Ellis v Rantzos

[2003] NSWSC 1194

CITATION:	Ellis v Rantzos [2003] NSWSC 1194
HEARING DATE(S):	18, 19, 20, 21 November 2003
JUDGMENT DATE:	16 December 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Windeyer J at 1
DECISION:	Judgment for defendant
CATCHWORDS:	TORTS - negligence - duty of care to employee - extent of injuries - conflict in medical evidence tendered in written reports - no oral evidence of doctors - DAMAGES - employment injury - Workers Compensation Act 1987 S151G and S151H - proportion of most extreme case
LEGISLATION CITED:	Workers Compensation Act 1987 s151G,
PARTIES :	Louise Maria Ellis (Plaintiff) Emmanuel Rantzos t/as Rantzos (Defendant)
FILE NUMBER(S):	SC 20517 of 2001
COUNSEL:	Mr M Cranitch SC with him Mr B Quinn (Plaintiff) Mr G M Watson SC with him Mr N E Chen (Defendant)
SOLICITORS:	G H Healey & Co - Sydney (Plaintiff) Sparke Helmore (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WINDEYER J

TUESDAY 16 DECEMBER 2003

20517/01 LOUISE MARIA ELLIS V EMMANUEL RANTZOS t/as RANTZOS

JUDGMENT

1 The plaintiff, formerly Louise Ellis, now Louise Simotas was born in 1967 and is now 36 years of age. She was born in London and came to Australia in 1980. She left school in 1982 and commenced an apprenticeship as a hairdresser with David Jones. She remained with the David Jones hairdressing salon for about 12 years. In 1992 she got an additional job with the Sydney Tower Restaurant, acting as a hostess on the top level between 6.00 and 11.00 pm two to three nights a week. She left David Jones in 1994 or early 1995 and was then employed at the Sydney Airport souvenir shop for about two years. After that she worked in a car parking operation as a car park attendant, taking the tickets at a console.

2 On 7 November 1998, the plaintiff commenced work with the defendant in his hairdressing business at 142 Clarence Street, Sydney. The defendant has operated that business and other businesses in Sydney for about thirteen years and his father operated similar businesses before that. The plaintiff was allocated to what was called the number two chair or station in the hairdressing salon. It is accepted that the chair should have had a height adjustment lever or handle. The plaintiff’s claim is that there was no handle and that the chair was set at maximum height. She said that she complained to the defendant about this but he treated this as a joke and said that nothing could be done. She said that she got a pair of platform shoes to help. She said that the result of having the chair set at maximum height, was that she had, at times, to stand on her toes to reach customers’ heads and that her hands were held above shoulder level for ordinary cutting. She said that this was the busy time of the year and that she was cutting “forty to sixty heads per day”. The system in the salon was that employees were allocated to particular chairs and that their takings were entered into the cash register roll with the chair number shown. The plaintiff said that the defendant would not let her move chairs, although she did from time to time when he left the salon.

3 Towards the end of December, on a date fixed by her as 20 December 1998, but which could not have been that date, because that was a Sunday, and it is not suggested that the shop was open on a Sunday, she said that she was cutting the hair of a very tall customer who was over six feet in height. She said that she felt a crack in her neck and pins and needles down her right arm. She dropped clippers or scissors. At this time the plaintiff was working about thirty-eight hours per week, and sometimes some extra overtime, particularly at busy times. The plaintiff continued cutting and finished off the tall man. She did not stop work and in fact worked until Christmas, although she said she had pain in her neck and numbness in her fingers and she could not feel the scissors. She thought, however, that she was just over tired and that the tiredness caused severe headaches, which she began to get more or less continuously. Previously she had migraine headaches about every six months, but after this incident she said that she had them more or less continuously.

4 After Christmas the shop was quieter, being holiday time although business picked up as school went back. At this stage the plaintiff was cutting about twenty to thirty heads per day and she kept going, she said, thinking that the pain would ease off.

