Allen v Victorian WorkCover Authority
[2021] VCC 1163
•24 August 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-05064
| MARISE ALLEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2021 | |
DATE OF JUDGMENT: | 24 August 2021 | |
CASE MAY BE CITED AS: | Allen v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1163 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – where subsequent aggravation - disentanglement
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Rowe v Transport Accident Commission [2017] VSCA 377; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 at 394; Altona Bus Lines v Lococo [2002] VSCA 159
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Ms M Cameron | Arnold Thomas & Becker |
| For the Defendant | Mr A Saunders | Hall & Wilcox |
HER HONOUR:
1The plaintiff, Marise Allen, applies for leave to bring proceedings for damages. Ms Allen says that she has suffered a serious injury as a result of her employment with Care Park Pty Ltd (“Care Park”) in 2011.
2It is not in dispute that Ms Allen suffers an impairment to her right shoulder and neck,[1] the consequences of which satisfy the requirements for a serious injury with respect to both pain and suffering and loss of earning capacity. The uncontradicted evidence is that Ms Allen suffers severe ongoing daily pain which has dramatically impacted on her daily activities, her enjoyment of life, and her capacity to engage in productive employment.
[1]The defendant accepted there was no need in the circumstances of this case to disaggregate the neck and shoulder impairments; see Transcript (T”) 4, Lines “L” 14-26.
3It is also not in dispute that Ms Allen’s employment at Care Park between 17 January 2011 and 14 November 2011 materially contributed to her current shoulder and neck impairment. The preponderance of the medical evidence is that Ms Allen’s duties at Care Park were a cause of Ms Allen’s neck and shoulder conditions. Further, Care Park has paid for surgery to both Ms Allen’s cervical spine and right shoulder, which it accepts is an admission that her employment with Care Park materially contributed to her neck and shoulder conditions.
4The sole issue in this proceeding is the extent to which the impairment to Ms Allen’s neck and shoulder (and its consequences) can be attributed to her employment with Care Park. The defendant submits that:
(a) it is not sufficient that Ms Allen’s employment at Care Park in 2011 was “a cause” of her neck and shoulder conditions. Ms Allen bears the burden of proving that the injury she suffered at Care Park was causative of the impairment consequences which she relies upon;[2]
(b) Ms Allen suffered further injury (aggravation) to her neck and shoulder during the course of her employment with Tabcorp between December 2012 and July 2014; and
(c) the impairment consequences of any injury suffered by Ms Allen arising out of her employment with Care Park cannot be disentangled from the aggravation to her neck and shoulder injury which arose out of her employment with Tabcorp.
[2] Rowe v Transport Accident Commission [2017] VSCA 377.
5For the reasons which follow, I have concluded that the plaintiff has suffered an injury arising out of, or in the course of, her employment at Care Park, the impairment consequences of which satisfy the requirements of a serious injury.
Relevant factual background
6Except where otherwise indicated, the following facts are drawn from the unchallenged affidavit evidence of Ms Allen.
7Ms Allen was born in New Zealand in 1961. She moved to Australia in 1998. Over the next thirteen years she worked in a variety of administrative and clerical jobs, including working in a call centre, accounts and general office work, and working as a credit controller. She experienced occasional soreness or aching in her neck, however this did not lead her to take time off work or impact on her daily activities.
8Ms Allen commenced employment with Care Park on 17 January 2011 as an accounts receivable and credit control officer. She often worked unpaid overtime and there was a large backlog of work for her to get through. Her role was computer based. Performing her role required her to enter information into a computer while speaking to customers on the phone. It also required her to reach up to access heavy files stored on a shelf above her desk while speaking to customers on the phone. As Ms Allen was not provided with a headset until around October 2011, she performed these tasks cradling the phone between her neck and right shoulder.
9Within a few months of starting employment at Care Park, Ms Allen began to experience pain in the right side of her neck and shoulder. The pain progressively worsened throughout 2011. She consulted Dr Huy Tan Nguyen, a general practitioner (“GP”) in relation to her pain on about 11 October 2011. After an ultrasound and x-ray of her right shoulder, he recommended a cortisone injection. Ms Allen sought a second opinion from another GP, Dr John Bongiorno and then in early November 2011 commenced physiotherapy with Ms Julia Pook at the Richmond Physiotherapy Clinic. Ms Allen was taking a number of days off work because of her pain.
