Dumitrescu, Anna v Coles Group Limited
[2009] VCC 825
•16 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-02748
| ANNA DUMITRESCU | Plaintiff |
| v | |
| COLES GROUP LIMITED | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 and 4 June 2009 |
| DATE OF JUDGMENT: | 16 June 2009 |
| CASE MAY BE CITED AS: | Dumitrescu, Anna v Coles Group Limited |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0825 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - Accident Compensation Act 1985 – plaintiff suffered injury to her neck, lower back and from a mental disturbance or disorder in the course of her employment with the defendant – whether the injuries occurred on 28 May 2002 with serious injury consequences for pain and suffering and loss of earning capacity or on 28 February 2003 – causation – defendant conceded that the consequences relevant to 28 February 2003 amounted to serious injury consequences for pain and suffering and loss of earning capacity : section 134AB(c) and (d).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Philbrick SC with | Maurice Blackman |
| Mr G Chancellor | ||
| For the Defendant | Mr G Lewis SC with | Herbert Geer |
| Ms R Annesley | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 9 July 2008 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant on 28 May 2002 and 28 February 2003.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Philbrick SC appeared with Mr G Chancellor of Counsel for the plaintiff and Mr G Lewis SC appeared with Ms R Annesley of Counsel for the defendant.
4 The plaintiff claims serious injury for an impairment of function to her neck, lower back and for a psychiatric injury.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. •
The plaintiff tendered the following evidence: the Plaintiff's Court Book (“PCB”) pages 13-93, the Defendant’s Court Book (“DCB”) pages 1-10; 121-235; 250-254 and 266-279: Exhibit A
•
WorkCover Certificates of the plaintiff from 29 May 2002 to 2 January 2003: Exhibit B
• The defendant tendered its Court Book, pages 11-121: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which he suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsections (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Issues
9 At the commencement of the second day of trial on 4 June 2009, Mr Lewis announced that the defendant conceded that the plaintiff had established all of the relevant requirements and had proved that she had suffered a serious permanent impairment or loss of the function of her neck and lower back, and a severe permanent mental or permanent severe behavioural disturbance or disorder, and such concessions extended to the pain and suffering consequences and the loss of earning consequences suffered by the plaintiff.
10 The concession was limited to the plaintiff's claim that in February 2003 she was transferred by the defendant to its store at Myer Southland where she undertook the following work:
“I had to do a lot of lifting and carrying of stock and pulling trolleys and aggravated my injuries and hurt my lower back. I went off work due to my injuries in about March 2003.”[5]
[5] PCB 14
11 Mr Lewis submitted that insofar as the plaintiff suffered any injury on 28 May 2002, that the consequences of those injuries did not meet the standard required.
12 Mr Philbrick submitted that it was the injuries suffered by the plaintiff on 28 May 2002 which met the standard required and not the injuries she suffered on 28 February 2003.
13 Both Mr Philbrick and Mr Lewis agreed that if I found that the pain and suffering consequences and the loss of earning consequences were caused by the injuries suffered by the plaintiff on 28 May 2002, that it was unnecessary to me to have to consider whether the pain and suffering consequences and the loss of earning consequences met the standard required.
The May 2002 Incident and its Consequences
14 In her first affidavit sworn 22 February 2008, the plaintiff described what occurred in May 2002 in the following way:
[6] PCB 14
"3 I initially worked for the Defendant at a shop called ‘Essentially Me’ at Southland. In May 2002, I had to lift a heavy table and injured my upper back. I was later treated by a doctor at Southland and underwent physiotherapy. 4 I continued to suffer from symptoms of upper back pain and the pain extended into my neck. I tried to work as best I could but it was difficult. [I] worked on doing modified duties on occasions and had a few days off work due to my injuries."[6] (sic)
15 The plaintiff was cross-examined by Mr Lewis as to whether the injuries that she said she suffered on 28 May 2002 persisted or not:
"Q. In the period from June 02 to January 03, any injury you had
continued to improve, did it not? You were getting better?---A: I think the injury is established, the pain is established everywhere
in the body. This had already started.Q: I understand that. But you'd gotten back to doing your normal
duties apart from heavy lifting, hadn't you?---A: It was called modified duties. I've never gone back to the duties I
used to do.Q:
I suggest to you that the only way in which your work was different in that period to how it had been before May 02 was that you were not allowed to do any lifting. Otherwise you were doing your usual duties, weren't you?---
A: Yes, I guess so. Q: By the end of 02, you were working a full day's work, weren't
you?---A: Yes, it was prior to closing. Q: Sorry?--- A:
It was prior to closing down. But, however, I had the understanding from the management that I could sit down whenever I could. Quite a few times I left early. I couldn't manage the days. Quite a few times I called in sick, I remember.
