Clement v Victorian WorkCover Authority

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-03641

MEREDITH CLEMENT	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2022
DATE OF JUDGMENT:	16 December 2022
CASE MAY BE CITED AS:	Clement v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 2141

REASONS FOR JUDGMENT
---

Subject:ACCIDENT COMPENSATION
Catchwords:               Serious injury – successive injuries occurring in the same manner to the same body part – whether aggregation
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Papadopoulos v Pacific Dunlop Ltd (unreported) VSCA, 18 September 1996, BC9604700; Bell Radiology (a Firm) v McGraw (unreported) VSCA, 7 February 1966, BC9600138; Perinetti v Anglo Italian Holdings Pty Ltd (unreported) VSCA, 21 July 1996, no. 8654/94, BC9603506 ; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235
Judgment:                   Leave granted to the plaintiff to issue proceedings at common law for the recovery of damages for pain and suffering as a result of consequences of injury to her lumbar spine sustained in the course of her employment from 2013 until 2019 as a result of repeatedly manoeuvring coffins and/or caskets in the course of her employment.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C S O’Sullivan	Maurice Blackburn Lawyers
For the Defendant	Mr R Kumar	Minter Ellison

HIS HONOUR:

1This is an application brought by Originating Motion made pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of her employment with Le Pine Funerals from 2013 until 2019.
2The plaintiff seeks leaves to bring damages in relation to pain and suffering only. The plaintiff brings this application pursuant to s325(1)(d) of the Act.
3There, “serious injury” is defined, relevantly, as meaning:
“(a)    permanent serious impairment of loss of a body function … .”
4The plaintiff’s application for a serious injury certificate is made for the impairment of her spine; alternatively, her lumbar spine and/or right upper limb. The plaintiff is a fit fifty-six-year-old single female, who relies, in this application, on heavy and repetitive duties she was required to do throughout the course of her employment with the employer known as Le Pine Funerals.
5In essence, the plaintiff claims for injury sustained throughout the course of her employment with the employer and, in particular, with respect to three particular specific incidents, each of which involved her physically transferring caskets with deceased persons in them, whereupon she experienced symptoms in her spine and her shoulders.
6Pursuant to s325(2)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant or marked” and as being “at least very considerable”.
7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made from the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body functions.
8Section 325(2)(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak.[1]
[1](2005) 14 VR 622 (“Barwon Spinners”)
10At the conclusion of the evidence, it appeared that the plaintiff’s case mainly centred upon impairment of the lumbar spine as a result of a gradual process injury due to the nature of work over a period of time, with three specific incidents.
11Leading defence Counsel placed in issue the following matters, being:
·        There are a number of specific incidents which are not capable of aggregation.
·        Essentially there are two incidents to be relied upon, being November 2004 and May 2015, with a doubtful incident in October 2015.
·        The defendant accepts there were compensable injuries to the back and the neck, but that they have resolved; alternatively, at least the neck injury has resolved.
·        The right shoulder injury is unrelated to employment, other than being referred pain from the cervical spine.
·        Any impairment proved is not capable of satisfying the test for “serious injury”.
12The substantial issue on which the case was fought was one of causation, principally related to injury to the lumbar spine. The issue was not whether the plaintiff’s lumbar spine condition is sufficiently connected with her employment to satisfy the opening words of s326 of the Act. Rather, the issue is whether the plaintiff had discharged the burden of proving which of two, or three, events she identified as occurring in the course of her employment was a cause of serious injury consequences, each considered independent of the other.
13The plaintiff relied upon two affidavits, sworn 1 April 2021 and 25 March 2022, and gave viva voce evidence. She was cross-examined. In addition, both parties relied upon medical reports, and other material, which was tendered into evidence. I have read all the tendered material.
14In her affidavit in support of her application sworn 1 April 2021, the plaintiff swore, at paragraph 6, as follows:
“In around March 2013, I began working for Le Pine Funeral Services, which is owned by the Defendant. I began working there in around March 2013 as a casual and in around April 2013 was made a full-time employee. I worked as a Funeral Director’s Assistant and Administrative Arranger. My job involved driving hearses, administrative tasks, arranging funerals, cleaning the funeral home, assisting loading and unloading encoffined people from the hearse to the mortuary, preparing and setting up funeral services and moving flower arrangements that were often quite heavy.”[2]
[2]Plaintiff’s Court Book (“PCB”) 13
15The plaintiff further swore as follows:
“I suffered injuries in the course of my employment, including incidents on around 1 November 2014, 1 May 2015 and 29 October 2015.
On around 1 November 2014, I was carrying a casket weighing around 70 to 100 kilograms. The casket was a Batesville brand. There was a deceased man in it who weighed 80 to 90 kilograms. I removed the casket from the hearse onto a trolley with a female hearse driver. There was a gap between the hearse and the trolley and I lowered the casket between the two. Once the casket was on the trolley, I was required to lift the casket and reposition it. I felt immediate sharp pain in my lower back, shoulders and neck.
Following the first incident, I worked the remainder of my shift back at my desk undertaking normal duties whilst continuing to be in pain. I continued to suffer from pains over the course of the next few days, with increases in pain when sitting for prolonged periods time or when lying down. I had treatment in the form of acupuncture and remedial massage and was able to return to my normal duties with restrictions.
I had a further incident on around 1 May 2015. I was again required to transfer a deceased male in a casket between two trolleys. The deceased man weighed around 80 to 90 kilograms. The casket was a ‘Sovereign’ a solid pine timber casket, which is also very heavy. After transferring the casket between the trolleys, I had spasms and a locking sensation in my mid to lower back and pain in my neck and shoulders.
I went to my General Practitioner, who prescribed me with anti-inflammatories.
On around 28 July 2015, I was referred for a[n] exercise physiology program with Ashley Gardner, Exercise Physiologist, Brooke Whittaker, Exercise Physiologist and Alice Starecki, Exercise Physiologist. I completed that program in 2016.
On around 29 October 2015, I had a third incident. I had to move a deceased male from one trolley to another trolley for a viewing. I felt immediate pain in my mid to lower back, as well as my neck and shoulders.
On around 15 December 2016, I had an MRI of my mid back and neck. I was told this showed narrowing of the spaces where the nerves run at the C4/5 level of my neck.
On around 22 December 2016, I had an MRI of my lower back. I was told there was a disc bulge at L5/S1 irritating but not compressing the left SI nerve root.
On around 31 January 2017, I consulted with Mr Knight, Orthopaedic Surgeon. He said there was no pathology that required surgery and recommended a conservative approach. He referred me for pain management.
On around 6 February 2017,1 consulted with Dr Nathan Johns, Rehabilitation Physician. He recommended a pain program assessment.
On around 3 March 2017, I had an MRI of my neck. I was told there was a disc bulge at C4/5 and a left paracentral disc bulge at L5/S1 with contact of the descending left S1 nerve root. I was told there was some suggestion of cord swelling, so I was referred to Dr Anita Vinton, Neurologist.
On around 15 March 2017,1 consulted with Dr Anita Vinton, Neurologist. She said I had T2 signal change in my neck. I was having shooting pain in my left aim.
On around 21 November 2017, I had an assessment for a pain management service at the Rehabilitation Medicine Group in Moorabbin. They recommended a 12 week pain program, which I subsequently had.
On around 29 March 2018, I was reviewed by Dr Johns, Rehabilitation Physician. I had terrible sleep at the time, which had been the case since the 2014 incident. Medications did not help. He recommended cognitive behavioural therapy.
On around 21 May 2018, I had CT guided facet joint injection to my lower back. This did not improve my pain in the long-term, but gave me some temporary relief.
On around 24 July 2018, I had CT guided right L4/5 facet joint injection with a steroid. This also did not improve my pain on an ongoing basis.
On around 21 December 2019, I had an MRI my lower back. I was told this showed disc protrusion at L5/S1 irritating the left S1 nerve root.
Since around February 2020, I have been having physiotherapy twice weekly with Jake Wilson for around 20 minutes through my workplace. I find this provides me with some temporary relief.
I also have a gym program at Curves, which is a female only gym. Other than COVID lockdown, I attended the gym approximately four times a week.
On around 6 April 2021, I was referred for radiologically examination of my right shoulder. I have yet to obtain these results.
I have had a number of General Practitioners since the initial incident in 2014, including Dr Angela Purchase, Dr Natalie Holden, Dr Andrew Smith at Cranborne Road Medical as well as Dr Alexander Tenis, Dr Lowther and Dr Ann Michael at Humphries Road Medical Clinic. My current General Practitioner is Dr Ian Kerr. This has been the case since around December 2019. The clinic is located at Humphries Road. I am currently prescribed Valium for my headaches and muscle spasms and Voltaren and Naprosyn for pain. I have been prescribed a range of medications for pain, including Panadol, Solone, Pregabalin, Panadeine Forte, Nortriptyline, Allegron, Lyrica and Gabapentin, for anxiety and depression, including Duloxetine, Avanza, Serepax, Axit and Endep and Nexium for gastrointestinal symptoms.
I continue to experience pain in my lower back, which is sharp and also involves muscle spasms. This occurs in my mid-lower lumbar region. It is present most of the day, mainly at night. I particularly have this pain after any form exercise. I have pain that radiates into my gluteal region and down to my mid-thigh level. I don’t have much pain going down my leg, but it is mainly located in my lower back and higher up on my buttocks. My lower back pain is aggravated by lifting, coughing, sneezing or standing for half an hour or more. I am able to walk for up to an hour before my back spasms begin to come on.
I continue to experience neck pain at the base of neck. The pain is present most the time and at times radiates to the right frontal region of my head. My neck pain makes it difficult to sleep. I have headaches that come on often, approximately two or three times a week. They are quite strong a last several minutes at a time.
WORK CAPACITY
My work capacity has been reduced by my injuries.
I worked on modified duties until I resigned my employment with the Defendant on around 20 July 2019. At the time of the first incident, I was working 38 hours per week and an average of 10 overtime hours.
My light duties with the Defendant involved modification of my sitting, standing, bending and lifting from the time of the first incident. I had various certificates of capacity indicating lifting restrictions.
I have now returned to work at Healthworks Physiotherapy as a part-time receptionist from July 2019. I work 25-30 hours per week with no overtime.
Given the nature of my injuries, I do not believe that I will be able to increase my hours. I am confined to light work due to my spinal injuries.
PERFORMANCE OF DAILY ACTIVITIES AND ENJOYMENT OF LIFE
My injuries have restricted my enjoyment of life and my capacity to perform daily activities.
My injuries have restricted my domestic capacity. Any activity that involves bending, standing on my feet or lifting, aggravates my back, neck and shoulder pain. These activities include doing the laundry, washing the dishes, cleaning, cooking, washing the windows, washing the car, mowing the lawn, using the whipper snipper, sweeping, hanging out the washing, grocery shopping and gardening. I had a gardener funded by WorkCover, but then that ceased. I purchased a special lawn mower and whipper snipper. I was given a long handled Dyson cordless vacuum by WorkCover. I was also assessed for the provision of a number of items by Mr Cook, Occupational Therapist. He recommended a special mop, broom, long handled duster, light weight mower that self-propelled, button started edge trimmer, long handled weed bush and long handed pruning tools. When I do any sort of domestic task, I wear a Velcro back brace. I wear it in particular when mowing, gardening, mopping or vacuuming.
My performance of activities of daily living are restricted by my injuries. I find brushing my teeth, drying my hair, toileting or putting on a bra aggravates both my neck, shoulder and back pain.
My recreational activities are restricted by my injuries. I used to enjoy golf but haven’t been golfing since around 2014. I used to enjoy ballroom dancing but also haven’t been since 2014. I used to go golfing approximately once every couple of weeks. Dancing would jar my neck and back and aggravate my pain. Golfing would involve rotating my back and neck when swinging the club, which would also aggravate my neck, shoulder and back pain.
My mobility has been restricted by my injuries. I have pain when walking and driving. On Saturday I was in the car for 45 minutes. My mother lives far away from me in Canterbury and 1 used to be able to drive and visit with her. Other than periods of COVID and restrictions, I have been restricted from visiting her as I would like. I had to get a new car with a higher and heated seat. I have difficulty getting in and out the car due to spinal pain.
My sleep has been dreadful since the first incident. I have difficulty getting to the sleep, and wake up during the night. I wake up when I roll over into a new position.”[3]
(sic)
[3]PCB 14-19

