Caiolfa v Mercy Hospital for Women
[2019] VCC 1961
•4 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-02924
| MARIA CAIOLFA | Plaintiff |
| v | |
| MERCY HOSPITAL FOR WOMEN | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11-12 November 2019 | |
DATE OF JUDGMENT: | 4 December 2019 | |
CASE MAY BE CITED AS: | Caiolfa v Mercy Hospital for Women | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1961 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Whether the serious injury consequences were known by the plaintiff more than three years prior to making a serious injury application - cervical spine injury - Sections 135A and 135AC Accident Compensation Act
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Humphries & Anor v Poljak [1992] VR 129; AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144; Papercorp Pty Ltd v Nicolaou;Howden v Ansett Australia [2006] VSCA 143; Paget v JLT Workers Compensation Services Pty Ltd & Anor (2005) 12 VR 692; Edwards v McSaveney [2005] VSCA 252; Smith v Canberra Press Pty Ltd [2009] VSCA 200; Morris & Joan Rawlings Builders and Contractors v Rawlings (2010) 30 VR 444;
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S McCredie Ms C Willshire | Adviceline Injury Lawyers |
| For the Defendant | Mr N Griffin | Lander & Rogers |
HER HONOUR:
1 The plaintiff, Maria Caiolfa, had returned to work for the defendant on light duties 20 hours per week as a Ward Clerk in December 1992. She had previously suffered an injury to her lower back and neck in an incident at work with the same employer on 20 June 1990. At that time she was working as a nursing attendant. While sitting on a stool and holding a pump, she sneezed and suffered back pain in the lumbar spine (“the previous injury”).
2 She alleges that during the course of her employment as a Ward Clerk with the defendant between December 1992 and April 1994 (“the said period”) she suffered an injury to the cervical and thoracic spine as a result of her work duties, including repetitive lifting of a typewriter. In this application, she seeks leave to issue proceedings to recover damages in respect of that cervical spine injury. Her right to issue proceedings is governed by s135A and s135AC of the Accident Compensation Act1985 (“the Act”). The injury relied upon is an aggravation and acceleration of pre-existing symptomatic degenerative changes to the cervical spine which materially contributed to multi-level disc prolapses from C4-C6 (“the injury”).
Issues
3 The plaintiff concedes that the previous injury included very significant disc prolapses at L4/5 and L5/S1 and that these lumbar prolapses were the major source of pain, disability and impairment for her. The lumbar spine problems caused the need for medication, as well as some psychiatric consequences, and effectively destroyed the plaintiff’s income earning capacity.
4 The plaintiff also concedes that the previous injury involved some injury and pain to the neck, although she says that this neck pain was very much secondary to the disc injuries in the lumbar spine. She says that although she made complaints of neck pain from time to time after June 1990 and before December 1992, the neck pain was low-grade pain that was improving if not resolved.[1]
[1]See report of Mr Lugg at Defendant’s Court Book (‘DCB’), p 40.
5 The plaintiff says that after her return to work in December 1992 she was exposed to heavy lifting, particularly of a typewriter, until around September 1993. While her lower back remained the significant focus of medical treatment, there was clear evidence of some worsening of neck/arm symptoms resulting during this period.[2] The plaintiff relies on the history she gave to the Medical Panel in August 2007 that her neck pain worsened during her return to work program due to problems with her assigned work station and the need to lift and move a typewriter.[3] She also relies on the Medical Panel’s conclusion that during her return to work in late 1992 and thereafter she suffered injury by way of aggravation of cervical spondylosis with referred pain and that her employment was a significant contributing factor to that injury.
[2]See reports of Dr Edwards at DCB, pp 22-26; and report of Mr Freidin at DCB, p 75.
[3]DCB, p 303.
6 The plaintiff says that in the years after sustaining that injury, her cervical symptoms flared up and then settled down. She had a flare up in 2004 and a CT scan on 16 October 2004 which showed a C4/5 disc prolapse as the probable cause of increased pain in the neck and right arm.[4] She was referred to a neurosurgeon, Mr Bittar. An MRI scan dated 4 January 2005 revealed possible right C6 foraminal stenosis and possible nerve root compromise, but no surgery was recommended because her symptoms were resolving.[5]
[4]DCB, p 28.
[5]Plaintiff’s Court Book (‘PCB’), p 18.
7 The plaintiff concedes that in April 2012, Dr Edwards certified that due to low back and neck pain she was receiving WorkCover payments and needed regular home help. She also concedes that she reported neck pain consistently to her general practitioner between 2012 and 2015 but says that she made only one complaint of referred pain to her arms during this period (on 16 April 2013). Leaving aside the consequences of her previous injury (including the effects they had on her driving, cooking and performing other daily tasks), she says that up until 2015 the remaining consequences of her injury were the restriction in neck movement, intermittent flare ups of pain with referred pain, and pins and needles in the arms.
