Apps v Victorian WorkCover Authority
[2019] VCC 340
•25 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-03461
| DEBRA ANN APPS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 March 2019 | |
DATE OF JUDGMENT: | 25 March 2019 | |
CASE MAY BE CITED AS: | Apps v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 340 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right knee in workplace incident – whether incident materially contributed to lower back injury, the subject of subsequent surgery – whether symptoms claimed to have been suffered related to leg injury or low back injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment:Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant/s | Ms M Britbart QC with Ms M Yerusalimsky | Hall and Wilcox |
HIS HONOUR:
Preliminary
1 On about 30 July 2008, in the course of her employment as a “picker and packer” for a company, PSW Pty Ltd, Ms Apps suffered injury to her right knee. At the time, she was lifting a large box and tripped over a power cable attached to a forklift. Her knees struck a trolley with some force.
2 Ms Apps suffered immediate pain in both knees, in particular the right knee, and was taken to hospital. She remained off work for a period, with ongoing pain and swelling around the right knee. Some short time later, a Deep Vein Thrombosis (“DVT”) was detected in her right calf, requiring hospital admission, and medication. She was treated by a number of specialists in respect of the DVT, and was eventually weaned off Warfarin, a blood-thinning medication.
3 Ms Apps’ right knee was examined, not only by her general practitioner, but by an orthopaedic surgeon. An MRI investigation revealed no abnormality. She said the acute symptoms in her knee resolved by about February 2009. She returned initially to light duties with the employer and was cleared for full-time duties in February 2009. She remained with that employer until 2010, when she was retrenched. She took up employment with another employer, Ensign, as a receiving clerk some months later. She remained in full-time employment until August 2016. She has not worked since.
4 From the time of the incident, Ms Apps said she experienced regular niggling pain in the right leg, commencing in the buttock region and radiating at times to the knee into the lower leg. Occasionally, the pain was excruciating, but she said she was able to deal with it. In addition, she said some three or four days after the incident, she developed niggling pain in the lower back. According to Ms Apps, this was not present all the time, although restricted her in a number of work tasks, and in her domestic and recreational activities.
5 In early 2014, Ms Apps went to see her general practitioner with low back pain, and was referred for a CT scan to her lower spine, which showed disruption at the L4-5 disc. She saw a neurologist, Dr Victor Gordon. He referred her to a neurosurgeon, Mr Tony Goldschlager, who performed a right-sided laminectomy, including fixation by plate and screws.
6 Ms Apps claims to have suffered ongoing significant lower back pain after the surgery, although the problem with referred pain to her right leg was largely alleviated.
The application
7 This is a serious injury application. Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity. The body function said to be lost or impaired is the lumbar spine.
8 Ms Britbart, for the defendant, identified the sole issue in the application as that of the causative relationship between the workplace incident and the lower back injury. It is the defendant’s contention the plaintiff’s back was not injured in the incident. She sensibly conceded that if I was satisfied the plaintiff’s low back condition was related to the fall at work, the plaintiff met the statutory criteria as to both pain and suffering and economic loss.
9 In addition to the evidence of the plaintiff and the opinions of the various treating and consultant medical practitioners, the application requires an analysis of the credibility of the plaintiff, and the histories she provided to the treating doctors. Both the plaintiff and her principal treating general practitioner, Dr Tim Voon, gave evidence and were cross-examined.
Did the workplace incident materially contribute to the lower back injury?
10 In the course of cross-examination, Ms Apps was questioned about the injuries, pain and restriction she suffered as a result of the fall in July 2008. She said she immediately suffered pain in both knees, the right worse than the left. She was taken to the Dandenong Hospital, but an assessment showed no structural damage, and she was discharged.
11 In respect of her right knee pain, in September 2008, Dr Voon referred Ms Apps to Mr Ton Tran, orthopaedic surgeon, for assessment. He found no structural damage, and an MRI scan was reported as normal. Ms Apps accepted that the acute right knee pain which she suffered in the fall, ceased around February 2009, and she was able to return to employment, eventually to pre-injury full-time duties in February 2009.
