Andjic v VWA
[2019] VCC 1678
•14 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03701
| SANDRA ANDJIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 July 2019 | |
DATE OF JUDGMENT: | 14 November 2019 | |
CASE MAY BE CITED AS: | Andjic v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1678 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to the spine
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; Spence v Gomez [2006] VSCA 48; Bezzina v Phi & Anor [2012] VSCA 161; The Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292; Lexa v Transport Accident Commission [2019] VSCA 123; Transport Accident Commission v Zepic [2013] VSCA 232; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull QC with Mr S Jurica | Zaparas Lawyers |
| For the Defendant | Ms F Ryan | IDP Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff applies pursuant to s335 (1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for the grant of a serious injury certificate. The plaintiff says that she has suffered a serious long-term impairment and/or loss of function of the spine including but not limited to cervical disc injury, aggravation of degenerative changes and/or a serious long-term impairment and loss of function of bilateral upper limbs including but not limited to bilateral thoracic outlet syndrome.[1]
[1]The plaintiff ultimately only relied on the function of the spine.
2 Whilst the plaintiff commenced proceedings for pain and suffering, loss of earning capacity, and a mental disturbance or disorder, at the commencement of the hearing she abandoned reliance on a mental disturbance or disorder and confined her application to one of pain and suffering and loss of earning capacity.
3 The plaintiff was represented by Mr Seccull QC with Mr Jurica of junior counsel. The defendant was represented by Ms Ryan of counsel. Ms Ryan succinctly identified the defence as that the plaintiff’s “current condition is a progression of a longstanding degenerative disease which was previously symptomatic.[2] The argument was that the plaintiff did not suffer a new injury and neither did she suffer an aggravation-type injury. Therefore, causation and the plaintiff’s previous medical history lay at the heart of the application.
[2]Transcript (“T) 2 L23
4 Ultimately, the evidentiary dispute between the parties was distilled to a resolution of these questions:
· First, was an injury suffered by the plaintiff at work on 20 June 2016?
· Second, what body function was impaired by the injury?
· Third, was the injury productive of consequences to the plaintiff that are long term and more than considerable and hence serious?
· Fourth, because the plaintiff presented with a non-work related pre-existing spine condition did she suffer a new injury and/or did she suffer an aggravation of her already degenerative spine?
· Fifth, if the plaintiff suffered an aggravation of her degenerative spine was it a serious injury or would the plaintiff have come to the claimed consequences regardless?
· Sixth, and depending on the answers to the above, has the plaintiff sustained pecuniary loss in accordance with the requirements of the Act?
5 In answer to the questions, I am satisfied for the reasons that follow that:
· The plaintiff suffered a work injury on 20 June 2016.
· The function of the spine was impaired by the injury.
· The injury was not productive of impairment consequences that are serious.
· The injury was an aggravation type injury to the plaintiff’s degenerative spine.
· The plaintiff would in any event have come to the claimed consequences.
· The question of the plaintiff having suffered pecuniary loss does not arise for consideration.
6 On the issue of pain and suffering consequences, the plaintiff deposed in her affidavits[3] to a series of matters that would fall to be considered in that context. She was not cross-examined about them because, in accordance with the defence, and Ms Ryan’s submission that the plaintiff had not suffered a serious injury, counsel for the defendant appreciated, without conceding the point, that if I determined in the plaintiff’s favour on the primary issues, then the consequences relied on by the plaintiff would likely meet the test for seriousness on the narrative test for range. However, the question is rendered moot, because of my findings on the primary questions for decision.
[3]Affidavits affirmed 6 April 2018, 19 December 2018 and 20 June 2019 Exhibit P2 Plaintiff’s Courtbook (“PCB”) 8-23
The plaintiff
7 The plaintiff is 42 years of age. Having listened to and observed her during the course of the hearing, I had no reason to consider her otherwise than an honest witness. Some events occurred a fair time ago and memory can be imperfect. As to those matters where I have chosen not to accept the plaintiff’s evidence, it is for reasons related to reliability and not her credibility.
8 The plaintiff is married. She has two adult children and a child aged 11. She finished high school. She began, but did not complete, a Bachelor of Arts Degree. She has held a variety of employment in essentially white-collar positions including in insurance and banking, both in advisory capacities, and also sales and customer service roles.
9 The plaintiff commenced employment with Flight Centre on 20 June 2016. Unfortunately, she suffered injury on her first day of work. She explained what happened. She said she and a co-worker were each lifting boxes of brochures that had been delivered to the workplace and, in the process of lifting a box (possibly the third or fourth of them, but it was never really better identified) off the floor in order to place them on a desk, she felt a sharp pain in her neck that radiated to her left arm.[4]
[4]PCB 8-15, paragraph 6 Exhibit P2
10 The plaintiff did not report the work incident. Her explanation for this omission was understandable because, as she explained, she had only that day commenced employment and, being subject to a probationary period, did not want to do anything that she considered might have jeopardised her employment with her employer. The plaintiff also said that she hoped the pain would pass because she had experienced pain previously and it had always disappeared in reasonably short order. However, her optimism on this occasion was misplaced, and the pain persisted, but she managed it with medicines she had left over from a previous but unrelated medical event.
11 After approximately a week of putting up with pain, the plaintiff went to her osteopath Mr Jakovljevic. She had been seeing Mr Jakovljevic for treatment from time to time and well-before 20 June 2016. She did not mention the work incident to him initially. Given the plaintiff’s belief that the incident that occurred on 20 June 2016 was the cause of the onset of pain that had not gone away, unlike her previous experiences of pain, her failure to mention it to him was inexplicable. At all events, and despite subsequent attendances on Mr Jakovljevic for treatment, she said her neck pain and upper left limb pain worsened.
The progression of investigations
12 On 4 August 2016, the plaintiff attended on her general practitioner, Dr Madhanpall at the Bacchus Marsh Medical Centre because of pain. She recounted to him the 20 June 2016 work incident. He organised an MRI and referred the plaintiff to Mr Bhaskar, neurosurgeon, who thought that the plaintiff had been suffering “severe left interscapular pain and left arm pain that has not improved at all”.[5] Although the plaintiff did not attend Mr Bhaskar with her MRI scan, nonetheless, he understood the scan had identified “severe foraminal stenosis at C5-6 on the left and moderate to severe stenosis at C6-7 as well”.[6] Mr Bhaskar observed absent biceps jerks and supinator jerk on the left side and provided the plaintiff with a prescription for a left C6 nerve root sleeve injection.
[5]PCB 40
[6]PCB 40
13 In September 2016, the plaintiff was seen by Professor Bittar, neurosurgeon, on referral from her general practitioner. She underwent an x-ray and MRI of her neck. He told her that she had a severe neck problem and that she should consider surgery. The plaintiff has rejected surgery to date because she is fearful of the risks associated with it relevant to the likelihood in the reduction of pain. It was not suggested by the defendant that her attitude to the surgery is unreasonable.