16In her second affidavit sworn 25 March 2022, the plaintiff swore as follows:
“Since the time of swearing my First Affidavit, I have had further treatment.
I no longer have a gym program at Curves. The gym was closed. I am now a member at Peninsula Aquatic Recreation Centre (PARC) in Frankston.
On around 6 April 2021, I had an x-ray and ultrasound of both shoulders.
On around 22 April 2021, I had a hydrodilatation on my right shoulder. This combined with physiotherapy led to some improvement in my right shoulder condition, although there is still a constant dull ache in my right shoulder.
I have had further pain management with Dr Gassin, Pain and Interventional Physician. I consulted with him in around May 2021. Dr Gassin ordered a bone scan with SPECT, which I had on around 2 June 2021. He told me this showed low grade uptake in the left S1 joint.
On around 30 November 2021, I had an SI joint injection on the left side.
On around 2 February 2022, I met with Dr Gassin to discuss that injection. It did not improve my condition. If anything, my buttock and hip pain has increased since the injection. It has been suggested to me that I have a radiofrequency ablation and neural ablations and further injections, including a facet joint diagnostic block.
On around 4 February 2022, I had an x-ray of my lumbar spine.
I am currently prescribed Valium for my headaches and muscle spasms and Voltaren and Naprosyn for pain. I have been prescribed a range of medications for pain, including Panadol, Solone, Pregabalin, Panadeine Forte, Nortriptyline, Allegron, Lyrica and Gabapentin and for anxiety and depression, including Duloxetine, Avanza, Serepax and Endep.
I continue to experience pain in my lower back, which is sharp and also involves muscle spasms. This occurs in my mid-lower lumbar region. It is present most of the day, mainly at night. I particularly have this pain after any form of exercise. I have pain that radiates into my gluteal region and down to my mid-thigh level. I have some pain going down my leg, but it is mainly located in my lower back and higher up on my buttocks. My lower back is aggravated by lifting, coughing, sneezing or standing for half an hour. I am able to walk for up to an hour before my back spasms begin to come on. I often wear a back brace.
I continue to experience neck pain at the base of neck. The pain is present most of the time. My neck pain makes it difficult to sleep. I have headaches that come on often. I estimate they now come on around two or three times a week. They are quite strong a last several minutes at a time.
I continue to experience a dull aching pain in my shoulders, more on the right than the left. I notice this when I am lying on my stomach and on my side. The pain radiates down my arms and at times I have pins and needles in the fingers of both hands, particularly when I am using the arms for domestic chores, such as sweeping and vacuuming.”[4]
(sic)
[4]PCB 23-24

17As to her work capacity, the plaintiff swore as follows:
“I continue to work at Healthworks Physiotherapy as a part-time receptionist. I commenced this position in around July 2019. I am working slightly fewer hours now on average than I was at the time of my First Affidavit. I was working around 25-30 hours per week with no overtime and now I am working around 22-23 hours per week. My duties are limited to reception and administration with no lifting or prolonged sitting or standing. I am coping with these hours, but believe I could not increase my hours.”[5]
[5]PCB 25
18As to performance of daily activities and enjoyment of life, she swore:
“My injuries have restricted my enjoyment of life and my capacity to perform daily activities.