12 Shortly after the fall, Ms Apps’ right calf began to swell, and she found it difficult to walk, and needed the aid of crutches. Dr Voon sent her to the Valley Private Hospital and then Dandenong Hospital, where a DVT was diagnosed. She was placed on various medications, including Warfarin. She was referred to Dr Peter Blombery, consultant physician in vascular disease and pain management, in respect of the DVT. He undertook a scan of her calf which showed, by that time, the DVT had reduced. He noted there was no significant tenderness of the calf nor thigh. He concluded she had a good resolution of the thrombus and there was no need to continue with Warfarin. He suggested she continue low dose aspirin. He advised her to seek further medical attention should she develop increasing pain or swelling of the calf.
13 Ms Apps returned to see Dr Voon in May 2011, with right knee ache and lower leg discomfort. An ultrasound did not show any DVT. Likewise, in September 2011, Ms Apps complained of “pulsation” below the knees in both legs, then a rush sensation to the feet. Again, an ultrasound and scan did not show any DVT. In the course of cross-examination, Ms Apps accepted the pain she suffered in 2011 was a different pain from that which she said she suffered after the incident.
14 However, in the course of her evidence, Ms Apps complained of additional leg symptoms as a result of the workplace incident. She said that for the first few months after the injury, she would have pain throughout her whole leg every day.[1] According to the history obtained by Mr Tran, the plaintiff described discomfort in the right knee on weight bearing, without any pain at rest.[2] Ms Apps denied this was the history she gave Mr Tran.[3] She said on occasions, there was shooting pains up the whole leg.[4] That pain began around the buttocks. When the shooting pain occurred, sometimes it would go to the right knee from the buttocks, and sometimes down the whole leg.[5] The acute knee pain she suffered in the incident improved with time; however, the pain throughout her leg did not improve. She said this pain affected her capacity to walk, sleep, and carry out household chores.
[1]Transcript (“T”) 20, Line (“L”) 30
[2]Plaintiff’s Court Book (“PCB”) 51
[3]T22
[4]T23, L8
[5]T23
15 The pain was present all the time, sometimes a nagging pain. She managed the pain herself with pain-relieving medication. Sometimes, the pain was what the plaintiff described as “really belt it out”.[6] Sometimes, for a week or so, it would be excruciating. At other times, it would be a little nagging pain in the leg.[7] She said that every time she saw Dr Voon, she told him about this pain. There were times where she could not tolerate the pain. Despite this pain, she said she did not seek to have the problem investigated either by radiology or by a referral to a specialist, despite seeing Dr Voon reasonably regularly.
[6]T27, L23
[7]T28, L1
16 As stated, she returned to work in late 2008, and in February 2009, to full-time duties. There was no evidence of any work complaints, inability to carry out her duties nor time off work. At its peak, she said the pain was “really bad”.[8] Sometimes the right leg pain would be in the foot, sometimes up near the hip, but always in the right leg.[9]
[8]T37, L10
[9]T41
17 In addition, she said that three or four days after the workplace incident, she started to feel niggling pain in her lower back.
18 In the course of her work at Ensign, from 2010, each day she was required regularly to bend town to put labels on pallets. Sometimes this happened four times a day, and sometimes one hundred times per day.[10] This bending caused her low back pain. She did not tell her general practitioner about this low back pain, as it was not as significant as the problem she had with her right leg.[11] Nonetheless, it was both annoying and concerning.[12]
[10]T44, L9
[11]T44
[12]T45
19 In 2011, Ms Apps was referred by Dr Voon to two specialists, Dr Victor Gordon, a neurologist, and Dr Marie Feletar, a rheumatologist, in respect of symptoms which I will shortly describe. She attended neither specialist, and could give no satisfactory explanation as to why, with these complaints of leg and back pain, she did not take up the referrals.
20 The evidence as to her back pain stands in contrast to Ms Apps’ description in her affidavits. According to her first affidavit,[13] she said she “slammed on both my knees and I believe this had a jarring impact on my back”. She referred to ongoing knee and right leg pain, and its impact upon her work capacity. There is no reference in either affidavit to any back pain before her referral to Dr Gordon at Monash Neurology in April 2014.