14 The plaintiff was seen by Mr Wallace, neurosurgeon, on 21 September 2016.
15 Although the plaintiff said she was in pain following the work injury, she continued to work with Flight Centre for almost a year. She explained that being seated for long periods of time at her desk or at her computer triggered a worsening of pain in her shoulder as well as in her left upper arm such, that by May 2017, she felt the need to cease working. She has not worked since. She says she is incapable of work because of constant pain.
Post-accident treatment.
16 The plaintiff’s post-accident treatment has been productive of a significant number of written reports from those who have treated her and also from medico-legal examiners. A substantial number of reports were tendered. I do not believe that they were all necessary. A number of them do little more than repeat facts and adopt opinions expressed by the authors in earlier reports. I do not intend to refer to every report tendered, although, I have read each of them. I will instead, in the course of these reasons, refer to those reports I have considered to be probative to the issues in dispute.
Medication
17 The plaintiff’s affidavits addressed her regime of medicines. She takes 5 milligrams of Amitriptyline once in the evening to assist with nerve pain. She said she still takes six to eight tablets of Panadol Osteo approximately three to four days a week. She says she takes Tramadol usually when she experiences a flare-up of neck pain. She takes one tablet of Loxolate for depression. She also takes a suite of natural remedies. She practices meditation and performs stretching exercises together with gentle yoga once a week. She remains under the attention of Mr Evans, an osteopath, on whom she attends about once a fortnight. She also uses a topical cream on her neck a couple of times a week.
The defence
18 The defendant contends that the plaintiff suffered at most a soft tissue injury by way of a ligamentous strain at work on 20 June 2016 which, in the ordinary course, should have resolved. The absence of resolution, so the defendant argued, is not a consequence of injury on 20 June 2016 but instead the probable development of her pre-existing degenerative spine which has produced the consequences the plaintiff has deposed to including the inability to continue with her employment with the defendant.
19 In my judgment, the defendant’s defence is not without a sound basis. There is support for it in the opinions of Mr Kevin Siu, neurosurgeon, and Dr Michael Bloom, occupational physician. Moreover, that the mechanism of the plaintiff’s injury by lifting boxes of brochures was not a means for the transfer of sufficient force to account for the extent of aggravation to the plaintiff’s spine and impairment consequences. I will need to refer to their opinions in more detail later but, in the main, I have been persuaded by them as better accounting for the plaintiff’s presentation.
20 The plaintiff deposed to a previous history of illness physically and emotionally, but which she had overcome. She said that before her work injury, “from time to time, I had some neck pain and symptoms. At these times, I usually had some sessions with my osteo, which would relive my symptoms”.[7]
[7]Affidavit paragraph 5 PCB 2
The plaintiff cross-examined
21 The plaintiff was cross-examined extensively by Ms Ryan with considerable attention by her to the plaintiff’s attendances on her treating general practitioners and her osteopath, Dr Jakovljevic, for pain she had experienced in her neck, hands and arms prior to 20 June 2016.
22 Relevant evidence adduced in cross-examination included:
· the plaintiff had experienced a stiff neck every now and again probably since 2010 and would attend her osteopath for treatment;[8]
[8]T16 L22-28
· the plaintiff thought her visits to the osteopath averaged about once a year but they were not always for neck pain and she was never concerned that the extent of pain was significant;[9]
[9]T16 L30
· the plaintiff’s general practitioner’s note of attendance on 4 February 2014 recorded a “left neck pain few months, sore at times”[10] but she could not recall the attendance;
[10]T17 L23-24
· in addition to suffering from neck pain the plaintiff also occasionally experienced symptoms in her arms and hands relating to her neck pain,[11] but she was vague whether it was to the right or left limbs or hands, and if so, whether to both;
[11]T18 L4-7
· the plaintiff thought she sometimes had pins and needles, perhaps in both hands, but she was unsure;[12]
[12]T18 L11
· the plaintiff said she could not remember experiencing pain in her arm before commencing employment with the defendant;[13]
[13]T18 L24-25
· the plaintiff she said remembered experiencing some weakness in her left hand before her employment commenced with Flight Centre and when she had on occasions dropped things;[14]
[14]T19 L1-4
· the plaintiff saw Dr Sluggett, general practitioner, on 9 April 2010. The clinical note is of the plaintiff having attended with “Left sided mid cervical pain, sharp pain on movement” and that she was very tense in her shoulders and upper trapezius area as well and that she had some pins and needles in her hands, both left and right;
· in late August 2010 the plaintiff attended on her doctor for matters including headaches that appeared to stem from her neck region,[15] as well as cervical dorsal pain,[16] but on questioning she had no recollection of the attendance;
[15]T19 L31- T20 L3
[16]T20 L4-7 or T24 L13-16
· in August 2010 the plaintiff complained of “pins and needles down both arms, left worse, down lateral arm, numb got better with movement”. She thought that this seemed to be an accurate reflection of her situation in August 2010;[17]
[17]T20 L8-11
· on 16 February 2011 the plaintiff attended her medical clinic for left and right cervical pain together with a burning pain in her neck;[18]
· on 2 March 2011 the plaintiff was complaining of restricted right cervical rotation and right cervical side bending;[19]
[18]T20 L18-23
[19]T21 L10-13
23 I am satisfied by the plaintiff’s history that, at the conclusion of 2013 and by early 2014, she had presented with a history of pain and stiffness in her neck causing restricted movement in her neck.
24 Other relevant entries included:
· on 29 January 2014 the plaintiff had recently commenced yoga and that overall there had been some improvement with her neck;[20]
[20]T22 L12-17
· the plaintiff agreed that her neck pain fluctuated and there were periods in which she experienced improvement but on other occasions she felt worse;[21]
[21]T22 L18-20
· the plaintiff commenced seeing Dr Jakovljevic, on 1 September 2015 (approximately 9 months prior to commencing work with the defendant) and he recorded the plaintiff presenting with a history of “Postural, has been tight and stiff neck” and “Right shooting pain in right arm to elbow”;[22]
[22]T22 L30-T23 L5
· the plaintiff saw Dr Jakovljevic on 8 September 2015 with a sprain through the right part of her neck and her upper neck;[23]
· On 22 September 2015 she attended on Dr Jakovljevic, who recorded the plaintiff’s problem as, “Tightness but feels much looser”.[24]
[23]T23 L13-16
[24]T23 L17-22
25 I pause to note that the plaintiff was not working at all in September 2015.
26 The plaintiff saw Dr Jakovljevic on 17 June 2016 concerning her neck (this was three days before commencing employment with Flight Centre). His note of the plaintiff’s attendance included that she presented with stiffness in her neck, together with pain radiating into her arm and an ache into the side of her arm together with a slight weakness when holding a mug. The plaintiff disputed that she had neck pain that radiated into her left arm at that time, an assertion that is contrary to the clinical entry.[25]
[25]T24 L2-18
27 The plaintiff was next seen by Dr Jakovljevic on 25 June 2016. Dr Jakovljevic’s note of the plaintiff’s attendance included that she was “still really sore through the neck and down into arm” and of “dull ache into arm”. He recorded that she had obtained relief from her previous treatment for three out of the last seven days.
