Woolley v Pacific Brands Holdings Pty Ltd
[2011] VCC 1230
•24 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-03528
| MEGAN KATE WOOLLEY | Plaintiff |
| v | |
| PACIFIC BRANDS HOLDINGS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 August 2011 |
| DATE OF JUDGMENT: | 24 August 2011 |
| CASE MAY BE CITED AS: | Woolley v Pacific Brands Holdings Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1230 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.135A(2)(b), s.135A(4)(b), s.135A(19) and s.135AC – low-back injury – when “incapacity became known”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Walsh with | Holding Redlich |
| Mr G A Worth | ||
| For the Defendant | Mr J L Batten | Thomsons Lawyers |
| HIS HONOUR: |
1 By way of an Originating Motion dated 28 September 2010, Megan Woolley (“the plaintiff”) seeks leave pursuant to s.135A(4)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for a low-back injury suffered by her on or about 30 May 1988 (“the injury”) during the course of her employment with Pacific Brands Holdings Pty Ltd (“the defendant”).
2 The plaintiff gave evidence and was cross-examined. Both parties tendered a variety of documents.[1]
[1] See Annexure A
Relevant Legal Principles
3 The court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.135A(19) of the Act.[2]
[2] See s.135A(6) of the Act
4 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.135A(19) of the Act which reads:
“serious long-term impairment or loss of a body function; ...”
5 The part of the body said to be impaired for the purposes of paragraph (a) is the low-back.
6 In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)
“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant before 12 November 1997;[3]
(b)
“the injury” must be “serious” and “long-term” as defined in the seminal decision of Humphries v Poljak,[4] where a majority of the then Full Court of Victoria stated:
[3] See s.135A(1) of the Act
[4] [1992] 2 VR 129. Although the test in Humphries dealt with s.93 of the Transport Accident Act, the same test has been held to be applicable to applications for “serious injury” under s.135A of the Accident Compensation Act: See State of Victoria v Collins [1999] 1 VR 215 at 222.
“He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long term. We think ‘long term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[5]
[5] See paragraph 8 of the judgment
7 I refer to s.135A(2) of the Act which states:
“A worker may recover damages in respect of an injury arising out of, or
in the course of, or due to the nature of, employment—
(a)
if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 1 December 1992; or
(b)
if the injury is a serious injury and arose before that date but the incapacity arising from the injury did not become known until that date or a later date.”
(My emphasis.)
8 I also refer s.135AC of the Act which states:
“Despite anything to the contrary in the Limitation of Actions Act 1958, proceedings in accordance with section 135 or 135A must not be commenced—
(a)
subject to the Limitation of Actions Act 1958, unless paragraph (b) applies, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self- insurer before 1 September 2000; or
(b)
if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under section 135A(2B) has been made to the Authority or a self-insurer before the expiration of 3 years after the date the incapacity became known.”
(My emphasis.)
9 It is common ground that the application made by the worker[6] was received by the Authority on 22 March 2010. Accordingly, s.135AC(a) has no application, and pursuant to s.135AC(b) of the Act it is for the plaintiff to establish that “the incapacity arising from the injury was not known” any earlier
[6] See pages 8–11 of the PCB
than 22 March 2007. 10 Counsel for the defendant informed the court that there was no issue that the plaintiff was employed with the defendant from January 1988, and that on or about 30 May 1988 she suffered an incident of back injury resulting in surgery in October 1989. He indicated that the critical issue is whether the plaintiff had knowledge of “the incapacity arising from the injury” before 22 March 2007. The position of the defendant was that the plaintiff, since her injury in 1988 and the resultant surgery in October 1989, had knowledge of “the incapacity arising from the injury”. If the plaintiff had such knowledge on or before 12 November 1997, her application was barred as it was not made prior to 1 September 2000 and if the knowledge of such incapacity was attained after 12 November 1997 prior to 22 March 2007, her application was barred through the operation of s.135AC(b) of the Act.
11 I refer to Morris & Joan Rawlings Builders & Contractors v David Morris Rawlings[7] wherein a five-member Court of Appeal stated, in part:
“The respondent’s application was properly to be regarded as barred by s.135AC if ‘the incapacity arising from the injury’ was known on or before 12 November 1997 — in which case s.135AC(b) would have had no application, leaving the application barred because the respondent did not make an application under s 135A(2B) before 1 September 2000. Alternatively, the application was properly to be regarded as barred by the operation of s 135AC(b) if the respondent had knowledge of the incapacity, arising from his pre-12 November 1997 injury, more than three years before 21 December 2007.[8] The incapacity being spoken about is, of course, serious injury incapacity. It is sufficient to bar the claim if the respondent knew of facts that, viewed objectively, constituted the serious injury incapacity. The fact that an applicant/worker (in this case the respondent) does not subjectively appreciate that the injury is serious until after the relevant date is not necessarily determinative.”[9]
[7] [2010] VSCA 306
[8] The date on which the respondent made application under s.135A(2B) of the Act
[9] Rawlings (op cit), at paragraph 36; see also Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia [2006] VSCA 143, [6]; AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144 at page 150; Smith v Canberra Press Pty Ltd [2009] VSCA 200 at [8]
12 In Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia,[10] Ashley JA stated, in part:
[10] [2006] VSCA 143
“Rather, the question whether a worker had relevant knowledge at a particular time requires an assessment of the worker’s actual knowledge of those matters[11] at that time in all the circumstances of the case. Those circumstances might include a matter such as a worker’s optimism — so long as it is not wholly unfounded — as to prognosis; or, as I noted before, the ability of a particular worker to block out pain.”
