FVI Revised(Not) Restricted
Suitable for Publication
Case No. Cl-12-04U1
Plaintiff
Defendant
Solicitors
Adviceline lnjury Lawyers
Minter Ellison
V
AT MELBOURNEclvtl" DtvtstoNSERIOUS INJURY
CLARE MARIA IACONO
STATE OF VICTORIA
JUPGE:
WHERE HELD:
DATE OF HEARING:
DATE OF JUDGMENT:
ÇASE MAY BE CITED AS:
MFpr uM |IEIIIBAL CTTATTON :
Subject:
Catchwords:Legislation Cited:Cases Cited:
Judgment:
APPEARANCES:
For the Plaintiff
For the Defendant
HER HONOUR JUDGE LAWSON
Melbourne
21 October 2014
24 October 2014
lacono v State of Victoria
Í2014IVCC 1724
REASONS FOR JUDGMENT
Accident compensation Serious injury permanent seriousimpairment or loss of body function - cervical spine.Pain and suffering consequences.s 1 34AB(16Xb) of the Accrde nt Compensation Acf 1 985Haden Engineering Pty Ltd v McQnnon [2010] VSCA 69; Suffon vLaminex Group Pty Ltd (2012) 31 VR 100; Aburrow v NetworkPersonnel l2013l VSCA 46; Dwyer v Calco [Tímbers] Pty Ltd (No 2)
[2008]vscA 260.Leave granted to the Plaintiff to commence proceedings.
Counse!
Mr G Coldwell
Mr lGourlay
COUNTY COURT OF VICTORIA250 William Street, Melþourne
HËR f.ICNOIJR:
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Cfare lacono, SpecÍal Education Teacher, brings this application for leave toproceed in respect to ínjury suffered during the course of her emptoyment on
25 July 2001.
It is not in díspute that on 25 July 2001 the Plaintiff suffered a compensable
injury to her neck as a consequence of striking her head on a low hanging
branch of a tree located in the Spensley Street Primary Schoot grounds whilst
she was on yard duty with her class cleaning up an area of a paved courtyard.
she was diagnosed as suffering from soft tissue injury to the neck and post-
concussion syndrome ("the compensable injury").
As a consequence of the injury Ms lacono claims that she suffers impairment
to her cervica! spine and seeks leave to proceed tc recover damages
pr.u-suant to s'!344.8(16Xb) cf the Accident Gompensa tion A.ct 1gg5 (,'the Act,,).
f n the application she relies upon ân impairment of the function of her cervical
spine as satisfying paragraph (a) of the definition of 'serious injury' contained
in s134.AB(37) of the Act.
The claim ís timited to pain and suffering cansequences on!y.
At the outset, both counsel conceded that this is what is colloquially known as
ä "range case",
The Plaintiff was the only witness to give evidence and be cross-examined.
As is usual in this type of application the parties each tendered affidavits,
medico legal reports and a Medical Panel opinion that were exhibited.
A short amount of surveillance film totalling 13 minutes and 29 seconds was
shown, relating to one day,23 November 2013.lt showed the Plaintiff driving
her car, attending the supermarket wíth one of her sons, crossing a busy road,
attending the JAG clearance warehouse and sitting in a hairdresser's chair.
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The Plaintiffs main complaint is of chronic ongoing neck stiffness and pain. At
times during the film the Plaintiff was shown moving her neck from side to side
without any obvious restriction.
I prefer to rely on the evidence of Dr Lipson her long term General
Practitioner, concerning the nature of the Plaintiffls complaints and its effects
rather than to draw any inferences adverse to the Plaintiff from such a short
snap shot of activities taken on the one occasion.
There was nothing that was shown on the video that undermined the Plaintiffs
credit. I have had regard to the totality of the evidence and find that Ms lacono
was a credible, truthful and reliable witness.
Ms lacono's evidence-in-chief was set out in the three affìdavits filed in
support of her application sworn on 15 May 2012. 1 November 2013 and 14
October 2014.
