Young v Community Care Services Vic Pty Ltd
[2016] VCC 1424
•29 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04594
| JOANNE ROSE YOUNG | Plaintiff |
| v | |
| COMMUNITY CARE SERVICES VIC PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2016 | |
DATE OF JUDGMENT: | 29 September 2016 | |
CASE MAY BE CITED AS: | Young v Community Care Services Vic Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1424 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the lumbar spine – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Mert v Lawrence (Vic) Pty Ltd [2016] VSC 348; Bedeux v Transport Accident Commission [2016] VSCA 127; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Maurice Blackburn Lawyers |
| For the Defendant | Mr C D N Griffin | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the defendant from October 2011.[1]
[1]Transcript “T” 11
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application primarily pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the lumbar spine.
5 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
6 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Grech v Orica Australia Pty Ltd[3] and Petkovski v Galletti[4] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
[4][1994] 1 VR 436
7 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
8 The plaintiff’s is presently aged fifty-five, having been born in January 1961. She has two adult children and lives alone.
9 When the plaintiff’s children were in their teens, the plaintiff decided she would enjoy working in the community care sector. She completed a Certificate III in Aged Care and Home & Community Care in March 2006.
10 The plaintiff’s first job in this role was in January 2006, when she obtained casual employment with Australian Home Care. She then started working with the defendant in February 2006.
11 The plaintiff’s work with the defendant involved assisting clients in their own homes with cleaning and personal hygiene. She did some ironing. She assisted clients out of bed and helped them shower. If any lifting was required, there would be two carers present and hoists were provided. The plaintiff also had to push wheelchairs. The work placed stress on her spine.
Prior health
12 Prior to her employment with the defendant, the plaintiff’s health conditions included Type 1 Diabetes, anxiety and depression. She took medication for the diabetes and Prozac to help her mental state. She also had some issues with her weight.
13 Since the mid-1990s, the plaintiff has suffered anxiety and depression due to relationship and family issues. She has taken Prozac continuously from 2001. She agreed that prior to the said date, there were financial problems that caused her significant stress.[5]
[5]T45
14 The plaintiff applied for a disability support pension because of her psychological issues and diabetes, but this application was rejected.[6]
[6]T43
15 The plaintiff deposed she had occasional low back pain. Her mother had scoliosis, so she had regular back x-rays to check on the nature of that condition. The plaintiff had a back x-ray in May 2000, which she believed showed moderate lumbar scoliosis but was otherwise normal. She could not recall what happened to her back in 2000.[7]
[7]T20
16 The plaintiff had a low back strain and attended her general practitioner on 6 September 2004. She remembered having some heat on her back, but was not sure when this occurred.[8]
[8]T20
17 The plaintiff had some low back pain in February-March 2005 and she was prescribed Voltaren. She could not really recall what brought the pain on at that time.[9]
[9]T20
18 In February 2006, the plaintiff had another x-ray of her thoracolumbar spine which she believed showed minor dorsolumbar scoliosis. She had some back pain around that time but it settled.
19 The plaintiff had a further incident of low back pain when pushing a garden Wheelie bin at home in late October 2006. She saw her general practitioner and her pain settled.
20 The plaintiff’s recollection of these incidents was minimal and she was assisted by her lawyer in preparing her affidavit which referred to them.[10]
[10]T21
21 The plaintiff was diagnosed with sleep apnoea in late 2007. She continued to have flare ups of anxiety and depression and had occasional counselling.
22 The plaintiff tore a left calf muscle but could not recall if that was why she saw her doctor in August 2011.[11]
[11]T21
23 Before the said date, whilst from time to time the plaintiff had lower back pain, she did not really remember having pain down her leg. Back pain was associated with her normal activities as a single mother.[12]
[12]T22
24 On 2 October 2011, the plaintiff injured her back when lifting and moving a speaker at home (“the speaker incident”). The rectangular-shaped speaker was not heavy, weighing one or two kilograms.[13]
[13]T23
25 The plaintiff did not know why Dr Ouyang noted on examination on 5 October 2011 that she was injured doing “heavy lifting” because she told Dr Ouyang she had only lifted the speaker.[14]
[14]T23
26 The plaintiff could not recall whether she had told a number of medical examiners about the speaker incident but thought she had done so.[15]
[15]T30 – 33: Ms McCarthy, Dr Barton, Mr D’Urso, Dr Lewis, Mr Battlay and Dr Das made no mention of the speaker incident in their reports.
27 When the plaintiff went to work the following day, she was in discomfort.[16] One of her clients had Parkinson’s disease (“the first client”). Despite help from a co-worker, the first client was very difficult to manage and required a lot of manual assistance (“the work duties”). During that working day, the plaintiff’s back pain increased and she also had gradually increasing right leg pain.
[16]T24
28 On that Monday evening, the plaintiff’s back was particularly sore after sitting for a prolonged period in the car and she could not get comfortable. Despite her pain, she worked the following day but by the end thereof, she could not sit properly. She could not cross her legs because of the right leg pain.
29 The plaintiff attended her general practitioner, Dr Ouyang,[17] on Wednesday, 5 October 2011 complaining of low back pain radiating to her right leg. Dr Ouyang asked the plaintiff about her work duties and recommended a CT scan, which the plaintiff underwent on 6 October 2011.
[17]T20 – the plaintiff’s general practitioner for a number of years until 2013.
30 The plaintiff continued working on the Thursday and Friday. She attended Dr Ouyang on the Friday to obtain the results of the CT scan and she was commenced on Panadol Osteo.
31 The plaintiff wanted to press on at work despite her pain.
32 On 10 October 2011, the plaintiff was telephoned by one of her supervisors, whom she advised that she had been diagnosed with a slipped disc. The plaintiff was asked to get a certificate setting out the work duties she could reasonably perform.[18]
[18]T25
33 The plaintiff denied she had not thought about a WorkCover claim prior to that time because her back pain had commenced at home. That was partly the reason but it was more that she had some backache dealing with clients and she thought that it would go away and she would work through it. It was not because of the speaker at all.[19]
[19]T25
34 The plaintiff had had constant pain since working about that time which possibly started on the Sunday lifting the light speaker. She did not really recall pain going down her leg. She was aware of pain on the Tuesday when she could not cross her legs, as the pain was so severe.[20]
[20]T26
35 The plaintiff again attended Dr Ouyang on 11 October 2011 complaining of continuing low back pain. She was provided with a WorkCover certificate. She had a day or two off work and resumed duties on 13 October 2011, working 24.5 hours a week on lighter duties.
36 The plaintiff’s depression flared at that stage and her back pain was getting her down. She was having some issues with her children. She was referred for physiotherapy with Ken Angus and had a couple of further days off work in late October 2011.
37 The plaintiff’s work duties continued to aggravate her symptoms and, on 9 November 2011, Dr Ouyang reduced her work hours to a maximum of four hours per day and up to twenty hours a week on light duties. The plaintiff was also commenced on Tramadol because of the severe pain, and she continued with regular physiotherapy.
38 In November 2011, the plaintiff changed physiotherapists to Collette McCarthy, who taped her spine. The plaintiff found this treatment helpful.
39 Because of her reduced work hours, the plaintiff was under some financial strain which aggravated her anxiety and depression and she started seeing a psychologist, Joanne McDonald, in December 2011.
40 The plaintiff continued on at work doing most of her pre-injury duties and the physical nature of her work continued to aggravate her symptoms. She took Panadol Osteo and Tramadol to enable her to continue at work. In early 2012, she did a Pilates course and also a functional restoration program.