My injuries continue to restrict my domestic activities in the way described in my First Affidavit. Any activity that involves bending, standing on my feet or lifting, aggravates my back and neck pain and shoulder pain. These activities include doing the laundry, washing the dishes, cleaning, cooking, washing the windows, washing the car, mowing the lawn, using the whipper snipper, sweeping, hanging out the washing, grocery shopping and gardening. I had a gardener funded by WorkCover, but then that ceased. I purchased a lighter-weight battery operated lawn mower and whipper snipper. I now pay for a man to mow my front lawn approximately every three weeks. I am able to do some of it myself but it causes me pain.
My performance of the activities of daily living continue to be restricted by my injuries as noted in my First Affidavit. I find brushing my teeth, washing and drying my hair, toileting or putting on a bra aggravates my shoulder and back pain.
My recreational activities, dancing and golfing, continue to be restricted as noted in my First Affidavit.
My mobility continues to be restricted by my injuries as noted in my First Affidavit. My father lives in Thornbury and my mother lives in Canterbury. Going to see them aggravates my back pain due to the drive.
My sleep continues to be dreadful since the first incident. I have difficulty getting to … sleep and wake up during the night. I wake up when I roll over into a new position. I wake mainly due to pain in my back but sometimes due to pain in my neck and shoulders. I generally wake around three times per night. Some times when I wake I feel pins and needles in my fingers and hands.”[6]
[6]PCB 25-26

Cross-examination of the Plaintiff
19The plaintiff was relevantly cross-examined as follows:
Q:“The first incident you describe in your affidavit was in November 2014?---
A:Yes.
Q:And you - I think you describe two of you were handling a loaded coffin?---
A:Casket, yes.
Q:A casket, was it?---
A:Yes.
Q:And you experienced an onset of symptoms when you were adjusting the coffin, the casket on the trolley?---
A:Yes.
Q:And prior to that incident had you had any problems with your back or neck?---
A:No.
Q:Or any problems with your shoulders?---
A:No.”[7]
[7]Transcript (“T”) 15, Line/s (“L”) 13-22

20Further:
Q:“From that time in November 2014 until the second incident you describe on 1 May 2015, did you have ongoing symptoms affecting your back, neck or shoulders?---
A:I had, yes.
Q:All three of those areas that I refer to or one or two of them?---
A:Predominantly my lower back.
Q:Okay. Predominantly the back but do you say that there were also ongoing problems affecting your neck and shoulders?---
A:Yes.”[8]
[8]T16, L5-12

21Then:
Q:“But I’m asking you really between the first incident and the second incident did you have any need to consult a general practitioner in relation to problems from that incident?---
A:Um, I don’t remember if I did see a GP. I think I was still seeing, um, the acupuncturist at that stage.”[9]
[9]T16, L23-28

22Next:
Q:“Between the first incident in November of 2014 and the second incident in May of 2015 did you have ongoing work restrictions?---
A:Yes, I had work restriction.
Q:And who was imposing those work restrictions?---
A:Um, the acupuncturist had written out a certificate of capacity.”[10]
[10]T17, L12-16

23Thereafter:
Q:“Okay. The second incident that you describe is on 1 May 2015 and you describe handling a loaded casket between two trolleys; is that right?---
A:Yes.
Q:And was that something that you were doing by yourself or with others?---
A:With another person.
Q:Just one other person, was it?---
A:Yes.”[11]
[11]T17, L26-31

24Next:
Q:“If you were on restricted duties … as at 1 May 2015 … You wouldn’t have been handling a loaded casted, would you?---
A:There was only one person to do that, so I did, I did assist because there’s nobody else to assist.
Q:So - are you saying that you were on restrictions at that time - - -?---
A:M’hmm.
Q:- - - but you assisted your colleague because nobody else was around?---
A:Correct.
Q:I see. But ordinarily, from 11 November 2014, your restrictions - you weren’t supposed to be assisting?---
A:No, but - - -”[12]
[12]T18, L5-16

25Thereafter:
Q:“Okay. Is it fair to say though that at least from that time [the second incident] you were not to be lifting loaded caskets including with another person?---
A:Yes.
Q:The third incident that you’ve described is on 29 October 2015 and in your affidavit you describe moving a deceased male from one trolley to another for a viewing; is that - - -?---
A:Correct.
Q:And was that deceased male in a coffin or a casket or were you – did you have to handle the body?---
A:He was encoffined. And I thought I marked in coffin or incoffined and now I can’t find it.
Q:Okay. And again were you moving the coffin alone or with somebody else?---
A:With somebody else.”[13]
[13]T18, L22 ꟷ T19, L3

26Thereafter:
Q:“… Ms Clement, is it correct that this was another scenario [the third lift] in which you knew that you shouldn’t be lifting or assisting with the loaded coffin but your colleague required assistance and there was nobody else around?---
A:Correct.”[14]
[14]T19, L20-24

27Next:
Q:“Was the October 2015 incident something which you experienced symptoms but they returned to their baseline level or was it something different?---
A:Same symptoms.”[15]
[15]T20, L30 ꟷ T21, L1

28Next:
Q:“… You obviously did from time to time assist in the carrying of - of caskets, as you’ve described?---
A:Coffins and caskets.
Q:That would be, for example, if some assistance were required where you were based or if, in dealing with the family, you felt very close to the family you might then also become involved with carrying the loaded casket? Are those the circumstances in which you would assist?---
A:Yes.
Q:And it was something of your own volition, you were able to assist if you felt you wanted to?---
A:No, it was part of my job, duty.
Q:Okay. It wasn’t - it wasn’t a core part of your duty, it wasn’t something that you had to do daily, for example?---
A:Yes.
Q:You say you had to assist with the lifting of loaded caskets on a daily basis?---
A:Yes, when - um, yes.
Q:Do you say that that’s the situation even after the first incident when you were - said you were certified, are you saying that you still continued to assist with lifting of loaded caskets from November 2014 until your employment ceased?---
A:I assisted as necessary but on repeated requests from coordination to not send - to send somebody else to help knowing that I was on certificates of capacity, so as I didn’t have to do it. There was (sic) repeated requests verbally and by email.
Q:By you?---
A:By me.
Q:And you say those were all ignored?---
A:Yes.
Q:And so you had to - you continued from November 2014 to lift caskets, loaded caskets daily?---
A:Oh, not daily but … As required, as required, when required.
Q:Yes, when required, and we know that you did when required because you (sic) the incident in May of 2015 and then in October of 2015 for which you put in WorkCover claims which were accepted but it’s correct to say, isn’t it, that your role was predominantly administrative in nature?---
A:Yes.
Q:It’s not being suggested, Ms Clement, that you didn’t do the lifting that you’ve described in your WorkCover claims?---
A:M’hmm.”[16]
[16]T21, L22 ꟷ T22, L30

29Further:
Q:“I’m suggesting - I’m putting to you, Ms Clement that you providing assistance to lift loaded caskets or loaded coffins was something that you did infrequently and when there was nobody around?---
A:Yes.
Q:That’s fair. And it’s less after the first incident in November of 2014 than it was before but not completely eliminated?---
A:Yes.”[17]
[17]T23, L4-10

30The plaintiff then agreed that she had been involved in a pain program with Nathan Jones in 2017 and 2018, who, in turn, recommended behavioural therapy, particularly for sleep and pain. It was then put to her:
Q:“Okay. Why did you quit the pain program?---
A:Well, I was still experiencing a lot of pain.
Q:At the time you quit the program, Dr Johns records, and this is at defendant’s court book 60, ‘She’s made some involvements (sic) during the pain program although she doesn’t recognise this. Although she has ongoing low back pain and headaches, she no longer has arm, neck or thoracic pain’. Would that be an accurate assessment from March of 2018?---
A:Oh, that’s his opinion, I guess. I - - -
Q:Well, the type of pain that you’re experiencing though that’s not his opinion, that’s presumably what you’ve told him?---
A:M’hmm.
Q:That at that time you had ongoing low back pain and headaches?---
A:M’hmm.
Q:But no longer have arm, neck or thoracic pain and I’m asking you whether you accept that that’s an accurate reflection of your situation as at March of 2018?---
A:Certainly my lumbar spine was, um, perhaps more prominent.
Q:Yes, that might be right but I’m putting to you something different, which is that as at March 2018 you no longer had arm, neck or thoracic pain. Do you dispute the history that Dr Johns has recorded?---
A:Well, I’ve had ongoing neck pain, so.
Q:There’s no record in any of the clinical notes from about July of 2017, on my reading, of any neck pain. Do you say that you’ve been telling your doctors that you’ve had ongoing neck pain from - for the last five years?---
A:Well, I’ve had neck pain, yes.
Q:I accept that, Ms Clement, that you had neck pain?---
A:M’hmm.
Q:And what I am putting to you is that from about the middle of 2017 you haven’t told any of your treating practitioners of that problem and, in fact, Dr Johns, and I’m suggesting on your history to him - - - ?---
A:M’hmm.
Q:- - - your problems with your arm, neck and mid-back, thoracic pain have resolved by March of 2018?---
A:I wouldn’t say resolved but I’ve been pain more into my lower back.”[18]
[18]T24, L18 – T25, L20

31Thereafter:
Q:“… Do you accept as at March 2018 you no longer had pain in your neck, arm or mid back?---
A:No, I do not accept that.
Q:And do you accept that at least from 2018 onwards you haven’t complained to your treating practitioners about problems with your neck?---
A:No, I don’t accept that.
Q:The certificates of capacity that you’ve obtained and which are in your court book and in the defendant’s court book from 2018 and 2019 are only in relation to your back; is that right?---
A:Possibly I haven’t - I haven’t looked at them.[19]
[19]T26, L22-31