[11] Ashley JA comments in a footnote: “That is, the extent and probable duration of incapacity.”
Ashley JA also stated:[12]
“It appears to me, in the event, that the words ‘the incapacity arising from the injury’ in s 135AC(b) should be taken to mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain or suffering, or pecuniary disadvantage, or both, which would found a successful serious injury application.”
Even later, Ashley JA stated:[13]
“It is for the judge hearing a s 135A(4)(b) application to decide what the worker knew about the extent of and probable duration his or her incapacity arising from the compensable injury at a particular time; and, always assuming that what the worker knew represented the truth of the situation, whether what the worker knew fitted the template of serious injury incapacity, that template involving elements of fact, degree and value judgment.”
[12] See paragraph [33]
[13] See paragraph [50]
The Background of the Plaintiff, the Injury and Subsequent Medical Treatment
13 The court refers to the affidavits sworn by the plaintiff on 18 March 2010,[14] which I shall refer to as the “first affidavit”, and on 15 July 2011,[15] which I shall refer to as the “second affidavit”. The plaintiff swore that the contents of those affidavits were “true and correct”.[16]
[14] See Exhibit A at page 12 of the PCB
[15] See Exhibit A at page 22 of the PCB
[16] T 21 L13
14 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
•
She is a forty-year-old (born 23 January 1971) single woman with three sons.[17]
•
At the age of sixteen she left school at the end of 1987, having completed Form 5.
•
She commenced employment with the defendant at the Hollandia shoe factory in Chirnside Park on 19 January 1988 as a factory hand, earning $175 gross for a 40-hour week. In particular, she describes her employment duties as follows:
[17] Jake, born in 1997, Kobey, born in 2000, and Lachie, born in 2001
“My work included sewing the leather ‘uppers’ of shoes which involved repetitively bending into large crates to grab the uppers and then using a machine to sew them onto the shoe. It also involved working on a machine that put the soles on shoes. I was required to stand and reach up for extended periods to place the shoes on top of the machine. On occasions I had to move large heavy boxes of shoes with up to 50 pairs per box. I also had to paint the uppers by reaching up and stretching the uppers over a steel mould. I was required to work very quickly to keep up with production. I also stayed on the same task for the whole day without rotation.”[18]
[18] See paragraph 3 of the first affidavit entailing Exhibit A at p.13, PCB
• On or about 30 May 1988 the plaintiff suffered an incident of back injury in the following circumstances: “... I was sewing uppers. I was working flat out as usual. I recall bending and reaching down into a large crate to grab some uppers when I felt sharp pain in my back. It was in the early afternoon. I got through my shift and rested over the weekend. My back remained sore and I complained to my supervisor on the following Monday.”[19]
[19] See paragraph 4 of the first affidavit entailing Exhibit A at p.13–14, PCB
•
The plaintiff was referred to the company GP, Dr Fildes, who arranged x-rays and told the plaintiff that she should be performing light duties.
•
She returned to work with the defendant “painting uppers”, which made her back pain “worse”, even though she was wearing a back brace.
•
She was referred to an orthopaedic surgeon who recommended surgery, which caused her concern, and she sought a second opinion.
•
Because of the severity of her symptoms she stopped work, made a WorkCover claim in November 1988 (which was accepted by the defendant), and remained off work until about February 1989 when she returned, performing work four hours a day.
•
She gradually increased her hours to full time; however, “had difficulty maintaining full-time hours due to increased low-back pain together with pins and needles and numbness going down my right leg”.[20]
•
She accepted a redundancy package when the defendant moved the factory to another place.
•
Apparently the plaintiff continued to be paid weekly payments of compensation.
•
In October 1989, she underwent a spinal fusion performed by the orthopaedic surgeon Mr Dunin at the Knox Hospital. I refer to what the plaintiff states about her symptoms after the surgery:
[20] See paragraph 5 of the first affidavit contained in Exhibit A at p.14, PCB
“I was in hospital for about one week. Mr Dunin told me that he was happy with the outcome of the surgery. After I was discharged I had to take things easy for another month or so. The surgery relieved my back pain considerably and resolved my leg symptoms completely. Within 6 weeks of my surgery I believe that I was travelling really well. In 1990 I went back to school and studied Year 12 at Mt Evelyn Secondary College. I coped well with my studies. Although I had mild back pain from time to time whilst sitting for long periods, I don’t recall having any treatment for my injury. I was very optimistic about my future.”[21]
[21] See paragraph 6 of the first affidavit contained in Exhibit A at p.15, PCB
•
After returning to school and completing her Year 12 at the Mt Evelyn Secondary College, the plaintiff describes the following work activities:
(a)
Working at a jewellery store in Cranbourne for 20 hours per week for several years without any difficulty. Such job involved “long periods of standing”.[22] That work also required her to drive from Lilydale and Cranbourne without any problems.
