to. This year, I have been seeing Mr Jason Gardener, an exercise physiologist. This is funded through Medicare so I only have a limited number of sessions. He has given me exercises for my back and neck which I try do regularly at home. I also see Robin Mason, a remedial massage therapist, every couple of months, when I can afford it.
11.Various doctors have recommended to me that I do a pain clinic to help me cope with my situation a bit better. I would try this, but WorkCover cut off my medical expenses and (sic) long time ago and I believe that they have knocked back every request Dr Glasby has made ever since. I cannot afford a pain clinic myself.
13.By far the worst pain I have is in my lower back area, particularly on the right-hand side. It goes from there, around my right hip and into my right groin area. It goes down the inside and outside of my right thigh, down to my knee. It is a constant dull pain even when it is at its best.
14.I get a lot of flare ups of my back pain throughout the day. These come on from moving wrong, or from sitting or driving too long, or from standing or walking too long. The flare ups make me have to lie down and rest, several times a day. I have my Nurofen plus and put a heat pack on my back for a few hours. I am basically useless when that happens. Recently I had a terrible flare up that was so bad I couldn’t walk.
…
16.I have absolutely terrible sleep at the moment because of back pain. I wake up multiple times each night. I feel sore and really tired in the morning. I have to try and nap during the day.
17.I have been a hard-working person since I was a teenager. I hate not being able to work and I would love to be able to go back. But my own view is that I am not capable of working at the moment. My pain is so bad that it affects my concentration. I am always tired and drowsy from lack of sleep due to pain.
18.Also, the pain flare ups I get every day mean that I have to lie down for a long time until the pain eases. I don’t see how I could be a consistent and reliable employee for anyone the way I am at the moment.
… .”[40]
[40]PCB 17-18
47 These matters were largely unchallenged in cross-examination and I accept the consequences as alleged.
48 In terms of the template to be adopted in assessing the physical consequences of the work injury, I bear in mind what the Court of Appeal said in Meadows v Lichmore Pty Ltd,[41] as follows:
[41](Supra)
“[18] It is, of course, correct that the statutory test is not concerned with whether the pain and suffering consequences are ‘substantially physically based’ or have ‘substantially an organic basis’. But senior counsel for the respondent informed the court — and senior counsel for Mrs Meadows accepted — that it was a conventional and accepted approach, in cases where pain had both physical and psychological causes, for the parties and the judge to address questions formulated in these terms.
[19] This framework of analysis was said to owe its origin to the judgment of Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd.[42] His Honour there pointed out that, in pain and suffering cases involving both physical and psychological causes, it may be necessary to ‘disentangle’ the one from the other, but it may not be. (The court’s earlier decision in Stamboulakis had been said to require the applicant in every such case to separate the two, and to provide medical evidence in a form which enabled the separation to be made.) His Honour said:
‘In some instances, disentangling might be a useful methodology in resolving the question whether the worker has suffered serious injury. It may be the case also that, in some instances, doctors will be able to offer opinions of substance — not mere form — which will assist in disentangling physically and psychologically-based pain and suffering. But it would be simply wrong to think that Stamboulakis commands such an approach, failing which a plaintiff cannot succeed.
…
Many examples might be given to illustrate the point. I will take just two.
Suppose a man loses a dominant right arm in an industrial accident. For a year or so he attempts to resume his former manual work; but he cannot do so. It is also clear that he cannot enjoy any of his previous recreations — gardening, golfing, and so on. These sequelae will be permanent. Later, in response to his injury and its effects upon him, he begins to suffer from somatic symptoms which make his life more of a misery. He has recurrent headaches, chest pain, and abdominal discomfort, all of which would preclude him working and from enjoying his former recreations. These somatic symptoms could be ‘stripped away’, almost certainly without the assistance of medical practitioners. But it could not sensibly be said that this would be necessary in order for Mrs Meadows to establish that the impairment in its physical consequences constituted serious injury.
Consider another example. A man of mature years, who has always been a labourer, suffers spinal injury. It is sufficiently serious to require a three level spinal fusion. He is left with a stiffened back. The spinal segments above and below the fusion are at increased risk of injury because of the fusion. Medical opinion is that the man will be limited, permanently, in the work which he can perform; and his essential recreational pursuits are seriously and permanently inhibited. Later on, he develops intractable pain in the affected area with radiation to his lower limbs. The pain cannot be explained physically. It is a psychological phenomenon, and it is very disabling. There could be no need to disentangle the psychologically-based symptoms and their consequences — although again it may be assumed that it would be possible to do so.
Finally, consider a variant of the second example. Suppose that the intractable pain, psychologically-based, has its onset very soon after surgery. The physical impairment, and its impact upon work capacity, would be no less ascertainable only because the psychologically-based symptoms were not ‘stripped out.
It is impossible to specify a ‘one size fits all’ template of circumstances which a judge might find useful in determining a particular serious injury application. To take a single example, it could be that the judge hearing a particular application would consider himself or herself assisted by evidence that the applicant had a sound work record, or that the applicant had previously sustained injury but had recovered and got back to work. The judge might think it significant that the applicant had responded favourably to earlier injury affecting the area of the body now said to be affected. The fact that a person had coped with injury in the past, but not with injury now, might suggest, together with other circumstances, the likelihood that symptoms attributed to the present injury had a substantial organic basis — at least sufficient to satisfy the serious injury threshold. But whether such a conclusion should be drawn would depend upon consideration of all the evidence.’”[43]
[42][2008] VSCA 167
[43](Supra) at paragraphs [24]-[29]
49 Further, the Court, in Meadows v Lichmore,[44] later stated:
“[21] As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
[22] If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[44](Supra)
50 In my view, the plaintiff has successfully negotiated step one, in that she has proved that there is a substantial organic basis for the pain and suffering consequences relied upon and as set out above, basically unchallenged, in her affidavit.
51 Insofar as it may be held that the second step is required, I consider that the evidence thus described does separate the physical contribution to the pain and suffering from the psychological as the consequences sound in on a physical basis.
Analysis
52 My task in this matter is to consider whether the plaintiff has established that the pain and suffering consequences of her injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may fairly be described as being “more than significant or marked” and as being “at least very considerable”. As has been referred to by the Court of Appeal, this involves a value judgment in which matters of fact and degree and of impression are operative.[45]
[45]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at paragraph [41]
53 Further, the emphasis in s134AB is upon seeing whether the facts of a particular case sit in a broad spectrum of cases, remembering that this includes cases which do not end up in litigation.[46]
[46]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [43]
54 In my view, it is to the plaintiff’s credit that she did return to work on an alternative capacity but was never able to return to her pre-injury employment which was a source of enjoyment for her. I accept her evidence that she is restricted otherwise in her recreational activities and household activities.
55 In my view, the consequences can fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
56 Accordingly, the plaintiff will be given leave to issue proceedings at common law for pain and suffering damages, and I will hear the parties as to any consequential orders.
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