Bozic vs Bartter Enterprises Pty Ltd [2010] VSC 488 (28 October 2010)


AT GEELONG

COMMON LAW DIVISION

No. 10128 of 2009

 

STANA BOZIC
Plaintiff
vs
BARTTER ENTERPRISES PTY LTD
Defendant

 

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JUDGE:
OSBORN J
WHERE HELD:
Geelong
DATE OF HEARING:
19-26, 31 August, 1 September 2010
DATE OF judgement:
28 October 2010
CASE MAY BE CITED AS:
Bozic vs Bartter Enterprises Pty Ltd
MEDIUM NEUTRAL CITATION:

 

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ACCIDENT COMPENSATION – Workplace injury – Negligence – Dispute as to extent of injury – Injury to discs of the lumbar spine – No neural compromise – psychological reaction - Assessment of damages – Pecuniary loss damages – Pain and suffering damages.

 

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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr C Harrison SC with

Mr A MacNab

Petersons
For the Defendant
Mr J Tebbutt with

Miss K Galpin

Wisewould Mahoney

 

TABLE OF CONTENTS

 

HIS HONOUR:

Introduction

1 The plaintiff is a 43 year old woman born on 1 September 1967 who migrated to this country from Bosnia in 1995. She came here with her husband whom she had married in 1985 and their three children who are now aged 24, 22 and 16.

2 After their arrival the plaintiff's husband undertook an English course and then after about a year obtained work with the defendant (one of what was then known as the Steggles group of companies). His work involved the processing of chickens.

3 The plaintiff had worked as a process worker packing meats and small goods in a factory in Yugoslavia between the ages of 15 and 20. She initially looked after her children following immigration but in 2003 she also went to work at the defendant's factory.

4 On 6 December 2004 at about 10 am she was working making boxes. She was required to take the boxes from a pallet on which they were packed flat and to fold them before placing them on a machine which automatically taped them. The machine jammed and failed to properly cut the tape on three boxes. She then stopped the machine and walked around it to the three boxes in question in order to manually cut the tape. As she went back to her working station a wooden pallet which had been left upright next to a stack of other pallets fell and struck the side of her right leg below the knee. She twisted away in an attempt to avoid contact and then became aware of pain across her lower back and in her right leg. Her workplace was noisy and initially she was not sure of her injuries, but her leg 'gave up' momentarily after she recovered from the initial pallet fall. She did not feel well however and reported to her supervisor. She was sent to the sick bay where she was treated with ice and rest. She returned to work briefly in a meat packing section, but after further rest was ultimately taken home by her husband at the end of the shift at 1:30 pm. She was sent to a Doctor Hamza who was retained by the defendant. He told her she should rest, but that if the defendant's Occupational Health and Safety Manager ('OH&S Manager'), Leanne McPherson, told the plaintiff she had to return to work, the plaintiff must return. The plaintiff's husband subsequently received a call at home from the OH&S Manager requiring the plaintiff to return to work the following day.When she went back to work she was given light duties within the office. She does not speak English and she had never worked in an office. She attempted to do the work but could not. She subsequently tried to come back to work in January 2005 and was given work sorting and folding gloves in pairs which had been through a washing and drying process. She could not continue with this work because it required her to bend into the drum of a dryer. She has not worked since 24 February 2005.

5 The plaintiff's case is that she has suffered three categories of injury. First, she suffered injury to her leg. Bruising to the side of the right leg below the knee was followed by the movement of a haematoma behind the knee and up the back of the lower thigh. A varicose vein condition also developed. This has subsequently been satisfactorily treated with surgery. Secondly, the plaintiff suffered injury to the two lower discs of the lumbar spine. This injury is said to have resulted in ongoing low back pain and some referred pain in the legs particularly the right leg. Thirdly, as a consequence of the second injury, the plaintiff has suffered a psychological adjustment disorder and associated anxiety and depression.

6 It is the nature and extent of the second injury which is the principal subject of contention in this case. Evidence relating to that issue was called from a series of treating doctors and from a number of medico-legal experts. I have ultimately come to the view that the weight of the evidence favours the opinion of Mr David Brownbill as elaborated in his evidence. In his view the probability is that the plaintiff has suffered lumbar inter vertebral disc derangement and discogenic pain following aggravation of pre-existing, asymptomatic lumbar spine degenerative changes in the incident of 6 December 2004. He further considers that the plaintiff has also developed a marked emotional reaction to the pain caused by the disc injury with consequent depression and anxiety.

7 The nature of that reaction was the subject of a series of psychiatric opinions. I accept the view elaborated in evidence of Dr Gerald Mathews, Consultant Psychiatrist, that the plaintiff has suffered from an adjustment disorder since the time of her initial injury which has been made worse by ongoing symptoms of pain, lack of progress in her treatment, and the failure to resolve her claim for compensation. The plaintiff has sleeping difficulties, constantly lowered mood with frequent tearfulness, cognitive compromise, lack of energy, social withdrawal and little emotional resources.

8 She has been rendered vulnerable to the worsening of the adjustment disorder by her background which includes experience of the Balkan War and vulnerability as an non-English speaking immigrant.

9 Before returning to the questions of medical diagnosis and prognosis which were the subject of fundamental contest in the hearing of this matter, I shall first deal with the issue of liability and then with the evidence of the plaintiff as to the subsequent course of events leading to her current situation.

Liability

10 Although counsel for the defendant at one stage indicated to the Court that liability was not the subject of real contest, the issue was never formally conceded.

