Apps v Victorian WorkCover Authority
[2020] VSCA 21
•17 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0042
| DEBRA APPS | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES: | BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 February 2020 |
| DATE OF JUDGMENT: | 17 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 21 |
| JUDGMENT APPEALED FROM: | [2019] VCC 340 (Judge O’Neill) |
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ACCIDENT COMPENSATION – Appeal – Workplace accident – Serious injury application – Lower back injury – Whether accident was a cause of lower back injury – Credibility of applicant – Adverse credit finding – Differing histories to medical practitioners – No complaint of back pain for more than 5 years after accident – Whether judge erred in failing to be satisfied of causal link – Reasons – Whether judge’s reasons inadequate – Appeal not having a real prospect of success – Application for leave to appeal refused – Accident Compensation Act 1985, s 134AB.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A T Strahan QC with Ms J Frederico | Maurice Blackburn Lawyers |
| For the Respondent | Mr S A O’Meara QC with Mr S E Gladman | Hall & Wilcox Lawyers |
BEACH JA
KYROU JA:
On 30 July 2008, the applicant was injured, in the course of her employment with PSW Pty Ltd, when she tripped over a power cable and struck her knees with some force (‘the accident’).
The applicant suffered immediate pain in both knees, and in particular her right knee. She was taken to hospital. She remained off work for a period. Ultimately, she returned to work, at first on light duties, and later on full-time duties. She remained with PSW until 2010, when she was retrenched. Some months later she commenced employment with another employer where she remained until August 2016. She has not been in paid employment since that time.
In early 2014, the applicant underwent a CT scan of her lumbosacral spine. The scan revealed a significant right-sided lateral disc protrusion at L4/5, and the applicant subsequently underwent a right-sided laminectomy which included the insertion of a plate and screws.
By an originating motion filed in the County Court on 28 July 2017, the applicant sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence a proceeding at common law claiming damages for the injuries she alleged she sustained as a result of the accident. The applicant relied upon para (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act — namely, ‘permanent serious impairment or loss of a body function’. The body function relied upon was the function of the lumbar spine.
In her application, the applicant sought leave to commence a proceeding claiming both ‘pain and suffering damages’ and ‘pecuniary loss damages’.[1]
[1]As those expressions are defined in s 134AB(37) of the Act.
The application was heard in the County Court by Judge O’Neill on 13 March 2019. At the hearing, counsel for the respondent identified the sole issue on the application as being the causative relationship between the accident and the applicant’s lower back condition. The respondent contended that the applicant’s back was not injured in the accident. It conceded, however, that if the applicant established causation then her lower back injury met the serious injury requirements contained in the Act, both as to pain and suffering and pecuniary loss.
On 25 March 2019, the judge dismissed the applicant’s application.[2] The judge dismissed the application because he was ‘not satisfied as to the causative link’ between the accident and the applicant’s lower back condition.[3]
[2]Apps v Victorian WorkCover Authority [2019] VCC 340 (‘Reasons’).
[3]Ibid [87].
The applicant now seeks leave to appeal. While her proposed grounds of appeal are formulated in different terms in the application for leave to appeal from those in her written case, in substance her grounds are as follows:
1.The judge erred in failing to properly apply the correct test for causation.
2.The judge erred in finding that the applicant did not suffer an injury to her spine in the accident — such finding being against the weight of the evidence.
3.The judge erred in relying upon the opinion of Associate Professor Brazenor[4] which was flawed.
4.The judge erred in failing to disclose an adequate path of reasoning.
[4]While the parties and the judge variously referred to Dr Brazenor as Associate Professor Brazenor or Professor Brazenor or Mr Brazenor, we will refer to him as Dr Brazenor in accordance with the letterhead of his reports.
The evidence generally
On the hearing of the application in the County Court, the applicant relied upon two affidavits that she swore on 9 March 2017 and 8 February 2019. The parties tendered various documents, including medical reports, radiological reports, clinical records and various letters written to and/or by medical practitioners.
The only witnesses to give viva voce evidence on the application were the applicant and her treating general practitioner, Dr Timothy Voon.
Relevant background
The applicant was born in April 1960. She was aged 48 at the time of the accident, and 58 at the time of trial. She commenced work for PSW as a picker and packer in about 2005/2006. PSW manufactures and distributes school uniforms. The applicant’s role was to pack customer orders for distribution and to assist in other areas of production.
On 30 July 2008, the applicant was carrying a box containing a customer’s order to a trolley. She described the box as ‘sizeable’ and weighing about 10–15 kg. She was carrying the box with both hands. This partially obscured her vision. She tripped on a thick electrical cable coming from a forklift. Her evidence was that she fell on her knees, onto the trolley.
Following the accident, the applicant was taken by ambulance to the Dandenong Hospital. A report from the Emergency Department recorded that the applicant presented with right and left knee pain, the pain in the right knee being greater than the pain in the left knee. The applicant was examined, treated with tubigrip and discharged.
On 18 August 2008, the applicant attended Dr Voon. He referred her to the Valley Private Hospital Emergency Department where she was diagnosed with a deep vein thrombosis in her right calf. She was transferred to the Dandenong Hospital and prescribed Warfarin.
As a result of the applicant continuing to suffer from pain in her right knee, in mid-September 2008, Dr Voon referred her to an orthopaedic surgeon, Mr Tran. An MRI of the applicant’s right knee, performed at the request of Mr Tran, did not reveal any abnormality.
In November 2008, the applicant attended a vascular surgeon, Dr Blombery. He advised her that she no longer needed to take Warfarin, but that she should continue to take aspirin as a precautionary measure.
In November/December 2008, the applicant returned to work for PSW. In early February 2009, Dr Voon certified the applicant as fit for normal duties. In early 2010, the applicant was retrenched from PSW.
Following her retrenchment, the applicant engaged in warehouse work through an agency. In the course of this work, she was regularly placed at Ensign Laboratories. In October 2010, she commenced work for Ensign on a permanent full-time basis as a receiving clerk. This work involved some lifting and bending. In cross-examination, the applicant accepted that particular work involving pallets could require her to bend anywhere between four and 100 times per day.
On 30 January 2014, the applicant attended Dr Voon complaining of lower back pain. A CT scan of her lumbosacral spine (‘the January 2014 CT scan’) was performed the following day, and reported on as follows:
At the L4/5 disc level the major abnormality identified is a significant right-sided lateral disc protrusion without any significant central component and again without evidence of canal stenosis. The lateral disc appears to displace the exiting L4 nerve root superiorly …, but would not have any impact on the right L5 nerve root.
…
Conclusion:
The right-sided posterolateral disc protrusion at the L4/5 level is the only significant finding and appears to displace the right L4 nerve root from its normal course without causing any canal stenosis … .
