Wiseman-Smith v Active Care Attendant Care Agency P/L
[2011] VCC 1136
•18 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
(Not) Restricted
AT GEELONG
CIVIL DIVISION
Case No. CI-09-06001
| HEATHER WISEMAN-SMITH | Plaintiff |
| v | |
| ACTIVE CARE ATTENDANT CARE | Defendants |
| AGENCY PTY LTD & ORS |
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| JUDGE: | His Honour Judge Howie |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 11,12,15,16 August 2011 |
| DATE OF JUDGMENT: | 18 August 2011 |
| CASE MAY BE CITED AS: | Wiseman-Smith v Active Care Attendant Care Agency P/L & Ors |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1136 |
REASONS FOR JUDGMENT
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Catchwords: s134AB Accident Compensation Act 1985; Serious injury application
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C.W.R. Harrison SC | Petersons |
| Mr A.E.A. Macnab | ||
| For the Defendants | Mr R.K. Meldrum QC | Wisewould Mahony |
| Ms K.A. Galpin | ||
| HIS HONOUR: |
1 The plaintiff seeks leave pursuant to s.134AB of the Accident Compensation Act 1985 to bring proceedings to recover damages for pain and suffering and for pecuniary loss. She relies upon paragraph (a) of the definition of serious injury and sub-s.(37). The body function alleged to be impaired is the function of the lumbar spine.
2 The plaintiff was employed by the defendant as a personal care attendant. It was part-time work. Her work was to attend the homes of persons occupying Veteran Affairs units and assist them with house cleaning and similar tasks. In the course of this work on 15 January 2008, when lifting a mattress while making a bed, she experienced pain in the area of her low back. She completed her tasks with difficulty and in pain and when she returned home reported what had occurred to the receptionist at the defendant's office. She has not worked since.
3 It is useful to note some relevant matters about the plaintiff at this point. She is 59 years of age, her date of birth being 2 January 1952. She has not had an easy life, having been married and divorced twice, and raised three children. As I understand it she is single and one of her sons resides with her. For some years, commencing prior to the incident in January 2008, she has suffered from a condition known as fibromyalgia and from depression. Those conditions were sufficiently severe to lead to her being granted a disability support pension in 1999. The report and assessment of Dr Henderson in November 1999 makes it clear that, while she had a number of aches and pains, the principal pain caused by the fibromyalgia was in the area of the shoulder girdle. While Dr Henderson certified that she was not capable of full- time employment, it is apparent from his report that at that time the plaintiff was working 12 hours per week doing cleaning work at a university residence.
4 In fact the plaintiff has a history of consistent work. After completing Year 9 at secondary school and a secretarial course at age 15, she married when she was 18 and she and her husband moved to the Wodonga area. They had three children. The plaintiff worked part-time in two places before commencing full-time employment Mercy Hospital, where she worked for 10 years. After returning to Geelong in 1987, she worked at an amusement parlour for four and a half years, and was then engaged in part-time cleaning work at banks and at Deakin University student accommodation. As already noted, in November 1999 she was working 12 hours per week. It is not the history of a person who is work shy.
5 She commenced employment with the defendant in February 2006. Although her hours of work varied a little they were, on average, four and a half hours per week. The income from this part-time work topped up her pension and, no doubt, assisted in making her life a little more manageable and enjoyable.
6 After hurting her back and advising her employer on 15 January 2008, the plaintiff did not attend other clients over the following days. When the low back pain continued, she went to her local doctor at the Belmont clinic on 23 January 2008. Although she initially saw Dr Bothroyd, her principal treating doctor was Dr Jennifer Deacon. Over the following year and subsequently, the plaintiff's low back injury was treated by the following measures:
7 Dr Deacon prescribed analgesic medication, including Panadeine Forte and OxyContin, and physiotherapy. She arranged a CT scan of the lumbar spine, which was carried out on 28 February 2008. It revealed broad based disc bulging at L4/L5 and minor disc bulging at L5/S1 and at L3/L4. Dr Deacon referred the plaintiff to Dr Jensen, a specialist in musculoskeletal pain medicine. He began to treat the plaintiff in May 2008. He found her to be significantly disabled, being stuck in flexed forward position and listing slightly to the left, with left posterior thigh pain as far as the knee but no paraesthesia.