(b)
She performed full-time work at a milkbar in Mooroolbark, and in approximately 1994 began performing additional work as a part-time childcare worker and waitress.
(c)
About a year or so later she became a full-time nanny for about eighteen months, leaving when she and her partner shifted premises.
(d)
Over the years of work, the plaintiff describes her back as being “pretty good”, noticing “occasional pain”, and although she was careful when lifting and carrying heavy things she was able to “enjoy a normal life both at work and socially”.[23]
[22] See paragraph 7 of the first affidavit contained in Exhibit A at p.15, PCB
[23] See paragraph 7 of the first affidavit contained in Exhibit A at p.16, PCB
•
Between April 1997 and November 2001 she had her three children, and experienced “some back pain off and on during the final months of each pregnancy”. She describes such pain as being “bearable”, and “nothing like the extreme pain that I currently suffer”.[24]
•
She commenced to receive the sole parent allowance from Centrelink and also did some part-time work at the Coles Supermarket in Chirnside Park serving customers in the deli section.
•
She was at home for a number of years looking after her children until the youngest was ready to start school. She comments that she had “occasional back pain” which did not prevent her from undertaking all the physical household duties required as a mother looking after young children.
•
After the birth of her children, she comments that she gradually got back to the social and recreational lifestyle that she had enjoyed prior to having children, and in particular resumed playing netball in 2004 on a social basis.
•
In about 2006, the plaintiff began working part-time, initially as a kitchen hand at a restaurant and then as a sandwich hand at a local coffee shop. In relation to back pain, the plaintiff states:
[24] See paragraph 8 of the first affidavit contained in Exhibit A at p.16, PCB
“Up until this time I felt that I was able to manage my back injury. Although I was aware of flare ups of back pain at certain times these were rarely severe. I had only occasionally needed to see doctors for my injury. I was able to look after my boys and continue with my part time work.”[25]
[25] See paragraph 10 of the first affidavit contained in Exhibit A at p.17, PCB
•
Her back pain worsened in mid 2007 and she noticed symptoms across the right side of her low-back and down her right thigh which were similar to those that she experienced prior to her surgery in 1989.
•
She then consulted her general practitioner at the Viewpoint Medical Centre and was initially given medication and told to rest. However, because of persisting and worsening symptoms, her GP arranged for her to undergo a CT scan on 18 January 2008 which then led to her being referred to the orthopaedic surgeon Mr Carey who she initially saw on 20 March 2008.
•
Mr Carey arranged for an MRI scan to be taken on 5 August 2008, after which she was told she needed further surgery.
•
She ceased work in approximately October 2008, and on 15 January 2009 underwent an L4–5 laminectomy and spinal fusion with internal fixation performed by Mr Carey at the Mercy Private Hospital.
•
On being discharged from hospital on 22 January 2009 she was in severe pain requiring strong medication, and was ultimately readmitted on 24 January 2009 because of wound infection.
•
She was on oral antibiotics for several months, and in March 2009 her right leg symptoms returned “after getting out of bed”. She was admitted to the Freemasons Hospital on 6 April 2009 because of further infection, and in early July 2009 she developed severe left sided back and left leg pain going down to her ankle.
•
As at 18 March 2010 the plaintiff described her symptoms in the following way:
“Unfortunately my recent surgery has not been successful. I cannot understand what has happened to me after my surgery. I feel like I am getting worse. I still have severe pain. I can feel the rods in my low-back. I get shooting pains down both my legs. I currently require a lot of treatment. I attend my GP’s at the Viewpoint Medical Centre every two weeks. They provide certificates stating that I cannot work. I attend hydrotherapy. I wear a lumbar corset. I am on a lot of medication. I currently take Temazepam, Endone, and Endep. I also wear Norspan patches. I have also taken Tramal and Valium.”[26]
[26] See paragraph 14 of the first affidavit contained in Exhibit A at p.19, PCB
• She has been advised by Mr Carey that he considers that she requires further surgery, “involving a cage being internally fitted to my spine”, and she has been referred for a second opinion to the orthopaedic surgeon Mr Michael Johnson, who she saw on 17 March 2010. He agreed with the opinion of Mr Carey. • She has been unable to return to any work since her recent surgery, and is currently (18 March 2010) very restricted, and has trouble bending, twisting and lifting. Further, she can only drive very short distances, and she has difficulty with sleep due to pain. Most of her day is spent lying down, and she has great difficulty with housework such as mopping, sweeping, vacuum cleaning and making beds, and struggles to perform shopping at the supermarket. • Her weekly payments of compensation were reinstated in or about October 2008.
15 By way of her second affidavit, the plaintiff gave the following pertinent evidence:
• She has not worked since the previous affidavit. •
On 21 September 2010, she underwent revision fusion surgery performed by Mr Carey at the Epworth Freemasons Hospital, after which she developed an infection at the fusion site.