32Further on:
Q:Okay. And I suggest to you that’s because in the periods where we’ve got these certificates, your only problem was your low back?---
A:I’ve focussed on my low back.”[20]
[20]T27, L7-9

33Thereafter, the plaintiff was questioned about a report from physiotherapist, Jake Wilson, from March of 2020 and thereafter, the following evidence was given:
Q:“And have you told him about your neck problems?---
A:Yes.
Q:The report that he’s written suggesting ongoing treatment is only in relation to lower back problem. Are you aware of that?---
A:Yes, because we’ve been predominantly focussing on the lower back.
Q:I suggest it’s not just a matter of predominantly focussing on the lower back, you haven’t needed any treatment for your neck and, in fact, you haven’t needed to tell anybody about any problems with your neck. Do you accept that?---
A:Well I don’t know, I believe I have told people about my neck and my headaches.”[21]
[21]T27, L26 – T28, L5

34Thereafter, the plaintiff said she remembered seeing Dr Robert Lefkovits at the request of the WorkCover insurer in late 2019. She was then asked as follows:
Q:“Dr Lefkovits has recorded, Ms Clement, ‘With the passage of time and multiple interventions treating her musculoligamentous symptoms in a conservative manner, the worker’s condition has stabilised. She no longer has any symptoms related to her cervical spine or shoulders, but still continues to have low back pain, particularly when sitting for prolonged period of time or lying’. Do you recall telling Dr Lefkovits your account of symptoms, as I have just read out?---
A:I don’t recall the conversation.
Q:But I suggest to you that that - that’s an accurate reflection, whether you recall telling Dr Lefkovits or not - that’s an accurate reflection of the situation as at the time you saw him in October of 2019. Do you accept that?---
A:If that’s the timing yes, I - yes. M’hmm.
Q:You would have told him, as best you could, the symptoms and problems that you were having at the time?---
A:Yes.”[22]
[22]T28, L12-27

35Later, the plaintiff was asked:
Q:“… You resigned from employment in about July of 2019?---
A:Yes, that’s correct.
Q:And leading up to your resignation you’d been performing full-time duties but with the restrictions that you’ve told the court about?---
A:Yes.
Q:And the majority of your administrative duties fell within those restrictions but you needed to avoid some of the heavy lifting which was the reason for the WorkCover claims?---
A:Yes.
Q:And it’s correct, isn’t it, that your resignation had nothing to do with any physical injury that you had?---
A:It was all about the physical injury.
Q:All about the physical injury, was it?---
A:Yes.
Q:You had a meeting on 6 May 2019 to discuss underperformance issues at work; do you accept that?---
A:Yes.
Q:And you didn’t refer to any problems arising from any physical problem, or any physical condition in that meeting, did you?---
A:No that’s not what the meeting was about.
Q:Yes. And you had a week off after the meeting, again nothing to do with any physical problems you felt bullied as a result of that meeting?---
A:No my back was very, very sore, had been very sore.
Q:And you - the meeting was on 6 May, do you accept that, 2019?—
A:I think that was the date, yes.
Q:You attended at Dr Terris on 20 May 2019?---
A:Yes.
Q:[His note states] ‘Had a work meeting last Monday, felt bullied and intimidated. Been tearful ever since, curled up at home. Poor sleep. Has had enough. Not coping, counselled’. That’s - I’ve read out the note, the attendance note?---
A:M’hmm.
Q:That’s what you were concerned about following the meeting in May. It had nothing to do with your back that attendance; that’s correct isn’t it?---
A:The attendance of the doctor; is that what you’re saying?
Q:Yes, that’s what I’m saying?---
A:That’s right, my back and my headaches were quite apparent.
Q:The - but you didn’t - there was no - sorry I’ll start that again, Your Honour. You didn’t tell Dr Terris about problems with your back and headaches on 11 May 2019; did you?---
A:I don’t know that I told him, I don’t know what the dialogue was.
Q:And I suggest to you that the previous attendance which was on 27 April 2019, there’s no reference to any problems with your back or your headaches. Your concerns at that time were ‘stress with work, apparently going to force her into job at Oakleigh’, and there was (sic) some other unrelated medical problems?---
A:Again I’m - I’m not - I’m not denying that, I just don’t know the actual dialogue.”[23]
[23]T30, L15 – T31, L31

36Thereafter, the following question was asked:
Q:“I’m putting to you, Ms Clement, that in the lead up to your resignation there’s no specific attendances on your general practitioner in relation to a physical work-caused injury and that your attendances are for unrelated stress and other medical problems. Do you accept that?---
A:Yes, I suppose, yes.
Q:And that your resignation followed a meeting where you’d - issues of underperformance had been discussed and that meeting affected you, such that you had to take a week off afterwards?---
A:Yes.
Q:Yes. Because you’d otherwise managed with your modified duties for a number of years before you’ve resigned; hadn’t you?---
A:I had.”[24]
[24]T32, L8-20

37After the plaintiff resigned, she agreed she saw her general practitioner, Dr Ian Kerr, with whom she had discussed her back problems and her new job. She was asked:
Q:“… Since December 2019 he’s been overseeing the treatment and management of your back and other conditions?---
A:Ah, Dr Kerr has and Dr Gassin.”[25]
[25]T34, L4-6

38Further, the plaintiff accepted that she had undertaken a procedure by way of injection by Dr Robert Gassin, pain specialist, on 30 June 2021. She was asked:
Q:“… Have you been back to him since that time?---
A:Yes, he did a procedure the end of November.
…
Q:… so he’s written in his report of 2 December that you hadn’t returned to him since 30 June 2021 but he did the injection in November, did he?---
A:Yeah. I think it was the 30th November. I think the injection was done.
Q:And have you been back to him since November?---
A:Yes, yes, cause I had to have a follow up.
Q:When was that?---
A:Oh, follow up - - -
Q:Was it this year?---
A:This year … oh, January, like, January/February perhaps.”[26]
[26]T34, L15-29

39Thereafter, she was asked:
Q:… are you scheduled for another review or has he discharged you from his care?---
A:No. He would like me to have further treatment, the first of which is of some sort of a nerve block and then failing the - ah, if I don’t get any positive results from that, he then wants to do another procedure, something like a nerve ablation or something - I think he’s called it a radio frequency something, I’m not too sure of the wording.
Q:These are treatments that he’s discussed with you for your lower back?---
A:Correct.
Q:And are you scheduled to have them or is it still under consideration, what’s the situation?---
A:Um, he has, to my knowledge he’s been - has requested to the insurer for further medical and ongoing treatment.
Q:And do you know when he requested that?---
A:Ah, it was only, like, a couple of weeks ago, I think, something like that, a week, 10 days, two weeks something like that.
Q:Right. But you would like to pursue - you would like to pursue the treatment that Dr Gassin proposes to undertake?---
A:If he thinks that that is the right thing for me to have, certainly.

Q:And that’s what he’s recommended to you, has he, that’s why he’s written for approval?---
A:Yes, that’s right.
Q:Do you understand that that might - do you understand that that might assist with your lower back symptoms?---
A:Yes.
Q:And is that something, are you aware, that he has written to Dr Kerr about or are you not sure?---
A:I’m not sure.
Q:When did you last attend Dr Kerr?---
A:Oh, maybe over 12 months maybe ago, since I’ve been, since he handed me on to Dr Gassin.”[27]
[27]T35, L1-30

40The plaintiff thereafter agreed she saw a Dr Okoronkwo at the Young Street Clinic in Frankston on 19 March 2021, and it was put to the plaintiff as follows:
Q:“… but on 19 March 2021 the doctor’s recorded ‘Wants to have ultrasound and X-ray right shoulder. [It says] V right shoulder pain going back from work place injury.’ Then it says, ‘On examination right shoulder nil obvious shoulder and good range of movement. Advised shoulder is fine. Insists on having imaging both shoulders. Referral given for right one.’ Do you recall attending at the Young Street Medical Centre in March of 2021 and asking for imaging of both your shoulders?---
A:Ah, possibly - possibly.
Q:And were you advised by the doctor that your shoulder was fine?---
A:Um, no, I - I don’t recall that. I don’t recall that.
…
Q:… You then went to Dr Kerr a couple of days later, on 22 March 2021 … and he’s recorded ‘painful right shoulder after shopping exacerbated by external rotation, similar symptoms left shoulder less severe’ and he referred you for scans of both shoulders; does that ring a bell?---
A:Possibly.
Q:And he’s recorded here, ‘Increased pain last week’; does that sound right?---
A:Probably, yes, if - - -
Q:Because, I’d suggest to you again in the three years or so prior to this consultation in March of 2021, you hadn’t raised any shoulder complaints with your general practitioner; would you accept that?---
A:No.
Q:You say that you did raise shoulder problems with the doctor?---
A:Yes. Yep.”[28]
[28]T36, L31 – T37, L28

