Wood v John Danks and Son Pty Ltd
[2009] VCC 376
•16 April 2009
°
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-00493
| BARBARA WOOD | Plaintiff |
| v | |
| JOHN DANKS & SON PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10, 11 & 12 February 2009 |
| DATE OF JUDGMENT: | 16 April 2009 |
| CASE MAY BE CITED AS: | Wood v John Danks & Son Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0376 |
REASONS FOR JUDGMENT
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Catchwords: s.134AB Accident Compensation Act 1985 – serious injury – aggravation of
pre-existing degenerative disease – pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Bird | Ryan Carlisle Thomas |
| For the Defendant | Mr J Parrish SC | Wisewoulds |
| Ms A Ryan | ||
| HER HONOUR: |
Introduction
1 Between August 1999 and 28 July 2006, the plaintiff was employed by the first defendant as a store person. By originating motion filed on 13 February 2008, pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”), the plaintiff seeks leave to commence proceedings for damages in respect to injury to her lower lumbar spine suffered on 17 June 2004 in the course of her employment with the first defendant.
2 The application is made under paragraph (a) of the definition of “serious injury”, that is, serious permanent impairment or loss of the lumbar spine by reason of permanent aggravation of pre-existing degenerative changes in the plaintiff’s lower back which, in opening her case, her Counsel claimed had been asymptomatic. This was how the case was opened, notwithstanding an earlier work-related injury in March 2003 which the plaintiff said had settled although she still suffered some ongoing backache.
3 Having initially applied for leave in respect to both pain and suffering damages and pecuniary loss damages, prior to the conclusion of her cross-examination the plaintiff withdrew her application for leave in respect to any pecuniary loss damages.
4 To succeed the plaintiff must prove that the consequences of impairment of her lumbar spine are more than “significant” or “marked” and at least “very considerable”.
5 The statutory scheme established under s.134AB requires that I consider the consequences to the plaintiff, viewed objectively, arising from compensable injury. I am also required to compare the impairment arising from compensable injury with other cases in the range of possible impairments of the lumbar spine.
6 The decision of the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 explains the correct approach to the statutory formulation for determining an application for leave to commence proceedings for damages. In summary, the plaintiff must establish:
(a)
a compensable injury after 20 October 1999 which by definition includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease;
(b) the nature of the injury; (c)
the consequences at the date of hearing (in this instance confined to pain and suffering consequences as defined by the Act) to which the compensable injury materially contributes; and
(d)
that those consequences are serious in the sense that they are “very considerable” and permanent.
The areas of dispute
7 The defendants conceded that there was “an incident of injury” on 17 June 2004 arising out of the plaintiff’s employment. However:
(a)
based particularly on the evidence of orthopaedic surgeon, Mr Jones, surveillance film and the circumstances in which the injury occurred, the defendants submitted that any injury was minor;
(b)
again based particularly on the report of Mr Jones, who last examined the plaintiff on 25 August 2008 and who viewed surveillance film, the defendants submitted that the plaintiff was capable of resuming fulltime employment because any possible aggravation of pre-existing degenerative disease had resolved. In other words, any injury-related impairment was not permanent;
(c)
the defendants submitted that, having regard to lower back injury suffered by the plaintiff in March 2003 which remained symptomatic, the consequences of any organic injury suffered in June 2004 were not “serious”;
(d)
the defendants challenged the soundness of the medical opinion on which the plaintiff relied, submitting that the doctors who provided this opinion had not received a full history and that on clinical examination they had not seen the range of movement demonstrated by the plaintiff in surveillance film taken in January 2008 and again in January 2009; and
(e) having regard to the film the defendants challenged the plaintiff’s credit. 8 Based on her personal history and her evidence at hearing, the plaintiff presented as an intelligent and capable woman. My impression of her as a witness was that from time to time unless pressed a number of her responses were vague and not particularly informative. This was most evident in her responses concerning, for instance, her use of painkilling medication for her different medical conditions, the nature and extent of any medical and chiropractic treatment received after she suffered a work-related low back injury in March 2003 and in her responses concerning her activities over the period in which surveillance film was obtained. Nevertheless, as my discussion of the evidence and material tendered below demonstrates, I did not form an unfavourable view of the plaintiff’s credit.
The evidence called and tendered
9 At hearing, the plaintiff deposed to the accuracy of her two affidavits, sworn 30 July 2007 and 4 February 2009. She gave evidence and she was cross- examined.
10 The material tendered by the plaintiff from her Court Book consisted of: (a) medical reports from treating doctor, Dr Nihal Heenetigala and treating physiotherapist Mr Tim Courtney; (b) medico-legal reports from Orthopaedic Surgeon, Mr John O’Brien, Occupational Physician, Dr Charles Castle and Orthopaedic Surgeon, Mr Roger Westh; (c) three radiology reports, dated 6 July 2004, 28 June 2005 and 10 September 2007; and (d) a ‘Taxation summary’. The plaintiff also tendered a copy of the report of Consultant Psychiatrist, Dr L Fernando, dated 10 April 1997, and a copy Resume from the Defendants’ Court Book.
11 The defendants tendered the following documents from the Defendants’ Court Book: (a) affidavits of Mr David Agar (sworn 5 Feb 2008) and Mr Jason Spiteri (sworn 11 February 2008); (b) two reports from treating Orthopaedic Surgeon, Mr Amiroel Razif; (c) two assessment reports from Consultant in Occupational Medicine, Dr Ralph Poppenbeek; (d) medico-legal reports of Orthopaedic Surgeons, Mr Ian Jones and Mr Brendan Dooley; and (e) 3 pages of entries from the clinical records of Dr Heenetigala. Two surveillance films, the first a VHS video tape dated 28 January 2008 and 31 January 2008 and the second a DVD dated 31 January 2009, were also tendered by the defendants.
12 Dr Heenetigala gave evidence and he was cross-examined. The defendants initially sought to cross-examine Mr Westh. However, when significant difficulties arose in arranging for Mr Westh’s attendance, the parties agreed that in this case no adverse inference should be drawn from the failure to cross-examine Mr Westh.