41 In April 2012, the plaintiff managed to increase her hours, but she required increased dosages of Tramadol.
42 Due to her work duties, the plaintiff’s back pain flared in May 2012 and her back was again taped up by her physiotherapist. The plaintiff then had ongoing back, right buttock and sacroiliac joint pain extending to the right thigh, and also had some left thigh pain.
43 The plaintiff continued working throughout the rest of 2012, working up to 31 hours a week. Her back remained painful and she needed Panadol Osteo and Tramadol to get her through.
44 In early 2013, the plaintiff’s low back pain gradually worsened and she saw Dr Ouyang on 12 March 2013 because she was having difficulty coping at work. The plaintiff was then taking a lot of Tramadol, as well as Panadol Osteo, and Dr Ouyang recommended an up-to-date CT scan.
45 The plaintiff “guessed” you could say she was managing with her work but once she arrived home from work, she did nothing and would lie on the bed all the time because that was the best way for her to get comfortable.[21]
[21]T26
46 On 31 March 2013, the plaintiff was at work looking after another client with Parkinson’s disease, assisting her into a shower and dressing her with the assistance of a co-worker. After performing those physical duties, the plaintiff leant over to lift a lever on a recliner chair and had a severe flare up of back symptoms, following which she needed ten days off work.
47 The pain on this occasion was a lot more severe than that experienced at work in early October 2011 and extended right across the plaintiff’s back.[22]
[22]T27
48 The plaintiff’s pain gradually settled back to what it was like earlier in March 2013.[23] She returned to work, certified fit for work up to five hours, five days a week. She was taking a lot of Tramadol and Panadol Osteo, and still taking Prozac for anxiety and depression.
[23]T28
49 The plaintiff had a further CT scan on 19 April 2013.
50 In June 2013, the plaintiff started seeing Dr He at the Belvedere Medical Clinic in Seaford. Initially, she was advised to stop taking the Tramadol because of the potential impact on her other medication. The plaintiff had a lot more pain at work without it, so she recommenced taking it but only when her pain was more severe.
51 In late April 2014, the plaintiff was certified fit to work up to 27.5 hours a week on restricted duties, which included rest breaks. She continued to perform most of her duties, including cleaning, vacuuming, mopping and sometimes sweeping. She would also clean the bathroom, toilet and shower, and change bed linen.
52 The plaintiff’s work hours were reduced in May 2015. The defendant was not giving her as much work – she guessed, because they did not have suitable clients for her to work with.
53 The plaintiff was then on the waiting list for upcoming bariatric surgery at the Monash Medical Centre. She had been referred to another psychologist, Dr Marian Barton, to help her get through the surgery. Her anti-depressant medication had been switched to Cymbalta from February that year.
54 As of May 2015, the plaintiff continued to suffer constant low back pain of varying severity, aggravated by work duties and increased physical activity. From time to time, she had pain radiating into her thighs. She would wake up with a very stiff back, which eased a bit after a hot shower and some work.
55 The plaintiff was then taking six Panadol Osteo a day and also between one to six Tramadol tablets as required when the pain was very severe.
56 The plaintiff had difficulty around the house. WorkCover agreed to pay for lawn mowing and a one off clean up of the garden, as the plaintiff was restricted with what she could do around the garden.
57 The plaintiff completed her household chores, but she had to pace herself.
58 The plaintiff socialised less than she used to. If she went to the movies or a church conference, she had to dose up on Tramadol to get by.
59 When the plaintiff went on a cruise to New Zealand in March 2015, she needed large doses of Tramadol to survive the onshore bus trips. She also used a doughnut cushion when sitting.
60 Prior to her injury, the plaintiff enjoyed dancing when the opportunity arose. She learnt to rock ‘n’ roll dancing around 2000. Dancing would now be too jarring for her. She is now unable to do more than a “bit of a jig” at social occasions.[24]
[24]T41
61 The plaintiff could not sit, stand or walk for too long. She had to be careful lifting, bending, pushing or pulling. Her current work involved those activities and her pain was aggravated by the end of the workday.
62 In her most recent affidavit sworn on 8 August 2016, the plaintiff confirmed she continues to have ongoing back pain which varies in intensity from day to day, but is aggravated by activities which put strain on her spine. She finds sitting causes her pain to increase. Some days the pain is better than others. If she has to stand or sit for an hour and a half, it is very uncomfortable and she is very restless.[25]
[25]T47
63 The plaintiff’s pain is constant. In the witness box, she rated her pain at five out of ten but her level of pain depends on what she is doing.[26]
[26]T46
64 The plaintiff takes Panadol (two a day) and Panadol Osteo (between two and four a day) to cope with the pain. She also takes Cymbalta (an antidepressant, 20 milligrams a day).
65 The plaintiff takes Tramadol, 50 milligrams slow release, morning and night. On the odd occasions, she tries not to take it but very rarely does she miss taking it in the morning. Initially, she was taking Tramadol tablets, up to the maximum of six per day, but now takes this medication in slow release form.[27]
[27]T36
66 The plaintiff consults Dr He monthly. Dr He continues to prescribe medication and a work certificate with restrictions in terms of lifting,
67 The plaintiff continues to see psychologist, Dr Barton, about once a month. This treatment is funded by Medicare.
68 The plaintiff underwent successful bariatric surgery in July 2015, following which she lost about 25.5 kilograms, but she had recently put back on 4 kilograms. She had lost about 50 centimetres from all over her body.
69 Following that surgery, the plaintiff had symptoms in her left foot in November 2015, which was diagnosed as a slight left foot drop. She was referred to a specialist for a review of that condition, having seen her podiatrist. However, the foot drop resolved so the plaintiff did not need further treatment
70 The plaintiff broke a toe on her right foot last year. She had an x-ray, but no specific treatment, and has fully recovered.
71 The plaintiff took bereavement leave after her mother’s death on 9 July 2016. She had about seven weeks off work and is still grieving for her mother.
72 The plaintiff continues to experience the same restrictions with day-to-day activities, recreational and social activities as previously deposed to.
73 If she goes to the pictures, the plaintiff becomes agitated if sitting for long periods and has to lay back and stretch out her legs.[28]
[28]T36
74 The plaintiff wakes up several times at night because she is restless and uncomfortable. Sometimes this is because of pain in her legs and she is not able to get comfortable. Her problems are due to overthinking and pain, and also her diabetes. She now does not sleep as well as she used to. Very rarely does she have a good night and sleeps right through.[29]
[29]T38
75 The plaintiff denied that her normal socialising has not been affected by her injury. Financially, she has to consider the cost of any activities.[30] She cannot rely on the work hours she is given. After bariatric surgery, her hours were dropped right back to ten hours a week.[31] If she had money, the plaintiff could do more socially, but she would be in pain.[32]
[30]T39
[31]T39
[32]T41
76 The plaintiff does have some supportive friends with whom she has a meal or a drink but she does not go ten-pin bowling, dancing or to the pub.
77 The plaintiff continues to have difficulties gardening and she still has a gardener who helps with mowing and trimming the lawn, funded by WorkCover. She goes out in the garden and potters around and does lighter aspects of gardening, but is very restricted in what she can do. She can prune the roses with a long-handled pruner and weed with a long-handled fork.[33]
[33]T33
78 Similarly, the plaintiff is able to do her own chores but has to take her time. She lives on her own, so some days she simply leaves things until she is feeling better.
79 The plaintiff is able to work but has to be careful in how she performs her duties. She is still very restricted in what she can do at work due to her back pain. On average, she works 22 hours a week but these are not permanent hours and differ from week to week.
