Zhang v Joy Foods Australia Pty Ltd [2015] VCC 1745

"(a) permanent serious impairment or loss of a body function;

...

(c) permanent severe mental or permanent severe behavioural disturbance or disorder ... ."

4 The body function relied upon in this application is the lumbar spine. There was also an application in relation to mental impairment.

5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6 The impairment of the body function must be permanent.

7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.

8 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".

9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

10 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of "severe". Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from "serious" or "severe" betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that "severe" was used in the definition as a stronger word than "serious".

11 Winneke P, in Mobilio,[3] agreed with Brooking JA's reasons and further agreed with him that the word "severe", where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word "serious" where used in that Act (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect).

12 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) - per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]

13 In opening, counsel for the plaintiff indicated the principal application was pursuant to clause (a). The application pursuant to clause (c) was "kept in reserve". It was conceded that there was no psychiatric evidence which would independently establish a (c) claim. The application pursuant to clause (c) was left in the event it was thought the plaintiff's condition was psychogenic.[5]

14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

16 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

17 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

18 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[6] and Grech v Orica[7] in reaching my conclusions.

19 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.

20 The plaintiff is presently aged forty-one, having been born in China in 1973. She is married with a thirteen-year-old-daughter.

21 Having finished primary school, the plaintiff completed one year of secondary school and later worked in factories and as a retail assistant.

22 In 2007, the plaintiff's husband came to Australia on a labour contract as a welder and, in 2008, the plaintiff obtained a visa to come out with her daughter to Melbourne.

23 Within a few weeks of arriving in Australia, the plaintiff found factory work in a Chinese food factory in Bayswater, where she worked for about a year.

24 In cross-examination, it became apparent the plaintiff suffered a back injury in June 2008 whilst in that employ and had limited treatment. However, that condition had resolved prior to starting work with the defendant in May 2010.[8]

25 The plaintiff felt she had sprained a tendon in this 2008 incident. She did not put in a claim. She was told by her doctor she was fine and she just needed to rest a few days.[9]

26 On 17 January 2009, Dr Chan noted the plaintiff "presented with low back pain for six months, much worse during work". She told her doctor she had had back pain for a while with her period and it was worse with work.[10]

27 The defendant ran a chocolate factory. The plaintiff usually worked eight-hour days, Monday to Friday, plus overtime. She earned about $1,000 gross per week. She performed a number of duties in this role, including working on the packing line and putting chocolates in boxes. She also worked carrying trays of bars to the packaging machine. Moving those trays of chocolate was difficult.

28 On the said date, the plaintiff pulled a tray of chocolate out from a shelf and whilst balancing it, turned to her right and felt pain in her low back ("the incident").

29 The plaintiff believed that she injured her back as a result of performing heavy and awkward lifting with her employer.

30 The pain eased somewhat and the plaintiff continued to work until the end of her shift. The following morning, her back was very stiff and her movements were painful.

31 The plaintiff attended Dr Wang, who arranged an x-ray of her thoracic and lumbar spine and put her off work. When seen again by Dr Wang on 3 October 2011, he advised her he did not treat WorkCover patients.

32 The plaintiff subsequently saw Dr Lim at Croydon Health Clinic, who arranged a CT scan of her back in October 2011. He then referred the plaintiff to an acupuncturist, Mr Miao, whom she saw on several occasions until 18 November 2011. This treatment helped a little.

33 WorkCover then suggested the plaintiff see a physiotherapist in Boronia. The plaintiff had treatment twice a week for a month, but that did not really help and she could not return to work.

34 The plaintiff went to China on 28 December 2011 on a pre-arranged visit to see her family. She returned to Australia on 1 February 2012. Whilst in China, she saw doctors at a local hospital who arranged an MRI scan of her back and she was also given a heat pack and herbal medicine.

35 When the plaintiff returned to Australia, WorkCover approved further traditional Chinese medicine and she saw Dr Wu at Blackburn, twice a week from 16 February 2012 until the end of 2012 when WorkCover ceased funding.

36 On 5 March 2012, the plaintiff tried to return to work. Her duties then involved sorting out chocolate bars that were not wrapped correctly. She initially worked two hours a day, two days a week. Standing and bending forward doing that task increased her back pain. She had a further week or so off work and then returned on the same hourly basis, making up small boxes and doing labouring work.

37 The plaintiff felt she was a lot better after the trip, so she asked her doctor if she could go back to work. Her doctor advised her to work three days, two hours a day but later on, she was told by the insurance company to increase her hours. The insurer said if she did not do so, she was not being cooperative, so the plaintiff increased her hours accordingly.[11]

38 The plaintiff's hours were gradually increased to three hours a day, five days a week by about July 2012, and continued on that basis until September 2012.

39 Dr Lim arranged an MRI scan of the plaintiff's back in July 2012. He referred her to Professor Bittar, a neurosurgeon, whom she saw in August 2012. Subsequently, he referred the plaintiff to Dr Gassin, musculoskeletal physician, in Frankston.

40 The plaintiff gave somewhat conflicting answers as to her capacity to cope with her return to work duties. Initially she said she felt like she was feeling ok and she wanted to try to get back to work before the fall. She then said she did not work to the defendant's standard. Sometimes she worked two or two and a half hours on the alternate duties set out in the return to work plan.[12]

41 The plaintiff then agreed she was able to perform the light duties set out in the return to work plan for some months and it was the fall in September that stopped her working, having felt pain in her back earlier that day.[13]

42 The plaintiff later said she could barely work the fifteen hours, and was struggling. It was painful. Even if she had not had the fall, she would not be able to increase beyond those hours.[14]

43 On or about 13 September 2012, the plaintiff was not feeling well at work. Her back pain was worse and her legs felt weak. She told her supervisor and left work early.[15] Whilst walking to her car to drive home, the plaintiff's left leg did not seem to move properly and she lost her balance. She fell and could not get up. Her leg gave way for no reason.[16]

44 The plaintiff was assisted by her supervisor, who rang her husband. On Dr Wu's advice, the plaintiff's husband took her to Dr Lim, rehabilitation and pain management specialist, on 15 September 2012. Dr Lim put the plaintiff off work. She has not returned to work since.

45 The plaintiff saw Dr Gassin on 10 October 2012 when he arranged for injections to take place on 29 November 2012. After those injections, the plaintiff's whole body felt weak, and she had limited feeling in her legs, and her hands were shaking. She had problems putting weight on her left leg. She stayed at Dr Gassin's clinic until it closed.[17]

46 On 4 December, the plaintiff contacted Dr Gassin. She was feeling weak and vomiting and lethargic. She felt like she did "not have her own mind". It was a scary feeling, and she was thinking maybe she was going to be paralysed.[18]

47 Dr Gassin suggested the plaintiff attend Monash Medical Centre. She was taken there by her husband and stayed as an inpatient for ten days. During that time she had a range of tests. At the end of the treatment, she could not walk normally. She felt she had got some strength. She left hospital on a walker, which she used for a month. She understood that doctors were not sure what was wrong. Gradually, she began to feel stronger in her legs and steady on her feet.

48 The plaintiff had a vague recollection of the pain management program which she was told she attended in May 2013.[19] She attended maybe five sessions. She was told by the doctor, if she felt pain, to try not to think it but do something else, "like cut a tree, talk to her friends, and maybe take out the weeds."[20]

49 The plaintiff continued to see Dr Lim at least monthly. As at March 2014 when she swore her first affidavit, the plaintiff was taking Panamax or Nurofen, twice in the morning and then on a needs basis during the day.

