Diaz v Popina (Vic) Pty Ltd
[2017] VCC 1486
•21 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03319
| BELYNDA DIAZ | Plaintiff |
| v | |
| POPINA (VIC) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 23, 24 August 2017 | |
DATE OF JUDGMENT: | 21 September 2017 | |
CASE MAY BE CITED AS: | Diaz v Popina (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1486 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Petkovski v Galletti [1994] 1 VR 436; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Transport Accident Commission v Zepic [2013] VSCA 232; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms V Nadj | Zaparas Lawyers |
| For the Defendant | Ms G J Cooper | Wisewould Mahoney |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from November 2012 to May 2014 2014 (“the said period”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.
4 The body function relied upon in this application is the spine.
5 The particulars of injury were described as follows:
(a) serious injury long-term impairment and/or loss of function of her back, including but not limited to a lumbosacral injury, facet-joint arthropathy at L5‑S1, pain and limitation of movement of the back, with referred pain to the upper legs; and/or
(b) serious long-term impairment and/or loss of function of her neck, including but not limited to suffering headaches and pain and limitation of movement of the neck.
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity 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 at least very considerable and more than significant or marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 In this case, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
16 The plaintiff relied upon two affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
17 The plaintiff is presently aged forty-three, having been born in Melbourne in 1974. She is married with an eight-year old daughter.
18 After finishing Year 12, the plaintiff did an office traineeship for a year before working at Radio Rentals as a sales assistant for two years. Thereafter, she worked for Castricum Brothers in their abattoir carrying out physically strenuous work as a packer and quality controller for thirteen years.
19 Whilst in this job, the plaintiff suffered intermittent problems with her back and neck.
20 The plaintiff suffered muscular pain around her neck and trapezius area and in 2000, she attended a rheumatologist, Mr Patrick, who diagnosed fibromyalgia. She continued to suffer discomfort in her trapezius area from time to time, and attended the onsite physiotherapist at the abattoir when necessary.
21 In 2000, the plaintiff also experienced lower back pain after lifting a heavy box at work. The pain settled and she was able to continue working full time.
22 After this time, the plaintiff suffered neck and back pain from time to time, but was able to keep working.
23 In late 2003-early 2004, whilst working for Castricum Brothers, the plaintiff experienced some back pain, spreading into her leg. She saw a Dr Megally in Hallam, had x‑rays, and undertook physiotherapy treatment for a couple of months. She had a month off and ultimately returned to her normal shifts a month thereafter and her symptoms gradually resolved.
24 The plaintiff agreed she also complained to Dr Megally of some neck pain in March 2003.[3] She had a minor strain in her lower back, as a clinical note of 3 October 2003 indicated. She went on to alternative duties for a little while, but then her back pain resolved. She had some physiotherapy.[4]
[3]Transcript (“T”) 20
[4]T21
25 In 2009, the plaintiff gave birth to her daughter Georgia, and did not work for two years thereafter. After the birth, the plaintiff had some neck pain which she attributed to holding the baby and breast feeding. She saw Dr Chia and had some physiotherapy with Scott Williams. She also recalled having a bit of sciatica in March 2010, as Dr Chia reported.[5]
[5]T22
26 If Dr Chia noted a complaint of a “sore neck” in August 2010, possibly that was accurate. The plaintiff also accepted the accuracy of a note the following month of a right knee problem.[6]
[6]T23
27 The plaintiff did not go back to the abattoir after her maternity leave because it had closed down and she was made redundant.[7]
[7]T16
28 The plaintiff was possibly still having lower back problems in January 2011 which she did not actually recall. She could not remember having some pain in her left hip at that time.[8] She could recall that month having some pain in her coccyx from prolonged sitting, when she was doing a teachers aid course. She was seen by orthopaedic surgeon, Mr Cunningham, and given a cushion to sit on for maybe a month or two, but this pain settled pretty quickly.[9]
[8]T23
[9]T20
29 The plaintiff experienced some intermittent low back pain in early 2012 but it was not disabling and did not disrupt her daily activities. She could not recall attending Dr Chia in January 2012 complaining of tenderness in the left sacroiliac joint but agreed that if it was noted at that time, it was probably right.[10]
[10]T24
30 The plaintiff could recall having chest pain but could not tell exactly when that was and whether she mentioned it to Dr Chia in March 2012. Quite possibly she would have had physiotherapy then, but did not recall. She has had physiotherapy over the last ten years for some muscle strains and pains, and at times for her back and her neck.[11]
[11]T25
31 The plaintiff’s back and neck pain then settled, and she was able to work in a takeaway food shop without difficulty. She worked for four months from May 2012. That role was quite physical and involved heavy cleaning work, including mopping the kiosk floor.
32 Whilst Dr Chia noted on 4 June 2012 that the plaintiff had increasing pain over the “chest and thoracic”, having been diagnosed with fibromyalgia years ago, the plaintiff recalled having some pain in her spine in the past, but did not recall that attendance.[12]
[12]T26
33 In her first affidavit, the plaintiff also mentioned that she had suffered occasional left-sided chest pain and had had problems with anxiety and heart palpitations. She also had some pain between her shoulder blades.[13] She had an ectopic pregnancy. She had had occasional periods when she had been taking anti-depressants, and had seen a psychologist, Linda Stinton, since about 2009. Her husband had been diagnosed with a depressive condition for which he required medication.
[13]T17
Work with the Defendant
34 The plaintiff started work with the defendant in November 2012. Her shifts were normally from 9.00am until 3.00pm. There was overtime available, which she was happy to do.[14] Reasonably regularly, she worked up to twenty-five hours a week.[15]
[14]T30
[15]T30
35 The plaintiff worked as a casual employee, sifting through raw materials that went into muesli bars and cereal products. The work was repetitive and heavy. She was paid $19.03 an hour, with her usual pre-tax weekly earnings being $420.00.[16]
[16]Claim Form dated 15 May 2014
36 When the plaintiff started work with the defendant in late 2012, she did not have any significant problems with her lower back and was able to do heavy work.
37 The plaintiff confirmed very, very shortly after she started work, from early 2013, she had neck pain, associated with her work duties. She complained to the defendant and was given a chair after a few months and performed her duties partly sitting down and standing up.[17] During the middle of 2013, she started to experience lower back pain and continued working, sitting and standing.[18]
[17]T26
[18]T27
38 In July 2013, the plaintiff saw Dr Chia complaining of neck pain. She believed it was around the middle of that year that she also started to have back pain which possibly was not so bad at the time so she did not seek treatment then.[19]
[19]T27
39 In late 2013, some small stones were found in 14 tonne of pepitas and that batch of raw material needed to be checked as soon as possible.[20] The plaintiff was involved in this task through January and February 2014, working about 20 to 25 hours a week. During this period, she complained that work was hard and there was no mechanical lifter. She was given an assistant and moved to a different part of the factory.
[20]T29
40 In the new role, the plaintiff and her assistant stood on opposite sides of the tray, bent over the lip, and sifted the product, as well as pushing it to the end of the tray. This constant bending increased the plaintiff’s back pain. She was provided with a chair, but had to swivel to the side, as there was no room to put her knees under the tray.
41 In early 2014, the plaintiff’s back pain worsened, and she also had right hip pain.
42 When the plaintiff saw Dr Chia on 5 March 2014, she disagreed that her primary concern at that time was her hip, as Dr Chia noted. The plaintiff then had a lot of back pain but her concern was with right thigh pain, where she thought she had a blockage in her vein.[21]
[21]T28
43 Dr Chia then sent the plaintiff back to see the physiotherapist. X‑rays of the plaintiff’s lower back and hips were arranged and she underwent a neck ultrasound in late March 2014. Her chest was x-rayed on 1 April 2014.
44 The plaintiff advised the defendant’s quality assurance manager about the discomfort she was experiencing, and in about mid to end March 2014, he suggested a change of role: that the plaintiff job-share with the nightshift quality assurance officer, checking made products such as muesli bars. However, this change of role was not approved by senior management.
45 On 27 March 2014, Dr Chia noted the plaintiff complained of lower back pain and pain out into her hips since doing a new heavy job. The plaintiff explained her work had been heavy all the time but it was heavier around Christmas and in early 2014.[22]
[22]T28
46 The plaintiff complained to HR about her discomfort and was then advised by the WorkCover officer to see the work physiotherapist, whom she saw on 3 April 2014 weekly, for about three weeks.
47 On 2 April 2014, Dr Chia noted the plaintiff was being assessed by the work physiotherapist. She was complaining that her condition was getting worse and she had to twist a lot in the job. She complained of lower back and shoulder pain, and also hip pain, due to the change in job.[23]
[23]T29
48 The work physiotherapist recommended that the plaintiff do light duties, which she started on 4 April 2014 in the office. Before the plaintiff had handed in her WorkCover form, she was told by the defendant there was no work for her. They originally told her not to go on WorkCover and said they would look after her, and that is when she started seeing their physiotherapist and doing light duties. The work physiotherapist also wrote to Dr Chia suggesting the plaintiff try prednisolone.[24]
[24]T31
49 Dr Chia prescribed this medication, and provided the plaintiff with a light duties certificate on 9 April 2014. Her work then involved organising quality assurance documents.
50 The plaintiff elected to have ten days off work, including a week without pay from 17 April 2014. She hoped she would get better, but when she returned to work on 28 April 2014, her back and neck pain had not improved, and she remained on light office duties.
51 On 8 May 2014, the plaintiff was told she would lose her job. She was upset about this, and spoke to her solicitors and to Dr Chia.
52 At that time, the prednisolone was not helping, and the plaintiff had a tingling feeling in her legs. There was no improvement in her symptoms. Dr Chia arranged a lumbar CT scan which took place on 10 May 2014.
53 On 12 May 2014, the plaintiff was advised by the WorkCover officer that she could continue to do office duties, although the duration thereof was uncertain. She stopped work that day because Dr Chia certified her totally unfit. She lodged a Claim for Compensation on 15 May 2014 for injury to her back, neck and hips.
Treatment after ceasing work
54 Dr Chia referred the plaintiff to Dr Hall, a rheumatologist. The plaintiff then stopped treatment with the work physiotherapist, as it was making her condition worse.
55 Dr Hall arranged for an MRI scan of the plaintiff’s back, pelvis and right hip, which took place on 12 June 2014. On examination a week later, she prescribed medication and recommended the plaintiff restart physiotherapy with Terry Boyd in Langwarrin.
56 The plaintiff attended physiotherapy once or twice a week for a few weeks, and also had some hydrotherapy. However, at that stage, her claim had not been approved, and she ceased treatment because she could not afford it. Dr Hall recommended a Caulfield Hospital rehabilitation program, but the plaintiff could not get in until February 2015.
57 The plaintiff started the program on 23 February 2015, attending once a week for eight weeks. During that program, she was given exercises, physiotherapy and occupational therapy, and learnt techniques to limit the strain on her body.
58 The plaintiff returned to Terry Boyd for further physiotherapy once or twice a week from about early May 2015, which she continued until mid-2015 when funding ceased. WorkCover also paid for a pool membership at Frankston. The plaintiff had hydrotherapy for about three months.
59 The plaintiff was then getting upset as a result of her ongoing discomfort and restrictions and she was referred by Dr Chia to Linda Stinton, psychologist, in October 2015.
