V

THE COUNTYAT MELBOURNECIVIL DIVISIONDA]VIAGF S AND COMPENSA TION LISTSER OUS INJURY DIVISION

IVANA ILIC

SELECT-O-PEDIC BEDDING PTY LTD

JUDGE:

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT

RevisedNot Restricted

Suitable for Publication

Case No. Cl-12-05579

Plaintiff

Defendant

HIS HONOUR JUDGE O'NEILL

Melbourne

26 November 2013

4 December 2013

llic v Select-O-Pedic Bedding Pty Ltd

[2013] VCC 1862

Subject:Catchwords

Legislation Cited:Judgment:

REASONS FOR JUDGMENT

ACCIDENT COMPENSATIONserious lnjury Application - lnjury to lower spine whether theconsequences as to pain and suffering are "very considerable" -whether plaintiff satisfies the test for G0 per cent loss of earningcapacityAccident Compensation Act 1985, s134ABLeave to the plaintiff to issue common law proceedings for pain andsuffering and loss of earning capacity

APPEARANCES:

For the Plaintiff

For the Defendant

Counsel

Ms A MacTiernan

Mr I Gourlay

Solicitors

Zaparas Lawyers

Minter Ellison

COUNfy COURT oF VICTORIA250 William street, Melbourne

HIS HONOUR

Preliminary

The plaintiff suffered injury to her lower spine in the course of her employment

duties with the defendant from August 2007 until she ceased work in March

2010. she has not returned to any form of employment since then.

She claims to suffer constant pain in her lower spine, aggravated from time to

time depending upon the activities in which she is involved, and that a range

of social, domestic and recreational activities have been curtailed or lost.

This is an application for leave to bring proceedings pursuant to

s134AB(16)(b) of the Accident compensation Act 1gg5 (,,the Act,') for injury

suffered in the course of the plaintiff's employment duties over the period from

2007 until 2010. The body function said to be lost or impaired is the lower

spine.

The application is thus brought under ss(a) of the definition of "serious injury,'

contained in s134AB(37) of the Act and leave is sought in respect of pain and

suffering and loss of earning capacity.

The plaintiff was the only witness called to give evidence and be cross-

examined. ln addition, two affidavits of the plaintiff, together with medical,

radiological and vocational reports were tendered into evidence. I shall not

refer to all of that material in the course of this judgment, but rather thoseparts of the evidence and reports which appear to me to be most relevant and

which I have relied upon in coming to the conclusions referred to later in thisjudgment. The statutory scheme set forth in the Act which prescribes andregulates applications of this nature, and the principal authorities of the Courtof Appeal, are well known and it is unnecessary for me to revisit the relevantsections, and those authorities.

2

3

4

5

1VCC:AS

I I ic v setect-o-ped ic r"r'rÏ&"#f äl

7

Relevant background

o The plaintiff was born in Bosnia and is now fifty-nine years of age. She was

educated in Bosnia and after completion of secondary school, learned

dressmaking and machining. She was married in 1g7S and has three

children. She worked on the railways in Bosnia, and as a seamstress.

Because of civil war, she left Bosnia and moved to Serbia. She came to

Australia in 1998 with her family and undertook some English courses. lnJanuary 2000, she commenced work with the defendant as a machinist

making mattresses. The nature of the duties is set forth in her affidavit.l

There is no challenge by the defendant to the causative relationship between

the plaintiff's employment and her lower back injury. Generally, she described

the work as "heavy", and required her to both sit and stand while sewing, and

operating large sewing machines.

She worked approximately 40 hours per week plus up to six hours overtime.

For the year ended June 2009, she earned $S0,g63.00 gross, or $g7g.00

gross per week.

I According to her affidavit, she enjoyed social contact with her fellow

employees2 and was actively engaged in a range of domestic duties, caring

for her family. she was houseproud and enjoyed domestic tasks. Her

husband suffered an injury to his foot when he fell from a roof and had some

time off work as a self-employed welder. He has now returned to work full

time.

The plaintiff did all the cooking and creaning for her family, washing and

shopping. she walked regularly, which she found particularly enjoyable.

10 She had been diagnosed with epilepsy, and did not drive a car for that reason.

The epilepsy was controlled by appropriate medication and did not affect her

work capacity. lt was her intention to keep working until retirement age.3

At paragraphs 3-26, Plaintiff's Court Book (',pCB,) 6_11PCB 13

PCB 22

I I ic v se tect-o-ped ic r".irTllgt#rtl,l

9

2VCC:AS

Neither the plaintiff nor her husband had significant savings nor

superannuation.

