Charters v Victorian WorkCover Authority
[2017] VCC 1583
•16 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02727
| REBECCA ELIZABETH CHARTERS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 October 2017 | |
DATE OF JUDGMENT: | 16 November 2017 | |
CASE MAY BE CITED AS: | Charters v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1583 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to left foot – injury to lower back – cauda equina - causation
Legislation Cited: Accident Compensation Act 1985
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr D Seeman | Ryan Carlisle Thomas |
| For the Defendant | Mr D Masel SC with Ms F Spencer | IDP Lawyers Pty Ltd |
HIS HONOUR:
Preliminary
1 Ms Charters is a 36 year old woman who was injured during the course of her employment at the defendant’s abattoir on 16 December 2008. Ms Charters claims that whilst stacking boxes of meat onto a pallet, a forklift driver lowered a heavy pallet onto her left foot, causing her to suffer injury to her left foot and lower back, as well as consequential psychiatric upset (“the forklift incident”).
2 In July 2010, Ms Charters subsequently developed cauda equina syndrome symptoms, for which she required emergency surgery to her lower back. Ms Charters claims that the consequences of her spinal impairment satisfy paragraph (a) of the definition of serious injury contained in s134AB(38) of the Accident Compensation Act 1985 (“the Act”).
3 The defendant accepts that Ms Charters suffered an injury to her left foot in the forklift incident, but disputes that she suffered a lower back injury. The defendant conceded that, in the event I was satisfied that Ms Charters suffered a lower back injury in the forklift incident, then the consequences arising from the impairment of her spinal injury satisfy the definition of serious injury, both in respect to pain and suffering consequences and loss of earning capacity consequences.
4 In the alternative, Ms Charters also claims that the forklift incident caused her to suffer a psychiatric disease or disorder, the consequences of which satisfy paragraph (c) of the definition of serious injury contained within the Act. Ms Charters conceded that she could only succeed in her claim for psychiatric injury, if I was satisfied that her back injury arose as a consequence of the forklift accident.
5 Only Ms Charters was called to give evidence and she was cross-examined. The cross-examination focused predominantly on her medical attendances from the time of the forklift incident until December 2009, which was the first time her general practitioner had recorded a symptom which could be attributable to a lower back injury. Also in evidence were medical reports, clinical records and other material. I have read these tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
6 For the reasons which follow, I am not satisfied that Ms Charters’ lower back injury was caused by the forklift incident and her applications under both paragraph (a) and paragraph (c) must therefore be dismissed.
Relevant background
7 In approximately 2006, Ms Charters commenced employment with the defendant, prior to which she said that she had been in good health.
8 Having read her medical records, it is apparent that Ms Charters consulted her general practitioner from time to time in relation to matters concerning weight gain and gynaecological problems.
9 On 4 May 2000, Ms Charters underwent a CT scan of her lumbar spine which was reported as normal. Ms Charters said that she cannot recall undergoing this scan and that she cannot therefore recall why it was taken.
The forklift accident
10 Ms Charters said that she suffered her injury when a pallet was lowered onto her foot. She told numerous doctors that she estimated the weight of the pallet to be approximately 500 kilograms. Ms Charters said that she fell forward as a result of the pallet hitting her left foot, and that, when she then tried to go backwards to pull her foot out, she fell again. She said that she felt immediate pain in her foot when the pallet was lifted. Ms Charters said that she then went and did some work in the office for about an hour, before leaving her shift early.
11 The following day, Ms Charters attended the Station Street Clinic in Pakenham, where she consulted general practitioner, Dr Malcolm McCowan. Dr McCowan obtained a history from Ms Charters that a pallet had fallen on her left foot at work the previous day, such that her foot was now swollen and tender. He prescribed Panadeine Forte, provided Ms Charters with a WorkCover certificate and arranged for an x‑ray to be taken of her left foot.
12 In her first affidavit, Ms Charters said that by the time of her first medical attendance, she had pain in her left calf, and right calf and foot.
13 On 22 December 2008, Ms Charters returned to see Dr McCowan. His note recorded, “Right foot slowly improving.” In cross-examination, it was suggested to Ms Charters that the reference to her right foot was a typographical error, and that Dr McCowan was in fact referring to her left foot. Ms Charters initially said that, by that time, both of her feet were hurting. Later in cross-examination, however, Ms Charters appeared to accept that she had only spoken to Dr McCowan about her left foot on that day. She denied that she would have told Dr McCowan that her left foot had been improving at that time.
14 On 31 December 2008, Ms Charters consulted general practitioner, Dr Frank Demaio, at the Station Street Clinic. Dr Demaio obtained a history from Ms Charters that she worked at an abattoir, where a 500 kilogram pallet of meat had dropped on her left foot. He noted that she had numbness in “lateral two toes”, and that she was on her feet all day.