28 The plaintiff contested the accuracy of the note including the part that she had experienced a burning sensation that could be sharp on cervical movement, or that she had experienced pain as 8/10 at worst and 5/10 at best on a visual analogue assessment[26] basis or that her pain was worse in the morning. However, the plaintiff said she did remember telling Dr Jakovljevic that she had experienced a “slight weakness when holding mug”.[27]
[26]T24 L20-21
[27]T25 L2
29 The plaintiff said she had been prompted to look closely at Dr Jakovljevic’s notes following her attendance at a medico-legal appointment with Mr Siu that had been arranged by the defendant in which, in the course of examination, he referred to Dr Jakovljevic’s report that the plaintiff had previously experienced “significant symptoms.” She said she could not understand why Dr Jakovljevic would have written that she was experiencing significant symptoms before 20 June 2016 because she did not think that was the case.[28] She said it was because of this that she went to the clinic and asked for Dr Jakovljevic’s notes, and this was when she realised there was “an error”.[29]
[28]T25 L20-T26 L2
[29]T25-26
30 The plaintiff identified what she considered was an obvious error in Dr Jakovljevic’s note of 17 June 2016 that included; “Aggravated with neck movement picking up bag”. The plaintiff said there had not been any such incident and she believed that the entry was evidence that the note must have been a “post injury” note (that is, an entry made after the 20 June 2016 incident) and, furthermore, one that contained a misdescription of the incident that caused her injury.
31 The plaintiff was cross-examined about the entry of Dr Jakovljevic dated 25 June 2016 that she was “still really sore through neck and down into arm”. She said she could not say if she had used the word “still” or if it was his word, but that she definitely told Dr Jakovljevic that she was sore in her neck but not, she said, down her arm. She was asked to comment as well on the part of the note that she had experienced relief as a result of treatment for three days but then the soreness started to come back. She said that on “the Monday when I went to work I was fine, so I would have-yes, I would have said I was fine before picking up that box.”[30]
[30]T26 L17-21
32 Ms Ryan suggested to the plaintiff that the use of the adverb “still” made contextual sense because having seen Dr Jakovljevic on 17 June 2016 with the neck and arm problems and having experienced only momentary relief from pain, it having returned a mere three days later, that is on 20 June, the note of 25 June reflected the plaintiff’s own sense that the pain she was experiencing was the same as on 17 June. The plaintiff could only say that although she remembered going to see Dr Jakovljevic with a stiff neck it was not accompanied with pain in the left arm.[31]
[31]T27
33 Ms Ryan suggested to the plaintiff that the absence of reference by her to the work injury of 20 June, when she saw Dr Jakovljevic on 25 June 2016, was explicable because, “in your mind it was merely a continuation of the problems you had had on 17 June 2016”. The plaintiff said, “that’s very wrong”.[32]
[32]T28 L29
The accuracy of the osteopath’s notes
34 In the course of final address Mr Seccull urged me to find that Dr Jakovljevic’s note of 17 June 2016 was unreliable in its reference to the plaintiff having presented with left limb pain before 20 June 2016 and that the inclusion of it was explicable because of a cut and paste error in the use of Dr Jakovljevic’s practice management software. Presumably, conscious of the potential relevance of the entry of arm pain on 17 June 2016, the plaintiff’s solicitors asked Dr Jakovljevic if there was a possibility that an error occurred in the recording of his notes. In answer to that question, he wrote a letter dated 18 September 2018 addressed, “To whom it may concern”[33] acknowledging that there was scope for error generally in the production of clinical notes. However, his letter did not amount to evidence of the entry having been made in error. The letter was general in nature and it did not disavow the accuracy of the clinical note. No affidavit, for example, was obtained from Dr Jakovljevic.
[33]PCB 29
35 It was not contested by the plaintiff that she attended on Dr Jakovljevic on 17 June 2016 and again on 25 June 2016. The plaintiff denied aggravating her neck as a result of having lifted a bag or of having made a complaint of left limb pain at the 17 June 2016 consultation but, on balance, I prefer the contents of the note. On its face, I am inclined to accept it amounting to a more reliable contemporaneous account of the consultation than the plaintiff’s memory. Further, the use of the adverb “still” at the consultation on 25 June 2016 can be understood more logically as a reference back to the 17 June 2016 consultation and the pain the plaintiff had been experiencing, which is also more probable, in light of the absence of mention having been made on 25 June 2016 to the work incident on 20 June 2016. Lastly, the plaintiff already had experienced some noticeable and recorded effects in her left limb, certainly to the elbow, regardless of the account of pins and needles. On balance, therefore, and for these reasons, I am satisfied that the effect of the note is that, in combination with the previous history of presentation by the plaintiff with significant, albeit episodic neck pain, her pre-existing condition by way of a degenerative spine was symptomatic before the incident on 20 June 2016.
Concession by plaintiff’s counsel
36 At the close of the plaintiff’s case, Mr Seccull said that:
“we simply put the case on the basis of injury to and consequent impairment of the spine, more specifically the cervical spine but the spine in its broadest sense having regard to the authorities. We don’t agitate in respect of a distinct and separate injury to upper limbs.”[34]
[34]T104 L7-12
37 The concession rendered unnecessary the requirement to address the claim made on a basis of the plaintiff having suffered a serious long term bilateral impairment.[35] However, Mr Seccull’s concession did not better identify what he meant when he referred to “the spine in its broadest sense having regard to the authorities.” Other than, I have presumed, counsel intended to adopt the reasoning in that line of authorities that it is appropriate to regard the cervical spine and lumbar spine as a single body function.[36] I have proceeded on that analysis of counsel’s submission. Moreover, Mr Seccull submitted that the plaintiff’s case was that the incident of 20 June was “solely” a “plausible cause of the aggravation.”[37]
[35]See for example, Lexa v Transport Accident Commission [2019] VSCA 123
[36]See TAC v Zepic [2013] VSCA 232
[37]T 121
The plaintiff’s medical evidence
38 I have already referred to the opinion and observations of Mr Bhaskar expressed in his report dated 17 August 2016.[38]
[38]Exhibit P4
39 Mr Wallace, neurosurgeon in a report dated 22 September 2016[39] diagnosed the plaintiff with bilateral thoracic outlet syndrome. He considered the condition had been triggered by the lifting incident at work in June 2016. In a second report dated 12 October 2016,[40] Mr Wallace noted that the plaintiff’s MRI scan was consistent with a diagnosis of bilateral thoracic outlet syndrome, observing the presence of rather pointy transverse processes at C7. In his third report dated 28 September 2017,[41] Mr Wallace wrote that although the plaintiff had previously reported to him that she had experienced neck pain, she said that “something had changed in the episode of June 2016 when her pain became excruciating and unbearable and made it impossible to cope”.