11 I am satisfied that the plaintiff suffered injury as a result of an unsafe system of work when a pallet that had been stored vertically fell against her leg.[1]It is apparent from the defendant's own documentation that the pallet should not have been left in the vertical position and that it need not have been in this position for the purposes of the satisfactory operation of the factory. The pallet was wooden and relatively heavy, being of a weight which, as the plaintiff stated, required two persons to lift.

12 The plaintiff was injured as a result of the breach of the defendant's non-delegable duty of care to its employees to take reasonable care to avoid exposing her to unnecessary risk of injury.[2]

13 I am also satisfied that at the time of the incident in which she was injured the plaintiff was not only struck on the side of the leg but twisted her back as she was struck. This said, I accept that the injury to the back did not involve great force. I accept Mr Brownbill's opinion that but for a pre-existing degenerative condition of the spine it is unlikely that she would have suffered ongoing injury to the back.

The plaintiff's evidence

14 Mrs Bozic gave evidence of the circumstances of her injury as I have summarised them above. She says that when she got home after the accident her back and leg were hurting her very much. She says she would be happy if she could work again.

15 Dr Hamza recorded in a letter to the Geelong Hospital dated 13 December 2004 'the main issue now is the pain in her lower back'.

16 He had advised the defendant in writing on 9 December 2004 'x-ray done no sign of fracture, so the diagnosis is muscular strain and bruises.'He answered a series of written questions indicating that at that time the plaintiff had no capacity for pre-injury employment duties and no capacity for modified or substituted duties. In answer to the question 'likely duration of any incapacity' Dr Hamza noted 'needs modified duties one week.'Dr Hamza advised that the plaintiff should 'continue on pain control, rest and elevation if possible to the leg'.

17 I do not accept that the advice contained in the letter of 9 December 2004 is consistent with the evidence of Mrs Bozic's OH&S Manager that she was told by Dr Hamza Mrs Bozic was able to return to work on modified duties immediately after the accident. This is not what the letter says. The questions directed specifically to this issue are answered 'no'.Modified duties were required in one week's time.

18 In turn I accept Mrs Bozic's evidence that she understood, as a result of a phone call received by her husband from her supervisor, that she was required to return to work prior to the time she had understood Dr Hamza had advised was appropriate.

19 It is apparent this circumstance greatly distressed Mrs Bozic and may be seen as first precipitating a strong feeling on her part that her injury was not being acknowledged by her employer when it should have been. This complaint was voiced to Mr O'Brien on 25 January 2005. I regard this as a significant initiating element in her subsequent reactions to the course of her treatment.

20 I also accept that Mrs Bozic did not cope with the office duties she was offered on return to work, first because of continuing pain in her back and secondly because of her lack of English and inability to communicate well with those supervising her.

21 I accept this despite Ms McPherson's evidence that the work essentially involved collating drivers' delivery dockets in numerical order. It is apparent the plaintiff had never done clerical work of any type before. Her account of her return to work was circumstantial and confirmed by Ms McPherson in material respects eg Ms McPherson agreed she asked to look at the plaintiff's leg.

22 The plaintiff says that after some three days she tried to stay in bed but received a call from work and was again required to come in, this time in a taxi supplied by the employer.

23 After having seen Dr Hamza, Mrs Bozic sought treatment from Dr Bogacki, a Polish Australian doctor with whom she could communicate in Serbian. Prior to the accident her health had been generally good but she had seen Dr Bogacki after a motor car collision in which the car she was driving was struck from the rear in August 2003. This incident caused her some generalised pain, but she required no time off work or continuing treatment as a result of it.

24 Before the accident in December 2004 she did not suffer from back pain or pain in the leg. She had passed a medical check-up before starting work with the defendant.

25 She commenced using a walking stick in December shortly after the injury. She was referred by Dr Bogacki to Dr Threlfall. She was treated with traction but this did not help. At some point she started using two walking sticks. She was referred to Dr Muir at the Barwon Health Pain Management Clinic ('the Clinic') and had injections in her back. Her condition did not improve.

26 She attempted to return to work in January 2005, but was unable to perform the duties offered her and has not worked since. The evidence of the OH&S Manager is that the plaintiff presented with full incapacity certificates and by reason of these her services were terminated on 18 May 2006.

27 In her home the plaintiff now uses a computer chair to lean on and to sit on.When she goes out into the garden she uses a stick and since late 2008 when she leaves the house she uses a wheelchair.

28 At the moment she suffers pain mostly in the lower back. Her leg is a 'bit numb' but 'OK'. The pain in her back fluctuates and is aggravated by movement. It is constant but sometimes not severe. She sleeps badly. She cannot walk up or down stairs.

29 The plaintiff says that since the operation on her veins, her leg does not hurt as much. It is not so 'numb'. She currently takes a series of medications for pain management - hydromorphone (Jurnista), mirtazapine and duloxetene (Cymbalta). She has sought referrals to a series of medical practitioners including psychiatrists. She sought a referral to Dr Mathews after her father died in Bosnia and she was distressed at her inability to attend the funeral.

30 Before the accident she was a happy person, but now she feels 'very bad'. She used to attend theSerbian Orthodox Church and the Serbian Social Club in Geelong and attended soccer games. She no longer does so. She goes out less often with her husband for social visits than she used to. Her children and husband need to help her with the housework and the gardening. Her sex life has been badly affected.

31 She cannot undertake activities thatinvolve bending, lifting or twisting. She says she has not driven since the accident (a matter contested by the defendant).

