Bremner v VWA
[2021] VCC 812
•22 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03398
CI-20-03400
| SUZI BREMNER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 April 2021 | |
DATE OF JUDGMENT: | 22 June 2021 | |
CASE MAY BE CITED AS: | Bremner v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 812 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – two claims against same employer – injury to back, neck and shoulder – multiple dates of injury – whether consequences can be sufficiently isolated – test of “serious injury”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; TAC v Zepic [2013] VSCA 232; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Petkovski v Galletti [1994] 1 VR 436; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Dalton v Dandenong Scaffolding Hire Co Pty [2003] VSCA 183
Judgment: CI-20-03398 – Application granted in part
CI-20-03400 – Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Ms K Bradey | Maurice Blackburn Lawyers |
| For the Defendant | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
1Ms Bremner brings two claims arising out of her work at the Collingwood Children’s Farm. In the first (CI-20-03400), she says she injured her lower lumbar and cervical spine when charged by a cow in 2007. In this action she seeks leave claiming serious injury in respect of pain and suffering only. In the second claim (CI-20-03398), she alleges injury to her right shoulder and aggravation of cervical spine degeneration arising from the ergonomic set up of her workstation at the Collingwood Children’s Farm between 2011 and 2018. In this action she seeks leave claiming serious injury in respect of pain and suffering and loss of earnings.
2I will deal with each claim largely separately. This is because of the structure of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“WIRCA”), which requires separate claims for each injury, the entirely different circumstances of each claimed injury and the requirement to separately consider the consequences of each alleged injury. There is inevitably some overlap in this latter phase, partly because of the physiological effect of the separate injuries (as an example the alleged pain and its impact on sleep) and because of the Defendant’s submission that there was impermissible overlap in the way Ms Bremner’s cases presented the impairment consequences arising from the various injuries.
3For the reasons which follow I have found:
a)the cow incident resulted in compensable injury to the back and the neck but that it is not possible to isolate the impairment consequences sufficiently to determine whether they meet the test of being considered a serious injury;
b)the ergonomic injuries resulted in compensable injury to the right shoulder and neck. The right shoulder injury has resulted in pain and suffering consequences which are serious but it is not possible to isolate the loss of earnings consequences to make a determination as to serious injury. The neck injury does not have serious injury consequences either in terms of pain and suffering or loss of earnings.
Relevant background
4Ms Bremner was born on 2 May 1968. At the date of the application she was aged 52. She completed year 11 at Hurstbridge High School. She then commenced work as a receptionist/administrative assistant for about 12-18months.[1] She worked further administrative roles for CIG and then RDNS. She had a stint as a property manager for Nationwide Realty for about 4 years before her son was born in 1994. She then changed careers and worked in a café for about 10 years. Alongside this she worked as a family day care worker through the Nillumbik Shire Council for about 5 years. In May 2005, she commenced work at the Collingwood Children’s Farm as a farm hand. This was a full time role.
[1] Plaintiff’s Court Book (“PCB”) 35, paragraph [5]
5Up to that point her past medical history was reasonably benign. No attention was placed upon it during the trial.
The cow incident
6There is no doubt that on 4 September 2007, Ms Bremner was employed as a farmhand at the Collingwood Children’s Farm. She had entered a paddock to assist a newborn calf when a cow charged her. It struck her front on, between hip and shoulders. She was thrown back. On her version she was knocked out, came to and vomited.[2] No significant controversy exists about the occurrence of this event. Rather, the Defendant contends that Ms Bremner’s recounting of when this event occurred and the effect of it was incorrect and exaggerated. I will come to those arguments shortly. However, I record my finding that on 4 September 2007 Ms Bremner was struck a forceful blow by a cow as described in her affidavit. She was thrown backwards in a violent manner. It caused her to vomit several times. She was unable to continue working and was off work for about five days in bed.[3] I find she went to the Mill Park Superclinic on 5 September 2007 and was sent for a CT scan.[4] That scan was of the lumbar spine and the cervical spine, suggesting complaint of pain in those areas. There was no abnormal finding recorded.[5] It is undisputed, and I find, that when she returned to work she did not go back to farmhand duties, but returned to office and reception work on account of her injuries. Ms Bremner was tasked with selling entry tickets and operated a computer and cash till.[6]
[2]PCB 38, paragraph [27]; Defendant’s Court Book (“DCB”) 72
[3]Transcript (“T”) 52, Line (“L”) 8
[4]DCB 72 and 73 requested and performed on 13.09.07
[5]DCB 73
[6] PCB 38, paragraph [30]
The Defendant’s arguments regarding the cow incident
7The Defendant argues that the cow incident:
(i)did not cause injury to Ms Bremner’s spine; or
(ii)if it did, such injury was transitory in nature.