8 On 1 May 2008 he treated her with a caudal epidural injection. Following the injection she was able to adopt a neutral erect standing posture and walked with more ease. At that time she was taking OxyContin for her pain.
9 By 21 May 2008, however, Dr Jensen reported that after three days the pain had increased and after 10 days it had returned to the previous level and her fixed flexed posture had returned.
10 Dr Jensen considered that the plaintiff had a clinical radiculopathy, affecting the left L5 nerve root, although an MRI on the lumbar spine on 15 May 2008, did not reveal any significant L5 nerve root compromise. He thought it was probably a chemical radiculopathy. He increased the dosage of OxyContin the plaintiff was taking and proposed a left L5 transforaminal epidural injection. The first left L5 transforaminal nerve root injection was carried out by Dr Jensen on 5 June 2008. The effect was to reduce the plaintiff's level of pain but the effect was short lived. A second left L5 transforaminal nerve root injection was carried out by Dr Verrills at Dr Jensen's request on 12 August 2008. Again the procedure took away the plaintiff's significant pain for a couple of days but the effect was short lived. Dr Jensen described the plaintiff as being "at her wit's end". He continued to be of the opinion that her pathology was related to the left L5 nerve root. Both Dr Jensen and Dr Verrills considered that the next step was a provocation discogram to determine whether the pain was arising from the discs.
11 The plaintiff was referred by the clinic to Mr Ton, an orthopaedic surgeon, in April 2008. On 29 August 2008, following an examination by him at that time, Mr Ton reported to the clinic in the following terms:
"Diagnosis: mechanical back pain with referred leg pain due to degenerative disc disease. I will continue with the anti-inflammatory and physiotherapy. I've also referred her to see Dr Andrew Muir for pain management."
12 The plaintiff's general practitioner Dr Deacon, agreed with Mr Ton's diagnosis and continued with her treatment accordingly. A lumbar discography was carried out by Dr Verrills on 10 December 2008. It produced a negative result. Dr Verrills advised, "I do not believe that she should have any disc interventions or surgery."
13 Dr Deacon referred the plaintiff to the pain management unit at the Geelong Hospital, where she attended for initial assessment on 20 January 2009. Dr Talbot's report of that date records that the plaintiff had been attending physiotherapy weekly since February or March 2008. On 19 March 2009 Dr Talbot performed lumbar nerve root medial branch blocks. In October and November 2010 the plaintiff participated in a pain management course conducted by the pain management unit at the Geelong Hospital.
14 In her affidavit of 4 April 2011, the plaintiff deposed:
"I completed a three week pain management course on or about 12 November 2010. As a result of attending the pain management course, my low back symptoms have improved. I am now taking less medication. On an average week I generally take about eight to ten Panadeine Forte tablets. I am no longer taking Lyrica, OxyContin or Voltaren on a daily basis. However since the pain management course, there have still been times when I have needed to take Lyrica due to severe flare-ups. This has occurred on about three occasions."
15 In her evidence, the plaintiff said that the benefit of the pain management course, in which she participated, was that it assisted her to cope with the pain that she continued to experience in her low back. She also said, in cross-examination, that her capacity to cope had lessened in more recent times. The effect of her evidence was that she continued to experience the same level of pain that she had experienced all along but that her ability to cope with it and manage it had generally improved.
16 The defendant's case is that the symptoms of pain and restricted movement in the plaintiff's low back are not a consequence of an injury to her lumbar spine in January 2008, but the symptoms of another medical condition known as fibromyalgia, from which the plaintiff suffered before the January 2008 incident and from which she continues to suffer.
17 The defendant argues that the fibromyalgia, coupled with, or mediated by, depression, is the cause of the plaintiff's low back pain and restricted movement.
18 In support of this submission, Mr Meldrum QC relied upon a report of a rheumatologist Dr Griffiths, dated 5 January 2000 and the reports of another rheumatologist Dr Woods and of an occupational physician Dr Davison.
19 Although Mr Meldrum relied heavily on the report of Dr Griffiths of 5 January 2000, in my opinion it provides negligible foundation for the defendant's submission. Dr Griffiths diagnosed the plaintiff in January 2000 as having "fibromyalgia from pretty major psychological issues."