8 For these reasons, the plaintiff says that, as at 27 March 2015 (being three years prior to the date on which the plaintiff lodged her Serious Injury Application) the residual disentangled consequences resulting from the injury did not satisfy the narrative test for serious injury.
9 However, the plaintiff suffered new acute symptoms in May 2015 which included a very significant increase in symptoms, pain and disability associated with the cervical injury. The plaintiff underwent a two-level cervical fusion in August 2015, and developed consequential issues with swallowing, with oesophageal spasm, and a lowering of her voice. While the swallowing issues have now resolved, the plaintiff’s voice has not returned to normal. Her cervical symptoms were not fully resolved by the surgery. Instead, the three-level disc fusion has caused a degenerative progression and prolapse at another level of the cervical spine, C6-7, causing nerve root compression with symptoms of pain, radiation into both arms, with cramping sensations in the upper limbs and hands which are aggravated by physical activity and interfered with her sleep. The new pain and suffering consequences to which the plaintiff deposes include: daily pins and needles, headache (referred from the neck), needing to hold her neck up which in turn causes pressure in the arms and hands when lifted; problems with her voice; and limitations in her ability to dress, drive, travel abroad and play with her grandchildren.[6] The plaintiff acknowledges that there is an overlap in some consequences flowing from the prior injuries when compared with the current injury (particularly in relation to employment capacity), but says that the additional consequences relied upon meet the narrative test for serious injury.
[6]Mr Grossbard, orthopaedic surgeon, opined in his report of 5 September 2019 (PCB, p 95) that due to her neck injury alone she would be unable to return to her pre-injury employment. However, the plaintiff concedes that she has not been able to return to any employment since 1994 due to her lumbar spine injury.
10 The defendant says that the plaintiff became incapacitated for employment in April 1994 due to the injuries to her lumbar and cervical spines and has received weekly payments of compensation in respect of her total incapacity. The defendant says that she would have satisfied the definition of “serious injury” at that time.
11 Even accepting the plaintiff’s evidence to the effect that her neck condition has always been overshadowed by, if not caused by, her back condition, the defendant says that in 2007, the plaintiff had a determination from the Medical Panel that she was incapacitated by both her cervical and lumbar spine injuries. The plaintiff knew that she had been suffering from both conditions. She was being advised by solicitors. She had, by 2007, been incapacitated for 13 years, and knew of the employment and pain and suffering consequences flowing from her lumbar and cervical spine injuries. She could have made an application for a serious injury certificate in relation to the injuries to her spine at any time since 2007.
12 The defendant concedes that there was a worsening in the plaintiff’s cervical spine symptoms in late 2014 resulting in the need for surgery, but says that the narrative test for serious injury in respect of the cervical spine had been met many years previously. For this reason, the defendant says that the plaintiff has not discharged her onus of proof.
Legal principles
13 Section 135A of the Act provides that a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of employment if the injury is a “serious injury”. The term “serious injury” is defined in s135A(19), relevantly, as “serious long-term impairment or loss of a body function”.
14 Under s135AC(b) of the Act, where the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, s135AC(b) of the Act provides that the plaintiff cannot issue proceedings under s135A unless an application for a serious injury certificate had been made to the Authority “before the expiration of 3 years after the date the incapacity became known”.
15 The plaintiff made her application to the Authority under s135AC of the Act on 27 March 2018. That application was rejected. The plaintiff is barred from issuing common law proceedings unless she establishes that her application was made within three years of the date that the serious injury incapacity became known to her.
16 In determining whether the plaintiff has satisfied the criteria set out in s135AC of the Act, the Court must follow a two-step process.[7]
[7]Humphries & Anor v Poljak [1992] VR 129 (‘Humphries v Poljak’); AEP Industries Australia Pty Ltd v Mahmoud (2007) 17 VR 144; Papercorp Pty Ltd v Nicolaou;Howden v Ansett Australia [2006] VSCA 143 (‘Papercorp’).
17 First, the judge must determine the plaintiff’s actual knowledge (that is, her justified true belief)[8] as at 27 March 2015, of the extent and probable duration of her incapacity arising from the compensable injury. That is a question of pure fact.[9] While evidence of complaints of injury and symptoms to doctors is relevant to ascertaining what the plaintiff’s knowledge was at a particular time,[10] opinions expressed in a doctor’s notes which are based on those complaints may not equate to the plaintiff’s knowledge that she was suffering from serious injury.[11]
[8]Paget v JLT Workers Compensation Services Pty Ltd & Anor (2005) 12 VR 692 (‘Paget’).
[9]Ibid.