[39]Exhibit P5
[40]Exhibit P5
[41]Exhibit P5
40 Earlier in my reasons I mentioned that the plaintiff had been examined by Professor Bittar in September 2017. In reporting back to Dr Madhanpall on 18 September 2017, Professor Bittar wrote:
“She has a past medical history of neck stiffness which was treated successfully with osteopath treatment from time to time. She has not experienced any significant left arm pain in the past.
On examination, she had mild weakness of left elbow and finger extension consistent with C7 radiculopathy. She did not have any evidence of myelopathy.
Her MRI cervical spine performed on October 11, 2016 and August 4, 2016 demonstrate disc/osteophyte complex is on the left at C5/6 and C6/7 with foraminal stenosis and nerve root compression at these levels.”
41 Professor Bittar reported on 19 December 2017 and referred to the stated clinical indications from the MRI scan of the plaintiff’s cervical spine dated 5 August 2016 being:
“seven-week history, left sided neck and arm pain? C7 disc conclusion: intervertebral disc degenerative change C5/C6 and C6/C7, with very prominent left arm Cove vertebral osteophytes which cause severe narrowing of the neural exit foramen and at C5/C6 and moderate to severe narrowing at C6/C7, with compression of the exiting left C6 and C7 nerve roots.”
42 Professor Bittar in another report dated 20 November 2018, wrote that the plaintiff presented with “aggravation of cervical spondylosis with radiculopathy” with the plaintiff’s work incident having “been the dominant contributing factor”.
43 In a report dated 22 March 2019, Professor Bittar noted the plaintiff’s flexion and extension in the cervical spine by reference to an MRI of 27 November 2018 showing reduced intervertebral disc height at C5-6 and C6-7 and left sided paracentral disc protrusion at C5-6 contacting the left C6 nerve root, with moderate left sided neural foraminal stenosis, and at C6-7, a disc/osteophyte complex with moderate left and mild right sided foraminal narrowing. He thought those findings could readily account for the plaintiff’s ongoing neck and left arm pain.
44 Professor Bittar next reported on 19 May 2019, and diagnosed an “aggravation of cervical spondylosis with radiculopathy” and he assessed the plaintiff’s employment as its dominant contributing factor, and specifically, the injury on 20 June 2016.
45 An MRI scan of the cervical spine and left brachial plexus by Associate Professor O’Sullivan dated 12 October 2018 reported:
“Clinical notes:
Left thoracic outlet syndrome with previous foraminotomy in 2016.
…
CONCLUSION
Multilevel disc degeneration with asymmetric generalised disc bulge with marginal spur and probable left foraminal disc protrusion at C5-C6 with high-grade compromise of the exiting left C6 nerve with mild cord compression and rotation.
Minor bony foraminal stenosis on the left at C6-C7 with minor compromise of the left C7 nerve without cord compression or rotation.
No definite mass lesion or signal abnormality is demonstrated in the left brachial plexus, no definite band identified.”
46 Associate Professor O’Sullivan’s opinion is that the plaintiff suffered a soft tissue injury to the cervical spine and an aggravation of degenerative disease of the cervical spine, chronic cervical spinal pain with radiating features, but without evidence of radiculopathy.
47 Dr Andrew Evans, osteopath, in a report dated 1 January 2018 diagnosed:
§ Degenerative disc disease of the cervical spine
§ Osteophytes and disc bulges causing:
· severe narrowing of neural exit foramen at C5-6;
· moderate to severe narrowing of neural exit foramen at C6-7;
· nerve compression of the left C6 and C7.
48 Dr Evans wrote that:
“She describes that she experiences pain which is located centrally and bilaterally, with tightness and stiffness through the upper thoracic spine and left shoulder girdle. She reports that her neck pain can be quite sharp during neck movements. Sandra reports that she suffers from constant aching through the left upper limb. She often wakes through the night with paraesthesia and no motor control of her arm.
She also reports headaches in association with her neck pain. She describes that her headaches are present as a pressure feeling around the head and can be intermittent based on the severity of her neck pain.”
49 When asked about cause, Dr Evans said:
“There is no doubt that the osteophytes and cervical spine degeneration were present prior to the injury, however the symptoms did not present until the date of the injury. Sandra directly relates the onset of the radicular symptoms and severe neck pain to the workplace lifting incident. It is likely that her work for her employer caused an aggravation of her injury.
The MRI report refers to a disc osteophyte complex at C6/7 that is causing the nerve compression. The disc bulge component may be new and may have occurred in the lifting injury.”
50 Dr Evans’ comment that although the osteophytes and cervical spine degeneration were present prior to the work injury of 20 June 2016, but that the plaintiff’s symptoms did not present until the date of injury, that is, her condition had been asymptomatic is not a finding that I am able to accept based on the chronology of the plaintiff’s presentation to which I have referred.
51 In a subsequent report dated 17 April 2019, Dr Evans expressed himself differently, but ultimately to the same conclusion on the matter of causation, when he said:
“The lifting injury may have caused both an aggravation of the previous cervical spondylosis and may have caused the disc bulge, resulting in new nerve compression which was not clinically present prior to the lifting injury.”
52 Dr Evans considered it likely that the work incident on 20 June 2016 caused an aggravation of the plaintiff’s injury. He noted that the MRI report had referred to a disc osteophytes[42] complex at C6-7 that was causing nerve compression. In addition, he considered that the disc bulge component may be new and might have occurred in the 20 June work incident. Dr Evans thought the plaintiff’s prognosis to be quite poor.
[42]Dr Evans described osteophytes as bone spurs which mechanically cause compression of the nerve roots resulting in radicular pain and referral, and was not something that would resolve without surgery – an opinion shared by Professor Bittar.
Plaintiff’s medico legal experts
53 Dr Slesenger is an occupational physician who saw the plaintiff at the request of her solicitors on a many occasions. He examined the plaintiff on 27 June 2018, and she recounted intermittent neck pain that had been present for a number of years prior to the work injury. She said that she would wake up occasionally with a stiff neck and her condition was sufficient to warrant her attending her osteopath, who was apparently able to settle her symptoms of neck pain quickly. Dr Slesenger thought that the plaintiff presented with:
· Soft tissue injury to the cervical spine.
· Aggravation of degenerative disease of the cervical spine.
· Chronic cervical spinal pain with radiating features, but without evidence of radiculopathy.