11 She was othenruise well, and in particular had no pain nor disability in her

lower spine

The injury and its consequences

12 The plaintiff first started to feel pain in her lower spine in2004 or 2005. She

also started to feel pain in her hands. For that reason, she left employment

with the defendant and obtained work with Seat Covers World in Clayton in

March 2005. She continued to work full time with that employer until August

2007 , and left because of substances in the atmosphere and noxious smells.

13 she returned to work for the defendant in August 2007, resuming her old

duties. she described the work as arduous and demanding and by February

2009, she attended her general practitioner, Dr pjesivac, complaining of aone-year history of pain to her elbows, wrists, left hip and right knee. Dr

Pjesivac diagnosed bilateral carpal tunnel syndrome. The first complaint of

lower back pain to Dr Pjesivac was in January 2010.

She was referred to various practitioners in relation to the problems with her

elbow, diagnosed as epicondylitis, which was successfully treated. she

suffers no ongoing problem in her erbows, nor wrists. she was also

diagnosed as suffering patello-femoral dysfunction in the right knee. To Dr

Pjesivac in January 2010, she blamed her lower back pain on repetitive

pulling and pushing at work. He reported a limited range of movement in the

lumbar spine.

14

15 ln January 2010, Dr Pjesivac referred the plaintiff for a CT scan of the lumbar

spine which showed diffuse bulging at L4-5 without neural compromise, facetjoint degeneration and mild narrowing at the exiting L4 nerve root. There was

I I ic v serect-o- ped ic r"ririi"#Íill3VCC:AS

16

17

1B

19

further degeneration at LS-S1.4

ln February 2010, Dr Pjesivac referred the plaintiff to Mr Brighton-Knight,

orthopaedic surgeon. He noted the plaintiff had what he believed to be

mechanical low-back pain, and a meniscal tear to the right knee. He did not

think that the low-back pain was of neurological origin. He arranged an MRI

scan of the spines which showed a broad-based L4-5 disc bulge to the right

side, contacting the right L4 nerve root, with possible impingement. Further,

there was a small Ls-S1 broad-based disc bulge contacting the right L5 nerve

root. He said that the MRI scan showed -"... more than lexpected in that it shows that she has LS nerve rootcompression in the exit foramen. This may well account for the pain thatshe has in her knee and therefore I have organised for her to have anerve root injection."6

Mr Brighton-Knight injected the area, which he said provided some relief. He

noted the plaintiff continued to have lower back pain, in particular at night.

He advised the plaintiff to undergo a microdiscectomy and nerve root

decompression, and provided her with written information about the risks of

the operation. She originally agreed to the procedure, but having considered

the material, decided against surgery.

The plaintiff was again reviewed by Mr Brighton-Knight in May 2012. onexamination, her lower back pain had increased, and the plaintiff complained

of a number of episodes of severe left-sided radicular pain going down to the

left foot, with symptoms similar to previous examinations. He suggested a

whole spine MRI scan and an MRI scan of the brain. The scan could not be

completed as the plaintiff could not tolerate being in the MRI machine. She

has not returned to Mr Brighton-Knight and has been advised he is no longer

treating WorkCover patients. I was informed by Ms MacTiernan, counsel for

the plaintiff, that an attempt had been made to obtain a more comprehensive

I ric v serect-o- ped ic r".iY.?r"#f l,l

4

5

6

PCB 47PCB 50

PCB 41

4VCC:AS

20

21

22

23

report from Mr Brighton-Knight, but he had refused to cooperate

The plaintiff has remained under the care of Dr Pjesivac through to the

present time. she sees him approximately monthly and he provides

prescriptions for medication and WorkCover certificates. At present, the

plaintiff takes Codapane Forte, for pain, and consumes about twenty tablets

each couple of months. she used to take panadol osteo, but stopped

because of stomach problems. she takes panadol, approximately ten per

week, and sometimes up to six per day when the pain is particularly bad,

ln January 2010, Dr Pjesivac provided the plaintiff with a certificate for two

weeks off work. She returned to mostly normal duties, but was unable to

continue because of back pain. She ceased work in March 2010, and has not

returned to any form of employment since. ln evidence, she said she felt

entirely unable to return to her previous duties, or to any other form of

employment, even light duties or part-time employment, because of the lower

back pain, and pain referred into the left leg.