•
She has continued to be under the care of Mr Carey, who has advised her that it is unlikely she will be able to get back to any form of work, and who has referred her to the neurosurgeon Professor Teddy, who consulted with the plaintiff on 4 April 2011. The plaintiff states that she was informed by Professor Teddy that he could either rebuild her spine with bone or have a spinal cord stimulator inserted, and the plaintiff has chosen to have a stimulator inserted.
•
She is to attend a pain management hospital in Kew and then have a trial stimulator inserted. She continues to see general practitioners at the Viewpoint Medical Centre, who examine her, prescribe medication and provide incapacity certificates.
•
She currently takes Endone every 6 hours and wears Fentanyl patches. She also takes Temazepam to sleep, and Endep for depression.
•
She has a very stiff back, is unable to sit, stand or walk for long periods, and is most comfortable when she is lying down. She can only drive for short distances because of problems sitting, and has trouble looking after her three sons.
• In particular, the plaintiff describes her situation in the following terms: “I still have a very sore back. The pain is relatively constant. I have pain going down both legs especially my right leg. The leg pain can go down as far as my ankle front and back. My pain gets worse after activity. I am often woken up at night because of pain. I usually sleep for periods of about 2 hours before waking. I am very tired most of the time. I try to get extra sleep during each day.”[27]
[27] See paragraph 7 of the second affidavit contained in Exhibit A at p.23, PCB
16 The plaintiff relies on medical opinions from her treating general practitioner, Dr Russell Crosser, situated at the Viewpoint Medical Centre,[28] two reports from her treating orthopaedic surgeon, Mr Roy Carey, dated 6 October 2009 and 15 March 2011,[29] reports of the general surgeon Mr Robert Wong dated 22 February 1989, 3 March 1989 and 14 March 1990,[30] and from the orthopaedic surgeon Mr Clive Jones dated 13 July 2010.[31]
[28] See report dated 26 August 2009 in Exhibit A at p.25, PCB
[29] See Exhibit A at pp.26 and 35, PCB
[30] See Exhibit A at pp.38, 42 and 43, PCB
[31] See Exhibit A at p.46, PCB
17 Mr Wong initially examined the plaintiff on 22 February 1989 at the request of the agent of the then Accident Compensation Commission. He obtained a history that she suffered a sudden onset of pain in her upper back on 30 May 1988 when performing work with the defendant. At the time of examination she was complaining of intermittent pain in her lower back and radiation into the back of both thighs.
18 Mr Wong made a diagnosis of a spondylolisthesis, subject to the production of x-rays. Mr Wong subsequently viewed x-rays taken at the request of Dr P.G. Fildes of the Chirnside Medical Centre. Such x-rays caused him to confirm the diagnosis of a grade 1 spondylolisthesis of L5 on S1.
19 Mr Wong anticipated that the plaintiff may come to spinal fusion, and at the time of his initial examination was fit for duty that did not require frequent bending or heavy lifting.
20 Mr Wong re-examined the plaintiff on 14 March 1990, at which time she gave a history of undergoing a spinal fusion in October 1989. At the time of examination she was not having any active treatment, and her only complaint was if she sat for more than half an hour, or stood for more than 20 minutes, she would experience some low-back pain. In his second report, Mr Wong states:
“In my opinion, Miss Woolley suffered from Grade 1 spondylolisthesis of her lumbo-sacral spine. It involved L5 on S1. She had spinal fusion for her spondylolisthesis in October 1989. The operation had cured her condition. At present, Miss Woolley has no evidence of persistent injury.”[32]
[32] See Exhibit A at p.44, PCB
21 Furthermore, Mr Wong was of the opinion that the plaintiff was capable of doing normal full-time duty.
22 The plaintiff initially consulted Mr Carey on 20 March 2008 on referral from her general practitioner, Dr Crosser. On the first consultation she complained of low-back pain which was getting worse, together with bilateral leg discomfort to the knees and occasional sensory discomfort in the feet. A CT scan revealed an unsound L5-S1 fusion for spondylolytic spondylolisthesis, and a laminar fragment at L5 was certainly not united.
23 Mr Carey was of the opinion that the plaintiff had continued back pain associated with an operated spondylolisthesis at L5-S1, and he was uncertain as to whether the fusion was sound or otherwise. An MRI undertaken on 5 August 2008 revealed that the L5-S1 postero-lateral fusion was sound, but there were degenerative changes at L4-5, the level above, and the L5 laminar fragment.
24 On 15 January 2009, the plaintiff underwent further surgery at the Mercy Private Hospital.
25 As at 6 October 2009, Mr Carey diagnosed persisting problems and an inability to return to work in the foreseeable future.
26 In his later report, Mr Carey noted that he had consulted with the plaintiff on several occasions leading up to a revision fusion on 20 September 2010, and noted that the last x-rays undertaken on 13 December 2010 confirmed that the fusion was sound, and that blood investigations of the same date revealed no active infection.
27 In his last report, Mr Carey comments:
“When last seen ... [13 December 2010] ... she was still having significant discomfort but looked significantly improved and clinically and radiologically the fusion appeared sound and there was no evidence of infection.
Her persistent pain, restricted motion and two operations without [sic] a relatively short period have made it impossible for her to return to work and I would anticipate this situation will persist into the foreseeable future.”[33]
[33] See Exhibit A at p.37, PCB.