[13]PCB 14
21 Further, Ms Apps’ evidence about both right leg and low back pain stands in contrast to the clinical notes and to the evidence of Dr Voon. Over his cross-examination, Dr Voon accepted that there was no reference in his notes to the type of lower back and right leg pain about which Ms Apps not only complained, but said she raised with him. He accepted because there was no reference in his notes, there was no complaint to him by her of such pain, otherwise he would have recorded it.
22 However, it is clear that on occasions Ms Apps did consult Dr Voon about various symptoms in her right leg. It is appropriate to set out what complaints those notes record:
· On a number of occasions in 2008, the clinical notes of Dr Voon reveal complaints of right knee pain, the prescription of medication, and a referral to Mr Tran and Dr Blombery.
· On 3 November 2008, there is recorded:
“patient has trialled driving around neighbourhood no problems – can drive to work.
no foot leg pain when drives.
however at end of day leg sore.
so to cont[inue] light duties in the meantime
counselled.
exam tenderness on flexion of knee and also mild discomfort behind calf leg.”[14]
[14]DCB 174
·On 17 November 2008:
“seen Dr Blomberry (sic) happy that clot resolving - warfarin ceased and now on aspirin for 3 mths
to begin gentle knee mobilising … [exercises] meantime – p[a]t[ient] is feeling as if knee is locking at times – if further prob[lem]s back to see Mr Tran
…[continue] light duties at the moment, p[a]t[ient] finding that at end of the day foot can be quite swollen
… .”[15]
[15]DCB 174
·On 4 December 2008:
“[patient] doing well knee improving
walking much better
however still tender if stands walks for too long
cont[inue] light duties and PT [physiotherapy]
this coming week cont[inue] 3 d[ays] a week and then next week trial of 5 d[ay] a week light duties
if not better back earlier for r[e][iew].”[16]
[16]DCB 173
·On 5 January 2009:
“knee much improved
only occ[asional] swelling now
walking good - only issues if has to walk up stairs - does not have to do that at work or if squats for too long
range of mov[emen]t good at the moment
cont[inue] p[a]t[ient] for the next m[on]th r[e]v[iew] then to see if still needs PT [physiotherapy].”[17]
[17]DCB 173
·9 February 2009:
“Right Knee injury pain resolved
patient to return to full times (sic) duties
PT [physiotherapy] completed
clearance given.”[18]
[18]DCB 171
·25 November 2009:
“…
standing at work - increasing right heel pain now limping
plapatin (sic) very sore heel and base of foot
for r[e]v[iew] on Friday after results
no history of trauma / but stands up and walks a lot at work.”[19]
[19]DCB 170
· 30 May 2011:
*WC [Workcover] Right knee injury post tripping over electric cords at work 2008
-Mr Tran 2008 MRI scan nad conservative Mx
-Cx thrombosis of the right superficial femoral vein 8cm from groin crease from immobility
caused by knee injury; Vase specialist Dr Blomberry 2008 - warfarin ceased to cont aspirin
for 3 mths
recurrence of right knee ache, and lower leg discomfort cramps ref for repeat US of the right leg and doppler xray US of the right knee rv after US of leg
examined right leg no evidence of redness or swelling of calfs
however tenderness more superficial on the side of the calf inner sometimes outer, but not
behind ; sometimes crampy
checked measurements of calf, 8 cm down from knee cap both legs - 42cm in diametre on
both calves
org doppler US of the right leg tomrrow at Dandy MIA at noon
pt to bring report back for rv at 4 pm
will org knee xray and US then
if any increasing calf pain tonite or sharp chest pain to present to ED.”[20][20]DCB 158
(sic)
· 9 September 2011:
“URTI extended med cert
…
4-5 mths
sitting or lying bed gets a … [pulsation] below knees both legs, then a rush sensation to feet with parasthesiea after in both feet; lasts for half-2 hrs
occurs in both lower legs below knees … [simultaneously]
exam no evidence of dvt of calfves, no ankle swelling or pain
no sxs [symptoms] of parasthesiae of pain in the feet at the moment
intermittent comes and goes
occurs every 2-3 days.”[21][21]DCB 156
(sic)
· 30 September 2011:
“*Parasthesiae, pain both feet, intermittent rushing pulsations down legs at night – awaiting nerve conduction test results ref to neurologist MMC 2011
*WC Right knee injury post tripping over electric cords at work 2008
-Mr Tran 2008 MRI scan nad conservative Mx
-Cx thrombosis of the right superficial femoral vein 8cm from groin crease from immobility
caused by knee injury; Vase specialist Dr Blomberry 2008 - warfarin ceased to cont aspirin for 3 mths
-recurrence of right knee ache, and lower leg discomfort cramps repeat US of the right leg old gastrocnemius muscle tear; doppler US and duplex arterial scans showed old gastrocnemius tear ref PT Mark Eibl/Murray Hutchinson
lower back FROM [full range of movement] no pain all ranges of movt
no leg or foot weakness
no bowel or bladder dysfunctions
no numbness foot but parasthesiae and pain.”[22]
[22]DCB 154
(sic)
Ms Apps was referred to Dr Victor Gordon with a description of these symptoms.[23] She was also referred to Dr Marie Feletar.[24] She went to neither. I am of the view this was because the problem was not particularly disabling at the time.