[10]Papercorp.
[11]Edwards v McSaveney [2005] VSCA 252.
18 Second, the judge must determine whether, in the judge’s opinion – and this is a matter of fact and degree and value judgment for the judge – those known facts, viewed objectively, constitute knowledge of serious injury incapacity as set out in Humphries v Poljak. The fact that the plaintiff did not subjectively appreciate that her injury was a “serious injury” or know that she had a cause of action arising from her injuries, is not relevant.[12] Rather, serious injury incapacity “becomes known when events demonstrate that the victim of injury is…suffering from a serious long term impairment or loss of body function”.[13]
[12]Smith v Canberra Press Pty Ltd [2009] VSCA 200, [11]; Morris & Joan Rawlings Builders and Contractors v Rawlings (2010) 30 VR 444, [36].
[13]Paget, [30].
The hearing
19 The plaintiff gave evidence. There were no other witnesses. The parties tendered their court books. I have considered all of the evidence as well as the written and oral submissions of counsel.
Plaintiff’s evidence
20 In her first affidavit,[14] the plaintiff stated that after suffering a lower back injury at work in 1990, she made a WorkCover claim and received weekly payments until April 2019. She continues to receive medical and like expenses in respect of that injury. She stated that she had some neck pain in 2004 and 2005, but thought it related to her back injury, and medical attention focused on her back.
[14]PCB, p 8.
21 She had an MRI scan on 4 January 2005 which showed “disc desiccation at C5-6 with posterior osteophytic liping and moderate narrowing of the right neural exit foramina. This may [have been]…compromising the exiting right C6 nerve root.”[15]
[15]PCB, p 18.
22 She did not realise that her neck condition was a distinct condition until it worsened and she saw a surgeon in 2015.
23 She stated that she understood the Medical Panel determination in 2007 to be to the effect that her neck condition was part of her back injury.
24 She stated that her neck symptomatology changed in 2015, when she developed increasing neck pain as well as acute problems with her hands and fingers.
25 A CT scan performed on 6 May 2015 showed moderate to severe degenerative changes centred at C4/5 and C5/6 levels with severe impingement on the exiting C6 nerve root and moderate impingement of the right C5 and C7 nerve root as well as the left C5 nerve root.[16]
[16]PCB, p 40.
26 On 15 May 2015, the plaintiff had a CT guided left C5 nerve root injection of corticosteroid.[17] One week later, she saw a rheumatologist, Dr Andrew Foote, for her cervical symptoms. Dr Foote ordered an MRI scan which was taken on 10 June 2015, and revealed “right C6 and left C7 radicular compression of marked grade. Milder changes [were] seen at C5 on the right”.[18]
[17]PCB, p 19.
[18]PCB, p 20.
27 The plaintiff was then referred to a neurosurgeon, Dr Tanya Yuen, whom she saw on 12 June 2015. Dr Yuen recommended surgery. On 10 August 2015, the plaintiff underwent a three-level (C4-C6) anterior cervical discectomy and fusion.
28 After the surgery, the plaintiff stated that her symptoms “somewhat improved”. However, she had problems with swallowing, which resolved over time. She also found that her voice deepened and that, in spite of voice lessons, it has not returned to its normal tone.[19] She continued to suffer ongoing symptoms, including: daily neck pain which fluctuates in intensity; dull ache in both arms; heaviness in both arms; restrictions in neck movement; increased neck pain when lifting her arms or on prolonged standing; and interference with sleep.
[19]PCB, p 11, [25].
29 She has had two cortisone injections to the neck since the surgery.
30 As at 7 November 2019, the plaintiff stated in her second affidavit[20] that she suffers “constant pain” in her neck, which is sometimes “unbearable”. At these times, she uses heat packs or neck support and rests. She gets daily numbness and pins and needles in the last three fingers of both hands. Her voice is still deeper than it was, and this disturbs her. Due to her cervical spine symptoms, she cannot cut vegetables or hang out washing. Her sleep is disturbed as she finds it hard to get comfortable. She gets weekly headaches due to her neck pain. She adjusts her arms when driving but can only drive for about 30 minutes. She needs help dressing. She finds it difficult to play with her young grandchildren. She sometimes uses her hands to help hold up her head due to neck pain. She finds it hard to lift her arms and suffers an increase in pain if she performs overhead arm movements.
[20]PCB, p 13.
31 In cross-examination, the plaintiff agreed that after late 1992 she was having neck and back pain and that those pains interfered with her ability to work.[21] She said she was told by doctors that her neck problems were secondary to her lumbar spine problems. She continued to have neck pain on and off for years. After her back surgery in 1995 and 1996, she continued to have back symptoms and she believed that nothing could be done for her neck. She agreed that she has had sleep problems since 1994;[22] that she has been taking strong painkillers since the 1990s and continues to take the same medications.[23] She agreed that she needed home help after her back surgeries; that she could not drive more than 30 minutes;[24] could not shop; and had trouble with her daily activities of living. She agreed that she had investigations in relation to her cervical spine symptoms in early 2005.