15 On 8 January 2009, Ms Charters consulted Dr Demaio, who recorded that she was “still in pain ++” and referred her for physiotherapy. Dr Demaio noted that Ms Charters had gone to work four days previously and had been sitting down, but that she had been made to clean the lunch room the previous day, which had resulted in increased pain and throbbing.
16 On 15 January 2009, Ms Charters again consulted Dr Demaio, who noted that she had been given duties which involved standing up and walking up stairs, and that, on one particular occasion, she had been made to walk for two hours to take photographs. He also recorded that Ms Charters felt she was being bullied at work.
17 On 16 January 2009, Ms Charters consulted physiotherapist, Mr David Francis. In his report dated 27 April 2010, Mr Francis noted that Ms Charters was referred to him following an incident in which a pallet of meat had dropped onto her left foot. At the time of her referral, Mr Francis noted that aggravating factors included weight bearing with swelling occurring within one hour, and when wearing shoes. Mr Francis noted that Ms Charters complained of significant pain that was moderated by the level of weight bearing activities she undertook each day, as well as waking in the morning with cramping. On physical examination, Mr Francis referred to tenderness on the left foot. He treated Ms Charters with soft tissue work, joint mobilisation, padding and electrotherapy.
18 On 19 January 2009, Ms Charters again consulted Mr Francis, who noted that she was still complaining of significant soreness, localised to the third and fourth toes.
19 On 22 January 2009, Ms Charters consulted Dr Demaio. His notes refer to Ms Charters complaining of weight gain and gynaecological matters. On this occasion, Dr Demaio referred Ms Charters for a CT scan of her left foot.
20 On 27 January 2009, a CT scan was taken of her left foot. The clinical note recorded that Ms Charters had a four week history of left foot pain, following a pallet having fallen onto her foot. The CT scan did not demonstrate any evidence of a healing fracture line or any abnormality.
21 On 29 January 2009, Ms Charters consulted Dr Demaio, who noted that the tests did not demonstrate any abnormalities. He recommended that she should try walking properly. On this occasion, Dr Demaio also referred Ms Charters for a pelvic ultrasound. Ms Charters could not recall why she had been sent for this ultrasound, but said that she had undergone ultrasounds for gynaecological purposes in the past.
22 On 30 January 2009, Ms Charters consulted Mr Francis for the last time. He noted that the CT scan of her left foot was reported as clear. He recorded that Ms Charters had felt “a bit better” and that she was planning to return to work the following week.
23 On 5 February 2009, Ms Charters consulted Dr Demaio. He noted that she was still on WorkCover, that she was walking normally but that she was “still in pain ++” and that such pain fluctuated. Dr Demaio recommended that Ms Charters consult rheumatologist, Dr Feletar, in the event that her pain did not improve.
24 On 12 February 2009, Ms Charters consulted Dr Demaio, who noted that she was “struggling at work, but coping”, that there was “no improvement at all” and that it was “more painful at night”.
25 On 26 February 2009, Ms Charters consulted Dr Demaio, who noted that she was “fluctuating, overall improving, able to wear boo (sic) for a couple of hours at home now.” When asked about this attendance in cross-examination, Ms Charters replied “I don’t recall that far back”.
26 On 12 March 2009, Ms Charters consulted Dr Demaio, who noted that she was “able to wear shoes now” and that she was “improving slowly still”.
27 On 17 March 2009, Ms Charters consulted Dr Demaio in relation to gynaecological matters.
28 On 26 March 2009, Ms Charters consulted Dr Demaio, who noted that she was being forced to wear work boots, and that she was being asked to work more than the four hours specified on her WorkCover certificates. It was noted that she had worked for seven hours the previous day, and that she had been “improving until yesterday”.
29 On 9 April 2009, Ms Charters consulted Dr Demaio, who noted that whilst she was improving, she was still in pain.
30 On 23 April 2009, Ms Charters consulted Dr Demaio, who noted that she was “getting better slowly overall”. However, he also noted that Ms Charters recently had a bad day and that she was suffering increased throbbing, such that Dr Demaio considered it appropriate for her to stay on five hours a day in her return to work plan.
31 On 7 May 2009, Ms Charters consulted Dr Demaio, who noted “pain left foot for months”. Dr Demaio then wrote a formal letter of referral to rheumatologist, Dr Marie Feletar, in which he stated that Ms Charters had been on WorkCover with “pain left foot for months”. He also arranged for Ms Charters to undergo a bone scan of the left foot.
32 On 27 May 2009, Ms Charters underwent a bone scan of both her left and right ankles and feet. The report of this scan noted seven months of left foot pain. It was recorded that the left foot was within normal limits and that there was patchy areas of increased activity in the “asymptomatic right foot”. These were considered most likely the result of increased weight bearing. In cross-examination, Ms Charters denied having told anyone that her right foot was asymptomatic, and instead maintained that she had informed her doctors of her right foot pain.