32 Prior to the accident she would work overtime whenever asked to and enjoyed working. She says she would have worked until 64 or 65 but for the accident. She says that she cannot do the sort of physical work she previously did and could not sit for a long time doing office work.

33 In answer to cross-examination she said she had been treated at the Barwon Pain Management Clinic since 2005. The pain in her back worsened after treatment with injections. She has used a wheelchair since 2008. The problems with her varicose veins were alleviated by surgery performed by Mr McClure in February 2009.

34 The plaintiff does not do much during the day. Her cooking is limited to simple tasks. She cannot bend to brush her teeth and has trouble using the toilet. She showers only once a week. She experiences shooting pain like pins and needles in her lower legs, mostly when she is sitting down or standing for a long period of time. This happens less often than it used to. Her main problem is constant pain in the back and a little in the hip if she goes up or down stairs. She has short periods of minimal pain in the back but then the pain returns.

35 When she was treated at the Pain Management Clinic she was prescribed a series of medications and given exercises to perform. She was also referred to Dr Black, a psychiatrist. She received spinal injections from Dr Vagg and Dr Muir, but they gave her no relief.

36 Her sexual relationship with her husband has deteriorated since her symptoms worsened in 2008.

37 She described what occurred in 2008 (through an interpreter) as follows:

I felt very, very terrible pains in the back. I felt that I don't have feeling in my legs. I didn't want to tell anybody, I didn't told even my family in the house. I try to get up, and I couldn't do it, I fell.My son came to my help and helped me to get up. I told him to leave me, that I am going to be okay. In the meantime my husband arrive. He asked me "What happen, Stana?"I said "I cannot stand on my legs."He didn't told me anything, he just went outside and he called the first aid. I told him not to call because it's going to be better, probably. He said that he cannot watch me like that any more. In the meantime the first aid came, so my situation come to be worse and worse. But before that happen, in September, I am not sure that it's September, maybe September, I felt that I am getting worse. I went to Dr Muir and I told him. I didn't told anybody in my family in the house. He said that maybe inside move something and he told me to go for the X-ray again.When the X-rays come back, they told me that something in the back didn't stuck together, but I don't know what because nobody told me what is happened or what went wrong, they just said that something's wrong in there. And after that, I won't be able to walk and I end up in the wheelchair. [3]

38 Since the plaintiff's condition worsened she has had no active treatment other than medication. She still hopes to go back to work but she cannot at the moment. She has not undertaken any training courses or education to improve her English.

39 In 2005 and 2007 she had episodes of neck pain, but that has resolved after treatment with injections.

40 She agreed that in 2005 she saw Mr Siu, Dr Nigel Wood and Mr John O'Brien and says she co-operated with them as best she could.

41 She herself asked to see Mr Barrett after visiting a vascular surgeon with rooms close to his.

42 She thinks she did not drive her daughter's black Holden Astra on 14 May 2009.

43 It was not put directly to the plaintiff that she was malingering.

Drago Bozic

44 The plaintiff's husband gave evidence through an interpreter which was generally confirmatory of the evidence she herself had given.Mr Bozic is 47 years old and met the plaintiff in 1983. The marriage was registered in 1985. He described coming to Australia 10 years later to make a better life for their children. It is plain he is a man who works hard and is committed to his family.

45 Before her accident the plaintiff also worked hard. In addition to working for the defendant she did the bulk of the housework, tended a vegetable garden and lived an active social life. They had an excellent relationship.

46 Mr Bozic confirmed that following the accident the plaintiff was initially given a few days off, but he was told by the plaintiff's supervisor, Leanne, that he had to bring the plaintiff back to work the next day (I should add that it is apparent his spoken English is not particularly good).

47 The plaintiff returned to work but complained to him of pain in the lower back and right leg. She experienced ongoing pain and saw a series of doctors but did not find help. Her condition worsened and she has used a wheelchair since November 2008. He said through an interpreter:

She was very unwell in the evening, she was feeling big pain, very big pain few days before that. She was crying. On that day she fall in the house, yes. I couldn't look at her anymore, I didn't know how to help her. I call the ambulance ... after that they took her, carrying her from the house, they took her to the hospital.When she left hospital she came back with wheelchair. [4]

48 When she is at home the plaintiff uses a computer chair to get around. She uses crutches in the garden and a wheelchair when she goes out.

49 She doesn't go out the way she used to. She has pain and is not happy. She does very few domestic tasks. They seldom have sex. They had an investment property prior to the accident but had to sell it since the plaintiff ceased to work. The plaintiff's relationship with her children has been adversely affected.

50 In answer to cross-examination he said he had not seen the plaintiff drive since the accident, but she had told him once she took one of their children to the station. The plaintiff does not sleep well. She does prepare simple foods such as soup and sausage rolls in the microwave.

Surveillance and incidental observation evidence

51 A private investigator gave evidence of surveillance of the plaintiff. The results of extended surveillance on 39 days over six years between 20 January 2005 and 22 August 2010 were limited.

52 On 7 May 2009 a dark-haired woman believed to be the plaintiff was seen briefly from a distance of 150 metres, standing without walking aids in the front doorway of the plaintiff's home. The plaintiff was identified from a photograph.

53 On 14 May 2009 at about 2:00 pm the plaintiff was observed to drive a black Holden Astra into the Bozic property. At 2:36 pm a blue Ford Station Wagon driven by a male attended the same premises and the driver collected the plaintiff. She travelled to Smith Street, Fitzroy, where she was assisted into a wheelchair and wheeled into premises containing medical rooms. Subsequently she returned to the car from the premises in the wheelchair and was assisted getting into the car. The car returned to the plaintiff's home and she was assisted to move from the car into the wheelchair.