[21]T36.29.
[22]T48.30.
[23]T49.10.
[24]T50.20.
32 She agreed that at the time of the Medical Panel assessment in 2007 she was being advised by solicitors.[25]
[25]T45.21.
33 She insisted that she never realised how serious her cervical spine condition was until it got really bad in 2015.
Medical Panel Certificate of Opinion dated 14 September 2007
34 The Medical Panel (“the Panel”) determined that the plaintiff’s condition was that of work-related “aggravation of cervical spondylosis with referred pain, but without clinical evidence of radiculopathy; anti-inflammatory drug induced gastroesophageal reflux disease; irritable bowel syndrome; and an Adjustment Disorder with Depressed Mood, relevant to the claimed injury to the neck/thoracic”.[26] The Panel concluded that the plaintiff had a 41% whole person impairment in relation to these conditions.
[26]PCB, p 102.
35 In its Reasons for Opinion of the same date, the Panel noted a history from the plaintiff in relation to her back, neck, gastric and psychological symptoms. In relation to the back, the Panel concluded that she was “suffering from aggravation of lumbar disc degeneration surgically treated with referred pain but without clinical evidence of radiculopathy relevant to the accepted back injury”[27] and assessed a 12% whole person impairment attributable to the back.
[27]PCB, p 106.
36 In relation to the neck symptoms, the plaintiff gave a history to the Panel which may be briefly summarised as follows.[28] She had neck pain in 1985 with some right hand numbness but no treatment or time off work. She noticed the onset and increase of neck pain a few days after the incident in June 1990. In late 1992[29] her neck pain became worse and by September 1993 the return to work program was ceased as she was unable to perform administrative tasks which required her to lift and move a typewriter. Her duties aggravated her neck pain and by then it was radiating into her shoulders and the numbness in her left hand was worsening. She had back surgery in 1995 and a second laminectomy in 1996, without further improvement.
[28]See PCB, pp 104-105.
[29]In the second and fourth paragraphs on page 105 of the PCB, the Panel erroneously referred to a return to work in office duties in late 1991 when it was in fact in late 1992. The Panel also mistakenly referred to the worsening of pain in late 1991 and the cessation of the return to work program in September 1992 when it was in fact ceased in September 1993.
37 As at 2007, she complained to the Panel of constant low back pain aggravated by standing or sitting; pain in both legs and intermittent numbness below both knees; constant pain in the neck with interscapular pain and pain in the right arm with intermittent nocturnal numbness in both hands. She could not sleep on her back because of the continued pains in her neck and back. She had physiotherapy for the neck and back until October 2005.
38 When the Panel examined the plaintiff, it noted mild restrictions of motion in the cervical spine with widespread tenderness but neurological examination was normal. The Panel considered that the plaintiff’s employment was a significant contributing factor to the aggravation of a pre-existing injury to the neck. The Panel concluded that the plaintiff had a 7% whole person impairment for abnormal motion of the cervical spine.
Medical Evidence
39 Dr James Rowe, Occupational and Environmental Physician, reported on 15 November 1990 that he saw the plaintiff in relation to her complaints of back pain.[30] His report does not mention any complaint of neck pain associated with the June 1990 incident.
[30]DCB, p 86.
40 On 20 February 1991, Mr N. Shanmugam, surgeon, reported receiving a detailed history on relation to the back pain she suffered at work in June 1990.[31] He did not mention any complaint of neck pain or upper limb problems. He noted that examination of the cervical spine was normal.
[31]DCB, p 89.
41 On 18 October 1991, Mr Shanmugam reported[32] receiving complaints of continued persistent pains in the lumbar spine with referred pain, and a complaint of pain in the neck and middle part of her back which were “able to be tolerated”. Examination of the cervical spine was normal.
[32]DCB, p 94.
42 On 6 May 1992, Mr Shanmugam reported[33] that the plaintiff had returned to work on clerical duties 16 hours per week since February 1992. She complained on ongoing and persistent pain in the lumbar spine. He did not note any complaint of neck pain.
[33]DCB, p 98.
43 The plaintiff’s treating general practitioner between 1992 and 2005, Dr Andrew Edwards, provided a number of reports.[34] He noted that the plaintiff suffered an episode of severe back pain in June 1990, and by mid-1992 had seen orthopaedic surgeons Mr Peter Lugg and Mr Paul Burns.
[34]PCB, pp 25-36.