33 On 28 May 2009, Ms Charters consulted Dr Demaio, who noted “pain still fluctuating” and that Ms Charters was “only just coping at work”. Dr Demaio noted that the bone scan taken the previous day, did not detect any abnormalities.
34 On 23 June 2009, Ms Charters consulted Dr Demaio, who noted that she was having good and bad days, with “lots of good days”.
35 On 23 July 2009, Ms Charters consulted Dr Demaio, who recorded the following note:
“W/c
Still sore foot.
Fluctuating.
Throbbing ++ at times.
Left work early yesterday.
Didn’t go to work today.
Being given a rough time at work.
Vomiting due to stress prior to work.
Boss being rude and arrogant.
Rebecca has kept a diary of what’s happening.
Not coping.
Crying and teary ++.”
36 When cross-examined as to the contents of this attendance, Ms Charters said that she could not recall exactly what had been said in her consultation with Dr Demaio, but accepted the matters that he had recorded. When asked if the reference to the sore foot was the same left foot that had been sore since the incident, Ms Charters replied, “My left foot was sore the whole time.”
37 At this time, Dr Demaio also referred Ms Charters to a psychologist.
38 On 6 August 2009, Ms Charters consulted Dr Demaio, who noted there was no change in her condition.
39 On 20 August 2009, Ms Charters consulted Dr Demaio, who noted that she had seen a psychologist twice and that she was feeling a little bit better. He also noted that Ms Charters had suffered a headache for two weeks, and requested that a CT scan be taken of her brain.
40 On 3 September 2009, Ms Charters consulted Dr Demaio, who noted that she was still on WorkCover and that she was consulting psychologist, Dr Martin Baker, and was “not ready for work”.
41 On 16 September 2009, Ms Charters consulted rheumatologist, Dr Marie Feletar, who noted that she was “under WorkCover who has had a left foot injury”. Dr Feletar obtained a history as to the forklift incident, and noted that Ms Charters has had “severe pain weight bearing, with less pain at rest” since that time. It was noted that Ms Charters had trouble walking to the letterbox or down the street. Dr Feletar then examined Ms Charters’ left foot and noted tenderness on the left fourth and fifth toes. She noted some tarsal nerve distribution of the left foot and some lateral instability. Dr Feletar considered that Ms Charters’ complaints were consistent with a crush injury with possible left tarsal nerve damage. She recommended that Ms Charters undergo an MRI scan.
42 On 17 September 2009, Ms Charters saw Dr Demaio who noted that she had recently seen a specialist, that an MRI scan was to be performed and that she was “still in pain”.
43 On 14 October 2009, Ms Charters consulted Dr Demaio, who noted that she had come into contact with someone at her local shops, who had previously worked for the defendant and was aware that she was suffering from depression. At this time, Dr Demaio also noted that there had been no change in her pain, but that Ms Charters now had some numbness in her left two lateral toes.
44 On 14 October 2009, Ms Charters was also examined by occupational physician, Dr David Barton, for the purpose of her workers’ compensation claim. Dr Barton obtained a history from Ms Charters as to the forklift incident, before subsequently noting that “her foot was really sore and she could hardly walk.” Dr Barton also noted that Ms Charters returned to work in April 2009, but had ceased several months later as, “the bullying got on top of me.” Dr Barton recorded that Ms Charters described “escalating foot symptoms” and that she was “barely coping with the pain”.
45 Dr Barton then detailed Ms Charters’ current treatment and noted that she was taking between two to eight Panadeine Forte tablets per day, as well as Voltaren. Dr Barton then recorded:
“About two months ago she did take some Endone when her right foot ‘blew up’ with her being in tears and agony and she couldn’t walk.”
46 I note that this is the first medically recorded complaint of Ms Charters suffering symptoms in her right foot subsequent to the forklift incident.
47 Dr Barton then noted that Ms Charters described pain around the outer three toes, and that such pain would shoot towards the ankle, at times causing her foot to go numb. He noted that Ms Charters felt the movement of her fourth and fifth toes was limited and that they could swell and go blue and purple. He also noted that Ms Charters limped at times and that her symptoms increased during cold weather or when she spent time on her feet.
48 Dr Barton also recorded that:
“…more recently she described some pain around the back of the right calf that her doctor attributed to the extra weight bearing on this side.”
49 Ms Charters said that she could recall mentioning this pain to Dr Barton, but denied that the reference to this pain being “more recently” suggested that it was a recent occurrence. Instead, Ms Charters insisted that the reference to recently was that the right calf pain had been worsening recently.
50 On 22 October 2009, Ms Charters consulted general practitioner, Dr Sally Edwards, at the Station Street Clinic in relation to gynaecological matters.
51 On 11 November 2009, Ms Charters consulted Dr Demaio, who noted there was “no change” and that Ms Charters was still depressed.
52 On 1 December 2009, Ms Charters consulted Dr Demaio for a discussion regarding her bloods and gynaecological matters.
53 On 10 December 2009, Ms Charters consulted Dr Demaio, who recorded the following history:
“One week pain right calf ++.