8The Defendant supports its arguments with a number of points which can only be understood by setting out the state of Ms Bremner’s application up to the day prior to trial on 26 April 2021. Ms Bremner’s application was supported by an affidavit sworn 12 February 2020[7] (“the first affidavit”), the Form A document and a proposed statement of claim. The Form A specifies the injury as “lumbar spine injury, namely L4/5 disc bulge and L5/S1 disc herniation with right S1 nerve root compression; and cervical spine injury”.[8] The attached proposed Statement of Claim identified those same injuries and pleaded they arose in “about July 2009”.[9] The first affidavit identified the injury occurring in about July 2009,[10] when she was struck by a cow and suffered injuries to her back, neck and a foot-drop injury. It went on chronologically to describe a presentation to the Austin Hospital via ambulance on 25 July 2009 and numerous outpatient attendances at the Austin Hospital over the next two years.[11] The first affidavit gave the very strong impression that the cow incident occurred almost immediately prior to the presentation at the Austin Hospital.[12]
[7]PCB 34
[8]PCB 22
[9]PCB 27 My emphasis
[10]PCB 38, paragraph [27] My emphasis
[11]PCB 39
[12] PCB 39, paragraph [32]
9It will be immediately seen that Ms Bremner’s affidavit is completely at odds with the note of the Mill Park Superclinic which records the cow incident and injury in September 2007. The Defendant argued there was real inconsistency in Ms Bremner’s evidence by pointing to the fact that on 25 July 2009 Ms Bremner had called an ambulance and then been conveyed to the Austin Hospital with worsening back pain and intermittent numbness of the right foot.[13] Neither the ambulance notes nor the Austin Hospital notes contained any history of the cow incident or a history of lower-back symptoms since 2007, but rather referred to an onset of pain while Ms Bremner was at home. The Defendant noted that in fact Ms Bremner had been away from work on carer’s leave for her sick father for several months at this time, thereby lessening any connection to work. The Defendant also noted that after being discharged from hospital she subsequently went to see her local general practitioner’s clinic at Diamond Valley and those notes similarly disclosed no record of the cow incident or ongoing symptoms from 2007.[14] Those notes from the Diamond Valley general practitioner clinic record two visits between 4 September 2007 and the visit on 14 August 2009 after she was discharged from the Austin Hospital. Neither of these visits record anything about the cow incident or symptoms relating to a back injury.[15]
[13]DCB 79 and DCB 86
[14]DCB 115 which records only “Extreme pain 3 weeks ago couldn’t walk”.
[15]DCB 116
10In the first affidavit, Ms Bremner deposed that since the cow incident she had had lower back pain and foot drop. The Defendant asks rhetorically why such significant symptoms would not have been relayed to her treating doctor at all, or to the ambulance, or to the Austin Hospital.
11The Defendant’s attack was sharpened when, on 7 April 2021 and then the morning of the trial, Ms Bremner swore further affidavits. In the affidavit of 7 April 2021 (“the second affidavit”) she referred to the first affidavit, but made no changes to it. However, and most significantly, the affidavit sworn on the morning of the trial (“the third affidavit”) made very significant changes. For the first time Ms Bremner swore, in complete contrast to her previous evidence, that the cow incident occurred on 4 July 2007 and not 2009.[16] Next, she deposed that after the cow incident she consulted a Chinese herbal medicine practitioner, Master Lu, for her lower back pain on a weekly basis for eighteen months and paid $100 per session. She recounted that at about the time of swearing her first affidavit (it was not clear whether it was before the swearing of the affidavit or after the first affidavit was sworn) she well knew that treatment by Master Lu was an important matter.[17] Yet no mention of Master Lu was included in the first affidavit and its omission was completely unexplained during the course of trial. Ms Bremner produced no report from Master Lu, no receipts of payment, or any record of these attendances. In the third affidavit, she identified her mother as knowing of her increasing pain in the period 2007 to 2009, yet no affidavit was received from her. Despite the late provision of this third affidavit, the Defendant chose to continue with the hearing.
[16]PCB 143, See paragraph [3] of the third affidavit
[17] PCB 143-144, See paragraph [8] of the third affidavit
12The Defendant also noted that Ms Bremner only put in a WorkCover claim regarding the cow incident, in 2019. While this claim was accepted it seems, however, even that claim had an accepted date of injury of January 2009. In any event, the Plaintiff’s counsel contended that the acceptance of the claim should be counted in her favour.[18] The Plaintiff’s counsel relied on the Court of Appeal decision of Sednaoui v Amac Corrosion Protection Pty Ltd.[19] That case concerned whether or not Mr Sednaoui had sustained a low back injury at work. The Defendant argued at trial that no such injury could be proved to have occurred at work. In seeking to discharge his burden Mr Sednaoui argued the WorkCover insurer’s decision to accept his claim and pay statutory benefits was an admission that should ordinarily be regarded as significant. The Court of Appeal accepted as much but did not consider that was a definitive proposition of law but rather an observation only.[20] Here, there is no need to rely on the acceptance of the claim given my finding that the cow incident caused injury to the low back. I have set out the reasons for that finding below under my assessment of the Defendant’s arguments regarding the cow incident.
[18] See Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247, 265, at [67].