[23]DCB 154
[24]DCB 151
· 1 October 2012:
“occ[asional] cramps lower muscles and feet
trial of magnesium
check those levels as well as ALP and sugars on next check in 4 m[on]ths[’] time
… .”[25]
[25]DCB 147
· 30 January 2014:
“-Lower back pain
-Flexion\Extension mild pain
-rotation nad, lat[eral] flex[io]n mild pain
-no neurology[ical] sxs of LL; bowel or bladder fun[c]tion normal
-palpation mild pain over low back
-RICE warm packs
P[atien[t] says that pain does sometimes go down legs from lower back.”[26][26]DCB 141
This is the first complaint of low back pain since the fall of 2008.
23 After a series of investigations in early 2014, Ms Apps came under the care of Dr Gordon, who diagnosed a significant disc prolapse at L4-5, with compression of the exiting nerve roots, and referred her to Mr Tony Goldschlager, who subsequently performed major back surgery at that level, with an instrumental fusion.
24 A number of treating and consultant practitioners provided reports examining the causative relationship between the fall, and the subsequent development of the significant lower back condition. I will refer to only those reports relevant to the central issue.
25 Dr Victor Gordon has been the plaintiff’s treating neurologist since April 2014. In a letter to Dr Voon of April 2014, he said:
“Ever since then [the fall] 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 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 or colour change.”[27]
[27]PCB 49
26 Further:
“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. The alternatives would include an LS radiculopathy. She has some of the features of a complex regional pain syndrome type 1 but not really a convincing clinical picture for that.”[28]
[28]Ibid
27 To both Dr Voon, and in a referral letter to neurosurgeons at the Monash Medical Centre, Dr Gordon considered the most likely cause of the back condition was the fall at work. He said:
“In passing, I would note that it is overwhelmingly likely that this injury is most likely related to the previous trauma at work.”[29]
[29]PCB 47
28 In a report of January 2018, Mr Mohammed Awad, consultant neurosurgeon and spinal surgeon, received the following history:
“Following this [the fall], her pain was mostly in her leg and she was initially diagnosed and treated for DVT in her right leg. She had warfarin for six months and she was off work for this period. She eventually managed to return to work on light duties and eventually was cleared for formal duties. During this period, she complained of ongoing pain in her leg, which she deemed a problem in her leg secondary to her accident. In early 2010, she was terminated from employment as she was unable to continue this consistently and reliably, but she managed to gain new employment as a Receiving Clerk with Ensign Laboratories. She continued to have leg pain and started to get back pain and eventually in January 2014 she was referred for CT scan. The CT scan showed an injury at L4/5 … .”[30]
[30]PCB 144-145
29 Mr Awad said further:
“In my opinion, taking into account the nature of the injury sustained whilst at work in July 2008, her employment has most likely been a dominant contributing factor to aggravation of her lumbar spondylosis and traumatic disc prolapse. In my opinion, her employment remains a significant contributing factor to her ongoing pain, disability and requirement for treatment.”[31]
[31]PCB 146
30 Subsequently, the plaintiff’s practitioners wrote to Mr Awad with further information.[32] The new information included the various radiological reports and the clinical notes of Dr Voon. The letter notes that after the fall, the plaintiff continued to experience ongoing pain and symptoms in the right knee and down her legs, including cramping, pins and needles and paraesthesia. Mr Awad received a copy of Dr Gordon’s letter of 27 June 2014. He said:
“Taking into account all of the above this does not change my diagnosis of your client's low back injury and this clearly remains the same. Also I am still of the opinion that her employment has most likely been a dominant contributing factor to aggravation of her lumbar spondylosis and towards her traumatic disc prolapse.”[33]
[32]DCB 210-212
[33]PCB 143
31 Ms Apps was examined by Dr David Murphy, rehabilitation physician, in November 2018. He received the following history:
“Ms Apps returned to work on light duties in late 2008 before returning to her usual work in February 2009. She said that she continued to have trouble with pain in her back and particularly in the region of her right knee. She said that her employment was terminated by PSW and she looked for other work through an employment agency. She was able to gain employment with Ensign Laboratories where she worked as a receiving clerk. She said that this work was not as physical as the work at PSW and she was not required to repetitively lift, bend or twist but that she continued to be troubled by back and leg pain. She said that the light duties at Ensign involve working on the computer and a ‘bit of walking around’. She said she needed to take painkillers though to be able to continue to work.”[34]
[34]PCB 150
32 Dr Murphy concluded:
“The nature of the injury where she fell on her knees and jarred her back on 30 July 2008, was consistent with the development of such a disc prolapse. I am therefore of the opinion that the L4-L5 disc prolapse with nerve root compression treated surgically was caused by the incident on 30 July 2008.”[35]
[35]PCB 152
33 In their letter of instruction to Dr Murphy of 26 October 2018, the plaintiff’s solicitors said that they were instructed that after the fall:
“… she continued to experience ongoing pain in her right knee and down into her legs. In early 2014, she was referred for scans which indicated an injury to her lumbar spine. Our client’s then treating GP and neurologist considered the lumbar spinal injury to be a cause of her fall at work on 30 July 2008.”[36]
[36]DCB 218
34 In January 2019, those solicitors again wrote to Dr Murphy and provided Dr Voon’s clinical notes. In a further report of February 2019, Dr Murphy said:
“I have read the documents that accompanied the letter which included medical records of Southern Cross Medical Centre [Dr Voon’s clinic] and various radiology reports.
The material contained in the documents does not change my opinion as expressed in my report of 9 November 2018.”[37]
[37]PCB 148
35 At the request of the defendant’s practitioners, Ms Apps was examined by Dr Ralph Poppenbeek, occupational physician, in November 2008. He received a history:
“Ms Apps states that the calf pain has significantly decreased, but she still develops calf pain if she is doing quite a lot of walking or if it is a hot day. There is calf tightness and soreness, extending to the dorsal aspect of the right foot and associated with some ankle swelling. These symptoms have been present since the onset of the DVT about 2 weeks after the knee injury on 31 July.
Overall, she feels that the right knee is improving, but does describe occasional twinges of medial right knee pain, depending on activity, such as using stairs. She states that there has been no swelling in the knee for quite some time. However, she states that the right knee locked up only on one occasion, about 3 weeks prior to my examination, but otherwise has been good. She describes some instability in the right knee initially, but this has now improved.”[38]
[38]DCB 7
36 There is no history of pain or restriction in the lower back.
37 Ms Apps was examined by Mr Clive Jones, orthopaedic surgeon. In a report dated 7 May 2015, written after her lumbar surgery, he advised:
“Prior to surgery, she had continuing pain in calves, particularly the right, and a good deal of numbness and tingling in the feet. She had a great deal of difficulty walking and driving, and constantly required Tramal medication to control pain. The surgery has relieved her leg pain, but there is still some backache and soreness around the operation site.