The plaintiff’s background
13 The plaintiff is fifty-four years of age, having been born on 30 August 1954. She is divorced with two surviving adult daughters, the eldest of whom is thirty-six years of age and suffers from cerebral palsy.
14 In the period between finishing school at the age of fifteen and 1982, the plaintiff performed unskilled work as a cleaner and as home help, as well as taking time off from the workforce following the birth of her children, one of whom (a son) died in 1995.
15 However, as her first affidavit, her resume (Exhibit “P3”), and her responses during cross-examination reveal, the plaintiff is a resourceful woman who, between 1982 and the commencement of her employment with the first defendant, bettered herself through various courses of study at the Dandenong and Casey TAFE Colleges where she obtained formal qualifications and through experience in the workplace. For instance, during her successive employments with two companies as a bookkeeper, the plaintiff also performed office work and office retail sales. Indeed, for one employer she established a new division of its business. The plaintiff also acknowledged work experience: using MYOB computer systems, in purchasing, in reception duties, in sales, in bindery (collating book pages), in general office duties, in invoicing and accounts, in payroll, in sales and in client service.
16 Against this background and allowing for evidence of her nomination in 1992 as Springvale’s Citizen of the Year, I formed the view that in addition to having established a very good skills base in office work and in a business environment, the plaintiff had previously been an active and well-regarded member of her community.
17 According to her first affidavit, the plaintiff was unemployed for some eight months before, in August 1999, she commenced full-time employment with the first defendant working as a store person. The first defendant apparently operates a hardware distribution business. At the date of her injury, the hours worked by the plaintiff were between 7.30am and 4.00pm with, she said, significant amounts of overtime. Whilst the plaintiff claimed to perform general store work, she nominated picking and packing hardware items and completing customer orders as her main duties.
The circumstances of the plaintiff’s injury
18 In paragraph 6 of the plaintiff’s first affidavit, she described the circumstances giving rise to her back injury in the following words:
“On the said date I was working at the Defendant’s Distribution Centre at 414/426 Lower Dandenong Road, Braeside. I had been pushing a trolley whilst picking orders. I stopped and was bent over in a stooped position attending to paperwork associated with the particular order that I was fulfilling at the time. A co-employee, David Argard, (sic) accidentally struck me forcibly from behind. Just prior to accident I believe he had been pulling out a pallet from shelving and was not keeping a proper lookout. He either pushed or knocked backwards into me. After I had been hit I immediately straightened up in a reflex response to having been struck. I felt immediate, intense pain in my back of such severity that I was reduced to tears. I also felt numbness extending down my legs. I was taken to the Defendant’s First Aid Centre where I was attended by its first aid officer, Ms Sue Gunning. The accident occurred at approximately 2.45pm.”
19 In response to the plaintiff’s proposed statement of claim (a copy of which was not tendered), former receiving supervisor, Mr Agar, described the incident by explaining that he was walking slowly backwards and, as he pulled “…a pallet from underneath a rack within area E”, his backside bumped into the plaintiff’s backside. According to Mr Agar, he did not “strike” the plaintiff “forcibly”. He also recalled the plaintiff telling him that she was “startled when I bumped into her”.
20 Former stock replenisher, Mr Spiteri, witnessed the incident described by the plaintiff and Mr Agar. Mr Spiteri’s affidavit evidence also tends to minimise the extent of the impact between the plaintiff and Mr Agar by stating:
“8. As David was pulling out the pallet, the Applicant moved behind him and was bumped when David stepped back. It didn’t look like David hit her hard. He wasn’t moving quickly and didn’t have the pallet out all the way when he bumped into her.
9. The Applicant didn’t fall when she was bumped.”
21 Nevertheless, putting to one side the contest about the force with which Mr Agar struck the plaintiff, her evidence that she was reduced to tears and that she attended the first defendant’s first aid centre is uncontradicted. Moreover, as her general practitioner, Dr Heenetigala’s, evidence, clinical notes and reports confirm, on 18 June 2004 the plaintiff recounted this incident. Following his clinical examination this doctor found “diminished
straight leg raising and local tenderness over her lumbar spine – and lower
thoracic spine” and he diagnosed a muscular strain for the treatment of which he prescribed painkilling (Panadeine Forte), anti-inflammatory (Anaprox) and anti-spasmodic (Murelax) medication.
22 The plaintiff was certified as unfit for work until mid July 2004 when she returned to modified duties, working four hours a day, five days a week with restrictions on sitting or standing for periods in excess of 30 minutes and on climbing stairs.
23 In cross-examination the plaintiff said that these duties involved paperwork and she was required to move around the warehouse scanning products in readiness for them to be shipped out on trucks.
24 However, according to the plaintiff, from September 2004, due to concern about her long-term financial security and under pressure from the first defendant, she resumed full-time work (that is working 38 hours per week, but no overtime) albeit performing modified duties. These duties involved picking and packing smaller orders (that is less heavy items) than previously required in her pre-injury duties, although the plaintiff also agreed that for the majority of the time this picking and packing work required her to push a trolley around the warehouse. As the plaintiff said at hearing, she never returned to performing her heavier pre-injury duties and when, in March 2006, the first defendant terminated her employment (as from 28 July 2006) “on the basis that it did not have continuing light duties available” she was struggling with her workload.
25 In August 2006, the plaintiff apparently underwent vocational assessment, as a result of which she unsuccessfully applied for a number of office jobs. She has never returned to gainful employment. The view I formed, having heard the plaintiff’s evidence, is that her financial circumstances were such that had her employment not been terminated and had she been offered ongoing or alternative employment, she probably would have continued in her modified duties or in some form of gainful employment which made allowance for the ongoing impairment of her lower back.