54 Dr Slesenger recounted the mechanism of injury occurred when the plaintiff was asked to manoeuvre a delivery of catalogues into the back office and had been required to lift 12 boxes (between two members of staff). She told Dr Slesenger that the boxes were heavy. She said that she held them in both hands and, in the course of this activity, she began to develop neck pain that was centred in the neck, radiated into her left arm and was similar to symptoms she had previously experienced but was more intense.
55 Dr Slesenger commented that the plaintiff remained in work for about a year after the incident. During that time, she was performing her pre-injury duties, starting work between 8.00am and 8.30am and finishing work between 5.00pm and 5.30pm. He reported that her symptoms, over those months at work, persisted at a moderate to severe level. She told him that she had been struggling to cope with her work demands. She was taking Panadeine Forte (up to six a day) and was using heat packs in her neck. She told him that the medication caused side effects and she was also using Lyrica. She told him that within two to three months of ceasing work, there was some improvement in her symptoms but nonetheless that they persisted at a moderate to severe level. Dr Slesenger said he was satisfied that the plaintiff’s “occupational exposures” were a plausible cause of her impairment.
56 Dr Slesenger provided a “supplementary” report at the request of the plaintiff’s solicitors dated 28 January 2019. Predominantly, his supplementary report addressed occupational matters and an assessment of the plaintiff’s capacity to undertake duties attendant on various jobs that had been identified as amounting to suitable employment. He restated his opinion that the plaintiff’s injury was causally related to the “workplace exposures”.[43]
[43]PCB Slesenger 28 January 2019
57 A third report by Dr Slesenger, dated 15 February 2019, addressed a Vocational Assessment report by Recovre dated 11 January 2019.
58 Dr Aliashkevich is a neurosurgeon. In a report dated 20 August 2018,[44] he wrote that the plaintiff had experienced neck stiffness in around 2010. She had attended her osteopath on about three occasions for treatments and the symptoms had “completely settled for a long period of time”. Then, in around 2013, she attended her osteopath with pain in her ribs but this, too, resolved quickly. She attended her osteopath once again in 2015 with pain in her chest. The chest pain settled and no further treatment was warranted. On 17 June 2016, the plaintiff attended Dr Jakovljevic with stiffness in her neck and received successful treatment. She “had not experienced any pain in her shoulder and arm”[45] and, furthermore, she was looking forward to commencing her employment on 20 June 2016.
[44]Exhibit P12
[45]The fact of the matter, however, is that Dr Jakovljevic did refer to pain in the arm.
59 Dr Aliashkevich diagnosed:
· chronic and refractory neck, left shoulder and arm/hand pain;
· chronic pain syndrome;
· multilevel cervical spondylosis, dominant at C5-6 and C6-7;
· left C5/6 and C6/7 foraminal or stenosis and neural compression.
60 Dr Aliashkevich concluded that the plaintiff’s injury was consistent with the stated cause and that it was materially contributing to a significant exacerbation of a pre-existing degenerative condition of the cervical spine.
61 Mr Russell Miller, orthopaedic surgeon, provided a medico-legal report for the benefit of the plaintiff dated 21 December 2018.[46] On the question of diagnosis, he wrote:
“Cervical spine: The client suffered a muscular-ligamentous strain and aggravation of degenerative disease in the cervical spine particularly at C5/6 and C6/7 levels with radiculopathy involving the C6 and C7 nerve roots.
She has had only a moderate response to conservative treatment and surgical intervention has been discussed with her. Untreated the prognosis for this injury is poor.
Relationship to accident: this is complex and multifactorial. It is clear that the client had pre-existing disease in the cervical spine and there was some pre-existing intermittent symptoms. This disease was aggravated, and further superimposed injury occurred with the work injury on the 20/06/2016.
I regard the client’s current clinical status of the cervical spine as being substantially related to that work injury.”
[46]Exhibit P13
62 Regarding the plaintiff’s left shoulder, Mr Miller thought the symptoms reflected referred pain from the cervical spine and a probable manifestation of a chronic regional pain syndrome. He thought the plaintiff’s prognosis for the shoulder was likely good.
63 Professor Joubert, is a consultant neurologist who was requested by the defendant to furnish a medico-legal opinion. In his report dated 24 July 2017,[47] he diagnosed a left C6-C7 disc lesion. He thought the plaintiff’s injury was caused by lifting a heavy box in the context of her constitutional cervical spondylosis.
[47]Exhibit P17
Defendant medico-legal opinions
64 Mr Siu furnished a medico-legal report to the defendant following on his examination of the plaintiff on 16 July 2018. He said that the plaintiff had told him that she had no prior injury. The material supplied to Mr Siu included the plaintiff’s osteopath’s notes that he considered suggested “that the worker has a previous history of significant symptoms requiring treatment before she commenced employment with the subject employer”. Mr Siu said that the plaintiff told him that she would attend the osteopath “because of neck stiffness” randomly, “perhaps once or twice a year” and “it was never that bad she had a go and see a general practitioner.” [48]
[48]Defendant’s Courtbook (“DCB”) 27
65 In addressing the investigations that had occurred by the date of his examination, Mr Siu noted that he had seen the printed films of the MRI “and there are multilevel degenerative changes maximal at C6/7 and C5/6. There is severe compression of the left C7 and to a lesser extent the C6 nerve root.”[49]
[49]DCB 29
66 Mr Siu commented on Dr Bhaskar’s observation documented in August 2016 of an absence of left biceps jerk. By July 2018, Mr Siu wrote that he can:
“definitely say the biceps jerk is present, in other words the nerve root compression has resolved, although the MRI done in sequence did not show absorption of the prolapse and it is unlikely because the degree of the prolapse is significant, but functionally the reflexes have recovered. That is to say, the nerve root compression is no longer as severe, or the compression is lessened to the extent that there is recovery of the reflex.”[50]
[50]DCB 29
67 Mr Sui referred to the 24 July 2017 report of Dr Joubert who had noted that the tendon reflex was depressed. Mr Siu said that from “absent to depressed to now present, one would suspect that the compression has reduced to the extent that there is recovery of the reflex”.[51]
[51]DCB 29
68 Mr Siu addressed the claimed mechanism of the plaintiff’s injury having occurred by lifting a box of brochures and suffering left sided neck pain, against a background of a previous history of neck stiffness that had required her attendances at her osteopath. He noted that despite the plaintiff’s assessment of her past episodes of neck stiffness not being severe, her osteopath had detailed a history of “significant symptoms” and Mr Siu wrote that, importantly from his perspective, the radiculopathy that was documented by other practitioners had improved and he did not think previous indications for surgery such as by Professor Bittar now held fast.