5 Towards the end of April the plaintiff had time off work and she saw Dr. Yenson on 20 April 1999 who said she should have one or two weeks off work. He referred her to an orthopaedic surgeon, Dr Viglioni, who in turn referred her to a Dr Sekel. I will return to all of this in due course.

6 The defendant said that there was no handle missing from the chair. He said that the chair was not fixed at the highest position and that the height could be adjusted quite easily with the handle. He said that all the chairs in his salon were in good condition. He said that he did not have to have any maintenance carried out on those chairs and they had worked well during the thirteen years he had owned the business. He said that whereas the plaintiff had said that she had told an employee Mr George Papastavros of her problems and he had rubbed her neck and shoulder he had not been told of this. This man was not called. No inference should be drawn against the plaintiff as a result of this nor I think against the defendant, although the defendant’s evidence was he had made some very recent attempts to contact Papastavros without success.

7 Two persons who were employed by the defendant around 20 December 1998 and both of whom remain employed by him gave evidence in general supporting his contentions. Mary Wilson to whom the plaintiff said she had complained said that there had been no complaint made to her about the height of the chair. However, she admitted her memory was not necessarily accurate. Mr Vedders, who is a tall man, and would have no difficulty in cutting the hair of average sized persons at close to the highest setting on his chair, said that he had used chair number two in 1998 and that it was in working order. He was away from the salon from September 1998 until 17 March 1999. He gave evidence about maintenance on the chairs contrary to that of the defendant. I did not think that he was a reliable witness and I do not accept his evidence. I formed the view he would not say anything contrary to the interests of the defendant.

8 Mary Konstantakopoulos was called by the plaintiff to give evidence. It is not quite clear how this occurred as she was contacted on day 3 having read about the case in the newspaper and being told of a television snippet by her employer. She had worked for the defendant at Clarence Street in 1992. She worked on chair number 8. She said that chair had a side lever which did not work. The chair was fixed in position. She complained to the defendant who said it could not be fixed. It was not fixed during the eighteen months she worked for the defendant. She said that over the Christmas period there she could have cut to, 55 or 60 “heads a day”. In spite of the challenge to her as she had been involved in litigation with the defendant and his family, I consider her to be a witness whose evidence should be accepted.

9 It is and has been necessary when considering this matter to consider attacks which have been made very successfully on the credit of the plaintiff. Those attacks relate to her having made claims for social security benefits at a time when she was engaged in full time employment with Strathfield Car Radios in a position organized by her husband. Those attacks also relate to claims which she made on Swan Insurance Company under a policy which provided for the insurer to make payments due on a motor car which she had purchased on credit terms. While there may be some dispute as to whether or not the moneys received from Swan were payments received as a result of false statements being payments to which the plaintiff had no entitlement – (and for present purposes I proceed on the basis there may have been entitlement if the plaintiff could not work as a hairdresser) - there can be no doubt that she made false statements to an investigator who interviewed her on behalf of the insurance company. There can also be no doubt that she arranged for her doctor to send certificates to the Department of Social Security to support her claim for unemployment benefits at a time when she was in employment. There can be equally no doubt that for some reason she was prepared to make untrue statements to doctors in answer to questions. For instance she regularly told doctors that she did not smoke but she does smoke. She told some she did not drink alcohol, but she does. She is not a person whose evidence would usually be relied upon, and she is a person whose evidence must be treated with great care so far as her claimed disabilities are concerned. Nevertheless, I have come to the conclusion that her claim as to the state of the chair to which she was assigned should be accepted. On this matter I prefer her evidence to that of the defendant. The impression that I got of the defendant in the witness box and listening to his evidence was that it could not be relied upon so far as the condition of his premises was concerned. I find that the chair was defective and that it was fixed in a position which was much too high for the plaintiff to operate in a comfortable or safe position. If she sustained injury as a result of the unsafe system of work the defendant is liable. I should add that the evidence showed that it is perfectly clear that all chairs in the salon are not maintained in perfect condition, although that does not establish the position as claimed by the plaintiff. While it is of course well known to the courts that plaintiffs from time to time make dishonest claims, this particular claim about the chair is not one which would readily come to mind. I accept the plaintiff’s evidence that she liked hairdressing and was pleased to have returned to it. If she had been faking some story about the chair then there is every likelihood that she would not have returned to work at all, rather than have returned to work for another four months.