50 The plaintiff then had a constant aching pain in her lower back pain. She got a sharp pain several times a day. The pain came on if she moved the wrong way and could come on even if she was just sitting. She also got occasional cramps in her thighs, calves and toes, usually one leg at a time. These occurred about once or twice a week and lasted a few minutes. She needed to stretch her leg to ease the discomfort.

51 Bending too far worsened the plaintiff's back pain and she also found sitting for longer than about twenty minutes increased her pain. Then the discomfort usually increased and she wanted to move about. If she was on her feet longer than about half an hour, she was likely to get increased back pain. She had to move cautiously to avoid any jarring or any extra strain. She tried to avoid walking or standing on uneven surfaces as that also seemed to worsen her back pain.

52 When the plaintiff went shopping, she usually went to Ringwood Plaza, or sometimes Box Hill. She went with her husband if she needed to buy a number of things, as he helped to carry them. Carrying items weighing more than a few kilograms increased her back discomfort.

53 The plaintiff could drive, but preferred to be a passenger, where she could move about more easily. She was worried about getting leg cramps when driving. She did not drive for prolonged periods because of the increased back pain with sitting and twisting.

54 When the plaintiff tried to sleep, she found lying on her back soon caused increased discomfort and she preferred to lie on her right side with her knees bent. She could lie on her left side, but found that could cause increased left back and buttock pain. She had to move frequently when trying to sleep; however, because of increasing discomfort if she remained in the one position, she usually woke about every few hours because of back pain. She got up most nights and went for a walk to try and ease her discomfort. She took extra Nurofen once or twice a week when she knew she would not be able to get back to sleep without it.

55 In the morning, the plaintiff's back was stiff and sore. She used a machine which provided heat to her back and she sometimes used it at night. The machine relaxed her back muscles and relieved the discomfort.

56 The plaintiff had to sit to put her pants on, and putting socks on was particularly painful. She often had to get help from her husband because of the bending and stretching involved.

57 The plaintiff lived with her daughter and husband. She still did most of the cooking, using a chair so she could alternatively sit or stand. She got help with heavy lifting or bending to low shelves. She had rearranged the kitchen so most of what she needed was at waist height or above.

58 The plaintiff put the clothes in the washing machine and her husband usually hung them on the line. She would just hang small things. Her husband did the vacuuming with their daughter's help. He fitted the sheets to the bed.

59 The plaintiff agreed she did lighter parts of the housework. She could drive. Mostly her husband did the shopping, and if she did, she asked her friends for help.[21] She does not buy items weighing over 2 kilograms.

60 The plaintiff has never been much of a gardener. She did have a small vegetable garden, but that was gone now and her husband took care of the garden.

61 Prior to her injury, the plaintiff played badminton with parents of her daughter's friends. She had to stop playing after the injury as she could not stand for several hours. Her daughter still played and was taken to games by her husband.

62 Prior to her injury, the plaintiff enjoyed visiting friends and going to restaurants in Box Hill or Springvale at least once a month. She socialised mainly with Mandarin-speaking people. She now went out less and only occasionally with close friends to keep contact. She found it hard to enjoy being out with ongoing back pain.

63 Since the injury, the plaintiff felt more on edge and she worried about her future. She believed she was less patient. Sexual relations were less frequent. She felt guilty her husband had to do more around the house. She could not do things that required prolonged standing, bending or sitting.

64 The plaintiff's general practitioner told her it would be good for her to find something to keep her busy, so she commenced an English course in 2013. She attended once a week for about two hours at a campus near Ringwood. However, she experienced increased back pain due to prolonged sitting and felt she could not cope, so she stopped her studies. She is currently having English lessons at home.[22] She has difficulty studying and has to lie down.[23]

65 The plaintiff had an appointment with Nabenet the day after the hearing.[24]

66 Since ceasing work, the plaintiff has tried to look for work. She has lower back pain, and also, when she leaves the house, she needs someone's help. In those circumstances, she did not think anyone would hire a person who could only work for two hours a day. Also, her doctor had told her she needed to change her posture.[25]

67 The plaintiff would love to go back to work if she could. The doctors tell her she is not fit to do so. She has told different doctors she wants to go back to work in the future if she can. She feels like the doctors that she has seen have made her situation worse.[26]

68 The plaintiff recently deposed, on 15 October 2015, that she continues to have constant left low back pain, which is present even when sitting or lying down.

69 The plaintiff also has severe left leg pain, which starts from the outer part of her left leg and radiates down to her foot. It is especially worse when walking and it is worse than her lower back pain. She can walk for about ten minutes before she starts to feel significant pain.

70 In cross-examination, the plaintiff described that since May this year, the pain had become more obvious. After physiotherapy at Lilydale Hospital, maybe this year, it became worse and worse. The plaintiff was not sure what date her pain worsened as she had problems with her memory.[27]

71 The plaintiff's current pain is like a needle-prick pain on the left side and sometimes when walking.[28] She feels like a needle is pricking pain in her leg, sometimes the outside and sometimes the whole of her leg. Her leg is also numb.[29] Before that recent onset, her pain was not that obvious.[30]

72 The plaintiff had never had the horrible pain like a needle-prick in her back before the incident.[31]

73 The plaintiff is reluctant to go out of the house because of her pain when walling. She has become very nervous when she needs to go out and she has a diminished sense of security when out in public.

74 The plaintiff feels increasing numbness and weakness in her left leg, especially when walking, and occasionally her left leg gives way. On several occasions this year, this has caused her to lose her balance and fall down. She tends to use her walking stick when in public to steady herself.

75 Most recently, on 13 October 2015, when attending the chemist after going to the doctor, the plaintiff's left leg gave way and she fell. Two staff members had to help her into a wheelchair and assist her into her car so she could drive home. She felt embarrassed to have fallen in public.[32]

76 The plaintiff has used a stick for less than a year.[33]

77 The plaintiff continues to see Dr Lim once or twice a month for medication and review. He has also referred her for physiotherapy under Medicare. The plaintiff attended five or six sessions last year at Lilydale Hospital and Dr Lim intends to refer her to another physiotherapist for further sessions. She still tries to do her exercises.[34]

78 Whilst in China in March 2014 to see her mother, the plaintiff went to doctors and got some medication.[35]

79 The plaintiff sometimes pays for Chinese massage. Since about April 2015, she has had about seven or eight sessions, which have provided temporary pain relief.

80 The plaintiff has tried to manage her injury at home by buying an inversion machine and other similar equipment. She lies on the inversion machine for five to ten minutes a day. She feels it takes the pressure off her lower back and left leg and provides some temporary pain relief. She bought the machine maybe a year ago.[36]

81 The plaintiff's medication regime currently includes Lyrica - two to four tablets a day; Meloxicam - one tablet per day; Nexium - one tablet every morning and evening, and Zaldiar - two tablets when her pain is very severe. She also uses a Norspan patch.

82 The plaintiff can still drive, but needs to take a break after about fifteen to thirty minutes. She tries to avoid driving longer distances because it results in increased lower back and left leg pain. She no longer shops and visits friends at Springvale or takes her daughter on various activities as frequently as she used to. Her limited involvement in her daughter's activities and inability to drive her upsets the plaintiff very much.

83 The plaintiff does not enjoy being away from home. She feels increased pain when standing or sitting for longer than ten to twenty minutes at a time, and she feels the need to lie down.

84 The plaintiff saw Dr Lim on 11 February 2012 after her return from China. The plaintiff then advised that she had had some benefit from treatment using local Chinese medicine procedures.

85 Dr Lim then thought the plaintiff was well enough to try light duties two days a week, two hours a day, which she did just once for a few hours, but her back was just too sore from prolonged standing. He considered she certainly could not return to pre-injury duties and that she should consider an epidural injection of cortisone into the spine.