69 Mr Siu diagnosed brachial neuralgia against a background of pre-existing moderate to severe cervical spondylosis. He said that although there had been “an episode of neck pain” he failed to see “how lifting a box would cause significant stress to the cervical spine and aggravation of pre-existing cervical spondylosis.” Mr Siu believed that the plaintiff sustained a soft tissue ligamentous injury with symptoms that had improved in the two years preceding his examination. Nonetheless, he accepted that the plaintiff was not completely relieved of symptoms, but he did not consider the work incident amounted to a significant aggravation. He said that absent the accident “it is likely that she may be at risk of developing the same symptoms.”[52]
[52]DCB 31
70 Dr Bloom is an occupational and environmental physician who examined the plaintiff on behalf of the defendant and prepared a report dated 26 November 2018. His opinion largely reflected that of Mr Siu but expanded on it in a number of respects. Dr Bloom related the circumstances of the injury as follows:
“On her first day of work with Flight Centre Travel she and another worker were instructed to move 13 boxes of brochures that had been left on the floor on to a desk for sorting and distribution. The plaintiff said that the average weight of each box was approximately 12 kg, some being lighter and some heavier. The plaintiff said that when lifting the last box from the floor level, she experienced sudden momentary pain in the left side of her neck that immediately radiated into the left shoulder and left upper arm to as far as the left elbow. She said that the sharp pain settled within a second or two, but she was left with a dull ache that gradually worsened over the next few weeks”.[53]
[53]DCB 39
71 Dr Bloom thought the plaintiff’s history was:
“somewhat inconsistent with the history recorded in the osteopath’s clinical notes, and also somewhat inconsistent with a report of her treating neurosurgeon, Mr David Wallace, who on 28 September 2017 wrote ‘She reminded me again that this is not the first time that she had neck troubles, which she did elude to on our first consultation, but she would have intermittent bouts of neck stiffness and occasional pins and needles in the left arm”. [54]
[54]DCB 42
72 Dr Bloom commented on Mr Wallace’s handwritten consultation notes dated 27 September 2016 containing an account obtained from the plaintiff that, “This is not the first time I had neck trouble. Bouts of stiff neck +/- pins and needles in left arm.[55]
[55]DCB 41
73 Dr Bloom addressed the controversy surrounding the reliability of Dr Jakovljevic’s notes and whether the plaintiff had experienced referred symptoms into the left upper limb before 20 June 2016. Dr Bloom noted that the plaintiff was adamant that the clinical record of Dr Jakovljevic of 17 June 2018 was edited and the content materially altered, and that in fact, on 17 June 2016, she was not suffering from the referred symptoms into her left upper limb. Dr Bloom made no judgement one way or the other on the reliability of the note but he did mention that the plaintiff told him in the course of examination that she could not recall previously experiencing symptoms radiating into either upper limb.
74 Dr Bloom assessed the plaintiff as presenting in a “straightforward and honest manner, without overt signs of fear avoidance behaviour.”[56] He summarised her history and presentation in these terms:
“This woman’s history and presentation today is consistent with the evolution of a left sided cervical C6/7 radiculopathy that has been gradually improving, but is still symptomatic and clinically evident secondary to moderately advanced multilevel degenerative disc disease and spondylosis in a cervical spine, a condition that is genetically age determined. This underlying condition clearly was symptomatic from time to time prior to her claimed injury dated 20 June 2016 but since that date has been continuously symptomatic and resulted in considerable reduction in function. Adverse psychosocial factors are likely also to contribute into this woman’s level of distress and perception of pain.
Based upon this woman’s history, the available information in the clinical findings, my opinion is that the plaintiff is suffering with a chronic degenerative condition of her cervical spine rather than a traumatic injury. The history is very consistent with the evolutional (sic) of a degenerative process, ultimately resulting in radicular symptoms and clinical signs because of bony encroachment on the C6/C7 nerve roots. This underlying evolving condition was exacerbated in the course of her work, but not necessarily because of her work.”[57]
[56]Exhibit D2, DCB 72
[57]Exhibit D2, DCB 48
75 Dr Bloom agreed with Mr Siu in failing to understand how lifting a box would cause significant stress to the cervical spine and aggravation of a pre-existing cervical spondylosis. He said he thought it:
“likely that the strain incident dated 20 June 2016 represented an exacerbation of symptoms of the underlying disease process, but would unlikely have represented sufficient transfer of energy to result in serious or permanent damage to the cervical spine.”[58]
[58]Exhibit D2, DCB 71
76 Dr Bloom considered on balance that the plaintiff would have developed similar or the same symptoms even if she had not undertaken her work with Flight Centre and had not lifted the box. He concluded, therefore, that the plaintiff’s history was far more consistent with the evolution of a degenerative process than an acute traumatic occupational injury. As to imaging, he reported that:
“All of the radiology reports are consistent with advanced multilevel degenerative disc disease and spondylosis, with nerve root compromise being caused by very large left-sided uncovertebral osteophytes. These osteophytes are bony outgrowths that relate to degenerative joints, and develop and evolve over many years, and are not caused or related to injury. Thus all of the changes identified on the radiology reports are consistent with genetically and aged determined degenerative processes in the cervical spine, a degenerative process that is ubiquitous in the general population and that tends to become more symptomatic with age. The extent of the degenerative process in this woman’s cervical spine, although greater than average for her age, is certainly not particularly unusual. These identified changes have nothing to do with injury. As suggested in the body of this report, degenerative changes in the cervical spine, and subsequent symptoms from those degenerative changes including cervical radiculopathy, are not associated with physically demanding work activities, and in the absence of severe traumatic incident, there is no literature based evidence to link physically demanding work activities with cervical radiculopathy.
Furthermore, this woman’s level of physical demand within her home and personal life was almost certainly considerably greater than the physical demands of her work at Flight Centre Travel Group, including the occasional manual handling of cartons weighing up to 12 kg from floor to waist height.”[59]
[59]DCB 47-48
77 In addressing the question of diagnosis Dr Bloom wrote:
“The underlying degenerative condition was not caused or related to her work in any way, and pre-existed by many years, and by all accounts, was also symptomatic for many years, becoming gradually more symptomatic with time, a situation that is consistent with the natural level evolution of this constitutional degenerative condition.”[60]
[60]DCB 48
78 Dr Bloom said further that:
“Assuming that she did sustain a soft tissue strain in the manner described on 20 June 2016, almost 2½ years have elapsed since that time, and therefore it is likely that any soft tissue strain injury would have largely resolved before now.
There is evidence in the documentation that her symptoms recovered to a substantial degree after the alleged injury, only to relapse later. Again, this is more consistent with the evolution of the degenerative condition rather than consistent with a traumatic injury. Therefore, I think it is likely that her employment with Flight Centre no longer significantly or materially contributes to her current condition.”[61]
[61]DCB 49
79 Dr Bloom next wrote that:
“Regardless of whether 3 days prior to the incident she did experience neck pain with symptoms radiating onto her left upper limb, I believe that the incident that occurred on 20 June 2016 represented an exacerbation of symptoms of the previously existent (and symptomatic) degenerative condition.
