Clarke v Victorian WorkCover Authority
[2024] VCC 581
•8 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04531
| MARIE CLARKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 April 2024 | |
DATE OF JUDGMENT: | 8 May 2024 | |
CASE MAY BE CITED AS: | Clarke v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 581 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – workplace injury – lower back injury – neck injury – cervical spine injury – issue on causation – whether injury sustained throughout the course of employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Johns v Oaktech Pty Ltd [2020] VSCA 10; Hamidi v Transport Accident Commission [2023] VSCA 139; Kabir Popal v Transport Accident Commission [2023] VSCA 222
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Perilli | Slater and Gordon Ltd |
| For the Defendant | Mr L Howe | Hall & Wilcox |
HIS HONOUR:
1Marie Clarke is a Division 2 nurse who works at St Vincent’s Public Hospital. She claims that throughout the course of her employment, she sustained an aggravation of underlying degenerative changes in her cervical spine. It is alleged that that injury has caused pain and suffering impairment consequences which satisfy s335(a) of the Workplace Injury Rehabilitation and Compensation Act in constituting a serious injury. No claim is made in respect of loss of earning capacity. The defendant contends that no workplace injury to the cervical spine was caused. Rather it submits that any neck injury is the result of underlying degenerative processes at work. In determining this question, the reliability of Ms Clarke’s evidence was put firmly in issue.
2While Ms Clarke initially claimed she also had a low back injury arising in the course of her employment, she abandoned reliance on this claim and so the matter was firmly focused on the issue of causation of the neck injury. For the reasons which follow, I have determined that Ms Clarke can demonstrate that she suffers from a work-related injury to the cervical spine which has caused pain and suffering consequences which are more than significant or marked.
Relevant chronology
3Ms Clarke was born in 1967. She completed Year 10 in about 1983 and then worked in a variety of positions in hospitality, hospitals and jewellery stores. In the late 1990s, she completed a Certificate IV in Nursing and promptly went overseas to work. Between 2000 and 2010, she worked in Australia as a Division 2 nurse in different hospitals. Unfortunately, she developed lymphoma in about 2010 and had three years off work while she recovered.
4Relevantly, in June 2014 she commenced work at St Vincent’s Public Hospital in Melbourne as a Division 2 nurse. Her affidavit, sworn 4 April 2023, deposes that the work “… involved considerable strenuous manual handling. The role required repetitive, frequently heavy, and strenuous lifting, carrying, pushing and pulling.”[1] She went on to depose about a particular work task involving a piece of equipment called a “Stedy”. In cross-examination, she gave evidence that a Stedy was a chair with a fold-up seat. The device was used for patients with difficulty mobilising. She assisted patients to stand in order to get them into position in front of the Stedy, then lower the seat and have the patient seated in it. Often such patients were difficult to push in the Stedy. She described such patients as being “a lot of dead weight when I manually handled patients because of the nature of their injuries. They were often difficult to manoeuvre because they were either not cooperating or in a state of delirium.”[2]
[1]Plaintiff’s first affidavit sworn 4 April 2023 at paragraph 29, Plaintiff’s Court Book (“PCB”) 16-17
[2]Ibid at paragraph 30, PCB 17
5On 22 June 2015, Ms Clarke tripped at work on a walking frame. She fell and hurt her back. She put in a WorkCover claim and had an x‑ray, physiotherapy and took pain medication for a period of time. Within six to eight weeks, she felt much better and considered that her back pain had resolved.[3] It can be inferred that the injury was to her low back as both the x-ray and MRI were focused on the lumbar spine. As mentioned earlier, Ms Clarke initially began her serious injury application on the basis that she had suffered an aggravation of underlying degenerative changes to the lumbar spine. That claim was abandoned at the hearing of the application. The only relevance then of this incident in 2015 was that it had impairment consequences which the defendant stated needed to be disentangled from the ultimate impairment consequences Ms Clarke alleged arose by reason of the cervical spine injury. It is sufficient at this stage to simply note that after the 2015 incident involving her low back, Ms Clarke considered that she had recovered considerably. At one point, her treating doctor recorded that she felt “97%” recovered. Ms Clarke gave evidence in cross-examination that the only remaining impairment consequence arising from the 2015 low back injury was sciatic nerve pain which would present occasionally, requiring heat packs. It did not impact greatly upon her. This evidence, given in cross-examination, stands in stark contrast to her affidavit sworn in this matter which attributed significant ongoing problems to the low back injury. I will deal with this matter later when I come to assess Ms Clarke’s reliability.