10 It follows from this that I accept the story about the defective chair; the evidence makes it quite clear that this was an unsafe and undesirable position in which the plaintiff was required to work by her employer. Under those circumstances he is in breach of his duty to his employee. I so find.

INJURIES

11 The plaintiff said that following the injury she had experienced pins and needles in the right arm and had pain in her right wrist. She thought that she was overtired and things would settle down. She continued at work up to Christmas and after the few days public holidays at Christmas went back to work. When she felt the crack in her neck she said she finished that job and was able to continue to the end of the day. She said that she commenced to experience more regular severe headaches. At the end of April 1999 she said her fingers were almost numb and she had bad pain in the right wrist. She consulted Dr Yenson about this on 20 April 1999. She said that she had been to see him for ‘flu and other problems between January and April and her evidence was that she had at least discussed with Dr Yenson her hand and wrist problems prior to April. I do not accept that. While I have preferred her evidence to that of the defendant so far as the condition of barber shop was concerned, I find it difficult to accept a lot of her other evidence without some outside support. The fact that she has made false claims for social security; must have deceived Dr Yenson in obtaining certificates to support her claims; has made false statements to an insurance investigator and has made false statements to doctors as to smoking and drinking and on the basis of the film admitted into evidence, has at least exaggerated her movement problems, makes it difficult to accept much of her evidence. She could have called Dr Yenson in her case. This does not necessarily mean that she did not have the pain. It only means that I do not accept that she discussed it with Dr Yenson prior to April. Nearly all the medical reports in evidence support this finding.

12 The plaintiff’s now husband and then fiancé was a store manager for Strathfield Car Radios. The plaintiff commenced part time work at the Kingsford store in December 1999 and then commenced full time work at the Hurstville store in March 2000. The work involved administration and sales. The plaintiff says that she coped with this if she did not lift heavy objects and did not overuse her right hand. She said that she got assistance from her husband.

13 The plaintiff married in 2000. For about a year she and her husband lived in the home of her husband’s parents. Mr Simotas’s mother did most of the domestic work during the day. After the marriage the plaintiff left Strathfield Car Radios because she thought it undesirable to work in the same place as her husband and she obtained work as a receptionist with a firm of solicitors for six months. She said that she was put off without reason but I consider it more likely than not that she was dismissed as a result of taking a lot of days off to attend medical examinations for insurance purposes and for this case. After losing the job the plaintiff undertook a full time six month TAFE course in business legal administration which, on the evidence she completed in November 2002, although it may have been 2001. She did well in the course. She has had reasonably regular part time jobs since then and she can cope with them if there is no regular typing or other work requiring much use of the right hand.

14 The plaintiff says that she cannot do heavy housework such as lifting and vacuuming. She says she needs to rest often and requires a lot of assistance from her husband, who is not used to doing domestic tasks as he comes from a Greek background. She says that she gets headaches all the time and is on constant medication. She says that she holds right arm in a sling position at home. She wears neck pads at home. She does not go to the gym. She does not go dancing like she used to. She is constantly tired. She gets a burning sensation in the neck and she cannot raise her right arm easily above her head for tasks such as brushing her hair or washing her hair. She says she cannot turn her neck fully while driving the car and she can only get into the car with some concentration and difficulty. She cannot hang clothes on an ordinary clothesline. Films put in evidence tend to show some of these claims are exaggerated such as that about difficulty in getting into the car. The plaintiff’s husband supported her claims as to difficulties in the house but his evidence must be treated with care as he was clearly aware of her false claims on social security.