Woke up with it.
Constant severe.
PHX DVT.”
54 In cross-examination, Ms Charters denied that this was the first occasion on which she had mentioned right calf pain to Dr Demaio. She said that she was in “horrific pain” on this occasion, and that she had told Dr Demaio that she could no longer bear the pain in her right calf. Ms Charters accepted that she had woken up with severe pain, which she said had persisted for the past week. However she maintained that whilst she had previously suffered right calf pain, it had not been severe.
55 On this occasion, Dr Demaio referred Ms Charters for an ultrasound of her right leg.
56 On 23 December 2009, Ms Charters consulted Dr Feletar, who noted that she had “persistent pain in the left foot in the absence of any major structural injury.” Dr Feletar was concerned that Ms Charters might develop Chronic Pain Syndrome, in circumstances where she had suffered her injury a year ago and where there had been some associated bullying. She therefore recommended that Ms Charters attend a pain management program.
57 On 14 January 2010, Ms Charters consulted Dr Demaio, who noted that she was being sent to rehabilitation and pain management.
58 On 4 February 2010, Ms Charters consulted Dr Demaio, who recorded “now pain both hips”. In cross-examination, Ms Charters could not recall when such pain commenced.
59 On 4 March 2010, Ms Charters consulted Dr Demaio, who recorded “now pain lower back radiating down right leg.” He noted that there was no history of injury. Dr Demaio then requested an x‑ray and CT scan of Ms Charters’ lumbar spine.
60 On 30 March 2010, Ms Charters consulted Dr Demaio, who noted that she suffered from a disc prolapse. He referred her to physiotherapist, Mr Ross Edwards. However, according to his report dated 29 August 2011, Ms Charters did not consult Dr Edwards until 14 December 2010.
61 On 6 May 2010, Ms Charters consulted Dr Demaio, who noted that her pain was worse in cold weather, that she was suffering pins and needles in her toes and that she was “still limping”. On this occasion, Dr Demaio also referred Ms Charters to gynaecologist, Dr Rudy Lopes.
62 On 1 June 2010, Ms Charters consulted Dr Demaio in relation to gynaecological matters.
63 On 1 July 2010, Ms Charters consulted Dr Demaio, who noted that her foot was cold and tingling and that her back was still playing up.
64 On 21 July 2010, Ms Charters consulted Dr Demaio, who noted that she suffered “pain lower back ++”, as well as radiating right leg pain since the previous day.
65 On 22 July 2010, Ms Charters attended the Emergency Department at Casey Hospital complaining of lower back pain. A report from Southern Health dated 25 March 2011, recorded that Ms Charters had provided the following history:
“injured her back 18 months previously in a fork lift accident. An MRI scan in March had shown a disc bulge pressing on the sciatic nerve. She has had attacks of left-sided sciatica in the past but has had right-sided sciatica for the previous few days.”
66 Ms Charters was treated with analgesics and discharged home.
67 On 26 July 2010, Ms Charters said that the pain in her lower back became much worse, and that she developed urinary incontinence. She was taken by ambulance to Casey Hospital, where she was diagnosed with acute cauda equina syndrome. An emergency right L5/S1 discectomy was performed and Ms Charters was subsequently discharged home on 30 July 2010.
68 On 8 August 2010, Ms Charters re-attended the Casey Hospital’s Emergency Department with a complaint of increasing back pain, altered sensation in her right foot and urinary frequency. An MRI scan was taken at the time, which showed a collection of fluid at the site of the operation. Soon after, Ms Charters was discharged home with analgesics.
69 On 15 September 2010, Ms Charters attended the Casey Hospital’s Neurosurgery Outpatients Clinic, where it was noted that her pain was improving, but that she still had weakness and an abnormal gait. It was also noted that, at times, she had difficulty with continence of urine and faeces.
70 Since that time, Ms Charters has continued to suffer ongoing pain and restriction of movement as a consequence of her lower back injury. She has not returned to any paid employment and is restricted in her domestic and social activities.
71 Ms Charters also continues to suffer pain in both her left and right feet and ankles, but does not claim that the consequences of either impairment satisfy the definition of serious injury contained within the Act.
72 Ms Charters has suffered ongoing psychological symptoms for which she trialled Pristiq for a period of time. However, she ceased this medication as it caused her to experience dizzy spells and headaches. Ms Charters was examined by medico-legal psychiatrist, Dr Michael Epstein, on 27 January 2017. He was of the opinion that she suffers a Major Depressive Disorder of moderate severity, together with symptoms of an Obsessive Compulsive Disorder with compulsive hand washing and checking. Mr Epstein was of the view that her prognosis for improvement was poor, and that, as a consequence of her psychiatric condition she was unfit for all work.
