Curtis v National Mutual Life Association of Australasia Limited
[2010] VCC 491
•6 May 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03896
| MARY CURTIS | Plaintiff |
| v | |
| NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE WISCHUSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 and 30 April 2010 |
| DATE OF JUDGMENT: | 6 May 2010 |
| CASE MAY BE CITED AS: | Curtis v National Mutual Life Association of Australasia Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0491 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Section 134AB Accident Compensation Act 1985 – cervical spine injury – current condition conceded to amount to “very considerable” – whether current condition caused by injury relied upon.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Blanden SC with | GPZ Pty |
| Mr M Gray | ||
| For the Defendant | Mr P R Trigar | Herbert Geer |
DRAFT
HIS HONOUR:
1 This proceeding, brought by Originating Motion, is an application for leave to bring proceedings for damages for the pain and suffering consequences of injury to the plaintiff’s neck with compression of the C7 nerve root on the right side. The application is made pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”).
2 The plaintiff relies upon injury to her neck sustained as a result of a fall from an office chair in the course of her employment with the defendant on 21 May 2002.
3 At the outset, it was conceded by the defendant that the present condition of the plaintiff’s neck has pain and suffering consequences for the plaintiff which meet the “very considerable” test as explained in the authorities.
4 I was informed by Mr Trigar of counsel, who appeared on behalf of the defendant, that the sole issue in dispute was causation. This had two aspects. First, whether any injury sustained in the fall was a cause of the present state of the plaintiff’s neck. Secondly, that it was for the plaintiff to disentangle the result of the fall from the results of pre-existing, degenerative disease affecting her cervical spine.
The Evidence
5 The plaintiff relied upon two affidavits she had sworn, and was cross- examined.
6 The defendant called the plaintiff’s treating chiropractor, Dr Frangos. Each of the parties tendered medical reports and radiological reports from the Court Books. In addition, some clinical records and medical certificates were also tendered.
7 The causation issue, identified in discussions with counsel at the
DRAFTcommencement of the case, was developed in the course of the cross- examination of the plaintiff. It emerged that the factual issue between the parties was whether the plaintiff’s account of the development of symptoms after the fall was true, or whether, as it was put to the plaintiff, the fall only became a significant event in her mind after it became clear that the plaintiff had a serious problem with her neck.
8 In cross-examination, the defendant took the plaintiff to a number of medical records, reports, certificates and documents that came into being in the months immediately following the fall, the content of which the defendant suggested pointed strongly against a conclusion that any injury of significance had been sustained in the fall.
9 The medical evidence as to the plaintiff’s condition before the fall was not extensive. Reference was made to three attendances, dating back to 1996, on general practitioners for symptoms that were, or may have been, related to neck problems, although the plaintiff could not recall some of them.
10 As to her pre-fall health, the plaintiff swore that:
“I sustained injury on the 21st May 2002. Prior to this date my health was excellent and I lost very little time from employment due to ill health. At various times however I needed to take time off work to care for my daughter who had chronic fatigue syndrome. The reason I converted from full time to part time employment whilst I was employed with AXA was to spend time caring for my daughter.
Prior to my injury on the 21st May 2002 I had experienced some pain when using the mouse and typing on my keyboard. The pain had started from my neck and upper back in my shoulder and radiated down my arm through my elbow down to my wrist. I had felt pain under my armpit when using the mouse and I had a bit of pain radiating into my scalp. I had commenced seeing a chiropractor for these pains.”[1]
And:
“Prior to my neck injury I was fit and healthy. I walked regularly. I ran with my husband three times a week. I attended a gym. Since my neck injury I have ceased doing all of that. I used to do a lot of drawing and sketching prior to my injury but I no longer do so. This drawing and
DRAFT
[1] Plaintiff’s first affidavit of 15 May 2008 at Plaintiff’s Court Book (“PCB”) 16
sketching involves fine motor movements and I am unable to do that without causing more pain to myself. I am able to cook but not in the fashion that I used to prior to the injury. I no longer chop vegetables and I use a chopper appliance. I no longer blend by hand but use a blender. I no longer grate with a normal grater. I limit myself to simple meals so that I do not have to stand over the stove.”[2]
[2] Plaintiff’s second affidavit of 30 March 2010 at PCB 28
11 A further account of the plaintiff’s pre-fall condition is set out in the plaintiff’s Claim for Compensation which was accepted by the agent of the Victorian WorkCover Authority.[3] The Claim Form was accompanied by a three-page handwritten statement made by the plaintiff and dated 18 June 2002. The statement describes her health before the fall in these terms:
“Over the last year I have been experiencing pain when using the mouse and typing on my keyboard. Pain starts from my neck and upper back, in my shoulder and radiates down my arm through my elbow down to my wrist. I have a lot of pain under my armpit when using the mouse and I get a lot of pain radiating into my scalp. I have been seeing I [sic] chiropractor for these pains.”