Furthermore, the mechanism of injury was relatively trivial, and would not have represented serious stress or transfer of energy to the cervical spine. The radiculopathy is secondary to the osteophytes (that have nothing to do with trauma) encroaching the nerve roots. Therefore, on balance I think it unlikely that the claimed injury resulted in aggravation and/or acceleration of the already advanced and already symptomatic degenerative changes in her cervical spine.” [62]
[62]DCB 49
80 Dr Bloom concluded in the following terms:
“This woman does have dysfunction of her cervical spine with mild cervical radiculopathy, secondary to advanced degenerative disc disease/spondylosis. Based upon the available information, and notwithstanding Ms Andjic had not previously experienced referral of symptoms from her neck, I think that her history is much more consistent with the evolution of the degenerative and progressive condition rather than an occupational injury. By all accounts her physical condition did improve following initial claimed injury, but later gradually worsened. This is the history of a progressive and evolving degenerative condition, and not the history of a serious or permanent occupational injury. In his clinical records and also in his report dated 14 January 2017, Dr Jakovljevic, the treating osteopath, makes reference to severe symptoms, with referred symptoms into the left upper limb when his patient presented to him on 17 June 2016, some three days prior to the claimed injury. Ms Andjic disputes this. On the other hand, she did offer one of her treating neurosurgeons a history of neck problems with some referred symptoms into the upper limbs in the past.[63] Taking into consideration the extent of the degenerative changes identified on the radiology reports, and the previous history of gradually evolving symptoms over many years, I believe that this woman presents with a condition rather than a traumatic workplace injury.”
[63]DCB 53
Application to reopen plaintiff’s case
81 The plaintiff applied to reopen her case by putting into evidence a further report from Dr Slesenger dated 14 July 2019 (the further report). No substantive objection to the application or the tender was advanced by Ms Ryan. I therefore acceded to the application by Mr Seccull. Dr Slesenger said in his further report that:
“Taking into consideration the evidence as a whole including the relevant clinical records, I remain satisfied that the occupational demands are a plausible cause of the aggravation of pre-existing degenerative disease of the cervical spine. I include, not only the index accident, but also occupational activities for about a year after the injury, which was associated with prolonged static postures whilst typing during the course of the day (and I note that her symptoms deteriorated during this time).”[64]
[64]PCB 252
Causation – the analysis
82 As the plaintiff alleged that she suffered a spine injury that was caused by the incident at work on 20 June 2016, and because it was said to be an injury by way of an aggravation of her existing spine condition, (a condition that I am satisfied on the evidence was symptomatic before the accident), I must ask whether and to what extent the plaintiff’s pain and suffering was attributable to the aggravation. In order to satisfy that requirement, it fell to the plaintiff to disentangle the various contributors to her pain and disability in order to:
· firstly, identify the physical injuries sustained in the June 2016 accident and the impairment of spinal function attributable to those injuries;
· secondly, identify the pain and suffering and the pecuniary consequences attributable to that impairment ;
· thirdly, exclude any pain and disability referable to the prior existing degenerative spine;
· fourthly, establish that those consequences were at least very considerable and certainly more than significant or marked.
83 As, at the date of the 20 June 2016 the plaintiff had a pre-existing degenerative spine, she needed to establish ‘the injury which has been caused by or is the result of the relevant accident [is]…a “serious injury”’.[65] Thus, an analysis was required of the extent of the impairment of a body function before and after the relevant injury. Her claimed aggravation must, by reference to its consequences, itself be a “serious injury,” giving due recognition to the fact that injury may be the product of more than one cause.[66]
[65]Petkovski v Galletti [1994] 1 VR 436 at 444
[66]De Agostino v Leatch & Anor [2011] VSCA 249
84 In accordance with Petkovski v Galletti, I am required to consider the plaintiff in respect to consequences immediately before the 20 June 2016 accident at work and her consequences today. I am also required to determine whether any additional consequences are referrable to the 20 June accident and, if so, whether they constitute a “serious injury”.
85 I accept the plaintiff’s account that she experienced the onset of sharp and sudden neck pain radiating into her arm on 20 June 2016, when undertaking the task of lifting catalogues. However, I am also satisfied, and find, that the plaintiff presented with a significant pre-existing degeneration of her cervical spine that, prior to 20 June 2016, had been an intermittent but, nonetheless, a recurring problem. This caused her significant pain by way of neck pain and she also had experienced pins and needles into her upper limb.
86 The plaintiff testified that before the lifting incident at work she had experienced the odd pain that was sufficiently serious as to warrant attendance on her osteopath. I am persuaded by the evidence that I have already addressed that the pain was much more than that and was more frequent than being episodic.
87 Following the lifting incident on 20 June 2016, the plaintiff continued with her employment with the defendant. Indeed, she worked on for almost a year and deposed that over time her neck and (upper left) arm pain got worse.[67] That is consistent with the passage I extracted earlier from Dr Slesenger’s further report.
[67]PCB 10 paragraph 8
88 Mr Seccull, in the course of his final address, submitted that there was an evident difference between the plaintiff before the lifting incident and after it. Also, that although her condition was not asymptomatic before the incident, it had not manifested itself in constant pain such as she said she subsequently experienced. Moreover, her pain radiated, which was new. I am unable to accept that submission, because I am satisfied, it is contrary to the evidence I have referred to.
89 Accordingly, the narrative advanced by the plaintiff has not established the necessary causal nexus between the lifting incident on 20 June 2016 and the development of impairment consequences to her in the approximate year following the incident in which she remained in employment with the defendant and therefore, cannot equally, if not more compellingly, be explained by the ordinary natural progression of her existing degenerative spine or, having been aggravated by the work she was undertaking in the almost year that followed, based on the opinion of Dr Slesenger.
90 Counsel referred to the opinion of Mr Miller that the plaintiff, having previously experienced sporadic neck ache and discomfort warranting occasional time off work, had not missed any time off work by reason of the same. I make the following observations. First, the plaintiff had worked only part of her first day in employment with the defendant when the accident occurred. Second, she had not worked during the preceding year, such that the occasion for her to have lost work because of the pre-existing condition simply does not arise as a relevant fact. Third, the plaintiff worked on for the better part of the year following the injury.
91 The threshold question is whether the workplace incident of 20 June 2016 caused injury and whether the injury was a new injury or an aggravation of a pre-existing condition or an exacerbation type injury. Although Mr Seccull argued forcefully that the plaintiff’s medical material more than satisfactorily countered the defendant’s fundamental thesis that she has come to her present state, not as a result of impairment consequences caused by her work, but rather by reason of ordinary progression, I have not been persuaded by that submission. Mr Seccull submitted that Mr Sui’s opinion that the plaintiff suffered a soft tissue injury was not one shared by anyone else. That is not the case. Indeed, Mr Miller described the work accident as causing musculoligamentous strain and aggravation of degenerative disease.