86 Dr Lim noted the plaintiff had been unable to return to work since re-injuring her back on 13 September 2012, when she fell in front of her workplace. She was then working two to three hours' light work each day with no heavy lifting or bending. She reported her work management kept pressuring to try and increase her work hours gradually.

87 When seen by Dr Lim on 14 September 2012, the plaintiff reported being in such intense pain she could barely walk or sleep at night. He had certified her unfit for work since then as her recovery had been very slow.

88 When seen by Dr Lim in November 2012, the plaintiff was awaiting an appointment with Dr Gassin for a diagnostic nerve block to the facet joint, arranged by Professor Bittar. Dr Lim then thought the plaintiff may improve sufficiently to do light and non-heavy duties and doubted she would ever be able to return to full time duties in the long term.

89 In his report of May 2013, Dr Lim noted that he could state, without hesitation, the plaintiff's lumbar disc pathology was definitely work related. He noted Dr Gassin tried to do an epidural in October 2012 but the plaintiff developed an untoward jittery reaction, and the injection had to be stopped.

90 Dr Lim then thought the only recourse was a referral to a proper pain management course. He noted investigations in December 2012 showed the most glaring problem was that of the unresolved disc bulge at L5-S1 with nerve root pressure to the right S1 region. There were also annular disc tears to L4-5 and L5-S1.

91 Dr Lim noted the plaintiff started pain management sessions at Mulgrave, consisting of physiotherapy, occupational therapy and psychology, all in an effort to help her regain maximum function. However, the problem was that it was too far to drive and the plaintiff was afraid to drive.

92 Dr Lim then thought the plaintiff definitely was not ready to return to work in any form. She had a great deal of back pain, unfortunately complicated by a near ruptured left fallopian tube mass, which was operated upon in March 2013. He thought the prognosis was uncertain but it was likely her lumbar disc pain was to continue indefinitely.

93 In his report of October 2015, Dr Lim diagnosed severe L4-S1 disc bulge injury with the involvement of L5-S1 and thecal impingement.

94 Dr Lim thought the plaintiff was neither fit for pre-injury nor alternate duties. He noted her back pain just flares up easily. She now walks with the aid of a cane.

95 Dr Lim considered the only treatment that could be offered would be pain management supervision or the plaintiff could try non-manipulative physiotherapy.

96 Dr Lim thought the pain would be long term, possibly for the rest of the plaintiff's life. It could be controlled and made bearable with analgesia and myophysiotherapy but the plaintiff will be in chronic pain and the back injury will never return to normal.

97 Dr Lim noted the plaintiff had recently presented to him on 1 October 2015 in a state of severe low back pain, requiring strong analgesia. He referred her for Medicare funded physiotherapy. He did not think she could work in any of the positions proposed by Nabenet and she had no capacity to work. In a sit-down part-time job, perhaps limited to ten hours a week, working near her place, she could work if she had enough English capacity.

98 When Professor Bittar, neurological surgeon, saw the plaintiff on the one occasion in August 2012, she was working modified duties two or three hours a day. She complained of predominantly lower back pain, radiating to both buttocks and down the posterior aspect of the left leg, following the incident.

100 Professor Bittar thought the plaintiff presented with a fairly clear-cut case of work-related lower back pain. He thought it was difficult to be certain whether her pain was emanating from the disc prolapse as nerve root irritation or the facet joints. In order to clarify which structures were generating her pain, he suggested referring her to a musculoskeletal pain specialist, Dr Gassin, for opinion, as well as diagnostic blocks.

101 Noting a firm diagnosis had not been established, taking into account the duration of her symptoms as well as their nature, together with the MRI scan findings, Professor Bittar thought it likely the plaintiff would suffer from ongoing symptoms and disability into the long term. The general diagnosis was aggravation of lumbar spondylosis.

102 Professor Bittar noted that the November injections did not offer the plaintiff a benefit. He thought she was suffering from aggravation of lumbar spondylosis and it was unlikely the facet joints were playing a major role, given the plaintiff's failure to respond favourably to the joint blocks. He thought it most likely her pain was discogenic. However, nerve root compression and/or irritation could not be completely excluded without further investigation.

103 Noting he had only seen the plaintiff once, unless her symptoms had improved significantly, Professor Bittar thought it highly likely her work capacity would either remain the same or deteriorate.

104 Dr Gassin first examined the plaintiff on 10 October 2012. His particular interest is spinal pain.[37]

105 On examination, there was a very limited range of lumbar spine movement, especially flexion, extension and rotation and there was some tenderness to palpation with restricted bilateral leg raising.

106 Dr Gassin diagnosed somatic low back pain, the source of which had not been identified. He then thought the plaintiff had no capacity for physically-demanding work and he suggested facet joint injections be performed.

107 In his consultation record of 10 October 2012, Dr Gassin noted liability had been requested for L3-4, L4-5, L5-S1 facet joint injections with cortisone. Following the injections, the plaintiff's response would be monitored by a sequential numerical rating scale, noting the pre-injection pain level and pain levels at 5, 30, 60, 121, 82, 43, 100 and 360 minutes and daily thereafter for fourteen days. He proposed to re-assess the plaintiff if the injections were unhelpful.

109 When he first saw the plaintiff in October 2012, Dr Gassin thought her condition was predominantly organic.[38] He suggested injections for therapeutic and also diagnostic purposes.

110 There was only one occasion when Dr Gassin gave the plaintiff injections. Dr Lim's version of events was plainly wrong.[39]

111 On 29 November 2012, Dr Gassin carried out facet joint cortisone injections at left L3-4, L4-5 and L5-S1. He did that procedure because he thought the plaintiff's pain was coming from her lower lumbar region.

112 Dr Gassin explained the injection procedure and did a diagram and also explained the photographs.[40] He confirmed that nothing was out of place with the actual procedure.[41]

113 Dr Gassin thought there was a possibility the plaintiff's initial response to the cortisone injections was a reaction to cortisone lignocaine.[42] Leg weakness from the facet joint injection with lignocaine seeping into the epidural space was exceedingly uncommon. It was very rare for the leg weakness with the medication seeping into the epidural space. He could not recall any other case.[43]

114 Dr Gassin thought an organic cause was suggested when the plaintiff presented with inability to weight bear on the left leg. Also the tremor could result from the positioning of the plaintiff's arms during the procedure.[44] His notes indicated the initial tremor settled.[45]

115 It would be extremely unusual, as a result of the treatment, that the plaintiff would require a walking frame.

116 Following injections, the patient would fill out a pain chart over the two weeks and send it back to him for an assessment. At the end of the injections, Dr Gassin gave the plaintiff a business card to enable her to call him if there were complications. He would have thought twice about giving the plaintiff further injections with the pain increase reported by her in the chart.[46]

117 The plaintiff's chart set out a reading of 7 pre injection with readings increasing to 9 and 8 thereafter. This increase in pain noted in the plaintiff's pain charts post injection meant the pain was unlikely to be coming from the joint. Those pain levels are subjective being self-reported by the patient.[47]

118 Dr Gassin was unsure whether he saw the plaintiff on 4 December 2012, but then thought he must have seen her.[48] He could not explain her symptoms of global weakness on that date. He sent her to hospital to exclude a deep haematoma in the region of the injections. He had never seen such a haematoma , although he referred the plaintiff for a neurological opinion.[49]

119 Dr Gassin had not heard anything back from the hospital.[50] He could not explain the global weakness with the exclusion of the haematoma, but there were a lot of things in medicine that could not be explained.[51]

120 Dr Gassin agreed there was a possibility the plaintiff's condition on 4 December was functional if there were was no organic basis for it, but he could not be sure. Another explanation would be that technology is not good enough to pick it up.[52]

121 Dr Gassin thought there may have been some sensitisation, which involved an increased sensitivity in the area of the original injury that had resolved.[53] With that condition, the nerves start to function abnormally.[54]

122 However, Dr Gassin would not have done the injections had he diagnosed central sensitisation prior thereto. He thought with that condition, the plaintiff may find deep massage and acupuncture a problem.[55]

123 Dr Gassin agreed an MRI scan could be abnormal yet a patient may not experience any symptoms.

124 By letter dated 18 October 2012, Dr Chan advised the plaintiff's solicitors that the plaintiff had been attending her clinic since January 2009.

