Bennett v Peninsula Health

[2014] VCC 2269

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-13-04226

CAROLYN SUZANNE BENNETT	Plaintiff
v
PENINSULA HEALTH	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2014
DATE OF JUDGMENT:	13 November 2014 (Revised)
CASE MAY BE CITED AS:	Bennett v Peninsula Health
MEDIUM NEUTRAL CITATION:	[2014] VCC 2269

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury – injury to the cervical spine
Legislation Cited:     Accident Compensation Act 1985

Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267

Judgment:                Leave granted to bring proceedings for the recovery of pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T S Monti QC with Mr M Seelig	Zaparas Lawyers
For the Defendant	Mr N Y Rattray	Hall & Wilcox

HIS HONOUR:

1       This application for leave for pain and suffering damages only relies on an injury to the cervical spine and the impairment thereof.

2       The plaintiff was injured in an accident at work on 6 January 2011.  A lift closed unexpectedly and in effect sandwiched or crushed her shoulders and upper body.  The force was sufficient for her to hear her “bones creaking and clicking”, as she referred to it.  She could not move.[1]  It was a terrifying incident until the jammed doors somehow released and she was able to free herself. 

[1]Plaintiff’s Court Book (“PCB”) 17

3       The neck injury is an admitted compensable injury suffered in the course of her food services job.  She started that job with the defendant in 2001 at the Frankston Hospital.  The sole issue for determination is whether the permanent consequences of the impairment can be fairly described as being “at least very considerable”.  They must be judged by comparing this case with other cases in the range of possible impairments.   

4       There was very little, if any, attack at all on the plaintiff's credit in this application.  The vast majority of the factual background was not in issue.  The night of the accident found the plaintiff tender in the neck and shoulders’ region and she could not sleep.  By the next day, she was very sore and stiff.  She applied her own treatment by way of heat packs, gels and hot showering.  The plaintiff kept working with pain, soreness and stiffness, and was hopeful things would improve.  The pain radiated down her arms with pins and needles in her fingers.[2]

[2]PCB 17

5       Improvement did not occur.  By 10 January 2011, she attended a chiropractor for treatment and took some time off work.  Symptoms continued, so she saw her local general practitioner, Dr R Lewis, on 2 February 2011.  He had treated her before and has treated her ever since.  A good deal of conservative treatment was tried, including a number of prescription medications, massage therapy and physiotherapy.[3]  Dr Lewis also referred her to two specialist neurosurgeons, Professor R Bittar, in July 2011, and Mr B Kavar, in August 2011.

[3]PCB 18

6 I note the repeal of s134AE of the Accident Compensation Act 1985 and the Second Reading Speech and Explanatory Memorandum that accompanied it. Clear, proper and adequate reasons are still required but it is of little or no use describing all the medical evidence in great detail in this application. Most of it was not in contest. The reports speak for themselves in any event. The more up-to-date opinions are most useful in judging consequences now, almost four years after the plaintiff was injured.

7       The plaintiff was the only witness called.  It was of considerable advantage to hear and observe her in the witness box.  The plaintiff has managed to return to work in a very light capacity and works 70 hours a fortnight at present.  I find she is a very well-motivated person with a solid work ethic.

8       The major consequence relied on in this application is constant pain with associated stiffness and restricted mobility. 

9       The plaintiff had been made redundant in June 2013, but shortly after, she was asked to come back to work, and she does almost the same hours as before the accident.  The fact that this request was made, in my opinion, speaks volumes about her attitude to her work as observed by her employer.

10      Her old job, while it was not particularly physical, was staff-based food supply.  She now deals more with patients and it is a somewhat lighter job in terms of functions.  For example she used to push trolleys of food in her former role, but does not do so now.  Her altered duties at work are not put as a consequence that, of itself, would amount to a very considerable one. 

11      The plaintiff's application basically rests on what view I take about her constant pain. 

12      The plaintiff was asked about previous health problems.  She had some treatment for depression, related in particular to a marriage breakdown in the past.  It affected her sleep, but her sleep is now worse since the injury occurred to her neck.  Her evidence is that she has really suffered over the years, no injuries or illnesses prior to January 2011 that have in any way significantly interfered with her capacity to work or to follow her interests and duties in life generally. 

13      Medical records of the Peninsula Health Group show she attended in 2000 for an x-ray of the spine and for treatment.  Outpatients’ physiotherapy attendances in August and September 2001 were also put to her.  She did not specifically recall these events.  Pain in the neck and interscapular areas in the past was suggested to her in cross-examination, but she had no real recollection of these matters.  A May 2002 Outpatients attendance for physiotherapy at Peninsula Health for neck pain was also suggested to her on the basis of the records, but again, she did not specifically recall it.  Given how long ago these sporadic attendances occurred, it is no surprise she cannot now recall them.