41Later on, it was put to the plaintiff:
Q:“… You recalled seeing Dr Lefkovits in October of 2019 and he conducted a physical examination of you, didn’t he?---
A:Yes.
Q:Your back and your neck and both your shoulders?---
A:M’hmm.
Q:And he’s recorded that the examination of your shoulders from, as I said October of 2019, was normal. Does that – do you accept, that as at October 2019 your shoulders were essentially normal?---
A:Well, I - I don’t think so.”[29]
[29]T38, L4-12

42Thereafter, it was put:
Q:“… you say that there was a worsening of problems in around March of 2021 which caused you to attend at your general practitioner?---
A:Correct.
Q:And you were referred to Dr Siu?---
A:Correct.
Q:And he gave you a - it’s an injection or a hydro dilatation of the right shoulder which was more problematic for you?---
A:Yes.
Q:And are you scheduled to return to Dr Siu at any time?---
A:I don’t, I’m not scheduled to see him but if - if it continues, yes, I will certainly be contacting him again, yes.”[30]
[30]T38, L21-31

43Thereafter, it was put:
Q:“So the situation was you saw Dr Gassin, he said, ‘Here is what you can do and this is what I recommend’ and then you went away to think about it and then you contacted his rooms subsequently to say, ‘Yes, I’d like to go ahead with it, please make the request’?---
A:Yes.
Q:And that was about 10 days or so ago?---
A:10 days, yeah, two weeks, something like that, yes.”[31]
[31]T41, L7-13

44Finally, it was put:
Q:“Apart from Dr Gassin then, who’s looking after your back, and Dr Siu who you can go to see for your left shoulder if you decide to undertake that same procedure on the left side, is there any other treatment that you are having at the present time or scheduled to have?---
A:Um, no, I’m not having - I’m not scheduled to have any.”[32]
[32]T40, L16-21

45In re-examination, the plaintiff was asked:
Q:“… who pays for Dr Gassin?---
A:I do.”[33]
[33]T43, L2

46Thereafter:
Q:“… Why did you resign from your job at Le Pine?---
A:I could no longer fulfil my duties and the expectations of Le Pine in regard to the lifting and mechanical use of my body.
Q:And what was it that was stopping you from being able to fulfil those requirements?---
A:Ah, the weights and other pain and - - -

Q: And the pain where?---
A: The pain in my lower back, in my arms, in my neck.”[34]
[34]T43, L9-17
47As to the plaintiff providing certificates for full-time duties, but with restrictions, with Le Pine, she was asked:
Q:“How easy or otherwise was it for you at work to avoid doing heavy lifting?---
A:It was unavoidable.
Q:By the time you finished at Le Pine were you giving WorkCover certificates on a monthly or was it a three-monthly basis?---
A:I believe Dr Terris was writing three monthly certificates by that stage.”[35]
[35]T43, L27-30

The medical evidence
48The plaintiff was referred to Professor Richard Bittar, neurosurgeon, who reported on 31 January 2022. Professor Bittar was provided with a tranche of reports from treating practitioners, together with the results of various investigations of her lumbar spine, cervical spine and shoulders.
49Professor Bittar took a history as follows:
“The onset of her symptoms occurred following an injury at work on around November 1, 2014. She was assisting the hearse driver to unload a casket that weighed in the order of 70-100 kg. There was a gap between the hearse and the trolley, and she was required to lower the casket from one to the other. She was then required to lift the casket and reposition it on the trolley. As she did this, she experienced an immediate onset of sharp pain in the lower back, shoulders and neck. She remained at work, however stayed at her desk for the remainder of the shift. Her pain persisted and worsened over the following days. Her treatment at that time included acupuncture and remedial massage, and she was able to return to her normal duties without any significant restrictions.
On May 1, 2015, she re-injured herself at work whilst again transferring a deceased individual who was in a casket between two trolleys. She estimates that the individual weighed 80-90 kg, and was located in a heavy casket. After transferring the casket between trolleys, she experienced significant pain in her back, neck and shoulders. She attended her general practitioner and anti-inflammatory medications were prescribed.
Her symptoms persisted however she remained at work with some difficulty.
She commenced some exercise physiology in late July 2015, completing an exercise physiology program the following year.

She clarified that whilst her condition improved following the first episode of pain, her symptoms did not resolve. Her symptoms remained even more problematic after the second episode of pain and she remained at work despite ongoing symptoms.
She sustained a third injury at work on October 29, 2015, when she was moving a deceased male from one trolley to another for viewing. She experienced immediate pain in her mid and lower back, as well as her neck and shoulders. The pain worsened after that incident and has remained worse than it was previously.
She underwent an MRI scan of her back and neck in December 2016 and consulted with orthopaedic surgeon, Dr Michael Knight in January 2017. He recommended non-surgical treatment.
She consulted with rehabilitation physician, Dr Nathan Johns in February 2017, and a pain management program was recommended. She was experiencing some neck pain radiating into her left arm and saw a neurologist, Dr Vinton in March 2017.
She completed a pain management [program] in late 2017/ early 2018, but she denies experiencing any significant benefit from that.

She underwent CT guided epidural injection in the lumbar region on May 21, 2018 which gave her temporary benefit. She had a further CT guided injection in July 2018 which also offered a temporary benefit.
Ongoing treatment included physiotherapy and analgesic medications as required.

She was experiencing significant shoulder pain and saw an orthopaedic surgeon who carried out a hydrodilatation procedure. This has offered her some benefit, however she continues to experience significant shoulder related symptoms.
She was referred to musculoskeletal physician, Dr Rob Gassin, and saw Dr Gassin in May 2021. Dr Gassin recommended a nuclear medicine scan which was performed on June 2, 2021. I reviewed the radiology report of this scan which demonstrated low grade uptake in the left sacroiliac joint.
Dr Gassin recommended left sacroiliac joint diagnostic injection, and this was carried out on November 30, 2021. This did not provide her with any significant benefit. She is due to be reviewed by Dr Gassin again in the near future.
She resigned from her position with the defendant [sic] on around July 20, 2019 due to her pain. She confirmed that at the time of the first incident at work, she was working 38 hours per week plus an average of around 10 hours overtime per week. She subsequently worked light duties with the defendant [sic] and after resigning from that position, she obtained a role as a part time receptionist with a physiotherapy practice. She remains in that role, carrying out reduced hours and performing light duties as outlined above.”[36]
[36]PCB 99
50Professor Bittar recorded the results of investigations as follows:
“I reviewed an MRI cervical and thoracic spine performed at I-MED online on December 15, 2016. Her MRI cervical spine demonstrated loss of the normal cervical lordosis with a kyphotic deformity centred at the C4/5 level.
There was a disc/osteophyte complex at C4/5. Contact with the spinal cord was being made with a slight increase in spinal cord signal on T2 imaging. Her thoracic spine was normal.
I reviewed a CT cervical spine performed on December 22, 2016 at I-MED online. This demonstrated disc/osteophyte complex at C4/5, consistent with appearances seen on MRI.
I reviewed an MRI lumbar spine performed at I-MED online on December 22, 2016. This demonstrated a left paracentral disc protrusion at L5/S1. The disc protrusion was contacting and slightly displacing the left S1 nerve root.
I reviewed MRI cervical spine performed on March 3, 2017 at I-MED online. This demonstrated the kyphotic deformity at C4/5 with contact being made with the cervical spinal cord. No definite signal change was seen in the spinal cord at that time.
I note that she underwent a CT guided epidural injection on May 21, 2018.
I note that she underwent CT guided facet injection targeting the right L4/5 facet on July 24, 2018.