54 No photographic evidence of these events was obtained and counsel for the plaintiff challenged the identification of her as the driver of the Astra as unreliable. The investigator was unaware of the appearance or existence of the plaintiff's daughter so there was the possibility of mistaken identity and the observation was made briefly through the tinted windscreen of a motor vehicle as the car was driven past. On the balance of probabilities however I accept that the investigator did identify the plaintiff as the log kept at the time records.

55 The surveillance of the plaintiff otherwise did not demonstrate any activity on her part inconsistent with her evidence.

56 Mrs Price, a workmate of the plaintiff's was also called to give evidence. She had worked for the defendant for 12 ½ years at Breakwater, where the plaintiff was employed, and knew the plaintiff for about six months before her injury at the end of 2004. In early February 2005 she saw the plaintiff with the plaintiff's husband coming out of Centrepoint Arcade in Geelong early one Saturday morning. The plaintiff's husband was carrying a vacuum cleaner and the plaintiff was walking normally. The witness walked past them as they got to their car and were putting things in it.

57 She also saw the plaintiff later in 2005 at a Sunday market at the Geelong Showgrounds. The plaintiff was standing with her husband and he gave her a walking stick that he had been holding. The witness saw the plaintiff standing looking at things on a shelf. She was standing with both hands on the shelf.

58 I do not place much weight on the fact that the plaintiff was observed to walk a short distance apparently normally on a Saturday morning in February 2005. Further the observations made at the Showgrounds are entirely equivocal.

59 The observations of the investigator of the plaintiff both driving independently and using a wheelchair on the same day in May 2009 are more substantially indicative of behaviour inconsistent with her asserted level of disability.Nevertheless the observation of driving remains one incident only in 39 days of surveillance and the plaintiff's evidence is that the Holden Astra is usually driven by her daughter although it is registered in the plaintiff's name.

60 The evidence as a whole including the surveillance evidence supports the view that the plaintiff's life has been very materially constrained since she was injured. The observed incident of driving is however a circumstance which bears on the assessment of the medical evidence as a whole.

Medical opinion relied on by the plaintiff

Dr Waldemar Bogacki

61 Dr Bogacki gave evidence that he had treated Mrs Bozic as a general practitioner for at least 10 years. He saw her following a motor car accident on 27 August 2003 and diagnosed soft tissue injury. His records indicate that over the years he has also prescribed several scripts for contraceptives for Mrs Bozic and treated her for a series of health issues such as an ear infection and early prevention of osteoporosis.

62 When he saw the plaintiff on 9 December 2004 she had bruising on the external side of the right leg and complained of calf pain and pain in the right hip area.Dr Bogacki advised her to return to Dr Hamza, as the current treating doctor, for further treatment.

63 On 13 December 2004 Dr Bogacki referred her to Dr Threlfall, a doctor who specialises in rehabilitation.Dr Bogacki noted pain in the right leg up to the hip and lower back pain in his referral. In February 2005, Dr Bogacki's records show that the plainitiff attended his clinic with bad varicose veins in the right leg..

64 Dr Bogacki saw the plaintiff through 2005 for minor complaints but did not treat her for her back. In August 2005 she was referred to the Pain Management Clinic at Geelong Hospital at Dr Bogacki's request by a physiotherapist at Dr Bogacki's clinic.

65 Subsequently Dr Bogacki sought to support the plaintiff by explaining to her the results of ongoing consultations with other doctors including psychiatrists. In February 2007 his notes record a long consultation about worsening pain.

66 In November 2008 he recorded lower back pain such that the plaintiff 'can't walk, husband brought her in a wheelchair.'Since then the plaintiff has presented to him either on crutches or in a wheelchair. In Dr Bogacki's view the plaintiff's condition has deteriorated during his consulting period. He does not believe she will be able to return to the workplace.

67 In cross-examination Dr Bogacki stated that his records were not as full as his original notes because of computer difficulties. The plaintiff has told him she needs a wheelchair because of pain associated with movement. His practice is to accept patients' complaints first at face value in order to try and help them, but he added a person would have to be a 'super actor' to simulate such a condition for years and years. He said in re-examination he had never any reason to disbelieve the plaintiff in terms of her presentation to him.

68 The plaintiff has continued to obtain prescriptions for contraceptives since the accident, with the most recent prescription dated 24 August 2009.

Dr Kevin Threlfall

69 Dr Threlfall is a medical practitioner with a special interest in sports medicine. He first saw the plaintiff on 14 December 2004 after she was referred to him by Dr Bogacki. The plaintiff described a pallet falling against her right leg at work and twisting her back while trying to avoid it. She felt pain in the back and into her right leg. She was placed on light duties but told him subsequently she could not tolerate them.

70 When he first saw her, the plaintiff was distressed and complaining of pain. She limped and had bruising on the outer side of the right leg. On examination she was restricted in straight leg raising on the right side to 65 degrees. There was tenderness to palpation on the lower lumbar spine, extending to the right side and some diminution of skin sensitivity over the outer aspect of the lower right leg.Knee and ankle jerks were active and present. There was reduced power on dorsiflexion of right ankle and great toe. Pain on weight-bearing prevented testing of walking on heels and toes.

71 Dr Threlfall reviewed the plaintiff on 23 December 2004. She had been to physiotherapy but this had not helped. Her back pain was a little worse but her leg pain had reduced. He organised for an MRI to be undertaken.