14      She agreed she attended the chiropractor, Mr T Sims, for “all different things”, pre-accident.[4]  In 2000, pain in the shoulder blades and neck was put to her from his records, but she again had no specific recollection of it.   

[4]Transcript 16

15      Mr Sims’ records clearly show attendances by the plaintiff, but she thought at one stage, it might have been for some pelvic problem. 

16      The records are very sparse.  She did not argue that the records that she was shown did not indicate attendances for some neck and interscapular pain, but she just did not remember them with any degree of precision.

17      Overall, I accept her health prior to the accident was generally good.  Her affidavit put the proper context about her health pre-accident, when she said:

“My health has always been generally good.  I’ve had some treatment for depression, which was particularly bad around the time of the breakdown of my marriage.  I have received treatment over time, and the condition has been well manageable in recent years.  Prior to the incident of 6 January 2011, I have never previously suffered from any illness or injury that significantly interfered with my enjoyment of my work and recreational activities.”[5]

I accept that evidence. 

[5]PCB 16

18      In my view, the plaintiff’s credit was unimpeached in this case.  Credit is important in judging a pain and suffering consequences case.  It is no surprise she cannot recall these few specific attendances years ago, particularly in light of them causing no real interference in her life. 

19      It is worth noting the defendant has been employing her now for nearly fifteen years.  It has not produced any evidence of absences from work, sick records or any light duties being required, nor any restrictions on her work at Peninsula Health due to any health conditions pre-accident. 

20      The facts I accept are, she has suffered constant pain since the accident in her neck.  Its severity can vary.[6]  The pain worsens as the day goes on.  The pain increases after a day’s work.[7]  She has had some improvement but only in regards to arm symptoms, and not with respect to the neck pain. 

[6]PCB 19, 23 and 25.5

[7]PCB 25.4

21      In terms of her attitude to her pain, I find she did not exaggerate it in any way.  If anything, she is rather philosophical about the pain.  She goes about her work and as much of her daily life as she can, by putting up with the pain, rather than opting out of work and a lot of daily activities.  She is not to be penalised for having a stoical attitude.[8]

[8]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph 47; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at paragraphs 80-81 and Aburrow v Network Personnel Pty Ltd [2013] VSCA 46 at paragraph 11

22      To suffer constant pain, as I find the plaintiff does, must usually be very relevant to a finding that one’s enjoyment of life is very considerably diminished.[9]

[9]See Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267 and Sutton v Laminex Group Pty Ltd (supra) at paragraph 91

23      Her neck condition means she still needs medication that is provided on prescription.  At present, she takes Voltaren at night, Temazepam to sleep and Panadeine Forte for pain on a daily basis.  Side effects have unfortunately resulted from some medications.[10]

[10]PCB 25.5

24      Her local practitioner of the last ten years, Dr Lewis, reported three times, and most recently in 2014.  He diagnosed the C5-6 and C6-7 discs as the source of pain, and said she could work but with restrictions, including no sudden movement or lifting greater than 5 kilograms.  He thought, rather pessimistically:

“Whilst her condition has improved, she remains significantly symptomatic and does require ongoing treatment, massage and fortnightly physiotherapy.  Leading to a gym program would be the minimum.  It is disappointing that after two years Carolyn still has symptoms.  It is unlikely that she will receive much more of an improvement.  An underlying degeneration will worsen her symptoms.”[11]

[11]PCB 34-35

25      Her problems including daily pain are thus permanent ones in the view of her general practitioner.  This doctor is best placed of all to comment in this case, having seen her many times over the years for general healthcare and management both before and following the accident.  I accept his views.  His evidence is clear. 

26      Professor Bittar, neurosurgeon, has also seen her in a treating capacity as a specialist.  He has the advantage of seeing her in 2011, 2012 and again in 2014.  He is better placed to comment on her injuries, her prognosis and her progress than doctors who have only seen her once.  It is worth reflecting on some of his comments over those years.  In 2011, Professor Bittar said:

“At the time of her last review her prognosis appeared reasonably good.  It is likely that she will continue to improve with time.  However, there is a significant chance that she will suffer from residual symptoms which may persist indefinitely.”[12]

[12]PCB 40

27      When he saw her, almost eighteen months later, and reported in 2012, he said:

“Clearly, whilst her condition has improved she does remain significantly symptomatic and does require ongoing treatment.  I would not recommend surgical intervention, however, weekly massage and fortnightly therapy would certainly be very reasonable treatment options and I have strongly recommended that she find a way of resuming these treatment modalities.”[13]