20 Although he wrote to Dr Smith that, "She has aches and pains all over her body", I remain puzzled by the argument that this diagnosis is the probable cause of her present low back symptoms. Dr Griffiths does not, and could not, address what has happened to the plaintiff in the 10 and a half years since he made his diagnosis. Obviously, he did not address the January 2008 incident, the plaintiff's low back symptoms, the course of those symptoms, or the treatment given.
21 His report is brief and his diagnosis is not clear. He appears to consider the condition he refers to as fibromyalgia to be a psychological condition, or perhaps physical symptoms with no organic cause. He advised the general practitioner in January 200, "I think she need counselling and a lot of support. I did not think there was any need for medications and the X-rays and investigations are largely irrelevant." If this opinion was relevant and applicable to the situation eight years later in January 2008 or now, as Mr Meldrum contends, how misguided were Dr Deacon, Dr Jensen, Dr Verrills, Mr Ton and Dr Talbot in their diagnoses and the course of treatment they considered appropriate and undertook in 2008 and subsequently each of those treating doctors considered the plaintiff's low back pain and associated symptoms to be caused by physicial injury to her lumbar spine and they treated her accordingly.
22 There is support for the proposition that the plaintiff's symptoms are caused not by physical injury to the lumbar spine but by fibromyalgia in the report of Dr Wood, a rheumatologist, who examined the plaintiff on 24 March 2009. He expressed his opinion as follows:
"I believe that her spinal condition is a regional pain syndrome, most likely related to her fibromyalgia." He considered that "the severity of the restriction in a range of lumbosacral movement is inconsistent with any physical injury of the lumbar spine."
His diagnosis was of "a regional pain syndrome as opposed to a specific lumbar spine injury." I understand that by "regional pain syndrome" he means symptoms of pain with a psychological or non-organic cause.
23 The reports of Dr Davison, an occupational physician, who assessed the plaintiff on 28 April 2008 and 7 November 2009, were also relied upon to support the proposition.
Following the second examination he concluded that the plaintiff's condition, "relates to pre-existing factors including previous lower back injury, fibromyalgia, psychiatric condition, lifestyle issues (a gain of 25 kilograms), psychosocial factors and constitutional degenerative factors."
24 This broad sweep of unexamined causes and opinion beyond the doctor's field of expertise was not persuasive. The previous back injury referred to was apparently an episode of low back strain 30 years earlier which did not require time off work and resolved after three weeks of physiotherapy.
25 The opinions of Dr Wood and Dr Davison are at odds not only with the plaintiff's treating doctors, Dr Deacon, Dr Jensen, Dr Verrills, Mr Ton and Dr Talbot, but with the two orthopaedic surgeons, Mr Grossbard and Mr Jones, and the neurosurgeon, Mr Brownbill, who each assessed the plaintiff.
26 As mentioned, Mr Ton diagnosed mechanical back pain with referred leg pain due to degenerative disc disease. He advised the continued treatment of anti- inflammatory medication and physiotherapy and referred the plaintiff for pain management.
27 Mr Jones, who first assessed the plaintiff on 10 June 2010, diagnosed the plaintiff as suffering from multi-level degenerative disc disease affecting the lower lumbar spine. His opinion was that it had been developing for a number of years before the onset of symptoms. He considered that it was possible that the lifting incident on 15 January 2008 caused the injury but said that he expected any aggravation caused to her pre-existing degenerative condition would have resolved. While this may have been his expectation, presumably based on his experience of other patients, it is apparent that in the plaintiff's case, it had not resolved. He thought her level of pain symptoms were out of proportion to her clinical and radiographic findings.
28 When Mr Jones examined the plaintiff on a second occasion on 7 July 2011, he maintained his diagnosis that her low back symptoms related to multi-level degenerative disc and joint disease affecting the lower lumbar spine. On that occasion, following the progress made at the pain management clinic, he regarded what he considered to be her "somewhat functional symptom of disproportionate pain and altered feeling in the lower limbs" to have resolved. On both occasions, Mr Jones declined to comment on any psychological reactions suffered by the plaintiff, recognising that they were outside his area of expertise.