72 He saw the plaintiff again on 29 December 2004. Pain persisted and she complained of loss of sleep. She was restricted in straight leg raising to only 20 degrees. The weakness in dorsiflexion of the right foot and ankle persisted.

73 Dr Threlfall reviewed the plaintiff again on 12 January 2005 and there was no improvement. Indeed, he has observed no subsequent improvement in her situation.

74 An MRI report obtained by Dr Threlfall on 9 February 2005 from St John of God Hospital stated:

Findings: The lumbar lordosis is retained as is disc height/hydration throughout the lumbar spine other than mild L5/S1 discal narrowing/desiccation.

The lower thoracic spinal cord caudal to T10 is of normal morphology and signal.

L5/S1: Minor non-compressive annular discal bulging with a small subjacent central annular tear is noted but no focal disc protrusion or nerve root compression is identified.

L4/5, L3/4, L2/3, L1/2: No focal disc protrusion/nerve root compression.

COMMENT

Minor non-compressive annular discal bulging of the L5/S1 disc with a small subjacent annular tear but no focal disc protrusion or nerve root compression is identified within the lumbar spine.

75 On 20 January 2005, she still complained of lower back pain with referral to the right leg extending to the foot. She had pins and needles extending down the right leg. On examination, straight leg raising was limited to 45 degrees on the right side and 80 degrees on the left. She complained of diminished sensation over the outer aspect of the left lower leg and a sense of hypersensitivity over the lateral aspect of the right foot.

76 There was a loss of power of dorsiflexion of the right ankle and some loss of plantar flexion.

77 A report from Dr Makas of Dr Bogacki's clinic records that the plaintiff attended the clinic on 22 February 2005 with varicose veins in the right leg and a rupture in the vein behind the right knee. On 27 March 2005 she presented with a superficial thrombophlebitis of the right leg.

78 Dr Threlfall referred the plaintiff to Mr Siu, a neurosurgeon, who reported on 21 April 2005 in part as follows:

She complained of persistent pain in the right lower limb, with numbness. She said the pain has not changed since December last year, and out of a scale of 10 she would score it as between 5 and 6. However, she claims she can't stand on the right leg. She said she had physiotherapy treatment from which she didn't derive any benefit. An MRI scan done in February shows dessication at L5-S1, but no obvious disc prolapse.

I noted today she was using a walking stick, limping favouring her right leg. She was tender to palpation in the right buttock in the region of the sciatic nerve. She can tiptoe and can stand on her heels, though was reluctant to do so. She could hardly lift her left leg off the floor when standing on the right leg alone. All reflexes were present and normal.

I do not think this lady is a surgical candidate at all and suggest that perhaps she should see a rheumatologist for management of a probable soft tissue injury to the back.

79 Following Mr Siu's recommendation the plaintiff was also seen by Dr Nigel Wood, a rheumatologist. Dr Wood was called to give evidence on behalf of the defendant and I shall return that evidence below. He did not identify a clinical basis for her symptoms.

80 In a report of December 2005 Dr Threlfall recorded he had unsuccessfully trialled a Transcutaneous Electrical Nerve Stimulation course with the plaintiff during 2005.

81 Dr Threlfall also made observations of a haematoma on the plaintiff's right leg, which was associated with thickened tissues on palpation.

82 The plaintiff also told Dr Threlfall that Dr Bogacki had referred her to the Clinic.

83 As at December 2005 the plaintiff was using a crutch and was, in Dr Threlfall's view, unlikely to be employed while this continued.

84 A further report in October 2006 recorded almost unchanged symptoms. Two reports from the Clinic recorded that she had been treated with nerve sheath injections by Dr Muir. A report from Mr Battlay indicated he considered the plaintiff had suffered soft tissue injury and a possible L5/S1 disc derangement. This was consistent with the symptoms Dr Threlfall had observed.

85 Dr Threlfall prepared another report in 2007. He had been seeing the plaintiff at four weekly intervals to provide certificates for workers' compensation purposes. She continued to complain of similar levels of pain. He continued to certify her unfit for work. She reported collapsing and seeing Dr Bogacki on 9 March 2007.

86 Dr Threlfall prepared another report in June 2008. This records the prescription of hydromorphone (Jurnista) by Dr Vagg in 2007.Dr Threlfall had seen the plaintiff on a series of occasions in the preceding year. She had told him she was having psychological counselling at the Pain Management Clinic but it was of little assistance. Injection treatment had not helped her.

87 Dr Threlfall prepared a further report on 21 January 2009 which recorded advice of a further MRI report. It also recorded a proposed admission by Dr Muir for treatment by way of Ketamine infusions.

88 The plaintiff had been admitted to hospital following an episode of severe pain on 3 November 2008 which caused her to collapse. She said that following this Dr Bogacki arranged a wheelchair for her and she presented to Dr Threlfall in a wheelchair. She said she was unable to bear weight on her right leg directly.

89 In February 2009 Mr McClure operated on the plaintiff's varicose veins.Dr Threlfall was of the view this condition was precipitated or aggravated by the injury to the right leg.

90 In March 2009 Dr Threlfall prepared a report reviewing his clinical notes and all the medical reports he had in his possession. He concluded in part:

So my opinion of this lady's condition now is I believe that she does suffer from severe constant and disabling level of pain. In the absence of the information from Dr Muir demonstrating that this lady's pain is discogenic in origin I am unable to identify any particular pathological basis for her pain.[5]

91 Dr Threlfall's evidence is that ever since the first day the plaintiff saw him, she has presented as a person suffering from genuine pain.

92 He was provided with a copy of a report from Mr Barrett and stated that he was unable to say if Mr Barrett's diagnosis was sound.