Medical matters

15 The plaintiff, through no fault of her own, has attended a vast number of medical examinations for this case and perhaps for workers compensation and other insurance purposes. She has, however, not seen any treating specialist doctor since the end of 1999. She has seen Dr Yenson as her regular GP over the years and probably two or three times a year and I accept part of the purpose for these GP consultations was problems with her neck, shoulder and right arm.

16 As I have said, I do not accept the plaintiff’s evidence that she consulted Dr Yenson about her arm and hand problems or any neck injury prior to 20 April 1999. It is necessary first to determine whether the crack in the neck which the plaintiff said was when the onset of her problems occurred. If it did it would be necessary to determine whether it occurred as a result of an unsafe work system and if so whether it resulted in any continuing problems for the plaintiff. If I were to determine that the crack in the neck did not happen it would still be necessary to decide whether or not the plaintiff’s injuries which she now claims to have suffered and her continuing claimed disabilities resulted from an unsafe system of work on a chair which did not function properly.

17 The plaintiff’s version is that she felt the sudden crack, dropped her clippers, felt faint, sat down for five minutes, and then finished cutting the hair of the very tall customer and that she then continued working with increasing difficulty until she consulted Dr Yenson on 20 April 1999 about a painful right wrist. Dr Yenson reported that she had pain and tenderness in her right wrist and tenderness over the right elbow. He thought this was due to overuse in her work and he referred her to Dr Viglioni. Dr Viglioni thought that she had carpal tunnel syndrome and gave her an injection which did not help. He then referred her to Dr Sekel. X-rays of the cervical spine showed it to be “a little flexed suggesting muscle spasm”, but other doctors did not accept this as necessarily accurate. Dr Sekel saw the plaintiff in the middle of May 1999. He reported pain over the right upper limb, and some diminished power through the right arm. He found the cervical spine had full pain free range of movement. There was some tenderness over C4/5 posteriorly in the midline. He thought that further tests were required and ordered an MRI. This showed a disc protrusion at C4/5 and the report stated, “at no level is there compression effect on the cord or nerve root sleeves”. Nevertheless in a report dated 28 May 1999 to the workers compensation insurer he stated that the plaintiff’s report of pain in her right arm had increased. The power was diminished and that sensation to pinprick “is diminished subjectively over the entire right arm and there is no muscle wasting”. His opinion was that the plaintiff had a C4/5 disc prolapse causing irritation of nerve roots to the right arm. He ordered a cervical collar. He thought her symptoms were genuine and came as a result of a C4/5 disc lesion. Dr Sekel did arrange for the plaintiff to be admitted to hospital for a course of traction but this produced no improvement and on some reports appears to have made things worse. Dr Sekel thought that the plaintiff should have a C4/5 disc fusion. After discussion she decided not to take the risk.

18 There are no reports at all from Dr Yenson as the treating doctor tendered by the plaintiff but two reports of Dr Yenson were put in evidence by the defendant and may of course have been put in by the plaintiff if that had not happened. The point however is that there are no reports since 10 October 1999.

19 It is now necessary to deal with the medico-legal reports tendered in bundles by each side with few submissions by counsel being addressed to them. In a case like this that can do little other than baffle the trial judge. The plaintiff just went where she was directed, not knowing the purpose of most examinations, at least so far as the specialty of the examining doctor was concerned.

20 Two neurologists gave reports tendered by the plaintiff. Dr Milder saw her in September 1999. The crack in the neck was not mentioned. He reported resisted neck movement and tenderness to palpitation “diffusely over the right cervical spine.” He thought that she suffered from lesions of the right median nerve at the wrist and the right ulnar nerve at the elbow. He thought that a reduction in pain within the right upper limb might diminish following decompressive procedures to the right median nerve at the wrist and the right ulnar nerve at the elbow. I add here that nobody seems to have considered that these procedures should be carried out. He said a fusion might be required but might not necessarily relieve the pain. He did consider that her hand problems were attributable to stresses on her spine and upper right limb during her hairdressing work.