Dr Voon referred the applicant to a consultant neurologist, Dr Victor Gordon. Dr Gordon arranged for an MRI of the applicant’s lumbar spine to be performed on 30 April 2014. That MRI concluded:
A large right posterolateral disc protrusion at L4–L5 level extending into the right neural foramen, compressing the exiting right L4 nerve root and also causing severe neural foraminal narrowing.
In June 2014, the applicant was referred to a consultant neurosurgeon, Mr Tony Goldschlager. On 24 February 2015, Mr Goldschlager performed an L4/5 posterior instrumented fusion and facetectomy and microdiscectomy and rhizolysis (‘the back surgery’).
Approximately eight weeks after the back surgery, the applicant returned to her employment with Ensign, initially on light duties and then on normal duties. After a significant flare up of her back pain in July 2016, she was retrenched from this employment on 8 August 2016. As we have already observed, she has not worked in paid employment since August 2016.
The evidence on causation
At first instance and in this Court, the evidence that was most central to the issue of causation was the evidence of the applicant, her treating medical practitioners, Dr Voon and Dr Gordon, and a consultant neurosurgeon who examined the applicant on behalf of the respondent on 13 October 2017, Dr Graeme Brazenor. In order to understand the parties’ cases, it is necessary to summarise relevant parts of that evidence.
Applicant’s evidence
The applicant’s evidence-in-chief about the accident, and relevant to causation, was largely contained in her first affidavit. In describing the accident in that affidavit, the applicant said:
I fell on my knees, onto the trolley which made it (the trolley) move. I slammed on both my knees and I believe this had a jarring impact on my back.
The applicant’s first affidavit then contained a description of her right knee pain, the DVT she developed in her right leg, the medical treatment she received for these conditions and the fact that she ‘continued to work [with PSW] despite experiencing continuous pain in [her] right knee and down [her] legs’.
The applicant then said that she ‘continued to experience pain and discomfort in [her] right knee and down both legs including cramps, numbness and pins and needles’. Her symptoms continued and, in January 2014, Dr Voon arranged the January 2014 CT scan. After further investigations, surgery was recommended. The applicant said that she ultimately agreed to the back surgery because she was in ‘so much pain’ in her legs.
The first reference to actual lower back pain in the applicant’s affidavit evidence is to pain that occurred after the back surgery. Her evidence was that after the back surgery, the pain in her legs ‘went away’, and ‘was fixed’. She went on to state, ‘but pain in my low back commenced’, saying that she commenced to experience pain in her low back immediately after the back surgery.
Nowhere, in either of her affidavits, did the applicant say that she experienced any back pain between the time of the accident (30 July 2008) and the time of the back surgery (24 February 2015). The applicant was, however, cross-examined at some length on this issue on the hearing of her application before the judge.
The cross-examination of the applicant commenced with some questions about the fact that she and her husband owned a large property from which, for many years, they had bred very large dogs.[5] The applicant agreed that working with these dogs prior to the back surgery caused an increase in her back pain. Similarly, she agreed that she would from time to time have symptoms of lower back pain if she did too much bending in her work at Ensign.
[5]Dogue de Bordeaux.
The applicant was cross-examined about entries in the clinical notes of the Southern Cross Medical Centre which suggested that she attended the clinic in July 2005 and again in 2006 (that is, before the accident) with episodes of low back pain. The cross-examiner then proceeded to ask questions about the accident. The applicant was asked and answered the following questions:
And your knees slammed into the ground?---Yes. Yeah.
And you say in your affidavit that you believe that you jarred your back when you fell; is that right?---Yes, I believe — yes.
When did you form that belief?---Well, whilst — while I — whilst I went down, as I said, I had a carton in my hand.
As I was sort of going to put the carton down on the trolley I tripped over the cord. And as I went down, I went down and everything moved, so I — I sort of moved along with the whole lot.
Yes?---As I hit the ground. Yeah, there was — I believe there was jarring of the back. I'm - you know, I'm not a — I'm not a doctor.
Yes?---But at that time it was my — my knee that was causing me the grief.
So, at that time you didn't have any symptoms in your low back, did you?---Not directly when I had the accident, as I've said, the pain was all in my knee at that stage, but yeah, afterwards I always had some niggling pain in my lower back.
Did you, when did that start?
HIS HONOUR: I'm sorry … you say ‘not directly’, does that mean you didn't have any pain at the time?---At the time of the accident, Your Honour, no, there was no back pain.
Yes, problems with your knees and - - -?---It was in the knee, that's where - - -
- - - then pain down one or both legs?---Yeah, yeah.
At the time no back pain?---No, not at that direct time that I had - - -
When do you say it came on?---Um, well, it sort of — I think it would have been maybe three days later, something like that, four days later. I had a — I had a niggling back pain in my back, Your Honour, but it was my leg pain that was really causing me concerns because it was so severe.
…
COUNSEL: So, this back pain that you say came on about three days later, how long did it last?---I — I've always had it, it's — it's - - -
Right, so you say continuously?---M'mm.
From early August 2008?---Yep.
Till today, you've always been aware of low back pain?---Yes.
A little later in cross-examination, the applicant was asked and answered the following questions:
Did you also have pain in your low back during all that time?---I've always had a niggle there.
Yes?---But, again, I sort of ignored that, because it — to me, it was of no consequence at the time, because it was — you've got to understand, the pain that I was getting in my right leg, sort of, outweighed it, and I — I didn't really — I didn't pay much attention to my back pain at that stage.
…
If someone had come along and said to you in 2012, ‘Mrs Apps, do you ever get any pain in your low back’, what would you have said in 2012?---In 2012, yeah, I would have said, yes.
Yes?---Occasionally, yep.
‘Ever since I fell’?---I believe so, yes.
The applicant was asked whether she consulted Dr Voon about her low back pain. She said that she had not consulted Dr Voon about her low back pain because ‘it was a niggle’, whereas it was her leg pain that was always bothering her more than her back. In further elaboration, the applicant said:
I didn't pay much attention to the back, because my leg, and again sometimes you would get the throbbing of the leg and it would just throb, okay, my leg's throbbing. Other times it — I would get shooting pain down it. Sometimes it would start from the buttocks and it would go down, other times it would be in my calf. There was always just a niggle or a nag there.
Applicant’s histories
A substantial number of medical reports and letters, tendered by the parties, contained histories said to have been given by the applicant about the accident. None of the histories recorded as having been given by the applicant prior to the performance of the back surgery (more than six and a half years after the accident) contain any reference to the applicant jarring her back in the accident, or having any ‘niggle’ in her lower back following the accident. To the contrary, in a letter dated 30 September 2011 from Dr Voon to Dr Gordon, the applicant’s history is described in the following terms:
Thank you for seeing [the applicant] for management of bilateral tingling parasthesiae in the feet, with occasional pain in the heels and soles if sitting for too long. She also experiences on occasions a rushing sensation down her leg — shooting pulsating sensation when lying down in bed at night at times as well. This has been going on for the last three-four months. There is no associated back pain — back FROM[6] no discomfort.