93 He expressed the view that Mr Barrett's diagnosis might contribute to a positive attitude towards rehabilitation.

94 A further report of 16 March 2010 noted the results of reports from Dr Vagg and recorded that the plaintiff's symptoms and level of activity had changed a little.Dr Threlfall regarded the plaintiff's confinement to a wheelchair as a tragedy. He attempted to encourage her to increase her activity level. In his view her hope for the future depended on becoming more mobile. In his view there was no reasonable possibility of the plaintiff returning to the workforce.

95 In cross-examination Dr Threlfall confirmed he attributed a possible cause of the plaintiff's varicose veins to the blow to her leg. He could not establish a physical cause for the plaintiff's other symptoms. The plaintiff has told him she needs the wheelchair because standing causes pain and pins and needles into her leg. People can have quite severe pain as a result of disc injury with no objective findings present.

96 Dr Threlfall indicated that the second MRI report he has read does show disc damage but he is not an expert in this regard. He asked the insurer to provide a walking frame for the plaintiff but it declined to do so. He understands the plaintiff does push a chair around in front of her to try and get active. In his view it is not unreasonable for the plaintiff to have used a crutch on her left side.

97 A diagnosis may be helpful to a patient, but a prognosis which is not bright can be unhelpful. It may give the patient the concept of a broken back when this exaggerates the underlying condition.

Dr Michael Vagg

98 Dr Michael Vagg is a medical practitioner with specialist qualifications in rehabilitation medicine and pain medicine. He gave evidence by reference to a series of records from the Clinic.

99 He produced a multi-disciplinary assessment dated 7 October 2005 in which he participated.

100 It proposed the use of Amitriptyline, a tricyclic anti-depressant drug used for pain management, caudal injection treatment (an anti-inflamatory epidural injection), individual physiotherapy and psychological treatment.

101 A psychologist's assessment records the plaintiff as having a flat affect, teary but receptive. She complained of lower back pain and pain down the leg, confusion over what was wrong, headaches and pain in the right side of the neck. The history of the injury and treatment were recorded. Impacts on the plaintiff were listed – spending the day pottering, broken sleep, family taking over her household roles but reluctantly, changed moods. She would like to know what is wrong and avoids activity that stirs up pain. She had been told by her GP that it was 'in my head' and was very upset by this. She tries to hide her feelings from family and friends. She got stressed but tried to keep it in check. Her medications are listed. Her vocational, recreational and family background are summarised. She felt like 'in a jail' when she tried to return to work and she wasn't given help when needed. The summary of the psychological assessment records:

Mrs Bozic was seen with an interpreter. She is finding it very confusing because she doesn't understand what is wrong and so doesn't know what should be done or how to help herself.While she is doing little and her disability is high her sense of control and self-efficacy is not low [sic]. She is distressed and acknowledges that. She also recognises that the stress feeds back into her pain.

102 On 11 October 2005 Dr Vagg advised Dr Bogacki by letter that the plaintiff had a number of indicators pointing to a risk of chronic disability. On the basis of her history and findings on examination he suspected the plaintiff 'probably has true discogenic pain from the L5/S1 disc.'

103 Dr Vagg explained in evidence that sinuvertebral nerve endings penetrate only a short distance into the outer part of a disc and are the only source of sensation in a normal disc.When the annulus fibrosis is disrupted this may stimulate the sinuvertebral nerve endings. The pattern of discogenic pain is generally that it is exacerbated by situations which increase pressure on the disc, such as sitting, coughing, sneezing, standing, etc. Such pain is generally perceived in the mid-back and may refer when severe. It is often described as dull thudding pain.

104 Dr Vagg believes the L5/S1 disc level was shown to be abnormal on MRI examination.

105 He relies on a combination of imaging consistent with clinical presentation over a period of time as being suggestive of discogenic pain.

106 There was no evidence of soft tissue injury to the plaintiff. In his view a small annular bulge on imaging at this level can be consistent with a painful internal derangement of the disc. The natural history of such lesions is to become less painful over 12 to 18 months. This is because generally the disc does not go on to evoke changes of central nerve sensitisation. Central nerve sensitisation refers to a group of changes which occur in the central nervous system, which can result in defective signalling of pain within the central nervous system. These, Dr Vagg believes, are a significant contributor to chronic pain.Dr Vagg further stated the plaintiff had non-anatomical weakness and altered sensation in the right leg. It was unclear to what extent this may reflect illness behaviour.

107 His initial advice to Dr Bogacki was that the clinic would see the plaintiff for follow-up treatment and caudal injection was proposed.

108 Dr Vagg wrote further letters to Dr Bogacki on 7 and 22 November 2005 recording treatment of the plaintiff directed to soft tissue pain resulting from the use of crutches. The plaintiff had responded well to injections.

109 On 20 December 2005 Dr Vagg recorded advising the plaintiff with respect to differences between chronic and acute pain. He noted her recent interaction with WorkCover appeared to have been particularly stressful. She had been very distressed at being told 'there's nothing wrong with you'. In his view her MRI findings and patterns of pain strongly suggested an internal disc derangement at L5/S1. He said further that with the levels of distress and psychosocial disability she was experiencing any successful medical treatment of the plaintiff would only address a minor part of the problem. He had sought to reassure her that although her back was painful it was not seriously damaged.

110 Dr Vagg explained in evidence that he often finds the level of pain a patient suffers depends not so much on what actually happens in somebody's back as on what happens to them emotionally and socially.