Ms Apps lives with her husband in Hampton Park. She has not returned to driving, and her daughter brought her to the consultation.”[39]
[39]DCB 17
38 Associate Professor Graeme Brazenor, neurosurgeon, provided a comprehensive report in October 2017. He did not examine Ms Apps. He set out in detail the various radiological examination findings, reports of various practitioners and, importantly, the clinical notes of Dr Voon. He concluded with the following:
“(i)The clinical record of Southern Cross Centre 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’.”[40]
[40]DCB 18
39 Professor Brazenor noted it was only when a CT scan of the lumbar spine was performed in January 2014 that the right-sided disc protrusion at L4-5 was discovered.
40 Professor Brazenor said:
“As previously commented in this report, the right-sided protrusion at L4/5, which was foramenal (sic) and extraforamenal (sic), 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.”[41]
[41]DCB 18
41 Professor Brazenor noted that the first report of back pain was five years after the fall, which, he said, guaranteed that there was no significant lumbar injury sustained on 30 July 2008.
42 Having analysed Dr Voon’s clinical notes, he was of the view that none of the reported leg-related symptoms were an indication of spinal injury from the 2008 fall. He considered that reference to paraesthesia and a pulsation sensation behind the knees the was not related to the subsequent lower back condition.
43 Subsequently, he was provided with the report of Dr Gordon. He noted Dr Gordon was not a spinal specialist and that he had reached conclusions based upon the history provided by Ms Apps, without contemporary evidence.
44 Finally, Ms Apps was examined by Dr David Barton, occupational physician, in January 2018. He received a relevant history:
“The worker acknowledged that with the initial fall she was not aware of any back pain. She said that she was troubled by pain throughout the whole of the leg that became more troublesome over time. At times the leg would ache, it would be throbbing and she had trouble with walking. She said at times it would swell but was generally achy.”[42]
[42]DCB 46
45 Dr Barton noted the first report of lower back pain was not until January 2014. He 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.”[43]
[43]DCB 48
46 Of significance, are the reports and the evidence of Dr Voon, the treating general practitioner. In his report to the WorkCover insurer of September 2016, he referred to right knee ache, and lower leg discomfort and cramps in May 2011. An ultrasound was undertaken to determine whether there was any further thrombus. He noted in September 2011, the complaint, for four or five months, of a pulsation behind the knees in both legs, then a rush sensation with paraesthesia in both feet. A repeat Doppler ultrasound and duplex arterial scan was performed, which did not show any thrombus. At the time, presumably, the symptoms described were being investigated for the possibility of a further DVT.
47 Dr Voon concluded:
“Although I am not a specialist, I am in agreement with neurologist Dr Gordon that it is highly likely that the injury Debra 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.”[44]
[44]PCB 56
48 In cross-examination, Dr Voon accepted that his notes did not record reference to the type of leg pain or back pain Ms Apps described in her evidence. He accepted that, had such complaints been made, he would have recorded them.
49 In his referral letter to Dr Gordon of January 2014, Dr Voon noted the severe lower leg cramps with unexplained paraesthesia and foot pain, but that he was “unsure of the cause”. He was concerned to investigate whether a thrombus had recurred, but also had ordered a lower back CT scan to investigate disc-related radiculopathy.
50 In a letter to a number of specialists, including Mr Aliashkevich,[45] Dr Drnda[46] and Monash Health Neurosurgical Outpatients, Dr Voon commented:
“The initial accident happened at work after tripping on a forklift cord [in] 2008 complicated by a DVT. Since then (sic) time she has had ongoing right leg pain and also back pain.”
[45]DCB 88
[46]DCB 91
51 However, I am satisfied that this was a history provided to Dr Voon by Ms Apps after 2014, and does not reflect the history he obtained over the years after the fall, as reflected in his clinical notes.
52 In the course of re-examination, setting aside the plaintiff’s evidence about right leg and back pain in the immediate period after the fall, Dr Voon said that, taking into account the reports of leg symptoms, as reflected in his clinical notes over the years, in particular in 2011 and 2012, in his view, it was sufficient to tie a causal link between the fall and the L4-5 disc prolapse. He said those symptoms “fitted into place” with the subsequent diagnosis. He said that the fact that the pain in the right leg came and went was an indication that the L4-5 disc had been disrupted, causing some compression on the exiting nerve root, but only on an intermittent basis. He said he had experience with patients who had suffered a disc disruption in a traumatic event, but who did not suffer low back pain. He said the disruption in Ms Apps’ case became worse over time.