The plaintiff’s health prior to suffering low back injury on 17 June 2004
26 In paragraph 4 of her first affidavit, the plaintiff claimed that her “general state of health is good”; although in this affidavit and during cross-examination, she also referred to the following conditions, none of which until 17 June 2004 appear to have prevented her working fulltime (with overtime) in the duties performed for the first defendant:
(a)
right shoulder pain since February 2000 which the plaintiff attributed to packing and unpacking various hardware items, some weighing 25 kilograms, in the course of her employment. In cross-examination, the plaintiff confirmed that her right arm is her dominant arm and that she hurt her shoulder pulling a heavier item “off the top bunk”. Without losing time off work, the plaintiff apparently sought treatment from a clinic other than her usual clinic which involved physiotherapy but not additional medication because the plaintiff was already taking Panadeine Forte. However, other than aching “once every couple of months, something like that” for “a day or half a day” and avoiding repetitive use of her arm above her shoulder, the plaintiff eventually explained that she did not use medication for treatment of shoulder pain. Apparently this is something she has “to live with but it’s the back pain” for the treatment of which she recently swapped Panadeine Forte for digesic medication because the Panadeine Forte was “interfering” with her health;
(b) a hysterectomy operation in 2002 which corrected earlier problems; (c)
migraine headaches since about the age of ten. In cross-examination, the plaintiff agreed that severe headaches were “a terrible problem” for which in the past she had been hospitalised and given injections which included Pethidine. Previously, the plaintiff also took Panadeine Forte to treat these headaches. To some extent this claim is confirmed by the clinical records from Dr Heenetigala’s clinic, which show prescription of this medication over many years. (I will say more about Dr Heenetigala’s evidence and the clinical records shortly). However, the plaintiff said that she now treats her migraines, the frequency of which could be twice a week or once a month, with anti-migraine medication, Zomig, and suppositories;
(d)
monthly neck pain caused by holding her head in one position, and whilst she clearly linked this to her migraine headaches, the plaintiff denied that she took any medication to control neck pain;
(e)
a “bad case of varicose veins” for treatment of which the plaintiff’s veins were “stripped” twice. This condition apparently caused aching in her legs “to just above the knee cap” most days and, although the plaintiff said that she did not use medication to treat this pain, she had been advised to elevate her legs when sitting. Whilst the plaintiff appeared to be reluctant to concede this, I think it also clear from the cross- examination that, because of her varicose vein condition, standing for any length of time is contraindicated.
27 In addition to the above-mentioned matters, probably the most significant prior event described in both the plaintiff’s affidavit and her responses to cross- examination was the incident, in March 2003, when she experienced “some low back pain after lifting a heavy carton at work.” This did not lead to any time off work with, she said, the symptoms abating “after having chiropractic treatment and taking medication”.
28 Notwithstanding the very brief entry in Dr Heenetigala’s clinical record that, on 14 March 2003, following a lifting incident at work on 7 March 2003, the plaintiff attended for treatment (she was prescribed “Tramal 150g” and declined a WorkCover certificate), in cross-examination the plaintiff was unable to recall this attendance. Rather, she claimed that on two to three occasions she saw her chiropractor, Kevin Ulbrick, who, each month for “quite a few years… maybe five”, had been “maintaining” her migraine condition through manipulation of her neck and low back.
29 When pressed, the plaintiff stated that the reason she ceased consulting the chiropractor (she thought some time prior to 2004) was because she could not afford the treatment. Nevertheless, having at first said that she had recovered from the lower back condition, the plaintiff conceded that her low back ached if she worked all day. She also agreed that she told orthopaedic surgeon, Mr Westh (who in February 2008 examined the plaintiff at the request of her solicitors), that this condition never settled completely.
30 In addition to these matters, the plaintiff acknowledged that at times she had been assisted by wearing an elastic back support, the use of which was recommended by the first defendant’s first aid officer. However, she ceased wearing this support, not because she no longer had back pain, but because it hurt her stomach and her chiropractor had advised against its use.
31 Having regard to the clinical records (and Dr Heenetigala’s evidence), it is evident that within a week of the incident in March 2003, in addition to the longstanding and regular prescription of Panadeine Forte, he prescribed Tramal as painkilling medication. Relevantly, between 9 May 2003 and 30 April 2004 Dr Heenetigala continued to prescribe this and other painkilling and anti-inflammatory medication as follows:
9 May 2003 – Tramal (150g) 60 tablets;
25 June 2003 – 60 tablets each of Panadeine Forte and Tramal (150g);
31 July 2003 – Tramal (150g) and Panadeine Forte 60 tablets;
19 September 2003 – Panadeine Forte and Tramal (150g) 60 tablets each,
Celebrex (200g) and Zomig;
4 October 2003 – Panadeine Forte and Tramal 60 tablets each;
22 December 2003 – Panadeine Forte and Tramal 60 tablets each;
3 February 2004 – Zomig, Panadeine Forte and Tramal 20 tablets each; 27 February 2004 – Tramal (150g) and Panadeine Forte 60 tablets; 30 April 2004 – Tramal (150g) and Panadeine Forte 60 tablets. 32 In cross-examination Dr Heenetigala recalled that typically he prescribed Celebrex for back pain in conjunction with painkilling medication and anti- spasmodic medication. Consistent with this evidence I note that the entries in the clinical records following March 2003 relate to conditions such as pharyngitis and sinusitis but not to any ongoing back pain or condition.
33 As is evident from Dr Heenetigala’s reports and his responses in cross- examination, following the injury in 2004 until he was made aware of the results of the radiological investigations, he believed that the plaintiff was suffering from a soft tissue injury.
