Bran v University of Melbourne, The
[2014] VCC 916
•24 June 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03275
| SVETLANA BRAN | Plaintiff |
| v | |
| THE UNIVERSITY OF MELBOURNE | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 June 2014 | |
DATE OF JUDGMENT: | 24 June 2014 | |
CASE MAY BE CITED AS: | Bran v University of Melbourne, The | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 916 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the neck with radiculopathy – similar injury incurred with a previous employer – similar injury not disclosed to examining medical practitioners – whether the claimed injury constitutes an aggravation of the previous similar injury – failure to produce evidence analysing the extent of the impairment of the body function before and after the relevant injury – subsequent aggravation of the claimed injury with a different employer – failure to produce evidence analysing extent of the impairment of the body function caused by that aggravation.
Legislation Cited: Accident Compensation Act 1985 , s134AB(16)(b)
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Mr D Myers | IDP Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff filed an Originating Motion on 10 July 2012 seeking the leave of the Court to bring a proceeding at common law to recover damages for injuries which she suffered in the course of and within the scope of her employment with the defendant.
2 The plaintiff alleges that she suffered an injury to her cervical spine which constitutes a serious permanent impairment or loss of a body function, and a secondary psychiatric injury said to constitute a permanent severe mental or permanent severe behavioural disturbance or disorder.
3 Mr R Forsyth of Counsel appeared for the plaintiff, and Mr D Myers of Counsel appeared for the defendant.
4 At the commencement of the proceeding, Mr Myers informed me that he did not require the plaintiff for cross-examination. The proceeding, therefore, was limited to addresses by Counsel. Before the commencement of addresses, the following were tendered as the evidence in the proceeding:
· The plaintiff tendered the following evidence:
§ The Plaintiff’s Court Book (“PCB”) pages 11-72 (u): exhibit A;
§ The University of Melbourne Health Service clinical notes: exhibit B;
§ an extract of the clinical notes of Austin Health: exhibit C.
· The defendant tendered its Court Book (“DCB”) pages 1-3, 9-28 and 54‑70: exhibit 1.
Relevant background
5 The plaintiff was born in June 1953. She is now fifty-nine years of age. She was born in the Ukraine. She grew up in Germany, and later in the Ukraine and Russia. She obtained a Masters Degree in mechanical engineering in the Ukraine. She worked as a design engineer. Subsequently, she worked in a number of positions, the last being as a business analyst with a research unit in Koln.
6 The plaintiff migrated from the Ukraine to New Zealand. She engaged in a computer course, and subsequently, worked as a business analyst with the New Zealand Bureau of Statistics for about three years.
7 In 2001, she migrated to Australia, and more particularly, to Melbourne. She applied for and obtained a job with the Bureau of Statistics and also with the defendant.
8 When the plaintiff took up employment with the defendant she was employed as a tables officer, which required her to maintain databases of students.
The Plaintiff’s injury
9 The plaintiff swore an affidavit on 15 February 2012 in which she described the work she was required to undertake which resulted in her suffering an injury to her neck.[1] In summary, as a result of sitting at a computer all day, she developed aching and soreness in her neck and across her shoulders. By June 2001, she experienced a strange sensation which led her to the Emergency Department of The Royal Melbourne Hospital. She was informed, presumably by a medical practitioner, that she had a bulging disc in her neck.
[1]PCB 11-24, and in particular, at 13
10 The plaintiff attended the student health service of the defendant. She saw Dr Campisi, general practitioner. In a report dated 3 October 2001, he recorded that the plaintiff saw him on 27 June 2001 primarily because she noted problems with increasing neck stiffness and headache. On examination, he found tenderness of the mid and lower cervical spine, particularly affecting the C3-C6 facet joints. He also noted that the right side of her neck was noted to have the most tenderness. He diagnosed cervicogenic pain which he considered was secondary to the posture she adopted while sitting at a computer.[2]
[2]DCB 12
11 The plaintiff completed an accident incident report on 9 August 2001 on a form required by the defendant. On the form she described suffering an injury to her spine, and in particular, her shoulders, neck and lower back. She described the mechanism of the injuries as occupational overuse.[3]
[3]DCB 6
12 The plaintiff completed a Worker’s Claim Form dated 29 August 2001 in which she described the injuries and the mechanism of the injuries in much the same way.[4]
[4]DCB 4
13 Dr Campisi provided the plaintiff with a WorkCover Certificate of Capacity dated 22 June 2001. He described the injury as a neck injury. The diagnosis was one of neck strain. The treatment he suggested was physiotherapy. The balance of the certificate is difficult to read because it is a poor photocopy.[5]
[5]DCB 4
The consequences of the injury
14 The majority of the consequences referred to by the plaintiff in her affidavits are directed to a further injury which she suffered to her neck with La Trobe University. She said very little about any consequences which she attributed to the neck injury she suffered with the defendant.