60 As of February 2016, the plaintiff was taking Panadol, eight tablets a day, for pain relief, as stronger painkillers upset her stomach. She took Nexium, 40 milligrams a day, and Nisac, 300 milligrams a day, for stomach upset; Celebrex, 200 milligrams several days a week on average; methotrexate, 10 milligrams once a week; folic acid, 5 milligrams once a week; and blood pressure medication.
61 The plaintiff now takes Meloxicam, an anti-inflammatory, three to four times a week. She does not take it more regularly because it causes gastric upset. She takes six to eight Panadol a day, and also Nexium. She uses a pain eraser, daily heat packs, and magnesium oil.
62 The plaintiff had experienced bad side effects with the prescription drugs Dr Hall prescribed, with sulfasalazine making her dizzy, light-headed and nauseated. Methotrexate also made her very nauseated, and reduced her immunity, which resulted in the plaintiff experiencing a chest infection.
63 As the plaintiff has a serious needle phobia, she cannot have any treatment that requires intravenous administration. She has had hypnotherapy to try to cure this phobia without success.
64 The plaintiff can cope with blood tests because the woman who takes her blood knows about her phobia and allows her to lie down while she takes it, and uses baby needles to help the plaintiff cope.
65 The plaintiff continues to see Dr Chia regularly. She has been reviewed by rheumatologist, Dr Aw, as Dr Hall has been on maternity leave.
66 Before sustaining her injury, the plaintiff was working part-time so she could take care of her daughter, Georgia, at home. She intended to return to full-time work when Georgia started school.
67 When the plaintiff suffered injury with the defendant she had been offered a full-time position. She advised the defendant she wished to commence full-time work in 2015 when Georgia started school. But for her injury, the plaintiff would have obtained full-time work as a quality assurance officer with the defendant or another company in 2015.
68 Apart from taking maternity leave, the plaintiff has worked all her life. She feels very frustrated that she is not able to continue to contribute financially to her family. She is currently in receipt of a disability support pension.
Pain
69 Having ceased work, the plaintiff’s symptoms did not improve initially. Over a long period of time after she stopped work, the nature of her pain changed a bit. It stopped being all-encompassing and became more specific and she was able to more accurately pinpoint the source of the pain. It was hard to say over what period this change occurred, but it was not immediately after she stopped work.[25]
[25]T37
70 In her first affidavit sworn on 15 February 2016, the plaintiff described constant low back pain which was the worst pain, like an ache, like she had been hit in the back. About every week, the pain became sharp and stayed that way for a day or two. The sharp pain was usually brought on by activity, usually some bending or twisting movements.
71 The plaintiff had increased back discomfort if on her feet for longer than half an hour. Her back was better if moving around, but she had to be careful to avoid straining her back when doing so. She tried to avoid stairs, as they caused increased discomfort. She used a walking stick occasionally, if she had sharp pain and had to walk more than 100 metres. The stick enabled her to more easily take the weight off her back. She tended to wobble when she walked. She did not stride out, as doing so caused increased pain.
72 The plaintiff’s back pain spread intermittently into her buttocks and the back of her thighs. She also had an intermittent pain in both hips and in the neck. About one day a week, the neck pain was much worse and gave her a bad headache, and at that time, it could be her worst discomfort. She wanted to lie down to rest for a while when she got headaches.
73 After sitting for about half an hour, the plaintiff also had increased low-back pain and wanted to move around to alter the strain on her back and eventually get up. She preferred sitting in a firm high seat from which it was easy to get up. Most days she had to lie down, usually twice during the day, to get some relief from her back and neck pain.
74 When getting up from a seated or lying position, the plaintiff had to use her arms to take the strain off her back. To get something from the ground she had to squat down to her knees, but tried to avoid doing so as it was particularly painful getting up.
75 The plaintiff continues to suffer constant pain across her lower back, radiating into her buttocks and thighs. It is a deep aching pain, unlike the pain she had previously experienced.
76 The plaintiff continues to suffer neck pain, which is aggravated with activity that requires her to look down, like chopping up vegetables, or using her arms repetitively. Her neck pain is very different from the neck trapezius pain she suffered prior to her employment with the defendant. That previous muscular type neck pain would settle with massage. She now suffers from neck pain deep in her spine that pulls on the back of her head and causes her headaches.
77 The plaintiff demonstrated the site of her pain placing her hands across her bottom and mid lower back. She thought the pain now felt like it was coming from the sacroiliac joints rather than the whole of her back.[26]
[26]T33
Pain in other joints
78 The plaintiff first reported symptoms in her hands, with swelling in the joints, at the end of 2014, but this started earlier, probably in the months before. After she had finished work, some time between May and October, she started to get swelling in her hands. She also ended up getting swelling in her elbows and wrists, and at one time it was thought she might have had carpal tunnel, but this was not diagnosed.[27]
[27]T33
79 The plaintiff denied she is still getting occasional swelling in her joints, hands and wrists. She last did so maybe six months ago.[28] She did have a period when one of her joints was particularly swollen. It might have been September 2015, as her psychologist, Linda Stinton, reported, at a time which she was having overall body pain.[29]
[28]T35
[29]T36
General stiffness
80 The plaintiff agreed, as Dr Chia recorded in November 2014, that she was waking up, feeling sore all over and having sore joints other than her back. She could recall having problems in her collarbones and her knees might have been an issue.[30]
[30]T30
81 A lot of the time now, the plaintiff does not wake up with morning pain and stiffness. As she moves around and has a shower, she finds it “sort of soothes out”. As of 2016, she woke up a little bit stiff and sore.[31] This is a lot less now, with only a little bit of stiffness in the morning.[32]
[31]T34
[32]T35
82 The plaintiff agreed there was a period last year when she had morning stiffness. As time has gone on it has subsided.[33] There was some morning stiffness in March 2017 which was less of an issue, as Dr Karna noted.
[33]T39
83 The plaintiff has continued to have a lot of neck pain, and stiffness is not as bad. She has a lot of pain in her lower back and mild stiffness.[34]
[34]T40
Activities
84 When she swore her first affidavit in March last year, the plaintiff was living with her family in a caravan where they had lived for the previous six years.
85 The plaintiff was able to do basic cooking and cleaning, and sat on a bar stool to do kitchen work. She could only bend over the sink or bench for about ten minutes before needing a break. Her husband did the vacuuming, sweeping, mopping and lifting that she had difficulty with. She could only lift several kilograms before she was likely to get increased back pain. Her husband helped with the weekly groceries, and sometimes he just did the shopping by himself. The plaintiff’s mother then lived in a cabin nearby and also helped with a lot of the household duties.
86 The family moved into a rented unit in April last year. The plaintiff continues to use a stool in the kitchen so she does not have to stand for long while preparing food. She has tried to adapt to her injury as best she can, and has recently paid friends to do the heavier housework that she can no longer do.
87 Before her injury, the plaintiff used to enjoy walking as a form of exercise and relaxation. She walked before or after work, depending on her shift, walking around the block or to the nearby sports complex. She walked with a friend, her husband or by herself, but she had to stop doing so by the second half of 2013.
88 The plaintiff continues to use a walking stick on occasion, and tends to require it when she has to walk up an incline.
89 When the family went to Queensland for a week’s holiday in October 2013, the plaintiff had a lot of neck and back discomfort, which restricted her ability to walk and enjoy herself. She put on a lot of weight on in 2014, weighing 93 kilograms in 2013, and in early 2016, weighing 105 kilograms.
90 The plaintiff socialised less since her injury. She previously enjoyed rock and roll and Latin American dancing with her husband, Rene, at the Italian club about once a month. They also went to Copa Cabana in the city. Since her injury, the plaintiff has tried on occasion to dance, but it causes her a lot of pain. It upsets her to see other people dancing.[35]
[35]T18
91 The plaintiff only goes out occasionally now, just to friends’ homes because it is hard to enjoy socialising with her discomfort sitting and standing.
92 The plaintiff’s marital relationship has been affected by her injury, and she and her husband are now not as intimate. She is frustrated at the restriction on her activities and is very anxious about the future.
93 The plaintiff is conscious of trying to be as active as she can with her daughter. She can do more if she takes more Panadol beforehand, but suffers afterwards with increased lower back pain.
94 The plaintiff is significantly restricted in her ability to engage in activities with her daughter, Georgia, as a result of her pain and immobility – such activities as walking around the Sunday market, taking her rock climbing and to places like Sovereign Hill. Georgia also misses out on social occasions because of the plaintiff’s injury, and she often has to turn down invitations from friends. The plaintiff’s mother took Georgia to Puffing Billy in the summer holidays because there were too many hills for the plaintiff to cope with.
Summary of the Plaintiff’s taxation returns
Financial Year Employer Gross Payment 2007-2008 Castricum Brothers Pty Ltd $54,820 2008-2009 Castricum Brothers Pty Ltd $53,222 2009-2010 Centrelink $8,496 2010-2011 Centrelink $8,125 2011-2012 - Nil 2012-2013 Popina $11,285 2013-2014 Popina $19,058 2014-2015 Popina $5,038 2015-16 Centrelink $8,723
The Plaintiff’s treaters
95 Dr Chia from Select Medical Group first saw the plaintiff on 5 March 2014. At that time, the plaintiff complained of sharp right hip abductor pain.
96 Dr Chia diagnosed bilateral hip abductor strain and organised physiotherapy. A lumbar spine x‑ray showed some minor sclerosis around the inferior aspect of both sacroiliac joints which Dr Chia thought was the first radiological evidence of ankylosing spondylitis (“AS”).
97 Dr Chia reported in early 2017 that the plaintiff’s final diagnosis was AS - an inflammatory condition mainly involving the sacroiliac joints and the spinal column (“the condition”). She noted that autoimmune condition was developing over the last six months.
98 Dr Chia thought the heavy duties the plaintiff performed as a quality assurance officer aggravated the condition. It had taken a while off work for the condition to slowly improve. Whilst Dr Hall had recommended physiotherapy, the plaintiff was not able to afford it, and she was currently on anti-inflammatory medication.
99 The aggravation of the condition had caused the plaintiff severe pain and Dr Chia thought presently, the plaintiff was not able to perform even the light duties offered, as they aggravated her neck.
100 In her most recent report of February 2017, Dr Chia noted that around August 2016, the plaintiff started complaining of a tingling type pain in the back of her calves, which was thought related to Celebrex. After ceasing that medication, these symptoms subsided by 50 per cent; however, the AS flared up, and the plaintiff was back on low dose Meloxicam, 7.5 milligrams.
101 Dr Chia noted the plaintiff had musculoskeletal symptoms scattered throughout her body, starting in the lower lumbar and both sacroiliac joints, and later, in her neck, then hands and feet. The AS was clinically asymptomatic at the start of the plaintiff’s employment, but the constant repetitive heavy nature of work aggravated and accelerated the condition.
102 Dr Chia considered the delay and hesitation by the defendant to accept liability also added to the plaintiff’s physical and mental state. She recalled the plaintiff being frustrated and stressed, not knowing what to do.