Q: Are we still talking about the period from June 02?--- A: Yes, I'm talking about the same time frame."[7] [7] Transcript 22
16 And later:
"Q: On another topic; I suggest that any neck problems you had from the episode lifting the table in May 02 were very mild and quickly passed away. Would you agree with that?--- A: No, sir, never passed away. Q: I suggest that by the time you started work in the Manchester department, your problem was with your back, but not with your neck?--- A: No, sir. The problem with the neck never went away. It just amplified in the whole body. I started feeling pain in the whole body and my back - my lower back was aggravated with what happened in Myer, but however, the upper back, lower back, my legs, everything it happened in May 203 at Essentially Me."[8]
[8] Transcript 30. The year "203" is the transcript error. It should read "2002".
17 The plaintiff attended Mr Smith, physiotherapist, on 28 May 2002. On the first occasion the plaintiff saw Mr Smith a sketch was made of the distribution of pain over the plaintiff's body on an outline of the front and rear of a human body.
18 The distribution of pain in the upper body is to the right-hand side of the spine adjacent to the shoulder blade, down the back of the right upper arm and over the right hand, and immediately below the right hand is the abbreviation “p & n” which I assume means pins and needles.
19 The distribution of the pain in the lower body is at the lower back just above the buttocks and down the left buttock and left side as far as the knee and the right foot, and immediately below the right foot is the abbreviation "p & n" which I again assume means pins and needles.
20 Mr Smith treated the plaintiff from 30 May 2002 until 30 August 2002. There are a number of entries in his clinical notes which are particularly important:
ƒ 3 June 2002 - there is a reference to neck pain and stiffness and a
reference to the lower back pain.
ƒ 4 June 2002 - there is a reference to neck and lower back pain. ƒ 13 June 2002 - there is a reference to the plaintiff having one week off. ƒ 24 June 2002 - there is a reference to soreness in the right side of the
neck.ƒ 25 June 2002 - there is a reference to the neck being very sore. ƒ 28 June 2002 - there is a reference to right arm pain and the plaintiff being
off work for two weeksƒ 1 July 2002 - there is a reference to right arm pain. ƒ 30 July 2002 - there is a reference the neck being sore. ƒ 30 August 2002 - there is a reference to neck stiffness.[9] [9] DCB 266-269
21 Mr Smith provided a report dated 3 June 2004 in which he took the following history:
“I first saw Anna [on] 30/5/02 at the request of Dr Shabshis.
Anna complained of right neck pain, thoracic spine pain, right arm pain, pins and needles in the right hand and chest pain as well as left lower back pain and leg pain.
She said her symptoms developed after lifting a table at work [on]
28/5/02.”[10] (sic)[10] PCB 21
22 Mr Smith examined the plaintiff, noting the following:
“On examination Anna had restriction of all cervical and thoracic
movements.