28 Mr Jones medico-legally examined the plaintiff on 1 July 2010, essentially for an AMA impairment rating. In his report he does state:
“Back pain was first experienced by her during employment with Hollandia shoes, as a shoe machinist. A lumbar disc injury with sciatica resulted and she underwent her first operation of spinal decompression and fusion in 1990. The initial response to surgery was good, with relief of sciatica and very little back pain, and Ms Woolley was able to return to reasonably regular employment taking time off to have children and raise a family. I believe she continued to enjoy quite reasonable levels of back function and even return to sport, but the back pain recurred in mid 2007, leading to the performance of further fusion in January 2009. This was complicated by a deep infection, and it appears that there is a need for further surgical treatment, which is to be undertaken in the near future.”[34]
[34] See Exhibit A at p.48, PCB
29 Of course, Mr Jones examined the plaintiff prior to her last bout of surgery on 21 September 2010 (although he anticipated that same would be necessary).
30 In his report dated 26 August 2009, Dr Crosser notes that the original surgery undertaken by the plaintiff “relieved her pain” but the pain has slowly returned since then, necessitating the referral to Mr Carey and the second bout of surgery. In the report he notes that it was likely that she would come to further surgery.
31 Dr Crosser anticipated that “she may eventually return to her pre-injury duties but cannot yet make a full assessment of the likelihood of ongoing symptoms”, and that any incapacity that she does suffer is “entirely due to the original injury”.[35]
[35] See Exhibit A at p.25, PCB
32 It is also convenient to make reference to the medical material relied upon by the defendant in the proceeding. Other than the report of Mr Clive Jones dated 13 July 2010 already referred to, the defendant relies on an earlier report of Mr Carey dated 20 March 2008[36] and two reports from the specialist occupational physician, Dr James Rowe, dated 16 June 2008 and 22 September 2008.[37]
[36] See Exhibit 2 at p.47, DCB
[37] See Exhibit 2 at pp.48 and 53, DCB
33 In his report, Mr Carey confirms that when he initially saw the plaintiff on 20 March 2008 he was of the tentative opinion that she suffered from a “recurrence of pain related to her original operation for spondylolisthesis in 1989 from which she has never fully recovered.”[38]
[38] See Exhibit 2 at p.47, DCB
34 Dr Rowe initially examined the plaintiff on 16 June 2008 and obtained a history that the plaintiff, after the initial surgery in October 1989, had some back pain, but it was never severe. He further obtained a history that in the last two years the pain had become “worse” and that she was in pain 24 hours a day with referred pain down both legs.
35 In his report dated 22 September 2008, Dr Rowe had available the MRI scan dated 5 August 2008 which revealed evidence of a previous spinal fusion at L5-S1 with degenerative disc disease there, subluxation at L5 on S1 with bilateral pars and at L4-5 there is a small posterior central disc protrusion with an annular tear. Based on his earlier examination and the radiological report, Dr Rowe was of the opinion that it would be reasonable for the plaintiff to undergo repeat surgery which may involve two levels of fusion. Of course, Dr Rowe last examined the plaintiff prior to the second and third bouts of surgery.
The Cross-Examination of the Plaintiff
36 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
At the time she suffered her injury in 1988 she was only 17 years of age and living in a flat with her sister.
•
She obtained a back brace after the initial injury in 1988, and, although she has kept the back brace since then, she has only taken to wearing such brace again after the recent bouts of surgery.
•
Her claim for compensation in 1988 was accepted, and she received weekly payments of compensation up until 12 March 1990. She accepted that the work she was performing with the defendant up to the time of her initial injury was “heavy, physical, repetitive and exertive”.[39]
•
When she returned to work with the defendant after the onset of the injury but before surgery, she worked four hours a day, performing lighter duties which involved sitting down.
•
When asked about any advice she was given by her treating surgeon after the first bout of surgery, she stated:
[39] T31 L16–17
“... He was very happy with the surgery and I did recover very quickly. I stayed at my dad’s for two weeks and then within two weeks I was back at home and virtually, yes, doing a lot of stuff that I used to be able to do.”[40]
[40] T33 L11–15
•
After her surgery performed by Mr Dunin and immediate recuperation, she did not attend any further orthopaedic surgeon over the period from 1990 to March 2007 (the date on which she attended Mr Carey).
•
Over the period from 1990 to March 2007, she never consulted a solicitor in relation to her back condition.
•
The surgery undertaken by Mr Dunin relieved her leg symptoms completely, but did not totally relieve her low-back pain.
• Her leg pain returned shortly before seeing Mr Carey in 2008. •
In relation to symptoms after the first bout of surgery, the following evidence was given:
Q:
“So after surgery and while you were at Mt Evelyn Secondary College you say you coped well with your studies but you had mild back pain from time to time while sitting for long periods?---
A: Yes. Q: So - - -?--- A: Which I just thought was normal after the surgery. Q: Pardon?--- A: I just thought it was normal after the surgery. Q:
Yes. So when you say, ‘I had mild back pain,’ in your affidavit, paragraph 6, ‘from time to time,’ you’re talking about from the time of the surgery and to date, and thereafter, continuing - - -?---
A: Mm’hm. Q: - - - up until, you say, in April 2007 - - -?--- A: And then it was constant. Q: - - - you got more severe pain - - -?--- A: Yes. Q: - - - which resulted in the second spinal fusion?--- A: Mm’hm.”