[19] (2017) 52 VR 247
[20] Sednaoui v Amac Corrosion Protection Pty Ltd (2017) 52 VR 247, 365, at [66]-[67]
13Given these above inconsistencies, lately-recalled evidence and admissions, the Defendant puts implicitly that Ms Bremner’s evidence in her affidavit material was not recounted truthfully and impacted significantly on the veracity of Ms Bremner’s version of events.[21]
[21] T77, L11-24
Assessment of the Defendant’s arguments about the cow injuries
14I do not accept the Defendant’s arguments about the cow injury in the main. As set out above, I have found that on 4 September 2007 she was struck by a cow forcefully. There is no doubt this was while she was at work. The Mill Park Superclinic records are solid evidence of this. It is also undoubtedly true that she has incorrectly recorded the date of the occurrence of the cow incident in her affidavit and histories to some doctors.[22] However, it must be remembered that at the time of seeing these doctors and swearing the first two affidavits it was nearly ten years after the cow incident. The effluxion of time, it was argued, and its impact on her precise memory, should not be held against her. I accept that submission. What is more troubling for Ms Bremner’s case is the appearance of Master Lu’s treatment regime for the first time in the third affidavit filed on the morning of the trial. The course of treatment is both extensive and costly. It is not something likely to be forgotten. Its timing might be confused as commencing in 2009, but even this was not the case, as Master Lu’s treatment is nowhere mentioned in all the affidavit material prior to the last affidavit. It is not in any treating medical report, or contemporaneous medical notes of Ambulance Victoria, the Austin Hospital or the Diamond Valley medical clinic. No affidavit or report from Master Lu’s clinic was tendered. This is despite the fact the Plaintiff deposes in her third affidavit that she made attempts to contact Master Lu’s clinic about the time of swearing the first affidavit. It is curious why none of this was mentioned in the second affidavit. An inference must be drawn that any material from Master Lu or his clinic would not have assisted Ms Bremner’s case. I draw that inference. It is also noted that no affidavit from Ms Bremner’s mother – identified in the last affidavit – or other witness corroborating her lower back pain and symptoms from 4 September 2007 to July 2009 was filed.
[22]See report of Dr Chehata at PCB 93 and report of Dr Rowe at PCB 98
15A further issue arises from the failure of Ms Bremner to mention Master Lu prior to the third affidavit. There is no reference to Master Lu, or any treatment received from Master Lu, in any of the reports or clinical notes provided to the Court. Lack of reference in the clinical notes is not, by itself, damning to Ms Bremner’s credit given the lack of overlap in the clinical notes and the alleged treatment period of Master Lu. In her third affidavit, Ms Bremner deposes that she saw Master Lu for approximately 18 months after the cow incident.[23] This would mean she saw Master Lu from September 2007 to approximately March 2009. Nevertheless, Ms Bremner had ample opportunity to outline her medical and treatment history when being assessed by multiple doctors and medico-legal experts. At the time of swearing her first affidavit on 12 February 2020, and prior to her third affidavit sworn 26 April 2021, Ms Bremner had attempted to make contact with Master Lu to obtain records and therefore knew of the importance of Master Lu’s treatment. However, shortly thereafter on 5 May 2020, Ms Bremner was assessed by Dr Boffa and there is no reference to Master Lu in Dr Boffa’s report. Similarly, on 12 May 2020 Ms Bremner was assessed by Dr Low and there is no reference to Master Lu in Dr Low’s report. It was never suggested to Ms Bremner that her evidence regarding Master Lu was untrue or patently false. However it falls to me to make a finding as to whether or not to accept Ms Bremner’s evidence that she did see Master Lu as she has deposed after considering all the evidence. Considering all the above evidence I find that Ms Bremner did not see or receive treatment from Master Lu for her back pain. I make this finding on the basis that there is simply no material, save for the third affidavit which discloses this course of treatment. The failure of any contemporaneous note to record his involvement, I consider, is highly significant. I place great weight on the fact that the treating doctor, Ambulance Victoria and Austin Hospital notes have no history of treatment by Master Lu or even of low back symptoms between September 2007 and July 2009. To a lesser extent the absence of Master Lu in the history of Mr Wilde in his reporting is also quite remarkable. Finally the fact that those doctors who took histories after the date of the first affidavit and have no mention of Master Lu is significant.
[23] PCB 143, paragraph [7]
16The Plaintiff argues that despite these deficiencies the medical evidence supports a causative link between the cow incident and her presentation to the Austin Hospital on 25 July 2009.[24] That evidence, they submit, is from the medical reports of Dr Bruce Low, orthopaedic surgeon, who reported to the Defendant on two occasions. There is some force to this submission because he is the only expert orthopaedic specialist briefed with all the clinical notes (the treating doctor, Mr Wilde and the Austin Hospital) and investigations, who has been tasked with commenting on the causative link of the cow incident on her ultimate spine condition. His evidence on this point is emphatic. It is also not controverted by any other evidence. Accepting as I do that the cow incident occurred, and given Dr Low’s opinion, I find that Ms Bremner sustained injury by reason of the cow incident. This injury is described by Dr Low as: [25]
“… musculoligamentous damage to the neck and lumbar spine with aggravation of underlying degeneration.”