44 Mr Lugg reported on 23 July 1992[35] seeing the plaintiff for her for back pain but noted that, in association with her back pain and a Bell’s palsy, she developed some neck pain. He felt there was “some relation between the neck pain” and her earlier back pain and Bell’s Palsy, and referred her to Dr Mackey for chronic pain control for her lumbar spine symptoms. He further reported on 16 December 1992[36] that in 1990 the plaintiff had neck pain with pins and needles in the left hand. When examined in 1992 she had a reasonable range of movement in the cervical and lumbar spines and no neurological signs. The neck pain continued but the other symptoms abated. When he saw her in November 1992, her neck was improving and so he did not think it necessary to explore more treatment for it. He felt that there was a permanent impairment of the lumbar spine.
[35]DCB, p 39.
[36]DCB, p 40.
45 On 2 October 1992, Mr Shanmugam reported[37] that the plaintiff had ceased work two weeks earlier when the employer could no longer provide her with the office and clerical duties she had been doing. She complained of low back pain, thoracic pain, and pain and stiffness in the neck. Examination of the upper limbs was normal. He felt that the recurrent symptoms in her neck and thoracic spine were “probably not work related” but could be related to the motor vehicle accident she had 1989. He considered that her lumbar spine condition was work-related.
[37]DCB, p 100.
46 On 13 January 1994, Mr Malcolm Menelaus, orthopaedic surgeon, reported[38] taking a complaint of low and central back pain with radiation to the buttocks and legs, a stiff neck, and trouble lifting her right arm above the head. He recommended reassessment of her lumbar spine prognosis after a further six months. On 3 October 1994, Mr Menelaus reported[39] that the plaintiff told him she was unchanged overall but that the neck symptoms, which came on at the same time as her back symptoms, had worsened. He opined that the neck injury was “presumable (sic.) due to ligamentous damage to the neck incurred at the time of the lower back injury” or that “it may even be that there has been intra-disc damage in the neck”.[40] He regarded the plaintiff as having a 40% impairment of lumbar spine function and a 20% impairment of cervical spine function, which could not yet be regarded as permanent.
[38]DCB, p 120.
[39]DCB, p 125.
[40]DCB, p 127.
47 As at 26 September 1994, Mr J Freidin, Associate Professor of Surgery, reported[41] that the plaintiff continued to have pain in her neck and between the two shoulder blades with a feeling of stiffness. She had had multiple nerve blocks for the lumbar spine and epidural injections but without relief. On examination, she had significant restriction of range of movement in extension, rotation and tilting. He considered that the neck pain suffered in 1990 was a “muscular injury consistent with the restricted movements of her back and the need to put more strain on her upper paraspinal and neck muscles”.[42] He felt that her neck and shoulder disabilities were directly related to her back injury.
[41]DCB, p 75.
[42]DCB, p 83.
48 Dr Edwards noted[43] that in spite of an L5/1 laminectomy in 1995, and pain management, the plaintiff did not fully recover. The documents relating to the pain management program[44] noted at the end of the program she reported discomfort in the cervical, lower thoracic and shoulder region but moderate to severe low back pain with left buttock and leg pain.
[43]PCB, p 25.
[44]DCB, pp 43-54.
49 On 2 October 2001, Mr John O’Brien, surgeon, reported[45] obtaining a history of immediate onset of severe back pain at work in mid-1990 when sneezing. She also had neck pain since the onset of back pain, with some pins and needles in both hands. The back pain and leg pain worsened over time and she had surgery. When seen by Mr O’Brien, she complained of severe back and bilateral leg pain. He found no objective signs in the legs. He diagnosed a chronic pain syndrome. He concluded that she had an 8% impairment of the cervical spine and the balance of the 22% whole person impairment was attributed to the lumbar spine and disc residuals.
[45]DCB, p 223
50 By 2002, Dr Edwards felt that the plaintiff had a chronic pain syndrome that was unlikely to improve.[46] She was taking morphine daily and was permanently unfit for all work due to her reduced sitting and standing tolerances as well as her medication regime. She also suffered from depression but ceased all antidepressant medication in late 1999.
[46]PCB, p 25.
51 Dr Edwards reported[47] that in October 2004 the plaintiff developed pain in her neck and right arm.[48] He stated that “as her symptoms were resolving no action was deemed necessary”.[49] She was also referred to Dr Clayton Thomas, who advised continuation of her opiate analgesia.
[47]PCB, p 32.
[48]She sought physiotherapy treatment from Margaret Hillis in May 2005 and complained to her of bilateral neck ache, severe pain radiating down both arms, and severe central thoracic pain. Ms Hillis considered it likely that the longstanding lumbar disc problems had caused “premature ageing of her thoracic and cervical spine” and was responsible for the pains developing in those areas of the spine. See DCB, p 74.
