Binaisse v PricewaterhouseCoopers Services Pty Ltd
[2012] VCC 5
•3 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00715
| CARMEL THERESE BINAISSE | Plaintiff |
| v | |
| PRICEWATERHOUSECOOPERS SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 23 and 24 January 2012 | |
DATE OF JUDGMENT: | 3 February 2012 | |
CASE MAY BE CITED AS: | Binaisse v PricewaterhouseCoopers Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 5 | |
REASONS FOR JUDGMENT
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| SUBJECT – ACCIDENT COMPENSATION |
| CATCHWORDS – Serious injury – pain and suffering consequences only – injury to neck |
| LEGISLATION CITED – Accident Compensation Act 1985, sub-s.134AB(37) |
| CASES CITED – Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 |
| JUDGMENT – Leave granted for pain and suffering damages only. |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr G Worth | GPZ Pty |
| For the Defendant | Mr S Smith | Thomsons Lawyers |
HIS HONOUR:
1 Carmel Binaisse alleges that she suffered an injury to her neck in 2007 in the course of her employment with the defendant.
2 She seeks the leave of the Court to issue a proceeding to recover pain and suffering damages in respect of that injury.
3 Her right to do so is governed by the provisions of s.134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by her is a “serious injury”.[1]
[1]Section 134AB(19)(a)
4 The term “serious injury” is defined in sub-s.134AB(37) of the Act, insofar as is relevant, as a “permanent serious impairment or loss of a body function”.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18]-[19]
6 The term “serious” is to be satisfied by reference to the consequences to Ms Binaisse of any impairment or loss of the function of her neck with respect to pain and suffering, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
7 The impairment of loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “more than significant” or “marked”, and as being “at least very considerable”.[4]
[4]Section 134AB(38)(c)
8 The defendant does not dispute that Ms Binaisse suffered an injury to her neck in the course of her employment with it. However, it disputes that the consequences of such injury can fairly be described as being “at least very considerable”.
9 The issues to be determined in this application are:
(a) What was the nature of the neck injury suffered by Ms Binaisse in the course of her employment with the defendant?
(b) What are the consequences of such injury?
(c) Whether the consequences of the injury can be fairly described as “more than significant” or “marked”, and as being “at least very considerable”.
10 The application relates solely to pain and suffering consequences of injury.
Background
11 Ms Binaisse is fifty-three years of age. By way of education, she completed Year 11 at secondary school. She unsuccessfully attempted Year 12.
12 Shortly after finishing school, she commenced work at Coopers & Lybrand as a filing records clerk. Thereafter, she worked for a number of different accounting firms in a similar capacity for about fifteen years. Between 1992 and 2000, she was not employed and was engaged full-time in raising her family.
13 Ms Binaisse returned to work in 2000, employed by KPMG as a records clerk/clerical assistant. She then worked at Andersons Accountants as a records clerk and clerical assistant for some two years. She commenced working for the defendant in 2002. She was employed as a records clerk. Her duties included data collection, preparing reports, scanning files on a computer, data entry and telephone and counter enquiries relating to data management.
14 In the course of her employment with the defendant, Ms Binaisse was required to engage in a number of physically strenuous activities, including the lifting and carrying of boxes of paperwork. These weighed up to 16 kilograms and often had to be lifted above head height.
15 She alleges that on a date in early June 2007, she was required in the course of her employment to lift approximately thirty boxes weighing between 12 and 15 kilograms. In the process of lifting a box of approximately 15.7 kilograms from floor to bench height, she experienced a crack in her upper back and experienced right-sided neck pain. She immediately experienced a weakness in her right arm and hand. Approximately two weeks later, she developed pins and needles in her middle and ring fingers of the right hand, with tingling from the right shoulder to the hand along the inside of her right upper arm and forearm.[5]
[5]Plaintiff’s Court Book (“PCB”) 19
16 She deposes that prior to this incident, she had not suffered from any injury to her neck nor any other significant injury, illness or disease. In particular, she had not experienced any symptoms of weakness or any pain in her neck or right shoulder or arm.[6]
[6]PCB 18, 20
Post-Injury
17 Following the incident described, Ms Binaisse continued to perform her usual duties whilst attempting to avoid any lifting activities. This was difficult to achieve, because there was often no one else available to help her and she was forced to continue to do some lifting. After about two weeks her condition deteriorated.
18 Ms Binaisse had been a patient at the Lorne Street Medical Centre in Lalor since about 1998. She attended there on 17 June 2007, when she saw Dr Singh. Ms Binaisse’s evidence was that she had told Dr Singh what had happened a couple of weeks earlier and of her symptoms of neck and arm pain.