ln 2010, a return to work plan was prepared by the employer with the approval

of Dr Chris Baker, an occupational physician, who saw the plaintiff in March

2010' According to Dr Pjesivac, the return to work plan was not appropriate

and it was reasonable for the plaintiff not to attempt to return, given that her

lower back and elbow pain disabled her totaily from all work.7

ln his report of 20 November 2013, Dr Pjesivac said the plaintiff consistenly

complained of unchanged lower back pain and left sciatica. she had areduced tolerance to sitting, standing and repetitive bending. He confirmed

that she was disabled for all work, and that situation would remain for the

foreseeable future. He noted the plaintiff was depressed and requíred

psychotherapy. He said she would need ongoing analgesic treatment and

7

5VCC:AS

PCB 28

I tic v setect-o-ped ic r".',Y,io#f |,1

24

that her prognosis for work was poor.8

According to the plaintiff's affidavit, and evidence, she complains of the

following ongoing consequences of injury:

constant lower back pain, and referred pain into the left buttock and

thigh. on occasions, the pain is exacerbated and she is unable to leave

the house.

o

a

a

a

o

a

The pain requires the taking of medication, including codapane Forte

and Panadol

she is unable to return to her previous duties, or any other form ofemployment. she misses the social interaction with fellow employees.

she has been unable to resume her domestic duties which she enjoyed

and of which she was proud. she needs the assistance of her husband

and children, in particular in relation to heavier duties such as

vacuuming, hanging out the washing and bending down to empty adishwasher.

she is unable to walk in the manner she enjoyed before injury, which

was a pastime she enjoyed

Her back pain stops her having a proper night's sleep. she tosses and

turns and cannot get comfortable. she wakes and is tired the next day.

As a result, she has reduced energy levels.

she has seen a physiotherapist over a considerable period of time

Sitting or standing for longer periods causes back pain.

Although she sees her grandchildren, now aged three and six, regularly,

she is unable to interact with them in the manner that she would wish. ln

a

o

I

6VCC:AS

PCB 36-37

I I ic v setect-o-ped ic r".'oïrtn"#rtiil

particular, she cannot pick them up

25 ln the course of cross-examination, the plaintiff said that she goes to see her

daughter, who lives not far away, three to four times a week. She is driven by

her husband or son. She helps her daughter look after the two grandchildren.

She walks with them, watches television and takes them to local parks. She

enjoys this interaction as it gets her away from her house, and takes her mind

off her pain. lf her back is particularly painful, she does not leave the house.

The medication she takes helps, and at times the pain gets down to a

manageable level.

26 She admitted that she had not made any attempts to find work since March

2010, either of a part time or of a light nature. lt was put to her that she was

not pursuing work options as she was content to assist her daughter in looking

after the grandchildren. She denied this and said she missed work and had

not retuned to the workforce because she felt unable, with her back pain and

restrictions, to complete any work duties. lf anything, her back pain had

become worse.

Credibility of the Plaintiff

27 I found the plaintiff an impressive witness giving a fair account of the injury to

her lower back, and the consequences that she suffers as a result. She made

the concessions I would expect of an honest witness in the course of cross-

examination. I did not detect any attempt to exaggerate her restrictions nor

symptoms.

28 Video surveillance of the plaintiff was shown depicting various activities in

September 2012 and November 2013. The plaintiff was shown to walk

around a shopping centre and suburban streets in a relatively normal manner.

At one point, the plaintiff was seen to lean into the backseat of a car to assist

to secure her granddaughter. That aspect of the video surveillance was only

momentary. The surveillance did not impeach the credit of the plaintiff. There

I I ic v se tect-o-ped ic t"r',Yflo#rtiïI7VCC:AS

was nothing ¡nconsistent between what was depicted on the surveillance and

the evidence of the plaintiff and the histories provided to the various medical

practitioners.

Consultant medical opinions

29 The plaintiff was examined in 2011 and 2013 by Mr Charles Flanc, vascular

and general surgeon, at the request of her solicitors. ln the most recent

report, Mr Flanc said the plaintiff complained of constant low-back pain, at

times extremely severe. Further, the plaintiff had pain in her left leg, more

severe over the last year, radiating down the back of the leg and into the toes

of the left foot. He noted the plaintiff walked without difficulty. He noted the

MRI reported disc bulging at L4-5 and possible compression of the right L4

nerve root. He concluded the plaintiff had suffered an aggravation of

underlying degenerative disease in her lumbar spine in the course of her

employment. He said there was the possibility of nerve root impingement

given her left leg pain. He said there were some non-organic factors present,

possibly associated with a Chronic Pain Syndrome. lt was clear the plaintiff

would not be able to return to her pre-injury duties and although in his first

report he thought the plaintiff had the capacity for part{ime light duties,

because of the worsening of her condition, he thought she may have a"theoretical" capacity for certain tasks, to be performed three hours a day on

alternative days, but that realistically, the plaintiff was unemployable.