I reviewed an MRI lumbar spine performed on December 20, 2019 at I‑MED online. This demonstrated mild retrolisthesis at L5/S1 with loss of disc space height and disc desiccation. A small residual disc prolapse was present, however this was reduced in size when compared to on previous imaging, and was contacting and only slightly displacing the left S1 nerve root.”[37]
[37]PCB 100
51Professor Bittar’s findings on examination were:
“On examination, she was a pleasant and cooperative lady who walked with a non-antalgic and non-myelopathic gait. She had moderate restriction of lumbar spine extension which was painful and mild restriction of cervical spine extension which was painful. Rotation of her neck to the right was also slightly limited and painful.
She had exquisite tenderness over the left sacroiliac joint and lumbosacral facet joint. There was minimal tenderness in the cervical spine. There was bilateral lumbar paravertebral muscle spasm, but no muscle spasm in the neck.
Neurological examination did not reveal any evidence of radiculopathy or myelopathy.

There was no abnormal illness behaviour.”[38]
[38]PCB 101
52Professor Bittar’s diagnoses were as follows:
“1. Aggravation of cervical spondylosis with ongoing neck pain.
2. Aggravation of lumbar spondylosis.
3. L5/S1 intervertebral disc prolapse.”[39]
[39]PCB 101

53As to causation, Professor Bittar stated:
“In my opinion, her employment with Le Pine Funeral Services has been a significant contributing factor to her cervical and lumbar spine conditions. Specifically, the three incidents described above, all of which occurred at work, as well as her frequent heavy lifting undertaken during the course of her employment with Le Pine, have been a significant contributing factor.”[40]
[40]PCB 101
54In relation to the plaintiff’s prognosis, Professor Bittar stated:
“…, this is guarded. She has very longstanding neck and lower back related symptoms and associated disability, and despite further treatment, she will most likely continue to experience pain and disability into the foreseeable future.”[41]
[41]PCB 101
55As to her work capacity, Professor Bittar stated:
“In my opinion, she is permanently incapacitated for full pre-injury duties. She does have the capacity to work as a receptionist, however she would not be able to work more than 22 hours per week on a reliable and consistent basis. She requires permanent restrictions including the avoidance of lifting more than 10 kg as well as the avoidance of bending, twisting, and prolonged sitting and standing.”[42]
[42]PCB 101
56It was Professor Bittar’s opinion that the plaintiff’s employment with Le Pine was a significant cause of her spinal injuries and that the restrictions as outlined in his report were permanent.[43]
[43]PCB 102
57Finally, it was Professor Bittar’s opinion that the plaintiff was able to work a maximum of 22 hours per week and it was extremely unlikely that she would be able to work a greater number of hours reliably and consistently in the future.
58The opinions expressed by Professor Bittar were consistent with the opinions of the treating practitioners who provided medical reports at pages 28-49 of the PCB. They were also consistent with the medico-legal opinion of specialist occupational physician, Dr James Rowe, in his report dated 2 December 2021, and those of orthopaedic surgeon, Ms Ash Chehata, with respect to the plaintiff’s shoulder condition, in his report dated 10 February 2022 at PCB 103.
59The plaintiff also tendered in evidence the defendant’s medical report obtained from Professor Vernon Marshall, general surgeon, dated 11 December 2020.[44]
[44]PCB 108
60After taking a relevant history and physical examination, together with viewing investigations, Professor Marshall considered that the diagnosis was one of –
“Work strain soft tissue injury to spine with persisting symptoms particularly in cervical and lower back. Chronic pain syndrome.”[45]
[45]PCB 113
61Professor Marshall also considered that the objective clinical findings were largely consistent with the range of motion determined during formal examination, and that the plaintiff continued to suffer from symptoms as described. He believed the prognosis was stable.[46]
[46]PCB 114
62In a follow-up report dated 3 March 2021, Professor Marshall reported to the defendant that he assessed the plaintiff as suffering from bilateral shoulder impairment, noting restriction of right shoulder movements, resulting in a permanent impairment of that body function.
63The defendant, for its part, tendered in evidence the Certificate of Opinion and the Reasons for Opinion of the Medical Panel dated 6 August 2020. The plaintiff gave a history of injury commencing 5 November 2014, subsequently on 1 May 2015.[47] The Panel also had recourse to the MRI scan of the thoracic spine dated 15 December 2016 and the MRI scan of the whole spine dated 3 March 2017.
[47]DCB 48, page 4
64Under a heading “Diagnosis and Material Contribution”, the Panel considered the nature of the plaintiff’s low back pain. Specifically, it noted:
“The Panel noted the imaging findings of degenerative disease of the lumbar spine. The Panel noted that apart from a short lived episode of back pain in November 2014 Ms Clement had no complaints of low back pain or dysfunction prior to the incident of May 2015 and considered that Ms Clement’s [sic] had preexisting but largely asymptomatic degenerative disease of the lumbar spine.
The Panel noted the incident of 1 May 2015 where Ms Clement developed pain after lifting a casket with a twisting motion. The Panel considered that the nature of incident is consistent an injury to the mid and lower back region which has caused an aggravation of degenerative disease of the lumbar spine.
The Panel considered the nature of Ms Clement[’]s current symptoms of low back pain which it noted is consistent with symptomatic degenerative disease of the lumbar spine, in conjunction with the clinical findings and the imaging. The Panel considered that the symptoms were consistent with the persisting mechanical low back pain, with a likely contribution from facet joint dysfunction, following an aggravation of degenerative disease of the lumbar spine.
The Panel concluded that Ms Clement is suffering from persistent mechanical low back pain and dysfunction following an aggravation of degenerative disease of the lumbar spine relevant to the claimed injury.
The Panel considered the ongoing nature of the symptoms with no subsequent injury or incident and that the alleged injury is consistent with the natural history of a condition of this nature and concluded that Ms Clement’s medical condition of persistent mechanical back pain and dysfunction following a back injury results from and has been materially contributed to by the claimed mid and lower back injury.
The Panel noted considered the nature of Ms Clement’s neck and shoulder pain and upper limb symptoms.

The Panel noted that Ms Clement[’]s complaints of neck pain, headaches and shoulder region pain and upper limb symptoms have a clear association with lying on her stomach at night.
The Panel noted Ms Clement current symptoms of headaches, neck pain and upper limb paraesthesia which are associated with her long standing habit of lying on her stomach with her arms in an out stretched position to sleep. The Panel considered that the symptoms are most likely due to traction and/or compression of neural structures such as the brachial plexus and soft tissues caused by the prolonged positioning of the arms in an outstretched position. The Panel noted that this longstanding habit of Ms Clement was not caused, or aggravated by the incident. The Panel noted the mechanism of the back injury and considered that it would not have been aggravated or exacerbated Ms Clement’s habitual sleeping position with her arms in an outstretched position. The Panel considered that the posture related symptoms of neck, shoulder pain, headaches and upper limb parasthaesia [sic] to have not been caused by, aggravated or exacerbated by the incident of 1 May 2015.
The Panel noted that the incident could have caused a soft tissue injury to the cervical and that Ms Clement likely had symptoms attributable to a soft tissue injury following the incident. The Panel noted that the symptoms associated with posture as described by Ms Clement are not consistent with a soft tissue injury.
The Panel accepted that Ms Clement was likely to have has [sic] some symptoms of neck and shoulder pain following the incident but considered that the effects of the soft tissue injury have since resolved.