103 Dr Chia noted presently, the plaintiff has symptoms in her neck, hands, knees and lower back. Even light office duties are not tolerated due to her current active disease. The plaintiff suffered a lot of pain from her lower back injury condition, and is unable to perform her pre-injury duties, and even alternative employment is not currently possible. Her specialists are still trying various medications to reduce the inflammation.
104 Dr Chia thought currently, all the plaintiff’s musculoskeletal symptoms were from her AS, which was aggravated, accelerated, and exacerbated by her work. She thought the plaintiff would continue to suffer from that condition. Her cervical spine pain was also a result of the AS and injuries sustained at work.
105 Dr Chia noted at times the plaintiff’s back and knee pain affected her mobility, and the walking stick she used allowed her to mobilise.
106 Dr Chia considered the plaintiff’s prognosis was uncertain, as she did develop a severe and rapid course of AS affecting various parts of the musculoskeletal areas. Unfortunately, she noted that the plaintiff is quite intolerant to various treatments, and that is not helping to reduce the inflammation. Dr Chia thought the ongoing inflammation would result in permanent damage to the joints, and later worsening of disability.
107 Linda Stinton, psychologist, reported in February 2017, detailing the plaintiff’s treatment from 9 December 2015.
108 Ms Stinton diagnosed an Adjustment Disorder with Anxiety and Depression. She noted it was beyond her expertise to comment on the plaintiff’s work capacity.
109 Ms Stinton thought the plaintiff was resilient and noted that she had been able to put a number of strategies into place to help herself. In terms of prognosis, much will be dependent on the way the AS progresses.
Investigations
110 A CT scan of the cervical and upper thoracic spine of 24 March 2003 was reported to be normal.
111 An MRI scan of 12 March 2014 was reported to show alignment overall was satisfactory. All disc spaces were preserved. There was no evidence of any gross spurring or facet pathology. There was no evidence of recent or old bony trauma.
112 An MRI scan of both hips on 21 March 2014 was reported to show the bilateral hip joint states were preserved and there was no gross spurring. There was no evidence of a femoro acetabular impingement modelling deformity. The sacroiliac joints were clearly well-defined, with no evidence of any erosion or fusion. There was some minor sclerosis around the interior aspect of both sacroiliac joints, which it was noted was unlikely to be of any significance. There was no evidence of trauma.
113 There was a CT scan of the lumbosacral spine on 10 May 2014.
114 Dr Healy reported there was no evidence of disc herniation, nerve root impingement, or central spinal canal stenosis at any level. There was degenerative facet arthropathy at L4‑5 and more especially at L5‑S1. There was sclerosis around the sacroiliac joints consistent with incidental osteitis condensans ilii (“OCI”) and early degenerative arthritis, with no evidence of inflammatory sacroiliitis or erosions.
115 Dr Healy concluded there was no evidence of disc herniation, nerve root impairment or central spinal canal stenosis at any level. There was degenerative facet arthropathy at L4-5 and more especially L5-S1. There was sclerosis around the sacroiliac joint consistent with incidental OCI and early degenerative arthritis, with no evidence of inflammatory sacroiliitis. There were no erosions.
116 There was an MRI scan of the lumbar spine and right hip on 13 June 2014.
117 Dr Smith reported that the lumbar discs were of normal height and signal intensity. There was no disc prolapse. Neural foramina are patent. There was mild to moderate left facet joint arthropathy at L5‑S1. There was mild facet joint arthropathy. There was no pars defect.
118 Extensive sclerosis was seen involving the sacroiliac joints, particularly inferiorly. No bone oedema was identified. There was probable ankylosis on the left side.
119 Dr Smith concluded there was chronic sacroiliitis, possibly with ankylosis on the left, consistent with AS. There were no signs of vertebral body oedema or ankylosis. He noted other causes of sacroiliitis should also be considered. There was no disc prolapse.
120 Dr Smith concluded the MRI scan of the right hip of 12 June 2014 was normal and there were no signs of iliopsoas bursitis or of trochanteric bursitis.
121 No abnormality was identifiable on the MRI scan of the cervical spine on 23 June 2014.
The Plaintiff’s medico-legal evidence
122 Mr Mangos, general surgeon, examined the plaintiff in August 2014.
123 The plaintiff then complained of chronic, persistent back pain across the lower back, present all day, and aggravated by bending or prolonged sitting. There was also pain in the hips and sacroiliac joint areas with some radiation of pain into the buttocks and posterior thighs. She also had a painful stiff neck.
124 Mr Mangos had available the lumbar CT scan of 10 May 2014 and the MRI scan of 12 June 2014.
125 Mr Mangos diagnosed aggravation of lumbar and cervical spondylosis and aggravated spondylitis from the sacroiliac joints. He considered the plaintiff’s injury and condition arose out of the course of the plaintiff’s employment.
126 Mr Mangos then thought the plaintiff was certainly totally and permanently incapacitated for her pre-injury work. He could see no reason why she should not return to alternate duties if they were available – avoiding long intervals of standing or sitting, especially bending, lifting, pushing and pulling.
127 Mr Mangos thought the plaintiff seemed an intelligent lady and there was no reason why she should not do sedentary or office-type work. He suggested treatment should be conservative and her prognosis was that a return to pre-injury work was poor.
128 Mr Flanc, vascular and general surgeon, first examined the plaintiff in August 2014.
129 The plaintiff told Mr Flanc that in early 2013, she started developing mild pain in her neck and lower back, and towards the end of 2013, she was doing a different job, which was particularly heavy and which worsened her symptoms. She then started working in the office and continued suffering severe pain.
130 In May 2014, the plaintiff ceased work on a certificate from Dr Chia. At that time, she was suffering pain over the outer part of both hips, in the right groin and lower back and neck.
131 On examination, the plaintiff complained of pain across her lower back, the main pain situated over each sacroiliac joint. Occasionally, that was very severe, and at such times, spread up to involve the whole back and upper limbs. She had pain over the outer aspect of each hip on walking, crouching or walking up or down stairs, with the right leg more severely affected. She suffered intermittent pain in the right groin, which occurred at rest or on walking. Neck pain started at the cervicothoracic junction and radiated upwards, and she had some pain daily.
132 Mr Flanc had available all the earlier investigations.
133 Mr Flanc noted that the plaintiff’s most severe pain then was situated in the lower part of the lumbosacral spine, especially in the region of each sacroiliac joint. In his view, the MRI showed significant abnormality of each sacroiliac joint and the suggested diagnosis was sacroiliitis. The scan also indicated the left sacroiliac joint may be actually fused.
134 Mr Flanc noted the abnormalities on lumbar MRI raised the question of the plaintiff was suffering from AS, which was an inflammatory condition, arthritis, starting in the lower back and can spread upwards, occasionally involving other joints.
135 Mr Flanc thought the diagnosis required the particular expertise of a consultant rheumatologist, noting the plaintiff was under Dr Hall’s care. The diagnosis was made not only from the radiological appearance, but also the pattern of symptoms and the results of a number of blood investigations.
136 Mr Flanc advised it was therefore important to obtain a comprehensive medical report from Dr Hall to obtain her opinion regarding the diagnosis of the plaintiff’s low back pain.
137 Mr Flanc also noted the MRI identified some facet joint arthropathy, which is probably degenerative in nature and may be contributing to the plaintiff’s low back pain. He suggested comments should also be sought from Dr Hall about the plaintiff’s hip condition.
138 Mr Flanc thought the cause of the plaintiff’s recurring symptoms in the cervical spine was uncertain. He noted the MRI did not show any degenerative changes and it seemed likely her pain was soft tissue in origin, although the exact cause was uncertain.
139 Mr Flanc thought that the plaintiff’s work activities would be consistent with those required to cause a significant aggravation of her pre-existing degenerative condition in the spine or elsewhere, in the sense it could be made symptomatic. He considered her situation was complex, because she did not display any degenerative changes in areas other the lumbosacral spine, in which there were definite and significant changes in each sacroiliac joint.
140 Whether there was an underlying constitutional inflammatory arthritis or not, Mr Flanc thought it seemed quite likely the plaintiff’s work in some way significantly aggravated and possibly accelerated the pathological condition of her lumbar spine.
141 Whilst the exact diagnosis of the pain affecting the cervical spine was uncertain, in view of the normal MRI, Mr Flanc thought the nature of the plaintiff’s work could have resulted in soft tissue, neck, muscular and ligamentous strain, although one would have expected some improvement in this after cessation of work.
142 Mr Flanc then thought the plaintiff would not be able to cope with her pre-injury duties and should be able to cope with part-time office duties, provided she can mobilise when her discomfort becomes more severe.
143 On re-examination in February 2017, the plaintiff complained of the similar symptoms. Her low back pain was then the most severe. There was also pain over the hips, right groin and the midline of the neck.
144 Mr Flanc noted new symptoms that appeared since the last examination: pain over the metacarpophalangeal joints of both hands, pain over the proximal interphalangeal joints of both hands, painful wrists, elbow pain after typing for long periods at the computer, pain over the outer aspect of each knee and the region of the head of the fibular, and painful right foot.
145 On examination, the plaintiff was tender over each sacroiliac joint. Lumbar flexion was moderately limited, as was lateral flexion, and extension was severely limited. There was mild posterior tenderness in the cervical spine, with extension severely limited by stiffness. There was still limited active flexion of each hip because this aggravated the pain over the sacroiliac joints.
146 Mr Flanc commented that the past history indicated the plaintiff had a long past history of recurrent pain in multiple areas, including her neck and lower back, noting Dr Patrick’s earlier diagnosis of fibromyalgia.
147 Mr Flanc thought the plaintiff’s previous symptoms had remained unchanged, although she had developed increasing pain in her distal joints, including her hands, elbows and feet. He concluded the exact diagnosis of the plaintiff’s symptoms was a little uncertain.
148 Mr Flanc noted Dr Hall considered the MRI findings were consistent with AS affecting the sacroiliac joints, but he understood she considered the plaintiff’s other symptoms could also be explained by this diagnosis, even though the x‑rays did not show any significant abnormalities. Dr Hall indicated that because of the plaintiff’s blood tests, specific inflammatory markers were normal and the outlook would be better than otherwise. However, Dr Hall also based the diagnosis on the fact the plaintiff did not have any significant symptoms prior to the year and a half previously, and certainly her symptoms appear to be precipitated by work.
149 However, in Mr Flanc’s view, a review of the clinical notes of the general practitioner indicates the plaintiff had a long history of pain in a number of regions – fibromyalgia. Mr Flanc commented that this was a condition frequently referred to by a rheumatologist in which there are multiple areas of pain and tenderness with trigger points, and all of the investigations were normal.
150 Mr Flanc suggested it would be helpful to obtain an opinion from Dr Hall or the current rheumatologist to comment on this question and whether the diagnosis can still be made with confidence.
151 Mr Flanc noted that if it is considered by the rheumatologist the plaintiff is not suffering from that condition, then it is difficult to explain her continuing symptoms.
152 Mr Flanc thought one possibility was that the plaintiff’s pain was in part related to minor degenerative changes, which could be seen in the lumbar spine, but apart from that, he could not find any physical reason for her continuing symptoms. However, he noted, notwithstanding this, it is his impression that the plaintiff is genuine in her history of pain, and he had no indication that she was exaggerating her symptoms.