10On 11 November 2011, Ms Allen gave notice to Care Park, having secured new employment at Medibank, which involved less data-entry work. On 14 November 2011, she commenced sick leave and did not work again at Care Park.
11On 15 November 2011, Dr Bongiorno told Ms Allen he did not deal with WorkCover claims and referred her to another GP, Dr Brian Gamboni. Ms Allen attended Dr Gamboni on 16 November 2011 and he provided her with a WorkCover certificate.
12On 16 November 2011, Ms Allen lodged a WorkCover claim. She received a phone call from a representative of Care Park’s insurance company and was told her claim would not look good with her new employer. On 18 November 2011, Ms Allen withdrew her WorkCover claim.
13On 28 November 2011, Ms Allen commenced working at Medibank. Her role included less data entry work and her symptoms improved a lot, although she says the pain did not go away completely and flared up with any strenuous activity or activity that involved repetitive use of her arms, such as end-of-month data entry tasks. She says that she usually had to take time off due to the pain in these periods. As this evidence was contested, I will say more about this in the next section.
14Ms Allen worked at Medibank until the end of 2012. In December 2012, she left and commenced working at Tabcorp. Ms Allen anticipated that her role at Tabcorp would involve mainly phone-based work, but shortly after she arrived her team leader left. Ms Allen was required to work long hours without breaks and to perform a lot of computer-based work. The pain in her neck, right shoulder and right upper arm flared up and progressively worsened over the next few months.
15By April 2013, Ms Allen had started attending physiotherapy with Ms Pook again. Ms Pook provided Ms Allen a certificate stating that she could only work 7.5 hours per day and required regular breaks.
16In May 2013, a return to work plan was put in place for Ms Allen at Tabcorp, which provided for Ms Allen to work no more than 7.5 hours per day, take regular breaks and use her left hand as much as possible. She had a cortisone injection in her right shoulder on 6 June 2013, but still experienced a lot of pain, and also tingling down her right arm and in her fingers when she tried to return to work. She ceased work because of her symptoms.
17On 6 September 2013, Ms Allen had a second cortisone injection in her right shoulder. It did not help her pain. She returned to work at Tabcorp on modified duties and reduced hours. She remained on modified duties until she ceased working at Tabcorp in about July 2014.
18Since that time, Ms Allen has suffered ongoing neck, right shoulder and right arm pain. She continued working until July 2017, and in that time worked a variety of clerical and administrative jobs, with varying degrees of success. She underwent surgery on her right shoulder on 16 December 2014 and surgery on her cervical spine on 7 February 2019. She has also had a number of other treatments, including ketamine infusions and a C5 transforaminal injection to her neck, and has completed a pain management course. She uses frequent pain medication, including Palexia 50 milligrams, Panadol Osteo and Cymbatta 60 milligrams.
Symptoms, duties and treatment while at Care Park, Medibank and Tabcorp
19The defendant challenged Ms Allen’s evidence in one key respect. It submitted that I should find that Ms Allen substantially recovered once she left Care Park, and that while she was working at Medibank she received little or no treatment, had little or no time off work, and experienced a 90 per cent improvement in her symptoms. The defendant submitted that I should find that there was a significant deterioration in Ms Allen’s symptoms, and a dramatic increase in her treatment during Ms Allen’s employment at Tabcorp.