[3] Defendant’s Court Book (“DCB”) 1-6
12 That paragraph of the handwritten statement amplifies some notes which are (partially) reproduced in the photocopy of the Claim Form[4] in answer to the question numbered 30. The statement goes on to describe the development of the plaintiff’s symptoms in the days after the fall, specifically the development of the numbness of her fingers in her right hand about a week later, so that she telephoned her chiropractor, Dr Frangos, who referred her for x-rays.
[4] The photocopy, DCB 2, crops part of the handwritten responses to Questions 30 and 31
13 It was put to the plaintiff that she had failed to inform a number of medical examiners of her pre-fall symptoms, if effect that she had concealed them when giving her histories – the plaintiff’s response was that she had answered all of the questions she had been asked.
14 The plaintiff’s account of her pre-fall symptoms was not significantly challenged in cross-examination. Nor was there any challenge to her evidence of her pre-fall ability to work, run, attend the gymnasium and
DRAFT
manage her domestic life.
15 The only other evidence as to the plaintiff’s pre-fall state came from Dr Frangos, who was called by the defendant as part of its case. Dr Frangos’ correspondence appears from pages 9 to 12 of the defendant’s Court Book. During his evidence, Dr Frangos explained that he had sold the practice at which the plaintiff received treatment from him and, despite his efforts, his clinical notes concerning his treatment of the plaintiff, which had passed to the purchaser of his practice, could not be found. Accordingly, he was speaking from his memory when he gave evidence. Dr Frangos’ report to the insurer contained this statement as to the plaintiff’s pre-fall state:
“I have known Mrs Curtis as a patient for about five years with very few
spinal or peripheral joint complaints.”
16 In his evidence, although for a time there was some confusion about this, he said the plaintiff had, for brief periods, had treatment from him, over perhaps a five-year period. His pre-fall treatment he described as “.....minor treatment for muscular discomfort, muscle spasm”.[5] Asked whether, when she first attended after the fall, she had told him of it, he replied:
“Yes, absolutely. That was the reason she saw me, and she spoke to
me, yes.[6]
[5] T 59
[6] T 63
17 In cross-examination, he agreed that the symptoms for which he treated the plaintiff before the fall were an inconvenience to her, but nothing like the symptoms which followed.[7]
[7] Transcript 59-66
Chronology of Injury and Treatment
18 Under this heading I will confine myself to the review of the medical material which came into being between the date of the fall, and the making of the diagnosis by Mr Peter McNeill, neurosurgeon, in late July 2002, that the
DRAFT
plaintiff suffered from a cervical intervertebral disc prolapse causing nerve root compression and ongoing pain. At that time, Mr McNeill thought that the MRI showed:
“A small right sided C6-7 intervertebral disc protrusion, but it is in the
foraminal region so it is somewhat critically placed.”[8]
[8] DCB 19. Mr McNeill’s analysis of what was to be seen on the MRI scan is slightly different from the radiologist’s report at PCB 31.
19 In his letter to the authorised agent, CGU, of 30 July 2002, Mr McNeill sought acceptance of liability should the plaintiff decide in favour of surgical treatment which he had suggested to her.
20 Whilst a great many medical commentators have examined the plaintiff after that time, the overwhelming weight of the medical opinions is that she continues to suffer from symptoms of nerve root compression in her cervical spine on the right side and, as already noted, it is conceded that those symptoms have pain and suffering consequences for the plaintiff which are “very considerable”.