34 However, based on the plain x-rays and, no doubt, the reports from orthopaedic surgeon, Mr Razif (to whom Dr Heenetigala referred the plaintiff in 2005), which summarised the results of CT scans ordered by the surgeon in 2005 and 2007 (the latter evidencing multi-level disc degeneration of the lumbar spine and stenosis, the most marked degeneration being at the L2/3 and L3/4 levels), he changed this diagnosis. Therefore, by March 2008, Dr Heenetigala had advised the plaintiff’s solicitors that the plaintiff suffered from “ongoing back problems due to aggravation of lumbar disc degeneration following her accident at work” (that is, the June 2004 accident) and that this constituted a permanent disability for which the doctor continued to prescribe Tramal (100g), Murelax (30g) and digesic medication. During cross- examination, Dr Heenetigala also said that from January this year he has prescribed Anaprox (anti-inflammatory) medication and that in addition to her medication, he understood that the plaintiff continued regular hydrotherapy treatment.
35 Somewhat surprisingly, during cross-examination Dr Heenetigala at first said that until June 2004, when the plaintiff presented complaining of severe back pain, he “had not seen her with any back pain”, although allowing for the radiological evidence, he nevertheless accepted that the plaintiff suffered from pre-existing degenerative disease which he characterised as “quiescent” until aggravated by the incident at her workplace in June 2004.
36 However, after being taken to the very brief clinical entry I have already mentioned, Dr Heenetigala accepted that Tramal was first prescribed by him after the plaintiff presented on 14 March 2003, complaining of lower back pain and that in the succeeding months until late April 2004, he regularly prescribed the medication to which I have referred. Nevertheless, in the absence of any record to indicate that the plaintiff continued to suffer back pain (which, had she complained of backache, the doctor believed he would have made), the only reason Dr Heenetigala could give for regularly prescribing Tramal was his belief that the plaintiff found that this medication helped her migraine condition.
37 Based on his responses during cross-examination, I expect that some of the doctor’s uncertainty about the purpose for which his continued to prescribe strong painkilling medication such as Tramal is:
(a)
the plaintiff had not informed him that in the five years (or so) prior to March 2003, apparently as part of a maintenance program to treat her migraine condition, she had attended a chiropractor who manipulated her neck and lower back; and
(b)
he was not aware that, as a consequence of the incident in March 2003, the plaintiff used a back support (although Dr Heenetigala also said that he could not rule out having been made aware of this).
38 At hearing Dr Heenetigala made it very clear that he does not support chiropractic interventions, no doubt an attitude that could have dissuaded the plaintiff from disclosure of her alternative treatment regime. Whatever her reason may have been for not telling her general practitioner about the chiropractic regime, once Dr Heenetigala was taken to a number of the responses given by the plaintiff during cross-examination, he accepted that the March 2003 incident may have also aggravated pre-existing degenerative disease “but not to the extent it did the following year”. In justifying his conclusion that the second incident represented a significant aggravation injury from which the plaintiff has not recovered, Dr Heenetigala clearly relied on the severity of the pain described by the plaintiff in June 2004, his prescription of strong painkilling medication and the plaintiff’s incapacity for work which included an inability to return to her pre-accident duties.
39 In cross-examination Dr Heenetigala conceded that in the years since 2004 he has not conducted any further clinical examination of the plaintiff’s lower back condition, relying instead, it seems, on the reports received from specialist, Mr Razif, during 2005 and 2007, his longstanding patient’s complaints of ongoing pain and disability and (as explained by him in re- examination) the physical deterioration he observed in the plaintiff who had become “somewhat restricted in her movements, slow and sluggish”.
40 In these circumstances and notwithstanding the opportunity at hearing to view the plaintiff’s activities captured by surveillance film about which I will say more shortly, Dr Heenetigala described the plaintiff as “genuine”. He viewed (in the circumstances described I think not unreasonably) the plaintiff’s resumption of full-time employment from September 2004, albeit in modified duties, as being consistent with a strong motivation to work, although Dr Heenetigala also said that the plaintiff is unemployable because full-time work “involving the use of the whole body” is likely to make her condition symptomatic.
Other treatment received
41 I have already referred in passing to the reports of Mr Razif who, when he first examined the plaintiff in 2005 (that is, during the period in which the plaintiff was working full-time in modified duties) amongst other things:
(a)
recorded an earlier history of the plaintiff hurting her lower back in March 2003, which the plaintiff reported had settled after a few months of chiropractic treatment;
(b) recorded complaint of “persisting low back pain with occasional radiation down the legs, aggravated by walking and sitting, but eased
by resting and lying down” (that is since the June 2004 incident);
(c) noted a “normal gait” with no “obvious distress”; (d) noted “normal lordosis with no tilting and no tenderness to palpation. The range of movement was slightly restricted in extension with aching
elicited but was otherwise good”;
(e) found “bilateral straight leg raising of 90 degrees. The extensors hallucis longus and plantar flexors functioned normally and sensation
was intact”;
(f)
reviewed the plain x-rays and the first CT scan and noted multi-level disc degeneration and stenosis, the most marked at L3/4 level.
42 As a consequence, this surgeon cautioned against work “involving levering [the plaintiff’s] back with frequent bending and lifting” and he advised the plaintiff to consult a solicitor. Otherwise, Mr Razif said that he recommended continuation of the plaintiff’s “back exercises, Deep Heat and massage” and advised review of the plaintiff’s condition only if she suffered exacerbation of her symptoms.
43 The plaintiff had long since ceased employment when Mr Razif re-examined her during 2007 and subsequently submitted his final report dated 4 December 2007. The further referral appears to have been generated by the plaintiff’s complaint that over a three to four month period she suffered “aching in her lower back radiating down the right leg to the calf and occasionally the left leg”, symptoms that the plaintiff did not relate to specific activities.
44 Initially, clinically the plaintiff presented:
“… with a normal gait.
The lumbosacral spine revealed no tilting. The range of movement was restricted by 20% in flexion.
The lower limbs revealed bilateral straight leg raising of 90 degrees. The extensors hallucis longas and plantar flexors functioned normally and sensation was intact.”
45 Mr Razif ordered further investigations including lumbosacral x-rays which he said “revealed multi-level lumbar disc degenerative changes with severe narrowing in the lower levels” and on 10 September 2007 a lumbosacral CT scan which, consistent with the copy of radiologist’s report tendered at hearing, confirmed “multi-level disc degeneration” although this time it was said to be “most marked at L2/3 and L3/4” levels.