[6]Full range of movement.
The first time the applicant appears to have given a history to a medical practitioner of jarring her back in the accident was in January 2018 when she told Mr Mohammed Awad, a consultant neurosurgeon and spinal surgeon who examined her at the request of her solicitors, that she ‘tripped and fell forward and landed on both knees and jarring [sic] her back on impact’. Subsequently, in February 2018, the applicant appears to have given a history to Dr Mavis Vaz (a treating physician) that she sustained injuries to her knees and back in the accident. Similarly, the applicant gave a history to Ms Katrine Green (a psychologist who prepared a vocational assessment report which was tendered by the applicant) that ‘her back injury occurred whilst she was picking [compiling] an order and whilst carrying a box of stock she tripped …’.
Dr Voon’s evidence
Dr Voon gave evidence about the various consultations the applicant had with him following the accident. His evidence included the history of symptoms in 2011 set out in his letter of 30 September 2011 to Dr Gordon, to which we have already referred.
More critically, so far as the issue of causation is concerned, Dr Voon’s evidence was that in January 2014, the applicant presented for review ‘complaining of lower back pain that sometimes radiated down the legs, with bilateral leg cramps and intermittent parasthesiae in the feet’. Dr Voon referred the applicant to Dr Gordon who, after conducting his own investigations, wrote to Dr Voon saying that it was ‘highly likely that the injury [the applicant] suffered … when she tripped over the power cord has contributed materially to the disc protrusion’. In a report dated 14 September 2016, Dr Voon said:
Although I am not a specialist, I am in agreement with neurologist Dr Gordon that it is highly likely that the injury [the applicant] suffered from work in 2008 when she tripped over the power cord at work, has contributed to the disc protrusion of her back and leg symptoms and is therefore work related.
In evidence in chief, Dr Voon said that he believed that the disc bulge occurred during the fall:
because there’s no history of any of her leg symptoms before her fall and I believe that that disc bulge has been irritating the nerve and therefore the pain came and went over the period of time but got progressively worse with time but I feel that the initial cause of the injury was from the fall in 2008.
Dr Voon was cross-examined about his entries in the applicant’s clinical notes. He was cross-examined about the absence of complaints of back pain in the notes, attendances by the applicant for matters unrelated to the accident, and consultations where the applicant did not complain of leg symptoms.
In the course of his cross-examination, he gave evidence that ‘you can get foot pain related to a disc without the back pain’. Additionally, he accepted that if the applicant had complained to him of lower back pain then he would have noted it. At another point in his cross-examination, he said, however, that there was a possibility (or probability) that the applicant might have mentioned niggling back pain which he may not have noted. He also agreed, from the clinical notes, that there was:
No indication that between 2008 and early 2014 [he was] told anything about shooting pain that [the applicant] was having from the buttock down her right leg.
In re-examination, Dr Voon was asked about the role of the accident in the production of the applicant’s disc bulge. Dr Voon said:
I would say it would be highly likely, because she didn’t have any of these symptoms before her fall.
…
I believe that when she fell, the disc bulge was just mild, and it was just pushing in and out, touching the nerve, which would be consistent with her symptoms being not severe at times, and quite severe at other times over the years. And it’s gradually gotten worse. But the initial fall, I believe, was the cause of the disc bulge which has gotten worse over time.
Dr Gordon’s evidence
While Dr Voon referred the applicant to Dr Gordon in September 2011, he did not become her treating neurologist until he first saw her on 4 April 2014. In a letter to Dr Voon written on that day, he set out the applicant’s history as follows:
Ever since [the accident] she has been troubled by right lower limb pain. It has been getting worse over the years. She describes pins and needles, burning, tight feelings worse over the lateral aspect of the lower leg but radiating up the lateral anterior or posterior aspect of the thigh into the buttock and paraspinal region. At times she has the feeling that the muscle in the lateral aspect of the leg is cramping but she rarely gets a full cramp. The pain is incapacitatingly severe. It is described as burning, numbing, throbbing, tingling. She describes the feeling ‘like a rubber band being stretched’. At times the right foot may swell but it does not have sweating (sic) or colour change.
Dr Gordon expressed the following opinion to Dr Voon:
It is tempting to think that she may well have a peroneal neuropathy at the knee with some spread of symptoms. Given at least her temporary response to a procedure in this region [sic]. The alternatives would include an L5 radiculopathy. She has some of the features of a complex regional pain syndrome type I but not really a convincing clinical picture for that.
Dr Gordon arranged for the applicant to undergo nerve conduction studies and the April 2014 MRI. Following those investigations, he wrote a referral letter for the applicant to be neurosurgically examined. The letter provided:
Her history is that she tripped and fell at work some six years ago and injured her right knee. Since then she has had some right lower limb pain. The focus of investigation has been on the knee but an MRI of lumbosacral spine shows a large right posterolateral disc protrusion at L4/5 level compressing the exiting right L4 nerve root and causing severe neuroforaminal narrowing.
Although I interpreted my EMG to be that other (sic) peroneal nerve lesion at the knee, in retrospect with this new imaging information the findings are not inconsistent with a fascicular injury of the nerve root.
With her disabling chronic pain symptoms consistent with being caused by the lesion, do you think an operative intervention is warranted?
In passing I would note that it is overwhelmingly likely that this injury is most likely related to the previous trauma at work.
In a letter dated 27 June 2014 from Dr Gordon to Dr Voon, Dr Gordon then said:
I think it is highly likely that the injury she suffered at work some six years ago when she tripped over the power cord has contributed materially to the disc protrusion. As such I think the surgery to address this problem would reasonably be covered under WorkCover.
Subsequently, in a report dated 11 October 2017, Dr Gordon wrote:
Ever since [the accident] she was troubled by right lower limb pain which became worse over the years and was associated with some sensory symptoms over the lateral aspect of the lower leg, radiating up the thigh into the buttock and paraspinal region.
My clinical impression was that she had a peroneal neuropathy at the knee with some spread of symptoms. I put forward the alternative diagnosis of an L5 radiculopathy.
While the original neurophysiology was more in keeping with a peroneal neuropathy at the knee, the MRI scan of the spine done on 30 April 2014 did show a large right posterolateral disc protrusion at the L4/5 level, extending into the right neural foramen, compressing the exiting right L4 nerve root and causing severe neuroforaminal narrowing.
I referred her to Mr Goldschlager, neurosurgeon, who went on to do a lumbar procedure on her in February 2015.