The factual background is not in dispute. Ms lacono was born on 5 January
1959 and is aged 55 years. She is married and has four adult male sons aged
between 20 and 30 years. One son lives in Vietnam and the other sons live at
home. One of her son's has an intellectual disability. The Plaintiff successfully
completed secondary school and then undertook one year of kindergarten
teaching followed by some travel. She then obtained a Diploma of Teaching
and graduated in 1980. She worked until she commenced her family. ln 1992,
she returned to full-time work and completed a Graduate Diploma in Special
Education. She obtained a job in the Social lntegration Unit at Heidelberg
Heights Primary School, where she worked with children with social and
behavioural problems for six years and, then worked at Coolaroo Primary
School on a short-term contract before she commenced full time at Spensley
Street Primary School in 2000 as a Special Education teacher.
Ms lacono presented as a very impressive witness who did not seek to
embellish or overstate her level of disabiliÇ. She has, for many years,
JUDGMENTlacono v State of Victoria
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followed diligentfy the advice of both the physiotherapists ancl doctors who
continue to manage her ongoing synlptoms. She has applied their advice to
her daily school routine in order to continue in her role without aggravating her
condition.
After six months absence from work, the Plaintiff returned to work in
September 2001 initially on reduced hours with assistance. She returned to
unassisted teaching in 2003 and built up to nine days per fortnight.l Her role
changed to Literacy $upport.z
currently, she takes medícation fcr pain, Lyrica (100 mg per day) and panadol
osteo with Nexium to manage gastric upset related to the use of her
medication.3 She continues to have intensive physiotherapy.4
The Plaintiff deposes in her first affidavit to having some health issues pr-ior tc
the compensable injury. she suffered headaches on a regular basis. she
explained ir¡ her evidence that those heaciaches were cyclical anci were
related to her hormonal eycle.s Those headaches setiled down with
$andamigran and HRT treatrnent.6
! aceept her evidence following injury that the nature of the headaches
changed and those headaches åre more intense than the ones previously
experienced. This is consistent with the clinical observations of Dr Lipson,
Dr Lipson saw the PlaintÍff following injury. lnitiafly, there were concerns about
her cognitive functioning. Dr J Sturm, Neurologist, reviewed her and ordered
further examinations and referred her for a neuropsychologícal assessment.
No brain injury was detected.
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Dr Lipson continues to manage and treat the Plaintiff conservatively
prescribing pain relief for the neck pain and stiffness with referral for intensive
physiotherapy therapy. 7
He has provided a number of reports. Dr Lipson has had the very real
advantage of having reviewed Ms lacono over many years. He attended her
before and after injury. The Plaintiff has consistently complained to him of
cervical tenderness and stiffness following injury. No neurologícal signs have
been evident.
Dr Lipson referred the Plaintiff to Dr M Tellus, Rheumatologist, who arranged
a CT scan of the neck that excluded significant pathology.
Dr Tellus considered that the Plaintiff suffered soft tissue neck syndrome
causing chronic pain.8
Dr Lipson documented that the Plaintiff's initial progress was poor with
continuing complaints of headaches, dizziness and poor concentration.
Treatment involved rest, physiotherapy and medication. He states, in a report
dated 8 July 2013, that:
"There is no question [the Plaintiff's] neck pain and stiffness as well asfrequent headaches relate to her work injury in 2001. She did not havesignificant symptoms prior to the accident."
He stated that over the past 12 months the neck pain and occipital headaches
increased in frequency. He attributed this to a change in the Plaintiffs job
whereby she was spending longer hours seated with her neck flexed teaching
literacy in the classroom.
He confirmed that the increase in the Plaintiffs pain has resulted in increased
reliance on medication, including Endep, Lyrica and Celebrex. This led to an
JUDGMENTlacono v State of Victoria
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increase in gastro and intestinal syrnptoms, including epigastric discomfort
and bloating.s
ln his latest report dated 16 Octobe r 2014 he stated:
"Ms lacono has continued to sr-rffer with neck pain and occipitalheadaches. This conilnues to rest¡.ict hei, both in terms of hei- work,'andactivities of daily living. she is reliant on medication, namely, Lyrica andPanadol, as well as regular physiotherapy.., Fudhãrmore, because ofthe previous extensive use of celebrei to treat her condition, shedeveloped gastritis which was confirmed by gastroscopy in reuruãry2414. She remains on Nexium to treat thÍs piob]em.,,1o
He has confirmed that the Plaíntiff has a chronic condition with no likelihood ofrecovery into the foreseeable future. The Plaintiff is restricted in her work
capacity involving a nine day fortnight and restrictions on report writing. The
ergonomics of her workplace require ongoing diligent review.