[24]DCB 78
[25]DCB 29
17There is also, in Dr Low’s opinion, some evidence of neuro-compressive disease leading to the radiculopathy complaints in the right leg and foot.[26] Dr Low calls in aid the imaging taken by Ms Bremner’s general practitioner, Dr Valakopoulos, in August 2009, which showed “moderate L5/S1 right posterolateral disc herniation with right side S1 nerve root compression”.[27]
[26]DCB 29
[27]DCB 27
18As mentioned previously, I accept Dr Low’s opinion as to a causative link of the cow incident to a spine injury. There are other reasons to do so, which arise from consideration of all the evidence.[28] As to the attack on Ms Bremner’s failure to properly isolate the date of the cow incident to 4 September 2007, it seems there are various times when she has confused this date. I do not accept the implied assertion the Defendant makes that 2009 was nominated to fit with the presentation to the Austin Hospital for the purposes of furthering her litigation. For example, when being treated at the Austin Hospital by physiotherapist, Ms Jackson, Ms Bremner nominated 2008 as when the cow incident occurred. This was well before any litigation commenced. At a review in the Austin Outpatients in November 2010, she nominated her lower back pain and right leg symptoms as occurring over two years prior, that is, since 2008,[29] and linked this specifically to the cow incident. This obviously stands in contrast to her reporting to Mr Wilde, in his capacity as a treating specialist, who has a history of 2009 for the cow incident.[30] The treating doctor, who was seeing her from at least 2007, has a history of the cow incident as at 2007,[31] but then notes she was discouraged from making a WorkCover claim. His report is dated 2019 however and it is unclear when he first obtained this history. Of more relevance is the report of physiotherapist, Ms Jo Rankin, in December 2015. She records the cow incident as occurring seven years prior, that is, 2008.[32] She also records that Ms Bremner was discouraged from making a WorkCover claim at that time. Of most significance, however, is the recording from the Austin medical report. It records that as at 2010, she gave a history of the cow incident occurring in 2008, symptoms thereafter, with a substantial worsening in 2009.
[28] Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104, [45]
[29]PCB 82
[30] PCB 69
[31]PCB 74
[32]PCB 63
Conclusion as to the cow incident and its effect
19I find, therefore after a consideration of all the evidence, that while Ms Bremner is a poor historian and cannot be completely accepted as a witness of truth, it is tolerably clear that after the cow incident she had lower back pain and right leg symptoms. Subsequently, she had a worsening of her lower back pain and right leg symptoms in 2009, as recorded contemporaneously by the Austin notes. That worsened condition, I find, was caused by the cow incident, consistent with Dr Low’s opinion. Concluding there, I do not accept the Defendant’s overall argument that the Plaintiff’s affidavit material was framed solely with litigation in mind, but rather I find that it was a result of poor historical recall by Ms Bremner.
The Defendant’s argument that the lower back injury was transitory
20This argument proceeded in two parts. First, that there is no link between the cow incident on 4 September 2007 and the worsening condition that led to the Austin Emergency Department presentation on 21 July 2009. As I have found against that argument, it need not be dealt with further. Second, that after the worsening of the condition in July 2009, Ms Bremner recovered, so that “over twelve months the right leg sciatica resolved and her back improved by 90%”.[33] The Defendant relied on the fact that this recording from the treating orthopaedic surgeon from the Austin, Mr Wilde, was particularly strong evidence. The Defendant noted it was a reasonably contemporaneous recording. Given there were no GP notes of lower back pain over thirty-five visits from 2010 to 20 October 2015,[34] the recording of Mr Wilde was likely accurate, it was submitted, and was strong evidence of a transitory spine condition or one which had very mild consequences.
[33]PCB 64 – Mr Wilde’s opinion
[34] T30, L7-16
21The Defendant also argued that on 16 October 2015 Ms Bremner tripped on stairs at work, injuring her right knee and aggravating her spine condition. I note this incident is not the subject of a serious injury application for either the right knee or the lower back. Mr Wilde was called in aid by the Defendant again. His opinion, in January 2016, was that this incident resulted in an aggravation of her back condition.[35] This caused irritation in her back, with referred symptoms to the right leg. A new MRI scan was said to show an annular tear on the right side at L4-5 and a small right-sided bulge at L5-S1.[36] Dr MacKay, the treating doctor, as previously noted, makes no mention of lower back symptoms from August 2009 to 20 October 2015. However, thereafter, his notes record consultations on nine occasions where lower back pain is mentioned.[37] I note that these notes cease in May 2020. Ms Rankin recorded that prior to the stair incident Ms Bremner’s back pain was 4 out of 10 and increased to 7 out of 10 afterwards.[38]
[35]PCB 64
[36]PCB 64
[37]See the notes at DCB 95ꟷ106 for 23 December 2015, 20 January 2016, 9 February 2016, 25 February 2016, 25 June 2018, 27 July 2018, 19 November 2018, 5 March 2019, 26 September 2019.
[38] PCB 63
22In his reporting, Dr MacKay does not separate out the injury consequences between those which have persisted since the cow incident and those which have continued to exist as a result of the stair incident which occurred on 16 October 2015.[39]
[39]PCB 76
23I pause here. This Court must apply the provisions of the WIRCA.[40] Specifically, the Court must identify the injury caused in the workplace incident. From there, the impairment consequences of that injury must be identified.[41] It is impermissible where there are two injuries to the lumbar spine arising from separate unrelated incidents that they can be aggregated in respect of the pathological change caused or the impairment consequences.[42] Here Ms Bremner proceeded on the basis that she sustained injury to both the lumbar and cervical spine in the cow incident. Almost no focus or attention was paid to the cervical spine injury and its consequences for the Plaintiff in this part of the case. It is permissible to aggregate the consequences of separate injuries to the lumbar spine and the cervical spine as they impact the one body function in a situation where they arise from the one incident.[43] That much may be accepted but the situation varies when the injuries which impact on the body function occur in separate incidents. In Lu[44], the court set out the principle in this way:
“… But no such aggregation is permissible if the non ‘serious injuries’ which impair the one body function have been caused by separate and unrelated incidents.”