29 Concerning the plaintiff's capacity for employment, Mr Jones' opinion was as follows:
"This plaintiff has limited capacity to work from a physical perspective. She would not be able to return to work which requires bending, lifting or the duties that she was formerly performing. Mrs Wiseman-Smith reports that she has no particular training for any clerical work but I believe that she would be able to manage this type of work if it were available. The incapacity for her to undertake her former job in my opinion relates to her degenerative lower back condition and to a degree her symptoms of fibromyalgia affecting her shoulder girdle and upper thoracic spine."
30 Mr Grossbard first examined the plaintiff on 14 July 2009. He reported that he suspected that there was a disc annulus disruption but without evidence of subsequent radiculopathy. He noted significant bulging at the L1/2 level on MRI scanning and suggested a re-examination of the MRI scan with further consideration of the L1/2 level.
31 That re-examination was carried by consultant radiologist, Dr Kam, who reported on 11 August 2009 that "images confirm L1/2 posterior left paracentral annular fissure with secondary focal disc extrusion causing impression on the thecal sac."
32 On 3 September 2009, Mr Grossbard reported as follows:
"Dr Kam supports my view that there is significant pathology at the L1/2 level on MRI scanning but there is no evidence of radiculopathy. Unless the treating surgeon was considering a fusion of the L1/2 level, I would not in favour of discography for diagnostic purposes only. I do not believe there is evidence of true radiculopathy but the presence of leg pain to the level of the knee rather than the foot is more consistent with the legion at the L1/2 level than at L4/5 level."
33 Mr Grossbard continued to be of that opinion following a further examination on 16 February 2011. He wrote:
"My basic opinion about this lady is unchanged. She has however shown significant improvement in her ability to manage her pain. She is still far from able to undertake meaningful work activity, particularly as a cleaner and carer. I think the likelihood of her returning to such employment is virtually non- existent. I believe there is a theoretical capacity for sedentary duties and in practice this is unlikely to be available for her and it is unlikely she will cope for long periods of sitting. Overall, the situation is stable. This lady's pain is not going to go away but she has just learned to manage it better. Clearly her domestic and social activities have been curtailed because of her ongoing back condition. I do not think surgical intervention is appropriate at this stage and I believe the situation is probably stable."
34 In a follow-up report on 12 April 2011, Mr Grossbard said:
"This lady's low back injury is such that she is not able to undertake physical work. She is not able to return to her previous work as a carer or a cleaner. In reality, it is unlikely this lady is going to return to active employment in the foreseeable future although there is a theoretical ability to undertake short periods of light sedentary duties. Bearing in mind issues of age and training, I think it is unlikely this lady will return to work in any capacity, largely as a result of her back injury."
35 Mr Grossbard's evidence was persuasive. He was firmly challenged in cross- examination. He maintained his opinion that the probable cause of the plaintiff's low back pain and symptoms was a disc injury to the lumbar spine at the level of L1/L2.
36 Mr Brownbill examined the plaintiff 3 June 2010. His opinion is clearly set out in his report in the following terms:
"On the information provided, I consider that this lady had long standing, essentially a systematic, lumbar spine degenerative changes which were aggravated by the described lifting, twisting incident of 15 January 2008 when she was making a bed. I consider that pain will continue in a fluctuating manner indefinitely. In the future, she would be advised to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. I do not consider that she will in the future be able to return to her described cleaning occupation.
Although the exact anatomical structure cannot be identified, I consider that this lady has suffered aggravation of pre-existing multiple level lumbar spine degenerative changes without neurological abnormality giving rise to back pain and by referral upper leg pain as a result of the described work incident on 15 January 2008. I consider that as a result of that physical injury (and resulting physical activity restriction requirement) this lady is likely to be restricted to a marked degree in relation to activities involving prolonged standing, sitting, walking for prolonged periods, lifting, repetitive bending, stooping and/or twisting.
I consider that incapacity will continue for the foreseeable future as a consequence of the physical injury of aggravation of lumbar spine degenerative changes and resulting physical activity restriction. I consider that this lady is likely to be precluded in relation to her pre-injury duties for the foreseeable future.