[3]Ibid at paragraph 26, PCB 16
6Returning to the chronology, after the 2015 incident, Ms Clarke returned to work on normal full time duties. She worked in this way continuously until the start of 2020. There is some real debate as to the sequence of the events which unfolded during the course of 2020. For this reason, I will give only a broad outline now and deal with the alleged discrepancies in greater detail when I come to consider the reliability of Ms Clarke’s evidence.
7Ms Clarke gave evidence that in June 2020 she began experiencing pins and needles down her left arm.[4] She saw Dr So on 17 June 2020 who recorded “two week history of left-sided finger and arm pain. New onset, constant [sic] no prior neck pain.”[5] Two days later, on 19 June 2020, presentation notes to the St Vincent’s Emergency Department recorded “Numbness to left fingers and pain like electricity radiating up arm. Onset 1/52 ago. Worsening.” The history of presenting complaint was recorded in the following manner:
“- 1/52 history gradually worsening right hand paraesthesia.
- Onset whilst at home at rest.
- Numbness and tingling pain on anterior aspects of 1st, 2nd and 3rd digits radiating up to shoulder.
- Has recently been working on ward and found pain to have worsened in past 2/7.”[6]
[4]Ibid at paragraph 40, PCB 18
[5]PCB 60, Defendant’s Court Book (“DCB”) 24
[6]DCB 61
8Ms Clarke underwent a CT scan on 1 July 2020. On 2 July 2020, she re-presented to the Emergency Department with three weeks of left upper limb pain and weakness. It was considered that she was suitable for a cortisone nerve injection in the cervical spine and she was discharged to Melbourne Radiology where that injection was performed on 6 July 2020.[7] An MRI around this time demonstrated degeneration and impingement at the C6 level, greatest on the left side.[8]
[7]PCB 46
[8]DCB 138, PCB 44
9Ms Clarke remained off work. She had a neurosurgical consultation at St Vincent’s Hospital with Dr Limb, and it was noted that while she was progressing well, she was counselled against returning to full ward duties as it may cause an exacerbation of her symptoms. She reported to her treating doctors on 22 July that she has improved.[9] At this stage, she was taking both Endone and Targin.
[9]DCB 25
10There was confusion in the chronology about what next occurred. Ms Clarke’s affidavit, treating doctor notes and specialist notes make no mention of the event which the plaintiff described happened shortly after returning to work after her first CT guided injection. On Ms Clarke’s version of events in cross-examination, shortly after returning to work, she was involved in normal nursing duties, putting a patient into a Stedy and pushing them, when she experienced serious pain in her left arm. It left her “hysterically in tears”.[10] On Ms Clarke’s version of events, she reported this event to her supervisor, Ms Connor.[11] She was then told by Ms Connor not to report the injury as a WorkCover injury.[12] As recorded above, none of this was in her affidavit and arose in cross-examination. (It was recorded in part by some medico-legal doctors who I will refer to below – but the full extent of the event was only described in cross-examination.)
[10]Transcript (“T”) 29, Line (“L”) 13
[11]T28, L15
[12]T31, L29 – T32 L2
11On Ms Clarke’s version, she then returned to Neurosurgical outpatients, saw neurosurgeon, Mr Gogos, with this history of worsening pain and gave him the details, at which point he referred her for a second CT guided foraminal injection into her neck. This injection occurred on 21 August 2020.[13]
[13]PCB 71, T43 L6
12Ms Clarke was put off work and at this stage was prescribed Lexapro due to depression in addition to her pain medication. She had a phone consultation with Mr Gogos on 10 September 2020, with some moderation of her symptoms but no resolution. At this consultation, she reports her symptoms were improving and Mr Gogos did not consider operative surgery was necessary. At a further consultation on 14 October 2020, Ms Clarke’s pain had recurred. In those circumstances, he suggested she might be a candidate for fusion surgery at the C5‑6 level. Ms Clarke moved on to modified duties in October 2020. Ultimately, she came to cervical fusion surgery on 7 April 2021 under the hand of Mr Gogos at St Vincent’s Hospital. She was an in-patient for a few days and then discharged. The surgery was satisfactory with no complications. By May 2021, Mr Gogos reported significant symptom improvement with only occasional aches and shooting pain in the left arm.[14]
[14]PCB 67
13Ms Clarke ultimately received a clearance to return to work on modified duties in June 2021. She worked on in that capacity until December 2021 when she was cleared to return to normal duties. She then returned to the neurosurgical ward.