21 The plaintiff’s account of the development of her symptoms is set out in some detail in paragraph 6 of her first affidavit.[9] The plaintiff says that having telephoned him the day before, the plaintiff attended on her chiropractor, Dr Frangos, on 30 May 2002. Dr Frangos’ report of 30 October 2002 records the plaintiff’s presentation at that time as including complaints of right-sided neck and upper limb pain, with numbness to the middle three fingers on the right hand, suboccipital pain radiating to the right ear and eye, right-sided lumbo- pelvic pain and Post-Traumatic Depression. On examination, the plaintiff was seen to undress with difficulty due to cervicothoracic pain and he found –
“… extensive protective myospasm in the cervico-thoracic junction. Pain was elicited with pressure on the right C6-7 area. Mrs Curtis also had general tightness and discomfort along the erector spinae down to the lumbosacral area although the lower back as not as severe as the neck.”[10]
DRAFT
[9] PCB 16-17
[10] DCB 10
22 On the day she had telephoned Dr Frangos, the plaintiff underwent a plain x-ray of her cervical spine which is reported[11] as showing straightening of the cervical lordosis in the lower cervical spine, lumbar scoliosis concave to the left, disc space narrowing and degenerative change affecting the C5-6 and C6-7 of the cervical spine with narrowing of the exit foramen at those levels.
[11] PCB 30
23 On 30 May 2002, Dr Frangos wrote to Mr Peter Moran, orthopaedic surgeon, a referral letter which became Exhibit 4. The referral letter makes no reference to the fall. On that day, Dr Frangos also wrote a certificate to the defendant, certifying that the plaintiff presented with “acute cervico thoracic syndrome” and would be unfit for work until 7 June 2002.[12]
[12] DCB 9
24 On 3 June 2002, the plaintiff attended the Templestowe medical practice of Dr Rene Sieber, who issued a certificate bearing that date, and in respect of an examination on 11 June 2002, issued a medical certificate on 25 July 2002.[13] Both certificates describe symptoms and suggest C6 nerve root compression is the cause, but there is no mention in either certificate of the fall.
[13] Exhibits 1 and 2 respectively
25 Dr Sieber’s report to CGU of 17 July 2002 records that on 3 June 2002, the plaintiff stated that she had had a fall at work on 21 May 2002 and that she –
“… subsequently experienced pain in the thoraco-cervical spine region and right axilla radiating down the right arm to the wrist with paresthesia of the second, third and fourth fingers in the right hand.”[14]
[14] DCB 22
26 In that report, Dr Sieber records that he/she had not seen the plaintiff since 21 June 2002 although she had been reviewed by other doctors later on. In the cross-examination of the plaintiff, the computer-generated typewritten notes of that consultation were put to the plaintiff, and although they were not tendered in evidence, it seemed common ground between the parties that they did not contain a reference to the fall, but did contain reference to the various
DRAFT
symptoms described in the report.
27 On 5 June 2002, Mr Peter Moran saw the plaintiff. A card from his clinical records became Exhibit 3.
28 When Mr Moran first saw the plaintiff on 5 June 2002, he injected her right carpal tunnel (which the plaintiff thought was to exclude that as a cause of her hand symptoms), referred her to a physiotherapist and organised an MRI scan of her cervical spine. Under the date 5 June 2002 on Exhibit 3 in black ballpoint, appears the following:
“Age forty: Typing (computer) with AXA. ‘Battery hen’ typing. Neck ache
intermittent. Occipital headaches → right frontotemporal headaches.
Right auxiliary ache … interscap pain. Right neck elbow pain. Numbness right hand one week. Wakes nocte. O/E ROM neck? R CTS: inject. And review.”
29 On the same side of that card under the same date entry, but in blue ballpoint, the following appears in a slightly smaller but apparently similar hand:
“Fall on 21/5/02 at work – fell off chair to left side – impact to floor on left
side later feel weak, unsteady on feet. Off work since 3.6.02.”
30 On 14 June 2002, Mr Moran wrote to Dr Steven Kalfas of a clinic in Koornang Road, Carnegie, the following:
“…
Mary is now 40, and works as a typist in a ‘battery hen’ environment, being chained to the computer for eight hours each day. She has had intermittent neck pain in association with occipito-frontal headaches, for which she has had treatment over the years from Leon with significant success.
She also complains of pain radiating from the interscapular region to the right axilla.
Of more acute concern is the development of numbness in the right hand over the past week. This is associated with some clumsiness, and pain and paraesthesia at nighttime in particular.