30 The plaintiff was examined by Mr Justin Hunt, orthopaedic surgeon, in June

2011. He saíd the plaintiff was suffering mechanical low-back pain due to

symptomatic lumbar spondylosis. He said she could not return to her pre-

injury employment and although it was possible she may be able to perform

alternative duties, those duties would be restricted so that she should avoid

lifting, bending or twisting, squatting, kneeling or sitting for long periods or

performing repetitive movements. He said it would be difficult for her to find

such alternative duties. He said her domestic and daily activities were

IVCC:AS

I ric v serect-o- ped ic r".rJ,Y.ono#f ill

31

32

33

restricted

The plaintiff was examined by Mr Kevin siu, neurosurgeon, in May zo1z. she

complained to Mr Siu that she was unable to get a good night's sleep and she

suffered cramps in bed which woke her up. He said the MRI scan of 2012

showed disc prolapses at L4-5 and L5-S1. He said there was compression of

the right L5 nerve root. He said the plaintiff was not fit for her pre-injury duties

but was fit for alternative duties. He suggested she undertake physiotherapy

and attend a spinal rehabilitation centre. He said the prognosis was guarded,

although there was the prospect for a return to lighter duties after intensive

rehabilitation.

The plaintiff was examined on behalf of the defendant by Mr Bruce Love,

orthopaedic surgeon. She complained to that practitioner of constant low-

back pain, although she was relatively comfortable for the majority of the time.

The pain at night was worse and there was referred pain into her left leg to the

knee. The plaintiff said she could not cope with the housework without

assistance. He said the MRI scan of 2012 showed degenerative disc disease

at L4-5. He concluded that the work duties made the underlying disc disease

painful. He said the plaintiff was unable to return to her pre-injury duties and

that he did not believe that she was capable of working in alternative duties for

the foreseeable future. He said he did not detect any abnormal illness

behaviour nor functional overlay.

A vocational assessment report prepared by Ms Leonie schneider was

tendered. I did not find the report of any significant assistance. Ms Schneider

concluded that the plaintiff had no current work capacity for pre-injury

employment, or any other suitable alternative employment. ln my view, the

assessment of work capacity lies with the physical medical practitioners.

The plaintiff was examined by Dr chris Baker in March 2010. He noted acomplaint of six years of back pain which the plaintiff had attributed to her

I I ic v se tect-o- ped ic r"r'.iit#rti.lI

VCC:AS

34

work-related activities; however, he said there was a lack of evidence to

indicate that her back condition was work rerated, There were some

degenerative changes in her lower spine but without radiculopathy. I do not

accept the opinion of Dr Baker. He is the only practitioner to find no causal

link between employment and injury. Mr Gourlay, for the defendant, quite

appropriately in my view, did not seek to rely on his opinion.

35 Finally, the plaintiff was examined by Mr Michael Dooley, orthopaedic

surgeon, in June 2013. He noted ongoing lumbar spine pain, at times

radiating to the left leg and the toes of the left foot. The plaintiff said that she

was unable to do the heavier aspects of household work and that she missed

the social contact her work previously provided. He concluded that she was

suffering age-related degenerative disc disease mainly at the L4-S level. He

accepted that that underlying disease was aggravated by her work activities.

He thought the constancy and intensity of the ongoing pain was greater than

he would have expected. He believed the plaintiff had a psychological

reaction to her situation, including having to cease work, which influenced the

ongoing symptoms. He suggested she remain generally active and undertake

regular low-impact exercise. He thought there was no objective evidence of

neurological deficit and no indication for surgery. He said he would expect the

plaintiff to have ongoing intermittent low-back and left leg pain. The plaintiff

had a capacity to carry out light physical work such as clerical duties. He said

there were no objective signs of abnormal illness behaviour.

Conclusions

36 I accept the opinion of most of the medical practitioners that in the course of

her employment duties, the plaintiff suffered an aggravation of underlying disc

degenerative disease, in particular at L4-5 and, to a lesser extent, at L5-S1. I

further accept the evidence of the plaintiff that she suffers pain into her left

buttock and thigh, and on occasions, further down the left leg. I accept this isrelated to compression, probably of the right L4 nerve root. This was the

I ric v Serect-o-ped ic r".iY.?n"#FillVCC:AS

10

basis upon which Mr Brighton-Knight contemplated surgery at an earlier time

37 Accepting the plaintiff as an honest witness, I accept her complaints of pain in

the back and into the left leg and accept the consequences of that pain which

requires her to take medication on a regular basis, significantly reduces her

capacity to undertake a range of domestic duties, and affects her sleep.