20I formed the view that Ms Allen was a truthful witness who frankly answered the questions asked of her, admitted occasions when her memory might be unreliable and was prepared to accept propositions put to her on the basis of medical records when her memory was not clear. In light of this, I make the following findings in relation to her symptoms, duties and treatment while at Care Park, Medibank and Tabcorp:
(a) Ms Allen worked at Care Park for nearly ten months, and during that period not only did a lot of computer-based data-entry work, but also cradled a phone between her neck and shoulder while entering information on a computer. She also lifted down heavy files from a shelf above her desk while cradling her phone between her neck and shoulder. Her severe neck and shoulder pain commenced in this context. Despite working for many years in administrative and clerical jobs, she had not experienced anything like this pain previously;
(b) While working at Care Park:
(i)Ms Allen commenced taking significant pain medication, including Nurofen and Tramadol for her symptoms;
(ii)Dr Nguyen recommended a cortisone injection, but Ms Allen did not follow that recommendation as she preferred more natural treatments;
(iii)Dr Bongiorno referred her to an orthopaedic surgeon, Mr Douglas Li, (although Ms Allen did not attend her first appointment with Mr Li until August 2012); and
(iv)Ms Allen commenced receiving self-funded physiotherapy treatment. This treatment continued after she commenced working at Medibank, until March 2013;
(c) I accept that Ms Allen’s symptoms significantly improved with lighter duties at Medibank. However, Ms Allen continued to experience pain and restrictions on movement in her shoulder. She also experienced flare ups in pain towards the end of the month when the requirements to engage in computer-based data entry increased;
(d) on 14 August 2012, while working at Medibank, Ms Allen attended her first appointment with Mr Li, her treating orthopaedic surgeon. The defendant relied upon the history recorded by Mr Li that Ms Allen had noticed a “significant (90%) improvement in her symptoms”.[3] However, Mr Li also noted that Ms Allen had ongoing shoulder pain and some difficulties lifting especially when reaching out or overhead. He observed that Ms Allen had pain and dysrhythm when he tested her range of motion. Ultimately, he concluded that Ms Allen’s clinical features and symptoms were in keeping with rotator cuff impingement and arranged for an MRI scan. This is not consistent with Mr Li forming the view that Ms Allen had recovered or that her injury was substantially resolved. Indeed, Ms Allen would be unlikely to have attended this appointment if she held the view that she had recovered from the injury suffered at Care Park. I do not place particular weight on the specific percentage of improvement recorded by Mr Li. I prefer Ms Allen’s direct recollections of her symptoms;
(e) I accept Ms Allen’s evidence that she obtained a number of medical certificates for time off work while at Medibank, particularly towards the end of each month. Ms Allen was unshaken in this evidence under cross-examination. It appears from Dr Gamboni’s clinical notes that she did not see Dr Gamboni while working at Medibank. If these records are correct, Dr Gamboni could not have provided her with these certificates. However, it appears from the clinical notes of Dr Bongiorno that he saw Ms Allen on at least twelve occasions during the period she was working at Medibank. Multiple prescriptions for Panadeine Forte appear to be recorded in his notes in this period. On at least two occasions there are references to right shoulder issues (27 April 2012: “Tendonitis R Shoulder”; 25 May 2012: “Painful shoulder”). On a number of other occasions, a date is marked but no history recorded at all. On others, a single word is recorded. Although very difficult to read, there is one entry which may be a reference to provision of a medical certificate for one day. Clearly these are not the notes of a medical practitioner who was accustomed to taking an exhaustive record of everything said in an appointment. The notes are not inconsistent with Dr Bongiorno having provided Ms Allen with medical certificates for time off work at Medibank. If anything, they are corroborative of Ms Allen’s evidence that she continued to suffer pain in her right shoulder while working at Medibank, which required her to consult her GP and obtain prescription pain medication;
(f) Ms Allen did not have physiotherapy treatment between 9 March 2012 and 15 April 2013. I accept that this was due to a combination of the fact that her symptoms were significantly reduced while she was working at Medibank and the expense of physiotherapy treatment which, at that point in time, was self-funded. Ms Allen recommenced regularly attending physiotherapy treatment on 15 April 2013. She obtained WorkCover funding for her ongoing treatments shortly after this time. She continued with regular physiotherapy treatment until May 2016, when WorkCover-funded sessions ceased;
(g) the most intense period of Ms Allen’s work at Tabcorp was from around late January 2013 – April 2013, a period of approximately three months. During this time, Ms Allen was working ten-hour days and was performing a large amount of computer-based work, including data entry. Her right shoulder and neck pain significantly worsened. By the end of May 2013, she was also reporting a new symptom, which was pins and needles or tingling in her right forearm;[4] and
(h) after May 2013, Ms Allen was on a return-to-work plan which involved working no more than 7.5 hours per day, taking regular breaks and trying to use her left hand. She was off work from approximately June 2013 to August 2013 due to her pain. She returned to work in September 2013 on modified duties, which she remained on until she ceased working for Tabcorp altogether in July 2014.
[3]Plaintiff’s Court Book (“PCB”) 54.
[4]Report of Mr Douglas Li dated 16 July 2014, PCB 57; First affidavit of Ms Allen sworn 2 July 2018, paragraph 33 at PCB 21.
Medical evidence
21Turning to the medical evidence, the clear preponderance of the medical evidence is to the effect that Ms Allen’s employment at Care Park caused an ongoing injury to her neck and shoulder from which she had not recovered by the time she commenced employment at Tabcorp.