The Panel concluded that Ms Clement therefore suffered a soft tissue injury of the cervical spine relevant to the claimed injury which resulted from and was materially contributed to by the claimed neck and shoulder injuries, however based on the exam[ination] findings no longer results from or is materially contributed to by any of the claimed injuries as it has resolved.
The Panel concluded that Ms Clement is suffering from posture induced symptoms of headaches, neck pain and upper limb paraesthesia which does not result from and is not materially contributed to by any claimed injury.”[48]
[48]DCB 52
65In particular, the Panel referred to the defendant’s report of Dr Robert Lefkovits, rheumatologist, dated 10 October 2019. The Panel stated:
“Dr Lefkovits opined that Ms Clement is ‘still … symptomatic with regards to … [her] lumbar region and [I] would … [accept] that there is [an] ongoing minimal component of symptomatic degenerative lumbar disease, but I do not believe that this is related to [her] original injury/injuries - more likely to be a general natural progression of constitutionally-based degenerative disease of the lumbar spine’.
The Panel noted that Ms Clement[’s] symptoms of low back pain arose after the incident of 1 May 2015 and have been persistent without abatement for any significant period of time since then since the incident. The Panel considered that Ms Clement[‘s history of persistent symptoms and the clinical findings are more consistent with an injury of the lumbar spine that has persisted rather than the resolution of an injury with the subsequent spontaneous development of symptomatic degenerative disease of the lumbar spine. The Panel formed a different opinion to Dr Lefkovits and concluded that Ms Clement is suffering from persistent mechanical back pain and dysfunction following a back injury.”[49]
[49]DCB 53-54
66Suffice to say that Dr Lefkovits reported to the defendant on 10 October 2019.[50] Dr Lefkovits took a relevant history of the lifting incident in November 2014 and also following the event in May 2015, whereupon “she became more symptomatic and compromised”.[51] Thereafter, Dr Lefkovits reported:
“With the passage of time and multiple interventions, treating her musculoligamentous symptoms in a conservative manner, the worker’s condition has stabilised. She no longer has any symptoms related to her cervical spine or shoulders, but still continues to have low back pain, particularly when sitting for any prolonged period of time or lying. … .”[52]
[50]DCB 41
[51]DCB 42
[52]DCB 42
67However, Dr Lefkovits opined:
“The worker has essentially recovered from widespread musculoligamentous strain without radiculopathy involving predominantly the lumbar spine and previously the cervical spine, relevant to accepted work injuries. The symptoms in the cervical spine and shoulder region have resolved completely, and one can consider that she has recovered from any soft tissue injury or aggravation of degenerative disease of the cervicothoracic spine at this time. She no longer has a work injury relating to that part of her anatomy. She still is symptomatic with regards to her lumbar region and I would accept that there is an ongoing minimal component of symptomatic degenerative lumbar disease, but I do not believe that this is related to her original injury/injuries - more likely to be a general natural progression of constitutionally-based degenerative disease of the lumbar spine.”[53]
[53]DCB 43
68Of course, this is the causation point with which the Medical Panel disagreed and indeed, so have the plaintiff’s medical practitioners. I particularly note that Dr Lefkovits does not nominate a time, or the evidence supporting which, whereupon the aggravation caused by the work injury ceased and the underlying condition took over.
69Finally, the defendant tendered a number of reports from consultant occupational physician, Dr David Barton, dated 1 December 2016, 19 December 2016 and 23 February 2017.
70In his first report, Dr Barton takes a history of the two injuries in 2014 and 2015 resulting in treatment and a restriction of duties at work. Dr Barton did not believe that any x-rays or investigations would be required “at this stage”. In summary, he stated:
“The worker describes a long history of persistent and widespread musculoskeletal symptoms that she relates to some heavy lifting of caskets or coffins as well as a generally physically demanding job. …
I note that she has had fairly extensive conservative treatment with impressively poor results.”[54]
[54]DCB 28

71Finally:
“On clinical examination there is no clear evidence of any ongoing physical problem. … .”[55]
[55]DCB 28
72In his second report dated 19 December 2016, Dr Barton confirmed his earlier opinion but without taking any further history or being provided with any investigations.
73In his third report dated 23 February 2017, Dr Barton noted: “Attached to this was an MRI scan report.” He stated:
“I note that you have indicated the ‘WorkSafe medical adviser’ has reviewed the MRI scan report and considers that there is ‘still an injury requiring treatment’. I’m not sure how this opinion was derived as the MRI scan shows some minor and long-standing changes, and not something that would be specifically caused by her work activities. Nor is there any evidence-based medicine supporting the role of ongoing conservative treatment in managing such apparent problems.”[56]
[56]DCB 38
74I note that Dr Barton has not been asked, and did not turn his mind to, whether the “long-standing changes” could have been aggravated by the work-related activities. In my view, Dr Barton is an outlier in the case before the Court and I prefer the analysis and opinions of the plaintiff’s practitioners, particularly that of Professor Richard Bittar.