153 Mr Flanc noted the plaintiff did indeed have a history of pain in numerous joints, which had become more prominent since he last saw her. In particular, he noted pain in her hands, feet and elbows. However, the exact diagnosis of those symptoms was uncertain, and the question arises whether this may be related to an inflammatory arthritic condition such as. He thought the plaintiff may therefore now require a review of her condition, including imaging and blood tests, and this required further comment by a rheumatologist.
154 If the plaintiff was already suffering from that condition at the time she started work, Mr Flanc thought the nature of that work could have aggravated the condition, in the sense that it became more symptomatic than before. However, it was unlikely the nature of her work would have accelerated the progress of that condition. He considered this issue required rheumatological comment.
155 Mr Flanc thought the plaintiff would not be able to cope with her pre-injury employment or any work involving heavy lifting, frequent bending or very forceful activities with her upper limb. Considering her physical condition only, he thought she has the capacity for part-time light duties which do not involve sitting still for long periods, standing for long periods or repeated bending or heavy lifting. He thought she would also have difficulty keeping her head still and bent forwards for long periods because that would aggravated her symptoms.
156 Mr Flanc could not identify any specific occupation that would be suitable, and thought a vocational assessment may be helpful. If a light occupation were identified, he thought the plaintiff may be able to work for four hours a day, three days a week.
157 Although it was difficult to establish an exact diagnosis of her continuing pain, it was Mr Flanc’s impression that the influence of the period at work with the defendant had a greater effect than minimal as a result of the aggravation of plaintiff’s symptoms during that employment.
158 Mr Flanc thought the pathology of the plaintiff’s lower back involved ankylosis of the sacroiliac joints and minor degenerative changes in the facet joints. Her lumbar spine condition would prevent her from returning to pre-injury employment and give her difficulties with full-time alternative employment.
159 Mr Flanc thought that given the plaintiff was prone to postural neck strain, she would not be able to cope with her pre-injury duties but could cope with alternative light duties provided she could move her head around whenever her discomfort became more severe. He thought these restrictions were likely to be permanent.
160 Mr Flanc concluded the main difficulty in this complex case is the establishment of a specific diagnosis, especially because the plaintiff has a long past history of back pain. Whether it is possible to explain all the symptoms on the basis of a diagnosis of the condition should be discussed by a rheumatologist.
161 Dr Peter Blombery, pain specialist, examined the plaintiff in January 2017.
162 The plaintiff then complained of ongoing pain in the low back, as though she had been hit over that area. There was a severe ache in the affected area which fluctuated in severity. She also had constant pain in her neck and heaviness. There was bilateral hip discomfort which fluctuated in severity and which side could be worse. She had also more recently developed pain in her knees, feet and fingers, and her hands began to swell.
163 The plaintiff’s main problem however was pain in the neck, low back and hips, which she rated at 8 out of 10. She said she had also been a little bit depressed and seen a psychologist.
164 Dr Blombery diagnosed previously asymptomatic degenerative changes in the cervical and lumbar spines rendered symptomatic, and AS.
165 Dr Blombery thought the plaintiff’s pain was initially caused by a more typical work-related injury, with exacerbation of previously asymptomatic degenerative changes at both levels, which were rendered symptomatic. He felt there was also a component of a pain syndrome present in that initial presentation where there was a sensitisation of pain in her pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli of her upper cerebral cortex became interpreted as painful.
166 With the passage of time, the plaintiff developed more typical features of AS, but there was still a contributing factor from the work she was doing. He thought the symptoms of that condition would have appeared later, had she not been doing the work, and her employment was a continuing cause of her pain syndrome.
167 Dr Blombery considered the plaintiff had no capacity for pre-injury work, and given the severity of her diffuse pain in multiple joints as well as in her back and neck, she had no fitness for alternate duties. He thought the plaintiff’s incapacity for work was materially contributed to by a work injury, and that alone prevented her from doing her pre-injury or suitable employment.
168 Dr Blombery considered the plaintiff’s back injury alone would prevent her doing her pre-injury job or alternative suitable employment. Her neck injury would prevent her from doing her pre-injury job and would limit her markedly in terms of alternative suitable employment.
169 Dr Blombery thought the plaintiff’s pain, restrictions, disability and incapacity derived significantly from the physical or organic injury to her back. He made similar comments in terms of the neck injury. It was also physically based and would continue to cause similar restrictions.
170 Dr Blombery thought the prognosis now was primarily a function of the plaintiff’s AS, and it was very likely there would be a gradual deterioration and increasing stiffness in her back.
171 Pain specialist, Dr Mittal, saw the plaintiff in February 2017.
172 The plaintiff then described a deep aching pain in the neck with overlying muscle tension, worse on flexion, with no radiation to the upper limbs. She had some joint pain in both hands and elbow, but there was no upper limb weakness or sensory abnormalities.
173 There was low back pain present on either side, worse on sitting, a deep aching pain that commenced from her lower back and radiated to the buttocks and the right groin, and posteriorly to both thighs.
174 Dr Mittal had available the 2014 investigations.
175 Dr Mittal thought the neck pain was most likely secondary to overlying paravertebral muscle tenderness secondary to spasm, and there may be underlying facet joints that might be contributing. The lower back pain was most likely secondary to sacroiliac joint pain due to sacroiliitis (AS had been diagnosed), bilateral facet joint pain and overlying paravertebral muscle spasm. The pain that radiates to both buttocks and the posterior aspect of both thighs is most likely referred from the lower back.
176 Dr Mittal thought there was certainly an organic basis for the plaintiff’s reported pain symptoms. In summary, the plaintiff has AS which is responsible for part of her pain, but there is also underlying facet joint pain and overlying muscle spasm and tenderness that is contributing to her pain.
177 Dr Mittal believed the plaintiff’s employment had been a significant contributing factor to the aggravation of the pain caused by the condition. She considered the plaintiff is also likely to have had pre-existing degenerative spine disease that can take several years to develop and was most likely aggravated by the nature of her work. The presentation of this was in the form of facet joint pain and the secondary effect was overlying paravertebral muscle tenderness.
178 Dr Mittal thought the plaintiff currently has a Chronic Pain Syndrome due to her multiple locations of pain, to which work is a significant contributing factor.
179 Dr Mittal considered the plaintiff was currently not fit for pre-injury work, and whilst the question was best answered by an occupational physician, alternative duties would not involve lifting more than 3 kilograms, forward bending and sitting for more than 20 minutes, or prolonged standing. The number of hours would have to be discussed by an occupational physician.
180 Looking at the effects of the back injury only, Dr Mittal believed the plaintiff was unable to work in her pre-injury employment and alternative employment would need to be assessed by an occupational physician.
181 Looking at the effects of the neck injury only, Dr Mittal thought the plaintiff’s pain restriction and disability deriving from that component was most likely moderate. However, the low back injury would be providing a more severe contribution.
182 Dr Mittal’s opinion did not change, having read Professor Romas’ report.
183 Dr Joseph Slesenger, occupational physician, examined the plaintiff in February 2017.
184 The plaintiff then described ongoing moderate to severe neck pain with restricted range of movements. The pain radiated to the base of the neck, but not into either arm. There was ongoing severe pain in the low back, radiating to both hips.
185 The plaintiff described swelling and tenderness in the small joints of her hands since December 2014. She also advised that as a result of the work injury, she had become depressed and anxious.
186 Dr Slesenger concluded the plaintiff presented with a difficult diagnostic scenario. There was evidence to support an initial onset of neck and low back symptoms as a result of the work duties. She subsequently developed neck and lower back pain, with radiating symptoms into both hips. In addition, she also developed symptoms in the small joints of her hands. She now described significant ongoing symptoms in both her neck and lower back, with symptoms in her hips and hands.
187 Dr Slesenger considered there was significant occupational disability, as well as restrictions in the plaintiff’s capacity to perform recreational and domestic activities. She also developed a psychological impairment, although that was outside his area of expertise.
188 Dr Slesenger thought the plaintiff presented with a difficult diagnostic conundrum. In his view, there was good evidence to support a mechanical injury to the lumbar and cervical spine with some radicular symptoms in her legs, and there was evidence of a Chronic Pain Disorder. There was also good evidence to support a seronegative arthropathy. He thought there was good evidence to support a polyarthropathy – symptoms and signs in the plaintiff’s hands, hips, neck and back.
189 However, that was outside Dr Slesenger’s area of expertise, as was commenting on any psychological impairment.
190 Dr Slesenger was satisfied the occupational exposures while working with the defendant were a plausible cause of the mechanical injury to the lumbar spine and subsequently, the development of a Chronic Pain Disorder. He was unable to advise as to the causal link between workplace exposures and AS.
191 Dr Slesenger thought the plaintiff was unfit for pre-injury duties, noting her past work experience and basic computer skills. He considered office duties would be difficult for her to perform as she would not be able to sit for prolonged periods. There would be difficulties working in the role of quality assurance because she would have difficulty standing for prolonged periods.
192 Taking into account the plaintiff’s age and other relevant factors, Dr Slesenger thought she did not have a capacity for alternative duties. In terms of her back, he thought she had a theoretical capacity for work with restrictions such as pushing, bending and pulling, working four hours a day, four days a week.
193 Dr Slesenger thought it was unclear whether the plaintiff’s current impairment related to the workplace exposures or her constitutional disorder. Nevertheless, he thought both factors could be regarded as having organic effects on her back injury. He did not anticipate a significant improvement in her back condition in the foreseeable future.
194 Dr Slesenger thought the plaintiff’s neck condition was difficult to assess, noting the relatively reassuring imaging findings. There was also the initial mechanical injury to the cervical spine and subsequent probable development of a Chronic Pain Disorder. However, again, he stated there was good evidence to support the contention the plaintiff’s current impairment related to her seronegative arthropathy.
195 In terms of her neck, putting aside the mental or behavioural aspect, Dr Slesenger concluded that taking the plaintiff’s condition as a whole, she does not have the capacity to return to pre-injury work, though she may have a capacity to return to alternative light duties with significant restrictions.
196 Dr Slesenger was satisfied the plaintiff’s initial neck impairment, at least in part, related to the organic effects of the neck injury, though he noted that currently, her neck symptoms will also be related in part to the underlying seronegative arthropathy and should be addressed by the relevant expert.
197 Dr Slesenger thought the plaintiff’s prognosis must be guarded, noting the length of her impairment and disability and poor response to treatment to date, despite extensive treatment. He also noted the presence of an underlying degenerative condition that is likely to deteriorate in the foreseeable future.
198 Associate Professor Romas, Head of Rheumatology at St Vincent’s Hospital, provided two reports and was cross-examined.
199 When seen in February 2017, the plaintiff told him of the gradual onset of symptoms with mild neck pain in about early 2013, and then intermittent low back pain in September 2013, and increasing pain in both areas with a change of duties in late 2013. Despite the change to light office work, her lower back pain proved incapacitating and she stopped work in May 2014.
200 The plaintiff reported her low back pain persisted through 2015 and 2016 and never fully resolved, although since ceasing work and taking regular anti-inflammatories, this had certainly not been as exquisitely severe.
201 On examination, the plaintiff described moderate to severe low back pain, felt as a constant and deep ache over the buttocks, worse with bending and twisting. There was some lower back stiffness, but it was certainly not a major feature, and lasted for barely 20 minutes.