Dr Brazenor’s evidence
Dr Brazenor is a consultant neurosurgeon. He examined the applicant, at the request of the respondent, on 13 October 2017. For the purposes of his examination of the applicant and the provision of his opinion, Dr Brazenor was provided with the relevant medical reports, radiological reports, clinical records and progress notes. In his report, Dr Brazenor set out his analysis of the material. As part of his analysis, Dr Brazenor made the following comments:
(1)The finding of no back pain and a pain-free range of movement in the lumbar spine in September 2011 ‘virtually excludes the lumbar spine as to the cause of the tingling paraesthesiae in the feet and occasional pain in the heels and soles.’
(2)The fact that the applicant’s treating medical practitioners in 2011 ‘all failed to find any symptoms or signs consistent with low back pathology is powerful evidence against any injury to the low back’.
(3)The right-sided protrusion at L4/5 does not explain the applicant’s leg symptoms. It was ‘discovered serendipitously, and has no relevance to [the applicant’s] ongoing symptoms’. However, it was the ‘asymptomatic CT scan finding’ which prompted the applicant’s referral to a neurosurgeon.
(4)The January 2014 CT scan showed:
a moderate-severity right-sided foraminal/extraforaminal protrusion at L4/5, which disc has very slightly deflated. This could only cause right-sided sciatica in an L4 distribution, and is incapable of causing more general symptoms in the right leg, or any symptoms in the left leg whatsoever. It may or may not cause right-sided low back pain.[7]
[7]Emphasis in original.
Ultimately, Dr Brazenor concluded that the historical and radiological records ‘completely dismiss[ed] any hypothesis’ of a lumbar spine injury being suffered as a result of the accident. In terms, Dr Brazenor said:
The historical and radiological records in my opinion completely dismiss any hypothesis of a lumbar spine injury in the incident in which Ms Apps tripped over the electrical cord on 30 June 2008, insofar as:
(i)The clinical record of Southern Cross Medical Centre
(Dr Voon) clearly demonstrates that there was no complaint of low back pain or low back-associated symptoms by Ms Apps until 7 January 2011 and that entry seems to be describing an intercurrent viral illness with aches and pains.
(ii)Even at the time Dr Voon referred Ms Apps to neurologist
Dr Victor Gordon on 3 October 2011, this was for the bizarre symptoms in both legs, with the rider in the referring letter to Dr Gordon: ‘There is no associated back pain FROM (free range of movement) no discomfort’.
(iii)It was only when [a] CT scan of lumbar spine was performed on 31 January 2014 that the right-sided disc protrusion at L4/5 was discovered. At that late stage, 5.5 years after the cord-tripping incident, there had developed (quoting from
Dr Voon’s consultation note):
‘lower back pain
flexion/extension mild pain
rotation and lat flexn mild pain
No weakness; no neurolog
Sxs of LL intermittent paraesthesiae feet/bowel or bladder function normalpalpation mild pain over low back.’[8]
As previously commented earlier in this report, the right-sided protrusion at L4/5, which was foramenal and extraforamenal, far out on the right side, does not explain the leg symptoms for which Ms Apps was referred to Dr Gordon. Thus the L4/5 protrusion was discovered serendipitously, with no relevance to Ms Apps’ presenting symptoms in the legs.
(iv)The first radiological investigation was the CT scan lumbosacral spine dated 31 January 2014, performed 5.5 years after the tripping-on-cord episode. This fact alone guarantees that no significant lumbar injury was sustained [on] 30 July 2008, insofar as all significant injuries are most painful within 24 hours of occurrence, eventually diminishing or waning completely over time. Absence of scan = absence of significant symptoms in this day and age.
[8]For completeness, we observe that this was the text of Dr Voon’s note of 4 February 2014. An almost identical note made by Dr Voon on 30 January 2014 had the notation ‘nad’ (no abnormality detected) immediately following the word ‘rotation’.
Having expressed this conclusion, Dr Brazenor went on to answer a number of questions posed by the respondent. In relation to a question about diagnosis, Dr Brazenor said:
The worker is suffering the residua of injury to the L4/5 disc incurred most probably in 2013, unrelated to the cord-tripping incident of 30 July 2008.
Judge’s reasons
After a brief introduction, the judge identified the sole issue in dispute between the parties as being whether there was a causative relationship between the accident and the applicant’s low back injury.[9] The judge said that, in addition to considering the evidence of the applicant and the opinions of the various treating and consultant medical practitioners, the application required an analysis of the credibility of the applicant, and the histories she provided to her treating doctors.[10]
[9]Reasons [8].
[10]Ibid [9].
The judge then set out in some detail the applicant’s evidence[11] and the medical evidence.[12] The judge’s description of the medical evidence included the setting out of relevant parts of Dr Voon’s clinical notes of 11 consultations that occurred between November 2008 and January 2014. In addition to describing the evidence of Drs Voon, Gordon and Brazenor, the judge referred to the opinions and reports of the following medical practitioners:
·Mr Mohammed Awad, the consultant neurosurgeon and spinal surgeon to whom we have already referred, who examined the applicant at the request of her solicitors on 19 January 2018;
·Dr David Murphy, a consultant physician in rehabilitation medicine, who examined the applicant at the request of her solicitors on 9 November 2018;
·Dr Ralph Poppenbeek, an occupational physician, who examined the applicant on behalf of the respondent on 20 November 2008;
·Mr Clive Jones, an orthopaedic surgeon, who examined the applicant on behalf of the respondent on 19 March 2015; and
·Dr David Barton, a consultant occupational physician, who examined the applicant on behalf of the respondent on 25 January 2018.
[11]Ibid [10]–[21].
[12]Ibid [22]–[52].
As the judge summarised their evidence, Mr Awad and Dr Murphy were supportive of a causal link between the accident and the applicant’s low back condition. Dr Poppenbeek, however, took no history of pain or restriction in the applicant’s lower back. Mr Jones did not ‘see any relationship’ between the applicant’s back condition when he examined her in 2015 and the accident. And Dr Barton, as quoted by the judge, said:
I believe the link between the fall that occurred at work in July 2008 and the onset of back and right leg symptoms that was subsequently diagnosed as a disc problem in January 2014 is too long for it to be any causal link between either her work in general or the fall that occurred in 2008. If the fall contributed to a significant back problem that led to the disc injury that required surgery, then I believe symptoms would have been present long before 2014.[13]
[13]Ibid [45].
In the course of referring to Dr Voon’s evidence, the judge referred to letters written by him to various specialists,[14] in which Dr Voon referred to the applicant’s history as having had ‘ongoing right leg pain and also back pain’ since the accident.[15] The judge said, however, that he was satisfied that this was a history provided to Dr Voon by the applicant after 2014, and did not reflect the history Dr Voon obtained over the years after the accident as reflected in his clinical notes.[16]
[14]Mr Aliashkevich, Dr Drnda and Monash Health Neurosurgical Outpatients.