Dr Michelle Tellus, consultant Rheumatologisl, also has had a long-term
therapeutic relationship with the Plaintiff. She first reviewed her on 7 May
2003 and has continued to see lrer up until recently. The piaintiff beiieves that
she last saw her in late 2t12.11
When examined by Dr Tellus on 7 May 2OA3, exarnination of the cervical
spine revealed full range of movement in all directions and examination of the
shoulders, eibows and hands were aiso normal, including the neurological
examination. There were some muscle spasms detectable in the cervical
spine.
Dr Tellus concluded that the Plaintiff developed a soft tissue pain syndrome
since the incident at work. She recommended a course of rehabilitation.l2
The report of an MRI of the cervieal spine ordered by Dr Tellus performed on
5 June 2003 states that there was a moderate right paracentral G5-6 disc
protrusion which was not evident on a CT scan which had been undertaken
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à JUDGMENTlacono v State of Victoria
VCC:SA
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prev¡ously. lt was causing a mild central canal stenosis and was most
prominent at the right C5-6 level. Disc bulges were noted at C3-4 and C4-S,
which were non neural compressive and had been seen on the prevíous CT
scan.
Dr Tellus referred the Plaintiff for rehabilitation,
when reviewed on 21 November 2007, Ms lacono reported that she had
undergone a program through Olympia Pain Management Centre but did not
have a very good experience with the program. she was taking Endep (sOml
per night), which helped her with her cognition and sleep pattern and was
attending weekly yoga sessions.
35 On that occasion Dr Tellus's examination revealed no abnormality or
abnormal neurological signs in the upper limbs or lower limbs but, once again,
the Plaintiff had very tight mid cervical neck muscles with spasm evident. Her
movement was restricted in all directions of the cervical spine.13
36 Dr Tellus advised acupuncture and a soft tissue massage with manipulation of
the spine and discharged the Plaintiff back to the care of her general
practitioner.
37 She further reviewed the Plaintiff on 22 December 2011, foltowing an
aggravation of symptoms due to a fall in a car park.
38 Dr Tellus confirmed that the Plaintiff was taking Lyrica (25m9 nocte), which
helped with sleep and radicular pain. She complained of occasional occipital
headaches from the neck and was undergoing physiotherapy with success.la
39 On 16 May 2013, Dr Tellus reassessed the Plaintiff. This was following Ms
lacono changing her role in the workplace to literacy teaching, where she was
PCB 54PCB 56
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req{l¡red to sit for long periods of time, looking downwards rearling a lot.
while she enjoyed the role significanily, it aggravated her coridition.
Dr Tellus recommended Lyrica (7smg nocte), Nexium (20mg daily) and
Celebrex (100m9 daiiy), to increase the Panadol Osteo to two tablets at night.
She recommended that the Plaintiff continue in her role as a literacy teacher
with ergonomic assessrnent to try and facilitate reduction in neck flexion so
that the Plaintiff was not looking downwards but rather looking in a more
horizontal plane that would reduce pressure on ihe neck and thereby
hopefully relieve some of her symptoms. At that time, the plaintiff was
describing gastrointestinat symptoms.l 5
Recently, a dispute about payment of ongoing physiotherapy expenses was
referred to the Medical Panel. The Medical panel's opinion, dated 4 August
201.4, is that the Plaintiff is suffering from neck dysfunction and paln due to
aggravation of cervical spondylosis with referred symptoms, including
headaches (but no clinÍcal radiculopathy or myelopathy components) relevant
to the claimed neck injury.16
The Fanef's confirmed opinion is that the PlaíntÍff has an incapacig for work
(an inahility to re-turn to her pre-injury employment for her pr"e-injury hours!.
Further, they stated that the Plaintiff could not remain at work if physiotherapy
{up to 16 sessions per year), appropriate analgesics, anti-ínflammatory and
pain medication (as determined by her treating generai practitioner) and
general practitioner consultations (at a frequency to be determined by her
general practitioner) were noi provided.lT
Mr Gourlay, on behalf of the Defendant, accepted that the Medical Panel
decision was a good summary of the bulk of the evidence in this application.
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JUDGMENTlacono v State of Victoria
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The general consensus of the medical opinion upon which the Plaintiff relied
is that, as a consequence of the ínjury at work, Ms lacono suffered neck pain
and headaches as a consequence of aggravation of cervical spondylosis.