38 ln my view, these consequences of injury do achieve the "very significant"

barrier which the Act prescribes.

39 The situation in relation to the plaintiff's work capacity is somewhat more

complicated.

40 I was impressed by the reports of the plaintiff's general practitioner, Dr

Pjesivac, who has treated the plaintiff over many years, and, in my view, is

well placed to assess her work capacity. He said the plaintiff had a reduced

tolerance for sitting, standing and repetitive bending, and that she was

disabled for all work for the foreseeable future. The plaintiff has only ever

worked in manual employment, in particular as a machinist, and such

restrictions would make any form of employment in that area particularly

difficult.

41 Mr Flanc, who saw the plaintiff on two occasions, thought she had a

theoretical capacity for lighter duties, performed three hours a day, but was

realistically unemployable,

42 Mr Hunt said the plaintiff had a capacity to perform some alternative duties,

providing she avoided lifting, bending or twisting, or performing repetitive

movements. Again, for a person whose employment experience has been

largely as a machinist, she would have no realistic capacity for work in that

alea.

Mr Siu thought the plaintiff was fit for alternative duties, but required

physiotherapy and intensive rehabilitation

I I ic v se tect-o-ped ic r"rJ,Y&o#f l,lVCC:AS

43

11

44 Mr Love, who examined the plaintiff for the defendant, said the plaintiff was

not capable of pre-injury duties, nor alternative duties.

45 Mr Dooley thought the plaintiff had the capacity for light physical work such as

clerical duties

46 Mr Flanc made reference to some non-organic features in the plaintiff's

presentation, and Mr Dooley said that the lumbar spinal pain of which the

plaintiff complained was greater than he would have expected in the

circumstances, however did not find objective signs of abnormal illness

behaviour. lf the plaintiff suffers some functional component to her physical

pain, in my view, it is modest, and I accept that ovenruhelmingly the pain in her

back and left leg and the restrictions which she suffers, have a physical basis.

47 ln considering the plaintiff's work capacity, I bear in mind the matters to be

taken into account in the definition of "suitable employment" referred to in s5

of the Act, in particular the plaintiff's age, education, skills and work

experience. I prefer the opinion of those practitioners who are of the view the

plaintiff has little, if any, work capacity. she may be able to perform

alternative light duties for some hours per day, several days per week, but that

ability is modest only, and in my view, the effect upon her work capacity as a

result of her injury exceeds 40 per cent as the legislation requires, and

significantly so.

48 I reject the submissions of the defendant that the plaintiff has not pursued any

form of employment or in fact applied for any jobs as she is content to spend

her time assisting her daughter with her grandchildren. I accept the plaintiff's

evidence she enjoys that interaction and it "gets her out of the house" and that

it does not involve any strenuous activity. The plaintiff has a strong

employment history and I accept she and her family are not so well off as to

allow her to retire. I accept her evidence she misses her former work and the

company of her colleagues.

I I ic v se tect-o- ped ic t".',Yr?n"#f iïlVCC:AS12

49 I am of the view therefore that the plaintiff meets the statutory test, both in

respect of pain and suffering and loss of earning capacity, and I will make

orders accordingly.

I I ic v serect-o-ped ic t"olYrono#f ll5VCC:AS13

COUNTY COURT OF VICTORIA

CIVIL JURISDICTION RESULT SHEET

Gase lD: Cl - 12-05579

Case Description : llic v Select-O-Pedic Bedding Pty Ltd

Event Type : Serious lnjury Application (S.13448 of the AccidentCompensation Act 1985)

Judge:

Date Of Order :

Appearances

Plaintiff :

Defendant:

O'NEILL

4 December 2013

Ms A MacTiernan

Mr I Gourlay

1

ORDER

2.

Serious lnjury Result:Leave to the plaintiff pursuant to S.134AB(16)(b) of the AccidentCompensation Act 1985, to bring proceedings for:(a) pain and suffering damages and(b) loss of earning capacity damagesin respect of injury to her lower spine arising out of the course of the plaintiff'semployment with the defendant.

Costs :

Defendant pay the plaintiff's costs, including any reserved costs, pursuant tothe workcover (Litigated claims) Legal costs order 2010, to be agreed orfailing agreement to be determined by the Costs Court.CERTIFY fee upon brief for counsel for the plaintiff in the sum of $3g50 plustwo hours of special conference at $395 per hour

Liberty to ApplyThere be liberty to the parties to apply in relation to the terms of these ordersand as to the question of costs.

3

Gerald Walker Associate to His Honour Judge O'Neill

I lam returning the file.

! I am retaining the file for the following reason :

THIS SECTION MUST BE COMPLETED