73 From 17 December 2008 until 23 June 2009, Ms Charters was provided with Certificates of Capacity, initially from Dr McCowan, and later from Dr Demaio. The Certificates stated that she suffered a left foot injury, such that she was either unfit for any duties, or was fit for alternative duties. From 6 August 2009, these Certificates referred to Ms Charters suffering a left foot injury and secondary depression.
74 Of the 18 Certificates of Capacity tendered for the period 17 December 2008 until 17 September 2009, no mention is made of Ms Charters suffering right calf pain or lower back pain. When cross-examined about these Certificates, Ms Charters accepted that, most of the time, she would have read them before signing. When she was asked to explain why the Certificates did not refer to right calf and/or lower back pain, Ms Charters said that she could not speculate as to why the doctors had not included those complaints. The following extract of transcript, taken from cross-examination, is provided by way of example:
Q: You read them, you go back to see him the next week, did you ever say to him, "Doctor, look I don't think you've been listening to me or hearing me, there's something else going on, it's not just my left foot. Can we talk about it?" You never said that to him, did you?---
A: I've never filled forms in like this so he's the one that did them so I didn't question him.
Q: I'm not asking you whether you would fill the form in differently, I’m asking you this, when you got the form, you read what he is writing to someone else is your medical condition, aren't you?---
A: Yes.
Q: And you say he hasn't got the whole picture?---
A: No, I didn't say that.
Q: No, is that what you're telling the judge that he's not got the whole picture?---
A: I didn't say he didn't have the whole picture on the WorkCover forms. I said he had been told about the pain. I can't explain why he didn't write anything in on the certificates.
HER HONOUR: Mr Masel was asking you did you ever raise with him why the certificates only – certainly, initially, for the first nine or so months only referred to the left foot, did you ever raise with him your other complaints of pain and why they weren't on the certificate?---
A: No, I never raised it with him.”
75 In support of her claim, Ms Charters also relied upon an affidavit of her mother, Mrs Judy Charters. Mrs Charters noted that, after the forklift incident, her daughter would complain to her on the telephone that “there was pain in her foot and leg”. Mrs Charters also recalled conversations with her daughter in which she stated that she had consulted her general practitioner, and complained often of calf muscle pain. Mrs Charters then recalled that “sometime later”, her daughter was referred for emergency surgery for cauda equina syndrome.
76 In circumstances where Mrs Charters is not specific as to the critical issue of when exactly her daughter attended her general practitioner complaining of calf muscle pain, I gain little assistance from this affidavit.
Medical opinions relied upon by Ms Charters
77 Ms Charters relied upon four medical reports from Dr Demaio. In his first report dated 29 April 2010, Dr Demaio only referred to Ms Charters suffering chronic severe pain in her left foot, together with secondary depression. No mention is made of her suffering right calf pain or lower back pain.
78 In a report dated 7 December 2010, Dr Demaio noted that in July 2010, Ms Charters had presented complaining of severe back pain radiating to her left leg, for which she had required emergency back surgery. After the surgery, Ms Charters had reported that her left foot and leg pain had improved dramatically, but that at times, she still had numbness in both legs. Dr Demaio stated, “This leads me to believe that perhaps her foot pain from her work related injury was due to a disc prolapses all along.” Dr Demaio considered that the persistent numbness may explain why the imaging of Ms Charters’ left foot had not detected any abnormality. Further, Dr Demaio was of the opinion that the weight Ms Charters had gained as a consequence of her foot pain, would have contributed to her severe back pain.
79 In offering this opinion, I note that Dr Demaio did not refer to any complaints of lower back pain or right calf pain for at least 11 months after the forklift incident.
80 In a subsequent report dated 8 March 2012, Dr Demaio reiterated his opinion that the forklift incident was the cause of Ms Charters’ back injury, although he did not offer any further explanation as to the basis of the causal connection.
81 In his final report dated 19 August 2016, Dr Demaio detailed the impact Ms Charters’ lower back injury was having upon her, noting in particular that it severely restricted her ability to undertake social, domestic and recreational activities, as well as rendering her unfit for any employment.
82 In his medical report dated 27 April 2010, Mr Franics did not refer to any complaint by Ms Charters of right calf or lower back pain.
83 Ms Charters also tendered medical reports from physiotherapist, Mr Ross Edwards, whom she consulted in December 2010. He obtained a history from Ms Charters that she had developed pain in her right foot within weeks of the forklift accident. As Mr Edwards first treated Ms Charters subsequent to her lower back surgery, I gain no assistance from his report in determining when she first suffered right calf or lower back pain.
84 Ms Charters also tendered a report from neurosurgeon, Mr Craig Timms, dated 5 September 2011. Mr Timms had reviewed Ms Charters following her lower back surgery. Mr Timms obtained a history from Ms Charters that, following the forklift incident, she was placed on crutches and given analgesia. Since that time, he noted that “she had experienced the onset of back pain and some sciatic symptoms of pain in the right leg to her calf.”