[49]PCB, p 30.
52 On 17 October 2005,[50] Dr Malcolm Brown, Occupational Physician, took a history of back and leg pain after mid-1990, lumbar spine surgery in 2005, and physiotherapy, nerve blocks, hydrotherapy and cortisone injections. Although some of the treatments helped for a few months, her symptoms always recurred. She complained of constant groin and buttock pain, some numbness in the right foot, as well as central lower back pain, and neck and arm pain. She was wearing a back brace intermittently. He felt that the most likely initial source of her lumbar symptoms was disc degeneration but that the loss of trunk muscle tone was a major contributor to her current symptoms. He recommended functional restoration with a physiotherapist.
[50]DCB, p 247.
53 As at 9 July 2005, Dr Edwards noted a deterioration in her lumbar and cervical spine symptoms “after many years of relatively stable symptoms.”[51] He was unsure of the reason for the deterioration but considered that the neck and lumbar spine problems continued to be related to the 1990 work incident. He considered that she was permanently incapacitated for all employment. He concluded that she would continue to be managed conservatively, taking MS Contin, Efexor, Somac, Tegretol and Panadeine Forte.
[51]PCB, p 30.
54 On 2 November 2005,[52] Dr Edwards confirmed that the plaintiff had a chronic neck and lumbar spine condition and supported the ongoing funding of hot packs for her.
[52]DCB, p 30.
55 On 23 November 2005,[53] Dr Edwards confirmed that the plaintiff remained unable to perform any regular job, even if only for a few hours per day. He confirmed that her lumbar and cervical disc problems had worsened over time and continued to be related to her employment.
[53]PCB, p 33.
56 On 22 August 2007, Dr David Barton, occupational physician, reported[54] obtaining a history of onset of back pain in mid-1990, then after surgery in 2005, “she continued to have difficulties with both her back and her neck”.[55] At the time he saw her, she complained of constant and severe lower back pain, extending down the buttocks and into both legs. She also described generalised neck pain with pins and needles in both arms and hands. On examination of the cervical spine, he noted some “moderate and generalised tenderness…some limitation of all neck movements”.[56] He concluded that the plaintiff had developed a chronic pain problem.
[54]DCB, p 260.
[55]DCB, p 261.
[56]DCB, p 262.
57 On 14 September 2009, Dr Edwards confirmed[57] ongoing low back pain and neck pain, for which the plaintiff was receiving regular WorkCover certificates, and sought funding for ongoing home help for two and a half hours per week. This request was repeated on 3 May 2011 and on 10 April 2012.[58]
[57]DCB, p 32
[58]DCB, pp 35 and 38.
58 On 28 January 2010, Dr Barton reported[59] that the plaintiff complained of the same back, neck and arm symptoms as when he saw her in 2007. He noted that in 2007 he felt that she had a long history of back and neck conditions which “were complicated by a strong illness belief”. He repeated this conclusion in the light of the fact that she had since had two back operations “and yet reports escalating symptoms”.[60] He concurred with the findings of the Medical Panel in 2007.
[59]DCB, p 266.
[60]DCB, p 268.
59 On 6 January 2011, Ms Anjelka Obradovic, occupational therapist, noted[61] receiving a report from the plaintiff of chronic neck and back pain and some right arm pain. She was unable to perform duties above shoulder height. She was unable to perform tasks with her non-dominant left arm.
[61]DCB, p 33.
60 On 26 August 2011, Dr Edwards certified that the plaintiff’s lumbar and cervical spine conditions were stable and being managed with medication.[62]
[62]DCB, p 37.
61 On 20 November 2014, Dr David Ho, general practitioner, reported[63] in relation to the plaintiff’s ongoing weekly payments and other services. He noted that the plaintiff was upset when asked to recall the history of her injury and said she could not remember. She said that in spite of two back surgeries and ongoing physiotherapy for her neck and back, she said that there had been no progress, and that it was “now a mental issue”.[64] She complained of severe pain in her lower back and of soreness in her neck and into her arms. He discontinued the cervical spine examination when she became distressed. He diagnosed an aggravation of cervical spondylosis that was ongoing “despite the fact that she had not been in employment for some years”.[65] He concluded that her back and neck conditions remained related to her compensable condition. He felt that she was permanently incapacitated for any employment.
[63]DCB, p 270.
[64]DCB, p 272.
[65]DCB, p 276.
62 On 24 December 2014, Associate Professor Peter Doherty, psychiatrist, reported[66] that the plaintiff complained of pain in the middle of her lower back, and of neck pain.
[66]DCB, p 280.