22In particular:
(a) Dr Gamboni expressed the view that her injury was caused by her employment at Care Park and “exacerbated” by her duties at Tabcorp;
(b) Ms Pook stated that between 5 November 2011 and 9 March 2012, Ms Allen’s symptoms improved but did not completely resolve;
(c) Dr Nash (her current treating pain specialist) considered there to be a “firm relationship” between Ms Allen’s current injuries and her employment at Care Park;
(d) Mr Ash Chehata, a medico-legal orthopaedic surgeon retained by the plaintiff, stated that it was likely that the repetitive tilting of her neck (in her employment at Care Park) contributed to “the development and aggravation of the arthritic process in the cervical spine, ultimately leading to a C6 radiculopathy and the development of recalcitrant bursitis”;[5]
(e) Dr Symon McCallum, a medico-legal anaesthetist and pain specialist retained by the plaintiff, stated that “It seems as though Ms Allen’s current condition diagnosed the injuries are going to be related to employment with CarePark (sic)”;[6]
(f) Dr Joseph Slesenger, a medico-legal specialist occupational physician retained by the plaintiff, expressed the view that Ms Allen’s:
“… employment with Care Park is a significant factor with regarding the onset of her symptoms, both with regard to the cervical spine and the right shoulder; however, I am also of the opinion that the job tasks performed at Tabcorp are also a contributory factor to her current overall impairment and disability”;[7]
[5]PCB 156.
[6]PCB 179.
[7]PCB 196.
(g) Dr Neil Berry, a medico-legal senior consultant surgeon who examined Ms Allen on 16 May 2013 at the request of CGU Workers Compensation, expressed the view that Ms Allen’s injury was a result “of the high volume work carried out in an awkward position”.[8] It is apparent from the history taken by Dr Berry that this is a reference to work performed at Care Park;
(h) Dr Geoffrey Graham, a medico-legal occupational physician who examined Ms Allen on 8 July 2013 at the request of CGU Workers Compensation, said that Ms Allen’s then current condition was “an exacerbation of symptoms relating to a problem which first occurred approximately two years ago [i.e. when Ms Allen was employed at Care Park]”[9] and that “[s]he does have a pre-existing injury and has been symptomatic for two years [i.e. since her employment at Care Park]”;[10]
(i) Dr Roy Karna, a medico-legal rheumatologist who examined Ms Allen on 9 April 2014 at the request of CGU Workers Compensation, stated that “it is clear that the onset of symptoms and indeed I believe the majority of liability rests with the initial employer Care Park Pty Ltd with perpetuation and/or exacerbation of symptoms whilst working with Tabcorp”.[11] In relation to the impact of her duties at Tabcorp, he accepted that these duties had “an aggravating influence”[12] or a “symptomatic exacerbating influence”.[13] However, on 14 May 2014 he concluded that “her ongoing symptoms I believe, on balance relate to the onset of her original injury with Care Park Pty Ltd”;[14]
(j) Dr David Fish, a consultant occupational and environmental physician retained by CGU Workers Compensation, said “[t]he majority of the impairment in my opinion arises from her employment with Care Park”.[15] He considered that Ms Allen had a 5 per cent impairment of her right shoulder, of which 4 per cent was attributable to her employment with Care Park and 1 per cent attributable to her employment with Tabcorp; and
(k) a Medical Panel provided a Medical Panel Certificate of Opinion dated 18 January 2017. The Panel was asked to provide an assessment of the degree of permanent whole person impairment which resulted from an injury suffered by Ms Allen during the course of her employment with Tabcorp. The Panel concluded that Ms Allen had a pre-existing (i.e. prior to Tabcorp) permanent impairment of her neck and right shoulder. The Panel assessed her as having a 5 per cent whole person impairment by reason of her neck condition, of which 5 per cent was attributable to her pre-existing injury (i.e. the injury she suffered as a result of her employment at Care Park) and a right shoulder impairment of 7 per cent, of which 5 per cent was attributable to her pre-existing injury (i.e. the injury she suffered as a result of her employment at Care Park.).
[8]Defendant’s Court Book (“DCB”) 24.
[9]DCB 33.
[10]DCB 34.
[11]DCB 56.
[12]DCB 63.
[13]DCB 64.
[14]DCB 64.
[15]DCB 80.