Professor Richard Bittar, consultant Neurosurgeon, examined Ms lacono on
18 May 2013 at the request of the Plaintiffs solicitors. He recorded her current
symptoms. Those symptoms are consistent with the Plaintiffs evidence. They
are:
"1.Neck pain
This is located in the posteríor cervical region and is generally dull, withsharp exacerbations. Her neck pain is present almost all of the time andradiates into the occipito cervical region, to both shoulders, and into theinterscapular region. The severity of the neck pain varies from 2-8 out of10. Her neck pain is exacerbated by cervical spine flexion, extension ofthe neck, and maintaining the neck in a position other than a fairlyneutral one. lt is also exacerbated by repetitive neck or upper limbactivity and lifting more than four to five kilograms.
2.Headaches.
These are located in the occipito cervical region and vary in severity withthe neck pain.
3.Occasional right arm pain.
She also experiences some pins and needles in the right hand when sheexperiences aching in the arm."18
In his opinion, the Plaintiff suffers from the following:
"l.Aggravatíon of cervical spondylosis with ongoing neck pain.
2. Cervicogenic headaches."l e
He recommended that Ms lacono continue with her current treatment regime,
that is, physiotherapy every one to two weeks, Lyrica, Gelebrex and Panadol
Osteo and that she requires medication on a daily basis. He recommended
review by a Pain'Management Specialist. He noted that Celebrex has been
discontinued because it upset the Plaintiffs stomach'
JUDGMENTlacono v State of Victoria
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48 [-{e confirmecJ that the Flaintiff's symploms are likety te.: renrain relatively stablein the long,term.2o
Ptofessor Bittar consídered that the Plaintiff remained partially incapacitated
for work as a result of her work-related cervical spine condition and that she
currently worked in a suitable role on sfightly reduced hours.
)U M¡- Thomas Kossmann, orthopaedic sui'geon, reviewed the piaintiff on iOctober 2013 and 17 June 2014 at the request of the Plaintiffs solicitors. He
diagnosed the Plaintiffs condition as an aggravation of cervical spondylosis
related to her work injury. He considered that the present condition is still
related to the compensable injury.21
51 He confirmed that the Plaintiff will require further conserva.tive treatment with
pain medicaiian, anti-inflammatories, physiotherapy, hydretherapy, and
possibÍy acupuncture. He did noi consider that she is a candidaie for surgery.
52 He confirmed the diagnosis at the secçnd review as being discogenÍc and
mechanic pain of the cervical spine on the basis of C5-6 disc pathology with
narrowing of the disc and possible foraminal stenosis, posterior osteophyte
formation at G4-5 and c5-6 leveis with c5 radicular displacement.22
53 Mr Kossmann !ì/as not cross-examined and there is no specífíc indication in
his report as to why he expanded the diagnosis in his second report. I accept
his findings on the face of it, having regard to the fact that he had the
opportunity of reviewing the lvlRl taken on g Decernber 2Ð11, which shows
that the Pfaintiff is suffering from degenerative changes of the cervical spine.
Defence rnedi cal material
54 [t/ls lacono was reviewed by a number of medico-legal specialists on behalf of
the Defendant.
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She was seen for assessment by Mr John Lloyd, Neuropsychiatrist, on 12
November 2002 and Professor Simon Crowe, Neuropsychologist, on g August
2013"
Both doctors' reports confirm that as a consequence of the injury, Ms lacono
suffered an uncomplicated mild traumatic brain injury.
Mr Lloyd considered that there was no evidence of significant head injury and
investigations failed to reveal the presence of any brain damage.23 He
considered that ongoing symptoms were consistent with a psychological
response to the injury.
Professor Crowe, on comprehensive assessment of cognítion, found that the
only demonstrable deficit that featured was a mild compromise of processing
speed-24
He believed that the deficits the Plaintiff features with a mild attenuation of
processing speed came about as a consequence of her emotional response
to the injury, characterised by her somatisation state, as well as previously
noted chronic adjustment disorder with anxious mood previous averted to by
the Medical Panel's report.2s J do not have the report so I cannot comment on
that aspect of his expressed opinion.
Mr Daryl Nye, Neurosurgeon, examined the Plaintiff on two occasions on 22
November 2005 and 15 October 2013. He accepted that as a consequence
of the injury the Plaintiff sustained a non-concussive minor head injury
possibly associated with an extension injury to the cervical spine.