•
Occasionally she would take medication for intermittent episodes of pain, such medication consisting of Panadol and occasionally Panadeine Forte, which was used mainly after the bouts of surgery.
•
She believes that she only got half-time at the Cranbourne jewellery store because she told them that she had a WorkCover history. In particular, this evidence was given:
Q: “You would apply for jobs and you would tell them that you had a
low-back problem for which you’d had surgery?---A: Mm’hm. Q: Did you tell them that you had a capacity to do only some types of
work?---A: Yes. Q: You can remember saying that, can you?--- A: Yes. Q: So you knew that heavy lifting work, or repetitive bending, or
assembly or process or work - - -?---A: Yes. Q: - - - like you’d done with Hollandia - - -?--- A: Yes. Q: - - - was not for you any more?--- A: Yes, I couldn’t do that work any more, no. Q: Is that one of the reasons why you went back to school?--- A: Yes.”[41] [41] T38 L3–13
• The work at the jewellery store and the milkbar was not heavy work. •
When working as a nanny she was responsible for twins aged 9 months old, one of whom had cerebral palsy. She performed such work for eighteen months full-time, and such work involved getting the babies out of bed, feeding them, washing them, putting them into car-seats, and all the activities involving children of that age.
•
She ceased playing netball because of a hand injury, and nothing to do with any back condition.
•
She accepted that from 1990 to 2007 she knew she had a “problem” and that she had to be “careful”, and that she was unable to go back to her pre- injury job.[42]
•
When working at the Coles supermarket in Chirnside Park she was working part-time but would have sought full-time work if she had not had children at home. In particular, she gave this evidence:
[42] T43 L21–24
Q:
“There is no record of earnings but you’re not able to tell His Honour whether if you were full-time at Coles you would have been earning commensurate with what they were paying the process workers down at Geelong for your previous - - -?---
A:
Probably would have been on more at Coles rather than a process worker. The process was a lot of time as well so you got the bonuses.
Q:
But you’ve not made any inquiry, we’ve got no details or you’ve got no information from third parties to cause you to say it probably would have been more?---
A: No, I haven’t got any. Q: That’s just a guess?--- A: Yes. Q: Could have been less, couldn’t it?--- A: Could have been.”
•
She has been with Dr Crosser since about 2000, and prior to that at a different clinic.
•
The following attendances on the Viewpoint Medical Centre were put to her:
(a)
She attended Dr Michael Lavenda on 17 September 2003 with a history that she suffered “a fall yesterday, now sore in the lumbar and neck region. Tripped on a ramp.” It was when she was taking her children to school, and she suffered some low-back pain then.
(b)
She further attended on 13 December 2003 for an unrelated problem and was prescribed physio, Nurofen and heat for persisting pain. Again she accepted that history.
(c)
She consulted Dr Crosser on 25 February 2004 complaining of low- back pain across the L3-4 with some radiation to buttocks and tingling in the thighs. She accepted that history.
(d)
She consulted Dr Jimmy Lee on 20 October 2004 complaining about “an injury at netball yesterday, a sore left wrist”. That injury caused her to cease netball.
(e)
She consulted Dr Jimmy Lee in May 2006 complaining that she had been kicked in the back by one of her children during sleep, and she had a sore back radiating into both thighs. She accepted that history, and also accepted that she was given Panadeine Forte to alleviate the pain at that time.
(f)
She consulted Dr Crosser on 2 August 2006 complaining that she had a “fall at home” two days, “bruising left knee” and “left side lower back”. She accepted that history.
(g)
She consulted the clinic on 2 April 2007 complaining of “right lower back playing up, old spinal fusion, pain in right sacro-iliac joint”. She accepted that this was the point where her deterioration commenced, leading up to the further surgery undertaken by Mr Carey.
•
Prior to April 2007, she did have flare-ups of back pain about every three months or so, depending on what she was doing with her children.
•
She did not go to physiotherapy over the period from 1990 up until March 2007, and again described the medication as taken only “occasionally”.[43]
•
She consulted solicitors for the first time after Mr Carey recommended that there be further surgery.
•
When Dr Fildes gave her a certificate to return to work in 1990, there was no qualification on the type of work she could do.[44]
[43] T53 L16–28
[44] T59 L8–10
37 In re-examination, other than the attendances referred to in the clinical notes, the plaintiff gave evidence that she did not see any other doctors in relation to her back over the ensuing years up to 2007. Furthermore, she gave evidence that when working at the restaurants, she was required to get food ready for buffets, preparing dishes for feeding up to 200 people, which she performed over a period of 18 months. On occasion she was required to work a full week, and, although she found that exhausting with her children, there were no difficulties in relation to her back.[45]
[45] T69 L10–24
Medical Notes from Viewpoint Medical Clinic
38 Exhibit 1 consists of the medical notes from the Viewpoint Medical Clinic and consists of seven typed pages running from 17 September 2003 until 9 February 2009. A perusal of those notes confirms that she did attend that clinic on 17 September 2003, 25 February 2004, 8 June 2006 and 2 August 2006, complaining to some extent of low-back pain, although on several occasions caused by extraneous events (for example, falling over or being accidentally kicked by one of her children in bed).