111 Dr Vagg left the Clinic in early 2006 and did not recommence treating the plaintiff until February 2009. He gave evidence of the Clinic records relating to treatment provided by Dr Muir. In April 2006, Dr Muir undertook a procedure of epidural neuroplasty which attempts to free any scar tissue attaching to particular nerve roots. He injected the area with anti-inflammatory steroids.

112 On 29 August 2006, the plaintiff underwent a transforaminal epidural injection of local anaesthetic steroid.

113 A report from Dr Muir of 24 January 2007 recorded:

The multi-disciplinary assessment conducted at the Pain Management Clinic noted high levels of disability and distress, with significant secondary physical de-conditioning. Our treatment plans, have been to encourage movement, stretching and to treat secondary anxiety syndrome, made modest progress. She has not gained substantial benefit from opioid or adjuvant pharmacotherapy, nor from the sacral iliac joint injection or the nerve root sleeve injection that have been conducted.

The patient may well represent a good candidate for a chronic behavioural pain management program ...

In my opinion the secondary physical and psychological elements of her Chronic Pain Syndrome render her currently unsuitable for work. It is certainly not the case that this is a permanent state of affairs.

114 On 6 March 2007, the plaintiff underwent pulsed radio frequency treatment of the L5/S1 foramen.

115 A report of 6 August 2007 noted no improvement. She had commenced medication with hydromorphone at the end of March 2007. She was under ongoing review by clinical psychologists and was also being tried on other medication.Dr Muir stated:

On review of notes by psychologist and physiotherapist it is clear that the patient has become more distressed and more depressed by her ongoing symptoms and also by the situation and life circumstances in which she finds herself with. She has been prescribed individual cognitive behavioural therapy and a paced exercise program with focus on improving her gait pattern. For the present this maintenance therapy remains the mainstay of her support at the Clinic ...

116 Dr Muir continued to advise Dr Threlfall of appropriate medication through 2007 and 2008. In July 2008 he recorded that the plaintiff had attended the Clinic consistently over the previous 12 months. She had seen the clinical psychiatrist, Dr Black.Dr Vagg had also performed a lumbar adhesiolysis procedure attempting to treat presumed adhesions to the lower nerve roots of the spinal cord and instil epidural steroids. This was also unsuccessful. She continued with medication.

117 On 7 November 2008 the plaintiff presented at the Geelong Hospital with lower back pain problems. The Emergency Department recorded her history. On examination she was tender over the right sacroiliac joint. She had impairment of normal hip flexion. She was admitted and an MRI was carried out. The result reported was 'no acute changes, no neural comprise, minor disc degeneration at L4/5, L5/S1.'The plaintiff was encouraged to see a consultation liaison psychiatric team but refused to do this and was discharged.

118 Dr Muir then reported to Dr Bogacki on 13 November 2008 that the plaintiff's low back pain did not appear to be associated with a change in her MRI and there were elements of anxiety acting as a pain amplifier in her case.

119 In February 2009 Dr Vagg saw the plaintiff again as Dr Muir has resigned from the Clinic. She had not progressed since he had last seen her.

120 On 16 March 2009 Dr Vagg advised Dr Threlfall concerning the plaintiff's position after she had seen Mr Barrett in Melbourne.

Stana remains angry, despondent and depressed about her back pain. She produced a letter from a Mr Barrett in Melbourne who is a spinal surgeon, though I am not familiar with his work. He was of the opinion that she has discogenic pain due to an internal disc derangement, and I would agree with that opinion. However I would suggest that he may not have considered the central sensitisation element of her problem, and unfortunately his recommendation was that she take analgesia and restrict her activities to only what she can tolerate. This recommendation is at odds with what we are trying to achieve with our reviewing her here, and tends to reinforce the perception of helplessness and external locus of control.

121 Dr Vagg continued to prescribe medication and recommended psychiatric review.

122 In June 2009 he advised that the plaintiff remained 'as stuck as ever with a high level of disability and poor self-efficacy'. He had explained to the plaintiff that she might seek more intervention treatment at the Metro Spinal Clinic. He referred her to Dr Verrills at this Clinic. Dr Verrills reported back to him that he had had a lengthy discussion with the plaintiff explaining the concept of a disco-gram and also whether she would consider going on to a more significant procedure.

123 On 18 May 2010 Dr Vagg advised Dr Bogacki that little had changed with the plaintiff. There was a stalemate between her desire for a treatment which might improve her pain and her reluctance to consider any treatment or surgery which may worsen it.

124 Dr Vagg's opinion is that the plaintiff's presentation over five years is consistent with central nerve sensitisation. This is likely to remain at about the same level and is best treated with cognitive behavioural therapy.

125 In cross-examination, Dr Vagg agreed that no sustained improvement has occurred in the plaintiff's condition as a result of any treatments she has had. He agreed the plaintiff's symptoms of pain were self-reported, but he believes they are consistent with discogenic pain. Injury to the L5/S1 disc itself will not produce consequential neurological symptoms. Compression of a nerve root may cause consequential symptoms but the changes tend to be patchy.None of his other patients suffering from discogenic pain is in wheelchair. He tried to reassure the plaintiff in 2005 that her back was not seriously damaged and he has since sought to encourage her to move her back as normally as possible.

126 Dr Vagg has patients who regularly report increased back pain without changes to scan evidence or clinical examination findings.

127 It is possible a patient like the plaintiff who has numerous physical treatments which do not work, does not in fact have a physical problem, but this is unlikely. If the plaintiff is not physically injured then she has a level of psychiatric illness 'way beyond the average'.[6]

128 In his Clinic, circumstantial evidence of malingering is generally required before it is accepted that a patient is in fact malingering. They do not use the term 'inorganic pain' much in pain medicine these days.