Palpation revealed stiff and painful facet joints on the right cervical and thoracic spine and left lumbar spine with associated muscle spasm.”[11]
[11] PCB 21
23 Mr Smith noted that the plaintiff's right arm and right chest pain resolved over a couple of months, however, he noted that the plaintiff continued complaining of ongoing neck, lower back and leg pain. He noted that she had travelled overseas in late 2002 and that after returning from overseas there was little change in her condition. She was still complaining of pain in the right side of her neck, thoracic pain and headaches and her left leg pain was still severe.[12]
[12] PCB 22
24 Mr Smith treated the plaintiff until 1 October 2003. The treatment comprised gentle mobilisation, soft tissue massage, manipulation, ultrasound and the use of a TENS machine. He noted that the treatment gave the plaintiff temporary short-term relief and that the TENS machine gave her minimal benefit.[13]
[13] PCB 22
25 Dr Shabshis, general practitioner, provided a medical report dated 1 June 2004.[14] Her clinical notes between 18 April 2002 and 1 June 2004 were put into evidence,[15] as were a bundle of medical certificates she and her colleagues provided to the plaintiff.[16]
[14] PCB 18
[15] PCB 19-20
[16] Exhibit A
26 Mr Philbrick submitted that when a comparison is made between Dr Shabshis’ medical report and her clinical notes against the medical certificates, it is clear that the findings made and recorded in the medical certificates were not recorded by her in her clinical notes.
27 The relevant medical certificates reveal the following:
ƒ 29 May 2002 - diagnosis of a pulled muscle in the thoracic area and
dysfunction around the facet joint. The plaintiff was prescribed Voltaren and Mersyndol for pain-relief and was referred to Mr Smith for physiotherapy treatment. The plaintiff was certified as fit for modified duties from 29 May 2002 to 29 June 2002.
ƒ
6 June 2002 – diagnosis of severe pain due to muscle spasm in the neck and back. The plaintiff was prescribed Ducene for pain-relief and referred to physiotherapy. The plaintiff was certified as unfit for work from 6 June 2002 to 12 June 2002.
ƒ
28 June 2002 - the diagnosis was neck and arm pain due to a work injury. The plaintiff was referred to physiotherapy. The plaintiff was certified as unfit for work from 27 June 2002 to 27 July 2002 and fit for modified duties from 14 July 2002 to 27 July 2002.
ƒ 25 July 2002 – the diagnosis appears to be inflamed facet joints,
musculoligamentous strain and lower back pain. The plaintiff was prescribed anti-inflammatory medication and referred to physiotherapy. The plaintiff was certified as fit for alternative duties from 26 July 2002 to 24 August 2002.
ƒ 22 August 2002 – the diagnosis was inflamed facet joints,
musculoligamentous strain and lower back pain. The plaintiff was prescribed anti-inflammatory medication and referred to physiotherapy. The plaintiff was certified as fit for alternative duties from 25 August 2002 to 24 September 2002.
ƒ 23 September 2002 - the diagnosis appears to be a muscular problem
affecting the lower back. The plaintiff was referred to physiotherapy. The plaintiff was certified as fit for alternative duties from 24 September 2002 to 22 October 2002.
ƒ 22 November 2002 - the diagnosis appears to be a muscular problem
affecting the lower back. The plaintiff was referred to physiotherapy. The plaintiff was certified as unfit for work from 23 October 2002 to 24 November 2002 and fit for alternative work from 22 October 2002 to 23 October 2002.[17]
[17] The certificate describes fitness for alternative work from 23 October 2002 to 22 October 2002. I assume it was a slip by the certifying medical practitioner who reversed the relevant dates which should read 22 October 2002 to 23 October 2002
ƒ
25 November 2002 - the diagnosis was muscular pain in the lower back. The plaintiff was referred to physiotherapy and prescribed medication for pain-relief. The plaintiff was certified as fit for alternative work from 25 November 2002 to 25 December 2002.
ƒ
2 January 2003 - the diagnosis was muscular pain in the lower back. The plaintiff was referred to physiotherapy. The plaintiff was certified fit for alternative work from 26 December 2002 to 25 January 2003.
28 Each of the certificates which certified the plaintiff as fit for modified or alternative work imposed restrictions upon the plaintiff in terms of bending and lifting and some other certificates limited the plaintiff's working hours.