39 Exhibit 2 contains various WorkCover certificates of capacity, and in particular contains what is seemingly the last certificate from Dr Fildes dated 13 March 1990 in relation to an attendance by him on the plaintiff on that day. It certifies the worker to be unfit for her former duties from 13 March 1990 to 10 April 1990, but fit for moderate duties as specified in the document. He recommends a workplace assessment and the referral of the work to an appropriate provider of rehabilitation, but then notes:
“This worker is now ready to start work. Please expedite.”
Analysis of the Evidence
40 Counsel for the defendant described the plaintiff as “frank, almost frank against her own interest”. After assessing all her evidence, I have come to a similar view and find the plaintiff to be a credit-worthy witness.
41 There is no issue that the plaintiff suffered a low-back injury arising out of or in the course of her employment with the defendant on or about 30 May 1988. The nature of such injury involved a movement of L5 on S1 as a result of a Grade 1 spondylolisthesis of her lumbosacral spine. Furthermore, there is no issue that such injury resulted in back surgery undertaken by the plaintiff in October 1989.
42 There is also no issue that the injury suffered by the plaintiff on 30 May 1988, as presently assessed, is a “serious injury” within the meaning of s.135A(19) of the Act consistent with the test laid out in Humphries v Poljak.[46] Bearing in mind the evidence of the plaintiff of her present symptoms and limitations, the evidence of her present treating surgeon, Mr Carey, and indeed her presentation in Court, such a conclusion is inescapable.
[46] [1992] 2 VR 129
43 The difference between the parties is this: whereas the plaintiff asserts that she only had knowledge of “the incapacity arising from the injury” – that is to say, the serious injury incapacity no earlier than when she attended her general practitioner on 2 April 2007 with deteriorating symptoms or more likely, her consultation with her present treating orthopaedic surgeon, Mr Carey, in March 2008, the defendant asserts that knowledge of the “incapacity arising from an injury” after the advent of her first surgery in 1989 and certainly well before 22 March 2007.
44 I make the following findings of fact:
(a)
On leaving school at the end of 1987 at the age of sixteen and having completed Form 5, the plaintiff commenced employment with the defendant at the Hollandia shoe factory in Chirnside Park on 19 January 1988 (just before her seventeenth birthday) as a factory hand earning $175.00 gross per week for a 40-hour week;
(b)
The work she performed as a factory hand with the defendant was heavy, physical, repetitive and exertive;
(c)
After performing such work for about four months, the plaintiff suffered a low-back injury on or about 30 May 1988 during the course of such employment;
(d)
She submitted a Claim for Compensation under the provisions of the Act in or about November 1988 which was accepted and remained off work until about February 1989 when she returned to work, initially part-time but gradually attempted to increase her hours to full-time but had difficulty maintaining such hours due to increased low-back pain and right leg symptoms;
(e)
She accepted a redundancy package when the defendant moved its premises to Geelong;
(f)
In October 1989, she underwent a spinal fusion performed by Mr Dunin, which relieved her back pain “considerably” and resolved her leg symptoms completely;
(g)
She was “travelling really well” within six weeks of her surgery and in 1990 she went back to school and studied Year 12 and coped with her studies although experiencing some mild back pain from “time to time”. She had no treatment for her injury during this period of time and was “optimistic” about her future;
(h)
After completing her Year 12, she performed work at the Cranbourne Jewellery Store for 20 hours a week, worked in a milk bar at Mooroolbark on a full-time basis and in or about 1995 (or slightly later), became a full- time nanny for about eighteen months;
(i)
Between April 1997 and November 2001, she was off work when she gave birth to her three sons and although having some back pain during the final month of each pregnancy, such pain was bearable and nothing like she presently suffers;
(j)
In 2004, she resumed playing netball with a mothers’ group and in about 2006, she began work initially as a part-time kitchen hand and then as a sandwich hand in a local coffee shop which she was able to manage with occasional flare-ups of back pain which required occasional attendance on doctors for treatment.
45 Throughout the period of time from 1989 to early 2007, she described her back as being “pretty good”, only noticing “occasional pain” although she noted that she was careful when lifting and carrying heavy things. In particular, she notes she was able to enjoy a “normal life both at work and socially”. She rarely attended doctors for back pain, certainly did not attend any orthopaedic surgeon and only occasionally took medication (such medication consisting of Panadol and occasionally Panadeine Forte).
46 There was no evidence that the plaintiff had any knowledge over the period from 1989 to her attendance on Mr Carey in March 2008 that the injury on 30 May 1988 would ultimately cause her present incapacity and significant restrictions. Furthermore, her description of activities over this period of time does tend to support her view that she was able to enjoy a “normal life both at work and socially”. When one does place her account against objective markers, such account seems well borne out.
47 The plaintiff resumed netball and that only came to an end because of an injury to her hand unrelated to any back condition. There is no evidence to suggest that any social, sporting or other interest was affected by her low- back condition over the years from 1989 to early 2007.