Her symptoms are not affected by cervical movement, and she has in fact a full and painless range of neck movement at present.
DRAFT
… .”[15]
[15] DCB 188
31 The next entry on Exhibit 3 appears next to the date 19 June 2002:
“Physio: Mary Toomey. Arm symptoms affected by … [illegible]: no
benefit from CT injection → MRI neck.”
32 On 1 July 2002, the plaintiff underwent an MRI scan of her cervical spine.[16] It shows degenerative changes and loss of disc height at C5-6 and C6-7 and the radiologist comprehensively reports a range of findings. Relevant to the issue in this case:
“… A broad based posterior disc bulge is present with covering osteophytes. This is more prominent in the right foramen where the disc/end-plate complex causes moderate right foraminal narrowing. There is also mild left foraminal narrowing [at C6-7]. ….”[17]
[16] PCB 31
[17] DCB 24
33 On 3 July 2002, Mr Moran recorded, on Exhibit 3:
“MRI major discogenic/degen. Pathology at C5-6/C6-7. Needs to see
neurosurgeon. Suggest P McNeill.”
34 On 5 July 2002, Mr Moran wrote back to the referring general practitioner, Dr Sieber, saying that he had seen the plaintiff with her various symptoms that developed after she had fallen off her chair at work on 21 May 2002, and that the MRI scan showed significant discogenic pathology consistent with her clinical picture, and, somewhat disarmingly, informing Dr Sieber that he had “no interest or experience in treating problems of the cervical spine” and so suggested neurosurgical review.
35 On 26 July 2002, the plaintiff saw Mr McNeill, who diagnosed a right-sided cervical intervertebral disc prolapse causing nerve root compression and ongoing pain, for which he sought acceptance of liability for surgical treatment.
36 The plaintiff has not had surgery. She has been regularly reviewed and
DRAFTinvestigated, both by treating doctors and by medico-legal commentators over the nearly eight years that have elapsed since Mr McNeill made his diagnosis. Because of the narrowness of the issue between the parties in the case, it is not necessary to recite all the later opinions, or to examine them in any detail. It is sufficient for these purposes to say that the plaintiff still has signs and symptoms consistent with a diagnosis of C7 nerve root compression, causing significant discomfort and dysfunction.
The Issues in Dispute
37 It was the plaintiff’s case that the fall from the chair on 21 May 2002 caused the disc prolapse identified by Mr McNeill and others, and that this resulted in the C7 nerve root compression which persisted to the present time and which was conceded to have produced serious injury consequences for the plaintiff. It was the defendant’s case that the fall was of little or no consequence and that the plaintiff did not attribute the neck, arm and hand symptoms (for which the plaintiff first sought treatment and advice on 29 and 30 May 2002) to the fall from the chair until after it became apparent that she had a serious problem affecting her neck. In effect, it was the defendant’s case on this point that the plaintiff’s reliance on the fall was an invention.
38 Further, it was the defendant’s case that the majority of the medical opinions in the case, which supported the conclusion that the plaintiff’s current symptoms are connected with the fall, were not informed by a full history of the plaintiff’s pre-existing problems affecting her neck and arm. It was put that the plaintiff deliberately withheld information as to her pre-fall state from medical examiners. It was contended that the opinions which supported the connection between the fall and nerve root compression, should be discounted or should not be accepted by me because they were not based upon a full history.
39 The defendant’s contentions were thoroughly explored with the plaintiff during
DRAFTher cross-examination and were the subject of detailed submissions, supported by reference to documents in the Court Books where a reference to the fall might be expected to have been found.
40 As it was put to the plaintiff, she had not told Mr Moran, Dr Sieber or anyone else that the fall was the cause of her neck and right arm pain at times when she could have been expected to do so, and that she did not make this connection until it became apparent that she had a serious problem with her neck. In particular, it was put that:
[18] Transcript 52
“Q: It’s when you get the MRI back and you realise that you have a significant problem in your neck, that’s when you start talking about the fall?--- A: I think I’ve said it, and I’ll keep saying it. I knew the fall was the reason, because I was in excruciating pain, leading up to the minute it happened – it started slowly and increased.”[18]
41 For reasons which follow, I am not persuaded that the plaintiff commenced to give the history of the fall, or to make the connection between her neck and arm symptoms and the fall, until after it became apparent she had a serious problem with her neck or until after the MRI scan revealed the problems in her neck.