46 Nevertheless, according to Mr Razif, when he re-examined the plaintiff on 24 September 2007, she reported that “her back was not too bad and she had no leg pain. She felt that physiotherapy had helped”. On this occasion, clinically, the restriction noted in the plaintiff’s range of movement was increased to “25 degrees in flexion and slightly in extension”.
47 As this report reveals, Mr Razif last examined the plaintiff on 5 November 2007 at which time he thought that her “back was no worse”. As it turns out he was obviously happy for the plaintiff to maintain her regime of attending hydrotherapy twice weekly and without specifically commenting on the relationship between the ongoing impairment of the plaintiff’s lower back and the work-related injury in June 2004, Mr Razif opined that:
“Mrs Wood has stabilising lumbar spondylosis and has been advised to continue with her back exercises and hydrotherapy and to avoid levering her back with frequent bending and lifting. She has been asked to return for review in two months time and if her back has remained stable I will return her to your care”.
48 I am not aware of any evidence which indicates whether Mr Razif has since re-examined the plaintiff. In any event, notwithstanding the failure to directly address this issue, I think it is clear from his report that the treating surgeon regarded the work-related injury to the plaintiff’s lower back in June 2004 as having made symptomatic pre-existing degenerative disease and, notwithstanding the passage of more than three years and treatment and exercise, such as hydrotherapy, this condition has not resolved.
49 A report from physiotherapist, Mr Courtney, was also tendered at hearing, establishing as it does that, between 7 October 2004 and 18 August 2005, on referral from Dr Heenetigala, he treated the plaintiff’s lower back condition, at which time the plaintiff apparently reported that, notwithstanding her pain, she was managing her regular work duties “independently”.
The medico-legal examinations and evidence
50 The first of these examinations was conducted by Consultant in Occupational Medicine, Dr Poppenbeek, at the request of the defendants’ insurance agents on 26 July 2004. He re-examined the plaintiff on subsequent dates, although the last of his reports tendered relates to an examination on 25 September 2007, that is the day after Mr Razif said he re-examined the plaintiff on 24 September 2007.
51 Initially, Dr Poppenbeek said that the plaintiff reported that a week prior to his first examination on 26 July 2004 she returned to work performing clerical duties four hours per day, five days per week. This generally accords with the history subsequently given to Occupational Health and Rehabilitation Consultant, Dr Castle, who examined the plaintiff at the request of her solicitors on 16 October 2007.
52 As is evident from his first report, Dr Poppenbeek received information from the plaintiff about a back injury in 2003 in association with the lifting of a heavy carton which she said caused “low back pain radiating into the legs”, although he also understood from the plaintiff that this condition settled quickly after she attended her chiropractor.
53 Interestingly, as a result of his first clinical examination, Dr Poppenbeek found:
“A scoliosis convex to the right at the lower thoracic region and to the left at the upper lumbar region. There was tenderness centrally and to the right at the thoraco-lumbar region. A full range of cervical spine movement was demonstrated comfortably, but extension of the thoraco-lumbar spine was limited and painful, although other lumbar spine movements were normal”.
54 Nevertheless, notwithstanding the plain x-ray evidence of degenerative changes in her thoracic and lumbar spine, Dr Poppenbeek at first thought that the likely diagnosis was “mid to upper thoracic spine facet joint sprain or
musculo-ligament strain. This is consistent with the awkward jolt described at work on 17 June this year. There is probably a degree of muscle spasm which may explain the scoliosis noted on examination. I suspect that the
current condition is a combination of shock and acute strain to the mid back”.
55 When he re-examined her in September 2007, the plaintiff apparently reported no improvement since the first examination in 2004, the return of “leg pains” in about April-May 2007 and she described her present symptoms as comprising:
“… low back pain, more on the right side than the left, extending upwards to the interscapular region. The leg pain has been more persistent and extends from the buttocks to both legs, the right more than the left. The posterior thigh and lateral calf is affected. The pain extends to the soles of the feet and there is numbness in the soles of the feet.”
56 Dr Poppenbeek’s findings following his clinical examination were somewhat less positive than Mr Razif’s in that he noted:
“General inspection showed a slight scoliosis, with upper lumbar to lumbo-sacral, central and right sided tenderness. Thoraco- lumbar flexion was full range, as was right lateral flexion. Extension as zero and left lateral flexion and bilateral rotation was about half normal range. Straight leg raising was very limited to only about 30 degrees in each leg because of pain. There was no neurological deficit noted in the lower limbs…”
57 In any event, by September 2007, Dr Poppenbeek had accepted that the incident in June 2004 probably aggravated pre-existing lumbar spine degenerative disease and that the radiological evidence “of progressive,
severe degenerative disease in the lower lumbar spine, particularly affecting
the L3-4 level”, and specifically the “facet joint degenerative arthritis, resulting
in a degree of nerve root compression, which may be an explanation for the
lower limb pains”.58 I found the balance of Dr Poppenbeek’s report somewhat confused and unhelpful. This was because, without explaining how this was manifested either through the material or as a result of his examination of the plaintiff, Dr Poppenbeek also concluded that the plaintiff demonstrated “abnormal
illness behaviour with a significant pain focus and symptom-amplification. This is probably an unconscious process, related to her altered life
circumstances and persisting pain”. This, Dr Poppenbeek felt made difficult his assessment of whether the plaintiff’s current condition was still related to the 2004 injury, although he added that:
(a) he was “… more inclined to take a conservative than radical approach here and I think it would be difficult to deny continuing, significant work contribution. However, as time goes on the degree of work contribution has to proportionately decrease. I estimate that over a further 12 to 24 months, work contribution from physical injury will completely cease”.
(Why, after more than three years an additional one to two years would
resolve a symptomatic aggravation injury was never explained);
(b) “[t]he condition has therefore not resolved and I think the work injury is still stated to be materially contributing to current incapacity for work and need for treatment. I believe this continuing contribution is attributable to abnormal illness behaviour and a pain overlay to the work injury of 2004”.