202 The plaintiff had generalised aches and pains in her hands, elbows, chest, knees, ankles and feet. She did not have much hip or groin pain now. She had diffuse aches, but did not describe inflammatory arthritis joint pain.
203 The plaintiff’s neck was mildly tender, with mild restriction of movement. There was mild tenderness over the sacroiliac joint. There was mild reduction of forward lumbar flexion. Neurologically, the examination was normal.
204 Professor Romas viewed the May 2014 lumbar CT scan, which showed sclerosis around both sacroiliac joints and mild degenerative arthritis of those joints, with no signs of erosions or inflammatory sacroiliitis. He thought those appearances were absolutely classical of OCI and not inflammatory sacroiliitis. There were no signs of lumbosacral disc degeneration.
205 Whilst Dr Healy concluded the OCI was incidental on that CT scan, OCI frequently causes low back pain and dysfunction and the radiologist had no knowledge of this clinical problem.[36]
[36]T81
206 Professor Romas viewed the lumbar MRI scan of June 2014 which showed sclerosis but no bone erosion or bone marrow oedema or any other findings of inflammatory sacroiliitis. There was no visible joint ankylosis. He thought the appearances were typical of OCI. There was no evidence of inflammatory bone pathology or discitis in the lumbar spine to indicate AS.
207 Professor Romas did not agree with the “amended” report and conclusions of Dr Smith, radiologist, dated 19 June 2014, that there is “chronic sacroiliitis possibly with ankylosis of the left, consistent with AS”.
208 Professor Romas explained a CT scan is better for investigating bony injury, and that is what he has relied on. The CT scan was diagnostic of OCI. The considerable sclerosis around both sacroiliac joints is consistent with OCI.[37]
[37]T80
209 An MRI scan is a better tool for investigating soft tissue and inflammatory oedema. The MRI showed nothing to indicate an inflammatory process. It did not show erosion, a finding typical of AS,[38] and it certainly did not show ankylosis, and Professor Romas was puzzled why Dr Smith amended his report or gave that interpretation.[39] In Professor Romas’ view, Dr Smith’s findings were inconsistent with his own ultimate conclusion.[40]
[38]T79
[39]T78
[40]T83
210 Professor Romas was critical of Dr Hall’s views, and thought her radiological findings were not correct.[41] He considered her diagnosis was unreasonable, because he did not think she had interpreted the radiology correctly.[42] Ultimately, the feature that has the most weight is the radiological finding.[43]
[41]T84
[42]T94
[43]T85
211 Professor Romas disagreed with Dr Hall that OCI affects only one side of the hip, although predominantly it is on the iliac side.[44]
[44]T87
212 Professor Romas thought the diagnosis was not AS. Arguing against this diagnosis was the lack of family history of AS, late onset, LAB 27 negative, normal inflammatory markers and history which is inconsistent with inflammatory lower back pain, and the radiology, which is diagnostic of an alternative cause for sacroiliac pain, which is neither inflammatory nor erosive.
213 Professor Romas stressed there was very little support for the diagnosis of AS. The history, examination and radiological findings in the context of normal inflammatory markers and negative HLAB 27 indicate conclusively the plaintiff has OCI as the cause of her lower back dysfunction. In this instance, this is not an “incidental” finding, as was noted in Dr Healy’s conclusion. There is no objective evidence the plaintiff has an inflammatory polyarthropathy.
214 Professor Romas thought there was evidence of mild persisting dysfunction due to a presumed soft tissue injury in the neck. There is no identifiable structural abnormality of the cervical spine injury by MRI scan; certainly no signs of spondylitis. This does not rule out a persisting soft-tissue injury of the cervical spine. He noted the plaintiff had, and still has, multiple discomforts and soft tissue pain and these are most likely, in his view, related to psychological factors and anxiety rather than to intrinsic organic bone joint tendon disease.
215 Professor Romas explained that OCI is a degenerative rather than an inflammatory arthritis which is driven by mechanical loading. It is, therefore plausible, and quite likely, that the plaintiff’s employment had been, and continues, to be a significant contributing factor. It is likely in this instance that the condition is constitutional but rendered symptomatic by way of aggravation in terms of work. Although the plaintiff had stopped work, OCI had persisted and was likely to persist into the foreseeable future. It can be expected to cause significant lower back dysfunction and loss of function or capacity.
216 The plaintiff’s work changed the underlying condition and the trajectory of OCI, and aggravated or accelerated the process, and it continues to have an effect in the absence of the plaintiff being at work. However, in a patient with AS, when the stresses and strain are removed, it is not a mechanically-driven condition, and any continuing symptoms are more likely to be due to constitutional factors.[45]
[45]T86
217 Professor Romas thought the prognosis may improve with appropriately dosed anti-inflammatory drug treatment, analgesics, specific physiotherapy for the sacroiliac joint, possibly by targeted sacroiliac injections and potentially by treatment with intravenous bisphosphonates, particularly in the presence of localised uptake on a bone scan (which the plaintiff has not had) indicating active bone remodelling.
218 Professor Romas considered the plaintiff was not fit for pre-injury employment and may be fit for part-time alternative employment within her physical tolerances.[46] Her incapacity for work, in his view, still results from, and continues to be contributed to, by the lower back dysfunction due to an aggravation of OCI predominantly and by the mild persistent neck dysfunction due to an unresolved soft-tissue injury.
[46]Although he deferred to an occupational physician in this regard; T76
219 Professor Romas thought the plaintiff’s pain, restriction, disability and incapacity derived predominantly from the physical injury to her back due to an aggravation of OCI. He thought it would be expected she will continue to suffer the consequences and incapacity following from the physical injury into the foreseeable future.
220 In Professor Romas’ view, the mild persisting neck dysfunction due to an unresolved soft tissue injury continues to produce an objective physical dysfunction restricting the plaintiff’s capacity to do her pre-injury work, but not necessarily restrict her capacity to undertake alternative suitable employment. He thought this was likely to persist into the foreseeable future.
221 Professor Romas provided a supplementary report in April 2017, commenting on Dr Karna’s March 2017 report.
222 Professor Romas noted, in medicine, if a specific diagnosis is preferred, then it should be preferred because all the clinical features can be explained by the selected diagnosis and none of the clinical features should be inconsistent with that diagnosis.
223 In the plaintiff’s case, Professor Romas considered all of the features can be explained by a diagnosis of OCI; namely a clinical history consistent with sacroiliac pain, the absence of nulliparity, the absence of prolonged morning stiffness, the absence of spinal signs of AS, such as the preferential loss of lateral spine flexion, the absence of HLAB 27 antigen, the absence of a family history of AS, the presence of consistently normal ESR results through 2014, the normal CRP levels in 2014 and in 2015, the positive response to NSAID drugs, and a CT scan showing that the actual sacroiliac joint spaces are normal, that is, no bone erosion, with a triangular shaped area of sclerosis, predominantly on the iliac side of the sacroiliac joint, affecting both joints. None of these are incompatible with a diagnosis of OCI; however, many or most are incompatible with AS.
224 Professor Romas could understand how Dr Karna, for his reasons, might prefer a diagnosis of AS; however, the totality of the clinical and radiological findings do not support Dr Karna’s preferred diagnosis. Further, he did not understand the logic of Dr Karna’s immobilisation point.[47]
[47]T98
225 Whilst Professor Romas noted it would be clearly advantageous to get an independent radiologist report of the sacroiliac joint imaging, he stood by his OCI diagnosis.
226 Professor Romas did not really get a history from the plaintiff that she had peripheral joint involvement. She may have had aches and pains. He agreed OCI does not affect the peripheral joints,[48] but his diagnosis was not affected by Dr Hall’s findings of swelling in the peripheral joints.[49] He thought those complaints were non-specific. He did not find any compelling evidence that the plaintiff actually had true synovitis in the joints.[50]
[48]T89
[49]T90
[50]T91
227 Professor Romas thought it more likely the widespread symptoms, including subjective swelling and aches and pains, were part and parcel of a distressed patient as part of a fibromyalgia diagnosis.[51]
[51]T100
Vocational evidence
228 Flexi Personnel provided an earnings report, setting out that the current hourly rate for a clerk is $18.82.
The Defendant’s medical evidence
229 Dr Joanna Hall, rheumatologist, treated the plaintiff until May 2016. She provided a number of reports and was cross-examined.
230 Dr Hall first saw the plaintiff on 5 June 2014 when she presented with a fourteen-month history of pain in her right thigh, neck and lower back, and also tingling in her feet, precipitated by work.
231 Dr Hall thought there was a radiological finding consistent with OCI on the CT scan. She then organised an MRI scan, which was more suggestive[52] of AS. She noted despite that, there were no signs of vertebral body oedema or ankylosis and, importantly, there was no evidence of disc prolapse.
[52]“Confirmative” of AS in her later report
232 Dr Hall explained AS has two components; the inflammatory component that often improves, but it does get structurally worse with time.[53] It most often starts in the sacroiliac joints in the lower back, but not always, and will potentially progress up the spine, but not always, and occasionally other joints can also be involved, depending on the type, or the sub type, but the damage comes from the inflammation.[54]
[53]T51
[54]T52
233 Although the AS symptoms would not be precipitated by work, the condition certainly could be exacerbated. Dr Hall considered the history of the plaintiff’s injuries was consistent with such an exacerbation. In those circumstances, she believed work was a significant contributing factor to the aggravation of the plaintiff’s pain.
234 After work has ceased, there would not be an ongoing contribution from work, unless there had been mild worsening of the disease in the joints with increased erosions and damage from the time of the inflammation, which can happen, then the plaintiff would be worse now than she would have been without work; however, that difference is likely to be quite mild, and Dr Hall doubted whether it would be clinically significant.[55]
[55]T55
235 Dr Hall confirmed it was impossible to say if there had been structural damage as a result of the flare up of AS.[56] There are a small proportion of people whose symptoms do not settle and there is a persistence of AS, but it is very rare.[57]
[56]T67
[57]T73
236 If the plaintiff had OCI, it could have been aggravated by her work as the condition involves stress thought the joints. That diagnosis could continue to be affected by the plaintiff’s work duties after she had stopped work but it is very rare that happens.[58]
[58]T73
237 Dr Hall disagreed with Dr Karna’s view that AS could not be flared up by work.[59] However, immobilisation was not something Dr Hall strongly felt contributed to inflammation in AS and did not think it was particularly relevant.[60]
[59]T57
[60]T58
238 As of August 2014, Dr Hall thought alternate duties which minimised the amount of lifting and twisting should be reasonable. She considered the plaintiff should have non-steroidal anti-inflammatories regularly, and physiotherapy. If the pain was severe, steroid injections into the sacroiliac joints bilaterally would be considered.
239 Dr Hall noted that AS could usually be managed with an exercise regime and anti-inflammatories. She considered the plaintiff had a relatively good prognosis type of AS, with normal inflammatory markers and relatively normal range of movement of her lower back and neck. However, it was likely, over subsequent years, her condition would worsen, and her ability to perform movements and activities using her lower back was likely to be reduced with time.