[13]PCB 43

28      He thought, with respect to prognosis in 2012, as follows:

“… it is my opinion that she will most likely continue to suffer from a significant degree of pain in the long-term.”[14]

[14]PCB 44

29      The mild optimism in 2011 had given way in 2012 to a more pessimistic view about her future.

30      Professor Bittar had the opportunity to see her again in 2014.  What he said on that occasion was:

“She had remained significantly symptomatic since her previous review in 2012, and her condition had not improved.”[15]

[15]PCB 50

31      He went on to say:

“In my opinion Carolyn Bennett continues to suffer from aggravation of cervical spondylosis and she also suffers from cervicogenic headaches.  I recommended that she continue with her current treatment regimen.”[16]

[16]PCB 51

32      The prognosis he gave in this third report was rather more gloomy than he had said in 2011 and 2012.  And he described it thus:

“Given her longstanding symptoms and associated disability, it is extremely likely that she will continue to suffer from significant pain and disability into the foreseeable future.”[17]

[17]PCB 51

33      I accept the evidence of Professor Bittar, based as it is on a treating capacity and with the benefit of having seen her over the course of three years. 

34      The other treating specialist, Mr Kavar, only saw the plaintiff once, and it was over three years ago.  His opinion is thus quite out of date.  He did not feel surgery was warranted, but conservative treatment such as a regular exercise regime, physiotherapy, light gym work and hydrotherapy were recommended.  He diagnosed a crushing type injury of the interscapular shoulder girdle and neck musculature.  The diagnosis was soft tissue injury.[18]

[18]PCB 54

35      He thought, back in August 2011, that overall the prognosis should be good.  To that extent, Professor Bittar agreed with him in 2011.  But things changed, as I have already indicated, in terms of Professor Bittar, after he saw her in subsequent years.  Mr Kavar’s optimism has not proved accurate on all the evidence in this case, but he has not seen her since 2011.

36      Two physiotherapists and a massage therapist have also provided reports.  These are also now quite dated.  In 2011, Justin Moar provided physiotherapy at the referral of Professor Bittar.  The physiotherapist diagnosed intervertebral disc changes in the cervical spine with stenosis, as I understand his report.[19]  He recommended a physiotherapy approach, combined with a home and clinic exercise regime.  His report does not assist greatly on consequences requiring evaluation by me now in November 2014.

[19]PCB 57

37      Similarly, Joy Kelly, the remedial massage therapist, reported two years ago, in November 2012.  She wrote to the Conciliation Service.  She thought multiple muscles were affected and the plaintiff had symptoms consistent with Complex Regional Pain Syndrome.[20]  No-one else diagnosed a condition in those precise terms.  She thought continued treatment was essential to ensuring the patient could remain at and continue at work.[21]

[20]PCB 58

[21]PCB 58

38      At the time, the plaintiff required assistance with house cleaning, shopping and activities that required elevation of her arms.[22] 

[22]PCB 58

39      A second treating physiotherapist, Lynda Miller, also reported in November 2012 for the insurer after WorkCover ceased paying for physiotherapy and exercise sessions in spite of the general practitioner’s request.[23] 

[23]PCB 60

40      This physiotherapist diagnosed multi-level desiccation with impingement at C5-6, with pain being described as chronic.  She stated, rather emphatically:

“Carolyn has had nearly two years of pain and decreasing strength and function.  This needs to be addressed, otherwise I feel Carolyn risks becoming permanently affected by her pain.  Ongoing chronic pain can lead to decreased work capacity and other issues with depression.  Carolyn is a diligent client who unfortunately has not been given the best guidance by her previous physiotherapist.”[24]

[24]PCB 60-61

41      Clearly, Ms Miller was hopeful the plaintiff would have the opportunity to have the further conservative treatment that she thought was required. 

42      The final report the plaintiff tendered was from Dr R Sullivan, a pain specialist, in July 2014.  He saw her in a medico-legal capacity.  He thought the work injury had culminated in:

“… a chronic pain condition that has led to significant and persisting pain and associated functional limitation.  As far as specific diagnoses go, she has a chronic pain condition, she has cervical spondylosis.  She has examination evidence of central sensitisation.  And she has radiological evidence of neuroforaminal compromise in the mid and lower cervical segments.”[25]

[25]PCB 68

43      He made recommendations also consistent with an ongoing need for further conservative treatment.  He thought surgery would not help, but it is clear that he saw the problem continuing on the probabilities for the foreseeable future. 