125 The plaintiff had attended on ten occasions until October 2011 as to her major problems related her low back pain which was aggravated by work, right shoulder and scapular aching, pins and needles at upper limbs, poor sleep and occipital headache attacks.

126 Dr Chan noted the plaintiff was recommended by a workmate to see her for medical acupuncture.

127 Dr Chan noted the plaintiff worked hard for her packing job which demanded a lot of physical strength and repetition. It was possible she acquired injuries such as muscle straining and inflammation of the joints and ligaments.

128 The plaintiff relied upon a number of attendances in the clinical notes with various general practitioners, detailing back pain associated with her menstrual cycle prior to the incident date.

129 As I accept the plaintiff did not have a back problem of any note prior to the incident, I do not propose to summarise the notes of these earlier attendances.[56]

130 An x-ray of the lumbar and thoracic spine was carried out at Dr Wang's request on 29 September 2011.

131 It was reported there was normal thoracolumbar alignment maintained and there was evidence of mild thoracic and lumbar straightening, as well as minimal lower thoracic scoliosis convex to the right. Early lumbar degenerative change in the form of early multi-level anterior vertebral osteophyte formation was noted. There was no other significant focal vertebral abnormalities. The intervertebral disc spaces were well maintained at all levels. Paraspinal soft tissues appeared unremarkable. The left lateral aspect of the sacrum showed a small sclerotic focus, possibly a benign bone island.

132 Dr Lim arranged a CT scan of the lumbosacral spine in October 2011.

133 It was reported there was no focal disc space narrowing. There was bulging of the L45 disc with a small central canal disc protrusion which just impinged on the theca. There was a small central disc protrusion at L5-S1 which just impinged on the theca. There was no impingement on the emerging nerve root. There was no spondylolisthesis or spondylosis. There was no facet joint degeneration. Sacroiliac joints were normal.

134 The plaintiff had an MRI scan of her brain and spine on 13 December 2012.

135 It was reported there was discogenic disease at T6-7 with mild central to right paracentral disc protrusion causing minimal cord compression.

136 In the lumbar spine, there were annular disc tears at L5-S1 and L4-5. There was disc bulging at L5-S1 encroaching on the right S1 nerve root in the subarticular recess. There was mild disc protrusion at L4-5, causing mild to moderate thecal sac compression. There was no posterior or paraspinal haematoma seen in relation to the plaintiff's recent facet joint injections.

137 It was noted the lumbar spine MRI features were stable compared to the plaintiff's previous MRI scan from 10 July 2012.

138 Following that earlier scan, it was reported there were disc protrusions demonstrated at L4-5 and L5-S1 with posterior annular disc fissures noted at those sites. There was mild canal stenosis at L4-5 and no evidence of significant foraminal stenosis. There was facet joint hypertrophy, as described.

139 Dr Lim organised a CT scan of the plaintiff's lumbar spine in December 2014.

140 It was reported there were persistent disc bulges at L4-5 and L5-S1, the appearances of which had not significantly altered from the previous CT of 11 October 2011.

141 Dr Miller, occupational physician, examined the plaintiff in March 2012 at the request of QBE.

142 Dr Miller noted the plaintiff returned to work some time in February that year and was assigned lighter duties on reduced hours. She had difficulty coping with the work on the first day and was not able to return after that, and had since remained off work.

143 On examination, there was a slight tenderness of the lumbar paravertebral muscles, and some movements of the back were restricted.

144 Dr Miller concluded the plaintiff had sustained a chronic incapacitating injury to her lower back.

145 Clinical examination revealed a mild to moderate disability of the back due to local discomfort and limitation of movement, and Dr Miller thought the underlying pathology appeared to be lumbar intervertebral disc lesions.

146 Dr Miller then thought the plaintiff was not capable of doing her pre-injury duties and was only capable of working with a 3-kilogram lifting limit, avoiding back movements beyond a comfortable range, forceful pushing or pulling and prolonged static postures.

147 It appeared the plaintiff had intervertebral disc lesions in the lumbar spine, of which the incident was a plausible cause.

148 Dr Miller conducted a worksite assessment in March 2012, at which he suggested a return to work on alternate duties in a graduated manner, starting four hours a day, three days a week, increasing to six hours a day, five days a week in weeks seven and eight, and by week nine onwards, fulltime alternate duties.

149 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of QBE in November 2012.

150 The plaintiff then described ongoing pain in the low back, extending to the left buttock and back of the left thigh as far as the knee. She stated she could not walk far and was afraid of walking. More recently, she developed headaches and neck pain. She also had chest tightness.

151 The plaintiff told Mr Shannon she had never had any previous back trouble.

152 On examination, thoracolumbar movements were limited by two-thirds. The plaintiff could not stand on her heels and toes, particularly with regard to the left leg. She appeared to have some weakness of extension of her left big toe.

153 Straight leg raising improved in a sitting position. Knee reflexes were equal and the left ankle reflex may be slightly diminished, but the right was not particularly active. There was no muscle wasting.

154 Mr Shannon noted an MRI scan of the lumbar spine demonstrated disc degeneration at the lowest two lumbar levels with annular tears and central bulging at both levels. That was more prominent at L4-5, where the plaintiff had mild stenosis, but there was no definite nerve root compression.

155 Mr Shannon saw a video of October 2012 which showed the plaintiff moving rather cautiously in and out of the car and walking fairly slowly. Her small daughter carried the shopping basket. The plaintiff was not seen to bend or lift to any significant degree and she walked with a limp, favouring her left leg.

156 Mr Shannon thought the plaintiff was suffering from significant pre-existing lower lumber disc degeneration associated with facet joint arthritis. He considered her pain was essentially mechanical and discogenic in origin, rather than facet joint.

157 Mr Shannon noted, although there were some non-organic features to her presentation, he thought the plaintiff had an ongoing and significant work-related disability and was unfit for work involving significant bending or lifting, and she would have difficulty with prolonged sitting or standing.

158 Mr Shannon thought the plaintiff could not return to her pre-injury duties and, realistically, did not think she had a current work capacity. He noted she had a significantly limited work capacity with few skills and qualifications, and a very limited command of English.

159 Mr David Brownbill, consultant neurosurgeon, first saw the plaintiff in April 2012. She was then working two to three hours a day, five days a week. She told him of the incident and being off work until the end of February 2012.

160 The plaintiff reported the low back pain had improved a little and she could move a little more freely. That pain was present all the time with fluctuations.

161 On examination, the plaintiff was alert and cooperative. Her replies were without embellishment and appearing straightforward. There was some reduction of lumbar spine movement and tenderness to the left, with some palpable guarding. Power was full and equal in the lower muscle groups. There was a patchy loss of sensation in the left leg to touch, not in specific nerve or nerve root distribution.

162 Examination showed restriction of movement and absence of the left ankle reflex. Radiological investigations demonstrated two lower lumbar level intervertebral disc derangement with disc protrusions and annular tear.