42 The difficulty the defendant’s contention faces in this regard is that I am satisfied that the plaintiff did tell Dr Frangos of the fall at the end of May 2002, as his report of 30 October 2002[19] records, and this was his clear recollection when he gave evidence.[20] Further, the plaintiff very clearly blamed the fall as the cause of her numb fingers and neck pain in the Claim Form and accompanying statement which appear to have been compiled over a number of days from 13 June 2002 until 18 June 2002 (well before the MRI scan).
[19] I assume written when he still had access to his own records as he was still, at the time of writing, practising as a chiropractor
[20] T 63
43 I do not accept the defendant’s submission that the plaintiff did not tell Dr
DRAFTSieber of the fall. Dr Sieber’s report, written six weeks or so later, has a clear history of the fall which, given it was absent from the clinical notes the defendant had inspected, must have been written from the doctor’s memory at the time.[21]
[21] I suppose it is possible that the history was taken from Mr Moran’s letter to Dr Sieber of 5 July 2002, but this seems unlikely as different terminology is employed to describe the presenting symptoms.
44 So, before the MRI scan was undertaken, I am satisfied that the plaintiff had told Dr Frangos of the fall and its connection with her symptoms; Dr Sieber of the fall and its connection with her symptoms and had set out her account of the development of her symptoms in great detail in her Claim Form addressed to the employer. Whilst it is true that the medical certificates[22] and some of the referring letters passing between doctors and specialists in the case and some of Mr Moran’s correspondence do not contain a reference to the fall, these omissions from the clinical records and correspondence fall well short of persuading me that the plaintiff’s account, which is elsewhere recorded, was untrue or was fabricated for the purposes of her claim or, because she later appreciated what a serious problem she had with her neck.
[22] Exhibits 1 and 2
45 I should not leave this topic without dealing briefly with the submission that I should assume that, because it was in a different pen, the account of the fall appearing on Exhibit 3 must have been inserted later. This submission was supported by reference to Mr Moran’s letter to Dr Kalfas, which also has no reference to the fall, but reference to other matters appearing in black ink on that page, and this was contrasted with Mr Moran’s later letter of 5 July 2002 to Dr Sieber where the history of the fall does appear. The defendant, which tendered Mr Moran’s reports in support of its case, did not call him to court to explain the entry, but I was nevertheless asked to infer from the colour of the pen and its position on the card, that the history must have been taken in July rather than when he first saw her. If that were so, there seems to be no reason why he could not have written it under the date “3 July 2002”. Without
DRAFT
hearing Mr Moran’s explanation, I am not prepared to infer that the history of the fall was put in later. For that matter, even if it was, by that stage the plaintiff had told at least two practitioners about the fall and completed her claim form. I think it more likely that she did report the fall and that Mr Moran had either not recorded it, or only recorded it after he was later reminded of it. We simply do not know. What is known is that Mr Moran, at that time, had no interest in treating problems of the cervical spine, and perhaps this explains the omission.
46 I should mention that in cross-examination, the plaintiff, though somewhat irritable and not always responsive, was adamant that she told everyone she had seen over the many years between the fall and the present time, of the fall and of the symptoms that followed shortly afterwards. I accept her evidence. I do not accept that she concealed her earlier symptoms from some of the medical examiners. The history of her pre-fall symptoms had been provided to the defendant in great detail in the claim form and accompanying statement, so there seems little point in later denying what had already been volunteered.
47 The conclusion that the fall was the cause of her symptoms is also supported by the first doctor to see the plaintiff on behalf of the defendant, Mr Henry Byrne. Mr Byrne did not record the nature of the assessment he was asked to perform, nor the documents with which he had been provided. However, given the timing of the examination, I think it safe to assume it was an examination arranged in response to the plaintiff’s claim, including as it did, the history of symptoms in the year or so before the fall. Like others, Mr Byrne concluded that:
“The worker has sustained an injury, aggravated a pre-existing degenerative 5-6 or more likely 6-7 area in her cervical spine, an area which has some canal and nerve root foraminal stenosis producing the symptoms in her right arm in particular. She has also strained her lower back.