14In January 2022, Ms Clarke was working in the reception area of the hospital when she was verbally assaulted by a man. She called security, who apprehended the man, who was found to be carrying a large knife. Not much needs to be said about this incident save for the fact that it left the plaintiff in a severely shaken state and she was off work for a considerable period. She lodged a WorkCover claim, which was accepted, and she was diagnosed as suffering from PTSD symptoms.
15Ms Clarke ultimately returned to work and at the time of the trial was working normal fulltime duties on the neurosurgery ward. This is five shifts per week of eight or ten hours at a time.
16Ms Clarke sees her treating doctor once per month in respect of pain that she has in her neck and arm.[15] She is prescribed pain medication in this regard.
[15] PCB 19
The parties’ contentions
17Ms Clarke submits that she has sustained a work related aggravation of degenerative changes at the C5‑6 and C6‑7 level, with evidence of nerve root impingement. In support of her contention that her neck injury is work-related, she relies on:
(a) the opinion of Professor D’Urso, a medico-legal practitioner;[16]
(b) her evidence as to her general nursing work duties being physically demanding;
(c) the report of her treating doctor of 22 February 2023 which opines that her cervical spine injury arose out of or in the course of her employment;[17] and
(d) Ms Clarke’s evidence herself of the incident involving the Stedy in late July or early August 2020.
[16]PCB 85
[17]PCB 61
18The defendant submits that Ms Clarke is not a reliable witness. This submission focuses on her evidence as to the onset of the symptoms and also the Stedy incident. The defendant submits that the plaintiff’s condition is one of simple underlying spinal degeneration. It contends that there has been no frank incident, such as involving the Stedy, or that general nursing duties exacerbated or brought about the neck condition.
The reliability of the plaintiff
19It is often said in serious injury applications that the reliability of the plaintiff’s evidence is critical to the success of the application overall.[18] However, reliability of the plaintiff’s evidence is only a part of the assessment the Court is required to make. All of the evidence is required to be assessed before arriving at ultimate findings.[19]
[18]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at [49]
[19]Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76]; Hamidi v Transport Accident Commission [2023] VSCA 139 at [51]
20Beginning with the reliability of Ms Clarke’s evidence. There are numerous instances of Ms Clarke’s evidence being unreliable and contradictory. Overall, I find her evidence to be unreliable. Before I descend to the details of that assessment, I do note that Ms Clarke struck me as an earnest witness who did attempt to try to answer the questions as best she could. However, she did seem to get confused by the timeline of events and there was obvious contradiction in some of the things that she said. I do not consider that she was being deliberately evasive, but it does appear that there are considerable omissions from her affidavit material which are unexplained and could not be adequately explained when they were put to her.
21The first area that Ms Clarke was taken to which was revealing of inconsistency was as to whether or not the pain in her neck and left arm came on at home. She denied that it had.[20] However, this is contrasted by the Emergency Department note,[21] which I have set out above, which clearly recorded an onset at home. This is not a major inconsistency, however, as the Emergency Department note does also record work on the ward and worsening pain. I accept that not too much should be read into a clinical note.[22] Next, Ms Clarke gave inconsistent evidence about whether she reported the Stedy incident to her treating doctor, Dr Skinner. At first, she said that she had reported the Stedy incident to Dr Skinner.[23] A short time later, she then gave evidence that she could not recall reporting it to Dr Skinner.[24] I record that nowhere in Dr Skinner’s notes does the Stedy incident appear to be recorded. Her latter evidence of being unable to recall reporting it then can be seen as an adaptation of her evidence to try to explain why Dr Skinner had not recorded the Stedy incident.
[20]T31 L12
[21] DCB 61
[22] Kabir Popal v Transport Accident Commission [2023] VSCA 222 at [87]
[23]T28 L13
[24]T43, L24
22Ms Clarke was then taken to when she, in her own mind, became satisfied that her neck injury was work-related. She gave evidence that she knew her neck injury was work-related from the time of the MRI.[25] She gave evidence that she was 100 per cent certain that her injury was work-related at the time of the MRI.[26] I record that the MRI was taken on 3 July 2020. Against this, however, is the fact that in no clinical recording after 3 July 2020 by a treating doctor is there any recording that the neck injury was work-related. It is not contained in Mr Gogos’ notes. In fact, his report states “my notes do not mention a specific cause and as such I am unable to comment.”[27] Similarly, the Emergency Department notes set out above do not refer to it being work-related. I do note that there is a history of work recorded in the Emergency Department notes, as set out above, but there is no particular recording of work process being causative of the neck injury. Lastly, Dr Skinner’s notes do not record anything to do with work as being the cause of the injury, save for Dr Skinner’s statement in his report to Ms Clarke’s solicitors that the cervical spine injury arose out of or in the course of employment.