21 Dr Darveniza was the second neurologist who reported on the plaintiff. He saw her on 13 March 2002. He was told of an occurrence in December 1998 when the plaintiff leaned over a customer and “developed a cracking sensation between the neck and right shoulder accompanied by a burning over the right shoulder fold extending to the interscapular region on the right”. He noted that the plaintiff had also been seen by Dr Hirsch, a neurologist, who could not reach a definite diagnosis and Dr Schwartz, a neurologist, “who wondered about some form of entrapment”. On examination he found that there was painful restriction of neck movements, tenderness in the neck and “marked variability in motor effort precluding accurate assessment of power”. There was no objective wasting or weakness and reflexes were symmetrical. There was a subjective change to touch temperature and vibration sensation in the whole of the right upper limb. He thought that the plaintiff had suffered a stretching or wrenching injury “to the right forequarter in the accident leaving her with chronic neck pain and migrainous headaches twice per week, sensory loss in the right upper limb in a non-anatomical distribution and restricted use of the right upper limb”. He thought her conditions were permanent but that she remained fit for general duties not requiring repetitive heavy use of the right arm.

22 Dr Grahame Mahony, an orthopaedic surgeon, examined the plaintiff on 7 October 1999 and again on 25 February 2002. The plaintiff apparently told him that in late December 1998 she noticed pain in the back of her neck and that by January the pain gradually radiated from the neck to the right arm until she sought advice from Dr Yenson in April 1999. He thought that the plaintiff developed “symptoms referable to a cervical disc lesion with nerve root irritation, affecting the right upper limb.” He set out in a passage difficult to comprehend other matters which could not be excluded and he thought in addition she might have symptoms referable to thoracic back strain. He did not think that the C4/5 disc was solely responsible for her symptoms. He saw her again in 2002 when her complaints were much the same as previously and as reported to most of the other doctors. I set out the first three paragraphs of his report under “Opinion”, the first of which does not seem to be entirely clear and which does not seem to be supported by anybody else:

OPINION

Miss Ellis has developed symptoms referable to a cervical disc lesion at the C4/5 level with nerve root irritation affecting the right upper limb, a capsulitis of her right shoulder and a rotator cuff lesion could not be excluded, a right medial epicondylitis and she has added symptoms referable to a right medial epicondylitis, a right ulnar nerve neuritis and a right carpal tunnel syndrome, a right DeQuervain's tendovaginitis and a tenosynovitis of the flexor carpiradialis longus tendon.

She also has symptoms referable to a low lumbar back strain with nerve root irritation affecting the right lower limb.

It is consistent that the nature of her work whilst working as a hairdresser has produced such lesions.

23 Dr Mahony thought that the plaintiff had twenty percent permanent impairment of her neck, a thirty-five percent permanent loss of efficient use of the right arm at and above the elbow and to include impairment below the elbow and ten percent permanent impairment of the back.

24 Dr David Macauley examined the plaintiff on 30 May 2001 in connection with a disability claim made by the plaintiff on Swan Insurance (Australia) Pty Limited. The plaintiff reported feeling a sudden snap in the right shoulder at Christmas time. She told Dr Macauley that she suffered from continuous pain on the right side of the neck radiating into her right shoulder blade and she had pain and pins and needles in the entire right arm and that she had headaches every day. The plaintiff made false statements to this doctor about her activities. At that time she was fully employed and yet she said she had tried to seek further employment, had applied for work as a representative of hairdressing companies. Dr Macauley reported, “Miss Ellis states that on most days she visits her fiancé who is the manager at Strathfield Car Radios at Hurstville and sits in the office and does computer and phone work.” On any basis this was misleading to say the least. On examination he said that her neck movement was free, there was some pain induced at the extreme of right rotation, that her claims of restricted movement of her right arm were not supported by her movements on examination, and that he was of the opinion that she was grossly exaggerating her pain and disability, that she may have some minor muscular injury relating to the nature of her hairdressing, but that was all. He said that the disc prolapse if any at C4/5 would not give the plaintiff the symptoms she complains of. He said that she “is falsifying her disability and has no physical abnormality to explain her disablement”.