240 Dr Hall referred the plaintiff to Caulfield Rehabilitation for an AS program.
241 In summary, Dr Hall thought the plaintiff’s work certainly could have contributed to the degree of pain she had in her lower back as she had some chronic changes of sacroiliitis, a disease that had been longstanding, and the timing and movements she was undertaking at work were consistent with her pain exacerbation. However, her underlying AS was likely to be longstanding, and the disease had not been contributed to by the plaintiff’s work.
242 There were subsequent reviews by Dr Hall in November 2014, March, April, May and August 2015, and May 2016. Throughout those appointments, her assessment of the diagnosis was unchanged. She noted the plaintiff developed some peripheral symptoms which sounded inflammatory on history. Dr Hall suspected a co-existing diagnosis of fibromyalgia.
243 Dr Hall noted the plaintiff had persistent symptoms in the small joints of her hands and reported intermittent flare ups but, clinically, Dr Hall could not detect florid synovitis – it was not shown conclusively on an MRI scan. When she last saw the plaintiff in May 2016, Dr Hall could not detect any clinical inflammation of the peripheral joints.
244 At that stage, the plaintiff went under the care of a colleague of Dr Hall, who went on maternity leave.
245 Dr Hall reported in May 2017 that she believed the plaintiff’s pain was due to organic changes of sacroiliitis. Micro trauma from mechanical stress can result in inflammation. The plaintiff’s work did not cause her disease, but likely exacerbated it.
246 Dr Hall noted the plaintiff had multiple symptoms at different times, lower back pain, inflammatory in nature; peripheral joint pain, but not clear-cut for synovitis or active inflammation, and also hip pain.
247 Dr Hall confirmed the plaintiff had side effects from the various medication. Although the plaintiff had a somewhat atypical presentation, AS was the likely diagnosis. What did fit was the inflammatory nature of the pain, including morning pain and stiffness, improving with activity, a good response to anti-inflammatories and, most importantly, the imaging. Less morning stiffness would suggest the inflammation had improved.[61]
[61]T65
248 Dr Hall noted what was unusual with the diagnosis was the plaintiff’s age of symptom onset, though possibly she had had the disease at a younger age and was asymptomatic until her work duties caused a flare up of inflammation and symptoms, which was Dr Hall’s suspicion, her HLAB 27 negativity, although that did not rule out a diagnosis, as people can have the disease and be negative for this gene, and the plaintiff’s normal inflammatory markers which, again, can occur with the disease.
249 Dr Hall’s diagnosis was made on the basis of the plaintiff’s symptoms, a response to anti-inflammatories and, importantly, her radiological findings.
250 While work caused a flare up of the symptoms, Dr Hall thought it could cause more rapid progression of the disease.
251 In Dr Hall’s view, the plaintiff was not fit for pre-injury employment, but should be fit for alternate duties, including any that did not cause stress through the sacroiliac joint such as lifting and twisting or high impact activities, causing jarring of the sacroiliac region. This view was based on the most recent assessment, and the plaintiff’s disease may have progressed to involve other joints, in which case, other duties would be limited. There would not need to be restriction on hours, but rather a restriction of duties to those that did not generate stress to the plaintiff’s sacroiliac region.
252 Dr Hall thought it likely that the plaintiff would have back pain into the future; however, the degree thereof would be the natural progression of AS compared to the impact of her work, which was impossible to fully determine. The nature of the plaintiff’s work may, due to the micro trauma, result in an acceleration of her disease and more rapid progression of it at the sacroiliac joints, but Dr Hall could not conclusively say if the injury would impact on the plaintiff’s pain or disease progression substantially in the long term.
253 Further, Dr Hall did not believe the plaintiff’s neck injury should have a substantial impact on her ability to work. There was no pathology seen on the cervical MRI scan to explain the pain. That might be because of the failure of that MRI scan to capture inflammation, but the lack of any pathology seen means the plaintiff should not be limited in what she is able to do from the perspective of the cervical spine injury.
254 In terms of prognosis from AS, Dr Hall thought if the plaintiff is able to tolerate treatment, it was likely to be slowly progressive, but symptom control may be achieved with regular anti-inflammatories and an exercise program noting, unfortunately, the plaintiff could not tolerate regular anti-inflammatories because of the side effects.
255 Dr Hall explained that morning stiffness was not a factor that was seen in OCI. Clinically, OCI came on during pregnancy, noting it was four years since the plaintiff had been pregnant.
256 Radiologically, there was the big difference between OCI and AS.[62] In OCI, the changes are predominantly on the iliac side. The MRI scans and x-rays which Dr Hall had looked at, as well as the Dr Smith’s report, mentioned damage to the joints and ankylosis, particularly on one side, so it just did not seem to fit with OCI.[63] Dr Hall’s diagnosis was based heavily on the radiological findings. The tests had all been done and she was happy with her diagnosis. She had actually seen the images several times and also agreed with Dr Smith’s report, supporting AS.[64]
[62]T62
[63]T62
[64]T63
257 Dr Hall agreed on the findings of degenerative facet arthropathy at L4-5, and more especially at L5-S1, the plaintiff had some mechanical back pain.[65]
[65]T72
258 Dr Hall noted swelling in the joints is something more associated with AS than OCI. OCI only affects the ilium side, and no other parts of the body. The back pain feels similar to pain in the ilium.[66]
[66]T64
259 In re-examination, Dr Hall confirmed that she suspected a co-existing diagnosis of fibromyalgia which is a pain syndrome which could develop spontaneously, or after pain had been present for a long time, and secondary hyperalgesia develops, which is “like the volume is turned up on pain receptors”.[67]
[67]T66
Medico-legal evidence
260 Mr Roy Carey, orthopaedic surgeon, saw the plaintiff in March 2015.
261 The plaintiff then advised she first noted the onset of neck pain in February 2013, which went from the midline to the cervico-occipital area up to her head. She regarded her low back as normal.
262 The plaintiff thought her lower back pain began intermittently later in the year, possibly September 2013. It was over the sacroiliac region on either side, rather than the midline. Then the discomfort was intermittent but rapidly becoming constant, although variable in severity.
263 By Christmas 2013, with discomfort in both the neck and low back sacroiliac area, the plaintiff had to do a large order at work, and her neck and particularly the low back, went downhill very quickly. After a period of light duties, she ceased work in May 2014.
264 On examination, the plaintiff told Mr Carey her neck worried her more than her lower back/sacroiliac area. The two areas of principal pain in the low back were the sacroiliac joint areas on either side, with constant but varying pain. She had some lower limb symptoms, but had not had any since she ceased work.
265 Mr Carey noted the plaintiff’s past history of multiple medical issues, about which he had been provided documentation, and also problems with her neck and low back in 2003. He noted the plaintiff’s perception of her neck pain, that she had no problem with it all until working for the defendant.
266 Mr Carey also noted there was a complaint of left-sided low back pain in January 2011, and coccyx pain, and tenderness of the left sacroiliac joint on 6 January 2012. Further, Dr Mark Patrick, rheumatologist, in June 2000 diagnosed fibromyalgia.
267 On examination, there was a little lumbosacral midline tenderness, but most tenderness was quite specific over the sacroiliac joint area on both sides. Lumbar movements were markedly diminished by pain. There was a restricted range of motion of the cervical spine, and general tenderness of the upper thoracic spine at the occiput.
268 Mr Carey thought the plaintiff had a longstanding constitutional problem, but largely asymptomatic until the heavy work with the defendant, which seemed to be a trigger for the onset of considerable pain and disability associated with the generalised constitutional disorder, AS.
269 Mr Carey thought it seemed the repetitive physical heavy work with the defendant triggered that condition, noting Dr Hall’s report and that the injury can only be called an aggravation of that condition. He deferred to Dr Hall’s opinion as to the usual course of AS.
270 Mr Carey could detect no functional component or psychological reaction to the plaintiff’s physical condition. He then thought she was incapacitated for her pre-injury work on a permanent basis and did not comment on suitable employment as he was not an occupational physician.
271 Mr Carey thought the plaintiff’s incapacity resulted very largely from her constitutional organic disorder of AS, perhaps with associated arthritis.
272 Mr Carey reported further earlier this year, having been provided with a report from Dr Karna of June 2016, Dr Slesenger of February 2016, Mr Flanc of February 2017, and Dr Blombery of 24 January 2017.
273 Mr Carey deferred to the expert opinions of Dr Karna and Dr Blombery. He accepted Dr Karna’s view that the plaintiff’s mechanical symptoms changed from those primarily of her inflammatory disorder for the reasons Dr Karna recorded.
274 Mr Carey thought it would seem therefore that the physical heavy nature of the work with the defendant produced mechanical sign symptoms that these were then supplanted by symptoms associated with the plaintiff’s AS, these affecting more the peripheral joints than the central spine.
275 Dr Gary Davison, occupational physician, examined the plaintiff in June 2016.
276 On examination, the plaintiff reported the presence of widespread symptoms as follows: neck pain, centrally located, and deep aching affecting the neck and sub-occipital region bilaterally, recurrent headaches, bilateral anterior shoulder pain, bilateral elbow and wrist pain, bilateral pain and swelling affecting the fingers and hand, bilateral knee pain, right-sided ankle pain, bilateral hip pain, lower back pain centrally located, deep aching pain of fluctuating severity, bilateral hip/buttock pain, anterior chest sternal pain, and generalised stiffness.
277 The plaintiff reported a range of restrictions on her physical capacities and difficulty with household tasks.
278 Dr Davison did not detect the presence of any functional component or psychological reaction.
279 Dr Davison thought the plaintiff’s medical condition affected the cervical and sacroiliac joints, as well as widespread peripheral joints involving the upper and lower limbs. As such, she had a significant widespread polyarthropathy and he suggested the following occupational restrictions were suitable: manual handling not exceeding 4.5 kilograms in force, or work at a bench height using both hands, avoid prolonged postures by varying regularly, avoid frequent and/or repetitive bending or twisting, avoid squatting or kneeling, avoid the use of ladders or stairs, self-paced duties and restricted hours of work commencing two hours a day on alternate days, three days a week.
280 Dr Karna, rheumatologist, provided a number of reports and was cross-examined.
281 When Dr Karna saw the plaintiff in May 2016, she told him that about three months into her work, she started to notice neck discomfort. Progressively, while continuing the same type of work, she had further symptoms in her lower back pointing to the sacroiliac regions bilaterally, which became evident in about mid-2013. There was an increase in her symptoms in late 2013-early 2014, with an increased workload.
282 The plaintiff complained of ongoing neck stiffness and associated headaches, and interscapular pain, as well as bilateral upper buttock sacroiliac joint pain, with pain over the lateral aspect of the hips, but her groin discomfort had abated. Her peripheral joint pains tended to wax and wane, both in terms of severity and position. Variably hands, wrists, elbows and feet were involved.
283 Dr Karna noted the character of the plaintiff’s pain remained such that it was worse with immobility (at night and first thing in the morning), improved with anti-inflammatories and moving around a little.
284 On examination, the plaintiff had a full range of neck movements and her back movements were restricted in flexion. Neurological examination was normal.
285 At that stage, Dr Karna did not have available any of the investigations.
286 Dr Karna thought, in the first instance, namely up to the time she ceased work, the plaintiff clearly had a mechanical nature to her symptomatology.[68] Having done lighter duties in the early part of 2014, the entire character of her pain altered, such that she then had significant nocturnal stiffness, morning stiffness, and general movement in day-to-day activities helped alleviate her symptoms to a degree, only for further immobility towards the end of the day, leading to more symptoms.