163 Mr Brownbill then anticipated some pain would continue in a fluctuating manner indefinitely and the plaintiff should avoid activities involving heavy, forced spinal mobility, repeated bending or prolonged standing or sitting. He considered the plaintiff had sustained aggravation of pre-existing and essentially asymptomatic lumbar spinal degenerative changes with associated intervertebral disc derangement consistent with the incident. In his view, she was not fit for her pre-injury employment. He thought she was capable of lighter work within the restrictions described.

164 Mr Brownbill re-examined the plaintiff on 8 July 2015. She then told him of constant left low back pain and radiating pain from the buttock down the back of the thigh, which comes and goes, as did numbness of the left leg.

165 The plaintiff was noted to be alert and cooperative on presentation. She walked and turned with a left limp, more pronounced than when she walked into the room. She stated she was not able to walk on her heels or on her toes and exhibited elaborate difficulty in attempts.

166 Active thoracolumbar spinal flexion was to a few degrees only, much less than seen during sitting. Her demeanour indicated apprehension.

167 Examination of the lower limbs did not show any muscle wasting. The left ankle reflex was absent. There was a giving way weakness of all muscle groups of each leg, much more pronounced on the left, and profound for left foot dorsiflexion and aversion.

168 Mr Brownbill noted the examination showed continuation of the absence of the left ankle reflex and there was no other objective neurological abnormality. He thought the plaintiff's demeanour and responses indicated the development of a non-organic emotional reaction (resulting in the giving way weakness of the legs, apparent marked restriction of the thoracospinal flexion and inability to stand on her toes or heels). The full assessment of that reaction, in his view, lay outside the neurosurgical province.

169 Mr Brownbill noted the plaintiff described increased back pain following a fall in September 2012. However, she had left work early that day because of increasing back and left leg pain.

170 Mr Brownbill noted the results of investigations.

171 Mr Brownbill considered that the work-related aggravation with lumbar spine degenerative changes had continued, with resulting progressive pain increase. He confirmed the restrictions imposed in his earlier report. He noted the plaintiff's emotional reaction to the pain and activity restrictions may be accentuating her own perception of ongoing pain. However, on probability, there was significant ongoing organic pain which has contributed to her current incapacity for work.

172 Mr Brownbill subsequently reported that, on probability, the plaintiff would not be able to pursue the employment options (packer, process/production worker, retail assistant) outlined by Nabenet in an ongoing or reliable fashion from a physical neurosurgical point of view.

173 Dr Mittal, pain physician, examined the plaintiff in March 2015. The plaintiff then told her of the incident and the fall.

174 The plaintiff described intractable low back pain, irritability and poor sleep. She described anxiety in relation to falling and was frightened about leaving the house. He noted she had significant fear avoidance thoughts and behaviours.

175 On examination, the plaintiff had difficulty mobilising from sitting to standing and used a walking stick to help with walking. There was significant fear avoidance behaviour.

176 There was limited flexion and extension of the spine. There was positive facet joint loading on the left. There was marked tenderness in the lower two lumbar levels.

177 Dr Mittal noted power in the left lower limb was significantly limited by low back pain. Interestingly, sensation to light touch and pinprick was reduced on the entire left leg with no specific dermatomal pattern.

178 Dr Mittal noted that the cause of the plaintiff's pain had been difficult to ascertain, the potential sources being discogenic disease, facet joint and sacroiliac joint arthropathy, particularly on the left. The lower limb pain could be potentially neuropathic in nature with nerve root compression; however, there was no evidence of this on MRI, with disc bulges being only minor and just contacting the L4-5 nerve roots with no significant stenosis.

179 Dr Mittal would be more inclined to believe the plaintiff had referred pain from the low back to the limbs and she did not describe classic radicular pain.

180 In addition to physiotherapy and education to address fear avoidance behaviour, Dr Mittal considered the plaintiff needed to be educated about some of the negative thinking she had associated with low back pain. The plaintiff needed her lack of confidence addressed by a physiotherapist and a psychologist. However, the best way to do this was in the context of a pain management program.

181 Dr Mittal thought currently, the plaintiff was not fit for pre-injury work and did not see any mode of fitness for alternate duties, since she had suboptimal pain management and there was no clear plan for pain management. She thought the plaintiff had the potential of making a good prognosis, provided she had a multi-disciplinary and consistent approach to pain management in the context of providing adequate medication management. She would be looking at treatment for up to six to twelve months before re-assessment of the plaintiff's fitness for work. She did not think that the plaintiff was then fit for alternate duties or any other duties since her training had been fairly limited and language barrier was also significant.

182 Dr Mittal considered, with the jobs of packer, process procession worker or retail assistant, the main issues would be prolonged standing, as well as forward flexion and backward bending, which would be troublesome.

183 Further work retraining would require the plaintiff to sit for prolonged periods and concentrate in the context of chronic pain, where her mood and concentration could be significantly impaired. Realistically at that stage, Dr Mittal did not believe the plaintiff could be employed in the open job market until she received adequate treatment.

184 Dr Slesenger, occupational physician, examined the plaintiff in April 2015.

185 The plaintiff told him of the incident and a fall in September 2012.

186 The plaintiff advised of ongoing low back pain of eight out of ten, burning in character with pins and needles and a dull ache in the left leg. She had become anxious and denied a history of depression but had not been prescribed any medication.

187 Dr Slesenger noted the plaintiff was seen under the care of a pain clinic and had a two-month intense group program, including physiotherapy, occupational therapy and a psychologist, but she advised her symptoms did not improve.

188 On examination, the plaintiff walked with a mild right-sided limp and used a walking stick. There was severe tenderness over the lower lumbar spine and restricted movement. Axial loading and truncal rotation were positive. There was weakness throughout the left leg and 20 per cent sensory loss throughout the left lower limb. There was limited straight leg raising and no wasting.

189 Dr Slesenger noted the plaintiff presented with chronic pain. He was satisfied that she initially aggravated pre-existing degenerative disease and there is evidence that she developed a Chronic Pain Disorder. He also noted evidence of psychological impairment, although that was outside his expertise.

190 Dr Slesenger diagnosed aggravation of pre-existing degenerative disease, Chronic Pain Disorder and psychological impairment. He thought the plaintiff could not return to pre-injury duties. He noted the occupational demands, in particular, the postural demands, as well as manual handling, meant the plaintiff could not return to those activities. He did not think she had a capacity for alternate duties and was satisfied, given the severity of her symptoms, her functional limitations and her use of medication, that she could not return to work performing alternate duties.

191 Dr Slesenger thought the plaintiff may benefit from the re-introduction of a pain management program to address her adaptation to her disability. He recommended a psychological or psychiatric assessment. He thought the prognosis must be guarded. He noted the plaintiff had been out of work for eighteen months, had limited transferable employment skills and poor communication skills and her absence of qualifications. He did not anticipate she would return to work in an open market job.

192 Dr Slesenger thought the plaintiff was unfit for the jobs of packer, retail assistant and process production worker, set out in the NES report. He was satisfied the current impairment was a result of an initial aggravation of pre-existing degenerative disease of the lumbar spine and subsequent development of a chronic pain disorder.

193 The plaintiff attended Maroondah Hospital Emergency on 25 June 2008 with acute low back sprain. She was prescribed analgesics and sent for physiotherapy. It was noted "bending lifting pallet severe mid line pain in back".

194 Dr Gassin wrote to the Monash Medical Centre on 4 December 2012 as follows:

"Thank you for seeing this lady with neurological symptoms since left L3/4, L4/5, L5/S1 facet injections of cortisone on 29 November.

In the immediate post-injection period she experienced a right arm tremor and within half an hour developed left leg weakness with difficulty weight bearing.

On review today, she reports persistent low back pain with associated bilateral leg weakness and inability to weight bear unassisted.