25 Dr Matheson is a consultant neurosurgeon. He examined the plaintiff for the defendant in December 2001 and January 2003. He said that he found on examination that the plaintiff appeared a fit woman with a complaint of some tenderness over the right supra scapular muscle. Her shoulder movements were full, her neck movements were full and the thoracic vertebrae looked normal. He said that on neurological examination there was subjective sensory loss over the palm of the right hand involving all but the fifth finger and some loss of the fourth finger on both sides, which “must be incorrect for a median nerve involvement”. He said that simply leaning over somebody while hairdressing may produce muscle strain at the base of the neck but could not produce a disc lesion. He also said that a C4/5 disc lesion cannot produce arm pain, as the nerve at that level does not go into the arm. He thought it was a muscle strain which had probably resolved. He said that there was no neck injury, but that there was a clear histrionic personality disorder. He thought that the plaintiff had fully recovered from any strain resulting from her work as a hairdresser. On the second examination Dr Matheson said that the plaintiff’s story seemed to change, but nevertheless she was still complaining of neck pain and paralysed right arm. He said it was clear there was no low back disability. He said that on examination the plaintiff appeared a fit woman who resisted neck movements but that there was no obvious restriction. He said the shoulder moved normally. He said that she had extended her sensory loss on the right side from the neck down to the right hand. His opinion was that the story was implausible and that there was no source of arm pain and unlikely to be any source of neck pain. Whatever symptoms had arisen through the problems with the chair he said they would have resolved by now, or revealed themselves in definite pathology, which had not happened. He said that she had no disability and that any fusion would probably make her worse.

26 Dr Lloyd Hughes, a consultant orthopaedic surgeon, has examined the plaintiff for the workers compensation insurer or for the defendant on a number of occasions. The history as set out by Dr Hughes in his first report is quite inconsistent with the claim as to the crack. He thought that the plaintiff’s symptoms were consistent with an inter-vertebral disc protrusion in the cervical spine as suggested on the MRI scan, but said that this was not the result of any injury at work or activities at work, but was due to a degenerative condition in the disc. He said that there was a ten percent impairment of the neck and no impairment of the back, but that the impairment of the neck had nothing to do with her employment. He saw her again on 13 December 2001 and reported no change to his views. He saw her again on 16 December 2002 when the plaintiff was complaining of constant pain in the back of her neck and right upper arm radiating to all the fingers of her right hand and numbness and tingling in all the fingers and thumb of the right hand. He said that neurological examination revealed non-organic diminished sensation of the whole of the right hand. In essence he said that in his opinion her symptoms were not consistent with clinical assessment and that whatever the cause of the disc protrusion at the C4/5 level this could not produce the symptoms in the right upper limb. He said that she was fit for work as a hairdresser.

27 Dr Slezak, whose qualifications indicate that he is a specialist physician, although no guidance was otherwise given to this, examined the plaintiff for the defendant on a number of occasions, the first being 15 March 2002. He noted some discomfort to palpation over mid-cervical interspinous spaces but no localized tender points. He noted limitation of spinal movements and diminution of sensation to pinprick which did not conform to dermatone distribution. He said there was exaggerated weakness at the right shoulder joint and exaggerated weakness with resisted flexion at the right elbow joint and exaggerated weakness of the dominant right hand grip. Some parts of his report on page 3 and 4 refer to a letter from the solicitor for the defendant which is not in evidence and therefore show the absurdity of just bundling up reports and putting them before the trial judge. The conclusion was that the plaintiff had developed an atypical chronic cervical pain syndrome and that if she did have any incapacity it would be attributable to the nature of her employment. He agreed that surgery should not proceed. He assessed the plaintiff as having a ten percent impairment of the cervical spine and compared to a most extreme case for the spine and said he would apportion that to her employment. He saw her again on 28 January 2003 and his findings were not markedly different. In his opinion he said:

As noted at my initial examination, I believe there to be an element of embellishment with respect to the alleged extent and severity of Ms Ellis' present symptoms. There is no organic basis to the alleged "sensory impairment" affecting the right upper limb, right posterior chest wall and right side of the neck. There is exaggerated weakness with resisted movement at the right shoulder joint, right elbow joint and exaggerated weakness of dominant right handgrip.