48 In support of his submission that the plaintiff had knowledge of the “serious injury” incapacity prior to 22 March 2007, counsel for the defendant put much emphasis on the admission by the plaintiff that she would have been unable to return to the type of work that she was performing with the defendant at the time of her injury. It was submitted that the plaintiff suffered a pecuniary disadvantage, in that she was cut out of heavier forms of repetitive work as a result of her back injury.
49 Counsel for the defendant referred to State of Victoria v Glover[47] wherein the Court of Appeal, not being satisfied that the decision at first instance was “plainly wrong”, dismissed an appeal by an employer in relation to a finding of serious injury by the trial judge. The worker, Glover, suffered injury during the course of his employment with the Victoria Police and as a result found it necessary to give up his former work as a police radio technician but returned to the Police Force working as a phone and radio operator but unable otherwise to perform operational duties in the Police Force. As a result of the change of occupation, the worker was losing in the range of $2,000 and $2,500 gross per annum and the potential for further promotion. The trial judge found essentially on these facts that the plaintiff had suffered pecuniary disadvantage which constituted a “serious injury” within the meaning of the Act.
[47] [1998] VSCA 93
50 In the present matter, the plaintiff only worked for the defendant for approximately four months prior to the advent of her injury and since the initial surgery has demonstrated her capacity to work in a wide range of unskilled jobs, including sales assistant, milk bar attendant, restaurant worker, kitchen hand and perhaps more particularly, looking after a set of baby twins, one of whom suffered cerebral palsy. Such work involved constant handling of the babies, lifting in and out of baths and cots and moving children in and out of cars with the assistance of the mother of the children.
51 Furthermore, when questioned by counsel for the defendant that if she had been working full-time at Coles (she was only working part-time because of her three children) whether she would have been earning commensurate with what process workers were paid down at Geelong (where the defendant had moved its factory), she considered that she probably would have been “on more at Coles”, although she accepted that was probably only a “guess”. Certainly the plaintiff made no suggestion that over the period from 1989 to 2007 that she had been at a financial disadvantage in pursuing work because of her injury. She did make comment that sometimes she had difficulty obtaining employment as a result of telling putative employers that she had a WorkCover history.
52 I reject the submission of the defendant in relation to the allegation of pecuniary disadvantage as a result of the back injury. Subjectively, if anything, the plaintiff had the view that she was suffering no particular loss and indeed, her demonstrated capacity over the period from 1989 to early 1997 would suggest that she had a capacity to perform a wide range of unskilled work requiring little treatment, attendances on doctors or time off work.
Conclusion
53 I am satisfied that the plaintiff has established that she had no knowledge of “the incapacity arising from the injury” before 22 March 2007 and most probably that knowledge only came about when she was referred to Mr Carey in March, 2008 (at which time she instructed solicitors for the first time).
54 Accordingly, I grant leave for the plaintiff to bring common law proceedings in respect to her low-back injury suffered on or about 30 May 1988.
55 I will hear the parties as to questions of costs.
- - -
Annexure A
The plaintiff tendered the following documents which were marked as Exhibit A:
(a) Affidavits sworn by the plaintiff on 18 March 2010 and 15 July 2011 at pages 12-24 of the Plaintiff’s Court Book (“PCB”). (b) Medical reports of:
(i) Dr Russell Crosser dated 28 August 2009, (ii) Mr Roy Carey dated 6 October 2009 and 15 March 2011, (iii) Mr Roy Carey dated 6 October 2009 and 15 March 2011, (iv) Mr Robert Wong dated 22 February 1989, 3 March 1989 and 14 March 1990, and (v) Mr Clive Jones dated 13 July 2010, contained at pages 25-50 of the PCB.
(c) Radiological reports consisting of:
(i) CT scan of the lumbar spine dated 18 January 2008, (ii) x-ray and MRI of lumbosacral spine of 5 August 2008, (iii) x-ray of the lumbar spine of 31 March 2009, (iv) x-ray of pelvis and sacroiliac joints of 7 April 2009,
(v) whole body bone scan of 7 April 2009, (vi)
MRI of the lumbosacral spine and sacroiliac joints with and without contrast of 8 April 2009,
(vii) X-ray of the lumbar spine of 22 June 2009,
(viii) Operation report from Mercy Private Hospital of 15 January 2009,
(ix)
Operation report from Epworth Health Care dated 21 September 2010,
(x) X-ray of the lumbosacral region report dated 20 September 2010, (xi) X-ray of the lumbosacral region report dated 13 December 2010, and (xii) MRI spine report dated 4 April 2011, contained at pages 51-66 PCB.
The defendant tendered the following documents:
(a)
In Exhibit 1, medical notes of Dr Crosser from Viewpoint Medical Clinic consisting of seven typed pages,
(b)
Exhibit 2, worker’s claim form dated 8 November 1988, employer claim report dated 10 November 1988, various WorkCover Certificates of Capacity, medical report of Mr Roy Carey dated 20 March 2008, and medical reports of Dr James Rowe dated 16 June 2008 and 22 September 2008,
all contained at pages 1-54 of the Defendant’s Court Book (“DCB”).
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