[68]T104
287 Dr Karna thought whereas the plaintiff’s initial presentation of pain was mechanical, this latter character of pain was in keeping with an inflammatory problem, noting that she then developed inflammatory peripheral joint problems for which she was treated with Methotrexate.
288 Dr Karna confirmed he disagreed with Dr Hall’s view that AS was aggravated by the plaintiff’s work, because if she had kept moving, the AS component would have been less obvious.[69]
[69]T110
289 Dr Karna thought, with the lighter duties and immobilisation, the inherent nature of an inflammatory spondyloarthropathy condition such as AS took over, and the plaintiff now had purely inflammatory-based pain in keeping with that diagnosis, and that was what she was being treated for.[70]
[70]T106
290 The plaintiff probably had AS, probably asymptomatic, but radiologically “grumbling along”, until the soft tissue injury, after which she immobilised herself, causing the condition to become symptomatic.[71]
[71]T108
291 Dr Karna confirmed he thought the soft tissue injury had resolved, just on the basis of the plaintiff’s symptoms, with the predominant symptom being stiffness. The nature of the symptoms changed to inflammatory.[72] He believed her initial soft tissue injuries had by and large brought to her attention, possibly through the immobilisation that she treated herself with, the underlying ankylosing problem.
[72]T109
292 Dr Karna agreed there was a transition over a period of time, and he could not put an exact time on when the soft tissue injury resolved.[73]
[73]T123
293 Dr Karna confirmed that if the plaintiff did not have the immobilisation, she probably would not have had such active AS now.[74] The immobilisation started the process, and has “opened the switch and the floodgates”.[75]
[74]T112
[75]T113
294 Dr Karna thought it was a remote possibility that an aggravation resulted in something more than pain and inflammation and may have done some structural damage, as Dr Hall explained.[76]
[76]T113
295 Dr Karna concluded the plaintiff, at that time, had features of an inflammatory spondyloarthropathy such as (can be HLA-B27 antigen negative) and has peripheral palindromic inflammatory joint symptoms which can also be associated with AS – with nocturnal stiffness, morning stiffness, and improvement with activity and anti-inflammatories.
296 Dr Karna agreed with Dr Hall’s diagnosis. He thought the plaintiff’s x‑ray changes clearly indicated she had chronic sacroiliitis, and therefore the condition arguably has commenced, albeit with relatively few symptoms, well before she commenced work with the defendant.
297 Thereafter, the condition generally involves progressive inflammatory symptoms and stiffness; however, treatment is effective, as is exercise-based therapy, in controlling these symptoms. The nature of the condition is progressive, and the plaintiff almost certainly would have presented with similar symptomatology at some point, regardless of what had happened at work.
298 Dr Karna provided a supplementary report in March 2017.
299 In that report, Dr Karna noted the radiological hallmark of AS is in fact sacroiliac joint involvement. This was reported in the plaintiff’s June 2014 MRI scan by Dr Smith. That, coupled with the clinical description of morning stiffness and night-time stiffness, in Dr Karna’s opinion, was compatible with the plaintiff having an inflammatory spondyloarthropathy of the AS type. The plaintiff did not carry the antigen HLA-B27 that is often, but not always, associated with this disease.
300 Dr Karna described OCI as a stress reaction around the sacroiliac joints which is quite often seen in women following pregnancy. Dr Karna noted that with OCI, that if there are symptoms, they tend to be a dull intermittent aching in the low back, and certainly morning stiffness and nocturnal stiffness to the point of having to get up and move around is not part of the symptom complex.
301 Dr Karna conceded there were some atypical features to the plaintiff’s presentation. He noted erosive or bone marrow oedema changes around sacroiliac joints would have certainly suggested relatively acute sacroiliitis, but equally, the ankylosis reported by Dr Smith would be consistent with chronic sacroiliitis present for a period of time. Noting the lack of the antigen and also the lack of family history, Dr Karna commented, however, frequently not all pieces of the jigsaw come together at the one point in time, and in this situation, time proves the ultimate arbitrator.
302 That said, Dr Karna thought the character of the plaintiff’s pain brought about by immobility, the x‑ray changes reported, the substantial improvement with anti-inflammatory agents and activity during the day, and possibly the peripheral joint symptoms (if indeed they were inflammatory when seen by Dr Hall), provide sufficient grounds to make a diagnosis of inflammatory spondyloarthropathy such as and for the plaintiff to be enrolled in a course to treat that condition. He did not believe she had OCI.
303 The single most important thing to Dr Karna was the change in the nature of symptoms, then backed up by the radiology. Having seen the films himself, he was even more certain that it was not OCI. That condition affected one side of the sacroiliac joint, the iliac side. Also, there are changes on the sacral side that normally or always is not affected in OCI.[77] In inflammatory spondyloarthropathy, both sides are affected, and therefore the plaintiff’s presentation does not fit with OCI.[78]
[77]T115
[78]T116
304 Dr Karna agreed there was nothing in the nature of bone marrow oedema on the films.[79] He thought the x‑rays were more in keeping with AS and do not suggest OCI.[80]
[79]T128
[80]T130
305 Dr Karna re‑examined the plaintiff in July 2017 and was provided with Professor Romas’ supplementary report of 3 April 2017.
306 Since the last review, Dr Karma thought there had been no fundamental change in the plaintiff’s symptoms. She still had morning stiffness, but said it may be less of an issue. She was taking an anti-inflammatory. She continued to have neck pain and stiffness and lower back stiffness in the gluteal regions over the sacroiliac joints radiating down the back of both legs. While stiffness is a little less in the mornings, she does get pain at the end of the day.
307 On examination, there was no peripheral joint swelling and no evidence of radiculopathy. There was restricted lumbar movement, and the plaintiff had some bilateral buttock pain and sacroiliac joint provocation. Testing did not reproduce pain.
308 Dr Karna maintained his diagnosis of AS but accepted it was difficult to be absolutely dogmatic regarding the plaintiff’s clinical presentation. He thought she continued to have a significant inflammatory component to her presentation.
309 On balance, Dr Karna thought the mechanical activities the plaintiff did at work, including the repetitive lifting whilst doing the quality assurance work, was unlikely to have been a significant or material contributing factor to OCI, above and beyond which he was sceptical that she had that condition.
310 If the plaintiff indeed had the condition AS, and she could be treated with a biological agent, then he believed her prognosis was good. In his experience, treating this condition with such an agent is likely to lead to a resolution of most symptoms and allow her to have a productive life, including returning to aspects of work. That said, with a superadded Chronic Pain Syndrome and some deconditioning, she would require some rehabilitation.
311 Dr Karna considered the presence of peripheral joint pain is just an ancillary piece of the picture. The most important thing was the symptoms. He thought the plaintiff never had swelling. All her examination findings did was tell him they were dealing with a systemic problem. OCI at best would cause sacral pain, buttock pain, and maybe a little bit of hip pain, and would not explain the plaintiff’s neck and peripheral joints.[81]
[81]T117
312 Dr Karna was sure there was a component of fibromyalgia in the plaintiff’s presentation.[82]
[82]T133
Overview
313 There is no dispute the plaintiff suffered a compensable injury to her spine in the said period. The preponderance of medical opinion is that she initially suffered a soft tissue mechanical injury as a result of her heavy work with the defendant, particularly in late 2013.[83]
[83]Dr Karna thought work did not aggravate the plaintiff’s underlying AS
314 However, the nature of the plaintiff’s present spinal condition is in issue, as is the question of whether any such condition continues to be work related.
315 This case is a diagnostic “dilemma” and “conundrum”, as Dr Slesenger described.
316 In the rheumatological field, there are essentially two different diagnoses with the plaintiff’s treating rheumatologist, Dr Hall, and medico-legal examiner, Dr Karna, of the view the plaintiff suffers from AS whilst Professor Romas, Head of Rheumatology at St Vincent’s Hospital, considers the plaintiff presently suffers from OCI.
317 There are also a range of further diagnoses of the plaintiff’s spinal complaint. In addition to the adoption by some practitioners of the diagnosis of AS, with other medico-legal examiners in a number of fields of the view the plaintiff suffers from aggravation of degenerative disease at the lumbar and cervical levels,[84] facet joint involvement,[85] fibromyalgia[86] and pain sensitisation.[87]
[84]Mr Mangos, Mr Flanc, Dr Blombery and Dr Mittal
[85]Dr Mital, Mr Flanc and Dr Hall
[86]Dr Hall and Dr Karna
[87]Dr Blombery and Dr Hall
318 Further, whilst there is no identifiable structural abnormality of the cervical spine on investigations to explain the plaintiff’s complaints, as Professor Romas explained, this does not rule out a presumed soft tissue injury in the neck.
319 The supporters of these various organic diagnoses believe the plaintiff’s work continues to materially contribute to her current presentation.
320 Counsel for the defendant submitted Dr Hall and Dr Karna’s diagnosis of AS,[88] supported by expert radiologist, Dr Smith, should be preferred, describing Professor Romas “on the outer really”.[89]
[88]T141
[89]T143
321 However, whilst counsel for the defendant relied on Dr Karna’s diagnosis, she did not rely on his view that the plaintiff’s work did not aggravate the AS and that it resulted from the plaintiff’s immobilisation post injury.[90]
[90]T150
322 Counsel for the defendant submitted Dr Hall was in the best position to assess the plaintiff’s presentation and symptomatology, having treated her for eighteen months from November 2014. It was submitted Dr Hall came across as a very thoughtful and considered witness, and her treatment was consistent with the diagnosis.[91]
[91]T145
323 Further, it was submitted there was a difficulty with Professor Romas’ analysis, in that it really only related to the lumbar spine[92] and that the diagnosis of AS should be preferred, as it covers all the plaintiff’s symptoms.[93]
[92]T147
[93]T147
324 However, as I indicated during the hearing, I am entitled to consider the spine as the one body function.[94] Further, it may be that there a number of organically-based conditions contributing to the plaintiff’s current spinal condition at various levels thereof.[95]
[94]T161- Transport Accident Commission v Zepic [2013] VSCA 232
[95]T148
325 Counsel for the defendant submitted if the diagnosis of AS was accepted, as neither Dr Hall or Dr Karna considered there was any work contribution at present to this condition,[96] accordingly the plaintiff’s application must fail.