[25]T27, L14
[26]T29, L27
[27]PCB 68
23Next, Ms Clarke gave evidence that the exacerbation of her neck problems was caused by the Stedy incident.[28] This was inconsistent with her affidavit. In fact, the affidavit, while mentioning work with Stedys generally, made no mention of the specific incident where, after returning to work from the first CT guided injection, Ms Clarke experienced the more severe pain in the neck and was “hysterically in tears” such that she had to talk to her supervisor, Ms Connor. Her affidavit is silent as to this matter entirely. This I consider to be a glaring inconsistency and omission.
[28]T27, L23
24Tied to this is the fact that in cross-examination Ms Clarke stated that she had reported the Stedy incident to Ms Connor,[29] and had been told by her it was not a workplace injury and not to report it.[30] Once again this detail, elicited in cross-examination, is not to be found anywhere in her two affidavits. By itself, this is a glaring omission. However, it is made even more pronounced by the fact that Ms Connor had provided a statement dated 28 March 2023 which had been exchanged in defendant’s response material. In that statement, Ms Connor specifically detailed the conversation that she had had with Ms Clarke. On Ms Connor’s version, all that she was told was that Ms Clarke had suffered a non-work related injury and required some assistance at work. That is, Ms Connor directly contradicted Ms Clarke’s evidence. This was known to Ms Clarke well before she swore her second affidavit and well before she gave evidence in cross-examination. I consider it telling that Ms Clarke did not at any time prior to giving evidence in cross-examination seek to contest Ms Connor’s version of events or, for that matter, call Ms Connor during the application to contest her version of events. It is even more telling given the fact that Ms Clarke, during cross-examination, had given evidence that as of 3 July 2020 when the MRI was conducted, she knew in her mind that her condition was work-related. The Stedy incident occurs perhaps three to six weeks later and yet Ms Clarke, on Ms Connor’s version, made no mention of her condition being work-related.
[29]T28, L15 and T29, L13
[30]T32, L11‑16
25A further ground of inconsistency in Ms Clarke’s evidence arose when she gave evidence in cross-examination that she had told Mr Gogos that her injury occurred by reason of her strenuous work duties.[31] Once again, this was not in her affidavit and it is not in Mr Gogos’ notes.
[31]T33, L29
26Ms Clarke, in cross-examination, gave a version of events in which she recounted telling Mr Gogos about the work relationship.[32] She gave evidence that he swore at her and dismissed that complaint out of hand. Once again, this is not in her affidavit, nor to be found in any of his notes. It is quite a startling allegation to be made against Mr Gogos, that he would simply dismiss a patient’s history, to not record it. Importantly in my consideration, it appears improbable given that he was ultimately the one who was charged with supervising her return to work program. In those circumstances, it could be assumed that Mr Gogos would be interested in the history leading up to the contraction of her injury so as to attempt to avoid putting her in situations which might cause a repeat of it. The fact of her work duties being implicated in her injury was crucial to that assessment. Overall, I consider Ms Clarke’s version of events to be implausible.
[32] T59, L6-7
27Dr Dharwadkar, a medico legal psychiatrist who opined for the defendant, is the first doctor to record the history similar to the Stedy complaint in 2023. This is more than three years after the onset of symptoms. Why Ms Clarke gave a history similar to the Stedy incident to Dr Dharwadkar and then didn’t put it in her affidavit which she swore one month later is completely unexplained. This is a further example of inconsistency in her relaying her history.
28From these matters above, it can be seen that I view Ms Clarke’s evidence as unreliable and inconsistent. I am unwilling to accept it without there being independent verification of it. As to the Stedy incident in particular, I make plain that I do not accept that it occurred in the manner that Ms Clarke described, nor that she had the interaction with Ms Connor that she described.
29I now come to assess the medical evidence in the case. Broadly speaking, Ms Clarke relied on her treating doctor and also the report of Professor D’Urso.