29 A comparison between the medical certificates and the clinical notes does not bear out the same detail as noted on the medical certificates, and furthermore, the description of injury to the plaintiff’s neck is likewise not borne out in the clinical notes.
30 Dr Fish, occupational physician, examined the plaintiff for the defendant on 29 July 2002 and provided a report dated 3 August 2002. He recorded a history that the plaintiff was injured on 28 May 2002 lifting a table, which resulted in her suffering severe interscapular pain. On physical examination, he found tender points over the anterior and posterior chest wall, elbows and buttocks. The plaintiff’s range of neck movements was moderately restricted, and he found tenderness over T4 of the thoracic spine.[18]
[18] DCB 13
31 Dr Fish then made the following assessment:
“Ms Dumitrescu is a 43-year-old woman who suffered severe onset of mid-thoracic pain in conjunction with lifting a table. Her pain has since spread to the cervical spine and been associated with paresthesia in the right hand. At this time her physical findings are unremarkable, although there is still moderately-significant restriction of cervical mobility.
She has suffered a soft tissue injury to the thoracic and cervical spines,
which has significantly resolved.”[19]
[19] DCB 13
32 Dr Fish was asked whether the plaintiff's work duties/employment were a significant contributing factor to the injury, and he said in reply that it was clear that the lifting and bending tasks which the plaintiff described could cause a soft tissue injury leading to a secondary chronic pain state. He did not believe that she was fit for the full duties of her normal position with the defendant.[20]
[20] DCB 13-14
33 Dr Fish examined the plaintiff again on 24 January 2003 and provided a report dated 28 January 2003. He was unable to locate a copy of his previous report, but was able to retrieve his previous notes. After taking a history and undertaking a clinical examination, he reached an entirely different conclusion:
“Mrs Dumitrescu initially presented with low back pain caused by lifting a table at work. She has since had spread of pain to the thoracic and cervical spine and I consider that these pains are unrelated to the initial incident.”[21]
[21] DCB 18
34 The diagnosis of mid thoracic pain on the first occasion he examined the plaintiff, from which pain spread to the thoracic and cervical spines, is in contrast to the diagnosis of lower back pain spreading to the thoracic and cervical spine which he made on the second occasion he examined the plaintiff.
35 Mr Philbrick submitted that I should not accept the opinion expressed by Dr Fish after he examined the plaintiff on the second occasion because he did not have a copy of his first report in which he gave a very different opinion. It seems to me that the fatal flaw in the opinion expressed by Dr Fish on the second occasion he examined the plaintiff occurred as a result of the fact that he was unaware of his initial diagnosis and the basis for it, which I conclude makes his opinion expressed on the second occasion he examined the plaintiff very unreliable.
36 Despite the anomalies evident on comparison between the opinions expressed on those two occasions, Dr Fish found, when he examined the plaintiff on that second occasion, that there was muscular tenderness and soreness with some restriction of cervical motion which he thought might have been due to cervical spondylosis. On that basis he made a recommendation that restrictions be imposed upon the plaintiff to accommodate her neck problem.[22]
[22] DCB 18
37 After analysing the foregoing evidence, it is clear enough to me that the plaintiff suffered an injury to her neck on 28 May 2002. Subsequently, she obtained medical certificates from Dr Shabshis, some of which refer to her neck injury and treatment for it, and she received treatment from Mr Smith for a neck injury.
38 The medical examinations by Dr Fish and his conclusion that the plaintiff was suffering from a neck problem before the incident which occurred on 28 February 2003, fortify the conclusion I have reached that the plaintiff did suffer an injury to her neck on 28 May 2002.
39 It is also clear from the medical certificates that the plaintiff had various periods of time off work and various periods when she was certified as fit for modified or alternative work with restrictions. On some of the medical certificates the restrictions imposed relate to both hours of work and bending and lifting, and others to only bending and lifting.