He considered that the head injury had recovered completely and accepted
that there may have been some aggravation of pre-existing degenerative
disease in the cervical spine consequent upon injury. He did not consider
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there was any evidence to suEgest that either injury has been responsible forany structural neurofogical injury or resulting pathology.26
He considered the protracted continuation of the Plaintiff's symptoms to be areflection of reaction whích, in his opinion, is, in the maín, psychological andexacerbated by lack of coping ability.
êf the second revieur', Mr' fJye had the advantage of reviewing radiologicaimaterial, including MRI scans of the cervical spine undertaken on 5 June2003, 4 December 2007 ancl the cr scan of the cervical spine on lsNovember 20OT,
He confirmed, in respect to the cervical injury, that an extension injury to the
cervical spine mav have accCImpanied the incident at work with aggravation of
miid cervical degenerative change which, over the years, has shown miid
progression consisteni with the natural process anci this is unaccompanied by
evidence of radiculopathy oi iriyelopathy.
He, again, expressed the opinion that the continuing symptoms reported
reflected a psychological reaction and a development of chronic pain
Syndrome.2T
He agreed that the Plaintiff's condition had stabilised. Accepting aggravation
of cervical degenerative disease resulting from injury with continuing
symptoms, he agreed that there was a degree of incapacity for employment
contributed to by the injury,28 l.lonetheless, he considered that the plaintiff
has no physical incapaeity that would prevent her from undertaking her pre-
injury duties.
He did, however, state in respect to her physical condition affecting the
cervical spine, that there were restrictions, that is, avoiding use of arms in an
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overhead manner and a lifting limit of five kilograms would be appropriate.
Such should not be conducted to above shoulder height.2e
He agreed that current treatment was appropriate and there was no indication
for surgery.
Dr David Elder, consultant in the speciality of Occupational Medicine,
examined the Plaintiff on 16 December 2003 and 15 August 2013. Following
his reviews, he considered that the Plaintiffls condition was stabilised.
He noted that the PlaÍntiff had been found by a Medical Panel to be suffering
from "non-specific neck pain in the presence of imaging evidence of
degenerative change with referred symptoms to the upper extremities and
headaches but without clinical evidence of radiculopathy".30
He did not consíder that.the Plaintiff had any incapacity for work and stated
that she had a full capacity for work with no need to consider any alternative
duties or retraining. He considered that significant psychosocial aspects
affected her ongoing complaints.3l
The medical material relied on by the Plaintiff supports a finding that she has
a genuine, organic injury and that she suffers discogenic neck pain with
cervico-occipital headaches. ln contrast, the material relied upon by the
Defendant whilst acknowledging the possibility that she may have suffered an
aggravation of her underlying degenerative cervical disease as a
consequence of the injury, supports the contention that any ongoing
symptoms are in the main psychological.
Having regard to the totality of the evidence and, in particular, my acceptance
of the Plaintiffs evidence concerning the nature of her injury and its ongoing
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consequences, I am satisfi*cl on balance that she suffered a neck injury as a
con$equence of the incident at work on 25 July 200"1.
74 The injury has been described as being an aggravation of underlying
degenerative disease namely, ce¡vical spondylosis with ongoing neck pain
and cervicogenic headaches.
7s I am satlsfied that the injury ís permaneni in ihe ielevant sense
I am satisfied that as a tCInsequence of the injury, the Flaintiff suffers
impairment to the function of the cervical spine.
f am satisfied that the Plaintiff suffers the consequences as described in her
three affídavits and that she has suffered significant impacts on her social,
recreational and employment activities in the manner described.
78 I am satisfied that the Piaintiff suffers from a painful and stiff neck with referral
of pain inio her shoulcier blades. As a consequencë, the Plaintíit experiences
difficulties turning her neck or holding it in a fixed position for extended
periods. This impacts upon her ability to be able to perform her work. The
Plaintiff has had to take steps to ensure the ergonomic set-up of her
workspace is appropriate. .She has modified her i¡rork such that she is no
lcnger working fulf-time. She works a nine day fortnight.
7S Ms lacono has had to reduce her involvement at the school insofar as extra-
eurricular aetivities and, as a consequence, has not been able to seek
promotion.
80 I accept that she has experienced chronic pain that has required treatment by
way of medication and extensive physiotherapy.