[40] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
[41]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, 520-1, at [27]-[28]
[42]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309, 315, at [35]
[43] TAC v Zepic [2013] VSCA 232 at [11]
[44] Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, 520, at [27]
24This principle must be borne in mind when assessing Ms Bremner’s lower back injury. This is because on about 16 October 2015, she tripped and aggravated her lower back and sustained a worsening of her lower back symptoms. So much can be seen (i) in the reporting of Mr Wilde and Dr Low,[45] (ii) by reason of her increased attendances on her treating doctor, Dr MacKay, and (iii) his regular prescription of pain medication at those times. The Plaintiff’s first affidavit states in respect of the stair incident:[46]
“… My back pain was worse following the tripping incident for a short period of time before it returned to the level at which it had been prior to the tripping incident.”
[45] PCB 71, DCB 29, see in particular Dr Low’s response to question 2
[46]PCB 38, paragraph [29]
25Given my previous comments about the reliability of Ms Bremner’s recall of the factual matters in this case, I am unable to accept this statement as an accurate record of the situation. This is because her treating doctor’s notes begin to record increasing attendances for lower back pain immediately after the stair incident on 16 October 2015. Accompanying this is the prescription of medication, not noted prior to the stair incident in October 2015. Mr Wilde specifically records that there were new pathological findings on the MRI scan and a return of the right leg sciatic symptoms, which had resolved some years prior.[47] Such sciatic symptoms are recorded by Dr MacKay up to May 2018,[48] but are said to be resolved on his notes by 5 March 2019. Ms Rankin’s report also comments on the substantial increase in back pain and the extension of right leg pain immediately after the stair incident. In combination, these factors lead me to conclude that the aggravation of her lower back injury was not as she deposed. Rather, it was an aggravation that continued for several years. Exactly how long is unclear. It is also unclear whether the consequences of that aggravation have ended. I come to that conclusion because of Ms Bremner’s evidence and more importantly the state of the medical evidence which I regard as a more accurate record of the state of her impairment. It does not clearly delineate between the consequences of the lower back injury caused in the cow incident from those caused in the stair incident. Dr Low is the only orthopaedic specialist tasked with investigating this issue. In his first report, where he had Mr Wilde’s report from 2016 and the MRI findings at that time, he opines:[49]
“The main injury was when she was charged by the cow which has caused severe damage to her neck and lumbar spine which is lifelong with ongoing aggravation.”
[47] PCB 64 being an annular tear at L4/5
[48]DCB 102
[49]DCB 23
26However Dr Low then went on:[50]
“The inevitable course of the plaintiff’s condition even with the incident would not be where she currently is. She had no trouble before she was charged by the cow and then fell down the steps plus other incidents that have occurred … .”
[50]DCB 24
27In his second report, Dr Low was provided with the notes of the treating doctor and he was asked the following question: “Based on the clinical records, what are the other possible causes of the plaintiff’s presentation?” His reply was as follows:[51]
“According to Ms Bremner she has had trauma on 04.09.2007, when she was charged by a cow. That incident would cause musculoligamentous damage to the neck and lumbar spine with aggravation of underlying degeneration. In the absence of any other injury that is likely to be significant … She has also fallen down the steps and injured her knee which aggravated her back as well at some stage plus multiple other injuries, for example, she hit her head and nearly knocked herself out …”
[51]DCB 29
28Mr Wilde, in his reporting to the treating doctor in 2016, simply noted in relation to the 2015 stair incident: “I think her back will be covered by Workcare as there was a definite aggravation when she fell at work in October last year”.[52]
[52]PCB 64
29As mentioned previously, the treating doctor makes no comment on the length or intensity of the aggravation.
30In making the assessment of Ms Bremner’s condition, I must look at her condition on the evidence presented. This evidence, I find, is insufficient to perform the task required by the Court of Appeal in Lu[53]. It is true that up until 16 October 2015 Ms Bremner can point to the following factors being impairment consequences of the cow incident:
(a) a course of regular treatment with Master Lu for eighteen months (which I do not accept occurred as set out previously);
(b) a change in jobs from her farmhand work to administrative assistant;
(c) a substantial pathological change in the state of her spine resulting in an emergency presentation to the Austin;
(d) a slight right foot drop and altered sensation;[54]
(e) a period of treatment by the Austin Hospital Outpatients.
Beyond that, the Plaintiff’s evidence does not disclose what impairment consequences, as at the day of hearing, have been caused by the cow incident as opposed to that caused by the stair incident. In those circumstances, I cannot perform the task required to identify and weigh the impairment consequences specific to the cow incident. I come to this conclusion in relation to both the injuries claimed to arise from the cow incident being injury to the cervical and lumbar spine. In relation to the cervical spine injury I am also unable to make the specific findings required for the reasons set out below when assessing the claim in respect of the ergonomic injuries; namely that the consequences significantly overlap and make it impossible to perform the task of isolating and weighing the impairment consequences. For these reasons I deny the Plaintiff’s application for leave to bring proceedings in relation to the cow incident.