40 Mr Lewis submitted that the plaintiff had undertaken an overseas trip to Mauritius in October 2002 where she married on 11 November 2002. Mr Lewis relied upon that event and the period of time which the plaintiff spent in an aeroplane and her ability to return to full-time work by February 2003 to establish that the plaintiff was improving physically. The plaintiff disagreed with that proposition. She said she had painkilling medication with her when she went overseas and after her return she undertook modified duties.
41 When the plaintiff was next treated by Mr Smith after she returned from overseas, it is clear that he noted that there was little change in her condition,[23] that is, she was still experiencing pain in her neck.
[23] PCB 22
The February 2003 Incident
42 Mr Lewis cross-examined the plaintiff by putting to her the histories which she gave to Dr Epstein, psychiatrist; Mr Postlethwaite, psychologist; and Dr Rosenblum, general practitioner; in which she described the work that she undertook when she was transferred by the defendant to the manchester department at Southland.[24]
[24] Transcript 28-30
43 Mr Lewis put the following questions to the plaintiff, which demonstrated the work which the plaintiff says she was performing in February 2003 and whether it was then that she suffered the injury to her neck:
"Q:
Could it have been true to describe your work this way at the manchester department, involved a lot of lifting and bending, and within a day you have an acute flare-up of back pain? Would that be a reasonable way of describing things?---
A: Yes. Q:
I've just read to you, Ms Dumitrescu, the understanding of three of your doctors, based upon the histories you gave them. There's no mention in any of those about you handling any trolleys, is there? Are you quite sure that you had to handle trolleys in the manchester department?---
A: Yes. Q:
On another topic; I suggest that any neck problems you had from the episode lifting the table in May 02 were very mild and quickly passed away. Would you agree with that?---
A: No, sir, never passed away. Q:
I suggest that by the time you started work in the manchester department, your problem was with your back, but not with your neck?---
A:
No, sir. The problem with the neck never went away. It just amplified in the whole body. I started feeling pain in the whole body and my back - my lower back was aggravated with what happened in Myer, but however, the upper back, lower back, my legs, everything it happened in May 203 at Essentially Me."[25]
[25] Transcript 30. See footnote 8
44 The plaintiff worked for two days doing the work described, and on the third day she described not being able to put her foot down as she was walking home. I assume she was referring to her right foot which is where she has complained of suffering pain radiating from her lower back.
45 It is on the foregoing basis that Mr Lewis submitted that the plaintiff had suffered an aggravation of the injuries to her neck and lower back and a psychiatric injury which amounted to serious injury for pain and suffering consequences and loss of earning capacity consequences.
46 Mr Philbrick submitted that the plaintiff's evidence, the medical evidence and medical assessments which preceded February 2003 were entirely consistent with the plaintiff having suffered those injuries as a result of the incident which occurred on 28 May 2002, and furthermore, the medical assessments which followed 28 February 2003 were replete with opinions that the incident which occurred on 28 May 2002 is the cause of the plaintiff’s injuries.
47 Mr Kudelka, orthopaedic surgeon, examined the plaintiff for the defendant on 14 April 2003 and provided a report dated 14 April 2003. Mr Kudelka was of the opinion that the plaintiff aggravated pre-existing degenerative changes in her lower lumbar discs in May 2002 from which she did not recover, and she suffered an aggravation of that injury when involved in bending and lifting in February 2003 which rendered her completely incapacitated.
48 Mr Kudelka then added that the plaintiff had a predisposition as a result of what occurred to her lower back in May 2002 and that had the bending and lifting which occurred on 28 February 2003 not occurred, she would not be in her present situation.