Upper and lower limb reflexes were normal. There was global weakness of all lower limb muscle groups and decreased sensation in the distribution of the left L5 and S1 nerve. There was global weakness of the right upper limb.

I can't explain these symptoms. She will require assessment from a neurologist and possibly an MRI scan of the lumbar spine to exclude a deep haematoma in the region of the injections.

Any help in her management is appreciated."

195 The Hospital Triage report of 4 December 2012 set out:

"Lower back pain. Seen by GP. Referred to hospital. Patient ambulated to Triage. Nil distress at Triage. Patient bilateral weakness in upper limbs, complained of headaches."

196 An Emergency Department attendance summary of that date set out:

"12 hours post injection, pain worsened and weakness in lower limbs developed. Now able to walk with difficulty, unclear if it's pain or weakness causing the problem. Pain worse on walking and sitting - lying for extended periods of time. Feeling light-headed on standing, frontal headache on and off, no changes in sensation, no bowel bladder symptoms, no fevers, no swelling to back."

197 In the physiotherapy discharge summary, it was noted the plaintiff had ongoing left-sided lower back pain with intermittent numbness. There were inconsistencies in function or performance on the ward.

198 On 6 December 2012, the Total Care note set out:

"Bilateral lower limb weakness and right upper limb weakness."

199 Dr Choi, the neurological registrar, noted, on that date:

"The symptoms may be functional. Go ahead with CTB which will be low yield nevertheless."

200 In the physiotherapy progress notes of 6 December 2012, it was reported there were definite inconsistencies between impairment and functional ability. Neurology notes of that date set out there was fluctuating weakness, inconsistently demonstrated weakness. The plaintiff was able to move her head and legs when not under observation. "Refused to move but observed to pivot transfer."

201 There was diffuse weakness noted on 7 December 2012. It was noted, on neurological review, the condition was functional rather than pathological.

202 An occupational therapy report note on 7 December 2012 set out the plaintiff showed a full range of movement.

203 On 12 December 2012, the Total Care note set out:

"The plaintiff reported that she walks for a long distance and feels trembling in her legs."

204 Mr Gale examined the plaintiff in January 2013.

205 On examination, the plaintiff walked slowly without any specific postural or gait abnormality. During the consultation, there were features of abnormal illness behaviour, Waddell's signs were strongly positive and there were significant inconsistencies in response to clinical examination.

206 There was no measurable muscle wasting and there was global collapsing weakness of most muscle groups in the left leg. There was reduced skin sensation, but not absent skin sensation testing response in a stocking distribution distal to the knee.

207 Mr Gale thought it was possible, as a result of the plaintiff's employment, she suffered symptomatic aggravation of age-related and constitutionally-based degenerative changes in the lumbar spine, with some indefinite symptoms affecting the left leg. He thought the fall in 2012 was probably a symptomatic aggravation of the original injury.

208 Mr Gale noted current physical examination, confirmed by some other examiners, was that probably superimposed on the physical injury has been a non-organic component with features of illness behaviour.

209 Current physical examination resulted in some abnormal responses to neurological assessment of the left lower leg, but it was difficult to make a diagnosis on an anatomical basis, and he thought these changes could be a manifestation of the illness behaviour.

210 In view of the secondary factors, Mr Gale considered the prognosis would be poor. He thought the plaintiff should be referred to a medically-based multi-modal physical rehabilitation pain management facility for cognitive and functional restoration programs. He thought the plaintiff's clinical presentation was consistent with the incident and secondary factors arising therefrom.

211 This report was for AMA assessment purposes and did not address the plaintiff's work capacity.

212 Dr Barton, occupational physician, examined the plaintiff in October 2013.

213 Dr Barton then noted the plaintiff presented as someone who looked very fit and well, especially considering her claim to have a disabling back problem.

214 On examination, there was no muscle wasting or spasm. The plaintiff walked at times with a slight limp, favouring the left leg, and she appeared quite calm and relaxed throughout the examination.

215 Specific examination of the back showed quite marked tenderness over a widespread area, effectively from the mid thoracic spine down to the sacrum, and laterally moreso on the left. There was significant restriction of movement and a dramatic increase in reported symptoms with axial loading, with the plaintiff nearly collapsing in a rather unusual and, what Dr Barton believed was a feigned manner. Straight leg raising was inconsistent. Reflexes were normal in the lower limbs and muscle power was globally reduced throughout the left leg, as was sensation to light touch.

216 Dr Barton noted the plaintiff described what appeared to be a fairly inconsequential episode, after which she developed quite severe and widespread symptoms. What was apparent, in his view, on physical examination, was a range of features that pointed towards a degree of deliberate exaggeration of her condition.

217 Dr Barton believed the plaintiff may have developed a mild soft tissue injury in the back as a result of the incident. She received a comprehensive range of conservative treatment but appeared to have done little more than facilitate her illness belief. Whilst her initial back symptoms were caused by work, the subsequent abnormal illness behaviour was deliberately presented to try and justify her incapacity.

218 Dr Barton could not see any particular reason why she could not return to normal work and that she could undertake the jobs suggested by the vocational assessor. He thought, whilst she could work, clearly, her strong illness belief would suggest she is not going to return to work for some time. He did not think the plaintiff required any treatment and did not believe she had any ongoing physical problems.

219 Dr Varma, psychiatrist, examined the plaintiff in October 2013.

220 The plaintiff told Dr Varma that she had pain all the time. On asking specifically two or three times, the plaintiff was clear she did not suffer from any psychological problems. She also mentioned she had seen a counsellor four times, but did not know why. She advised she did not have a mental problem or any psychological condition. She only had back pain with associated problems.

221 On mental state examination, the plaintiff was cooperative and communicative. There was no thought disorder or perceptual anomaly. Her judgment and insight were intact.

222 Dr Varma thought the plaintiff suffered from lower back pain. However, from a psychiatric viewpoint, according to the DSMIV, she did not suffer from any psychological illness.

223 From a purely psychiatric point of view, Dr Varma thought the plaintiff could return to work in pre-injury, modified or even alternative duties. She also had, from a purely psychological point of view, the capacity to actively participate in a return to work vocational assessment, identified training and job-seeking activities.

224 Noting Dr Barton's diagnosis of abnormal illness behaviour, Dr Varma thought, from his examination, it was very clear the plaintiff did not suffer from any form of psychiatric illness at all. He noted, however, abnormal illness behaviour was possible in a person who exaggerated their symptoms for secondary gain.

225 Dr Fraser, rheumatologist, examined the plaintiff in August 2014.

226 On examination, there was significant restriction of lumbar movement and straight leg raising. There were inconsistencies in relation to the latter. Sensation to light touch was said to be diffusely diminished in the left lower leg and foot in anatomic distribution. As the plaintiff was leaving the consultation, she collapsed to the floor, claiming her left leg gave way because of pain. In general, there was a marked over-reaction on physical examination.

227 Dr Fraser noted the CT scan of October 2011, the MRI scan of July 2012 and the MRI scan of 13 December 2012.

228 Dr Fraser was not convinced there was any ongoing work-related injury. Perhaps the plaintiff had soft tissue strains as a result of the incident, but he did not consider, from her description of the incident, that it caused any disc protrusions at lower lumbar levels or otherwise aggravated any other minor pre-existing age-related degenerative changes.

229 Dr Fraser considered any putative soft tissue injury should have long resolved and, given the marked over-reaction on physical examination, he considered the plaintiff's ongoing symptoms were largely due to non-organic factors. In this situation, the prognosis was poor and it was unlikely there would be any improvement in the foreseeable future.

230 A return to work plan dated 10 August 2012 set out the plaintiff was working r two to three hours' light duties per day with no heavy lifting or bending. It was noted "anticipated to increase hours from 13 August 2012 as per Dr Lim".