Analysis
75It is clear enough that the injury for which the plaintiff requires ongoing regular treatment is to the lumbar spine.
76I accept the plaintiff’s evidence that part of her duties was to assist in the loading and unloading of encoffined people from the hearse to the mortuary and that this occurred on a regular basis up until the time of her resignation, despite certificates being given for light duties only.
77I accept that the first of the instances, on or about 1 November 2014, occurred when she was lifting a heavy casket and felt pain in her lower back, shoulders and neck, for which she put in a WorkCover claim about a month later, on 9 December 2014. I accept that the second of these incidents was on 1 May 2015, when she experienced spasms and pain, and a locking sensation in her back, neck and shoulders while transferring a casket. A WorkCover claim in respect of this incident was accepted. In 2015, there was a referral for some exercise physiotherapy treatment leading up until the third of the incidents on 29 October 2015. On this occasion, she was again transferring a deceased person from one trolley to another. I accept that each of these three incidents involved very similar tasks and movements and, again, she experienced pain in the same body parts, that is, the back, the neck and the shoulders.
78An MRI scan performed on the whole spine on 3 March 2017[57] notes that, at L5‑S1, there is a left paracentral disc protrusion with contact of the descending left S1 nerve root. And then, in the cervical spine, it notes, right asymmetric broad-based disc bulge at C4-5.
[57]PCB 55-56
79A later MRI scan performed in December 2019[58] was taken at a time when the plaintiff had ceased her employment and she was performing receptionist work in her new job. The MRI scan records:
“Persisting but less severe left paracentral disc protrusion L5-S1 irritating, but not compromising, the left S1 nerve root.”[59]
[58]PCB 70
[59]PCB 70
80The plaintiff was subjected to a detailed cross-examination as to her recollection of the mechanism of the three various events, and I have no doubt that she was attempting to give an accurate account of what had occurred, although her memory of treatment regimes, in chronological order, was far from perfect, but I consider she gave her evidence honestly and non-evasively.
81In respect of the condition of the lumbar spine, the many medical reports tendered by the parties show that, after November 2014, the lumbar spine remained symptomatic and was a significant reason why light duties were performed from that time onwards, subject to the requirement to assist with the lifting of the caskets and coffins, as detailed above.
82I am satisfied, on balance, that the most significant injury to the plaintiff’s lumbar spine was sustained in the event in November 2014, when she first noticed symptoms in her back, neck and shoulders, and that she never fully recovered from this first insult, especially with respect to the lumbar spine.
83It is clear from the affidavit material that the lumbar spine has been an ongoing source of symptomatology, productive of symptoms requiring invasive treatment, subsisting up until the present time, such that the plaintiff has not been able to return to normal duties since November 2014. On behalf of the defendant, it was submitted that it is for the plaintiff to establish which of the three events, or any of them, of injury to the lumbar spine, caused the physical injury consequences from which I find the plaintiff now suffers with respect to the lumbar spine. It was the defendant’s submission that, in determining the plaintiff’s application for leave, it was necessary for me to analyse the effect on her lumbar spine of each of the three incidents and, in respect of each incident, determine whether the injury sustained was a cause of the allegedly serious injury consequences which the plaintiff now experiences in her back.
84Further, it was submitted that it would be wrong to allow the plaintiff to rely on the cumulative effect of the three events. To do so, it was submitted, would be to permit the plaintiff to aggregate the effects of separate incidents of injury and to aggregate them in a way that was prohibited by the Court of Appeal’s decision in Lu v Mediterranean Shoes Pty Ltd.[60] It was submitted it was necessary to dissect, out of the present back condition, the effect of each of the three injuries, and analyse the effect of each trauma in the manner described by Chernov JA in paragraph 28 of Lu, and that there was simply no evidence that would allow me to do that.
[60](2000) 1 VR 511 (“Lu”)
85Mr O’Sullivan, Leading Counsel for the plaintiff, submitted that, in a proposed cause of action for which leave was sought, the plaintiff relied upon the failure of the employer to provide a safe place of work and a safe system of work with respect to the lifting of the caskets and coffins, and that the breach of the employer’s obligations, in that regard, resulted in the repeated insults to her back whenever she engaged in the said lifting, in particular, the three events as pleaded. In those circumstances, it was submitted the plaintiff’s proposed proceeding in respect to the condition of the lumbar spine could only be seen as a single cause of action. Accordingly, it was submitted the reasoning in Lu did not apply.
86It was submitted that Lu is distinguishable on the basis that it concerned discrete injuries to different body parts on different occasions whereas, here, there is one course of employment in which the plaintiff sustained repeated insults to an identical body part in an identical manner. It is said that an injury occurring in that way is comparable to an injury occurring as a result of repeated strain injuries, culminating in a breakdown of a particular body part, for example the lower back.
87Lu was a case concerning s135A of the Accident Compensation Act 1985. It was held, there, that an elbow injury occurring as a result of repetitively removing shoes from moulds over a period of months could not be aggregated with a shoulder injury later sustained when an object fell 1 or 2 feet onto the worker’s right shoulder in an area close to his neck. The worker brought the application for leave in respect of the traumatic injury to the shoulder, alone, but sought, by aggregating the impairment so caused by the function of his right upper limb with a separately derived elbow injury, to elevate the resulting impairment of the upper limb to a serious level. Chernov JA, with whom Winneke P agreed, held that the proposed aggregation was impermissible, because the two injuries impaired separate body functions.[61]
[61]See Lu (supra) at paragraph [33]
88Mr Bingeman SC submitted that it is permissible to combine the injuries and impairments. However, Chernov JA said, at paragraph 27:
“… But no such aggregation is permissible if the non ‘serious injuries’ which impair the one body function have been caused by separate and unrelated incidents. … .”
89Further, at paragraph 28, his Honour said:
“Thus, the scheme of the legislation prohibits the relevant aggregation of two consecutive workplace injuries (neither of which is a ‘serious injury’) that have arisen from discrete incidents notwithstanding that they impair the one body function. … .”
90Relevantly, Chernov JA referred to Papadopoulos v Pacific Dunlop Ltd.[62]
[62](Unreported) VSCA, 18 September 1996, BC9604700 (Phillips JA; Winneke ACJ and Hayne JA
91The Court of Appeal’s decision in Papadopoulos[63] points to a different approach from that taken in Bell Radiology (a Firm) v McGraw,[64] which was, again, followed in a subsequent case of Perinetti v Anglo Italian Holdings Pty Ltd.[65]
[63]Supra
[64](Unreported) VSCA, 7 February 1966, BC9600138 (Tadgell JA)
[65] (Unreported) VSCA, 21 July 1996, no. 8654/94, BC9603506
92In Perinetti,[66] Tadgell JA, at page 10, stated:
“… Nor, in my opinion, is it appropriate, in a case like this, to treat a series of incidents relied on to show negligent failure to provide a safe system of work as giving rise to an equal series of causes of action. This Court’s decision in Bell Radiology v McGraw (unreported, 7 February 1996) describes the proper approach.”
[66]Ibid
93On the other hand, Papadopoulos[67] was a case in which:
“… the appellant’s case was of two separate incidents, and although he conceded that he had made no complaint and had not requested assistance in lifting rolls before he hurt his back in the first incident, he claimed, as I have said, that he sought assistance during the period between the first and second incidents but was given none. He therefore relied upon the respondent’s (sic) being aware of the injury he sustained in the first incident to put the respondent on notice, as it were, and to put him in breach of his duty to take reasonable measures to protect him from the risk of further injury, the risk which, on his case, came home in the second incident some fifteen months later … .”[68]
[67]Supra
[68]Papadopoulos v Pacific Dunlop Ltd (supra) (per Phillips JA) at 6
94And later, at page 7:
“… it was open to the jury to have found negligence in relation to the one incident but not in relation to the other, and it is apparent from what I have briefly described of the case that the appellant’s case had different strengths and weaknesses according to the incident under consideration.”
95On the authorities, there is support for the contention that if a worker engages in a system of work in which he or she sustains repeated insults or strains to a single body part – the cumulative damage so sustained producing serious injury consequences for the worker – that, in an appropriate case, leave might be obtained to sue for the aggregated result of the repeated insults or strains. Injury occurring by such a “process injury” are clearly within the statutory scheme.[69]
[69]See for example St Laurence Community Services (Barwon) Inc & Ors v Gledhill (one of the appeals that made up Barwon Spinners) and Grech v Orica Australia Pty Ltd (2006) 14 VR 602
96In Barwon Spinners,[70] at paragraph 89, Phillips JA, speaking for the Court, said:
“… as at present advised we are not at all sure that whenever a worker is injured in the same body part in successive and similar incidents, close in time and while working at the same job with the same employer, such a fine analysis of before and after each incident is always required. It might be unfortunate for the worker if, despite the final consequences, each separate incident was ruled not to amount to serious injury, or, even if the last was ruled to be serious injury because of the final consequences, the worker was not permitted to sue at common law for the earlier incidents which had perhaps brought him or her to a parlous state in the first place. The need to analyse the plaintiff’s condition both before and after each incident causing injury was certainly recognised in Petkovski, Dalton and Lu but, on further analysis, it might perhaps be that special considerations required such an approach to be taken in those cases. For example, in Petkovski the proposed defendant was the other driver in a motor vehicle accident, who obviously could be responsible only for the injury wrought in the accident. Perhaps much will ultimately be seen to turn on the precise nature and extent of the common law proceeding which the applicant for leave is proposing to bring if leave is granted. But we say no more about it because it does not matter in this case.”
[70]Supra
97These remarks should be compared to the statement by Buchanan JA in Lu,[71] at paragraph 5, to the following effect:
“… If injuries are the result of separate events, each giving rise to a cause of action for damages, each injury is to be considered separately for the purposes of determining whether any resulting impairment or loss of a body function enables each injury to meet the definition. The only relevant impairment or loss of a body function is that resulting from the defendant’s wrongful act or omission the subject matter of the plaintiff’s cause of action.”
[71]Supra
98Accordingly, I am not persuaded that the legislation requires a similar approach to that taken in Lu and Petkovskiv Galletti[72] in a case such as this. In a case where a number of insults to the same body part, in similar circumstances, have occurred close in time, and have occurred before the worker first reports the problem or seeks medical attention and diagnosis, the task of analysis of a plaintiff’s condition before and after each incident would be, quite simply, impossible. The fact the plaintiff sought medical treatment, as described above, does not render this task much easier. In the absence of clear and binding authority, I am unable to accept that, upon its proper construction, the Statute produces the result that such a difficulty bars a worker from recovering damages at all.
[72] [1994] 1 VR 436
99In this case, the plaintiff seeks leave to bring proceedings for injuries sustained as a result of repeated traumas caused to her lumbar spine by the lifting of caskets and coffins in the course of her employment which, it is said, results in a defect on a system of work which is repeated throughout her employment. The cause of action she seeks to bring is a single cause of action and, in those circumstances, I do not consider that the propositions stated in Lu require that the plaintiff dissect, out of the total condition of her lumbar spine, the consequences of each trauma. In my view, the observations made in paragraph 89 of Barwon Spinners and the earlier cases of Bell[73] and Perinetti[74] support that conclusion.

[73]Supra
[74]Supra
100Although I find that the plaintiff likely suffered injuries to her lumbar spine, cervical spine and right shoulder in the course of her employment as referred to above, it is the injury to her lumbar spine, on its own, which is productive of symptoms and consequences which I find to be “serious” as per the template set out in paragraphs 6 and 7 above. In addition, I find that there are still symptoms persisting from injury to the cervical spine which although not leading to treatment, still contribute to impairment of the spine as a whole which in itself would, accordingly, be “serious” as defined.
101In any event, I am satisfied that the injury to the lumbar spine; alternatively, the combined lumbar and cervical spine, has –
(a)   significantly affected the extent to which the plaintiff has retained function of her lumbar spine; alternatively, whole spine;
(b)   her inability to remain in her previous employment on a full-time basis;
(c)   the ongoing nature and extent of the pain suffered by the plaintiff, resulting in the treatment and medication attested to; and
(d)   the consequent limitations upon the plaintiff’s enjoyment of life, in combination, amount to serious consequences.[75]
[75]See Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [32]
102In case I am wrong with this analysis, I should say that, on the balance of probabilities, and taking into account the contemporaneous histories given, especially with the need for modified duties after the first incident, I am of the view that the injury sustained in November 2014 resulted in, or materially contributed to, the condition of the lumbar spine; alternatively, the whole spine, in respect of which this application has been made and, if it were necessary, I would have granted the plaintiff leave to bring proceedings for pain and suffering in respect of that incident alone.
103For these reasons, the plaintiff is granted leave to bring proceedings for the recovery of damages for pain and suffering consequences of the injury to her lumbar spine; alternatively, the whole spine, sustained in the course of her employment between 2013 and 2019 as a result of repeated trauma to her lumbar spine by the lifting of heavy caskets and coffins and, in particular, as a result of incidents that occurred in 2014 and 2015.

- - -

[2022] VCC 2141

16 December 2022