Eder v Southern Health
[2012] VCC 1297
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03503
| NATALIE MARGARET EDER | Plaintiff |
| v | |
| SOUTHERN HEALTH | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 September 2012 | |
DATE OF JUDGMENT: | 28 September 2012 | |
CASE MAY BE CITED AS: | Eder v Southern Health & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1297 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to cervical spine – pre-existing condition – whether consequences achieve the “serious injury” level
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
JUDGMENT – Leave to bring common law proceedings granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr C J Nettlefold | Ryan Carlisle Thomas |
| For the Defendants | Ms M Britbart | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff alleges she suffered injury to her neck and shoulder when she was kicked by a patient in the course of her employment duties as a nurse working for the first defendant on 20 May 2009. Within several days, she claims to have suffered significant neck and shoulder pain. She has undertaken a range of conservative treatment. As a result, her recreational, social and domestic activities have been curtailed. In particular, after termination of her employment in 2010, she has been unable to return to work as a nurse. Further, of recent times she has been forced to relinquish a long association with St John Ambulance.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant on 20 May 2009.
3 The body function said to be lost or impaired is the cervical spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
4 The plaintiff and her treating physiotherapist, Ms Nicole Schneller, were called to give evidence and be cross-examined. In addition, medical reports, radiology reports, the affidavits of the plaintiff and supporting lay witnesses, and clinical notes were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of her evidence which I have relied upon in coming to the conclusions referred to later in this judgment.
5 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
6 The plaintiff was born in 1969 and is now forty-three years of age. She was educated to Year 12, and then, after working in a number of areas, undertook training as a nurse. She worked in various hospitals and then commenced employment with the first defendant in June 2006.
7 She became involved in the St John Ambulance organisation at an early time and has worked for many years as a volunteer. She said that not only did she enjoy the work, but also it provided her with a social network. She would attend events several times per week, was involved in secretarial duties, and the training of other volunteers.
8 She said that her nursing profession was a passion, and that she had always wanted to be a nurse.
9 She had an interest in ten-pin bowling. She undertook all her own housework without difficulty.
10 She had two unrelated health issues of significance. She suffered a Chronic Fatigue Syndrome in approximately 2000 which lasted for three years. Of that time, she was off work for eighteen months, and on restricted duties for a further period. It would appear she made a complete recovery from this condition.
11 From age approximately eighteen years she has suffered from migraine headaches. It is clear from the clinical notes that she has had very extensive treatment for this problem over the years, and it has had a considerable impact upon her life. She has been treated with a range of medication by her general practitioner, and referred to a neurologist, Dr Ron Freilich, in 2008. In evidence, the plaintiff accepted that, as a result of her migraines, she had regular periods away from work, on average several days per month, and at times for a month or months. They also affected her social life. However, the migraines did not ever prevent her from full-time employment as a nurse.
12 The plaintiff’s treating physiotherapist, Ms Schneller, gave evidence in respect of her treatment for the plaintiff’s migraines in the period before the workplace incident. This involved treatment in the way of massage to the plaintiff’s neck. In the notes, there is reference to treatment of the neck on occasions when there was stiffness and when the plaintiff had been moving house and attending a work seminar. I accept thus that the treatments had a dual purpose. However, I am satisfied that the principal reason for the treatment was related to the migraines, and was generally to both sides of the neck.
13 I am further satisfied from Ms Schneller’s evidence that her treatment of the plaintiff subsequent to the incident was different. While from time to time the treatment was related to migraines, the focus was upon the plaintiff’s right neck and shoulder pain. Ms Schneller pointed to regular references in her clinical notes to restriction of left rotation which she said indicated problems on the right side.
14 While I do accept the plaintiff had some neck problems which were treated by physiotherapy in the period before the workplace incident, they were minor only and I accept the plaintiff’s explanation that she could not recall any such treatment. That is consistent with the modest nature of the problem. This view is confirmed by the fact that there is little, if any, reference in the general practitioner’s clinical notes to any pre-existing neck problem in the years before May 2009.