231 Suitable duties were making up boxes, stamping boxes with product information and some quality control. Work was to be done sitting or standing and tasks were to be rotated.

232 In a vocational assessment provided by Nabenet in November 2013, identified suitable employment options, in order of priority, were packer, process worker and retail assistant.

233 There is no dispute that the plaintiff suffered a compensable injury to her back in the incident. She received weekly payments for 130 weeks and was also paid an impairment benefit.[57]

234 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[58] such admission should ordinarily be regarded as very significant:

"... albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct."

235 Whilst the plaintiff complained of back pain prior to the incident, I am satisfied that at the time thereof, she was relatively fit, working full time, and any back pain she may have been experiencing was not interfering with her activities.[59]

236 Most medical practitioners considered the plaintiff suffered an aggravation of degenerative disc disease in her lumbar spine/lumbar spondylosis as a result of her work duties. (Professor Bittar; Mr Gale - thought it was a possibility; Mr Shannon; Mr Brownbill; Dr Mittal and Dr Slesenger).

238 Dr Barton and Dr Fraser thought the plaintiff suffered a soft tissue injury, the latter of the view it had long since resolved. They both thought the plaintiff was presently suffering from abnormal illness behaviour and her ongoing symptoms were largely due to non-organic factors. This view was shared by Mr Gale.

239 Mr Shannon was the first examiner to note some non-organic factors when he examined the plaintiff in November 2012.

240 Mr Brownbill found an emotional reaction on re-examination in 2015.

241 In 2015, Dr Slesenger considered there had been the development of a Chronic Pain Disorder. It is not clear from his report whether he thought that condition was organically based, noting a separate diagnosis of psychological impairment.[60]

242 However, earlier in his report, Dr Slesenger mentioned that the plaintiff had initially aggravated pre-existing degenerative disease, and there was evidence that she had developed a Chronic Pain Disorder.

243 Whilst it was submitted there was significant pathology in the MRI and CT,[61] impairment, not injury, is the relevant matter for consideration.[62] In any event, Dr Gassin thought there could be findings on MRI of someone who is asymptomatic.[63]

244 Further, there was no disc prolapse or protrusion that could explain the collapsing weakness of the legs described by the plaintiff.[64] It was conceded however, that the plaintiff had not shown the collapsing weakness was organic.[65]

245 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[66]

"... 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."

246 Counsel for the plaintiff submitted the consequences were clearly serious, if I accepted the plaintiff was a witness of truth.[67]

247 Whilst there was no film shown, and there were no "complete inconsistencies," counsel for the defendant submitted that inaccurate histories the plaintiff had given and her answers at times, which were non-responsive, should be taken into account. It was submitted secondary gain played a part in the way the plaintiff put her case. [68]

248 It was submitted the plaintiff's demeanour in the witness box was not of a person who was not concentrating hard. She did not appear to be in unrelenting pain.[69]

249 Whilst I agree with the observations of the defendant's counsel as to the plaintiff's presentation in Court and that her answers were at times non-responsive, perhaps due though to difficulties on translation, the plaintiff's credit does not play a major part in the determination of this case.[70]

250 The issue is whether, as at the date of hearing, the plaintiff's condition has a substantial organic basis and is serious. If I am not satisfied there is a substantial organic basis, the issue is whether the physical consequences can be separated from the psychological and satisfy the serious narrative.[71]

251 It was submitted on the defendant's behalf that the plaintiff's presentation was overwhelmed by functional overlay. Her present condition lacked a substantial organic basis and there could be no successful disentanglement.[72]

252 It was further submitted any changes on investigations were minor and were not of any great significance to explain the extent of her symptoms. As Dr Fraser concluded, "any putative soft tissue injury should have resolved long ago" and, given the plaintiff's marked overreaction on physical examination, he considered her ongoing symptoms were largely due to non-organic features.[73]

253 Counsel for the plaintiff submitted there was a substantial organic basis as required by Meadows v Lichmore Pty Ltd.[74]

254 In that case, Maxwell P set out the two-step manner in which I ought to approach the task in this case:

"... The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any 'disentangling' of the physical contributions to the pain and suffering from the psychological contributions.

If, however, that first question is not - or cannot be - answered affirmatively, then the applicant will need to take the next step and 'disentangle'. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test."[75]

255 I largely accept that up until the time of the fall the plaintiff required ongoing treatment for an organically based lumbar condition. He presentation to that stage had been straightforward and non functional.

256 The plaintiff's injury prevented her from working in late 2011. Thereafter, she underwent treatment from her general practitioner and she had acupuncture and physiotherapy treatment. In addition, during 2012, the plaintiff was received traditional Chinese medicine from Dr Wu. This treatment was providing temporary relief, as Dr Lim noted.

257 As the plaintiff was not improving, she was referred to Professor Bittar, who suggested injections from Dr Gassin. The plaintiff also started sessions in a pain management clinic in Mulgrave.

258 Unfortunately there is no report from that Clinic. Such a report may have been assistance setting out the treatment undertaken and the plaintiff's response thereto particularly when a number of practitioners have suggested further pain management is appropriate.

259 There were two attempts at return to work on modified duties in March 2012. Following the second attempt in late March 2012, the plaintiff gradually increased her hours from two hours a day, two days a week to two to three hours per day, five days a week by about July 2012. She continued these hours until the fall in September 2012 and has not worked since.

260 The consensus of medical opinion at that time was the plaintiff had a light work back and she was unfit for her pre-injury duties. Whilst the plaintiff says she was struggling with her duties at that time, there is no record of a complaint to Dr Lim to this effect. The plaintiff did not report difficulties with her duties when she saw Mr Brownbill in August 2012.

261 On examination in August 2012, prior the fall, Mr Brownbill found no embellishment or non-organic factors in the plaintiff's presentation. The plaintiff's lumbar movement was restricted and her back was tender. Mr Brownbill then thought the plaintiff was not fit for her pre-injury duties, noting that she was fit for lighter work with restrictions, then working 15 hours. Mr Brownbill then thought the plaintiff's pain would continue in a fluctuating manner

262 Professor Bittar made similar findings, both on examination and in relation to the plaintiff's work capacity. He recommended the injections that were performed by Dr Gassin.

263 As of November 2012, prior to the injections, Dr Lim thought the plaintiff may improve sufficiently to do light and non-heavy work, doubting she could ever return to full pre-injury duties for the long term. He then certified her unfit for work as recovery was slow following the fall.

264 The first mention of any non-organic factors in the plaintiff's presentation was on examination by Mr Shannon in November 2012. This examination followed the fall but pre-dated the injections from Dr Gassin.

265 However, Mr Shannon still thought, at that time, the plaintiff had an ongoing and significant work-related disability and was unfit for work involving significant bending or lifting, and she would have difficulty with prolonged sitting or standing.

266 As I indicated, I accept the plaintiff's condition was substantially organically-based at that time.[76] From then on however, there has been a significant change in the plaintiff's presentation that cannot be explained on an organic basis, and non-organic factors play an increasing role in her presentation.

267 Dr Gassin diagnosed a Somatic Pain Disorder when he first saw the plaintiff on 10 October 2012. He did not provide a report after the November injections. His referral letter to the hospital on 4 December 2012 detailed the complications thereafter.

268 Whilst he could provide an explanation for the plaintiff's initial reaction to the injections, which he said were uneventful and routine,[77] he could provide no explanation for the symptoms complained of on 4 December 2012, conceding there was a possibility of non-organic explanation.[78]

269 Counsel for the plaintiff conceded it could not be established that the symptoms on that date were organically based.[79]

270 Whilst Dr Gassin raised the possibility of a diagnosis of central sensitisation, (the initial injury resolved but there was ongoing pain at the injury site), he would not have gone ahead with the injections if he thought that was the diagnosis. Further, he thought, with such a condition, hands-on treatment such as massage and acupuncture would be inappropriate.