19 Ms Binaisse saw Dr Pauline Pahtsivanidis at the same clinic on 21 June 2007. Dr Pahtsivanidis arranged for x-rays to be taken of Ms Binaisse’s neck.
20 In August 2007, she was referred to the Neurology Department at the Austin Hospital. She was sent for a number of radiological examinations and nerve studies. She underwent EMG studies in September 2007, April 2008 and February 2009.
21 She had MRI scans in October 2007 and April 2008, and possibly a third in 2009.
22 She was seen by various specialists at the Austin Hospital, including neurologists and a neurosurgeon.
23 Her evidence was that she has continued to suffer from pain in her neck which is at times extreme. It is constantly there.
24 She has received little in the way of positive treatment. She has been advised that surgery is not an option in her case as it is unlikely to improve her symptoms.
25 She ceased work as a consequence of her injuries on 28 August 2007 and has not worked since.
Circumstances of Injury
26 Ms Binaisse alleges that she suffered a serious injury to her neck in the course of her employment. The employment period extends between 2002 and August 2007. Her claim is not limited to a particular date or incident. Nevertheless, the defendant submits that the circumstances of her injury are relevant to the nature of it.
27 Ms Binaisse alleges that on a particular day in the early part of June 2007, she was lifting a number of relatively heavy boxes and, in the course of doing so, experienced a crack in her upper back, accompanied by neck and right arm pain. Counsel for the defendant drew my attention to a number of accounts provided by her which are inconsistent with this version:
(a)In her WorkCover Claim Form[7] signed by her on 7 September 2007, she referred to the injury/condition as affecting her right shoulder, elbow and wrist. She made no mention of her neck, other than indicating that her neck had been x‑rayed. Further, in answer to a question on the Claim Form as to what happened and how she was injured, she had replied “Over usage, lifting, carrying etc within general duties”. In answer to a question as to what tasks she was doing when she was injured, she had replied “All tasks (computer, file collections, archive boxes, deliveries, sorting etc)”. There was no mention of a particular lifting incident;
(b)In the Claim Form, Ms Binaisse was asked when she had first noticed the injury/condition, and had answered “In July 2007”. In cross-examination, she acknowledged that this was a mistake;[8]
(c)In a report from Dr Pahtsivanidis dated 19 May 2008,[9] it is stated that Ms Binaisse presented on 21 June 2007 with pain in the neck on the right side going down to her arm of one-month onset. It was submitted that this would relate to an onset of symptoms in May;
(d)In a medical statement signed by Dr Pahtsivanidis for MetLife Insurance on 16 February 2008, in answer to a question concerning Ms Binaisse’s condition, “When did the present condition commence?”, she had replied “Approx April to May 2007”;[10]
(e)On 27 August 2007, Dr Merory (a neurologist at the Austin Hospital) took a history from Ms Binaisse that she had longstanding right lower cervical pain, but in the last two months has noticed paraesthesia in the right little finger and ring finger and medial aspect of the right hand. There was no history taken of any specific incident;[11]
(f)In December 2007, Dr Malcolm Brown took a history from Ms Binaisse that she had gradually developed upper limb symptoms in mid-2007. “There was no specific traumatic incident”;[12]
(g)In July 2008, Dr Ramage took a history from Ms Binaisse that in early June 2007, she was slowly developing a painful right shoulder around the region of her right scapula, and then developed pins and needles running down the right arm into the fourth and fifth fingers.[13] There was no history recorded of lifting boxes.
(h)In August 2008, Professor Rosenfeld (a neurologist at the Austin Hospital) took no history of any specific incident;[14]
(i)In the WorkCover Impairment Benefits Claim Form signed by Ms Binaisse on 22 March 2010,[15] when asked how her injury/condition occurred, she answered “Over usage, lifting, carrying etc within general duties”;
[7]PCB 168-9
[8]T 48
[9]PCB 37
[10]PCB 224
[11]PCB 60
[12]PCB 2
[13]Defendant’s Court Book (“DCB”) 16
[14]PCB 58
[15]DCB 96
28 Counsel for the defendant submitted that on the basis of the abovementioned histories and reports, I should not be satisfied that any lifting incident of the type described by Ms Binaisse actually occurred.
29 I do not accept that submission. I have had the opportunity of seeing Ms Binaisse in the witness box, during which time she gave evidence-in-chief and was cross-examined at some length. I am satisfied that she gave her evidence honestly and to the best of her memory. I am satisfied that there was a lifting incident of the type referred to by her, and that she suffered pain in her upper back and neck, with referred symptoms down her right arm soon afterwards.