The Injury and its Consequences
15 On 20 May 2009, the plaintiff was assisting another nurse to move an elderly patient from his bed. The plaintiff was holding the patient’s legs, and the another nurse was holding the patient’s upper body. The patient became confused, and kicked out, striking the plaintiff with his foot to her face. She immediately reported the incident and made a written record. She remained working but approximately two days later says that she suffered the onset of severe neck pain. She also had difficulty lifting her right arm. She went to see her general practitioner at the Electra Park Medical Centre on 26 May 2009. According to the clinical notes on that day, the plaintiff complained of:
“Bilateral shoulder blade; shoulder and arm pain for a few days after migraine and tender – relieved by Panadol - … .”[1]
[1]Plaintiff’s Court Book (“PCB”) 44
16 However, according to the report of the general practitioner Dr Pan of that clinic, he says:
“In my opinion, Ms Natalie Eder was suffering from soft tissue injury (“STI”) resulting from an incident on 19/5/2009[2]. She presented with neck pain and shoulder pain after being kicked in the face by a patient in her care, see following clinical notes. Normally STI will recover in a period varying from a few weeks to a few months … but she has presented with this problem continuously since 19/5/2009.”[3]
[2]Note, the incident occurred on 20 May 2009
[3]PCB 43
17 The plaintiff continued working on an off until approximately mid June 2009 when she took long service leave and had a month away from work. She then returned to work on light duties, but stopped working at the end of August 2009 and was away from work for approximately six months. She returned on light duties in February 2010. Her working hours varied and by September 2010 she was working three hours a day, five days a week. These absences were all to do with her neck and right shoulder problem. At that time, she was informed by her employer that there were no light duties available and her employment was formally terminated in January 2011. She has not worked since that time.
18 In October 2009, the plaintiff was referred to Mr Christopher Pullen, orthopaedic surgeon. She complained to him of pain in her right shoulder, radiating to the neck and down her arm. She said that her right shoulder movement was limited and found it difficult to raise her arm above shoulder height. Mr Pullen noted the plaintiff had been treated with physiotherapy, anti-inflammatory medication, Mobic and had a cortisone injection to the right shoulder.[4] He noted an ultrasound to the right shoulder previously requested by Dr Pan[5] which he said showed evidence of subacromial bursitis with impingement, but without any rotator cuff tear. He arranged an MRI scan of the right shoulder[6] which showed mild degenerative changes in the acromioclavicular joint, without rotator cuff pathology. He said the MRI showed mild degenerative changes and considered that her symptoms were more neck related than relating to her shoulder. He recommended she see a neck specialist. This apparently has not occurred.
[4]See Exhibit B – clinical note of Dr Stuart Down
[5]PCB 91
[6]PCB 92
19 Although the plaintiff had been treated by Ms Schneller, physiotherapist, before the incident of May 2009, according to that practitioner’s report,[7] physiotherapy treatment for the neck and right shoulder commenced in June 2009. Ms Schneller said the plaintiff was unable to complete the rehabilitation of her neck and shoulder due to aggravation of symptoms. The report concluded that the work incident contributed to the onset of neck and shoulder symptoms. The plaintiff has remained under the care of Ms Schneller through to the present time, and sees her every two to three weeks for treatment. In evidence, the plaintiff said the treatment assisted her with pain relief and mobilisation of the neck. Ms Schneller said that she had continued to treat the plaintiff, but that the nature and type of the treatment changed after May 2009. It was thereafter focussed more upon the neck and shoulder. She said there was a significantly diminished capacity to rotate the plaintiff’s neck to the left, consistent with an injury to the right side.
[7]PCB 53
20 The plaintiff remained under the care of Dr Pan, and other doctors at the Electra Park Medical Centre. Dr Pan arranged an x-ray of the cervical spine in July 2011.[8] That x-ray noted mild narrowing of the disc spaces at C5-6 in keeping with degenerative disease.
[8]PCB 90A
21 Since the attendance upon Mr Pullen, the plaintiff’s treatment has been essentially conservative with the prescription of medication, and physiotherapy treatment. At the present time, she takes a range of medication, including Panadol Osteo, two tablets three times a day, Mobic, an anti-inflammatory, and Endep, to assist with sleep. She further takes Nexium for stomach problems associated with Mobic.