80 There are some clients the plaintiff simply is unable to attend to as they require a lot of physical assistance and she has restrictions on the amount of repeated bending and lifting she can undertake. However, she is determined to continue at work for as long as she can, despite her pain. She has to work for financial reasons.
81 The plaintiff is very careful how she lifts, bends, pushes or pulls and she has learnt to live with her back pain; however, there are many things she still cannot do. It frustrates her that she is unable to do things she used to be able to do and work the way she used to be able to work. Because of her back pain, she has never been able to return to full pre-injury duties.[34]
[34]T17
82 All the plaintiff’s work has to be approved by the defendant’s operations manager. Whilst the average cleaner gets three or four homes to clean, the plaintiff gets one or two smaller units. She assists clients with personal care and does cleaning work. She is no longer given wheelchair clients.[35]
[35]T29
83 The plaintiff works on average 22 hours per week and very rarely works 27.5 hours per week. She has made it clear to the defendant she is desperate to work as many hours as possible on permanent rates as otherwise she does not receive holiday pay. Some weeks, her permanent hours have been as low as five or eight hours. Because of her restricted duties, the defendant will not give the plaintiff the easy duties because it would be unfair if all the other carers were required to do the harder work.[36]
[36]T34
84 The plaintiff continues to receive a partial Centrelink benefit when working a minimum of 15 hours per week. There is a cap on this Newstart benefit. If she works 56 hours a fortnight, she receives no benefit. If she works very few hours, Newstart does not make up any shortfall.[37]
[37]T45
The Plaintiff’s medical evidence
Treaters
85 On 5 October 2011, the plaintiff first saw Dr Ouyang at Thompson Road Clinic regarding lower back pain. In her report of 20 March 2013, Dr Ouyang noted the plaintiff told her that she lifted heavy furniture at home on 1 October 2011, and she has developed lower back pain since. The lower back pain has been getting worse after pulling and pushing her clients at work the immediate next day.
86 Dr Ouyang noted the plaintiff’s pre-existing anxiety and depression had been worsening since her lower back pain. She had not been able to work her normal hours for months, her income had reduced significantly and she had been referred to a psychologist. The plaintiff was also referred to a pain management specialist, Dr Taverner, on 4 October 2012, but she did not attend.
87 The plaintiff then had ongoing lower back pain with mildly to moderately restricted movements in all directions of the lumbar spine without neurological signs. She had been coping with modified duties up to 25 hours per week and should continue her current modified duties.
88 Dr Ouyang noted there were psychosocial factors affecting the plaintiff’s lower back injury recovery and it was hard to predict her future work capacity at that stage.
89 In a supplementary report of 1 August 2016, Dr Ouyang noted, on 31 March 2013, the plaintiff saw another doctor at the practice due to increased lower back pain after she was leaning over to relieve the lever of a recliner chair for a client.
90 The diagnosis was just spasm of the lower lumbar muscles and the plaintiff was prescribed analgesics and given a No Capacity for Work Certificate until 9 April 2013.
91 The plaintiff then eventually returned to light duties, no more than 4 hours a day, trying to work up to 15 hours a week. In the meantime, her depression and anxiety had been getting worse and she was finding it difficult to cope.
92 A further lumbar CT scan was organised on 19 April 2013, due to the plaintiff’s ongoing lower back pain. She was treated with physiotherapy, anti-inflammatory medications and analgesics.
93 Dr Ouyang last saw the plaintiff was on 28 June 2013. [38] She then thought it was hard to predict the plaintiff’s further capacity for work.
[38]T53
94 Dr Ouyang was required to attend for cross-examination.
95 Dr Ouyang confirmed the contents of her first report. She considered the results of the initial CT scan were consistent with the clinical examination.[39]
[39]T50
96 On the initial examination, the plaintiff was given a normal sick leave certificate, but later, she decided to go on WorkCover, a decision with which Dr Ouyang agreed, because the original injury was probably from home duties, but her work aggravated it.[40]
[40]T51
97 Dr Ouyang confirmed there was also the flare up in March 2013, after which the CT scan showed the lumbar spine had progressed to a little bit worse stage, with a further protrusion as well as the original L5‑S1 disc protrusion. Because the plaintiff continued at work and did not mention any further injury episodes at home, the “logical thinking” was the worsening had to do with the plaintiff’s work.[41]
[41]T53
98 Dr Ouyang has not seen the plaintiff since 28 June 2013.[42]
[42]T53
99 In cross-examination, Dr Ouyang confirmed she typed her notes straight away after examination and that the plaintiff had reported “after heavy lifting.” She could not remember seeing the plaintiff before that time for any back problem.[43]
[43]T53
100 Dr Ouyang’s focus was on treatment, not a history, which she received later on October 12.[44] She noted “heavy furniture”, but did not document what exactly.[45] She agreed the onset of pain was when lifting the furniture. She could not link the CT scan findings with the speaker incident, but agreed the protrusion caused symptoms. The protrusion could happen progressively, not necessarily with one activity.[46] It was her clear impression the diagnosis was a disc protrusion.[47]
[44]T54
[45]T55
[46]T55
[47]T56
101 Dr Ouyang agreed that on straight leg raising, there was a possible involvement of L5‑S1, but not necessarily absolutely.[48]
[48]T56
102 Dr Ouyang considered there was a worsening of the plaintiff’s back due to work, when it was suggested to her that her report was not clear on what was the cause of the plaintiff’s condition. Symptoms of low back pain started with lifting heavy furniture, “but continuing to push her client in a wheelchair, and doing the bending and vacuuming – they all made a contribution to aggravate her lower back pain”.[49]
[49]T57
103 Dr Ouyang would say work activities contributed partially to the plaintiff’s ongoing back pain, aggravating her low back pain.[50]
[50]T60
104 Dr Ouyang could not use imaging to say work duties caused further damage to the disc, and she could not link the prolapse with the lifting at home.[51] She could not say which activity produced the protrusion. However, clinically, the plaintiff was able to go to work on the immediate next day after the lifting at home.
[51]T61
105 If there was no right leg pain at the time of the incident but there was right leg pain the following day, Dr Ouyang considered the only logical thinking was the disc protrusion was getting worse progressively, referring pain from the lower back to the right leg.[52]
[52]T63
106 In Dr Ouyang’s view, right leg pain is due to two possibilities: the sciatic nerve involvement, or purely muscular referred pain. It was not conclusive evidence of a protrusion.[53]
[53]T67
107 Dr Ouyang could not separate the pathology of both incidents.[54] She concentrated on treatment, not the cause of the plaintiff’s injury.[55]
[54]T62
[55]T63
108 Dr Ouyang confirmed a diagnosis of depression as early as 1993. The plaintiff’s depression was fluctuating, and at times related to financial pressure.[56]
[56]T65-66
109 On the last examination in June 2013, Dr Ouyang thought work was still causing the plaintiff’s back symptoms.[57]
[57]T68
110 The plaintiff received physiotherapy treatment from Collette McCarthy at the Sports Injury Clinic until August 2012.
111 Ms McCarthy noted the plaintiff sustained a right-sided suspected lumbar disc injury at L5-S1 on 2 October 2011, while working as a patient homecare assistant. Ms McCarthy then thought the plaintiff had been progressing extremely well in her management.
112 The plaintiff re-attended for self-funding physiotherapy on three occasions in October and November 2015. Ms McCarthy requested additional funding through WorkCover for the plaintiff to undertake an exercise physiology program.