Submissions on behalf of the Plaintiff
53 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.
54 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.
55 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.
56 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.
57 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.
Analysis
58 The first matter to assess is the nature and extent of the symptoms the plaintiff suffered both in the right leg and the lower back after the fall in July 2008. As stated, her description of those symptoms stands in contrast to the clinical notes of Dr Voon and, in respect of her lower back pain, in distinction to the consequences she describes in her affidavits. The assessment of post-injury pain and restriction depends in part upon the credibility of the plaintiff.
59 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.
60 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.
61 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 to 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.
62 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 2001, 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.
63 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.
64 The issue is then to assess Ms Apps’ complaints to Dr Voon, as detailed in his clinical notes, and determine the extent to which those symptoms support the plaintiff’s contention that she suffered some disruption or injury to her lower spine in July 2008. That in turn involves an assessment of the reports and opinions of the various treating and consultant practitioners.
65 In the June 2014 letters of treating surgeon, Mr Goldschlager, although indicating he sought approval for funding for the surgery through the WorkCover insurer, they do not provide any real assistance, as he did not receive a comprehensive history and does not analyse the clinical notes.
66 Mr Awad, the plaintiff’s consultant orthopaedic specialist, did not receive an accurate history. Firstly, he was told by the plaintiff that her employment with the employer was terminated as she was unable to consistently undertake the work. Further, he received a history of continued leg pain after the fall. Although he was provided with the clinical records of Dr Voon, there is no analysis of those records in his reports. Additionally, there was no real analysis of how he concluded that there was a causative link between the fall and the lower back condition.
67 Dr David Murphy is a physician rather than an orthopaedic specialist or neurosurgeon. He also received a flawed history. He was told Ms Apps continued to be troubled by back and leg pain after the fall. Again, without detailed analysis, he concluded the fall of 2008 was consistent with the development of a disc prolapse.
68 In the defendant’s camp, Dr Poppenbeek’s reports are relevant only in respect of the history he received. He saw Ms Apps in November 2008. He noted the soft tissue injury to her knee and the DVT were improving. There is no reference to any back complaints.
69 Likewise, the report in 2015 of Mr Jones, orthopaedic surgeon, is relevant as to its history. He saw Ms Apps after her surgery, where she told him that before the surgery she had ongoing pain in the calves, particularly the right, and numbness and tingling in the feet with a range of restrictions. I am not satisfied this history was accurate.
70 Dr Barton received a history that Ms Apps was troubled by pain throughout the whole of her right leg after the fall, including aching, throbbing and trouble walking. He concluded, because she had not suffered any back pain, that the gap between the fall and the onset of back symptoms in January 2014 was too long; however, Dr Barton’s speciality is as an occupational physician, and I am 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 are specialist orthopaedic surgeons or neurosurgeons. They are the practitioners who regularly assess complaints, match those complaints to relevant radiology, and then make an assessment.
71 I am of the view that the practitioners who are in the best position to answer the questions in this application are the treating general practitioner, Dr Voon, the treating neurologist, Dr Gordon, and the defendant’s consultant neurosurgeon, Professor Brazenor.
72 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”.
73 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. … .”[47]
[47]PCB 56
74 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
75 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.”[48]
[48]PCB 42
76 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.
77 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.
78 Professor Brazenor provided reports in 2017 and 2019, and gives by far the most careful and logical assessment of the causative link, based upon his appropriate expertise. 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.
79 Professor Brazenor did not clinically examine Ms Apps. In almost every application of this nature, he would be criticised in that regard, as that, in the usual scheme of things, is an essential part of forming an opinion; however, in this case, his opinion is assisted by the fact that he received no history from Ms Apps. Almost every doctor she has spoken to has received a flawed history.
80 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.
81 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.”[49]
[49]DCB 32
82 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.
83 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.
Conclusion
84 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.
85 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.
86 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.
87 In the circumstances, I am not satisfied as to the causative link.
88 The plaintiff’s application should be dismissed.
89 I shall make appropriate orders.
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