22 According to her most recent affidavit,[9] she says that she has constant pain in the right side of her neck and into the shoulder. She rates the pain as approximately four out of ten, relieved by medication. She said her sleep pattern is interrupted and she wakes every hour or two. She is able to sit or stand for half an hour or more, but then is required to move around and change position. She lives by herself and is able to undertake all of her domestic activities, although they take more time, and she needs to change from one activity to another. She has particular difficulties lifting her right arm above shoulder height and this has led to problems grasping household items at that level. She is restricted in dressing and undressing, doing up her bra and washing her hair. She has not returned to ten-pin bowling.
[9]PCB 29
23 The injury has had significant consequences for her. The first is the loss of her nursing profession, which she said she enjoyed and had been a passion all her life. She now accepts that there is no prospect she will return to her former work as a Division 2 Nurse. Secondly, approximately three weeks ago, she was advised by St John Ambulance that as a volunteer, she would be expected to lift 20 kilograms. She has a current lifting restriction of 5 kilograms. She was summarily terminated as a result. According to her affidavit, this has also been a significant loss for her. Up until that time, she had remained involved in St John Ambulance, attending two to three events per week, was involved in secretarial work and training other volunteers.
24 As a result of her inactivity, the plaintiff claims to have put on a significant amount of weight.
25 Despite leaving her employment in 2010, the plaintiff has applied for a range of jobs on a regular basis since that time. She said in evidence that she has applied for hundreds of jobs and makes ten to fifteen applications per week. These are for full-time positions. She expects to be able to work on a full-time basis, on lighter duties. Despite all of these applications, she has been unsuccessful in obtaining work.
Medical Opinions
26 According to the report of Dr Pan, she diagnosed the plaintiff as suffering a soft-tissue injury on the day of the incident. She said:
“… although the possibility cannot be ruled out completely, it is unlikely her chronic neck and shoulder pain are as a result of the incident on 19/05/2009 as I would have expected it to clear up more quickly. … However, the incident may have aggravated an underlying degenerative change in the right shoulder (as shown on the MRI 4th November 2009).”[10]
[10]PCB 46
27 Dr Pan said further that the physical injuries had a major impact upon the plaintiff and restricted her activities of daily living.
28 According to the report of Mr Pullen,[11] he said he thought the plaintiff had sustained a right shoulder soft-tissue injury following the work accident but that the issues were more neck related.
[11]PCB 51
29 In her most recent report, Ms Schneller thought the likely prognosis of the neck-shoulder dysfunction would be that the plaintiff would have ongoing restrictions, particularly with lifting and prolonged sitting.
30 The plaintiff was referred by her solicitors to Mr Thomas Kossmann, orthopaedic surgeon, who saw her in April 2011 and February 2012. He set out in his report[12] a range of present complaints and areas in respect of which the plaintiff had difficulty with domestic and daily living activities. He diagnosed the plaintiff as having suffered neck and right shoulder soft-tissue injuries as a result of the work incident. He said the plaintiff was precluded from her previous employment and that incapacity was likely to continue into the foreseeable future. He said the plaintiff would be able to work in administration or in a supervisory role with lighter duties and a lifting limit of 5 kilograms. He suggested that she would require ongoing physiotherapy and hydrotherapy.
[12]PCB 66
31 The plaintiff was examined by Mr Kenneth Brearley, general surgeon, in June 2011 and August 2012. He received a history of intermittent aching discomfort or pain over the right side of the neck and to the top of the right shoulder. The plaintiff complained of repetitive movements in the right arm bringing about pain, as did heavy lifting. She reported difficulty sleeping at night and with the heavier aspects of housework such as vacuuming and sweeping. He diagnosed the plaintiff as suffering a soft-tissue injury to her cervical spine with referred pain to the right shoulder. He noted that according to the radiology, the right shoulder showed low-grade chronic subacromial bursitis. He agreed the plaintiff would be unable to work in a previous occupation as a Division 2 Nurse but would be able to work as a receptionist or an administrative worker. He said she was significantly restricted in her domestic activities and unable to drive for long distances. At the time he saw her, she was still working with St John Ambulance but he noted she avoided heavier lifting. He said the plaintiff’s prognosis was not good. He commented:
“The injury she has suffered to the cervical spine involves the cervical discs as well as the supporting interspinous ligaments and other musculoligamentous structures of the neck. Healing of disc injuries is slow and problematic and the anticipation is that her present symptoms will continue therefore for the long term. It is unlikely there will be any serious deterioration however and she should be able to continue working in the future as an administrator or receptionist.”[13]
[13]PCB 81-82
32 The plaintiff was examined at the request of the Workcover insurer by Mr Steven Leitl, orthopaedic surgeon, in October 2010. It would appear the purpose of his examination was for an impairment assessment in accordance with the AMA Guides. He said the plaintiff had suffered unresolved soft-tissue injury to the cervical spine with referred pain to the right upper limb, in the workplace incident.