15 In her first affidavit, the plaintiff said that she could not recall whether she had any time off work, but if she did, her work absences were not significant. She was given funding for ten massage treatments, which she utilised. The physiotherapy treatment which she attended “for a time” was not funded by the defendant. She paid for those attendances herself.[6]
[6]PCB 14
16 The plaintiff resigned her employment with the defendant in February 2006 and commenced employment as a student records officer in 2006 at La Trobe University.
The La Trobe University injury
17 In June 2007, the plaintiff again found herself spending most of her working day at a computer workstation. She developed pain between her shoulder blades which she described as a sharp stabbing pain. It felt like she was having a heart attack. She experienced numbness in her left arm.
18 The plaintiff attended a medical clinic in St Kilda. She probably saw Dr Rich, general practitioner.[7] The plaintiff also attended the Austin Hospital for treatment in May 2007. She attended the Emergency Department of the hospital complaining of a history of three months of left arm pain, associated with numbness in the hand, and neck pain. She was treated at the Outpatient Clinic from May 2007 to 11 June 2009. The diagnosis was one of cervical spondylosis; associated mild cervical canal stenosis; significant left-sided foraminal stenosis, worse at the C7-T1 foramen on the left, and associated with compression of the C7 and C8 nerve roots. The neurological aspects of the diagnosis were considered to be responsible for producing radiculopathy affecting her left arm.[8]
[7]PCB 41c
[8]PCB 46-49
19 The La Trobe University injury has been the subject of opinion by a number of other medical practitioners. I propose to review their opinions later in these reasons, but they appear to me to be broadly consistent with the diagnosis made at the Austin Hospital.
The New Zealand injury
20 Before turning to the other medical evidence, it is necessary to examine the history of the plaintiff’s injury when she was living in New Zealand.
21 The plaintiff swore three affidavits. I have referred to the first affidavit. She swore a second affidavit on 5 June 2013.[9] In neither of those affidavits did she refer to having suffered a prior injury to her neck. She swore a third affidavit on 12 June 2014.[10] It was only in the third affidavit that she referred to suffering an overuse type injury which resulted in “problems with [my] neck and shoulder pain”. She said that the pain was mainly in the area of her left shoulder blade, shoulder and elbow, and was more of an aching sensation.
[9]PCB 24 (a)-24 (c)
[10]PCB 24 (d)-24 (e)
22 In the same affidavit, the plaintiff referred to an attendance on Dr Campisi, which is referred to in his report dated 3 October 2001. In that report, he recorded a history that the plaintiff had suffered an occupational overuse type injury, which had caused her problems with her neck and shoulder pain. The wording of the affidavit describing what occurred in New Zealand is lifted from the history recorded by Dr Campisi.[11]
[11]DCB 12
23 However, a closer examination of documents relevant to a report of the onset of the problems with her neck and shoulder pain in New Zealand suggests that it was an injury which was very similar, if not the same, as the injury which she suffered with the defendant.