DRAFT
… .”[23]
[23] DCB 32
48 For these reasons, I am satisfied that the plaintiff’s fall from the chair on 21 May 2002 was the cause of the C6-7 disc prolapse and C7 nerve root compression diagnosed by Dr Frangos, Mr McNeill and Mr Moran in June and July of 2002[24].
[24] Even if I was in any doubt, the use that may be made of evidence of the acceptance of the plaintiff’s claim by the VWA supports this conclusion: See Ansett v Taylor [2006] VSCA 260.
49 The other point sought to be made on the defendant’s behalf was that the plaintiff’s symptoms now, in the event that I found the fall had been a cause of her symptoms in July 2002, were no longer the result of whatever happened in the fall but rather, were the result of the progress of her degenerative disease of the cervical spine over the years since. Put shortly, that she would be in her present condition regardless of whether the fall had occurred. The difficulty this contention faces is that although, especially in more recent times, a number of specialists have been asked to comment on whether her present symptoms remain connected with the fall, none of them were prepared to say they are not. Put at its highest, some allowed as a possibility that this might be the case, but the overwhelming weight of the neurosurgical and orthopaedic opinion in the case is that, accepting the fall occurred and was the cause of the symptoms the plaintiff was soon after complaining of, the fall is still a cause of the problems she now has.
50 As to the defendant’s complaint that I could not rely on the opinions which made the connection because many, if not all of them, did not have a detailed history of the nature of the plaintiff’s complaints pre-fall, this submission encounters difficulty of the type discussed in Allsmanti Pty Ltd v Ernikiolis[25] in that it assumes that if they were provided with a more detailed description of the earlier symptoms, they would recant from the opinions they have given. The conventional way of challenging the opinions is to require them to attend
DRAFT
[25] [2007] VSCA 17, para 53
and to cross-examine them by putting to them the additional material. This has not been done. If the reporting of Mr Geoffrey Klug, neurosurgeon, is in any way representative of the prospects of such a course being successful, it is easy to see why the defendant has taken this course. In a series of reports, Mr Klug was asked to address specific issues relating to causation. His first report of 23 September 2008 is in response to a letter of request of 1 July 2008 which was accompanied by a number of documents which he has not listed. It is apparent from the form in which he expresses his opinion[26] that he was specifically asked to address whether the fall was still causative of the plaintiff’s then symptoms. In the numbered paragraphs 4, 6 and 10 of that report, Mr Klug repeats his conclusion that the fall did result in significant aggravation of a degenerative condition and the aggravation has not resolved.
[26] DCB 60-62
51 Mr Klug reported again on 6 April 2010. Again, he does not say what material he had been given, but does note that the documents he received did not include one set of clinical records. Mr Klug again concluded that the plaintiff has C7 nerve root compression. He noted that the correspondence referred to complaints in 1996, 2000 and of a history of intermittent neck pain for some years before the fall. He again said he thought she had a substantial and genuine disorder affecting her cervical spine, and in paragraph numbered 4 of his conclusion,[27] said:
“… I still feel, although there may have been some pre-existing degenerative changes in her neck accounting for some symptoms, that the incident occurring during her employment was responsible for substantial aggravation which led to a progression of the disorder with such persisting to some extent up until the present time. I do not believe it is possible to exclude the incident occurring on 21 May 2002 in regard to the injury sustained and in regard to her current condition.”
[27] DCB 68
52 In answer to an even more specific question framed in terms of probabilities and possibilities directed to whether the plaintiff would be in her present condition without the fall having occurred, Mr Klug, naturally, commenced his
DRAFT
answer by saying this is a difficult question. He said that anything is possible,
but concluded:“… On the other hand I do not believe that on the basis of probabilities one can exclude the role of the specific event described as being a substantial aggravating factor. One would have to state that in the absence of that incident there is no certainty that her current condition would have progressed to a situation currently present.”[28]
[28] DCB 69
53 In response to a further request for his comments, Mr Klug wrote on 14 April 2010, on this occasion noting that he had been given the clinical notes from Templestowe District Medical Centre. Mr Klug did not think that the absence of a record of the specific incident in some of the records with which he had been provided (he had obtained such a history) should change his opinion, and he still maintained that the fall “led to a substantial aggravation leading to progression of the disorder”[29].