Ms Ellis has developed and [sic] atypical chronic cervical/right upper limb pain syndrome. The protracted, atypical clinical course, coupled with the presence of significant abnormal illness behaviour pattern, renders the prognosis for further improvement in Ms Ellis' symptoms to remains [sic] guarded.

I consider that Ms Ellis is fit to continue working in a fulltime capacity as a Legal Administrator and indeed it is likely that she would be able to perform her previous work duties as a Hairdresser.

28 The final doctor examining the plaintiff and furnishing reports to her solicitors was Dr R Adler, a specialist in rehabilitation medicine. He saw the plaintiff first on 30 November 2002 when she told him of the cracking injury. The plaintiff complained to him of neck pain radiating down the right shoulder and into her right arm, headaches producing migraine, weakness in the right hand and difficulty in maintaining the right arm above shoulder height, causing difficulty in washing her hair or dressing herself. He said that on examination there was C5/6 right-sided tenderness and some limitation of full elevation of the right arm with reduced pin prick sensation in the right hand with a weak grip strength in the right hand. His opinion was that the plaintiff suffered damage to the right C4/5 disc with disc protrusion which had caused neck pain and headaches. He said that she had suffered right cervical nerve root radiculitis giving rise to the referred right arm pain, parathesia and numbness as a consequence of the nerve root injury, which arose as a result of lengthy periods of maintaining the arm in an elevated position, causing a traction overload on the lower right cervical nerve root. He said there had been some improvement but recovery was not complete. He then appears to have made a mistake by talking about the left arm. He said she was not fit to return to work as a hairdresser as that would result in elevation of the right arm and aggravation of the cervical nerve root radiculitis. He said there was permanent impairment of the neck and right arm and a twenty two percent permanent impairment of the neck with a twenty percent loss of use of the left [sic] arm at or above the elbow. Whether Dr Adler read his report after it had been typed or signed it is quite uncertain. It appears that after this Dr Adler was sent copies the reports of Dr Matheson, Dr Slezak, Dr Shnier, and Dr Hughes to which I have referred for his comments on them or for his further consideration in light of those reports. He said that in the light of the MRI report to which I have referred and the findings of Dr Viglioni and Dr Sekel that the appropriate conclusion was that the plaintiff “suffered a cervical disc protrusion with secondary right lower cervical nerve root injury causing right arm radicular symptoms with evidence of right C5/6 radiculopathy. Not surprisingly Dr Sekel recommended cervical decompression surgery”. He said that that the sudden onset of symptoms on 20 December 1998 considered in the circumstances of the defective chair was “consistent with exposure to long periods of static neck strain when her arm was excessively elevated. It is in this context that the cervical disc injury arose”. He criticized the view of Dr Matheson that disc lesion could not have been produced by leaning forward as the plaintiff said she was and he disagreed with the view of Dr Matheson that the C4/5 disc lesion does not produce arm pain, stating that it could produce somatic referred pain and saying that the C5 nerve root sensory loss found by Dr Viglioni suggested the possibility of C5 nerve root injury which may have been caused by the disc lesion. He criticized Dr Slezak’s findings as to exaggerated weakness of the right hand grip, stating that this had not been properly tested. As it turns out that was quite incorrect. There were criticisms of Dr Hughes in his report.