81 She is dependent on taking her medication to remain at work and to function
generally. She takes Lyrica (100m9 per day) and Panadol Osteo for relief and
is also required to take Nexium for gastric problems associated with
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medication. she has ongoing physiotherapy treatment every fortnight and
occasionally weekly to ensure her symptomatology is controlled such that she
can continue in her role as a literacy teacher at school.
I accept that she continues to work a nine day fortnight with difficulty. The
Plaintíff has now resumed studying part-time for her Masters in Learning
Disability studying two evenings per week for three hours, and her intention is
to be able to up-skill so that she can reduce her hours but be paid at a higher
rate, so that she can manage a reduction in her workforce participation
without consequential fi nancial loss.32
I accept her evidence that she now experiences worse symptoms and that her
efforts to remain at work and study part-time this year have caused her pain
levels to gradually increase and that she is now struggring to cope.t3
I accept that she experiences pain every day which fluctuates in severity and
sometimes the pain is such that she must rest. She experiences ongoing
neck and upper back spasm and experiences sleep disturbance because of
pain and discomfort.
As a consequence of her condition, she experiences difficulty when driving
longer distances and this has impacted upon her ability to be able to tend to
her elderly mother who lives in East Bentleigh.
She experiences difficulty with housework. She cannot mop or vacuum and
has to pay a cleaner or ask family members to clean. She has the assistance
of her son with cleaning and also to help with heavier shopping. She is limited
with what she can do in the garden.
She has a limited ability to be able to undertake exercise. She has stopped
going to the gym which she used to attend three times a week prior to injury.
She swims but can no longer do freestyle. Her ability to exercise is limited to
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light jogging or walking in her local area. She tries to jog for four or five
minutes and then walk for another 10-30 minutes, dependirrg on her pain
tolerance. She loved hiking pre-injury but experienced problems of increased
pain after only a short híke with her cousin necessitating extra
physiother-apy.3o -she tried to hike again in 2013 rn,hen overseas rrhich ceused
extra pain. She planned for it and took Celebrex before and after it and rested
afÍar fJra hil,o 35qt Lvt Lt lv I ¡tt\u-
Her injury has impacted greatly on her social lífe in the manner described
Her injury has impacted upon her personal intimate relationship with her
husband. Sex is now painful and less frequent. She rarely goes out to the
movies, theatre or concerts.
She has been able to go overseas five times since the incident. The trips were
taken in 20û8, 2Gi1,2û13 and 2014. They were to Vietnam on three
occasio¡-rs with o¡le stop oret'iri Kuala Luln¡rur ancl two trips to lndonesia.
The Plaintiff explained in evidence the steps she had taken to manage her
pain whilst travelling taking extra medication and also a special neck support
pillow. She planned extra physiotherapy before and after the trips.36
Her most recent travel in 2014 was to Vietnam where she visited her eldest
son who now lives in Vietnam. Her brother-in-lalv also resides in Vietnam.
She described the degree of discornfort that she experienced during the flights
and also the extreme pain aftenruards" She was required to take extra
medication to which she responded poorfy and, because of her condition, it
was necessary for her to attend the doctor in Vietnam for massage and
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acupuncture.3T She suffered pain and restriction and loss of enjoyment as a
consequence.3s
I gained the impressíon that the enjoyment of those trips was limited and that
a lot of extra care was taken by the plaintiff to manage her pain.
Ms lacono had an excellent work history pre-injury. She combined full time
work with the responsibilities of family including the care of four sons one of
whom has an intellectual disability without any restrictions or impediments.
She was a dedicated staff member at Spensley Street Primary School who
actively participated in school life contributing beyond her class-room
activities.
she enjoyed being fit, going to the gym regularly, was an avid hiker and loved
going to the movies and concerts.
Ms lacono had some health issues as set out in paragraph 11 of her first
affidavit.se However Dr Lipson confirms that she did not have significant
symptoms prior to the work injury in 2001.40
The affidavit of Louisa Gauci sworn 5 November 2013 confirms how the injury
impacted Ms lacono's school involvement.
Ms Gauci knows the Plaintiff through her work at the Spensley Street Primary
School. She is a work colleague whose evidence concerning the changes
observed subsequent to injury were not challenged.