59 In other words, in 2007, through a somewhat convoluted reasoning process, Dr Poppenbeek appeared to think that non-organic factors were the dominant cause of the plaintiff’s then incapacity for work (although the work-related injury was still “materially contributing”) and her need for treatment, rather than any ongoing aggravation of progressive and severe degenerative disease in the plaintiff’s lower spine.
60 At hearing a very dated copy report from a consultant psychiatrist was tendered by the plaintiff (Exhibit “P2”) indicating that in 1997 she was treated for depression in association with very challenging circumstances affecting her and her immediate family. However, aside from this history there was clearly no evidentiary support for any proposition that non-organic factors were driving the ongoing impairment of the plaintiff’s lower back.
61 On 31 October 2006, orthopaedic surgeon, Mr Brendan Dooley, conducted an impairment assessment. In amongst the matters reported by this surgeon, I note that:
(a)
he recorded complaint of back pain, with pain intermittently referred to the right leg down as far as foot level;
(b)
he had available to him claims documents and a range of treating and medico-legal reports from which he no doubt understood that there was a history of lower back injury in March 2003 (the symptoms of which settled quickly) and the results obtained from the plain x-ray and the first CT scan investigations;
(c) on examination of the plaintiff’s lumbo-sacral spine, he found “… no deformity, but she did walk with a right-sided limp. She had a surprisingly good range of movements in the spine, with a full range of movements in her cervical spine, and full flexion in the lumbo-sacral spine, but limitation of extension to 15°. Lateral flexion to either side was to 30° and rotation likewise”;
(d) an examination of her lower extremities revealed “full straight leg raising. Both hip joints were normal, with a full range of movements present in both hip joints. … There was no neurovascular abnormality affecting either of the lower extremities. Knee and ankle reflexes were equal and active, and there was no evidence of any muscle wasting or
weakness. There was no sensory loss.”;
(e) he diagnosed “a lower back strain, with aggravation of pre-existing degenerative changes in the lumbo-sacral spine, causing ongoing back pain with intermittent referral of pain to the right leg. She does not suffer from any radiculopathy affecting either of the lower extremities. She does not suffer from any symptoms relating to claudication resulting from the moderate lumbar canal stenosis evident at the L3-4
level in particular, in the lumbo-sacral spine”;
(f) he offered a “moderately good” prognosis and expressed his opinion that in the near future the plaintiff could “resume part-time work in restricted duties, in accounting or administration. Surgery is not indicated, nor likely to help. She will gain most from severe weight reduction, and also doing regular swimming and walking, in a self
managed exercise program”.
62 On 12 September 2007 (that is, two days after the further CT scan investigation and some two weeks before Mr Razif and Dr Poppenbeek re- examined the plaintiff), orthopaedic surgeon, Mr O’Brien, examined the plaintiff at the request of her solicitors. I am unable to say from reading his report the extent to which Mr O’Brien was assisted by the instruction and documents he said he received.
63 In any event, in his report Mr O’Brien only refers to a history in relation to the June 2004 back injury and its sequel. Notably, he:
(a) found that the plaintiff demonstrated a normal gait; (b) found that there “was a slight thoracic scoliosis with some lumbar lordosis… Passive straight leg raising on the right side was 60° with the patient complaining of back pain. Passive straight leg raising was 70° on the left. The patient also described back pain on active straight leg raising on the right side but not on the left. I could not elicit reflexes in the lower limbs but plantar response was down-going. The patient did in fact report some alteration to light touch affecting most of the
right leg below the knee. Muscle power did appear normal”;
(c) on review of the most recent CT scan, noted that there was “marked degenerative change at the L3/4 and L4/5 discs with intradisc gas
formation at the L4/5 with some stenosis particularly at the L3/4 level”. To the extent that it emphasises degenerative change at the L4/5 level without mentioning the L2/3 level, this specialist’s report provides a different interpretation of the film to that reported by the radiologist;
(d) was apparently informed that the plaintiff’s condition had “basically remained unchanged and now extends to involving pain radiating into the right leg. The patient reports that conservative treatment has been
relatively extensive but has had no positive effect”;
(e) reported that the plaintiff’s “[p]hysical signs are now very subjective with mild restriction of movement particularly extension with some reproduction of back pain on the active straight leg raising on the right side. In fact investigations now having been repeated on several occasions have confirmed the presence of moderately severe degenerative change, particularly in the mid to low lumbar region. In fact it would now appear that this patient has symptoms associated
with lumbar spondylosis aggravated by the described incident”;
(f) determined that the plaintiff’s condition was stabilised and that “the severity of pain is such that the patient is struggling with general activities and I would suggest that following my current examination that this plaintiff will [not] be return to the workforce. Indeed I would suggest that the patient is totally and permanently incapacitated. The patient’s general activities are certainly restricted and she has difficulty with domestic duties with continuing restriction in relationship to social and recreational pursuits. This situation I would suggest would also be
permanent” (sic).
64 As I have already mentioned, Dr Castle also provided a report at the request of the plaintiff’s solicitors following his examination in October 2007.
65 The list of materials referred to in Dr Castle’s report indicates that, amongst other things, he had access to all of the radiological reports, Mr Razif’s first report, a letter of referral from Dr Heenetigala to Mr Razif and the plaintiff’s first affidavit.
66 As a result of his clinical examination, I note that Dr Castle found, amongst other things:
(a)
reduced sensation in the plaintiff’s right lower limb, a finding also reported by Mr O’Brien;
(b)
straight leg raising of 30° on both sides. This represents a marked reduction when compared with the findings of other specialists during September 2007;
(c) tenderness over the L3/4 and L4/5 intervertebral segment (PCB 49); (d) the range of movement was─ “Flexion 80°
Extension 20°
Left lateral flexion 20°
Right lateral flexion 30°Left rotation 20°
Right rotation 20°”.