113 Ms McCarthy noted the plaintiff had made some positive steps over the past year to reducing the load on her lumbar spine, primarily through bariatric surgery. She thought the plaintiff needed ongoing support to continue her progress.
114 Joanne McDonald, psychologist, commenced treating the plaintiff in December 2011 and saw her weekly, then fortnightly, until November 2012.
115 Ms McDonald noted that the plaintiff was initially seen for weight issues. After the plaintiff injured her back, she began to struggle emotionally, and her general practitioner referred her for counselling.
116 Ms McDonald reported that the plaintiff was in considerable pain from her back when she began to attend and, at that stage, was only receiving about 13 hours of work per week instead of the 20 to 26 hours she had been used to, and was struggling financially and emotionally.
117 Ms McDonald thought, psychologically, the striking aspect about the plaintiff was her severe emotional response to her situation. While noting it was understandable she was very fearful of her financial future, it was, indeed, very poor. The plaintiff’s depression and anxiety in response to that situation was profound and debilitating and she spent most of her time crying and retreating to her bedroom.
118 Psychologically, Ms McDonald thought the plaintiff would not cope with full-time work even if her back miraculously resolved.
119 Ms McDonald provided a further report on 10 July 2013 detailing sixteen further treatments since late November 2012.
120 Ms McDonald noted that on 31 March 2013, the plaintiff had an exacerbation of her previous injury.
121 Treatment continued to include a combination of cognitive behavioural therapy, motivational therapy and supportive client focused therapy.
122 At that stage, psychologically, Ms McDonald thought the plaintiff would not cope with full-time work, even if her back condition miraculously resolved.
123 There were then a further thirty sessions between August 2013 and April 2015.
124 Ms McDonald concluded the plaintiff had been physically and emotionally reduced by her workplace injury and needed support – physical, psychological and financial – to cope with the consequences of that injury.
125 The plaintiff’s general practitioner from August 2015, Dr He from Seaford, provided a report dated 9 June 2016.
126 Dr He noted the plaintiff had some chronic change, including bulging discs at L4-5 and L5-S1 and facet joint arthropathy, which may cause left lateral recess stenosis.
127 Dr He thought generally, the plaintiff had been coping with analgesia at a relatively stable level, and was just managing to work with modified duties. Some days were worse than others.
128 Dr He noted, mentally, the plaintiff was struggling, and feeling sad and depressed due to her back condition, which affected her work performance, her financial condition and her daily activities and wellbeing.
129 In a Certificate of Capacity provided by Dr He following examination on 1 August 2016, the clinical diagnosis was L5-S1 disc protrusion, S1 radiculopathy at L3‑4. The plaintiff’s certification was as follows:
“She is able to push shopping trolley and 4WW into a vehicle.
She is able to lift up to 8 Kg or infrequent bend, push or pull.
no more than 6.5 hours a day;
try to work up to 27.5 hours per week.
rest as required.”
130 Dr Marion Barton, psychologist, saw the plaintiff on referral from the Nutritional Medicine Unit at Monash.
131 In her July 2016 report, Dr Barton noted that the plaintiff presented as dysthymic, anxious and quite teary. The plaintiff advised she was attending the Monash Clinic to manage her diabetes and hoping to have bariatric surgery to improve both her diabetes and also, hopefully, lose weight and alleviate her back pain.
132 The plaintiff gave Dr Barton a history of depression, medication and relapses.
133 The plaintiff described her work injury as occurring in October 2011, after a period of time working with a particularly difficult client with Parkinson’s disease. She was required to do some particularly challenging and physical work with that patient and became aware of pain in her back when moving a small speaker in her home.
134 Dr Barton noted the plaintiff had a predisposition for depression, coming from a background of family abuse and, at times, impoverished circumstances. Her lack of working opportunities and subsequent financial difficulties were, without doubt, contributing to the plaintiff’s depression, anxiety and pain experience.
135 Dr Barton thought the plaintiff suffered from a Persistent Depressive Disorder with Anxious Distress. She noted the plaintiff had a challenging and difficult childhood which predisposed her to develop a Mood Disorder. This was further exacerbated by life circumstances.
136 Dr Barton thought the plaintiff’s work injury had caused her both pain and anxiety over her future work capacity and her earning capacity. Such stress had also increased her anxiety which, in turn, was known to exacerbate the pain experience and impede capacity for recovery.
Investigations
137 Dr Ouyang organised a CT scan of the plaintiff’s lumbar spine in October 2011.
138 It was reported there were mild degenerative changes at L1-2 and L5-S1. There was a mild posterior disc protrusion at L5-S1, with no impression on neural structures, and no foraminal mass or narrowing to explain right leg symptoms.
139 There was a further MRI scan organised on 19 April 2013. It was reported there was L5-S1 left lateral recess stenosis where S1 traverses, and a left foraminal shallow disc protrusion of L3-4, where L3 transverses. There was mild facet arthropathy over the lower lumbar level. It was noted, if there were red flag issues, then an MRI scan should be contemplated to further assist.
140 There was an x-ray of the plaintiff’s lumbosacral spine in May 2015. It was reported there was a moderate lumbar scoliosis present, concave to the right. The intervertebral disc spaces all appeared essentially preserved. No significant degenerative changes were seen and there was no evidence of bone destruction or vertebral collapse.
141 Dr He organised a CT scan on 22 December 2015.
142 It was reported there were changes of disc degenerative disease, most marked at L5-S1. There was a very small left-sided posterolateral disc bulge, but no nerve root compression.
Medico-legal
143 Mr Paul D’Urso, neurosurgeon, examined the plaintiff in May 2016.
144 The plaintiff told Mr D’Urso, on 2 October 2011, that she was working as a personal care assistant and as she was attending to a patient with Parkinson’s disease, she developed an episode of back pain. She continued to work shortly after and attended her general practitioner, and investigations were arranged.
145 On 31 March 2013, again, while working, the plaintiff was attending a Parkinson’s disease patient, and she developed acute severe pain when leaning over a patient.
146 At the time of the examination, the plaintiff described chronic back pain of 3 out of 10, and bilateral leg pain at the same level.
147 Mr D’Urso was provided with all investigations.
148 Mr D’Urso thought it would appear likely the workplace activity had aggravated an underlying degenerative condition of the lumbar spine on 2 October 2011 and 31 March 2013. Furthermore, he thought workplace activity would appear likely to be an ongoing aggravating factor affecting the plaintiff.
149 Mr D’Urso noted there was likely to be a degree of degenerative progression of the condition, which could be difficult to determine and predict, and that more arduous activity was likely to further aggravate the condition, resulting in ongoing symptoms and a degree of disability.
150 Mr D’Urso thought the long-term prognosis was likely to be satisfactory. There may well be a degree of degenerative progression which could be difficult to determine and predict.
151 Mr D’Urso thought the plaintiff required ongoing conservative treatment.
Claim documentation
152 The plaintiff’s injury Claim Form signed on 19 October 2011 set out she had suffered injury on 2 October 2011 and first noticed that injury the following day. She stopped work on 11 October 2011, having reported the injury the previous day to her coordinator.
153 The plaintiff described the injury as “slipped disc lower back”.
154 In response to the question of what happened, and how she was injured, the plaintiff said:
“Nothing specific just felt unwell – and could not sit still in vehicle after work.”
155 When asked what task she was doing when injured, the plaintiff answered:
“General feeling of aching in back with high level client.”
156 The plaintiff explained there was a delay in reporting the incident because –
“I wasn’t aware I had a slipped disc till doctor request a CT scan and I got results.”