63 On 5 May 2015, the plaintiff saw her then general practitioner, Dr Eugenia Pastras, complaining of pain the left shoulder, elbow and neck; shooting pain down the arm; inflammation, pain and swelling in the left wrist and hand.[67] A week later she complained to Dr Pastras of ongoing severe left arm and shoulder pain with numbness in some of her fingers and some right arm pain.[68] The pain was so severe she was vomiting. She had a steroid injection which helped her pain.
[67]PCB, p 127.
[68]PCB, p 129.
64 Dr Pastras referred her to neurosurgeon Ms Tania Yuen. The plaintiff saw Ms Yuen on 2 June 2015.[69] On 10 August 2015, Ms Yuen performed a C4 to C6 anterior cervical discectomy and fusion, and noted that when surgery concluded vertebral alignment was normal.[70]
[69]PCB, p 129.
[70]PCB, p 62.
65 Dr Andrew Foote, rheumatologist, reported[71] on 22 May 2015 that the plaintiff had worsening left sided neck pain over the previous weeks with symptoms in the hands. She had not received much benefit from a C5 nerve root sheath injection.
[71]PCB, p 43.
66 On 3 March 2016, Mr Patrick Lo, neurosurgeon, reported[72] that the plaintiff was a very poor historian. The plaintiff did not recall any neck pain in June 1990, and it “was unclear as to the timing of the onset of her neck pain”, but sometime in 1991 she began complaining of neck pain. She had laminectomies in 1995 and 1996 “without any improvement”.[73] For the next 20 years she funded a range of treatments. She had investigations between 2005 and 2015 owing to persistent and increasing neck and arm symptoms and eventually had cervical spinal surgery in around August 2015. After the surgery, the arm pain improved but her neck pain continued. He felt that she was suffering from a chronic pain syndrome as well as limited mobility. He felt that the cervical spine condition was that of “a degenerative disorder secondary to a previous lumbar injury”, suggesting it represented “a degenerative sequelae of a spinal problem existing at another site”.[74] He felt that she had no current capacity for suitable employment and that he would recommend only part-time employment with office-based duties. He felt that the lumbar spine condition had stabilised.
[72]DCB, p 290.
[73]DCB, p 292.
[74]DCB, p 293.
67 In April 2016, the plaintiff was referred by her general practitioner, Dr Pastras, to a speech pathologist,[75] Ms Chantelle Hutchinson, who opined that the plaintiff’s hoarse voice and inability to significantly change pitch or volume was likely neurological in nature.
[75]PCB, p 52.
68 On 21 July 2016, Mr Lo reported[76] his opinion that the plaintiff’s clinical condition stemmed from the injury sustained in 1990. The initial impact was one of the lumber spine with subsequent degenerative changes in the cervical spine both leading to neural compression. He felt that employment remained a contributing factor to the development of her spinal issues and that “had she not suffered the back injury, she would not have resulted in her current state”.[77] He felt that the plaintiff’s cervical condition had stabilised and that she was permanently incapacitated for all employment. He noted her complaint of ongoing neck pain in spite of surgery.
[76]DCB, p 298.
[77]DCB, p 299.
69 Dr David Middleton, occupational consultant, reported on 27 April 2018[78] taking a history from the plaintiff of neck pain in 1990 which tended to come and go but that her main problem was her lumbar spine. She told him that she always thought her neck pain related to her back injury and that the latter was the main pain. Her neck symptoms remained secondary until 2015 when she deteriorated to the point that she required cervical spine surgery.
[78]PCB, p 56.
70 Dr Middleton summarised a large number of medical reports. He opined that the use of opiates for the lower back probably masked the cervical spine symptoms, which became obvious in 1995 after the lumbar spine surgery. He considered that the neck and back injuries were related to her ward clerk duties and that by 1994 she was severely incapacitated. As at 2018, he noted that in spite of cervical spine surgery, the plaintiff’s prognosis remained poor given her significant medication requirements. He considered that she would permanently be restricted to sedentary non-manual duties to be performed in a self-paced manner but that any return to work, given her 23 years out of the work force, would have to be graduated and monitored by her treating doctors.
71 Mr Paul D’Urso, neurosurgeon, reported on 25 June 2018[79] obtaining a history of neck pain since 1985, worsening in 1990 and noted that a cervical disc prolapse was diagnosed in 1991, that the employment activities[80] “aggravated and possibly accelerated her degenerative condition of the cervical spine”.[81] He noted that in spite of the cervical fusion surgery, there was persisting foraminal stenosis for the right C6 nerve root and only partial fusion at the C4-5 level. Since the surgery, further MRI scan revealed “degenerative progression at the C6-7 level, causing increasing nerve root compression for the exiting C7 nerve roots bilaterally, as a result of the biomechanical stress at the fused levels above”.[82]
[79]PCB, p 90.