[53] Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
[54] PCB 63 Ms Rankin, PCB 64 Mr Wilde
The right shoulder and neck injuries
31I turn now to consider Ms Bremner’s second application. This application is that injuries to her right shoulder and neck arising from the allegedly poor ergonomic set up at work from 2011 until 2018 have resulted in serious injuries. She seeks leave to bring proceedings in respect of both pain and suffering and loss of earnings. The Defendant accepts that Ms Bremner has sustained injury to the neck and right shoulder in the course of employment. The Defendant’s arguments in opposition to Ms Bremner’s claim focus on what it termed the “entanglement” of Ms Bremner’s injuries and their consequences. “Entanglement” is perhaps an inapt term given it is not said that Ms Bremner’s impairment consequences have a non-organic or psychological basis.[55] That is not this case. Rather, as set out previously, having made a claim arising from injury to the right shoulder and neck, Ms Bremner has the onus of demonstrating that the impairment consequences of each of those injuries are serious. It is impermissible to aggregate consequences arising from impairment of different body functions. Here, the Defendant pointed to Ms Bremner’s other claims for her lower back, neck and right leg. It was argued that the current impairment consequences of all these injuries overlapped so much so that it was not possible to identify what consequences related to the right shoulder and neck and then go on to assess whether these consequences, when assessed against a range of possible cases, met the test of being considered serious. Specifically, the Defendant raised the same argument in respect of the neck injury and the impairment consequences said to flow from that based on the fact that the neck was injured in the cow incident and the subsequent aggravation caused by the ergonomic set-up itself had to be shown to have impairment consequences that are serious.[56]
[55] Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605, 610, at [18]-[19]
[56] Petkovski v Galletti [1994] 1 VR 436
The right shoulder claim
32Dealing with the right shoulder first. Ms Bremner recounted problems with her right shoulder in her first affidavit. She variously described “arm pain”, “shoulder pain” and “pain in [her] neck and arm” at paragraph [30] of the first affidavit. At paragraph [36] of the first affidavit, she recounted that she was sent by her general practitioner for x-ray and ultrasound of the right shoulder and then MRI scan of the neck in mid-2018. Around that time she commenced physiotherapy as well as psychological counselling.[57] She began on antidepressants about this time and continued this until early 2019. She continues to see a psychologist once per fortnight.[58] As to her current right shoulder symptoms, she states that her neck is stiff and she has difficulty turning. Her neck pain spreads into her shoulders.[59] She complains of headaches.[60] She says there is pain in her right shoulder and restricted range of motion. She complains of “severe pain in my neck and right shoulder about every two weeks”.[61] She describes being limited in pushing and pulling because of “the injuries to my shoulder, neck and back”.[62] Specifically, she isolates difficulty raising her right arm and doing up her bra, trouble throwing a ball for her dog and swimming because of her right shoulder.[63] She says she no longer plays tennis because of her back, neck and shoulder injuries.[64] She is hesitant and cautious of doing things because of the risk of back and shoulder pain. “My neck and shoulder pain prevents me from performing even basic tasks.”[65] Household tasks are avoided because it “makes my shoulder and back pain worse”.[66] Sleep is interrupted because of “back, neck and shoulder injuries”.[67] Playing with her grandson is difficult because of her “back, neck and shoulder injuries”.[68] She has trialled returning to work and working in floristry, but this is compromised by the “restrictions imposed by my injuries” (my emphasis).[69] Her second affidavit affirmed the above matters but added that her neck pain had become more constant.[70] Her third affidavit did not add to these matters, set out above, specifically as to the consequences arising from the right shoulder injury.
[57]PCB 40, paragraph [38]
[58]PCB 41, paragraph [46]
[59] PCB 49 paragraph [9]
[60]PCB 41, paragraph [48]
[61]PCB 42, paragraph [50]
[62]PCB 43, paragraph [56]
[63] PCB 43, paragraph [56]
[64] PCB 43, paragraph [56]
[65]PCB 43, paragraph [58]
[66]PCB 44, paragraph [59]
[67]PCB 44, paragraph [60]
[68]PCB 44, paragraph [61]
[69]PCB 46, paragraph [71]
[70]PCB 49, paragraph [9]
33The only relevant radiological evidence regarding the right shoulder, on 10 May 2018, demonstrated a partial thickness articular surface tear of the supraspinatus tendon.[71]
[71]PCB 75
34Her treating doctor described adhesive capsulitis in addition.[72] He opines her floristry work was made difficult by “shoulder and neck pain and lower back pain”.[73]
[72]PCB 76
[73]PCB 69-80, see in particular at question 2 PCB 79
35Turning to the medical reporting. Dr Chehata, medico-legal orthopaedic specialist answered questions as to the impact of the right shoulder injury. He opines “The restrictions are certainly considerable in terms of intermittent pain, loss of movement and loss of strength”.[74] He states this limits her ability to return to work in her old position.[75] Dr Rowe, occupational physician, examined Ms Bremner. He found stiffness and decreased range of motion in the right shoulder. The right upper arm was wasted and 3 centimetres less in circumference.[76] I consider this a significant objective finding. He was asked specifically about the restrictions caused by the right shoulder injury and he identified overhead activities, repetitive or forceful use of the right hand and reduction in grip strength. As to overlapping restrictions with the back and neck, he noted restrictions with pushing, pulling and lifting.[77] In combination, he opined, back, neck and right shoulder injuries prevented farmhand work or physical work. Significantly the Plaintiff herself accepted that her inability to work was due to the combined effect of her injuries.[78] Dr Rowe said she should trial floristry, but a review in twelve months to test her functional capacity was necessary.[79] He opined “I am not of the view her injuries have fully stabilised”.[80] This is telling given the WIRCA[81] requires assessment to be of permanent impairment.[82] However, when looked at closely this comment was directed to whether or not an impairment assessment could be made. In contrast, however, the condition has been present for some 3 years and no surgery has ever been suggested. This strongly supports the argument that her right shoulder injury and its impairment consequences are permanent.