30 Whilst it is correct that there was no specific mention of a discrete neck injury on the WorkCover Claim Form (other than stating that her neck had been X-Rayed, I note that Dr Pahtsivanidis completed a Certificate of Capacity on 4 September 2007 (three days before the Claim Form was signed by Ms Binaisse), stating that the injury in question was “cervical radiculopathy with neck, right shoulder, elbow, arm ...”.[16] Whatever Ms Binaisse may have considered to be the nature or cause of her symptoms at that time, it is clear that her general practitioner considered she had a cervical injury with radiculopathy.
[16]PCB 172
31 The parties conceded that they had each had access to the general practitioner’s clinical notes well prior to the hearing date. If there had been any suggestion of neck symptoms being reported prior to June 2007, I am confident that there would have been evidence of it.
32 I consider that Ms Binaisse, in mid-2007 and over the months that followed, would not have attached any great importance to the precise mechanism or potential causes of her injury. It is relatively easy for lawyers, some years later, to point to various inconsistencies in histories given by an injured worker. Their significance would probably not have been obvious at the time.
33 Ms Binaisse produced a MetLife Insurance Claim Form with various Post-it notes attached to it relating to her injury. Ms Binaisse gave evidence that one of those notes made reference to “date of disability June 07”[17] and was in the hand of her work supervisor, Anne Lewis. I accept that evidence.
[17]PCB 229
34 Whilst I accept that there are certain inconsistencies in some of the histories given by Ms Binaisse as referred to above, I am satisfied that she first experienced symptoms relevant to this application immediately following a lifting incident in the course of her employment when she experienced a crack in her upper back, pain in the right side of her neck, and pain down her right arm. I do not consider it matters for the purposes of this application whether the injury was the result of a single lifting incident, or of some period of similar lifting duties, resulting in the onset of symptoms as alleged by her.
Diagnoses of Injuries
35 On 21 June 2007, x-rays of Ms Binaisse’s cervical spine disclosed mild spondylitic changes at C5-6 and C6-7.[18] It was common ground that these changes pre-dated the lifting incident of June 2007.
[18]PCB 52
36 Ms Binaisse had been seen by a number of specialists at the Austin Hospital and had undergone a number of investigations there and elsewhere. I summarise these as follows:
(a) In August 2007, Ms Binaisse was referred to Dr Merory, neurologist. He took a history of longstanding right lower cervical pain and of noticing paraesthesia in her right little finger, ring finger and medial aspect of her right hand over the last two months. His impression was that she had a right ulnar neuropathy rather than radiculopathy. He arranged nerve conduction studies;
(b) An EMG study conducted on 25 September 2007 was reported as showing electrophysiological evidence of right C6-T1 radiculopathy, mainly affecting the C8-T1 nerve roots;[19]
[19]PCB 51
(c) An MRI scan was performed on 22 October 2007 and was reported as showing disc bulges and osteophytes at the levels C3-4 to C6-7. There was multiple cervical spondylosis. At C5-6 there was bilateral neural foraminal stenosis, mild on the right and mild to moderate on the left. There was mild left-sided cord indentation at C4-5;[20]
[20]PCB 45
(d) A further MRI scan was carried out on 18 April 2008. It was reported as showing at C6-7 a focal right paracentral and foraminal disc bulge which narrowed the neural exit foramen and likely contacts the right C7 exiting nerve root. There were also left paracentral disc bulges at C5-6 and C6‑7. The C6-7 disc bulge and its likely contact with the C7 existing nerve root was reported as not having been mentioned in the earlier MRI report, suggesting interval development/progression of this lesion.[21] I note that there was no evidence or suggestion of any intervening event likely to have caused or contributed to such progression.