(sic)
157 The plaintiff was then working 31 hours a week, earning $18.50 an hour.
158 The Employer Injury Claim Report was signed on 24 October 2011.
159 It set out that the plaintiff’s main task was personal care, shopping, domestic assistance and transport to some medical appointments.
160 In response to the question what happened and how the worker was injured, the answer was:
“Nothing specific – just felt unwell on 10 October 2011 when in her car – could not sit still.”
161 The incident was said to have occurred in a client’s home in Frankston, on 10 October 2011.
162 The Employer Injury Claim Report also set out the following:
“Worker advised she lifted a speaker at home prior to incident (Not sure if aggravated by work). Jo has been working with an end stage Parkinson’s client who was very difficult … Highly likely that this caused her to experience back pain.”
163 The plaintiff lodged a Claim for Impairment Benefits on 20 August 2013 for back and psychiatric impairment in relation to an injury on 2 October 2011.
164 By letter dated 23 April 2014, QBE advised the plaintiff that her Claim for Impairment Benefits in relation to the back, and aggravation of a psychiatric condition relating to an injury on 2 October 2011, had been accepted.
The Defendant’s medico-legal evidence
165 The plaintiff was first examined by Mr Battlay in June 2012. He was provided with documentation, including the Employer Claim Form and Dr Ouyang’s March 2013 report (“the lifting incident documents”). These documents both referred to a lifting injury at home prior to the work injury. Mr Battlay did not comment on this issue in his report.
166 Mr Battlay noted the history that the plaintiff’s back was injured on 2 October 2011, when dealing with a very heavy patient who had Parkinson’s disease. The plaintiff administered a lot of personal care and although there was no specific incident, at the end of the day, she was very sore, and consulted her doctor.
167 Mr Battlay noted the plaintiff worked variable hours, casually, which were about 50 a fortnight, but she had been keen to obtain extra sessions and, at maximum, worked 85 hours in one fortnight alone. She advised she was being treated unfairly as she was actually certified fit for 25 hours a week, and she had only been given up to about 21 hours a week.
168 The plaintiff then described pain in the right upper buttock and also, to a lesser extent, across the left side of her back and right sacroiliac joint. The pain spread to the right thigh laterally and, to a lesser extent, to the left.
169 Mr Battlay had available the October 2011 lumbar CT scan. He noted there was a mild posterior disc protrusion at L5-S1, without neural compromise. In his view, the series did justify the presence of mechanical lower back pain, but did not show evidence of sciatic nerve root irritation.
170 Mr Battlay concluded the plaintiff had symptoms of mechanical lower back pain and he thought referral to an exercise physiologist would be appropriate and that passive modalities of treatment were inappropriate and unlikely to be of benefit.
171 Mr Battlay then thought the plaintiff’s work-related condition had not resolved. In his view, she was not fit for restricted duties and should avoid manual handling in excess of 5 to 10 kilograms, and avoid sustained or repeated bending below waist height. He also noted there were psychosocial factors in terms of the plaintiff’s loneliness and feelings of being abandoned by her family, and she was also feeling aggrieved by the way which her employer was not providing her with the maximum amount of work that her doctor was allowing her.
172 Mr Battlay thought it was reasonable the plaintiff had a further ten sessions from an exercise physiologist.
173 On re-examination in July 2013, the plaintiff advised that since the earlier examination, she had had a further injury to her back on 31 March 2013, when pulling a lever on a recliner chair on which a patient was sitting. She developed severe pain similar to what she had experienced previously. She went to the doctor, with a CT scan having previously been arranged for her in order to learn about the progression of her symptoms.
174 The plaintiff was then taking as many Tramadol and Panadol Osteo as required.
175 Mr Battlay reviewed the April 2013 CT scan series, noting the previous findings but, on this occasion, there was an L3-4 facet joint arthropathy, potentially irritating the left L1 nerve root. He considered that potential neural compromise was on the left, but noted the plaintiff’s symptoms were more predominantly on the right and there was no correlation with any left-sided sciatic nerve root irritation.
176 Mr Battlay thought it was possible the degenerative changes had advanced, but there was no clinical correlation of this and he thought further exercise was worthwhile. He did not recommend cessation of medication.
177 Mr Battlay diagnosed symptomatic lumbar spondylosis without radiculopathy. He noted there were two areas of potential neural compromise, but there was no clinical correlation of this.
178 Mr Battlay would not recommend the plaintiff returning to full-time pre-injury duties and thought her current schedule and restrictions were appropriate.
179 Mr Battlay also noted the plaintiff had a psychological condition about which he was not qualified to comment.
180 Again, on this occasion, Mr Battlay was provided with the lifting incident documents.
181 Mr Battlay re-examined the plaintiff on 3 February 2015 when he was again provided with that documentation.
182 The plaintiff then described pain across the lower back spreading to each flank for 30 centimetres. She had some aching in the posterior thighs. She had not improved pain wise and was currently taking two Tramadol tablets a day.
183 The plaintiff advised that when she was on a cruise ship her level of physical activities increased and she was taking excessive amounts of Tramadol to get through that increased physical activity.
184 Mr Battlay thought the plaintiff’s condition had remained substantially unchanged. He noted she was coping with a reasonable amount of work and, apart from a change in her medication, she continued to cope.
185 Mr Battlay would not then advise discontinuation of the plaintiff’s medication, and noted she was self-managing her problem and coping up to a point and she was able to perform her activities of daily living.
186 Dr Homolka, occupational physician, examined the plaintiff in April 2014. She was provided with the lifting incident documents.
187 In terms of history, Dr Homolka noted the plaintiff stated she suffered from ongoing problems with her lower back, which she initially developed on 2 October 2011 in the course of her employment as a community services support worker.
188 On that day, the plaintiff and a co-worker were attending to a client who was suffering from extreme rigidity due to severe Parkinson’s Disease, describing how, although she was using a hoist, she required a degree of force to move the client from his bed into the shower, to move his arms away from his face in order to wash and dress him and then position him in his wheelchair. As she worked, the plaintiff experienced progressively increasing pain in her lower back.
189 The plaintiff stated she continued at work, but her lower back pain did not improve and two days later, she went to a general practitioner who told her, following investigations, she had slipped a disc.
190 There was another injury to the plaintiff’s lower back at work on 31 March 2013 but, thereafter, that acute episode of lower back pain settled back to its previous levels with rest and medication.
191 The plaintiff currently complained of constant lower back pain of variable severity which was increased by emotional stress from excessive physical activity and prolonged postures. She described intermittent associated radiation of pain equally into both lower limbs as far as the knee.
192 The plaintiff advised she continued to require analgesia and, at present, she took two Panadol Osteo tablets three times a day and, also, Tramal, 50 milligrams, as required and between one to six tablets per day, depending on the severity of her pain.
193 The plaintiff told Dr Homolka that, in addition to diabetes, she also had a long history of chronic depressive illness.
194 Dr Homolka was provided with reports of the 2011 and 2013 CT scans.
195 In Dr Homolka’s opinion, based on the history, clinical examination findings and available radiological evidence, the plaintiff currently suffers from an aggravation of pre-existing degenerative changes of the lumbar spine, with referred pain to both lower limbs, but without radiculopathy relevant to the accepted lower back injury, with a designated injury date of 2 October 2011. Dr Homolka thought the plaintiff’s condition had stabilised and was unlikely to change by more than 3 per cent with, or without, medical treatment.