85 Mr Timms reviewed the MRI scan from February 2011, and considered that it revealed an injured degenerate disc at L5/S1, with a broad based disc bulge causing some neural compression.
86 Based upon the history that he obtained from Ms Charters, Mr Timms was of the opinion that her employment had contributed to her lower back injury. I consider the relevance of this opinion to depend upon the extent to which I accept that Mr Timms was given an accurate history.
87 Ms Charters’ solicitors arranged for her to be examined by neurosurgeon, Associate Professor Richard Bittar, in July 2011. In his report dated 11 July 2011, Associate Professor Bittar obtained a history from Ms Charters that she began to experience right calf pain two days after the forklift incident. He then provided an opinion that Ms Charters’ employment had been the dominant contributing factor to her lower back injury. I also consider the relevance of this opinion to depend upon the extent to which I accept that Associate Professor Bittar was given an accurate history.
88 Ms Charters’ solicitors also arranged for her to be examined by orthopaedic surgeon, Mr Thomas Kossmann, in November 2016. In his first report dated 21 November 2016, Mr Kossmann detailed the circumstances of the forklift incident, noting that, as a consequence of the incident, Ms Charters had suffered ongoing pain in her left foot, which also affected her left calf, as well as her right calf and right foot.
89 Mr Kossmann also noted that, subsequent to the forklift incident, “Ms Charters then developed pain in her lumbar spine.” Mr Kossmann was of the opinion that Ms Charters had suffered cauda equina syndrome as a consequence of the forklift incident. In offering this opinion, Mr Kossmann did not specify the time at which Ms Charters began to first experience right calf and lower back pain. In such circumstances, it is difficult to understand the basis of Mr Kossmann’s opinion that the forklift incident was a cause of her lower back injury.
90 In a subsequent report dated 19 August 2017, Mr Kossmann provided a further opinion, following functional testing of Ms Charters’ lower limbs, using a gait analysis performed on 19 July 2017. In this report, Mr Kossmann noted that, subsequent to the forklift incident, Ms Charters had suffered a crush injury to her left foot and that she was “never pain free after the incident”. Mr Kossmann then postulated that Ms Charters had “a changed gait following the injury to her left foot”, which had a negative effect on her lumbar spine.
91 Mr Kossmann then stated that, in his opinion, a changed gait can have detrimental effects on a patient’s lumbar spine, which can cause injury resulting in degenerative changes at other structures of the lumbar spine. Mr Kossmann was of the opinion that a changed gait over a long period of time, can result in a sudden onset of pain, including an acute disc prolapse. He concluded “that Ms Charters’ pathological gait over the years was responsible for the development of her large right-sided L5/S1 posterolateral disc prolapse which at the end has caused her cauda equina syndrome”. In offering this opinion, Mr Kossmann referred to patients with a leg length discrepancy experiencing a changed gait, with subsequent degenerative changes in the lower back.
92 I gain little assistance from Mr Kossmann’s opinion as to the possible cause of Ms Charters’ lower back injury. I note that the altered gait he relies upon, was assessed in July 2017, approximately seven years after Ms Charters had undergone lower back surgery. The gait analysis report which Mr Kossmann relied upon did not, and could not, assess what Ms Charters’ gait was like prior to the surgery. For his hypothesis to be credible, I consider it would be important for Mr Kossmann to have known what Ms Charters’ gait was like from December 2008 until July 2010. I note that there is no reference in any of the clinical records or medico-legal reports to her suffering an altered gait during that time. In such circumstances, I find it surprising that Mr Kossmann so readily concluded that Ms Charters’ “pathological gait over the years” was responsible for the development of the disc prolapse.
93 The relevant period for there to have been an altered gait causing an acute disc prolapse was only 18 months. In circumstances where there is no recorded evidence of Ms Charters suffering an altered gait during that time, I give little weight to Mr Kossmann’s conclusion.
Medical evidence relied upon by the defendant
94 The defendant relied upon a medical report from orthopaedic surgeon, Associate Professor John Hart, who had examined Ms Charters at the request of the defendant on 21 December 2011. In his report of that day, Associate Professor Hart detailed the circumstances in which Ms Charters’ left foot was injured and the treatment she subsequently received. He then obtained a history from Ms Charters that when she consulted Dr Demaio on 8 January 2009, she mentioned to him that she had right calf pain, which, she said, Dr Demaio attributed to excessive weight bearing on her right leg.
95 Associate Professor Hart recorded that Ms Charters then stated that, in March 2009, whilst at work on light duties, Ms Charters experienced pain in her right calf when she was asked to move boxes and sweep floors. Further, Associate Professor Hart obtained a history from Ms Charters, that Dr Demaio’s note of 10 December 2009, in which he recorded her complaint of pain in the right calf that had been present for only a week, was incorrect, and that, the pain had been present since the injury and had increased over that week.