[21]PCB 44
(e) A further nerve conduction study was carried out on 28 April 2008. In comparison with the previous study, the findings were unchanged. Again, there was widespread evidence of chronic denervation/re-innovation affecting the territory of multiple nerve roots in the right arm. The report reads:
“The differential diagnosis includes a cervical polyradiculopathy due to nerve root compression or due to an attack of brachial plexitis;”[22]
[22]PCB 49
(f) Dr Pahtsivanidis referred Ms Binaisse to Professor Rosenfeld, Director of Neurosurgery at The Alfred Hospital, in early August 2008. He considered that the April 2008 MRI scan raised the possibility of nerve root compression, although he stated that “the maximum compression was a contacting of the C7 nerve at C6-7 which doesn’t seem all that impressive and certainly is not enough to explain all her symptoms”. He noted multiple abnormalities on the nerve conduction study and thought that this raised the question of a multiple nerve root involvement in the brachial plexus. He indicated he would arrange for a further MRI scan but no report of such further scan was tendered. He also indicated that he intended referring Ms Binaisse for another neurology opinion. He completed his letter to Ms Binaisse’s general practitioner with the comment, “She is certainly not a straightforward case”;[23]
[23]PCB 58
(g) On 31 October 2008, Dr Jack Wodak, neurologist, reported to Ms Binaisse’s general practitioner that the MRI scan had shown changes at the C6‑7 disc level but they were not thought sufficient to account for her symptoms. He considered that the EMG study showed normal nerve conduction with widespread chronic partial denervation in the muscles of the right hand and arm. He thought there was some equivocal wasting of muscles of the right hand and weakness of the ulnar half of the flexor tendon. He considered that she had far more symptoms than signs. He described her clinical signs as subtle but, if anything, favouring an ulnar nerve lesion. He thought her nerve conduction studies, however, provided some support for the presence of a far more widespread disturbance. He intended to arrange for further nerve conduction studies and a further MRI scan of the right brachial plexus. Again, there was no evidence of any further MRI scan having been performed;[24]
[24]PCB 56
(h) Ms Binaisse was examined by another neurologist, Associate Professor Helen Dewey, in January 2009. She thought, taking everything together, that Ms Binaisse had suffered a brachial plexitis and had ongoing pain. She thought that there may be a contribution from a right C7 nerve root irritation but was uncertain about this. She was awaiting further neurosurgical opinion in this regard. In addition, she considered that Ms Binaisse may have had a separate right shoulder supraspinatus tendonitis;[25]
[25]PCB 54
(i) In February 2009, Ms Binaisse was seen by Dr Drnda, neurosurgeon. He considered that although the MRI scan showed a C6-7 disc protrusion with mild to moderate foraminal stenosis, this was not symptomatic. He considered that her problem was coming from the thoracic outlet and compression of the inferior trunk of the brachial plexus. He considered that the condition would not be helped with any neurosurgical intervention;[26]
[26]PCB 53
(j) A further nerve conduction study was performed on 19 February 2009. This was reported as normal. The report states that, taken in concert with the history and evolving EMG findings, the picture fits best with resolving brachial neuritis;[27]
(k) On 24 February 2009, Ms Binaisse was seen by Associate Professor Richard Stark, neurologist. He reported that the repeat nerve conduction studies and EMG studies were normal. He considered this represented an evolution from the previous studies. He referred to an MRI scan of the brachial plexus being normal. The date of such scan is not referred to and it is unclear whether this is the scan of April 2008 or a later one. He referred to a previous MRI scan of the cervical spine which had shown right-sided C6-7 disc bulge with minor changes at other disc levels. He thought that one explanation for the evolving EMG study findings would be a form of brachial neuritis. He considered this was an inflammatory disorder of the brachial plexus and usually occurred in the context of a viral infection. However, it could occur as a consequence of physical causes, such as surgery, and it was possible that it could occur after a traumatic incident. He would have expected disc trouble at the C6-7 level to have been stabilised by then. He was hopeful that Ms Binaisse’s symptoms would resolve further.
[27]PCB 47-8
37 Ms Binaisse does not appear to have been treated since February 2009 at the Austin Hospital or by any other treating neurologist or neurosurgeon. No surgical solution has been proposed. She has continued to see her general practitioner.
38 Dr Pahtsivanidis considered that Ms Binaisse had sustained right-sided neck, shoulder, arm, forearm and hand injury during her work for the defendant over the many years of her employment due to repetitive lifting in awkward and non-ergonomic positions.[28]
[28]PCB 38
39 In her more recent report of November 2010, Dr Pahtsivanidis gave no express opinion concerning diagnosis. However, she considered that Ms Binaisse had pain and restriction in the movement of her neck and in particular, difficulty turning her head, and in looking down for more than a few minutes. At that time, she also noted that right hand numbness had improved over the years but that she was still left with some weakness in right hand grip. She considered that Ms Binaisse had no work capacity and required further treatment to render her capable of alternative duties.
40 Mr Flanc, a vascular and general surgeon, saw Ms Binaisse on a medico-legal basis on three occasions. He had been provided with all relevant material from the Austin Hospital. In December 2009, he considered that there had been significant aggravation of pre-existing disc degeneration and arthritis of the cervical spine, in the sense that it became symptomatic. He considered that there had been a possible impingement of the C7 or C8 nerve root.