[74]PCB 95
[75]PCB 95
[76]PCB 101
[77]PCB 102
[78] T39, L9-16; T45, L13-18
[79]PCB 103 – Dr Rowe’s report dated 19 January 2021
[80]PCB 104
[81] Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
[82] Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139, at [55]-[61], s325 definition of
“serious injury”
36The Defendant’s reports begin with Dr Umberto Boffa, an occupational specialist. His report is brief and focused on all her injuries, with the concluding opinion she has the capacity for some work. Dr Michael Baynes has a record of aching in the right arm, with limited movement. He did not consider, in contrast to all others, that the ultrasound showed rotator cuff pathology. He diagnosed a chronic pain syndrome. His opinion, as such an outlier, must be put to one side.
37Having reviewed all that evidence, I find that as a result of her employment, Ms Bremner has sustained a partial tear of the supraspinatus tendon in the right shoulder, with adhesive capsulitis and that resulted in impairment of the right shoulder. The occupational impairment consequences of that injury can be isolated to those as set out by Dr Rowe above and which I accept. I find consequently that she has difficulties with overhead activities, repetitive or forceful use of the right hand and reduction in grip strength. This is consistent with the reporting of Dr Chehata and I find she has intermittent pain, loss of movement and loss of strength. On a practical level, I find this causes her difficulty raising her right arm and doing up her bra, trouble throwing a ball for her dog and swimming because of her right shoulder.[83] I accept this evidence. Additionally, I find as recorded by Dr Rowe that the right shoulder causes difficulty preparing food, cleaning the bathroom and scrubbing dishes.[84]
[83] PCB 43 paragraph [56]
[84] PCB 101
38As to the pain consequences, I find that she has pain in the right shoulder regularly but that it becomes really sharp twice per week. She uses, I find, Panadol Osteo 3-6 tablets per day and Voltaren on an as needed basis.[85] She occasionally uses a topical heat cream on her right shoulder, neck and lower back. These medications are in respect of pain emanating from all her injuries not just the right shoulder. I cannot make a finding as to exactly what component of this medication relates to treatment of the right shoulder pain. All that can be found is that she has a need for medication arising from the pain associated with her right shoulder injury. This need arises regularly and certainly when the pain is really sharp which is at least twice per week.[86] I make these findings on a consideration of all the evidence. At times this evidence is imprecise. For example, the affidavits do not tie the right shoulder solely to specific impairment consequences separate from the neck injury. This can be seen in the excerpts of the affidavit material I have set out. However, any further specificity is likely to be artificial in any event. The assessment and findings I have made are the result of context and value judgment. A degree of imprecision is unavoidable. Assessing the pain and suffering impairment consequences flowing from the right shoulder injury then I find that they meet the statutory test of being considered more than significant or marked. I will grant leave to Ms Bremner to bring proceedings in this regard.
[85] PCB 100
[86] PCB 119
39Turning to assess the effect of the right shoulder injury on her employment capacity. It will be recalled that Ms Bremner worked as a farmhand until the cow incident. She was then deemed unsuitable to work as a farm hand. She then worked in an administrative capacity until April 2018. As a receptionist she did meeting and greeting of visitors arriving at the farm, administering entry tickets, providing information and booking tours. She also balanced cash and prepared banking. To do this she used MYOB software and processed accounts payable and receivable.[87] She then ceased work at the Collingwood Children’s Farm in March 2018 because of her injuries. She attempted some other duties doing computer data entry and then some administrative work at another farm for a few weeks in 2018.[88] Through a rehabilitation provider she commenced a floristry course 2 days a week full time in February 2020.[89] This lasted 2 months and was a practical placement. She ceased working after 2 months and was then enrolled in a Certificate III Floristry Course which is a 1 year course. This was deferred due to COVID-19 throughout 2020. She had returned to the course in February 2021 at about a day a week.[90] She enjoys the floristry work but was unsure if she could cope with it physically.[91] As set out above this was admitted by her to be as a result of the combination of her injuries.[92]
[87] PCB 117
[88] PCB 45 [66]
[89] DCB 94
[90] PCB 111-112
[91] DCB 93-94
[92] T39, L9-16; T45 L13-18
40The test to be applied is whether the right shoulder injuries, isolated from her other injuries has had the effect of reducing her earning capacity by 40% or more as at the date of the trial. This begins with an assessment of her earning capacity in the 3 years prior and 3 years post the right shoulder injury date. I find, in accordance with the reality of her situation that she was capably employed as an administrative worker at the Collingwood Children’s Farm earning $43,187 gross per annum which equates to $830.50 gross per week.[93] She enjoyed this work and had been doing it since 2007. It is the best evidence of her earning capacity in the 3 years before and the 3 years after her right shoulder injury. Applying the statutory formula this means that if she is currently able to deploy her residual earning capacity and earn more than 60% of that figure which is $498.31 she will not succeed.[94]
[93] T82, L5
[94] T82, L12