[15]Reasons [50].
[16]Ibid [51].
The judge then summarised the submissions made on behalf of the applicant in the following terms:
Mr Richards, for the plaintiff, emphasised that a fall of the type described by the plaintiff could well give rise to an aggravation of underlying asymptomatic disc disease in the lower spine. I accept this submission.
He urged me to accept the evidence of the plaintiff that she had ongoing symptoms in the right leg from the time of the fall through until surgery in 2014. He also submitted I should accept the plaintiff’s complaint of niggling back pain over the same period. He said that neither the leg pain nor the back pain was very significant to the plaintiff, and her failure to complain to the general practitioner was understandable in circumstances where she was able to self-manage the problem.
In respect of the clinical records of Dr Voon, he emphasised the importance of findings of paraesthesia in 2011 and cramping in 2012. These complaints, he said, were classic symptoms of aggravation of the L4-5 nerve, and the fact that the pain came and went was explained by Dr Voon when he said that reflected the pressing of the disc against the exiting nerve on an intermittent basis. He submitted Dr Voon was an impressive witness, who had treated the plaintiff over a considerable period of time, and there was no reason to suggest that he was attempting to assist the plaintiff’s application by giving favourable evidence.
He also urged that I accept the opinion of Dr Gordon, the treating neurologist. He was the one who undertook the CT scans of the spine in 2014, and was in a good position to determine whether the low back condition was related to the fall.
He said I should not accept the opinion of the defendant’s orthopaedic consultant, Mr Jones, as he did not have a history of the paraesthesia in 2011. He said the opinions of Mr Awad and Dr Murphy supported those of treating practitioners. Mr Awad obtained an accurate history, including the clinical notes, of cramping, pins and needles and paraesthesia. Whilst there was no opinion as to causation from the treating surgeon, Mr Goldschlager, the fact that he had sought approval for surgery from the WorkCover insurer meant that he considered the back condition was work related.[17]
[17]Ibid [53]–[57].
The judge commenced his analysis of the causation issue by saying that the first matter to assess was the nature and extent of the symptoms the applicant suffered both in the right leg and the lower back after the accident.[18] The judge observed that the applicant’s description of those symptoms stood in contrast to the clinical notes of Dr Voon and, in respect of her lower back pain, ‘in distinction to the consequences [the applicant] describe[d] in her affidavits’. The judge said that the assessment of post-accident pain and restrictions depended ‘in part’ upon the credibility of the applicant.[19] The judge then turned to the applicant’s credibility, saying:
I did not find the plaintiff a particularly impressive witness. While there were no major credit issues put to her such as, for example video surveillance, nonetheless I have significant reservations accepting her description of the pain in her leg and back post the fall. Ms Britbart said that her evidence in this regard was ‘reconstructive bias’. I accept that submission. In relation to her lower back, it is difficult to understand, even if the low back pain was ‘niggling’, and not as significant a problem as her right leg, nonetheless that over the years from 2008 to 2014, she did not even mention it to her general practitioner. She was not a person averse to seeking treatment, with referrals for radiological investigation and specialist assessment. This occurred on many occasions, in respect of other illnesses and conditions.
Likewise, the problems with her right leg. Setting aside for the moment the complaints recorded in the clinical notes, and accepting there may have been other similar complaints around the time of those notes, it is difficult to understand that if the pain was as bad as she suggested, nagging and aching most of the time, but excruciating at others, and which affected her work and recreational activities in the manner she suggested, that she would not have made more of it with her general practitioner, and sought specialist intervention.
I am unable to say whether the evidence of the plaintiff in this regard was a mistaken reconstruction of the undoubtedly significant symptoms after January 2014, or whether she is intentionally and untruthfully describing these symptoms to benefit her application. Either way, I do not accept her evidence in that regard. In my view, a proper assessment of the situation is that she undoubtedly suffered an injury to her right knee in the fall of July 2008 which was a soft tissue injury requiring some modest treatment, medication and investigation by an orthopaedic specialist. By February 2009, the injury had largely subsided.
Likewise, I accept she suffered a DVT in the right calf, which again required some treatment, but with appropriate medication she recovered and, although there was the suspicion of a thrombus redeveloping in [2011], investigation proved that not to be the case. This assessment is consistent with the fact that she returned to her work in late 2008 and to full-time regular duties by February 2009. There is no objective evidence that she had any time away from work, or difficultly in carrying out her work tasks, even for the employer, or Ensign.
I do not accept as accurate the history that she gave to many treating and consulting practitioners, that she had ongoing pain in the right leg and/or the back from the time of the fall up until January 2014. That must affect the accuracy of their opinions. I am not satisfied she made any complaints of low back pain until January 2014.[20]
[18]Ibid [58].
[19]Ibid.
[20]Ibid [59]–[63].
Having completed his analysis of the applicant’s evidence, the judge said that it was necessary to assess her complaints to Dr Voon, as detailed in his clinical notes, and to determine the extent to which those complaints (symptoms) supported the applicant’s contention that she suffered an injury to her lower back in the accident. The judge said that this ‘in turn involve[d] an assessment of the reports and opinions of the various treating and consultant practitioners’.[21]
[21]Ibid [64].
The judge commenced his analysis of the medical evidence by dealing with Mr Goldschlager, Mr Awad, Dr Murphy, Dr Poppenbeek, Mr Jones and Dr Barton.[22] In summary, the judge concluded:
[22]Ibid [65]–[70].
·Mr Goldschlager’s letters did not provide any real assistance as he did not receive a comprehensive history and did not analyse the clinical notes. That said, the letters indicated that he sought approval for funding for the surgery through WorkCover (perhaps indicating a belief in a causal link between the accident and the applicant’s lower back condition).[23]
·Mr Awad did not receive an accurate history. Moreover, he did not analyse the clinical records. Additionally, ‘there was no real analysis of how he concluded that there was a causative link between the fall and the lower back condition’.[24]
·Dr Murphy received a flawed history that the applicant continued to be troubled by back and leg pain after the fall. As with Mr Awad, his conclusion was made without detailed analysis. He was also a physician, rather than an orthopaedic specialist or neurosurgeon — the judge being of the view that those practitioners in the best position to make a technical assessment of the link between the fall and the back injury being specialist orthopaedic surgeons or neurosurgeons as ‘they are the practitioners who regularly assess complaints, match those complaints to relevant radiology, and then make an assessment’.[25]
·Dr Poppenbeek’s reports were relevant only in respect of the history he received in November 2008 when he noted that the soft tissue injury to the applicant’s knee and the DVT were improving.[26]
·Mr Jones did not receive an accurate history (albeit that, on this history, Mr Jones did not support a causative link).[27]
·While Dr Barton did not support a causative link, his specialty was as an occupational physician rather than as an orthopaedic surgeon or neurosurgeon.[28]
[23]Ibid [65].