24 The plaintiff completed an accident insurance claim in New Zealand dated 7 December 1999. She said that she was working with a computer and telephone when she suffered a sore shoulder and neck. The pain she experienced was of gradual onset. At that time, she was an information analyst.[12]
[12]DCB 60-63
25 An accident insurance treatment certificate completed by Dr Hallagan, general practitioner, on 6 December 1999 diagnosed the injury as:
“Facet Joint dysfunction (L) Upper thorax with pain into thorax muscles, latssimus dorsi; plus olecrenon/elbow pain referred from neck (C7-8).”[13]
[13]DCB 68
26 Dr Hallagan also described the injuries as gradual process injuries. She recommended osteopathic treatment to mobilise the areas of the injuries. It would appear that she suggested ten sessions of that treatment.[14]
[14]DCB 69
27 The last document relevant to what occurred in New Zealand is a worksite assessment performed by Ms Smith, occupational therapist, dated 21 December 1999. It identified that the plaintiff had presented with pain in her mid-thoracic region, left shoulder blade and down into her arms, and pain in both elbows. An assessment by Ms Smith was directed to the plaintiff’s workstation and what needed to be provided in order to avoid the plaintiff suffering a continuation of those problems.[15]
[15]DCB 64-67
The Plaintiff’s medical opinions
28 What is clear from my reading of the medical reports in both Court Books is that none of the examining medical practitioners were aware of the New Zealand injuries, except Dr Campisi.
29 The plaintiff told Dr Rich that she had never experienced any problems with her neck, back or arm.[16]
[16]PCB 35
30 Mr Bittar, neurosurgeon, examined the plaintiff on 7 November 2012. He asked the plaintiff whether she had any past history, and he recorded:
“Her past medical history is non-contributory for any previous neck injuries, or symptoms suggestive of a pre-existing cervical spine condition.”[17]
[17]PCB 55
31 Mr Myers, general surgeon, examined the plaintiff on 29 January 2013. The only history he obtained was a past history of a stomach operation for an ulcer in New Zealand in 1995, and a denial that the plaintiff had suffered any injuries while in New Zealand.[18]
[18]PCB 59-60
32 Dr Nathar, psychiatrist, examined the plaintiff on 31 January 2013. Although he examined the plaintiff to determine whether she was suffering from any primary or secondary psychiatric condition, he did not obtain any history that the plaintiff had suffered a prior relevant medical condition.[19]
[19]Nor did she disclose that history to medical practitioners who the defendant engaged to examine her
33 I have no doubt at all that the history of the New Zealand injury is relevant. Its relevance is demonstrated by the fact that Dr Rich, Mr Bittar and Mr Myers asked whether there was a relevant prior history. I infer they did so because of the necessity to analyse the causal link between the onset of the claimed injury and her employment with the defendant and La Trobe University.
34 In this case, the past history is of particular importance for two reasons:
· Firstly, the opinion of Dr Hallagan is very particular. She identified very particular processes which were affected by pain, and more importantly, identified the C7-8 vertebral process as being responsible for the radicular pain affecting the plaintiff’s left upper limb. That identification and her diagnosis would no doubt have been of serious relevance to Dr Rich, Mr Bittar and Mr Myers because it would have been part of their analysis of causation. It would also have been of some importance to Dr Nathar because he was asked to determine whether the plaintiff had suffered a psychiatric injury, and attributable to which employer.
· Secondly, the onset of the claimed injury suffered by the plaintiff occurred not long after she left New Zealand and took up employment with the defendant. However, in the plaintiff’s last affidavit, she said that she lost no time from work as a result of the New Zealand injuries, and continued with her normal employment without any further problems before migrating to Australia and taking up employment with the defendant.
35 In any event, the opinions of Dr Rich, Mr Bittar and Mr Myers appear to principally implicate La Trobe University as the cause of the injuries which they assessed.
36 Dr Rich referred to the fact that the plaintiff first attended his clinic in 2007, by which time she had been working for La Trobe University since some time in 2006. He could only implicate La Trobe University because the plaintiff told him that prior to commencing employment with it, she had not suffered any similar or relevant injuries, and therefore, the opinions he expressed in his reports are directed to an injury which he understood to have been caused in her employment with La Trobe University.
37 Mr Bittar understood that the plaintiff had undertaken similar work both with the defendant and La Trobe University. With that understanding, he was of the opinion that her employment with both played a significant role in the aggravation of cervical spondylosis. He considered that her employment with both continued to contribute significantly to her ongoing pain, disability and requirement for treatment;[20] however, he did not qualify that by making an assessment of the relevant levels of contribution by one employer compared with the other.