67 Allowing for both his clinical findings, the radiological evidence and the plaintiff’s complaint of significant restriction in all of her activities, Dr Castle opined that:
(a)
“… The actual pathology is an aggravation of existing disc bulges. I do not think that an injury of this kind, even allowing for the fact that she suddenly straightened up, would cause intervertebral disc lesions. It is most likely that this episode made symptomatic her pre-existing condition and that symptomatology has continued ever since. The central canal stenosis is due to the disc bulges at L2-3 and L3-4. It is more likely than not, in my opinion, that the L2 and L3 nerve roots are
compromised. There is no evidence of radiculopathy on examination”;
(b) the impairment of the plaintiff’s body function is permanent; and (c) the plaintiff could not undertake “suitable employment”. 68 The only examination carried out by Mr Westh was on 19 February 2008, that is, about three weeks after the first of the defendants’ surveillance films was obtained. Of the specialists who probably had knowledge of the earlier incident in March 2003, Mr Westh clearly understood that the plaintiff’s lower back pain settled but never completely resolved before the incident in June 2004.
69 According to Mr Westh, the plaintiff reported that her:
“… main trouble is the pain in her lower spine which radiates up her back and the pain is present every day and is constant. She says the pain is made worse with walking and sitting for too long and also after driving for long periods. She is also unable to stand for long periods. After walking for 500m her back is very uncomfortable. She also finds lying down uncomfortable and doesn’t sleep well, only sleeping 2-3 hours per night because she can’t find a comfortable spot… She said she used to be independent but she is not very restricted and can’t do very much. She says she also has a disabled daughter and is unable to help her much. She says she goes out very little. She says she can’t do any sewing or craft work and can’t lean over for a long period. She feels that there has been little change in twelve months. Regarding work she says she couldn’t do much, she has limited computer skills and she can’t sit for long periods. She says she would be unable to do store work because of the lifting and bending involved. She also mentioned that she can’t take public transport.”
70 Apart from viewing the results of the radiological investigations, on clinical examination Mr Westh noted:
(a) tenderness in the lower lumbar region; (b)
a restricted range of movement in the spine with flexion/extension 60º/10º and pain coming up from the flexed position;
(c)
right and left lateral flexion of 20º/20º and right and left rotation was 30º/20º;
(d) straight leg raising of 70º bilaterally with resultant back pain; (e) generally depressed reflexes; (f) no motor or sensory deficit; and (g) an ability to sit up on the examination couch with her legs extended. 71 In summary, Mr Westh thought that the injury in March 2003 amounted to a lower back strain which settled with ongoing back pain whereas the injury in June 2004 was “more significant” because:
(a)
it resulted in more severe back pain and required extensive conservative management;
(b) despite treatment the back pain has never resolved; (c)
the plaintiff had difficulty coping at work with modified duties, which accords with her evidence at hearing that she was struggling and continued to struggle after the defendant terminated her employment;
(d) since March 2006 the plaintiff has been unable to return to work; and (e) she now presents with chronic mechanical low back pain “as a result of aggravation of multilevel disc degenerative changes in her lumbar
spine”.
72 According to Mr Westh, the plaintiff’s long-term prognosis is poor and she has a:
“ … significant and permanent impairment to her lumbar spine as a result of her workrelated injury. There is unlikely to be any significant improvement in the future and she will experience recurrent episodes of back pain particularly related to activity. She would be unable to return to her former occupation as a process worker and would be unable to do any work which involved heavy lifting or repetitive bending and stooping. She is really only capable of working in a light duty capacity and given her age and previous work experience she can be considered to have poor long term work prospects. Barbara Wood is also significantly restricted in her day to day activities including social, recreational and domestic pursuits with significant loss of enjoyment of life in general.”
73 Therefore, allowing for the obvious differences in the reports from the medical experts I have summarised above, by the latter part of 2007 they all agree that the incident in June 2004 aggravated pre-existing degenerative disease which had stabilised or was stabilising. This is to be contrasted with the opinion of orthopaedic surgeon, Mr Ian Jones, who first examined the plaintiff at the request of the defendants’ solicitors on 25 August 2008.
74 According to Mr Jones, when he examined the plaintiff she reported “back pain which is present most of the time”, aggravated by sitting or standing for more than 10 to 30 minutes and “… left and right leg pain, more pronounced
on the right side. The pain usually extends down the back of the right leg to the level of her knee but on occasions can extend into the right foot. She notices pins and needles when driving or sitting for long periods”.
75 Mr Jones’ clinical examination revealed, amongst other things:
(a) a range of lumbo sacral flexion two-thirds of normal with extension of the plaintiff’s spine limited to one-third; (b) straight leg raising “was possible to 40° on both left and right sides, appearing to aggravate her back pain”; (c) no signs of sciatic nerve irritability; (d) normal sensation and power in both lower limbs; (e) the left knee jerk was present but the right knee jerk could not be elicited. Both ankle jerks were present and equal. 76 Having also viewed the radiological reports, the plaintiff’s first affidavit and Dr Heenetigala’s handwritten records between 21 April 1997 and 10 October 2007, Mr Jones determined that:
(a)
“This patient suffers from symptoms of back pain with referred pain into her left and right leg. Clinically she has a moderate restriction of spinal movement and some symptoms and signs suggestive of nerve root irritation involving particularly her right leg. Her x-rays are those of multilevel degenerative disc disease combined with constitutionallybased short pedicles in her spine and associated facet joint disease. The latter has resulted in some compromise of the dimensions of the spinal canal and it is consistent with the clinical
findings in this patient”;
(b) the plaintiff was incapacitated for physical work, something he believed resulted “from progressive degeneration of a number of discs and joints in the lower back. It is possible that the incident referred to on 17/06/04 aggravated what I believe to be quite advanced degenerative disc and joint disease in the back. From the nature of the problem I would have expected this to have slowly resolved with conservative treatment over a six week period. I can find no evidence of any functional or
psychological component in her symptoms”.