92 I am not satisfied, therefore, on the balance of probabilities, that the evidence supports a finding that the plaintiff proved that the lifting incident on 20 June 2016 was productive of greater than a soft tissue injury. Accordingly, it amounted to no more than a minor aggravation of her already degenerative cervical spine, there being evidence of chronic cervical spinal pain with radiating features that had previously been identified.
93 In my judgment, there is a more persuasive evidentiary path of reasoning disclosed in the opinion of Dr Bloom that, if the plaintiff’s injury had been to a non-degenerative spine, a soft tissue injury would not have resulted in the serious consequences to which the plaintiff deposed. I think the preferable view for the non-resolution of the plaintiff’s injury which ought to have been anticipated is the overlay to the plaintiff’s already vulnerable spine. In short, I am not satisfied that the plaintiff has proved that any aggravation was itself productive of a serious injury.
94 Furthermore, and in any event, the primary question of the identification of the cause of the plaintiff’s injury was rendered problematic by the opinions of Dr Slesenger. His reports, but in particular, his further report, makes explicit his attribution of the cause of the aggravation injury to the work incident on 20 June 2016, and also to the approximate year of work that the plaintiff undertook following the lifting incident. Of itself, that is not overly remarkable because the 20 June 2016 incident need not be the sole cause of the plaintiff’s aggravation injury. Although it must be capable of being proved to be a cause of an injury itself that is serious, as opposed to the plaintiff suffering a serious injury in conjunction with other operative factors including the ordinary degenerative degradation of her spine.
95 Overall the plaintiff’s tender of the further report was a matter of disadvantage to her on the question of causation. Indeed, it was the subject of an exchange by me with senior counsel for the plaintiff in the course of which senior counsel referred to and relied on the decision in Bezzina v Phi & Anor.[68] However, in my judgment, the analogy with Bezzina is misconceived because, as the Court of Appeal said in that case, a trial judge is bound when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident. This must include looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries. I accept and prefer the defendant’s medico-legal experts, that the lifting incident on 20 June 2016 caused no more than a soft tissue injury. That any aggravation caused by that injury was minor. Moreover, the plaintiff would have come to her present situation absent it. The plaintiff has failed to meet and discharge her burden of proof and her application for the grant of serious injury certificate must for these reasons fail.
[68][2012] VSCA 161
96 In Spence v Gomez[69], three scenarios that might arise in an aggravation injury claim were examined by the Court of Appeal. In my judgment, the third category referred to by the Court of Appeal is applicable in this instance. That is, a plaintiff who presented with a non-serious pre-injury condition suffered a slight aggravation which, in combination with her pre-accident injury, produced a serious injury. However, the aggravation itself is not a serious injury.
[69][2006] VSCA 48
Pain and suffering
97 The plaintiff was not tested on her account of pain and suffering in the course of the trial by counsel for the defendant, for the reasons I referred to, at the outset of my decision. Lest it be thought that I have not given specific attention to the plaintiff’s condition before and after the accident so as to assess any further physical impairment caused by the work accident, I have. The plaintiff has detailed in a number of respects her deterioration since the work accident. Her first affidavit was redolent with limitations across a range of areas of her domestic existence that she relies on as having developed since the work injury and she testified to the same. But these impingements to, and interferences with function, and the consequent loss of enjoyment of life, must be capable of being adjudged as consequences caused by the aggravation on 20 June 2016 or made so worse to her previous state by the same, as to itself amount to a serious injury. That is an evidentiary threshold question that falls to be proved on the balance of probabilities by the plaintiff. It is by reference to this obligation that the plaintiff’s claim on my judgment has failed.
Loss of earning capacity
98 Had it been necessary, I would have been satisfied that the plaintiff had proved a loss of earning capacity. I think it worthwhile to briefly indicate what my reasoning would have been in such an eventuality, in light of the submissions of counsel.
99 Briefly stated, Mr Seccull argued, that the plaintiff’s without injury earning capacity is $37,870 being 60 per cent of the sum of $63,117, derived from “comparable earnings”, bearing in mind, the plaintiff had been engaged at work for only part of her first day before the injury. However, Mr Seccull submitted that, in the alternative, the fairest method is to use the plaintiff’s actual earnings for the financial year ended 2014, which were $59,862. I would have preferred that methodology, as in my judgment, and consistent with authority, it would have most fairly reflected the plaintiff’s earning capacity.[70] I note that the defendant did not accept that the sum of $63,117, represented “comparable earnings” nor the figure of $59,862 but rather on her instructions, “the 2018/2019 wage of a travel consultant” was $41,075.
[70]See: The Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292
100 The plaintiff contended that she is unable to work at all due to her neck injury.
101 Dr Slesenger’s opinion is that the plaintiff has no current capacity for her pre-injury employment or for modified duties.
102 Professor Bittar’s opinion is that the plaintiff has no current capacity either for pre-injury duties or alternative duties.
103 The plaintiff’s osteopath says she has no capacity for employment.
104 The plaintiff’s capacity was contested by the defendant. Ms Ryan relied on the opinion of Dr Bloom[71] and his comments on the employment positions identified as suitable in the report prepared by Recovre. The report identified five positions as suitable. Of the five identified roles, Dr Bloom’s opinion is that the plaintiff would be suited for four of them. The four he has regarded as suitable are those of:
[71]DCB 76-77
· Customer Service Officer
· Accounts Clerk
· Receptionist
· Rental/Customer Service Officer
105 It was not part of the plaintiff’s case in her evidence, or by way of submissions, that she is not skilled to perform the constituent elements of the roles or by reference to other factors identified as relevant to the definition of suitable employment in the Act. Rather, the point of conjecture is whether the plaintiff has a capacity to do so because of her physical state. Dr Bloom, for example, suggested that the plaintiff has capacity for suitable employment of 20 hours per week. If that is so, then in respect of each suitable employment identified by the defendant, the plaintiff would not meet the formula for a loss of earnings. However, had it been necessary for me to decide the point, I would not have been satisfied that the plaintiff has an earning capacity of 20 hours per week. Dr Bloom’s path of reasoning for arriving at his assessment of hours was not evident. Having established the existence of such a loss the plaintiff would not have needed to do more by way of making good the pain and suffering consequences: Advanced Wire & Cable Pty Ltd & VWA v Abdulle.[72]
[72][2009] VSCA 170
Conclusion
106 For the reasons expressed, I am not satisfied that the plaintiff has proved that the injury she has sustained on 20 June 2016 is a serious injury. The plaintiff’s application by way of Originating Motion is dismissed.
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