[20]PCB 56
38 Mr Myers obtained a similar history to Dr Bittar regarding the work which the plaintiff undertook with the defendant and La Trobe University. It would appear that he was told that the plaintiff suffered injuries with both the defendant and La Trobe University. His opinion is rather uninformative, because he was asked for his diagnosis of the plaintiff’s physical injury to her neck on or about 1 June 2001, that is, with the defendant. He considered that she had suffered an aggravation of degenerative intervertebral disc disease in the cervical spine, and that as a result, she would suffer a permanent restriction in everyday activities, and enjoyment of life and capacity to perform work activities.[21]
[21]PCB 62 and 64b-64d
39 The difficulty I have with Dr Myers’ opinion is that he was not asked to give consideration to the injury suffered by the plaintiff at La Trobe University. It is an opinion stated somewhat in a vacuum. It ignores the contribution of the work which the plaintiff undertook at La Trobe University. Furthermore, it does not quantify the relevant levels of contribution by one employer compared with the other.
40 Dr Nathar’s opinion suffers from the same problems which I have already referred to in connection with the opinions of Dr Rich, Mr Bittar and Dr Myers. He diagnosed that the plaintiff was suffering from a Chronic Adjustment Disorder with Anxious and Depressed Mood, which arose as a result of her employment with the defendant and was aggravated by her work at La Trobe University. Interestingly, he considered that La Trobe University played a more minor role, because it was his understanding that the injury caused by the plaintiff’s employment with the defendant was “already well and truly established by the time she started at La Trobe University”.[22] That is not the case. It is contrary to the emphasis apparent in the plaintiff’s affidavits, and, for example, the opinion of Mr Bittar.
[22]PCB 70
41 On my analysis of the plaintiff’s evidence, she has not implicated the defendant as being the major cause of her injuries. That is not borne out by the emphasis apparent in her affidavits, that the major cause of the injuries from which she suffers now was through work with La Trobe University.
The Defendant’s medical opinions
42 Dr Poppenbeek, general practitioner, examined the plaintiff on 5 October 2001. He considered that she presented with a fairly typical history of fibrocystic shoulder girdle pain, secondary to underlying constitutional significant cervical spine degenerative disc disease. He considered that the latter had been aggravated by the work the plaintiff undertook with the defendant. He considered that she required minimal treatment. He considered that her prognosis was excellent. He expected a complete recovery in a relatively short period of time.[23]
[23]DCB 10
43 Although Dr Campisi is a treating medical practitioner of the plaintiff, I return to his opinion under this section of these reasons because he was provided with a copy of the report of Dr Poppenbeek. He appears to have accepted Dr Poppenbeek’s opinion in whole.[24]
[24]DCB 13-15
44 Mr Scott, general surgeon, examined the plaintiff on 13 October 2008. It would appear that Mr Scott’s attention was directed to the injury she suffered with La Trobe University. He referred to the plaintiff noticing a worsening “of a largely resolved problem of neck ache and left arm problems” in 2007. I infer that the resolving problem was the claimed injury. He considered that the plaintiff had developed symptoms suggestive of a discogenic problem in the cervical spine in about June 2001 while she was employed by the defendant; however, he noted that the symptoms abated over time with some minor treatment. He then turned his attention to the contribution to the plaintiff’s injury of her work with La Trobe University. He considered that that employment resulted in more obvious left upper limb radiculopathy in association with multi-level disc degenerative processes in the cervical spine, and in particular, the C7-T1 level.
45 Dr Ho, occupational health consultant, examined the plaintiff on 17 March 2010. He obtained a history of the work which the plaintiff undertook with the defendant and La Trobe University. It appears to be a fairly full history. He considered that the plaintiff was suffering from symptomatic C7-T1 disc prolapse in her cervical spine against a background of degenerative disease. He considered that her symptoms first started in 2001 with the defendant, and in relation to La Trobe University, he said “when she commenced at La Trobe University she reportedly developed symptoms in her neck radiating into her left arm”. His prognosis was for ongoing symptoms from the disc prolapse at C7-T1 in her cervical spine.[25]
[25]DCB 27-28
46 It should be noted at this point, that none of the medical practitioners who examined the plaintiff for the defendant were given a history by the plaintiff of the New Zealand injuries.