196 Dr Homolka noted the evidence of a severe exacerbation on 31 March 2013 and the radiological evidence of some progression of the degenerative changes in the plaintiff’s lumbar spine as described in the report of the subsequent scan of April 2013. However, she noted in the plaintiff’s history, that her episode of severe exacerbation of pain settled back to its original levels, with rest, over a short period of time.
197 In Dr Homolka’s view, there was no correlation between the radiological evidence of lumbar spine degenerative disease progression and the nature and extent of the plaintiff’s symptoms and loss of functional capacity and, therefore, there was no further additional impairment attributable to the March 2013 episode.
198 Mr Richard Pease, orthopaedic surgeon, examined the plaintiff in July 2016. He was provided with the Employer Injury Claim Form and the notes from the Thompson Road Clinic
199 The plaintiff told Mr Pease she was symptom free until 2 October 2011, when she moved a speaker at home. She then experienced the onset of right-sided lower back pain. She said she must have been in pain.
200 The next day, the plaintiff was still in pain and could not sit still in the car. She started work at 9.00am and had ongoing pain during the day, which she put up with.
201 The plaintiff’s daughter took her home. The plaintiff complained of continuing back pain and she could not keep still. The pain settled when she lay down.
202 The following day, the plaintiff’s pain was unchanged. She went for a coffee with some friends, but remembered sitting in a chair where she could not cross her legs because of right sided back pain.
203 The following day, the plaintiff’s daughter had an appointment with her doctor, at which time the plaintiff thought she would see the doctor about her back. The doctor took one look and said her back pain was caused by the type of work she was doing and sent her for a CT scan.
204 On examination, Mr Pease noted the plaintiff had not mentioned any injury at work.
205 Mr Pease questioned the plaintiff about whether she had suffered an acute or specific injury during the course of her employment. This, she denied. She did state she was required to care for an elderly gentleman who had Parkinson’s disease who was difficult for her and another employee to undress. She mentioned lifting him on a machine, but did not report any specific injury. She simply expressed the opinion that she was working with the back pain which had been precipitated by lifting the speaker.
206 The plaintiff was again questioned by Mr Pease about any injury at work and she gave some further details of her difficulty with the Parkinson’s disease patient. The plaintiff seemed to say she saw the patient four times a week with no pain, and that she had to be careful.
207 As far as Mr Pease was able to determine, the plaintiff did not fully recover from the speaker lifting incident, when she developed further and different symptoms on 31 March 2013, when she bent across to lift the lever on a recliner chair. He noted it appeared the pain, on that occasion, was slightly different to that which the plaintiff described previously, and that it was bilateral.
208 The plaintiff attended her general practitioner but then left that clinic to attend the Belvedere Medical Clinic because she was not happy.
209 When asked whether she had recovered, the plaintiff said “better yes than no.” She still struggled with everything – she was on restricted duties that impacted her financial state, and that impacted on her depression. It was really hard at the moment. She had done her job that day seeing four clients in Aspendale. It was not worth driving to do the job, but she loved her work.
210 The plaintiff indicated lumbar spine pain bilaterally and told Mr Pease that she was “uncomfortable”. She had an aching down the legs and she could not keep still.
211 Noting the plaintiff injured her back when moving a speaker at home, Mr Pease stated he had reviewed the plaintiff’s subsequent history with her very carefully three times, but was not able to establish any injury occurring at work. He also made reference to a clinical note from Dr Ljubica Raic-Uzelac dated 27 October 2011:
“Should see Jihong, her WorkCover patient!!”
212 Taking account of the detailed work history, which he obtained from the plaintiff, Mr Pease did not consider she suffered a further injury during the course of her employment. He thought that having suffered the initial injury, the plaintiff clearly had ongoing symptoms, which could have made work less tolerable, particularly while bending forward.
213 Mr Pease thought the plaintiff had degenerative change involving the discs, facet joints and probably other structures in her lumbar spine, which predated the lifting incident and were due, in significant part, to the plaintiff’s long time obesity. He would not consider the type of work she was involved in would be considered to be heavy manual work, nor work which would be expected to place excessive strains on her lumbar spine. He thought there was no indication for passive treatment. Further, there was no evidence of functional overlay.
214 Mr Pease noted that following the speaker incident, the plaintiff’s symptoms did not settle and she had to be careful at work that she did not suffer a further injury during the course of her employment, when he went over her history with her three times.
215 Mr Pease did not believe the plaintiff’s employment was now materially contributing to any incapacity or impairment. He also noted the site of her discomfort after the March 2013 flare up was different from that which followed the lifting incident in 2011, and he was not convinced she had any residual symptoms or disability as a consequence of that incident.
216 Further, Mr Pease was not convinced that the incident in March 2013 caused an aggravation of the underlying pathology, as the plaintiff described the discomfort in a different position and of a different character from that which followed the speaker incident.
217 Dr Das, psychiatrist, examined the plaintiff in July 2013.
218 The plaintiff told Dr Das on 2 October 2011 that she had her first injury at work when she had pain in her lower back. The pain persisted and she saw her doctor. A CT scan was performed and the injury was diagnosed as an L5-S1 disc protrusion with S1 radiculopathy.
219 The plaintiff persisted at work until she reported an aggravation of the injury in March 2013. She saw a different doctor on the day, who initially thought it was a new injury, but then she saw her own doctor the next day, and an aggravation was confirmed.
220 The plaintiff was then working 24 hours a week, Tramadol had been increased and she reported coping not too badly but, on busy days, had some difficulty coping, and had to take more Tramadol. The plaintiff also usually took six Panadol Osteo tablets per day.
221 The plaintiff was then seeing a counsellor every three weeks.
222 Dr Das noted the plaintiff had a past history of depression diagnosed about twenty years ago, for which she had seen a psychiatrist and had counselling. She tried to come off medication in 2000 but had a relapse and, since then, had taken it continuously. The plaintiff’s pre-accident antidepressant medication for the last twenty years was increased after the 2011 injury.
223 While having to deal with pain and an associated effect of reduced financial income, Dr Das noted the plaintiff struggled emotionally and she had an exacerbation of a pre-existing condition of depression, which was also contributed to by other non-work related factors.
224 Dr Das thought seeing a counsellor every three weeks, and antidepressant medication was appropriate. He considered the plaintiff had a capacity to continue working for the hours and duties as determined, and modified in relation to her physical injury. In his view, there was no incapacity relating to her psychiatric state and no specific restrictions were applicable in relation thereto.
225 Dr Das was also provided with the lifting incident documents.
226 In a supplementary report, Dr Das stated he considered the plaintiff’s condition to be a temporary aggravation of an underlying non-work related condition. He thought the effects of aggravation had not ceased.
227 Noting the physical injury in 2011, Dr Das commented the plaintiff had since been affected with pain and associated functional limitations restricting her capacity, and any prevailing incapacity was not necessarily due to her psychiatric condition.
228 Dr Alan Jager, forensic psychiatrist, examined the plaintiff in early 2014. He was provided with the lifting incident documents.
229 The plaintiff told Dr Jager she had a patient with Parkinson’s disease, who required a lot of physical handling. She developed pain in the lower back in early October 2011. The pain became worse, and she saw her general practitioner, who sent her for investigations which showed a slipped disc. There was a second injury on 31 March 2013, when the plaintiff aggravated the injury at work.
230 Dr Jager noted the plaintiff was depressed in childhood and, again, after her marital separation and subsequent divorce. She had been under treatment on and off since then and she also had hypnotherapy for obesity.
231 Dr Jager diagnosed a Chronic Major Depressive Disorder. He thought that condition was in partial remission and did not interfere with the plaintiff’s ability to undertake activities of daily living or social functioning, although she reported reduced concentration, she felt alert and concentration lapses were not noted at the interview.