[96]A view shared by Professor Romas
326 In response, counsel for the plaintiff submitted Professor Romas’ view should be preferred, as he was an impressive witness who was very clear and cogent in his explanation of his diagnosis of OCI.[97] He teaches at St Vincent’s Hospital and he “is at the top of his game”. Further, he had expected to find AS, having been told by the plaintiff’s solicitors that was the diagnosis that had earlier been made, but ultimately rejected it.[98]
[97]T176
[98]T171
327 Professor Romas considered the plaintiff’s work duties continue to contribute to the condition of OCI. Although Dr Hall rejected this diagnosis, she conceded if the plaintiff was suffering OCI, the work contribution could be continuing.[99]
[99]T74; T170
328 Counsel for the defendant submitted it was necessary to find a particular diagnosis of the plaintiff’s spinal condition because of the need to disentangle the symptoms and consequences of any underlying constitutional problem.[100] Disentanglement was required because of the suggestion any work contribution to the plaintiff’s AS had now ceased.[101]
[100]T155
[101]T157
329 If it was accepted the consequences complained of by the plaintiff can be related to the mechanical injury rather than to AS or a combination of the two, counsel for the defendant conceded the seriousness of the consequences thereof.[102] The point was that the symptoms of AS and the symptoms from any organic mechanical condition needed to be separated.[103]
[102]T166
[103]T167
330 Further “disentanglement” however is not necessary in this case.
331 There is no suggestion of a significant pre-existing spinal condition or the presence of substantial non-organic features in the plaintiff’s current presentation.[104]
[104]T179
332 Whilst the plaintiff had a number of spinal complaints over the years before her work injury, she was able to work full time and did not require sustained treatment or extended periods off work. There is no suggestion these earlier episodes about which she was cross-examined, impacted on her life in any significant way. In those circumstances, I am satisfied that pre injury, the plaintiff’s spinal function was good.
333 Prior thereto, the plaintiff had been able to work for thirteen years in relatively heavy work at Castricum and then again with the defendant until the heavy nature of her duties, particularly at the end of 2013, caused her increasing spinal problems such that she ultimately had to cease work in May 2014.
334 Whilst any previous spinal problems may have be relevant in terms of the ultimate diagnosis of the plaintiff’s condition, no submission was made that any aggravation was not “serious” and that the principles in Petkovski v Galletti[105] applied.[106]
[105][1994] 1 VR 436
[106]T135
335 Counsel for the plaintiff adopted my comments in this regard, submitting the plaintiff had a full work capacity at the time of her injury, with plans to resume full-time work after her daughter started school.[107]
[107]The Herald & Weekly Times Limited v Jessop (supra); T169
336 In any event, no submissions were made on the defendant’s behalf as to the seriousness or otherwise of any aggravation in this case.
337 Although some practitioners have included a Chronic Pain Syndrome in their diagnosis of the plaintiff’s present condition,[108] counsel for the defendant conceded that there was no real suggestion that this was a non-organically based condition. In those circumstances, as I indicated during the hearing, this is not a Meadows v Lichmore Pty Ltd[109] type case where the organic basis of the plaintiff’s present condition is in issue.[110]
[108]Dr Slesenger and Dr Mittal
[109][2013] VSCA 201
[110]T162
338 In the many examinations of the plaintiff, although diagnostic difficulties have been noted, there has been no suggestion of any functional component[111] or inconsistencies on her part, with her genuineness being accepted.[112]
[111]Dr Davison
[112]Mr Flanc
339 Whilst I do not consider I am required to determine a precise diagnosis in this case, if the diagnosis of AS is accepted, the consensus of the rheumatological opinion is that condition ceases to be work related and is constitutional in nature.
340 I am required however to decide whether the plaintiff has suffered an organically-based compensable injury to her spine in the course of her employment with the defendant. Determining whether the plaintiff has a serious injury must be decided on all the evidence … it is not trial by doctors.[113]
[113]Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
341 Taking into account all the evidence, I accept that the plaintiff suffered an organically-based spinal injury at work, predominantly affecting her lower back, the effects of which continue.
342 In this regard, I prefer the view of Professor Romas for the following reasons.
343 As Professor Romas explained, OCI is a degenerative rather than an inflammatory arthritis which is driven by mechanical loading such as the plaintiff’s work activities.[114] Her work changed the underlying condition and the trajectory of OCI, and aggravated or accelerated the process, and it continues to have an effect in the absence of the plaintiff being at work.
[114]T171; Dr Hall agreed with mechanism of OCI but not the diagnosis
344 Although he is not the treater, Professor Romas occupies a very senior position as Head of Rheumatology at St Vincent’s Hospital.
345 All three rheumatologists agreed the key factor in reaching a diagnosis in this case is the radiology.
346 Unlike Dr Hall and Dr Karna, Professor Romas found OCI on the first CT scan, a scan which he explained was the best investigative tool with a bony injury, whereas an MRI scan is better for soft tissue and inflammatory oedema and synovial inflammation. On the CT scan, radiologist, Dr Healy, found consistent sclerosis around both sacroiliac joints consistent with OCI and mild degenerative arthritis with no evidence of erosions or inflammatory sacroiliitis, although commenting on an “incidental” finding of OCI in his conclusion. Professor Romas considered the CT scan was diagnostic of OCI.[115]
[115]T80
347 As Professor Romas explained, “incidental” was a term used by the radiologist who had no idea of the plaintiff’s clinical picture of back pain.
348 In Professor Romas’ view, there was no indication of an inflammatory process on the MRI. It did not show erosion which was typical of AS, nor did it show ankylosis, and he was “puzzled” in those circumstances at Dr Smith’s interpretation.[116]
[116]T79
349 Despite Dr Hall’s view that the MRI confirmed AS, she also noted there were no signs of vertebral body oedema or ankylosis, and there was no evidence of disc prolapse.
350 Professor Romas disagreed with Dr Hall and Dr Karma that OCI affects only one side of the hip, although predominantly it is on the iliac side.[117]
[117]T87
351 Professor Romas described the plaintiff’s peripheral aches and pains as non-specific and found no compelling evidence she had true synovitis in her joints. Further, Dr Hall does not go so far as to say such peripheral pain forms part of her diagnosis of AS and Dr Karna concluded, these pains were just an ancillary part of the picture.
352 Whilst both Dr Karna, and particularly Dr Hall, relied on the presence of morning and night stiffness as indicative of AS, the plaintiff confirmed that in recent times, this has been much less of a problem for her.
353 Both Dr Karma[118] and Dr Hall conceded there were some atypical features of the plaintiff’s AS presentation whereas Professor Romas stressed the plaintiff’s history, examination and radiological findings in the context of normal inflammatory markers and negative HLAB 27 indicate conclusively she has OCI as the cause of her lower back dysfunction.
[118]Dr Karna also said it was difficult to be absolutely dogmatic
354 As Professor Romas explained, in medicine, if a specific diagnosis is preferred, then it should be preferred, because all the clinical features can be explained by the selected diagnosis and none of the clinical features should be inconsistent with that diagnosis.
355 Finally, of note, however, there is some support from both Dr Hall and Dr Romas for a continuing involvement or the plaintiff’s work and her immobilisation thereafter in her current AS diagnosed by them.
356 Dr Hall conceded, after work has ceased, there would be an ongoing contribution therefrom to AS if there had been mild worsening of the disease in the joints with increased erosions and damage from the time of the inflammation. However, that difference is likely to be quite mild, and Dr Hall doubted whether it would be clinically significant.[119] She thought it was impossible to say if there had been structural damage as a result of the flare up of AS.[120]
[119]T55
[120]T67
357 Further, Dr Karna confirmed that if plaintiff did not have the immobilisation, she probably would not have had such active AS now.[121] The immobilisation started the process, and has “opened the switch and the floodgates”.[122] He thought it was a remote possibility that an aggravation resulted in something more than pain and inflammation and may have done some structural damage.[123]
[121]T112
[122]T113
[123]T113
358 Taking into account all of the evidence, whether the diagnosis be OCI or another of the organically-based conditions diagnosed, I accept the plaintiff’s pain, restriction, disability and incapacity derives predominantly from a physical injury to her back to which her work continues to materially contribute.
Credit
359 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[124]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[124](2010) 31 VR 1 at paragraph [12]
360 As I indicated to the parties, I did not consider this to be a “credit” case. I found the plaintiff to be a very truthful witness who gave a clear description of her ongoing problems as a result of performing her work duties and did not overstate her level of disability.[125]
[125]T135
Pain
361 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”[126]
[126](Supra) at paragraph [11]
362 I accept that the plaintiff continues to suffer a constant, deep aching pain across her lower back, radiating into her buttocks and thighs. She also suffers from neck pain deep in her spine that pulls on the back of her head and causes her headaches. She described her pain to all recent examiners in similar terms.
Treatment
363 The plaintiff has continued under the care of her general practitioner, Dr Chia, who has arranged numerous investigation of her lumbar and cervical spine, referred the plaintiff for physiotherapy, hydrotherapy and to the Caulfield Pain management program in early 2015. Specialist referral was initially to Dr Hall and in more recent times, Dr Aw.
364 The plaintiff now takes Meloxicam, an anti-inflammatory, three to four times a week, not more regularly because it causes gastric upset. She takes six to eight Panadol a day, and also Nexium. She uses a pain eraser, daily heat packs, and magnesium oil.
365 The plaintiff had experienced significant side effects with the prescription drugs, Sulfasalazine and Methotrexate, prescribed by Dr Hall.
366 As Dodds-Streeton stated in Kelso v Tatiara Meat Company Pty Ltd,[127]
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[127](2007) 17 VR 592 at paragraph [199]
367 The plaintiff’s spinal condition causes significant limitations on her ability to bend and lift, and prolonged postures cause increased pain. Her ability to engage in household and family activities has been significantly affected.
368 The plaintiff has been unable to work since leaving the defendant’s employ and is currently in receipt of a disability pension. The consensus of medical opinion is that as a result of her spinal condition, she is unfit for her pre-injury or unrestricted physical employment due to the manual handling and postural requirements thereof.
369 I am satisfied in all these circumstances that the pain and suffering consequences of the plaintiff’s spinal condition are “serious”.
Loss of earning capacity
370 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
371 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
372 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
373 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
374 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
375 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
376 I am therefore required to determine a “without injury” earnings figure.
377 There was no real dispute as to the “without injury” earnings figure, with a figure somewhere in the range of $50,000 to $55,000 being suggested.[128] Counsel for the plaintiff relied on the plaintiff’s earnings of $52,155 gross in the 2012-2013 financial year.[129] Sixty per cent of that sum is $31,293 per annum or $601 per week.
[128]T4
[129]T4; 2010-2011 - $49,038 and 2013-2014 - $56,053
378 Whilst the primary submission on behalf of the defendant was that work is no longer contributing to the plaintiff’s current AS,[130] it was conceded the weight of the evidence was that whilst she could perhaps perform some alternative work, she would still suffer the requisite loss of 40 per cent.[131]
[130]T165–166
[131]T168
379 Dr Chia thought that due to her level of back pain, even alternative employment is not currently possible for the plaintiff. Dr Blombery considered her back injury alone would prevent her doing alternative suitable duties and that her neck injury would limit the plaintiff markedly in terms of alternative suitable employment.
380 In summary, the other practitioners who have assessed the plaintiff’s current work capacity in terms of her back and neck condition consider she is at best fit for light alternative duties. In terms of her back, Dr Slesenger thought the plaintiff had a theoretical capacity for work with restrictions as pushing, bending and pulling, working four hours a day, four days a week. Dr Davison suggested restricted duties commence two hours a day on alternate days, three days a week.
381 Taking into account all the evidence, I am satisfied that the plaintiff has established the requisite loss of earning capacity and is unable to earn in excess of $601 per week for the foreseeable future.
382 As the plaintiff’s pain and limitations have continued for over three years without significant improvement despite significant treatment, I am satisfied her impairment is permanent.
383 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
384 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
385 Further, if a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity.[132]
[132]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
386 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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