271 Having undergone a range of tests at the hospital over ten days, no explanation was provided for the plaintiff's complaints and no specific diagnosis was made.[80] There is no report from the hospital.[81]

272 There were a number of references in the hospital file as to inconsistencies and non-organic factors in the plaintiff's presentation that I have earlier detailed at paragraphs 196-204.

273 Further, there are numerous examples of functional behaviour and non-organic signs on subsequent examinations.

274 In January 2013, Mr Gale found features of abnormal illness behaviour, Waddell's signs were strongly positive and there were significant inconsistencies in response to clinical examination. He thought it was difficult to make a diagnosis on an anatomical basis, and considered these changes could be a manifestation of the illness behaviour.

275 In October 2013, Dr Barton found a number of non-organic signs on examination, with the plaintiff nearly collapsing in what Dr Barton believed was a rather unusual and feigned manner to try and justify her incapacity.

276 When Dr Fraser examined the plaintiff in August 2014, he also found a range of non-organic signs and inconsistencies, with the plaintiff collapsing to the floor on leaving the consultation, claiming her left leg gave way because of pain.

277 Those medical practitioners who concluded the plaintiff's condition continues to relate to aggravation of lumbar degeneration disc disease to a large extent ignore the significant non-organic findings they have made when making that diagnosis.[82]

278 The plaintiff exhibited significant fear avoidance behaviour and thought, when seen by Dr Mittal earlier this year. She had difficulty mobilising from sitting to standing and used a walking stick. There was positive facet joint loading on the left. There was marked tenderness in the lower two lumbar levels.

279 Again, when seen by Dr Slesenger in 2015, the plaintiff walked with a limp and used a walking stick. Axial loading was positive, as was truncal rotation. There was weakness throughout the left leg and 20 per cent sensory loss throughout the left lower limb.

280 Mr Brownbill is the only practitioner relied upon by the plaintiff who acknowledges his non-organic findings and the plaintiff's emotional reaction when expressing his conclusion. Despite the giving way weakness of the legs, the apparent marked restriction of the thoracospinal flexion and inability to stand on her toes or heels, he thought, on probability, there was significant ongoing organic pain which has contributed to the plaintiff's current incapacity for work - namely a light work back.

281 Whilst Mr Brownbill's opinion following re-examination may be the strongest part of the plaintiff's case,[83] he did not adequately explain the cause of what he described as significant ongoing organic pain. Further, He did not explain the plaintiff's apprehensive demeanour or her inconsistent limp.

282 Dr Lim's recent report is brief and of little assistance when considering this issue. There are no recent examination findings noted.

283 Taking into account all the medical evidence, together with the plaintiff's presentation both to doctors and in Court, I am not satisfied her present lumbar condition has a substantial organic basis. Further, I am not satisfied that the plaintiff has successfully separated the physical contribution to her pain and suffering from the psychological to satisfy me that the pain and suffering and loss of earning capacity consequences attributable to the physical injury satisfy the statutory test.

284 Accordingly, the application for pain and suffering and loss of earning capacity pursuant to clause (a) is dismissed.

285 Having made this finding, the plaintiff's application in relation to mental impairment must be considered.[84]

286 As noted earlier in this judgment, a Chronic Pain Syndrome can result in an impairment under (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the "severe" criteria of a claim under definition (c) - per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[85]

287 Counsel for the plaintiff submitted if the plaintiff's condition was not feigned, it was a genuine disturbance in the thinking and perception, which came within in (c).[86]

288 It was submitted the plaintiff did not have to establish she had a psychiatric diagnosis as such. A compensable back injury was the relevant issue, not the sequelae of it. If it led to permanent impairment of a body function, the plaintiff could succeed under (a). If it led to mental or behavioural disturbance, she could succeed under (c).

289 If the position was the plaintiff perceived pain and inability to stand or walk or move genuinely, and she is truthful about it, and behaved consistently, then it was necessarily a mental or behavioural disorder.

290 However, it was conceded there was no authority to this effect.[87]

291 Whilst the plaintiff perceives pain, it was submitted the treatment had been physical, and she was given painkillers and Norspan patches, and doctors have treated her as having an organic pain.[88]

292 It was submitted this was not trial by medical report, and ultimately, if the plaintiff is making it up, she loses, clearly enough, because it is not real. If it is real to her and it is not organic, then by a process of sort of deductive logic, it is a mental or behavioural disturbance, and it is severe if it is causing the consequences she describes.

293 It was submitted one does not fall between the two stools if one has a genuine disability, with a constellation of consequences that meet "severe" or "serious". If the plaintiff's condition has a substantial organic basis, she succeeds under (a), if she does not, she succeeds under (c).[89]

294 It was submitted the lack of psychiatric treatment did not make any difference, because the plaintiff's treating doctors were assuming her condition was substantially organically-based by the treatment that had been provided.[90]

295 Counsel for the defendant submitted there is no evidence from the plaintiff to support a paragraph (c) claim. Such evidence was absolutely essential and it was not the case, having found the plaintiff's condition was non-organic, it would therefore succeed under (c)".[91]

296 It was submitted if the submission on behalf of the plaintiff in relation to clause (c) was accepted, the law, as stated by the Court of Appeal in Meadows v Lichmore,[92] would be "turned on its head". Continuing that rather colourful language, counsel for the defendant suggested to adopt such a course was "heresy".[93]

297 It was submitted Meadows required the plaintiff to disentangle non-organic and organic, and therefore a plaintiff could "fall between two stools" if unable to establish a severe impairment pursuant to clause (c).[94]

298 I accept the thrust of the submission by counsel for the defendant in relation to this point.

299 A Chronic Pain Syndrome can only be the basis of a grant of leave if it is "severe", as Ashley J stated in Veljanovska.[95] A perception of pain cannot does not meet this severe criteria.

300 In my view, the consequences of any Chronic Pain Syndrome in this case, do not satisfy this higher test.

301 The only psychiatrist who has provided an opinion in this case, Dr Varma, considered the plaintiff was not suffering from any psychiatric condition.[96]

302 On mental state examination, Dr Varma had noted the plaintiff was cooperative and communicative. There was no thought disorder or perceptual anomaly. Her judgment and insight were intact. From a psychiatric viewpoint, according to the DSMIV, she did not suffer from any psychological illness.

303 Further, no practitioner has seen the need to refer the plaintiff for any psychiatric treatment despite her complaints of avoidance behaviour and thoughts.

304 As was stated in Papamanos v Commonwealth Bank of Australia:[97]

"... There have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts, and psychotic symptoms. The word 'severe' in the definition of the Act has been held to be a word of stronger force than 'serious'."[98]

305 Taking into account all the evidence, I am not satisfied that the consequences of any Chronic Pain Syndrome suffered by the plaintiff are "severe".

306 Accordingly, the plaintiff's application in relation to pain and suffering and loss of earning capacity pursuant to clause (c) is also dismissed.

[1] [1998] 3 VR 833

[2] (1995) 21 MVR 314

[4] [2005] VSCA 227

[6] [2005] VSCA 33; (2005) 14 VR 622

[58] [2006] VSCA 171

[62] See Winneke P in Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79

[66] [2010] VSCA 69; (2010) 31 VR 1 at paragraph [12]

[74] [2013] VSCA 201

[75] (supra) at paragraphs [21] and 22]

[85] [2005] VSCA 227

[97] [2013] VCC 1491

[98] at paragraph [68] per Judge O'Neill