[24]Ibid [66].
[25]Ibid [67], [70].
[26]Ibid [68].
[27]Ibid [69].
[28]Ibid [70].
The judge concluded that the practitioners who were in the best position to give evidence about the causation issue were Dr Voon, Dr Gordon and Dr Brazenor.[29] The judge then proceeded to deal with the evidence of those witnesses.
[29]Ibid [71].
The judge found Dr Voon to be an impressive witness. He was not, however, a specialist, and the judge concluded that his views had been influenced by those of Dr Gordon. Specifically, the judge said:
Dr Voon was an impressive witness. His evidence was measured and considered. He said that even accepting there were no complaints made to him of back pain, or the extensive symptoms which Ms Apps referred to, the entries in his clinical notes indicated to him that the fall disrupted the L4-5 disc. Although it did not give rise to back pain, the compression of the disc upon the exiting nerves from time to time well-explained the complaints of the plaintiff, particularly in 2011 and 2012 of leg, foot and heel pain and paraesthesia. He said the whole clinical picture ‘fitted into place’.
Given my impression of Dr Voon, and given he is a treating practitioner who has seen the plaintiff on many occasions, his opinion should be respected; however, he does not possess specialist qualifications, as do the orthopaedic and neurological witnesses. He acknowledges that in his report of September 2016, where he says —
‘Although I am not a specialist, I am in agreement with neurologist Dr Gordon. … .’
Again, I am of the view that it is important that the opinion as to the causative relationship between the fall and the onset of back symptoms is one which requires particular specialty. Dr Voon does not have that specialty. His view, I conclude, has been influenced by that of Dr Gordon.[30]
[30]Ibid [72]–[74] (footnote omitted).
With respect to Dr Gordon, the judge said that his opinion should also be respected. The judge, however, concluded that Dr Gordon received a flawed history and that ultimately there was ‘no clear and reasoned path setting out how he came to his conclusion’. Specifically, the judge said:
Dr Gordon’s opinion should also be respected, given he was the treating neurologist from 2014, but he received a flawed history. He was told:
‘Ever since then she was troubled by right lower limb pain which became worse over the years and was associated with some sensory symptoms over the lateral aspect of the lower leg, radiating up the thigh into the buttock and paraspinal region.’
Dr Gordon considered Ms Apps’ symptoms were likely to have been caused by peroneal neuropathy, although considered lower spinal radiculopathy may be involved. It is clear that he was under the impression that she had ongoing significant right leg symptoms from the time of the fall until 2014. According to his various letters and reports, he concluded that it was ‘overwhelmingly likely’ that the symptoms he saw in 2014 were related to her work trauma.
However, there is no clear and reasoned path setting out how he came to this conclusion. There is no reference to any of the clinical notes of Dr Voon and, while he clearly saw relevant radiological investigations, he does not detail how, in particular, the findings on the MRI around 2014, showing a far right-sided lateral prolapse, relate to the symptoms Ms Apps complained to Dr Voon about.[31]
[31]Ibid [75]–[77] (footnote omitted).
The judge then turned to Dr Brazenor, concluding that he gave ‘by far the most careful and logical assessment of the causative link, based upon his appropriate expertise’.[32] Specifically, the judge said:
[32]Ibid [78]. While the judge referred to Dr Brazenor providing reports in 2017 and 2019 (when in fact they were provided in 2017 and 2018), no party sought to make any point about this before us.
His detailed analysis involves an assessment of the relevant radiological investigations and Dr Voon’s clinical notes. He received details of the early assessments by Mr Tran and Dr Blombery of the right knee injury and DVT, and various other material. He was critical of Dr Gordon’s analysis, and noted he is not a spinal specialist.
…
Professor Brazenor’s opinion is clear. He said that because there was more than a five-year gap between the trip and the first radiological investigation, and a complete absence of the complaint of symptoms over that period, save those referred to in Dr Voon’s notes, there is no sufficient link between the fall and the onset of symptoms. I accept his opinion.
Important to Professor Brazenor is the fact that there was no low back symptoms until early 2014. He described the symptoms in the clinical notes in 2011 as ‘bizarre’. In 2011, the notes reveal there was no low back pain and a full range of movement in the back. He said that this finding —
‘… virtually excludes the lumbar spine as the cause of the tingling paraesthesia in the feet and occasional pain in the heels and soles.’
It is clear that Professor Brazenor does not associate any of the complaints by Ms Apps to Dr Voon as related to her lower back disc disruption.
Further, Professor Brazenor’s opinion is supported by the fact that Ms Apps was able to continue in full-time employment with the employer, and then with Ensign, up until at least 2014, without any objective evidence of difficulties in her employment or time off work. She was also able to manage the breeding of large dogs.[33]
[33]Reasons [78]–[83] (footnote omitted). At Reasons [79] (not reproduced in the above extract) the judge wrongly stated that Dr Brazenor did not clinically examine the applicant and that this was a matter that might, in some circumstances, detract from his opinion. In fact, Dr Brazenor did clinically examine the applicant for the purpose of his report. Before us, however, neither party sought to make anything of the judge’s apparent misconception.
The judge then concluded his reasons for judgment in the following terms:
For the reasons stated, and relying upon the opinion of Professor Brazenor, I am of the view that while Ms Apps has undoubtedly suffered a serious disc condition in her lower spine, I am not persuaded, on the balance of probabilities, that that condition was related to her fall in 2008.
Mr Richards points out that the causative link is more likely, given there is no other injury or incident which could be said to have caused the disc disruption.
However, it is well known that disc derangement can occur without major trauma. The plaintiff may well have had a degenerative lower spine, and a relatively minor incident may well explain what subsequently occurred.
In the circumstances, I am not satisfied as to the causative link.
The plaintiff’s application should be dismissed.[34]
[34]Reasons [84]–[88].
Parties’ contentions
In her written case in this Court, the applicant made discrete submissions with respect to each of her proposed grounds of appeal as follows:
(1) Under ground 1, the applicant contended, by reference to a question asked of Dr Brazenor by the respondent, that the judge applied the wrong test on the issue of causation. One of the questions answered by Dr Brazenor, after he had already expressed the opinions to which we have already referred, concerned whether work was a ‘significant contributing factor’[35] to the applicant’s spinal condition. Dr Brazenor answered this question in the negative, and in her written case the applicant contended that, in basing his conclusions on Dr Brazenor’s evidence, the judge failed to apply the proper test for causation — being whether the accident was a cause of the applicant’s spinal condition.