The Plaintiff’s case
47 Mr Forsyth submitted that I should accept the plaintiff’s explanation that whatever injuries she suffered in New Zealand were of little moment. He submitted I should accept what the plaintiff said in her third affidavit, and that otherwise there was sufficient disclosure of what those injuries amounted to in one of the reports of Dr Campisi and in the documents in the Defendant’s Court Book.
48 Mr Forsyth submitted, therefore, that there is no Petkovski[26] issue which I need to address, and that I should proceed to accept that the plaintiff suffered a primary injury with the defendant, which has contributed to the ultimate injury to her neck and the radiculopathy affecting her left upper limb. Additionally, he submitted that I should reason in the same way in connection with her psychiatric injury.
[26] Petkovski v Galletti [1994] 1 VR 436
The Defendant’s case
49 Mr Myers submitted that I should dismiss the plaintiff’s case. He submitted that the New Zealand injury is of critical importance because Dr Hallagan identified the same level in the plaintiff’s neck as being responsible for the radiculopathy affecting the plaintiff’s left upper limb, that is, C7-8 which has been referred to as C7-T1 by Mr Scott and Dr Ho. He submitted that there is a Petkovski issue.
50 Next, Mr Myers submitted that the medical opinions expressed by all of the examining medical practitioners are of doubtful value because they were not given a truthful history by the plaintiff of the New Zealand injury.
51 Next, Mr Myers submitted that the emphasis in the plaintiff’s affidavit was directed to the injury she suffered at La Trobe University. He submitted that the plaintiff said very little in her affidavits about the consequences of the injury which she suffered with the defendant.
Disposition
52 The conclusion I have reached is that there is merit in all of the submissions made by Mr Myers. Therefore, I propose to dismiss the plaintiff’s Originating Motion.
53 My reasons for doing so commence with the plaintiff’s failure to disclose the New Zealand injury. I have little doubt that it is of real importance, because it appears to be a similar injury caused by similar work. Dr Hallagan made a very particular diagnosis identifying the pain experienced by the plaintiff in her left upper limb as referred from her neck, and more particularly, C7-8. It has the same level identified by, for example, Mr Scott and Dr Ho, which they considered to be relevant in their diagnosis of the plaintiff’s injury to her neck.
54 What is very clear is that when the examining medical practitioners in this case have engaged in an analysis of the contribution to the claimed injury and the work with the defendant, compared with the work with La Trobe University, they have been keen to understand what injury the plaintiff suffered in her work with the defendant. In the same way and for the same reasons in logic, they would need to know about the New Zealand injury to determine whether in fact the discal injury, for example, referred to by Mr Scott and Dr Ho, was in fact evident at the time when Dr Hallagan examined the plaintiff.
55 The plaintiff has failed to expose the examining medical practitioners to the New Zealand injury for the purpose of them determining what the injury was, whether it is the commencing point for their analysis, and the contributions of the defendant and La Trobe University to the causation of the ultimate injury.
56 Even if I were to ignore the New Zealand injury altogether, I could not be satisfied on the state of the evidence that the injury which the plaintiff suffered with the defendant is a serious injury. The plaintiff’s affidavits do not demonstrate that whatever injuries she suffered with the defendant had anything other than rather modest consequences, because the plaintiff continued working and had very little medical treatment before she left the defendant. It must be remembered that she left the defendant not because of injury, but because of the need to acquire more qualifications in order to retain that employment.[27]
[27]PCB 14-15
57 I think the highest the plaintiff’s case can probably be put is the opinion of Mr Bittar, who appears to be saying that the defendant and La Trobe University are equally responsible for the ultimate injury; however, there are other opinions which emphasise that the contribution by the work at La Trobe University was greater: for example, Mr Scott.[28] There are obvious defects in the opinion of Mr Bittar, principally the fact that he was not told about the New Zealand injury. It appears he was not exposed to the plaintiff’s affidavits where the emphasis appears to me to be directed more to the La Trobe University injury.
[28]DCB 19
58 By the same reasoning, I am not satisfied that the contribution of the plaintiff’s work with the defendant in the causation of the psychiatric injury is established for the reasons set out in paragraph 40 above.
Orders
59 The plaintiff’s Originating Motion is dismissed with costs.
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