23The defendant submitted that Ms Allen had nevertheless not discharged the burden of establishing that her employment at Care Park was causative of consequences that were serious. In particular, it was submitted that Ms Allen had not disentangled the injury suffered as a result of her employment at Care Park from the injury suffered as a result of her employment at Tabcorp. The defendant relied upon the report of Dr Andrew Miller, a medico-legal occupational health consultant who examined Ms Allen on 19 December 2013, who expressed the view that Ms Allen’s employment at Tabcorp “is still materially contributing to the injury and her ongoing partial disability”[16] and that “[h]er employment [at Tabcorp] is still materially contributing to the claimed injury as her symptoms have persisted since the injury was sustained”.[17] The defendant also submitted that:
(a) I should not accept the opinions of the medico-legal practitioners relied upon by the plaintiff, as they had not been provided with a complete history; and
(b) the opinion of the Medical Panel was based on a starting point of the acceptance of Ms Allen’s injury and was an impairment assessment in accordance with the AMA guides, rather than a serious consideration of questions of causation.
[16]DCB 51.
[17]DCB 53.
24I accept that the majority of the medical reports tendered in evidence address the question of whether Ms Allen’s employment at Care Park materially contributed to Ms Allen’s total current condition (to the extent they address causation at all). However:
(a) the opinions of Dr Fish and Dr Karna both support the view that the bulk of Ms Allen’s symptoms are attributable to her employment at Care Park. In light of my factual findings in the previous section, I do not accept that those opinions relied upon histories which were inaccurate in any significant respect. Both noted onset of symptoms at Care Park, improvement in symptoms at Medibank and an increase in symptoms after commencing work at Tabcorp. The history taken by Dr Fish also expressly included reference to the pins and needles that Ms Allen developed after commencing work at Tabcorp;
(b) while I accept that the Medical Panel was determining a question different to the question in issue in this proceeding, in the course of answering that question, the Medical Panel expressed the opinion that Ms Allen had an injury to her shoulder and her neck which pre-existed her employment at Tabcorp. With respect to her neck, the Medical Panel expressed the opinion that her duties at Tabcorp had not increased her level of impairment as at January 2017. In relation to her shoulder, the Medical Panel expressed the opinion that the pre-existing injury caused the bulk of her impairment as at January 2017 (5 per cent out of 7 per cent). I give particular weight to these views given they are the joint views of three independent medical practitioners; and
(c) I do not find the report of Mr Miller of particular assistance. It goes no further than stating that, as at 19 December 2013, Ms Allen was suffering symptoms which were materially contributed to by her employment at Tabcorp. In particular, it does not provide any evidence as to the extent to which Ms Allen’s current impairment was caused by her employment at Tabcorp.
25Having considered this evidence in light of my factual findings, I am satisfied that the contribution (if any) of Ms Allen’s employment at Tabcorp to her current impairment is relatively minor. The bulk of her current impairment can be attributed solely to her employment at Care Park and would have been suffered even if she had not worked at Tabcorp. Given Ms Allen’s unchallenged evidence as to the very severe impact of her current impairment on her daily activities and capacity for employment, this is sufficient to satisfy me that Ms Allen has suffered a serious injury with respect to both pain and suffering and loss of earning capacity consequences.
26However, there is a further basis upon which Ms Allen is entitled to succeed in her application. Prior to working at Care Park, Ms Allen had performed administrative and clerical roles for many years without any significant difficulty. I accept that Ms Allen’s work at Care Park involved particularly awkward sustained postures and caused a significant ongoing and symptomatic injury to her right shoulder and neck. After leaving Care Park, Ms Allen experienced a worsening of her symptoms whenever she engaged in intense computer-based work (including at both Medibank and Tabcorp). Although she was employed by Tabcorp from December 2012 until July 2014, the aggravation of Ms Allen’s shoulder and neck condition is attributed principally to three months of intense computer-based work performed by Ms Allen between about January and April 2013. I am satisfied, on the balance of probabilities, that any such aggravation would not have occurred were it not for the original and unresolved injury which she suffered while working at Care Park. Accordingly, any such aggravation can itself be viewed as an impairment consequence of the injury suffered by Ms Allen while working at Care Park.[18]
[18]Rowe v Transport Accident Commission (supra) at paragraph [83]; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 at 394; Altona Bus Lines v Lococo [2002] VSCA 159 at paragraphs [11]-[12].
27Ms Allen has suffered a serious injury with respect to both pain and suffering and loss of earning capacity consequences. I will grant leave to bring proceedings for damages with respect to both pain and suffering and pecuniary loss and hear from the parties on the question of costs.
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Certificate
I certify that these 14 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 24 August 2021.
Dated: 24 August 2021
Jane Le
Associate to her Honour Judge Tran
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