41 Mr Flanc noted the opinions of neurologists, including Professor Stark, that Ms Binaisse may have had a form of brachial neuritis. He considered that it was more likely than not that the incident occurring in June 2007 aggravated the degenerative condition of her cervical spine and caused some irritation or pressure on the outgoing nerve roots, possibly at C7. He considered that the injury of June 2007 was a significant contributing factor to the aggravation of her pre-existing disc degeneration, with a radiculopathy of the C7 or C8 nerve roots. He considered that there had been significant aggravation of pre-existing but asymptomatic degenerative disease of the cervical spine with a right radiculopathy. He considered that, once triggered, such symptoms may not entirely disappear and can linger for a long period with flare-ups along the way.
42 Mr Flanc considered that Ms Binaisse was not fit for any work that involved repeated heavy lifting, especially from her waist upwards, and certainly above shoulder level. She was not fit for her pre-injury duties. She did however, have a capacity for lighter duties which do not involve such aggravating factors.[29]
[29]PCB 76
43 In July 2010 and August 2011, Mr Flanc was again of the opinion that Ms Binaisse had, in June 2007, aggravated a pre-existing disc degeneration of the cervical spine by rendering it symptomatic, especially at the C6-7 level. He considered that those symptoms had continued and that her employment was still a significant contributing factor to that continuation.[30]
[30]PCB 82-3, 90
44 In his opinion, Ms Binaisse would never be able to return to her pre-injury duties and would have to avoid repeated or heavy lifting, especially above shoulder height. He thought realistically it might be difficult for her to find a sustainable part-time job in which she was able to comply with required restrictions of avoiding elevation of her arm or keeping her head still for long periods.[31]
[31]PCB 89, 90
45 Mr Michael Flaim, a general surgeon, saw Ms Binaisse on a medico-legal basis in July 2011. He considered that:
(a) the history of pain coming on in response to a specific event is convincing and he thought that the most likely cause related to an aggravation of previously existing degenerative change to the cervical spine;
(b) her neurological symptoms had resolved but she had been left with pain and stiffness which had stabilised;
(c) she was not totally incapacitated for employment but should avoid heavy lifting and overhead use of her hands.[32]
[32]PCB 94-5
46 Mr Bruce Love, orthopaedic surgeon, examined Ms Binaisse on a medico-legal basis in August 2011. He considered that Ms Binaisse had degenerative changes in her cervical spine which had been rendered symptomatic by the incident in June 2007. He thought there were no strong indications for surgery. He considered it was probable that she could not return to her former type of work but that she might be able to work in an occupation which did not involve physical activity. He considered that her previous employment with the defendant had been a significant contributing factor to her incapacity for employment. He thought that her prognosis was guarded and that there was likely to be a persistence of neck pain and an inability to engage in activities that involved lifting or carrying of objects of weight.[33]
[33]PCB 97
47 Dr Robert Hjorth, neurologist, saw Ms Binaisse in October 2011. He considered that the history was unusual but accepted that Ms Binaisse was working and lifting at the time of the onset of symptoms of pain. He considered that “the only reasonable assumption” was that she developed pressure on one of the cervical nerve roots or perhaps suffered some kind of damage to the brachial plexus.[34] He noted that earlier nerve conduction studies had confirmed interference with the nerve supply to the muscles of the forearm in the C6-7 territory. He considered that it was not uncommon to see pain in the arm due to pressure on a nerve root at the cervical spine level, referred to as painful radiculopathy. Although it was unusual in this case, as the MRI changes were not all that pronounced, he thought there was no reason to doubt the diagnosis. He considered that Ms Binaisse was not so disabled that she could not do some kind of work that was not heavy or excessive. She should avoid a lot of bending of her neck.
[34]PCB 99
48 Mr Paul Kierce, orthopaedic surgeon, saw Ms Binaisse in December 2011. He considered that her condition was one of resolving brachial neuritis, the neuritis having been caused by the incident in which she was involved in June of 2007 and excessive physical stress involved in her employment.[35] It was his “definite opinion” that as a result of lifting in the course of her work, she had sustained a neck injury aggravating pre-existing cervical spondylosis with a resultant brachial neuritis and adhesive capsulitis in her right shoulder. For a time she had suffered definite radiculopathy, but that had now settled.[36]
[35]PCB 111
[36]PCB 103
49 Mr Kierce considered that Ms Binaisse was not fit for her previous employment but was fit for some work. He thought that she would continue to suffer restricted neck and right shoulder movements with a significant risk of recurrence of her brachial neuritis if she was subjected to further injury.