33 The plaintiff was examined by Dr Robyn Horsley, specialist in occupational medicine, in May 2012. She also diagnosed the plaintiff as suffering ongoing cervical and right shoulder disability. She described the plaintiff as suffering mechanical neck pain with a “trigger point” at C5-6.[14] She thought the symptoms would be likely to persist and the plaintiff would be unable to return to work as a Division 2 Nurse. She placed a range of work restrictions and noted the plaintiff had reduced functional tolerances in driving and sitting.[15]
[14]PCB 88
[15]PCB 89
34 On behalf of the defendant, the plaintiff was examined by Mr Kendall Francis, surgeon, in August 2009. His report is of limited assistance given its age. He said the plaintiff had suffered a soft-tissue injury to her neck.
35 The plaintiff was examined by Mr Garry Grossbard, orthopaedic surgeon, in November 2010 and September 2011. He considered the plaintiff had suffered an injury to her cervical spine, consistent with the forceful extension of her neck by the kick she sustained at the time of the incident. He noted there was no major disc protrusion. He explained the injury as follows:
“The term ‘soft tissue injury’ is a very general one and includes injuries to a variety of structures. If the injury were purely to ligaments or muscle one would expect resolution, but if the injury involves disc then pain can persist. This is particularly so if facet joints become irritated. My view is that much of her pain is, in fact, facet joint mediated. … In this lady, her symptoms have persisted for a fairly long period of time and it would therefore be reasonable to suggest she is going to go on to have chronic neck pain with intermittent exacerbations.”[16]
[16]Defendants’ Court Book (“DCB”) 19
36 He said further:
“The worker has a soft tissue injury to the cervical spine probably involving the C5-6 disc without evidence of significant radiculopathy. I do not believe she has an injury to the right shoulder, and the shoulder pain she is experiencing is referred from her neck.”[17]
[17]DCB 21
37 He thought the plaintiff had a work capacity for administrative or clerical duties but would be unable to return to work as a Division 2 Nurse.
38 Finally, the plaintiff was examined by Dr Malcolm Brown, occupational physician, in December 2011 and June 2012. He had available to him the clinical notes of the general practitioner and the physiotherapist. He noted the x-ray of the cervical spine of July 2011[18] showed mild narrowing of the C5-6 disc space. He noted the physiotherapist’s records showed treatment for neck symptoms in 2008. Overall he considered that the injury to the cervical spine was short-lived and the problems mild. He thought the injury had resolved.
[18]DCB 37
39 Having considered all of the medical evidence, with the exception of Dr Brown, generally there is unanimity amongst the consultant practitioners that the plaintiff suffered a soft-tissue injury to her neck in the workplace incident. Mr Brearley and Mr Grossbard consider the injury has affected one of the cervical discs or facet joints. The injury was at first thought to be a shoulder injury, supported by some modest pathology on the shoulder x-ray and MRI. However, Mr Pullen determined that the injury was more likely to be related to the neck, and Messrs Kossmann, Brearley and Grossbard all agree that the injury is to the plaintiff’s neck, and with referred pain into the right shoulder, although Mr Kossmann thought there were injuries to both areas. The general practitioner, Dr Pan, thought it was unlikely the plaintiff’s chronic neck and shoulder pain were as a result of the incident, but said the incident had aggravated an underlying degenerative change in the right shoulder. I take this opinion to mean that whether the underlying condition was in the shoulder or the neck, it was aggravated by the incident.
40 All of Messrs Kossmann, Brearley and Grossbard accept that such is the state of the plaintiff’s neck that she will be unable to resume her duties as a Division 2 Nurse, although has the capacity to undertake lighter employment on a full-time basis. It is uncertain whether there is some injury to the facet joints, or the C5-6 disc as postured by Mr Grossbard, but whatever the precise nature of the underlying pathology, I am satisfied that there is an injury to that area, providing pain and restriction to the plaintiff’s neck and referred pain to the right shoulder area.