232 Associate Professor Doherty, consultant psychiatrist, examined the plaintiff in June 2016.
233 The plaintiff told Dr Doherty about how the injury was sustained. She said there was a build up over time, the duration of which it was hard to say. She told him there were heavy clients and she cited an example of a client who needed two carers to move him.
234 The plaintiff told Dr Doherty that she was at home on 2 October 2011, when she lifted a speaker. She did not remember jarring herself at that time. She did not recall a pulling feeling in her back or anything. She was “sort of okay” and added she did not remember.
235 The plaintiff told him, the next day at work, she was with a client who had Parkinson’s disease. While trying to do her job, she was having severe pain in her lower back and legs and she could not keep still.
236 The plaintiff was trying to do her usual duties and her back was aching and she was in pain. Her co-worker did most of the work that day as she was in pain.
237 The plaintiff said there was no specific incident that she could recall that injured her back when she was caring for a client with Parkinson’s disease. The following day, the plaintiff could not lift her leg or cross her legs. She went to her general practitioner and a CT scan was arranged. Following that investigation, the plaintiff was informed she had slipped a disc.
238 The plaintiff told Dr Doherty that work found out about this situation and that she needed a clearance from a doctor. She showed the operations manager at work the clearance from her general practitioner and they discussed submitting a WorkCover Claim Form. The plaintiff told Dr Doherty her general practitioner was on the negative side of doing that, but a WorkCover Claim Form was submitted.
239 The plaintiff told Dr Doherty, in March 2012, she took some time off, because she was in a lot of pain and she was not coping. She had no further time off until 31 March 2013, when her back went whilst she was adjusting a recliner. She was then off work for about ten days and returned to work.
240 Dr Doherty detailed the plaintiff’s current complaints and symptoms.
241 The plaintiff told Dr Doherty “it was okay” with regard to falling asleep. There was the odd occasion where she had difficulty sleeping. The quality of her sleep was okay. She often woke up one and a half hours after she fell asleep but did not know why. She may play some games on her phone then, and sometimes she was restless.
242 The plaintiff told Dr Doherty her pain is now at a level of 3 out of 10, located in the lower back, but goes down the right side, and also tended to run across her back. She was taking two Panadol Osteo a day and Tramal SR, 50 milligrams twice per day.
243 Dr Doherty noted the plaintiff had had a history of depressive symptoms which occurred at times of stressful circumstances. Her presentation was called Chronic Dysthymia, or a Persistent Depressive Disorder. This condition had been present and treated occasionally over many years, up to October 2011.
244 It was in that background that the plaintiff complained of worsening back pain in October 2011. Since the back complaint, and her dealings with WorkCover and various issues that had arisen, along with non-work related issues to do with a relationship and with her children, her mood would wax and wane.
245 The plaintiff told Dr Doherty she thought she was currently okay, in terms of her mood. He thought her mild psychiatric complaints were typical of her clinical presentation over many years, prior to and, after, the claimed work-related injury.
246 Dr Doherty thought there was not an Adjustment Disorder. He thought the plaintiff’s clinical presentation was more that of an exacerbation of pre-existing vulnerability and clinical symptoms. He considered there was no Somatic Symptom Disorder with predominant pain present. Though, complaining of pain, the plaintiff had no exaggerating or over emphasis on pain.
247 In Dr Doherty’s opinion, what aggravation or exacerbation of the dysthymic condition occurred due to the claimed work-related exacerbation of the plaintiff’s back complaint was currently gone. He thought her capacity for work was not interfered with in any way by the pre-existing psychiatric condition and that she was capable, from the psychiatric point of view, of returning to her usual pre-injury hours and usual duties.
248 Dr Justin Lewis, consultant psychiatrist, examined the plaintiff on behalf of her solicitors on 12 May 2016.
249 The plaintiff stated that on 2 October 2011, she injured her back at work. She and a co-worker were attending a client with Parkinson’s disease. She required a degree of force to move the client from his bed into the shower. As she worked, she experienced progressively increasing pain in her lower back.
250 The defendant relied upon the history to Dr Lewis that the plaintiff felt most content when socialising with supportive friends. The rest of the sentence in the report read, however, that the plaintiff stated she continued to ruminate about the impact of her physical injury and that had affected her greatly. The plaintiff also stated that she maintained an active social life and was, at times, socially reticent during periods of increased pain.
251 Dr Lewis thought the plaintiff presented with a Chronic Major Depressive Disorder in partial remission. In his view, she had experienced a significant aggravation of the pre-existing partially treated Depressive Disorder following the incident.
252 Dr Lewis thought there appeared to have been some improvement in mood symptoms over the past two years which correlated with the introduction of Duloxetine, an antidepressant. He considered the plaintiff would also meet the criteria for a Chronic Pain Disorder secondary to her general medical condition.
253 Dr Lewis thought the plaintiff would benefit from a referral to a consultant psychiatrist for review of antidepressant medication and a referral to a clinical psychologist would be particularly helpful to assist her with coping skills to help her manage her depression and chronic pain symptoms.
Clinical notes
254 On 5 October 2011, Dr Ouyang wrote:
“History:
low back pain radiating to R leg for 4/7 after heavy lifting.
Examination:
tenderness over L5/S1, R SLT is positive.”
255 Diagnostic imaging was requested.
256 On 7 October 2011, the plaintiff returned to Dr Ouyang for results of the CT scan which showed mild posterior disc protrusion at L5-S1. Panadol Osteo was prescribed.
257 On 11 October 2011, the plaintiff again saw Dr Ouyang. The history was:
“low back pain remains, needs cert[ificate] for work
needs script for her diabetes.”
258 On 12 October 2011, the plaintiff was again seen by Dr Ouyang:
“History:
She lifted heavy furniture at home on 01/10/2011, low back pain since, the low back has been getting worse after pulling and pushing her clients at work over the last 10/7, unable to perform normal duties. … .
Examination:
tenderness over L5/S1, mildly restricted movements with anterior flexion.
…
Letter Created – re. workcover certificate … .”
259 On 19 October 2011, the plaintiff saw Dr Ouyang:
“History:
She decided to go onto work cover for her low back pain, she lifted furniture on 01/10/ 2011 at home, low back pain was getting worse after 2 days work
employer has light duties for her, needs to discuss.
Examination:
tenderness over L5/S1, mildly restricted movements in all directions.”
260 On 26 October 2011, the plaintiff attended Dr Ouyang. It was noted that in terms of history:
“low back pain remains, needs to be on light duties
emotional, both her children are making her upset.”
Overview
261 Whilst Mr Pease was of the view there was no compensable injury, counsel for the defendant conceded it “rationally should be admitted there had been an aggravation injury”.[58]
[58]T74
262 Therefore, I do not have to consider whether there is a compensable injury or whether the payment pursuant to s98C represented an admission the plaintiff was injured in the alleged incident. Recent authority is to the effect that the evidentiary value of the acceptance of that claim is very limited.[59]
[59]Mert v Lawrence (Vic) Pty Ltd (2016) VSC 348; Bedeux v Transport Accident Commission [2016] VSCA 127
263 As a result of her work duties, the plaintiff continues to suffer from discogenic lower back pain.
264 The initial CT scan in 2011 showed a mild posterior disc protrusion and L5-S1. The later 2013 CT scan also showed a disc protrusion at L3-4.
265 I am satisfied that the plaintiff’s work duties from 3 October 2013 were a cause of her lumbar injury.[60] As the plaintiff’s general practitioner, Dr Ouyang, opined, there was an injury in the lifting incident at home and a subsequent aggravation by work duties in the following days.