44      Radiological reports consisted of CT and MRI scanning.  Clearly, some well-established degeneration was demonstrated in the cervical spine.  On all the evidence, including the few sporadic visits over the ten years or so up to January 2011, this degeneration was basically asymptomatic, in my view. 

45      On the medical evidence relied on by the plaintiff, as well as her own testimony, she has discharged the onus of establishing her constant pain is a very considerable consequence that will last for the foreseeable future.

46      The defendant tendered two medical reports, from Dr Ho in 2012 and Dr Kostos in 2014.  These were based on only one examination and consultation with the plaintiff. 

47      It is not clear from their reports if they were sent any of the medical reports and records other than the CT and MRI scans.  Clearly, a number of documents accompanied the serious injury application.  Their reports refer to documents, but their reports are deficient, in that they do not explain just what material they had.  Their reports are based on one examination only.  Nowhere is it indicated what, if any other medical material other than the scans that their views were based on.

48      Dr Ho, occupational health consultant, saw the plaintiff in August 2012.  His opinion thus is limited by being over two years old.  He thought a soft tissue injury to her upper spine with likely aggravation of significant pre-existing degenerative changes in her cervical spine had occurred in the accident.  He believed though, that she had recovered and the work injury had resolved.[26]  He said this in the light of what he considered was significant pathology shown on CT and MRI scans.  It was degenerative changes at several cervical spine levels, with C5-6 being the most significant.

[26]Defendant’s Court Book (“DCB”) 7

49      Nowhere does Dr Ho describe how or why the work aggravation ceased.  His reasoning is unclear.  It is hard to follow the basis of his opinion.  Seemingly, he accepted the pre-existing degenerative changes which he says were there clearly before January 2011 were made symptomatic and aggravated by the accident.  How, why and when it is that the precipitating effects of that accident in terms of symptoms had ceased is nowhere spelt out.  Was it the day he reported on 10 August 2012, or earlier in 2011, or when? 

50      As best I can understand his reasoning, it seemed to be the fact that she reported improvement and returned to work in his mind meant the accident impact had ceased to be relevant and its contribution had resolved.[27]  But it is really little more than guesswork.

[27]DCB 5

51      He still seemed to accept that she had soreness and stiffness in the neck and he found tenderness.  He seemed to find her genuine.  There was no exaggeration by her at examination.[28]

[28]DCB 4

52      There was an unexplained illogicality in his reaching a view now that the accident of January 2011 plays no role by the time he sees her in August 2012.  He still saw the need for her to do self-managed exercises.[29]  She was not needing any of these exercises before 6 January 2011 when crushed by the lift. 

[29]DCB 6

53      I do not accept Dr Ho’s opinion.  I prefer the well-reasoned and easily understood opinions of the general practitioner, Dr Lewis and Professor Bittar.  They had the considerable advantage of seeing the plaintiff on a number of occasions and not just at a single visit years after the accident.

54      Dr Kostos, rheumatologist, saw the plaintiff once in October 2014, so his opinion is current.  He noted 25 per cent reduction of neck movements and found tenderness.  He made no critical comment on her performance at examination.[30]

[30]DCB 10-11

55      His diagnosis was that her current problems relate to her underlying constitutional disc degeneration and osteoarthritis, with a superimposed pain syndrome.  He does not say what “superimposed pain syndrome” is.[31]  Whether it is just a chronic physical pain condition that Dr Lewis and Professor Bittar have described is not clear.  Whether it is some mental condition and not based on an organic basis for pain, Dr Kostos just does not say.  He is alone, if that is his suggestion, but it is not clear what he means.  If he suggested some non-organic syndrome, I reject that view.  The defendant did not argue that in any event, as it runs against virtually all the uncontested evidence in this case.

[31]DCB 11

56      Dr Kostos did not seem to think there was any relevance in the radiological findings that Dr Ho had described as “significant”.  Dr Kostos also said those changes play no role in determining the prognosis and the future course of the condition.[32]  Again, Dr Kostos seems to be alone in being so dismissive of the relevance of the findings on the scans.  He really ends by saying all her problems are just constitutional.[33]  If they are, he did not explain how it was that she had no problems before January 2011. 