[35]As that expression is defined in the Act.
(2) Under ground 2, the applicant contended that the judge’s conclusion was ‘against the weight of the evidence’ — and in particular the opinions of Dr Voon, Dr Gordon, Mr Awad and Dr Murphy. It was also submitted that greater weight should have been given by the judge to the ‘mechanism of the fall’ and the evidence of the applicant that she suffered ongoing symptoms in her legs as recorded by Dr Voon.
(3) Under ground 3, the applicant contended that the judge was wrong to rely upon the opinion of Dr Brazenor. Dr Brazenor’s opinion was submitted to be flawed in a number of respects, including his speculation that the applicant suffered a disc injury in 2013 (for which there was no evidence); his inappropriate characterisation of the applicant suffering ‘bizarre symptoms’ in both legs; his reference to the L4/5 disc protrusion being discovered ‘serendipitously’; and his failure to take account of the applicant’s experiencing of leg symptoms, for which no explanation was provided until 2014.
(4) Under ground 4, the applicant contended that the judge’s reasons were inadequate because they did not properly consider the lack of evidence of any other injury or incident which could have caused the disc protrusion. Moreover, the judge was wrong to say that it was well known that disc derangement can occur without major trauma, and to speculate that the applicant may well have had a degenerative lower spine ‘and a relatively minor incident may well explain what subsequently occurred’.[36] Additionally, the judge did not give any explanation for relying on this speculation or relying upon Dr Brazenor’s opinion that the applicant most probably injured her L4/5 disc in 2013.
[36]Reasons [86].
In oral argument, the emphasis of the applicant’s case shifted somewhat. The applicant’s proposed grounds of appeal were argued compendiously. The discrete complaint in the applicant’s written case about the question asked of Dr Brazenor concerning whether the accident was a significant contributing factor to the applicant’s lower back condition was ultimately not pressed. The complaint became one about whether the judge had approached the issue of causation having regard to the whole of the evidence.
The applicant’s submissions in oral argument may, with some overlapping of the points that were made, be summarised as follows:
(1)The judge failed to have regard to the whole of the evidence and impermissibly reasoned his decision in a way that did not reflect the way the case was argued or the whole of the evidence that was left ‘having regard to his determinations about the applicant’s evidence’. Specifically, he ‘over relied’ on the histories that he had not been prepared to accept in their entirety as a reason for dismissing the application, and was ultimately distracted by his unfavourable credit findings in relation to the applicant.
(2)The actual nature of the accident and the fact that it had the capacity to cause the disc protrusion subsequently found, which were matters that were not the subject of challenge by the respondent at first instance, in the absence of any evidence of some other causative factor, told strongly in favour of a finding that the accident was a cause of the disc protrusion.
(3)Having rejected the applicant’s histories, the judge was left with a case based on medical records, including what had been said to doctors from time to time. On that evidence, causation was established.
(4)This was an inferential case which was proved on the balance of probabilities when one had regard to the whole of the evidence. Specifically, the judge was wrong to reject medical opinions, that there was relevant a causal link, merely because of some difficulty with the applicant’s histories. A number of the opinions favourable to the applicant were, or at least may have been, expressed without any reliance by the medical practitioner upon either the history given by the applicant (flawed or otherwise), or indeed any history.
(5)There was no evidence contrary to the applicant’s case on causation. Specifically, there was no evidence, as speculated by Dr Brazenor, that the applicant suffered injury in 2013; and no evidence, as speculated by the judge, that the applicant had a degenerative lower spine such that a prolapse may well have been caused by some relatively minor incident. Moreover, properly analysed, Dr Brazenor’s first report where he referred to the protrusion found in January 2014 as being ‘asymptomatic’ was ‘very powerful evidence in support of the applicant’s case’.
In response to the applicant’s contentions, the respondent submitted that leave to appeal should be refused because the appeal does not have a real prospect of success. The respondent supported the judge’s reasoning, submitting that on a proper analysis of the judge’s reasons there was no basis for the applicant’s criticisms. Specifically, contrary to the applicant’s submissions, the judge dealt with the whole of the evidence and the way the case was argued before him; his findings were not ‘glaringly improbable’ or ‘contrary to compelling inferences’;[37] and his path of reasoning was clearly disclosed.
[37]Cf Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, 686-7 [43]; Lee v Lee [2019] HCA 28, [55].
Analysis
In appropriately detailed reasons, the judge engaged in a conventional analysis of the causation issue between the parties. The first suggestion that the applicant suffered a back injury as a result of the accident was not made until January 2014, more than five years after the accident. In the circumstances, the applicant’s histories, and her accounts to doctors, were of critical importance in determining whether the accident was in fact a cause of her back condition.[38] To the extent the applicant submitted otherwise, that submission must be rejected. That is not to ignore the limitations that attend the reliance by a court on histories, recorded by medical practitioners, which do not purport to be a verbatim account of what may have been said by the patient or person being examined.[39]
[38]See generally Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, 1609 [60]; Rowe v Transport Accident Commission [2017] VSCA 377, [89]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243, [74]; Johns v Oaktech Pty Ltd [2020] VSCA 10, [76].
[39]As to which, see Woolworths Ltd v Warfe [2013] VSCA 22, [112] (per Kaye AJA, with whom Tate and Whelan JJA agreed).
The judge did not find the applicant to be a particularly impressive witness. As a result, he did not accept as accurate the history that she gave to many treating and consulting practitioners that she had ongoing pain in her right leg and/or her back from the time of the fall up to January 2014. There was no error in the judge making unfavourable credit findings so far as the applicant was concerned, and no error in failing to accept the accuracy of what she said to medical practitioners about ongoing pain in her right leg and/or back. These were quintessentially matters for the judge, he having had the benefit of hearing and seeing the applicant.
Moreover, the differing versions given by the applicant, first to medical practitioners, and then in her affidavits, and then in her cross-examination, in our view, well justified the judge in not being satisfied about the accuracy of what the applicant said from time to time about ongoing pain in her right leg and/or back following the accident.[40]
[40]It is to be remembered that in her affidavits, the applicant denied suffering any back pain prior to the back surgery in 2015; whereas at one point in cross-examination she said she had a niggle in her back continuously from shortly after the accident, but later referred to her back pain as being experienced ‘occasionally’ in 2012.
While the accuracy of the applicant’s accounts was of critical importance in the resolution of the causation issue, the applicant was correct to submit that the issue fell to be determined on the whole of the evidence. That said, the applicant’s submission that the judge did not decide the question on the whole of the evidence must be rejected. Having concluded that he did not accept the accuracy of relevant histories given by the applicant, the judge did not stop there. He went on to assess the applicant’s complaints to Dr Voon, to determine the extent to which her symptoms supported her contention that the accident was a cause of her lower back condition.[41] The judge then engaged in the analysis of the medical evidence to which we have referred above.[42]
[41]Reasons [64].