96 Associate Professor Hart noted the discrepancy between Ms Charters’ evidence as to when the right calf and lower back pain had commenced, and the clinical records and medical reports of the Station Street Clinic. Associate Professor Hart was of the opinion that, the extent to which Ms Charters’ lower back injury was related to the forklift accident, was dependent upon there being sufficient evidence to prove that she experienced right lower extremity pain and/or lower back pain soon after the incident.
97 The defendant also arranged for Ms Charters to be examined by orthopaedic surgeon, Mr Rodney Simm, in July 2017. In his report dated 6 July 2017, Mr Simm had pain “in my left calf and right calf and foot” the day after the forklift incident. However, Mr Simm noted that such a history was not supported by the contemporaneous medical records, noting in particular that the first record of right calf pain was not until Ms Charters was examined by Dr Barton in October 2009.
98 Mr Simm was of the opinion that Ms Charters suffered L5/S1 lumbar disc degeneration, which had resulted in spontaneous disruption and protrusion of the L5/S1 intervertebral disc, with severe progression of this pathology in July 2010, causing a right S1 nerve root compression, with cauda equina syndrome. Mr Simm was of the opinion that this lumbar disc injury was not related to the forklift incident. Mr Simm considered that there may have been “some degree of disruption and a bulging of the degenerative disc in the latter months of 2009, when she reported some pain around the back of the right calf.”
99 Mr Simm subsequently reviewed the reports and the gait analysis of Mr Kossmann. He disagreed with Mr Kossmann’s opinion that the altered gait was contributing to the disc prolapse, in circumstances where Ms Charters did not have a leg length discrepancy. In any event, Mr Simm was of the opinion that the medical literature did not support a minor to moderate leg length discrepancy causing lumbar disc degeneration.
100 The defendant also relied upon a Medical Panel opinion of 3 November 2014. This Panel was comprised of Dr Steven Jensen, Mr Geoffrey Klug and Mr Peter McNeill. In its examination of Ms Charters on 7 October 2014, the Panel noted that Ms Charters claimed that she began to develop pain through the posterior aspect of her right calf within days of suffering her left foot injury.
101 The Panel then noted that Ms Charters consulted Dr Demaio on 10 December 2009, regarding right calf pain of such intensity that she wanted her right calf “chopped off”. The Panel recorded that “up until this stage she had not suffered any back symptoms at all.” When asked about this history in cross-examination, Ms Charters said that she was unable to recall what she had said to the Panel, but considered the recorded history to be incorrect.
102 The Medical Panel reviewed the medical imaging and was of the opinion that the MRI scan from March 2010, showed a severely narrowed L5-S1 disc space, indicative of longstanding L5-S1 disc degeneration.
103 The Medical Panel ultimately concluded that, having regard to the contemporaneous clinical records, and in particular the reports of Dr Demaio and Mr Francis, Ms Charters’ employment was not a significant contributing factor to her lower back injury.
Ms Charters’ reliability as to the commencement of the right calf pain and lower back pain
104 The key issue for determination in this case, is whether or not I accept Ms Charters’ claim that she began to suffer pain in her right calf and lower back, soon after the forklift accident. The defendant conceded that, if I was so satisfied, then Ms Charters should succeed in her application. However, the defendant vigorously disputed Ms Charters’ claim in respect of the commencement of these symptoms. The defendant put to Ms Charters that she was either confused about the commencement, or that she was making it up. Ms Charters denied that she was doing either.
105 For a range of reasons, I do not accept Ms Charters’ evidence as to the date she first began to experience right calf and lower back pain. My reasoning is as follows:
106 Ms Charters consulted doctors at the Station Street Medical Clinic, in particular Dr Demaio, on numerous occasions from December 2008 until December 2009. From the date of the forklift incident, until the date Dr Demaio first recorded a complaint of right calf pain, Ms Charters had attended the Station Street Clinic 26 times (excluding visits on nurses at the clinic).
107 I consider Dr Demaio’s notes to be relatively detailed and responsive to Ms Charters’ complaints. By way of example, he would, on occasions, detail the work activities that increased her pain, as well as matters of a personal nature of which he was informed. On several occasions, Dr Demaio referred Ms Charters for medical investigations and medical imaging of her left foot injury, and to Dr Feldene for a specialist opinion. Dr Demaio also referred Ms Charters to a gynaecologist when she experienced problems of that nature, as well as for an MRI Scan of her brain when she complained of a persistent headache.
108 When Ms Charters was cross-examined about these medical attendances, she repeatedly said that she could not recall what had been said, and that it was “too far back”. She answered with the words “I cannot recall” over 50 times.
109 Despite being able to recall very little about almost all of these medical attendances, however, Ms Charters was adamant that she had told Dr Demaio about the right calf and lower back pain soon after the forklift incident. She was also able to recall telling Dr Demaio in the months following the incident, that she experienced difficulty bending and sitting for prolonged periods. I find it difficult to reconcile her ability to recall these conversations with such certainty, when, for the preponderance of her evidence, she could not recall what was said to medical practitioners.