41Ms Bremner argues that she cannot return to any work. She argues that she has attempted to return to work as a florist but was unable to cope with even 2 days per week. The Defendant argues that (i) Ms Bremner hasn’t established that the reason for her incapacity is because of her right shoulder alone,[95] relying on Lu[96] and (ii) that she has a capacity for work in any event and if exercised would exceed the threshold earnings of $498.31.[97]
[95] T84, L 22-25
[96] Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, 519-521, at [23]-[28]
[97] NOTE: During the proceeding an amended PCB was filed and during the Defendant’s closing Counsel’s references referred to the previous version of the PCB. CB references have been amended to refer to the tendered material being the late filed amended PCB. In closing Mr Miles referred to the following; Dr Chehata “fit for light duties” in administrative roles. Dr Chehata says at PCB 95 “return back on part-time hours and limited duties, especially if there is an administrative component”; Dr Rowe “fit for light duties”. Dr Rowe at PCB 103 says “does have some capacity for alternative or modified work, albeit on a part-time basis”; Ms Green PCB 127-129,134; Boffa DCB 11-12 fit to return to work 15 hours per week in suitable light duties; and Dr Low DCB 24
42A further difficulty arises for Ms Bremner from the reporting of Dr Rowe as to the permanency of her functional impairment. He opines in his January 2021 report that while he did not think floristry would be entirely suitable a review of her functional capacity in 12 months would be desirable.[98] He made it clear however that her condition had not changed for a significant period and there was unlikely to be any further improvement. Overall, I do not find that Dr Rowe is expressing an opinion that her condition is not stable. Rather his comments were made on the basis that Ms Bremner was attempting a new course of training and potentially employment, and this might yield valuable information, though he thought it unlikely. Ultimately he was proven correct as Ms Bremner ceased her floristry training in about March 2021. As such, I find that her incapacity stemming from the right shoulder could be considered permanent so that an assessment can be made by the Court. The evidence as to precisely what incapacity the right shoulder condition produces however is confused. Ms Green considers the reduction in her functional capacity taking the right shoulder and neck both into consideration.[99] So too, does Dr Rowe.[100] Dr Chehata is the most certain that her right shoulder has rendered her partially incapacitated.[101] Dr Boffa’s reports, brief as they are, seem to conflate all the injuries into the assessment of occupational capacity. Most importantly so too does Ms Bremner herself.[102]
[98] PCB 103
[99] PCB 134
[100] PCB 103 see answer to question 5
[101] PCB 95 see answer to question 4
[102] T39, L9-16; T45, L13-18
43Given the above, I accept the Defendant’s submission that there is not the degree of specificity in the materials which allow the Court to determine the extent of the loss of earning capacity caused by the right shoulder injury. This is the Plaintiff’s burden to discharge and I find she has not discharged it. Accordingly I deny her application for leave in respect of her loss of earnings consequences stemming from the right shoulder injury.
44Turning to the neck injury arising from the ergonomic set up at work. I find that Ms Bremner has not discharged her onus in satisfying the Court she has sustained a serious injury in relation to the alleged neck injury arising from the allegedly poor ergonomics at her place of employment from 2011 to 2018. This is for the following reasons. First, the neck injury may be described as an aggravation of underlying degenerative changes. The consequences of that neck injury are relevantly set out by me above, at paragraph [32], and it can be seen from that recounting that there is a large degree of overlap in the impairment consequences ascribed to the low back, right shoulder and the neck injuries. However, it is to be recalled that the neck injury arising from the ergonomic set up is superimposed on the neck injury said to arise from the cow injury. In order for Ms Bremner to succeed she must isolate the impairment consequences from that aggravated condition.[103] I find she has not done so with the degree necessary to make the relevant findings as to whether the impairment consequences could be considered serious.
[103] Petkovski v Galletti [1994] 1 VR 436
45Turning then to whether the neck injury has caused loss of earnings consequences to the requisite level. In attempting to isolate the consequences of the neck injury, Dr Rowe has commented on the impact of the neck injury and lower back together on her work capacity. This is not a sound basis for me to proceed in assessing the consequences of the neck injury in isolation, as required by Dalton v Dandenong Scaffolding Hire Co Pty,[104] and Lu[105]. In that circumstance I am not able to make the findings necessary for the Plaintiff to succeed in her application for leave in respect of loss of earnings.
[104][2003] VSCA 183, [47]
[105](2000) 1 VR 511,520-521, at [27]-[28]
46For the reasons set out, I will similarly dismiss the Plaintiff’s application in respect of her neck injury in respect of both pain and suffering and loss of earnings.
47To summarise my findings:
(a) in relation to matter CI-20-03400 - lumbar spine and cervical spine - Ms Bremner’s application is denied.
(b) in relation to matter CI-20-03398 - the claim for aggravation of mid to lower cervical spine and facet degeneration and right shoulder injury arising from the ergonomic set up at her workplace I find:
(i)Ms Bremner has sustained a serious right shoulder injury and leave will be granted in respect of pain and suffering. Leave will not be granted in respect of loss of earning capacity;
(ii)Ms Bremner’s application seeking leave in respect of her neck injury is denied in respect of both pain and suffering and loss of earning capacity.
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