[42]Ibid [65]–[83].
The applicant placed much reliance on the fact that the accident, as she described it, had the capacity to cause injury to her lower back, and more particularly to be a cause of the L4/5 disc protrusion. The capacity of an incident to be a cause of an injury is, of course, a necessary condition to be established if causation is to be made out. It is not, however, a sufficient condition. In cases of the present kind, there is almost always a capacity for the described accident to be a cause of the alleged injury. Capacity (almost always established) is only the first step in the analysis.
In the present case, the applicant placed heavy reliance upon the lack of evidence of any other incident which might have been a cause of her lower back condition. Again, while that is a relevant matter, it is not, of itself, determinative. To hold otherwise would be to commit one of the errors contended for by the applicant — namely, to decide the issue of causation without regard to the whole of the evidence.
As part of her argument, the applicant made complaint about the judge’s statement that it was well known that disc derangement can occur without major trauma and that a relatively minor incident involving a degenerative lower spine may well explain what subsequently occurred. There is no substance in the applicant’s complaint. The following points may be made:
(1)The judge’s observations were made in the context of the applicant carrying the onus of establishing that the accident was a cause of her lower back condition. The judge made no positive finding that the applicant actually had a degenerative lower spine or that she suffered her lower back injury as a result of some relatively minor incident.
(2)An examination of the way in which the case was presented and argued before the judge shows (as with many cases of this kind where the bulk of the medical evidence is in written reports and not the subject of cross-examination) that the case proceeded on an agreed understanding of basic medical principles that were not expressly stated in the evidence. So, in stating what was well known about disc derangement, the judge correctly referred to a general matter of medical knowledge not in dispute between the parties. Indeed, at one point in his final address, senior counsel for the applicant,[43] without objection, in the course of reading from one of the medical reports, said:
Just pausing there, your Honour, it’s trite that if an injury has caused jarring to the back that that jarring is likely to give rise to aggravation or acceleration of disc degeneration, in this case, predisposed to disc prolapse.
(3)While the proposition that disc prolapses are capable of occurring in the absence of major trauma may not have been expressly stated in the evidence, that proposition was plainly a premise for those medical opinions which did not support the applicant’s case on causation. Specifically, each of Dr Brazenor, Dr Jones and Dr Barton expressed the opinion that the disc protrusion was unrelated to the accident, without identifying the need for any major traumatic incident.
[43]Not senior counsel who appeared in this Court.
Similarly, there is nothing in the applicant’s complaint about Dr Brazenor’s reference to the possibility that the disc injury was ‘incurred most probably in 2013’. Dr Brazenor did not purport to give evidence that the applicant was involved in some accident in 2013. His statement was no more than a further expression of opinion that, in the absence of relevant pain or symptoms for many years following the accident (bilateral leg symptoms not being explained by the existence of a right-sided L4/5 disc protrusion), it could not be said that the accident was a cause of the applicant’s lower back condition.
We turn now to the applicant’s submission that Dr Brazenor’s description of the January 2014 CT scan as ‘the asymptomatic CT scan finding’ was ‘very powerful evidence in support of the applicant’s case’. The argument appeared to be that, if Dr Brazenor accepted that the disc protrusion found in January 2014 was asymptomatic at that time, then this was consistent with the applicant’s case that she suffered the prolapse as a result of the accident — the prolapse having been asymptomatic, either from the time of the accident, or from time to time in the years following the accident. Thus, the absence of relevant symptoms in the years following the accident, could not be a factor telling against the applicant on the issue of causation. We reject these submissions. Three points should be made.
First, this was an argument that was not put to the judge, and so one that the judge was not given the opportunity to deal with. In the applicant’s final address to the judge, all that was said about Dr Brazenor was that what Dr Brazenor said under the heading of ‘Diagnosis’ (namely, ‘the worker is suffering the residua of injury to the L4/5 disc incurred most probably in 2013, unrelated to the cord-tripping incident of 30 July 2008’) did not ‘fit well’ with the evidence of the applicant and Dr Voon. So much may be accepted.
Secondly, the applicant’s submissions assume the existence of the disc protrusion found in January 2014 from some time shortly after the accident; whereas Dr Brazenor’s opinion on this heavily disputed fact was to the contrary.
Thirdly, on any fair reading of Dr Brazenor’s reports, it is plain that his professional opinion is there is no causal link between the accident and the applicant’s disc protrusion or lower back condition.
Fourthly, if it was to be realistically asserted that the somewhat ambiguous reference to an ‘asymptomatic CT scan finding prompt[ing] referral to [a] neurosurgeon’ was favourable to the applicant, it would have been necessary, in the circumstances of this case, to make that point at trial so as to at least give the respondent an opportunity to seek to have the matter clarified by Dr Brazenor.
To the extent that the applicant submitted that medical opinions relied upon by her were, or may have been, formed without reliance upon the applicant’s history, and thus fell to be accepted even if the accuracy of that history was not accepted, that submission must be rejected. There was no evidence (and nor would one expect there to be) that a medical practitioner can objectively determine that a particular traumatic event is a cause of a lower back injury or condition in the absence of some relevant history from which causation might be inferred. We do not read any of the medical practitioners’ reports as suggesting that any of them engaged in such a process. To the extent that any of the reports suggest that such a process may have been engaged in – leading to a particular conclusion on the issue of causation – the judge was undoubtedly correct to reject such conclusion.
As the evidence in this case shows, in order to determine causation in cases of the present kind, close attention needs to be paid to relevant histories, presenting symptoms (as described by the injured person), results of clinical examinations and relevant radiology or other diagnostic material. The judge engaged with this task appropriately, and ultimately came to the conclusion that the applicant had not satisfied her onus of persuading him that the accident was a cause of her lower back condition.
For the reasons given above, the applicant’s contentions that the judge erred in failing to properly apply the correct test for causation (ground 1), erred in finding that the applicant did not suffer an injury to her spine in the accident (ground 2) and erred in relying on the opinion of Dr Brazenor (ground 3) must be rejected. The judge applied the correct test, was entitled to come to the conclusion that he was not satisfied that the applicant had discharged the onus of establishing causation, and did not err in relying on the opinion of Dr Brazenor. Grounds 1, 2 and 3 must be rejected.
Finally, there is no substance in the applicant’s complaint that the judge failed to disclose an adequate path of reasoning. The reasons show clearly why the applicant lost her case. No more was required. Ground 4 must be rejected.
Conclusion
The applicant’s proposed appeal has no real prospect of success. Leave to appeal must be refused.
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