50 Dr Malcolm Brown, occupational physician, saw Ms Binaisse at the request of the claims agent in December 2007 and August 2011. He was of the view that it was likely that Ms Binaisse suffered brachial plexus neuropathy rather than impingement of nerve roots in the cervical spine. If that was in fact so, he thought her subsequent improvement has been consistent with that diagnosis. However, he considered that her continued pain in the cervical spine on rotation and flexion was consistent with degenerative changes seen radiologically in the cervical spine. He did not consider that her employment had been a significant contributing factor to either degenerative change or to the brachial neuropathy. He considered that Ms Binaisse had degenerative change in the cervical spine with possible mild and intermittent nerve root involvement, probable brachial neuropathy which had resolved, a right rotator cuff degeneration in her shoulder and right medial epicondylitis (elbow), and osteoarthritis at the base of her thumb. He considered that brachial neuritis or neuropathy was inflammation and irritation of the nerves of the brachial plexus and that documented causes have included previous vaccination, and genetic contribution. Contribution from trauma he considered to be unproven. He considered that there was no evidence that regular lifting activities or other occupational ergonomic factors can cause significant aggravation or degenerative change of the cervical spine.
51 Dr Brown concluded that there was no evidence of a work-related aggravation of the pre-existing condition of her spine. He considered that she had not suffered any injury affecting her capacity for work, but that her work capacity was likely to be limited by degenerative changes in the cervical spine and by osteoarthritis in her hands, but not by any work-related condition.[37]
[37]DCB 10-11
52 Dr Ramage, an occupational physician, saw Ms Binaisse at the request of MetLife Insurance in July 2008. He considered that she suffered from fairly widespread osteoarthritis of the lower cervical spine and a radiologically confirmed disc prolapse at the C6-7 level that compromised her right C7 nerve root. He also considered that she had a minor degree of subdeltoid bursitis in the right shoulder, restricting her ability to lift her arm above shoulder height. As a result of her cervical nerve compromise, he thought she had continuous right neck pain and weakness of the right arm (particularly with grip strength) and continual paraesthesia in the area of the C7 nerve root in her right arm.[38]
[38]DCB 21
53 Mr Peter Battlay, general surgeon, examined Ms Binaisse at the request of the claims agent and/or defendant’s solicitors in September 2009 and August 2011. On the earlier date,[39] he considered that she had recovered from a temporary aggravation of longstanding cervical spondylosis but still had some symptoms of a non work-related brachial plexopathy. He noted that she clearly had pre-existing symptoms in her neck, as suggested by the radiological report that pre-dated her injury. This appears to be a reference to a history taken of injury occurring on 28 August 2007 and to the x-rays taken on 21 June 2007. I consider this to be a misunderstanding on his part and I accept Ms Binaisse’s evidence that the x-rays were taken some weeks after the onset of pain following the lifting incident. Nevertheless, Mr Battlay considered that Ms Binaisse’s current neck problem was no longer work-related.
[39]DCB 27-8
54 In August 2011, Mr Battlay considered that Ms Binaisse had established cervical spondylosis without radiculopathy, entirely consistent with the ageing process. He considered that she had had a transient aggravation of her cervical spondylosis. He thought that Brachial Neuritis was usually a viral condition and whilst he acknowledged that trauma may play a part, it was acute and major trauma which would be a factor rather than the sort of activity that she related to her work. He considered that the brachial neuritis was unrelated to her employment.[40]
[40]DCB 35-6
55 Mr Michael Shannon, orthopaedic surgeon, examined Ms Binaisse at the request of the claims agent in May 2010. He considered that she had sustained an aggravation of cervical disc degeneration in the form of a disc prolapse. He was inclined to the view that her right upper limb symptoms were radicular in nature, associated with multi-level degeneration and disc bulging. He acknowledged the suggestion that she may have had a brachial plexus injury but considered that, irrespectively, the nerve conduction studies had now resolved and she had no objective evidence of neurological abnormality in the upper limb with normal nerve conduction studies.[41]
[41]DCB 39
56 I am satisfied that prior to the lifting incident which occurred in early June 2007, Ms Binaisse had suffered no relevant symptoms of pain or discomfort in her neck or right arm. I am satisfied that she suffered an injury to her neck in the lifting incident in question, and that she suffered resulting pain in her neck and in her right arm, and paraesthesia in her fourth and fifth fingers.
57 Counsel for the defendant submitted that it was necessary for me to go further and make a specific finding as to the precise nature and mechanism of the injury concerned. The medical opinions referred to included opinions that Ms Binaisse’s injury consisted of:
(a)A disc prolapse at the C6-7 level which made contact with the C7 nerve root with resultant right-arm radiculopathy;
(b)Brachial neuritis or plexitis;
(c)An aggravation of pre-existing asymptomatic degenerative changes at one or more levels of her cervical spine, rendering her condition symptomatic.