[60]Zlateska v Consolidated Cleaning Services Pty Ltd (2006) VSCA 141 at paragraph [8]
266 As counsel for the defendant submitted, certainly an injury took place at home on the Sunday in non-compensable circumstances, and the preponderance of evidence is that there has been a subsequent aggravation at work.[61]
[61]T71
267 In those circumstances, the principles in Petkovski v Galletti[62] apply.
[62][1994] 1 VR 436
268 In Petkovski v Galletti,[63] the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
[63]Supra
269 Thus, in the present case, I am required to compare the plaintiff’s back condition prior to the work duties, subsequent to the lifting incident, with her condition following performance of the work duties, and determine whether the additional impairment resulting from the work duties is serious and permanent.
270 Counsel for the defendant submitted that the medical evidence was of absolutely no assistance in that exercise.[64] As the plaintiff had not provided medical practitioners with a history of the speaker incident, she cannot successfully disentangle the consequences thereof from the consequences of her work injury.[65] It was submitted the real issue was that no one has delineated that there was an injury on the Sunday.[66]
[64]T73
[65]T75
[66]T75
271 My task of disentanglement in these circumstances is quite difficult and the test to be applied is somewhat artificial, comparing the plaintiff’s condition on the night of 2 October 2011 with her condition later that week after performing the work duties.
272 The plaintiff’s evidence is particularly important when determining this issue.
273 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[67]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[67](2010) 31 VR 1 at paragraph [12]
274 Counsel for the defendant submitted there were some real issues with the plaintiff’s ability as an historian but “it was difficult to suggest that she was deliberately doing so”. Reliance was placed on the plaintiff’s failure to give a history of the speaker incident to a number of examiners. Further, it was submitted that there were some inconsistencies in the plaintiff’s evidence as to the level of her activity such as housework.[68]
[68]T77
275 Counsel for the plaintiff submitted the plaintiff was a credible witness, who should be accepted as being honest and frank. She gave her evidence without embellishment and without overstating or understating her problems and symptoms.[69]
[69]T79
276 It was submitted that the plaintiff’s evidence about the weight of the speaker should be accepted because, at the end of the day, she admitted she hurt herself when lifting it, but she was well enough thereafter to go back to work. The plaintiff conceded readily that she had pain in the back and that that had not disappeared after the speaker incident.[70]
[70]T80
277 Further, the plaintiff’s symptoms in her right leg developed after work on the Monday. She did not recall having problems with her right leg on the Sunday. On the Tuesday, when she went to cross her legs, she felt severe pain.[71]
[71]T80
278 I accept the plaintiff was a frank and honest witness who gave evidence without embellishment. I accept her evidence as to the weight of the speaker and her prefer her account to the notes of Dr Ouyang, who said herself she was more focussed on treatment than the cause of the plaintiff’s injury. In any event, the Employer Claim Report Form referred to a speaker.
279 I also accept the other submissions made by counsel for the plaintiff in this regard.
280 In any event, whatever the weight of the speaker, the plaintiff did not require medical treatment immediately following that lifting incident, and attended work the following day to perform her normal her normal duties.
281 It was over the course of those days, confirmed by the plaintiff in her Claim Form and also the Employer’s Claim Report (which refers to a speaker), that she suffered increasing pain having attended to the first client.
282 Whilst their reports are silent on the role played by the speaker incident, most medical practitioners were provided with the lifting incident documents when asked to examine the plaintiff.[72]
[72]T79
283 Given my view as to the relatively insignificant nature of that incident and my findings as to the role played by the plaintiff’s work duties over the following days, the opinion of those examiners is still of assistance when considering the seriousness of the plaintiff’s compensable back condition.
284 Briefly, I am satisfied that the work-related aggravation is serious because of the plaintiff’s complaints of pain and restriction thereafter, her need for treatment and ongoing medication and the interference with her domestic and work activities as a result thereof.
Pain
285 As Maxwell P said in Haden Engineering v McKinnon:[73]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[73](supra) at paragraph [11]
286 I am satisfied that whilst the plaintiff initially suffered some back pain following the speaker incident, she had increasing back symptoms over the following days whilst she was engaged in heavy lifting at work, as Dr Ouyang confirmed.
287 The plaintiff also experienced right leg pain for the first time whilst performing this work – a problem she had not experienced after lifting at home.
288 I accept that since performing the work duties, the plaintiff has experienced ongoing lower back pain of varying severity, at times radiating to her thighs. Her pain is aggravated by activity and prolonged postures.
289 Whilst there was a significant flare up of her pain after working in March 2013, after a few weeks, the plaintiff’s pain settled down to its level prior thereto and has continued.
290 The plaintiff’s evidence as to her level of pain and restrictions was not challenged.[74]
[74]T83
Treatment
291 The plaintiff did not require or seek any treatment as a result of the speaker incident. She first attended Dr Ouyang on 5 October 2011, having engaged in heavy work for a couple of days.
292 The plaintiff continues under Dr Ouyang’s care.
293 The plaintiff underwent physiotherapy treatment from Colette McCarthy over two periods, initially from November 2011 until August 2012, and then several self-funded visits in late 2015.
294 The plaintiff was referred by Dr Ouyang to pain management specialist, Dr Taverner, in late 2012. It is unclear why she did not attend that appointment.
295 Whilst counsel for the defendant submitted the plaintiff gave different histories as to the level of her medication intake,[75] I am satisfied the plaintiff continues to take strong medication in the form of slow release Tramadol daily and also Panadol and Panadol Osteo tablets.
[75]T76
296 As counsel for the plaintiff submitted, five years of significant medication is a serious consequence.[76]
[76]See for example Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at paragraph [199], per Dodds-Streeton JA
297 In Kelso v Tatiara Meat Company Pty Ltd,[77] Dodds-Streeton JA said:
“Secondly, the reasons for judgment fail to deal at all with the issue of, and evidence concerning, the appellant’s persistent pain, to which he deposed in three successive affidavits, and on which he was cross-examined. The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[77](supra) at paragraph [199]
298 In my view, the major consequence of the plaintiff’s back condition is its effect on her work capacity.
299 Due to her back pain, the plaintiff is significantly limited in her ability to do physical tasks such as lifting, bending, pushing or pulling and she has difficulty with prolonged sitting and standing.
300 As medical practitioners have concluded, the plaintiff no longer has the capacity to perform unrestricted, physical manual work. She has no qualifications or work experience other than as a machinist and carer.
301 Whilst the plaintiff is certified, and has worked up to 27 hours a week,[78] she struggles to work these hours but tries to work as many hours as she can for financial reasons. She has to be very careful how she performs her limited duties. As her current general practitioner, Dr He, opined, the plaintiff is just managing at present with modified duties.
[78]T76
302 The plaintiff’s duties are restricted in accordance with Dr He’s certificates. Her work duties have to be approved by her manager. Accordingly, at times, very few hours are given to the plaintiff.
303 The plaintiff is also restricted in her household tasks. She can complete them but has to take her time and if she is feeling pain, she leaves them to another day.
304 Similarly, whilst the plaintiff can do some gardening, she requires special garden tools and requires assistance from WorkCover with mowing.
305 I am satisfied on all the evidence, that the pain and suffering consequences of the plaintiff’s compensable injury satisfy the statutory test.
306 Further, as the plaintiff’s back condition has persisted for in excess of six years with no significant improvement, I am satisfied her impairment is permanent.
307 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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