77 Having viewed a surveillance report dated 4 February 2008 (not tendered at hearing) and surveillance film obtained in January 2008 (Exhibit “D1”), in his final medico-legal report dated 9 February 2009, Mr Jones determined that “any possible aggravation to [the plaintiff’s] degenerative back condition” had completely resolved and that the plaintiff was capable of fulltime employment. Given the primary diagnosis of advanced degenerative disc and joint disease in the plaintiff’s back, and even allowing for different perspectives of the film, I found this conclusion surprising.
The surveillance film
78 At this juncture, it is appropriate to summarise and discuss the content of the surveillance film shown during the hearing.
79 Video surveillance films obtained on 28 and 31 January 2008 and again on 31 January 2009, were viewed in court in the presence of the plaintiff and Dr Heenetigala who were both cross-examined about the content of the film.
80 On 28 January 2008, over a period commencing about 10.18am and concluding at around 11.42am, the plaintiff was filmed at a car wash carefully and thoroughly vacuuming, washing and cleaning her small motor vehicle.
81 From my observation of the plaintiff during this long segment of film, she repeatedly bent, reached and at times turned her body whilst undertaking the various tasks I have mentioned. However, throughout this very lengthy process it was evident that the plaintiff moved very slowly, guardedly and cautiously. Indeed, the cleaning process spanned an inordinate period of time. The plaintiff also took numerous breaks between the various tasks performed by her. This is to be contrasted with the more vigorous activities of other patrons of the car wash who entered and departed during the period over which the film was taken.
82 At hearing, the plaintiff explained that 28 January 2008 fell on the long weekend, the weather was beautiful and she had no one to whom she could talk. In these circumstances (and I think unremarkably) the plaintiff said that she felt depressed and, wanting to “get out of the house”, she took her “stronger” medication earlier (that is, Panadeine Forte at about 9.30am).
83 As with Dr Heenetigala, I found no obvious incompatibility between the plaintiff’s activities during this specific film sequence (and the later films which depict the plaintiff either driving, walking, shopping or visiting her disabled daughter’s home) and her evidence that she avoided twisting her back and that, notwithstanding significant doses of daily medication, most of her everyday activities are managed slowly and with some degree of difficulty.
84 In cross-examination the plaintiff agreed that since this film was taken she has returned to the car wash but only to hose down her vehicle. In any event, as I have already indicated, in assessing her evidence I was also influenced by Dr Heenetigala’s very positive view of a patient he had treated for many years and for these reasons I have rejected Mr Jones’ conclusion that, of itself, the film in some way signified the end of the effects of any work-related aggravation injury.
Compensable injury
85 Consistent with the severity of the symptoms reported and treated and allowing for the radiological material and most of the medical opinion obtained from July 2004 onwards, I am satisfied that the plaintiff probably suffered a significant aggravation and/or exacerbation of pre-existing degenerative disease in her lumbar spine as a consequence of which from time to time she suffers pain radiating, particularly, into her right leg.
86 In these circumstances, the plaintiff has satisfied me that her employment was a significant contributing factor to this injury and what now remains is:
(a)
to determine any pain and suffering consequences to the plaintiff to which her compensable injury materially contributes; and
(b)
to determine whether these consequences are “serious” in accordance with the Act.
Pain and suffering consequences
87 The pain and suffering consequences on which the plaintiff relied are those articulated in, particularly, her second affidavit about the contents of which she was also cross-examined in some detail. In summary, the plaintiff describes her loss of independence, pain and suffering and loss of enjoyment of life consequences as follows:
(a)
in addition to any medication taken for other conditions, such as her migraines, she takes a daily combination of strong painkilling, anti- inflammatory and anti-spasmodic medication to control lower back pain;
(b)
she needs to take painkilling medication before she can get out of bed each day;
(c)
notwithstanding the use of medication and regular hydrotherapy, she has difficulty performing simple routine domestic tasks such as preparing vegetables, bending and lifting food items into and out of the oven, lifting heavy utensils such as an electric frypan or deep fryer, accessing cupboards and shelves, standing to wash and dry dishes, sitting long enough to enjoy television programs or music, lifting and carrying washing, lifting an ironing board and standing to iron, changing her bedding, sleeping throughout the night without further painkilling medication, showering, getting in and out of the bath and dressing immediately after a shower;
(d)
she requires assistance for domestic cleaning tasks and mowing her lawn;
(e)
having previously enjoyed hobbies such as tenpin bowling and gardening, she can no longer lift a bowling ball or work in her garden;
(f) she requires regular exercise and hydrotherapy; (g) she can only carry small quantities of shopping; (h) as the day progresses and her medication wears off her pain worsens; (i) she no longer enjoys travelling in a car and “hardly ever socialises”; (j)
to cover her debts and living expenses she was required to obtain a mortgage over her previously unencumbered home; and
(k)
she can no longer provide the significant level of assistance (both physical and personal) she previously provided for her disabled daughter who lives in a Ministry of Housing unit.
88 My overall impression is that her injury and the consequent impairment has had a profound impact on the plaintiff’s physical capacity and the quality of her life. In addition to the matters I have already set out, I have also treated the loss of the opportunity to return to the plaintiff’s pre-injury job and/or employment involving the heavier tasks undertaken by a store person as a factor in determining whether, as at the date of hearing, the pain and suffering consequence to the plaintiff of impairment of her lumbar spine is “serious”.
Serious injury
89 In my view, the pain and suffering consequence summarised above and on which the plaintiff elaborated at hearing is, when judged by comparison with other cases in the range of possible impairments or losses of function of the lumbar spine, fairly described as being very considerable. Moreover, on the evidence, the plaintiff has satisfied me that the impairment of her lumbar spine is permanent in the sense that it is likely to last into the foreseeable future. In these circumstances I propose to make an order granting leave to the plaintiff to commence proceedings against the defendants in respect to pain and suffering damages.
Orders 90 I will hear from the parties as to the making of appropriate orders.
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