29 The reports from Dr Adler produced a flurry of further reports from Dr Matheson, Dr Hughes and Dr Slezak. First Dr Slezak explained how he had tested the hand grip, second he said again that the non-organic diminution of pin prick, light touch and vibration sense could not be accounted for by a disc prolapse or traction nerve root injury and thirdly he agreed with previous findings of Dr Matheson in respect of a neurophysiological study performed by Dr Schwartz and stated that the findings in Dr Schwartz’ study which indicated widespread involvement of nerve root was not consistent with the plaintiff’s known radiology or clinical history and he reiterated that the study had no clinical correlation with the plaintiff’s symptoms and his clinical findings.

30 Dr Matheson gave a further report on 15 April 2003 in essence restating his views and saying that those of Dr Adler could not be correct. There is little point in setting this out in any detail other than to state that he does accept that there can be somatic referred pain but such referred pain from the C4/5 does not go beyond the tip of the shoulder and he criticized the view of Dr Adler that the x-rays showed objective evidence of spasm as being incorrect as he said x-rays cannot show that.

31 Dr Hughes gave an even more vituperous response to the views of Dr Adler.

32 None of this is particularly helpful. It sometimes happens in cases such as this where there are successive reports from treating doctors constantly in touch with the plaintiff complaining of injuries that the court can accept the evidence of the treating doctors in preference to the views of specialists who examine the plaintiff on few occasions for medico-legal purposes only. That is not the position here. The plaintiff bears the onus in these cases. In a case such as this, where there is an issue between the doctors it is not possible for the court to accept the plaintiff’s experts over the defendant’s experts where reports are just tendered and there is no oral evidence of the plaintiff’s doctors nor cross-examination of the defendant’s doctors required to be present for that purpose. It is more difficult for the plaintiff when Dr Adler was brought in late in the day and his reports have been strongly criticized. That is the case here. To some extent counsel for the plaintiff more or less accepted this stating that the plaintiff’s main complaint at the present time was headaches so that the “crack” was of less significance. I am not satisfied the crack occurred. Without corroboration of this, taken with the failure of Dr Yenson or any treating doctor to mention it and the general problems about accepting the plaintiff as a witness of truth I find she has not satisfied the onus on this.

33 I find that there is no organic basis for the plaintiff’s continuing complaints as to her right arm and right shoulder. On the evidence I must find that the plaintiff has not established that the protrusion at C4/5 was caused by her work with the defendant and that in any event it has not been shown to be the cause of her present claimed problems. I must also find on the evidence that the plaintiff has not established she could not return to work as a hairdresser. It follows that so far as general damages are concerned inability to do work cannot be claimed as a head for loss of enjoyment of life. I also find on the evidence that the plaintiff would be to do at least some the housework which she says she cannot do. I find that her complaints are much exaggerated. This is a finding on the medical evidence and the film shown in evidence but is in addition supported by her lack of credibility as a witness of truth. I accept that the plaintiff did suffer a traction injury to her right arm as a result of elevation of her hands required to cut hair with the chair not properly functioning, but that any major effects of that injury came to an end long ago. For the most part whatever problems are said now to continue are imaginary rather than real. It was not claimed that there was or is a psychiatric illness.

34 Under the s151G of the Workers Compensation Act 1987 a calculation is necessary to make a finding as to the amount of damages which should be awarded to this plaintiff for non-economic loss. This is to be determined according to the severity of that non-economic loss as compared with a most extreme case based in this case on an upper figure of $232,400. The loss of the plaintiff is far removed from a most extreme case. I find that it is at most fifteen percent of a most extreme case, which would be $34,860. I should add this is based on acceptance of the plaintiff’s claim of not continuing but quite regular suffering of migraine headaches and some continuing pain in her right arm mostly of a somatic nature. It follows from this and in accordance with the somewhat extraordinary provisions of s151G(4) and s151H of the said Act as applicable to this injury, the plaintiff has no entitlement to damages. Under those circumstances there should be judgment for the defendant with costs.

35 Orders

1. Judgment for the defendant on the plaintiff’s claim

2. Plaintiff to pay the defendant’s costs.

3. Exhibits may be returned.

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Last Modified: 12/17/2003