[32]DCB 12

[33]DCB 12

57      Based on one examination, getting on now for nearly four years after the accident, I do not accept his opinions are well argued and able to be properly followed.  It is also unclear whether they are based on any appraisal of medical evidence available at the time, as he does not list what, if any, documents he considered.[34]

[34]DCB 9

58      I prefer the opinions of the two treaters, Dr Lewis and Professor Bittar, to that of Dr Kostos. 

59      The defendant tendered some documents about the duties the plaintiff has at work and also an affidavit from her supervisor.[35]

[35]DCB 71-97

60      The supervisor said no complaints had been made by the plaintiff at her work in relation to neck problems.  She also said the plaintiff coped with her duties.  There was no contest about this.  It is perfectly consistent with this well-motivated lady who wants to work and continues to do so.  She does that however, with constant pain.  It is consistent with her stoical attitude that she suffers in silence at work.

61      I have alluded briefly already to the medical records tendered by the defendant but I need to at least make these comments about them.

62      Medical records from the past arose from three different sources, exhibits 2, 3 and 4.  They were from a chiropractic practice, exhibit 2.  Peninsula Health records were also tendered, exhibit 3.  Finally, Dr Lewis, the general practitioner’s records were also provided, exhibit 4.

63      The chiropractor’s records showed two specific attendances for neck symptoms.  They were in 2000 and 2009.  Other than that, she was attending for “adjustments”, which I infer is a chiropractic term that fits in with the plaintiff’s evidence that she went to see him “for all different things”.[36]

[36]Transcript 16

64      Overall, the chiropractic records do not illustrate any neck condition that was relevant in January 2011.  I do not infer from the sparse records of “adjustments” there was any limitation on her life due to neck problems at the time of the accident.  Peninsula Health’ records also show some visits for neck symptoms in May and June 2002.  The last note is 16 July 2002, where the Peninsula records say, “Nil problems in neck”.[37]  These hospital records also do not establish any pre-existing neck disability or any real problem as at January 2011. 

[37]Exhibit 3

65      Dr Lewis’ records start in 1999 and there is no reference to any attendance for neck symptoms prior to the plaintiff coming in on 2 February 2011.  That was after being crushed by the lift. 

66      Accordingly, over about nine years between 2002 and the accident, when one looks at these three sets of medical records, there is the solitary attendance on the chiropractor on 9 September 2009 where there is any specific mention of the neck.

67      I accept that neck symptoms, if there were any at all in the period prior to January 2011, were so insignificant as to be irrelevant to the task here.  There is radiological degeneration, but no symptoms to speak of, and certainly no consequences of any moment in terms of her work or her general life.

68      After the plaintiff attended her general practitioner on 2 February 2011 about the lift incident at work, regular visits followed from then on.  The various treatment referrals to specialists and therapists are set out in his records in the subsequent months and years, together with the certain scripts.  What the general practitioner records do show also is that the plaintiff had needed some medical treatment for depression and sleep difficulties pre-accident, but there is no suggestion of any time off work or any major interference with her general life.

69      Dealing with sleep, I accept her neck symptoms have caused additional difficulties with sleep.  I also accept that she was having problems in that area before the accident.

70      The defendant sought to rely on the records of Dr Lewis to show her evidence about regular usage of prescription medications was not reliable.  I do not agree.  The records are very sketchy about what scripts were given over the years.

71      Sitting daily in this jurisdiction, some computer-driven practice records comprehensively list all scripts given in chronological order in many of these serious injury applications.  There is no such evidence here.  In particular, Dr Lewis’ records do not show whether any scripts have been given over the last six months or so.

72      When challenged before lunch yesterday about whether she had prescription medication on her in Court, the plaintiff said it was in the car.  After lunch, she produced a small personal container with her current tablets.  They included Panadeine Forte and Voltaren.[38]  I accept her oral evidence about the ongoing need for prescription drugs for her neck pain.  Her credit on the issue and generally was not impeached.

[38]Transcript 35 to 37

73      There are particular aspects of her life that she has had to accommodate as a result of her neck impairment.  She was only forty-nine years of age when injured.  She sets out in her affidavits such limitations on her daily life.  For example she speaks of how her sleep is now extremely disturbed and certain day-to-day functions have been affected. 

74      Of itself, few of these singularly would satisfy the test of very considerable consequences, but taking them overall, and accepting her evidence, I find that there is sufficient interference in her daily life around the home and outside work as to amount to very considerable consequences.

75      Just to take the unchallenged evidence that she can only drive for 20 to 30 minutes a day.  It is informative of itself.  That, on its own, is a very considerable consequence.[39]  It was not the subject of any cross-examination.

[39]PCB 25

76      The ability to live in the very outer suburbs of Melbourne and drive is something we take for granted daily in this large city.  To be so limited and living in Langwarrin is, in my opinion, another example of a very considerable consequence in itself of the neck impairment.

77      For the reasons mentioned, I grant leave to the plaintiff to bring proceedings for pain and suffering damages.

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