129 Dr Vagg does not consider the findings made on clinical examination by Mr O'Brien or Dr Nigel Wood are inconsistent with what he has found on examination of the plaintiff. But he accepts some findings are not consistent with disc injury. Some symptoms are consistent with deliberate exaggeration and with abnormal illness behaviour.

130 He has seen no evidence of deliberate exaggeration on the plaintiff's part in the time he has examined her. He agrees there is no evidence that an operation or other procedure is clearly beneficial for this sort of patient. People who have relatively minor disc injury may have high levels of disability.

131 He agrees that the findings of Mr Brazenor (see [277]-[302] of these reasons) on clinical examination are very much against chronic nerve root compression, but some findings are consistent with central nerve sensitisation.

132 He has not looked at the MRI images himself. He agrees that if there is a disc injury you would generally expect to see a disc protrusion, although only a very small visible bulge can be a potential source of pain. He also agrees the injured disc would generally resorb within time and he agrees that the natural history of these disc injuries is that they become less painful as time goes by.

133 Scans do not always indicate the level of a patient's disability. The fact of no change in the scans over four years is more consistent with traumatic injury than gradual degenerative change. If there was a large prolapse you would expect to see it reduce in size over time but this is not such a case.

134 He does not agree that the plaintiff is a malingerer although he agrees it is a view you could entertain if you had only seen her once as Mr Brazenor did.

135 In his view the plaintiff is one of a number of patients his Clinic has, who have a relatively minor initial injury but subsequently develop marked psychiatric and psychosocial responses. This is probably due, in his view, to the development of central nerve sensitisation and, to the extent that anyone can objectively determine whether someone has pain or not, he believes the evidence is that the plaintiff does.

136 The variations in the plaintiff's presentation over time are, in his view, due to illness behaviour. He agrees that in the normal course of events someone with even quite severe discogenic pain remains mobile to some degree but patients adopt novel and sometimes irrational ways of dealing with pain.

137 He agreed in re-examination that while her back pain has remained constant her leg pain has reduced. The treatment of her neck also appears to have been successful.

Dr John Black

138 Dr Black is a specialist psychiatrist practising at the Geelong Hospital who spends one afternoon a week at the Pain Clinic. He first saw the plaintiff in the Clinic in October 2007 and has seen her probably less than 10 times since. He took long service leave through most of 2009.

139 The plaintiff has always presented in a stressed and agitated state with thoughts of suicide and symptoms of depression. She has been treated with anti-depressants. Her condition would make it hard for her to go to work.

140 In cross-examination he stated his diagnosis was one of depression associated with chronic pain. He did not find the notion of adjustment disorder helpful given the length of time involved in her symptoms. He understood her state of mind was related to pain occasioned by a workplace injury.

141 Chronic pain is an appalling thing to live with. The nature of the causal link between the physical pain and depression is very difficult to establish but the temporal relationship can be observed. The subjective sense of pain is highly coloured by the presence of things like depression.During 2007 and 2008 the plaintiff's condition waxed and waned but there was no substantial change in it. The plaintiff's whole life is organised around her pain and he doubts if there is much room for anything else most of the time.

Dr Gerald Mathews

142 Dr Mathews has practised as a consultant psychiatrist since 1986. He has seen the plaintiff in April and May of this year. The plaintiff was referred to him by Dr Bogacki for opinion and possible management input. In his view the plaintiff has suffered from a depressive reaction and adjustment disorder since the time of the initial injury, which has been made worse by ongoing symptoms of pain, difficulties in respect of WorkCover and ongoing financial loss.

143 He recorded the plaintiff's personal history and noted she had lived through the Balkan War with three young children under the age of nine. Her history of experience in the former Yugoslavia and migration to this country mean that her depressive reaction, adjustment disorder, and pain symptoms are also part of a more complicated medley of realities that involves ongoing grieving for times past and times lost, the haplessness provoked through cultural and language barriers, and the ambush of an accident such as her back injury which is allowed structure and form of expression under the WorkCover system.

144 She is more vulnerable in terms of her depression and adjustment disorder worsening because of her background.

145 In his view there is no doubt Mrs Bozic is both frustrated and angry but she is also anguished by what her injury has cost her in terms of her job, status, finance and previous abilities. In his view she appears to need time, through an interpreter she trusts, to ventilate both her injury and her depressive reaction and adjustment disorder. In his view she requires ongoing psychotherapy. His prognosis is guarded as to her future capacity for work.

146 He noted that her sleep remains significantly compromised, she complains of headaches, of ongoing significant fatigue, of ongoing lowered mood, of significant cognitive compromise, of generalised anxiety causing almost social autism of sorts and tearfulness when challenged by any new stress whatsoever to the point that it appears to be her main emotional response to anything new or unexpected in her life.

147 Nevertheless at the core of her difficulties lie significant intractable pain symptoms originating in the back injury she suffered in the accident in December 2004. Prior to this she showed no evidence of emotional, psychological or physical compromise.

148 He would apply the term 'illness behaviour' rather than the more deliberate concept 'learned pain behaviour' which Professor Mendelson has used.

149 In Dr Mathews' view the plaintiff has had an understandable psychological reaction to her physical complaints. She has developed depressive anxiety and adjustment disorder symptoms over time.

150 Mr Barrett's opinion was very significant for the plaintiff because she was relieved to be given a positive reason for her pain.