58 Counsel submitted that it was more likely that the injury concerned was that relating to the brachial plexus, and that I could not be satisfied that that injury was connected with Ms Binaisse’s work. In particular, as I understood his submission, it was more likely than not that brachial neuritis would not be caused by a lifting injury of the sort complained of by Ms Binaisse, especially if those symptoms had come on gradually over a period of time rather than in a particular lifting incident. As previously indicated, I am satisfied that there was a particular lifting incident which would properly be described as a traumatic one and one that might result in brachial neuritis.
59 In any event, I consider that it is not necessary for me to make such a specific finding concerning the nature and mechanics of the injury. I am satisfied that Ms Binaisse has suffered a neck injury with resultant neck pain and arm pain as a consequence of her work activities. I consider it likely that the lifting incident has rendered the degenerative state of her cervical spine symptomatic, whereas prior thereto it had been asymptomatic.
60 In addition, I consider it likely that there was a bulging or prolapse of her C6-7 disc with a resultant contact with the C7 nerve root. This is likely to have caused at least some of the symptoms in her right arm and hand from which she complained for some considerable time. There may also have been a contribution from a brachial plexus injury which may also have contributed to those right arm and hand symptoms. However, I find that those symptoms have largely improved by the present time, and that they do not constitute her principal problem. Her principal symptom is that of continuing neck pain.
61 I do not accept the views of Mr Battlay and Dr Brown, that the aggravation of her pre-existing degenerative changes in her cervical spine was merely temporary and that her neck problems were no longer work-related. They appear to accept that Ms Binaisse does suffer pain and restriction of movement in her neck but that those symptoms relate to the aging process and would have occurred regardless of the employment injury.
62 I consider that the onus of establishing that she would inevitably have suffered from the symptoms of which she complains lies on the defendant.[42]
[42]Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164
63 I do not consider that the defendant has discharged the onus upon it in relation to this issue.
64 Counsel for Ms Binaisse tendered a certificate of opinion of a Medical Panel dated 4 December 2008[43] without objection from the defendant. I consider that the opinion is of very limited value in this case. Firstly, it is dated more than two years ago and, secondly, it is not evident from the document the factual basis, history or findings on examination upon which such opinion is based. I have not taken the certificate into account in coming to my conclusions.
[43]PCB 223
65 Further, Counsel for the plaintiff submitted that the acceptance by the defendant of Ms Binaisse’s claim pursuant to s.98C of the Act in respect of her neck injury that, in accordance with the decision in Ansett Australia Ltd & Anor v Taylor,[44] such an acceptance constituted an admission which should ordinarily be regarded as very significant, albeit not conclusive, where such acceptance had not been otherwise explained.
[44][2006] VSCA 171 at paragraphs [39]-[40]
66 I was informed by Counsel that the defendant had accepted the s.98C claim in 2010, nearly three years after the injury was reported. The reasoning process behind such acceptance was not disclosed to me but I can infer that the decision was made on the basis of various of the medical reports in the possession of the claims agent at the time of the acceptance. I am reluctant to place any great weight on that acceptance and prefer to base my decision on the evidence of Ms Binaisse and of the medical practitioners whose reports were tendered in evidence.
67 In summary, I am satisfied that Ms Binaisse suffered a compensable injury to her neck in a work-related incident in early June 2007. That injury may have been contributed to by the performance by her of her duties over the course of her employment with the defendant and was likely aggravated by her continuing at work from early June to late August 2007.
Consequences of Injury
68 I accept Ms Binaisse’s evidence that she continues to suffer from constant pain in the right side of her neck. Her pain is described by her as constant with flare-ups which she describes as extreme.
69 I accept that her pain is aggravated if she flexes her neck for anything longer than five to ten minutes.
70 Ms Binaisse uses non-prescription analgesia in the form of Panadol and Advil. She was cross-examined as to why, if her pain was extreme, she did not request stronger prescription medicine from her general practitioner. She gave evidence that she had not wanted to take prescription drugs, as she had a fear of addiction.[45] There was a family history, in that other members of her family had become addicted to drugs of one sort or another. Whilst I accept that there are likely to be suitable prescription analgesic medications available to her which would not be likely to be addictive, I accept that she has had a genuine concern up until the present time that addiction is a real possibility if she was to venture down that path. I do not accept that her failure to request prescription painkillers from her general practitioner is indicative of a lack of debilitating long-term pain.