[29] DCB 71
54 The defendant also relied upon comments in the report of Mr Chris Xenos of 17 January 2005.[30] The defendant relied on the last paragraph[31] where Mr Xenos said:
“… I had great difficulty ascertaining whether the patient’s employment has been of any significant contributing factor at all. The fall off the chair sounds quite minor with no other injuries being sustained. … .”
[30] PCB 93
[31] PCB 94
55 Mr Xenos’ comments must be seen in context which he set himself by a disclaimer in these terms:
“I have not performed a detailed investigation of the circumstances of the injury from the point of view of litigation but only with respect to clinical reference.”[32]
and his further disclaimer at the end of his report:
“I did not take a detailed history of the mechanism of the injury.”
[32] PCB 93
56 Support for the plaintiff’s contention that the fall from the chair was the cause
DRAFTof her continuing complaints of C7 nerve root compression in the cervical spine is found in the reports of Mr Peter McNeill; Dr Leon Frangos, chiropractor; Mr Henry Byrne; Mr J T Cummins, neurosurgeon;[33] Dr Umberto Boffa;[34] Mr Keith Elsner;[35] Mr John O’Bryan;[36] Dr John Drinkwater, chiropractor;[37] Mr Michael A Polke, orthopaedic surgeon;[38] Mr Michael Troy, general surgeon;[39] Mr Ian Jones, orthopaedic surgeon[40] and, despite his lack of interest in cervical spine injury, the report of Mr Moran to Allianz.[41]
[33] DCB 45
[34] DCB 76
[35] DCB 82
[36] DCB 103
[37] DCB 108. His support for the connection between trauma and injury was expressed in terms, “It is not possible to dispute the alleged relationship”.
[38] DCB 114. Mr Polke had been provided with the plaintiff’s first affidavit which included, at paragraph 5, the history of earlier symptoms, and he concluded that the fall still played a part in the current neck condition and C7 nerve root compromise.
[39] 8 September 2005 – DCB 131. Mr Troy conducted an impairment assessment for the purposes of s.98C and 98E of the Act.
[40] 23 March 2010 – DCB 141
[41] 28 October 2004 – DCB 139
57 Mr Jones expressed his opinion, in answer to specific questions, in the negative, saying:
“I could not exclude that this patient’s current neck and right arm complaints relate to the normal progression of the degenerative affecting [sic] her cervical spine rather than the fall which occurred on 21.5.02.”[42]
[42] DCB 146
58 The plaintiff relied also on reports of Mr Michael Flaim, Dr Charles Flanc and Professor Drago. Professor Drago is a consultant neurologist who treated the plaintiff in 2003, and after extensive investigation concluded:
“… In short she fell in the workplace and sustained an acute neck injury and there is strong clinical imaging and electrophysiological evidence for a symptomatic right C7 radiculopathy. …”[43]
[43] PCB 79
59 The plaintiff also relied on Dr Steven Kalfas’ concluding remarks[44] and on the opinion of Mr Myron Rogers.
[44] PCB 101
60 For the reasons I have given, I find that as a result of the fall on 21 May 2002,
DRAFTthe plaintiff sustained injury to the cervical spine, producing disc prolapse on the right a the C6-7 level as described by Mr McNeill, compromising the existing C7 nerve root and producing C7 radiculopathy. I find that although the plaintiff had some symptoms affecting her neck and some parts of her right arm in the year or so before the fall, these symptoms were mild, did not interfere with her capacity to function at work or domestically or in her recreational life and required only infrequent treatment.[45] I find that the plaintiff’s symptoms now of C7 nerve root compression were caused by the fall and I am not persuaded by the defendant’s submission (almost wholly unsupported by any expert medical report in the case) that her neck and arm condition now is the product of the natural progression of spondylosis of the cervical spine. These conclusions are in conformity with the overwhelming weight of the medical opinion in the case and they were not sought to be contradicted by reference to any further material or more detailed history which, in any event, has been available to the defendant since the plaintiff completed her detailed Claim Form in June of 2002.
[45] It was not even suggested that the additional impairment would fail to satisfy the comparison referred to in Petkovski v Galletti [1994] 1 VR 436, at 443, and R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386
61 It follows that the plaintiff should have leave pursuant to s.134AB of the Act to bring proceedings for the pain and suffering consequences of the injury to her cervical spine sustained in a fall from a chair on 21 May 2002.
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