30As to Dr Skinner, while he opines in his report that the neck injury arose out of or in the course of employment, it is a curious opinion given that he has no recording of the work process promoting the neck injury or of the Stedy incident. His opinion can be accepted to the extent that he had treated Ms Clarke for a considerable period of time and was well aware of her duties.
31However, it must be tempered by the fact that he was not a neurosurgeon, who given their area of expertise I consider much better placed to opine on the issue of causation.
32Ms Clarke otherwise relied on the reports of Professor D’Urso. His report contains the following history.
“In late June 2020 Marie was working in her duties as a Division 2 nurse at St Vincent’s Hospital. Marie was required to push patients on a Stedy. As Marie was performing this type of physical activity she developed acute bilateral hand pain and shortly after she developed neck pain which radiated down the left arm.”[33]
[33] PCB 84
33It can be seen that Professor D’Urso relies on this history to reach his opinion that work was a cause of the aggravation of the cervical spine condition. However, the history as he has recorded it is substantially incorrect. I prefer the Emergency Department notes set out above which record a history of insidious development at home over several weeks.[34] Then there is the first CT guided injection and a period off work before a return to work and the alleged Stedy incident. As I have set out above, I do not accept that the Stedy incident occurred. The reliance by Professor D’Urso on a history where the Stedy incident features prominently cannot then be accepted. I consider that thereafter he has based his opinion on an incorrect history and understanding of the development of Ms Clarke’s condition. It is true that he did have the clinical notes of St Vincent’s Hospital, but it is unclear why he did not accept the history in those notes and, rather, accepted the verbal history provided by the plaintiff to him during the consultation. It is even more surprising that he would do so given he had Ms Clarke’s affidavit and it did not contain the history which he subsequently took from her. This lack of real engagement with the other material that he was provided with is another reason why his opinion appears to me to be improperly grounded in a true of appreciation of the facts.
[34]At [8]-[9]
34This failure to engage with material also affects his supplementary report where he was provided with the report of the defendant’s medico-legal practitioners, Dr Jonathan and Dr Fitzgerald. He was also provided with Mr Gogos report, which I have referred to above. Rather than engage with these materials, in one paragraph he simply affirms his earlier opinion. I consider the lack of a logical path of reasoning as to why those materials did not alter his opinion undermines the force of his supplementary report. I do not accept it.
35Turning to examine the defendant’s medico-legal reporting in this matter of both Dr Fitzgerald and Dr Jonathan. Dr Fitzgerald is an occupational physician. He has provided two reports. In the first report, he was being asked as to whether or not Ms Clarke’s WorkCover claim ought be accepted. He had the claim form and also the report of Dr Skinner of 22 February 2023 to consider in coming to his opinion. His reporting was criticised by counsel for Ms Clarke on the basis that he did not have access to Dr Skinner’s report. However, a close reading of Dr Fitzgerald’s report reveals that he has referred to it on numerous occasions. His report takes a history which includes the insidious onset of the neck and left arm problems and also a history of the Stedy incident. He considered Dr Skinner’s report and ultimately opined that “…work related activities be it falls or manual handling likely significantly contributed to at least an aggravation if not the onset of her condition”. However, he did request notes from the treating doctors and from the hospital in order to provide a more reasoned opinion. These were provided to him and he provided a supplementary report on 30 August 2023. At that stage, he had examined Ms Clarke and had all the medical reports and clinical records relevant to this matter, I consider. Having considered those reports and detailed his consideration of them, he ultimately then opined:
“Review of Ms Clarke’s records is not supportive of a work related cause of her cervical spine injury. This appears to have occurred insidiously and progressively without an acute insult at work. The contemporaneous records do not support her report of aggravation pushing a patient on a Stedy.”[35]
It can be seen that it was important for Dr Fitzgerald to identify an “acute insult”. It is obvious from the matters I have set out above that the clinical notes make no mention of the Stedy incident. This is consistent with Dr Fitzgerald finding of no “acute insult”. However, on the point of work contribution it will be recalled he stated “…work related activities be it falls or manual handling likely significantly contributed to at least an aggravation if not the onset of her condition”. This opinion remains undamaged and is similar to Professor D’Urso. This finding is supported by his conclusion that “Ms Clarke’s cervical spine injury is likely predominately degenerative…”. This clearly leaves room for an occupational aggravation of the degenerative change in the cervical spine as first opined.