Ms Gauci has confirmed that the Plaintiff is not as capable as she was prior to
injury. Before injury, the Plaintiff was an active and involved member of the
school. She was co-ordinator of various committees, such as the Welfare
Committee, and also the lead of many actívities for professional staff at the
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schoo¡, including Professional Development. She no longer participates to thesame level' Her involvement in the school has decreased and the plaintiff
now seems to be involved in programs directly related to her own classes only
rather than the whole school.al
I have had regard to the approach suggested in Haden Engineering pty Ltd v
McKinnon a2 that was subsequenily endorsed in suffon v Laminex Group pty
Lfd3 and Aburrow v Netwarl< persanne!4
I accept Ms lacono's description af her experience of pain ancl its intensity. I
accept what she says about the need for medicatíon, rest and medical
treatment and intensive physiotherapy.
She sees Dr Lipson regularly and he has continued to prescribe medication to
manage her pain levels, namely Lyriea and panadol osteo, she also sees a
physioiherapist every fortnight and occasionally weekly.
Dr Lipson confirms that Ms lacono suffers from a soft tissue injury to the
cervical spine with symptoms of neck pain, stiffness and headaches related
to the work injury necessitating pain relief medication and regular
physiotherapy. He documents that the neck pain and occipital headaches
have increased in frequency over recer-¡t times with increasing reliance on
medication. ln turn that has caused gastritis and the need to take Nexiurn to
manage those symptoms.
I am satisfied having regard to Dr Lipson's observations recorded over many
years that there is objective evidence that shows the disabling effect of the
Plaintiffs pain.
Ívs lacono has by reason of her ability to resume work, albeit for a g day
fortnight notwithstanding her physical condition, dennonstrated that she is
4l42
4:3
4'a
FCB 32a-32b[2010j vscA 69
QA14 31 VR 100
[24ßI VSCA 46
JUDGMENTlacono v State of Victoria
VCC:SI\ 17
genu¡ne and stoical. I accept that she has taken all necessary steps to
continue in her teaching position and is prepared to endure pain in order to
maintain a desired level of function.
107 This is supported by Dr Lipson's assessment that there has been an increase
in pain likely to be contributed to by a change in her role as a Líteracy teacher
whereby she is spending more time seated with the neck flexed.as
108 As has been stated by the Court of Appeal the injury suffered by the 'stoical'
Plaintiff is not to be viewed as any the less serious merely because he/she
manages to remain more active than might have been expected given the
level of pain. ln such a case, the 'objective' evidence of the disabling effect
may be of less significance than usual.a6
109 I accept the Plaintiff's evidence about the extent to which the pain limits her
physical functioning and substantially interferes with the ordinary activities of
life in the manner set out in her affidavits.
110 As was stated by Ashley JAin Dvvyer v Calco [Timbers] Pty Ltd (No 2):
"fllmpairment is concerned with what has been lost. But the significanceof what has been lost ... may be informed, to an extent, by what isretained."aT
111 The picture that emerged from the evidence is that for Ms lacono the injury
has had dramatic consequences and she no longer has the capacity to
engage in life to the same extent that she d¡d previously due to the
consequences of her injury. This has impacted on her home life, her intimate
relations with her husband, her social, recreational and employment activities
in the manner described. She has endured this situation for the past 13
years. She faces a continuation of painful symptoms and consequential
inhibítions upon her enjoyment of life for the foreseeable future.
¡15 PcB 4846 Haden Ehgineerìng Pty Ltd v McKnnon (supr4109-10 at paragraphs [46]-[48]47 Dwyerv OalcaTÍmbe¡a Pty Ltd (No 2) (supra) at paragraph [27]. See also Haden Engineering Pty Ltd
v McKinnon (supraþ 4*5 at paragraphs t9l-[14]
JUDGMENTlacono v State of VictoriaVCC:SA
'|8
112 CI* the totality of the evidence I am satisfled that the pain and suffering
sonsequences tc the Flaintiff disclcsedare both nearked and significant.
113 I am satisfied the impaírment or lsss of body function of the cervical splne has
resulted in pain and sufferÍng aonsequences which are, when judged by
compan'son with other casÊs in the rânge of possible irnpairment or losses ofbcdy function, fairly desoribed as belng rnore than signlficant or marked and
as being at least very considerable is.134AB(3g}{c}),
114 Leave to prcceed will be granted.
JUDSMEÄITlaeonov Sþ¡teølVicþrta
VåC:SÁ 1g