As a consequence of the physical injury of aggravation of lumbar spine degenerative changes and resulting physical activity restriction, I consider this lady is likely to be precluded from performing suitable employment for the foreseeable future noting her age of 58 years, her work activity experience, having always in later years involved physical activity, her demonstrated multiple level lumbar spine degenerative changes and her described ongoing activity-related back and left leg pain. She will in the future need to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.
However, as I've outlined above, I consider noting her age, work experience and demonstrated lumbar spine degenerative changes, on probability, she would not be able to return to employment for which she is suited. The same activity restrictions I've referred to above will apply to her domestic and recreational activities. She's able to perform her housework in slow, small amounts only and she requires assistance from her son. No further specific treatment is indicated from a neuro-surgical point of view. It is appropriate for her to continue with pain management specialists and for consideration to be given to the provision of cognitive pain therapy. I anticipate that pain will continue in a fluctuating manner indefinitely with the associated activity restrictions referred to above."
37 The psychiatrist, Dr Daniels, who assessed the plaintiff on 4 February 2011, concluded that the plaintiff has a recurrent major depressive disorder that appears to have been in remission at the time of the injury on 15 January 2008. He considered that she had improved significantly following the pain management treatment in October and November 2010 but had deteriorated following cessation of anti-depressant medication. He did not consider that her depressive symptoms would affect her capacity to return to work.
38 I am satisfied that in the course of her employment by the defendant on 15 January 2008, the plaintiff suffered an injury to her lumbar spine. The consequences of the impairment of the function of the plaintiff's lumbar spine are described by her in her affidavits sworn on 21 May 2010 and 14 April 2011 and in the course of her cross-examination.
39 She deposed:
"My ability to sit, stand or walk for longer periods has increased" - this is following the pain management course - "and I'm no longer using the walking stick. However I'm still limited in how long I can do these activities without suffering increased pain. I continue to suffer constant low back pain which various from day to day but the pain is there everyday. It is centred just above my belt line. I still suffer from left leg pain from time to time but not as frequently as I was prior to the pain management course. There are occasions when I suffer from right leg pain as well my left leg pain but this is more unusual.
Whilst I suffered from fibromyalgia prior to 2008, this condition affected my shoulder regions and my upper back. To this day, I still suffer from aches and pains in those regions but my upper back and shoulder symptoms are nothing like the pain I suffer from in my low back and at times my legs. I believe that my low back condition on its own prevents me from working.
If I did not suffer from my low back condition, I believe I would be able to work. I love my work because it made me feel useful. I also got satisfaction from helping the clients. Prior to suffering injury, I had the capacity to work additional hours, however the work was not regularly available to me."
40 In her earlier affidavit, she had deposed:
"My low back condition has also had a devastating affect on my social, domestic and recreational activities. Prior to suffering injury in January 2008, I was able to go on long walks, attend dances, play and interact with my grandchildren and keep house."
41 Her evidence was that her low back pain and restricted movement prevented her from enjoying those activities.
42 I am satisfied that the impairment of the function of the plaintiff's lumbar spine is permanent and that the consequences of the impairment with respect to pain and suffering are when judged by comparison with other cases in the range of possible impairments of body function, fairly described as being more than significant or marked and as being at least very considerable.
43 I am satisfied that as a consequence of the injury to the plaintiff's lumbar spine, she is unable to work and having regard to the nature of her incapacity, her pre-injury employment, her age, education, skills and work experience, she is not currently suited for employment in work and not capable of earning income in suitable employment.
44 I am satisfied that the loss of earning capacity consequence of the function of the plaintiff's lumbar spine can be fairly described as being very considerable.
45 I am satisfied that the plaintiff has a loss of earning capacity of 40 per centum or more and that she will continue to permanently have a loss of earning capacity which will be productive of financial loss of 40 per centum or more.
46 I am also satisfied that the plaintiff does not have a capacity for any alternative employment or further or additional employment which if exercised would result in her earning more than 60 per cent of her without injury income.
47 Accordingly, leave is granted to the plaintiff to commence proceedings to recover damages with respect to pain and suffering and loss of earning capacity for the injury to her lumbar spine arising out of or in the course of or due to the nature of her employment by the defendant on 15 January 2008.
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