[80]After 1985.
[81]PCB, p 93.
[82]Ibid.
72 Mr D’Urso concluded that since the plaintiff had complained of neck pain as early as 1991, she was aware of her neck condition prior to 2015. He concluded that work activities performed between 1985 and 1994 may have precipitated her cervical spine symptoms.
73 Mr Garry Grossbard, orthopaedic surgeon, reported[83] on 5 September 2019 that the plaintiff was taking an antidepressant, Lexapro, for her depression, was seeing her psychiatrist each fortnight and her general practitioner monthly. She described needing heat packs on her whole spine daily. She told him she has constant “knifelike”[84] pain at the base of the neck, which increases when she stands, walks or lifts her arms. She also complained of a dull ache in both arms, and occasional numbness in the last three digits of each hand. She could only walk 150 metres before being stopped by her back and neck pain.
[83]PCB, p 95.
[84]PCB, p 97.
74 Mr Grossbard concluded that work undertaken for the employer caused an aggravation of pre-existing cervical spine degenerative disease. He noted the cervical surgery undertaken, and felt that the plaintiff does not require further surgical treatment for her neck condition, but may require ongoing local treatment and analgesia. He considered that her neck injury alone would prevent her from returning to her pre-injury employment.
Findings and reasons
75 I found the plaintiff to be a straightforward witness. Given the extensive period over which she has suffered a variety of symptoms, I accept that she has a limited memory of specific events or symptoms complained of many years ago. However, her credit was not challenged. Rather, in cross-examination, she repeated what she had asserted in her affidavits, namely, that although she had neck symptoms on and off after June 1990, she believed that they were associated with, or caused by, her back problems. She understood this to be the conclusion of the Medical Panel assessment in 2007. Consistently with this belief, when back surgery failed to relieve her lumbar spine symptoms, she felt that nothing could be done in relation to her cervical spine. She did not realise that her neck condition was a distinct condition until her neck symptomatology both worsened and changed in May 2015 and she saw a surgeon in June 2015. In spite of surgery in August 2015, the permanent pain and suffering sequelae of her cervical spine injury are those set out at paragraphs 28-30 above.
76 I accept the plaintiff’s evidence in this regard and am satisfied that it was only after 27 March 2015, and in particular after the cervical disc surgery which left her with residual pain and restrictions, that the plaintiff knew that she was suffering from a serious long-term impairment or loss of a body function of the cervical spine.
77 I turn to the second limb of the test referred to at paragraph 18 above. I have examined the medical material canvassed above at paragraphs 39-74. I accept that the plaintiff was off work permanently from 1994 in relation to her lumbar spine injury and that some of the WorkCover claims or supporting materials around that time referred to neck pain as well as lumbar spine pain. I also accept that the Medical Panel assessed her in 2007 as having a 7% whole person impairment of the cervical spine. However, these matters do no more than establish that the plaintiff suffered neck pain at those times. That much is admitted by her. Those matters do not establish that, as at 1994 or 2007, the plaintiff met the narrative test for serious injury, in respect of the cervical spine symptoms, taken alone. To the contrary, I consider that they fortify the conclusion I have reached upon examination of the medical material. My conclusion is that although the plaintiff complained of neck pain to Dr Pastras on 12 January 2015,[85] it was only on 5 May 2015 that she presented to Dr Pastras with a range of neurological symptoms related to her neck and thereafter continued to complain of those symptoms regularly until she was seen by Ms Yuen and had cervical spine surgery. By 13 October 2015, she reported to Dr Pastras that she continued to suffer from neck pain but that there was no referred pain to the arms. Her ongoing symptoms and restrictions are outlined above.
[85]PCB, p 37.
78 The 2018 neurosurgical report of Mr Paul D’Urso confirmed that in spite of the cervical fusion surgery, the plaintiff had persisting foraminal stenosis for the right C6 nerve and only partial fusion at the C4-5 level, and a further MRI scan revealed degenerative progression at the C6-7 level, causing nerve root compression of the exiting C7 nerve roots bilaterally. The long-term sequelae of those symptoms have been referred to above. I consider on the medical evidence that, viewed objectively, the plaintiff’s knowledge of facts constituting a serious injury incapacity arising from the injury to the cervical spine, arose only sometime after she had cervical spine surgery in August 2015.
Conclusion
79 I am satisfied on the balance of probabilities that the plaintiff did not know of her serious injury incapacity until after 27 March 2015. It follows that leave is granted to the plaintiff pursuant to s.135AC(b) and 135A(4)(b) of the Act to commence common law proceedings for the recovery of damages for pain and suffering against the defendant in respect of the injury to the cervical spine sustained during the course of employment with the defendant between 1992 and 1994.
80 I reserve the question of costs.
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