[35]DCB 120
36It is to be recognised, of course, that he is an occupational physician and perhaps not as well placed as a neurosurgeon to opine. The defendant called in aid a medico-legal neurosurgeon, Dr Jonathan. He provided a report dated 19 February 2024 after examining Ms Clarke. He considers that “the onset of symptoms was insidious and not precipitated by work.”[36] It is clear that his opinion is isolated given the opinions of Dr Skinner, Professor D’Urso and Dr Fitzgerald. I do not accept it. This is especially given the opinion of Dr Skinner who has been the long term treating doctor of the plaintiff. His assessment of her in a long term clinical environment cannot be lightly cast aside because of this. Though he is a general practitioner his opinion is supported by Professor D’Urso’s.
[36] DCB 126
37Given these matters I find the plaintiff has sustained injury to the cervical spine at C5-6 and C6-7 levels being aggravation of pre-existing degenerative changes resulting in foraminal nerve root impingement.[37]
[37] PCB 85
Impairment consequences of the neck injury
38In this assessment of identifying the impairment consequences attributable to the cervical spine injury, I consider the plaintiff’s affidavit material and viva voce evidence. As to the pain consequences, the plaintiff deposes to having “constant pain and discomfort in [her] neck” and continual nerve pain in her arms and hand, more so on the left side. In cross-examination she stated that the nerve pain is “always” there.[38] This is consistent with the reporting of her treating practitioner of ongoing nerve pain in hands, in addition to the latest MRI and CT scan results of her lumbar spine which reveals multilevel facet joint degeneration.[39] The plaintiff reported to Professor D’Urso as to her neck pain rating at 4.5 out of 10 and pain into her left arm being a 6.5 out of 10.[40] Nerve pain in her left limb is also reflected in the plaintiff’s record of pain levels to Dr Jonathan, being at 6 to 7 out of 10.[41] Overall I find that the evidence suggests she suffers from constant pain in her neck and nerve pain in her arms that is at a moderate to high level.
[38] T61 L27
[39] PCB 64-65
[40] PCB 84
[41] DCB 123
39As to the impact on her domestic activities, she deposes that she finds “simple tasks such as cleaning and shopping difficult due to pain in her neck...”[42] This includes tasks such as vacuuming and sweeping, where there are times her friend has to assist her with the cleaning. I find that her neck pain has impacted her ability to conduct daily tasks such as cleaning, cooking and shopping, as this requires heavy lifting, twisting, bending and pushing.
[42] PCB 20 at paragraph [66]
40In terms of her social activities, she deposes to having had an active social life prior to her injury and now avoids going out due to her constant neck and nerve pain.[43] Previously, she enjoyed bushwalking with friends a few times a year but no longer bushwalks due to the pressure on her neck from carrying a bag and walking on uneven surfaces. I accept then that her neck injury has impacted both her domestic and social life.
[43] T64 L23
41Further, it was submitted by the plaintiff that the neck injury impacted her sleep. The plaintiff deposes to waking up frequently from neck pain and also experiencing arm numbness in her sleep. In cross-examination, the plaintiff stated her sleep is impacted by her neck and she sleeps with three pillows.[44] Overall I find that the plaintiff’s neck injury has affected her sleep in the way she has deposed.
[44] T63 L14 – T64 L2
42In respect of pain management, she continues to take pain medication to assist with the pain. The plaintiff currently takes Tapentadol, slow and immediate release tablets, two daily, Panadol four times a day and takes prescription cannabis daily. This is recorded by Professor D’Urso and Dr Jonathan. She continues to see her treating practitioner once a month. The fact that she continues to receive prescription pain medication fortifies my finding as to the chronicity and severity of her pain above. To have pain of this type as a feature of everyday life is a significant consequence.
43Additionally, in April 2021, the plaintiff underwent cervical surgery, having a C5/6 anterior cervical discectomy and fusion operation. Such serious surgery is a significant medical undertaking and speaks to the severity of her condition.
44It is also relevant to note that Ms Clarke continues to work as a full time nurse at St Vincent’s Hospital on the same hours and as the defendant put to her, in an unrestricted manner with which she agreed. However, I accept she continues to experience pain whilst working and has difficulty with heavy manual tasks in her role, such as lifting and pushing to the point where she has had to take time off work to manage her pain.[45]
[45] PCB 21
45Balancing those matters, I accept that Ms Clarke has suffered an injury to the cervical spine and that its’ impairment consequences are “more than significant or marked.”
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