49 Mr Kudelka was subsequently asked whether the injury to the plaintiff’s lower back was a continuation of the original injury of May 2002. He replied by saying that it was a continuation and that the plaintiff was improving until she was involved in the bending and lifting in February 2003 which caused a significant aggravation, leading to her complete incapacitation.[26]
[26] DCB 21
50 Mr Philbrick submitted that the claim form completed by the plaintiff on 26 March 2003 demonstrated that she was saying that she had suffered an aggravation of the previous injuries which she suffered on 28 May 2002.[27]
[27] DCB 7
51 The plaintiff saw Dr Rosenblum, general practitioner, on 6 March 2003. He took a history from the plaintiff that the pain she was experiencing at that time was a recurrence of the injury she suffered on 28 May 2005.[28]
[28] PCB 23A
52 Mr Philbrick submitted that the statements made by the plaintiff on the claim form and in the history recorded by Dr Rosenblum are entirely consistent with the plaintiff's oral evidence relevant to when she suffered the injuries and the impact upon her of her return to work in February 2003.[29]
[29] Transcript 22 and 30
53 The plaintiff was subsequently examined by a number of other medical practitioners, all of whom have considered the question of causation and have implicated the incident which occurred on 28 May 2002 as the incident which caused the plaintiff's injuries to her neck and lower back.
54 Mr Johnson, orthopaedic surgeon, examined the plaintiff on 3 April 2003 on referral by Dr Schneier (who was at the same medical practice as Dr Rosenblum). Mr Johnson said that it appeared to him that the plaintiff’s lower back problems were related to work incidents in May 2002 and February 2003. He was uncertain whether her neck injury was related to her work primarily because he obtained a history from her that her neck pain began in December 2003.[30]
[30] PCB 34-35
55 Dr Lewis, rheumatologist, examined the plaintiff on numerous occasions between 14 May 2003 and 30 January 2004. He was of the opinion that the plaintiff’s lower back injury was consistent with the incidents which occurred on 28 May 2002 and 28 February 2003, but was uncertain about the cause of her neck injury.[31]
[31] PCB 43
56 Mr Rogers, neurosurgeon, examined the plaintiff on 10 March 2004 on referral by Dr Lewis. Mr Rogers obtained a history of the incident which occurred on 28 May 2002, but no history of what occurred on 28 February 2003. On the basis of that limited history, he was of the opinion that the neck injury could certainly have been caused by the incident which occurred on 28 May 2002.[32]
[32] PCB 60-61
57 Mr Elsner, orthopaedic surgeon, first examined the plaintiff on 24 September 2003. He was of the opinion that the lower back injury occurred on 28 May 2002 and was compounded by the work the plaintiff did in February 2003.[33]
[33] DCB 26. Mr Elsner obtained a history from the plaintiff of a burning sensation between her shoulder blades which occurred on 28 May 2002, but no direct history of a neck injury
58 Mr Elsner examined the plaintiff again on 10 March 2004, and on this occasion obtained a history from the plaintiff that she was experiencing pain between her shoulder blades and along the back of her neck which occurred at as a result of the incident of 28 May 2002.[34]
[34] DCB 28
59 Mr Elsner was of the opinion that the plaintiff had a significant right sided C5-6 disc protrusion which he had difficulty relating to the plaintiff’s work, however, after he was sent reports of Cedar Court dated 5 September 2003; Dr Lewis, dated 17 June 2004; Mr Johnson, dated 2 June 2004; and Mr Smith, dated 3 June 2004, he was of the opinion that he could not exclude the fact that the plaintiff may have initiated the C5-6 disc injury at work on 28 May 2002. He recommended that the defendant accept liability for treatment for that injury.[35]
[35] DCB 35. Mr Elsner re-examined the plaintiff on 18 May 2005 (DCB 36-38); 18 May 2006 (DCB 40- 42); 3 April 2007 (DCB 44-47); 30 April 2008 (DCB 48-52) and 1 May 2009 (DCB 53-56). On the last occasion Mr Elsner examined the plaintiff he was asked to review his opinion on causation. He repeated that the plaintiff's neck injury was caused by the incident which occurred on 28 May 2002
60 Mr Postlethwaite, psychologist, was of the opinion that if the plaintiff’s physical symptoms were attributable to her work so would her psychological state. He did not appear to discriminate between the incidents which occurred on 28 May 2002 or 28 February 2003.[36]
[36] PCB 56