110 In January 2009, Ms Charters consulted Mr Barker for physiotherapy treatment on three occasions. In his relatively detailed medical report, Mr Barker makes no mention of Ms Charters having complained of right calf or lower back pain. As a physiotherapist, I consider it unlikely that Mr Barker would only have asked Ms Charters about her left foot.
111 In cross-examination, Ms Charters said that she believed she had told Mr Francis about her right calf pain. It is difficult to reconcile this evidence with the absence of any complaints recorded by Mr Francis.
112 Further, Dr Feletar also made no mention of Ms Charters having complained of right calf or lower back pain when she saw Ms Charters in September 2009. As a rheumatologist, I also consider it unlikely that Dr Feletar would only have asked Ms Chambers about her left foot.
113 In cross-examination, Ms Charters said that she told Dr Feletar about her right leg pain. I also consider it difficult to reconcile this evidence with the absence of any complaint recorded by Dr Feletar.
114 Dr Barton was the first health care professional to record a complaint of right calf pain in October 2009. He obtained a history from Ms Charters that her right foot had blown up two months previously, and that she had recently experienced some pain in the back of her right calf. Ms Charters denied that she had told Dr Barton that this had been a recent development, and said that she had told him that “it had got worse.” Her evidence in relation to this attendance was inconsistent with Dr Barton’s report, which states that the right foot and right calf pain was a relatively recent complaint, which had come on in the previous two months.
115 In circumstances where Ms Charters frequently admitted that she found it difficult to recall events from so long ago, I consider the contemporaneous medical reports and records to be very significant.
116 In the Court of Appeal decision of Franklin v Ubaldi Foods Pty Ltd, Ashley JA recommended caution in relying on histories contained within medical records, based on his observation that there can be inaccuracies in such records. He stated:
“[W]hat history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history-taker recorded. To assume an inevitable monopoly of right on one side or the other would run counter to experience.”
117 This is not a situation where the relevant medical records are irregular or scant, or in which one of the parties seeks to rely upon the recordings of just one medical practitioner. To use the words of Ashley JA, there is no “monopoly of right” in circumstances where, for the relevant period, there were at least three health care providers involved in Ms Charters’ care, each of whom saw Ms Charters on at least two occasions. I note that Dr Demaio saw her over 26 times. I consider each of their records and reports to be relatively detailed.
118 There are also a multitude of Certificates of Capacity, which only refer to left leg pain, before later including secondary depression. These Certificates further demonstrate the lack of contemporaneous records with which to corroborate Ms Charters’ claim, that the right calf and lower back pain came on soon after the forklift incident, or that she complained about such pain to her general practitioners.
119 In order to accept Ms Charters’ evidence, I must be satisfied that each of the three health care practitioners failed to record Ms Charters’ complaints of right calf and/or lower back pain, on each occasion she claims to have told them. In looking at all the records and reports, and in considering the totality of the evidence, I am not so satisfied.
120 For the purpose of determining this application, it does not matter whether Ms Charters has intentionally overstated her evidence, or if she is genuinely confused as to when the symptoms actually commenced.
121 I accept that it is likely Ms Charters first began to experience some right calf pain in around August or September 2009, but that it was not constant or intense until December 2009. The onset of such pain at this approximate time, is consistent with the report of Dr Barton and the records of the Station Street Clinic. I consider it likely that when Ms Charters saw Dr Feletar in September 2009, the right calf pain was either yet to commence, or, if it had commenced in August 2009 (as recorded by Dr Barton), then it was so occasional that Ms Charters did not think to mention it.
122 I also accept it as probable that Ms Charters first began to experience lower back pain sometime between the period December 2009 until February 2010. The onset of pain at this approximate time, is consistent with the records of the Station Street Clinic.
123 The plaintiff accepted that, if I was not satisfied the right calf and lower back pain commenced within a short time of the forklift incident, and that instead, I found that those symptoms commenced many months later, then the plaintiff’s claim could only succeed if, on an alternative basis, I accepted Mr Kossmann’s opinion that Ms Charters’ altered gait caused the cauda equina symptoms and her need for emergency surgery. For the reasons detailed above, I consider there is insufficient evidence to support such a hypothesis.
124 In view of the above, I am not satisfied that the forklift incident was a cause of Ms Charters’ lower back injury. In those circumstances her claim under paragraph (a) must fail.
125 Ms Charters also claimed that she suffered a severe psychiatric condition which satisfied the definition of serious injury under paragraph (c). However, this claim was also dependent upon the lower back injury being related to the forklift incident, as the psychiatric consequences to Ms Charters were predominantly related to the pain and restrictions she suffers from her lower back injury. Thus, this claim must also fail on the basis that there is no sufficient causal connection.
126 I therefore dismiss Ms Charters’ application.
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