Conclusions
41 I had the opportunity to assess the plaintiff in the course of cross-examination. I am satisfied she is an honest witness giving a fair account of the effect of the injury upon her neck and right shoulder. I am satisfied that the reason she could not recall some modest problems with her neck which required treatment by the physiotherapist in 2008, was not an intention to hide those problems, but rather that she simply did not recall them. I am impressed by the fact that she is making every reasonable endeavour to re-enter the workplace. That enhances her credibility.
42 In submissions, Ms Britbart, for the defendants, pressed the following matters:
· She submitted the plaintiff did suffer pain which emanated from a shoulder injury, which, in particular, limited her incapacity for lifting her arm above head height. That shoulder injury and the resultant incapacity had to be disentangled from the consequences of the neck injury.
· The plaintiff had significant pre-existing neck problems which required extensive physiotherapy treatment from 2008. Given that no doctor had received a complete history of this, their opinions and the affidavits of the lay witnesses were necessarily flawed.
· The plaintiff’s capacity to enjoy a range of recreational, domestic and social activities was, absent the work injury, significantly curtailed by the plaintiff’s problems with migraines. These affected her capacity to work on a full-time basis, required her to take extensive medication and receive medical treatment, and affected her social life.
· When a comparison is made between the problems with her neck, both before and after the incident, the position was little changed and the consequences to the plaintiff isolated to the neck injury are very modest.
43 The first matter to consider is the nature and extent of the plaintiff’s pre-existing neck condition. As earlier stated, the plaintiff had some physiotherapy treatment on a few occasions and complained of pain and restriction. However, I am satisfied that the pre-existing problem was modest and of little consequence.
44 The next matter is the nature and extent of the injury sustained by the plaintiff in the workplace incident. At an early time, it was considered to be a shoulder injury given the plaintiff had difficulties lifting her right arm. However, after seeing Mr Pullen, the focus centred on the neck. I am satisfied, particularly from the reports of Messrs Kossmann, Brearley and Grossbard, that the injury is to the plaintiff’s neck, and there is referred pain into the right shoulder area. I am further satisfied that that pain is the reason the plaintiff has difficulties using her right arm, particularly above shoulder level, and difficulties lifting weights of anything more than 5 kilograms. If there is any injury to the shoulder, it is modest and of little significance.
45 The plaintiff has had a serious problem with migraines over more than twenty years. There is no doubt those migraines have affected her activities of daily living, and general enjoyment of life. She freely admitted the same in the course of cross-examination. However, even notwithstanding those problems, she was able to pursue an active life as a Division 2 Nurse, albeit with time off on occasions because of the migraines. There was no evidence to suggest her work with St John Ambulance was significantly restricted.
46 I accept that the neck injury and its consequences have had a significant affect upon the plaintiff’s life. She suffers ongoing pain in the neck and right shoulder area and requires a considerable amount of medication to deal with it. Further, physiotherapy treatment is ongoing and at the present time largely directed towards the neck problem. I further accept the plaintiff’s sleep is affected, and a range of other domestic and social activities further affected.
47 As was pointed out by Mr McGarvie, there are two consequences to the plaintiff which are extremely significant. The first is the loss of her capacity to pursue her profession as a Division 2 Nurse. I accept her evidence that she has always wished to be a nurse, enjoyed the work, gained professional satisfaction from it and socialised with those she worked with. Although she has the capacity to resume full-time employment, that will only be in lighter duties, and away from the area for which she has trained and become experienced over many years. I accept the loss to her is great.
48 Further, the plaintiff recently has been unable to pursue her principal other interest, that of working as a volunteer for St John Ambulance. Whatever the reason for her dismissal, I am satisfied it relates to her neck injury which has rendered her incapable of lifting weights which those working in that area are required to lift. I accept this is also a significant loss for her.
49 Bearing in mind all the matters to which I have referred, I am satisfied that the consequences to the plaintiff of her neck injury, viewed alone, do reach the “very considerable” test, as the legislation requires. In those circumstances, I propose to grant leave to the plaintiff to issue common law proceedings, with consequent orders as to costs.
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