61 Dr Epstein, psychiatrist, examined the plaintiff on 13 May 2009 on a medico- legal basis. He obtained a history of the incidents which occurred on 28 May 2002 and 20 February 2003. By inference he attributed the occurrence of the psychiatric injury to both of those incidents.[37]
[37] PCB 89 and 93
62 Dr Strauss, psychiatrist, examined the plaintiff for the defendant. He obtained a history of the incidents which occurred on 28 May 2002 and 20 February 2003. He was of the opinion that the psychiatric injury was attributable equally to both incidents.[38]
[38] DCB 83 and 88
63 A number of other medical practitioners examined the plaintiff for treatment, none of whom expressed an opinion on causation: Dr Cadzow, general practitioner;[39] Dr Krapivensky, psychiatrist;[40] Mr Drnda, neurosurgeon;[41] Dr Janovic, general practitioner[42] and Dr Katz, psychiatrist. [43]
[39] PCB 44-47
[40] PCB 56C-59
[41] PCB 62-63
[42] PCB 64-66
[43] PCB 67-73
The 28 May 2002 Incident -versus- the 28 February 2003 Incident
64 The evidence which I have found to be most compelling of the conclusion that the plaintiff did suffer an injury to her neck on 28 May 2002 is the evidence of Dr Shabshis through the medical certificates which were provided to the plaintiff, and the evidence of Mr Smith and Dr Fish, which establish that the plaintiff had an actively symptomatic neck injury.
65 The foregoing is confirmed by the opinion of Mr Elsner, who ultimately was given an accurate history of both incidents which put him in about the best position of any assessing medical practitioner to offer an opinion on causation. After examining the plaintiff on a number of occasions and providing eight reports, he last examined her on 6 May 2009, in which he re-stated his earlier opinion, but far more emphatically, that the plaintiff's injury to her neck was caused by the incident which occurred on 28 May 2002.[44]
[44] DCB 55-56
66 It occurs to me that when the plaintiff returned to work with the defendant at Southland she was involved in work which was very much light work not involving significant physical effort, and yet after two or three days the injuries to her neck and lower back overwhelmed her. There was nothing physically provocative in the work which the plaintiff undertook in February 2003 which significantly aggravated those injuries save for engaging in two or three days’ of light work.
67 On the basis of my review of all of the evidence, I find, on the balance of probabilities, that the plaintiff suffered injuries to her neck and lower back as a consequence of the incident which occurred on 28 May 2002, and that it was as a result of those injuries that she subsequently suffered the psychiatric injury.
68 I also find that it is far less probable that what occurred on 28 February 2002 was much more than the plaintiff not coping with light work, with the consequence that she suffered some degree of aggravation to the injuries to her neck and lower back.
69 Based upon the same line of reasoning, I find that the plaintiff's psychiatric injury was caused by her emotional response to the injuries to her neck and lower back.
Conclusion
70 I return to the question which I asked Mr Lewis during the course of submissions, and that is, given the concession he announced that if I found that the injuries suffered by the plaintiff to her neck and lower back were caused by the incident which occurred on 28 May 2002, the same concessions would apply.
71 Therefore, based upon the findings I have made that the plaintiff's injuries to her neck and lower back were caused by the incident which occurred on 28 May 2002, it follows that she has established a serious injury for pain and suffering and loss of earning capacity with respect to the consequences of the impairment of function to her neck and lower back, and for pain and suffering and loss of earning capacity with respect to the consequences of the mental or behavioural disturbance or disorder.
72 However, the concession made by Mr Lewis leads to a rather curious result, and that is, that the plaintiff has suffered a serious injury as described above for the same injuries, both with respect to the incident which occurred on 28 May 2002 and 28 February 2003.
73 Subject to any further submissions which the parties wish to make, I propose to grant the plaintiff leave as follows:
74 I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB16)(b) of the Act to recover damages for pain and suffering and loss of earning capacity arising out of her employment with the defendant on 28 May 2002.
75 I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for pain and suffering and loss of earning capacity arising out of her employment with the defendant on 28 February 2003.
76 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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