[45]T 30
71 Her pain has resulted in difficulty in sleeping.[46]
[46]PCB 22, 26
72 She has difficulty performing housework. She does so slowly, and with regular breaks. She receives assistance from her husband and son, who perform most of the heavier and more repetitive parts of the housework.[47]
[47]PCB 22, 26
73 Her neck pain varies from extreme to mild, depending on various factors, including whether she has overused her neck or whether there has been a change in the weather, or if she was to sleep in what she describes as the wrong position.
74 Prior to her injury, Ms Binaisse was a regular bicycle rider, which she described as a favourite pastime. She has not been bike riding since her injury.
75 Prior to the injury, she was a regular attender at a gymnasium, but no longer is able to attend.
76 Prior to her injury, she and her husband regularly engaged in 4‑wheel-drive vehicle adventures. They travelled very considerable distances, including up to Cape York. Much of these journeys involved driving in off-road conditions over bumpy and rugged terrain. She has not been able to partake in such journeys since her injury.
77 She was previously able to go on long walks, but no longer is able to do so.
78 Previously she engaged in an important hobby involving craft work. This included such activities as tapestry, drawing, construction of decorations with wire and beading, the making of collages of photographs and pictures, and stamp collecting. These all involved intricate work involving a forward flexion of her neck with which she is no longer able to cope.
79 She is most unlikely to ever return to her pre-injury duties, which involved regular lifting of substantial files and boxes. She has worked in the area of records and filing virtually ever since she left school in 1977. Essentially, it is the only work she has ever done. In 2007, she was aged forty-nine years. Her children were off her hands, and there is no reason to suspect that she would not have continued to work in her chosen occupation until a normal retiring age.
80 I accept that there is an abundance of medical evidence to suggest she is fit for various sedentary jobs so long as they do not involve heavy or repetitive lifting or involve her working with her neck flexed. Ms Binaisse conceded that a reason for her not seeking work over the last couple of years was that there were various pressing family problems, including the birth of her grand-daughter for whom she cared on a part-time basis.
81 It may well be that she will return to employment in a light, administrative job. However, it may well be difficult for her, now aged fifty-two, with little experience in computers, and with a need to avoid lifting and flexion of her neck, to find such suitable employment. Nevertheless, on the balance of probabilities I accept that she will probably be fit to return to some form of employment. However, it will not be her chosen occupation nor one with which she is familiar and experienced.[48]
[48]Dr Pahtsivanidis - PCB 43; Mr Flanc - PCB 90; Mr Flaim - PCB 95; Mr Love - PCB 97; Dr Hjorth - PCB 100; Mr Kierce - PCB 111; Dr Ramage - DCB 23; Dr Brown - DCB 11, 14
82 Dr Brown acknowledges that Ms Binaisse will be restricted in the type of occupational activities she can do. It is his view that those restrictions are not connected with any work injury but by degenerative change of her cervical spine. For the reasons expressed above, she had no symptoms of cervical injury before the incident in question, and I do not accept that such symptoms were inevitable regardless of the workplace injury.
83 By reason of the matters referred to above, I consider that the injuries have had very considerable consequences for Ms Binaisse. As a consequence, she suffers from constant, fluctuating pain and her domestic, recreational and occupational activities have been very considerably impaired.
84 There is no suggestion in the medical evidence tendered that her level of symptoms is likely to improve in the foreseeable future. On that basis, I find, on the balance of probabilities, that her symptoms and the consequences of them are likely to be permanent.
85 For the reasons expressed above, I am satisfied that the pain and suffering consequences of Ms Binaisse’s injury are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
86 There was evidence before me that in addition to injury to Ms Binaisse’s neck, she had also probably suffered from an injury to her right rotator cuff. This may well be so, although Mr Flaim found no rotator cuff signs in July 2011.[49] Mr Love, in August 2011, found mild rotator cuff tendinopathy of the right shoulder. Such a condition would be a discrete injury and not connected to any injury to Ms Binaisse’s neck. I have disregarded such injury entirely in assessing the consequences of the neck injury.
[49]PCB 95
87 In addition, Ms Binaisse appears to have suffered a degree of arthritis at the base of her right thumb and also some more minor problems with her right elbow, which I have likewise disregarded when assessing the consequences of her neck injury.
Conclusion
88 I am satisfied that Ms Binaisse has suffered from a compensable injury to her neck in the course of her employment with the defendant, and that that injury is a “serious injury” as defined in s.134AB(37) of the Act.
89 Accordingly, there will be leave to Ms Binaisse to bring proceedings for the recovery of pain and suffering damages in respect of injuries suffered in the course of her employment with the defendant.
90 I shall hear the parties with respect to costs.
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