Gokoglu v Healthscope Limited
[2014] VCC 1652
•16 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY DIVISION
Case No. CI-13-04510
| SECIL GOKOGLU | Plaintiff |
| v | |
| HEALTHSCOPE LIMITED (ACN 006 405 152) | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 17 & 18 July 2014 | |
DATE OF JUDGMENT: | 16 October 2014 | |
CASE MAY BE CITED AS: | Gokoglu v Healthscope Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1652 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave under section 134AB(16)(b) of the Accident Compensation Act to institute proceedings for pain and suffering and loss of earning capacity damages – mental disturbance/disorder secondary to lower back injury - disentanglement of organic/non-organic consequences of unrelated bilateral carpel tunnel injury
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Jatayilakev Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Meadows v Lichmore Pty Ltd [2013] VSCA 201, Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622; Humphries v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Peak Engineering Pty Ltd and Victorian WorkCover Authority v McKenzie [2014] VSCA 67; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64; Lianos v Inner & Eastern Health Care Network (2001) 3 VR 136; O'Donnellv Reichard [1975] VR 916
Judgment: Plaintiff’s application for leave dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. Griffin with | Zaparas Lawyers |
| Mr D. Churilov | ||
For the Defendant | Mr J. Batten | Hall & Wilcox Lawyers |
HER HONOUR:
Introduction
1 By originating motion filed on 3 September 2013, the plaintiff, Secil Gokoglu, sought leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to institute common law proceedings for pain and suffering and loss of earning capacity damages. The injury alleged was to the plaintiff’s lower spine and secondary mental disturbance/disorder arising out of or in the course of employment with Healthscope Limited as a food services assistant since 20 October 1999 and, in particular, on or about 30 April 2008 (the first injury).
2 The plaintiff was required to prove compensable lower back injury and secondary mental disturbance/disorder. This was not an issue in this application, although the defendant argued the injury accepted in 2008, for which weekly payments of compensation were made until September 2010, had been for injury to the plaintiff’s lower back on 30 April 2008, not injury throughout the course of employment.[1] Admissions made by the defendant further indicated liability had been accepted for payment of psychological expenses incurred between 18 November 2008 and 22 December 2011 and medication prescribed in the treatment of mental disturbance/disorder secondary to the first injury.[2]
[1] Transcript (TN) 11
[2] TN 186-187
3 The application was made under both paragraphs (a) and (c) of the definition of “serious injury”[3] and, initially argued principally under paragraph (a). However, the claim made under paragraph (a) was abandoned before closing submissions commenced. This was an acknowledgement that, based on the most recent radiological evidence and current medical evidence, the plaintiff could not establish, as required, a substantial organic basis for the pain and suffering and loss of earning capacity consequence alleged.[4]
[3] Section 134AB(37)
[4] TN 128 and 198. See also Jatayilakev Toyota Motor Corporation Australia Ltd (2008) VSCA 167; Meadows
v Lichmore Pty Ltd [2013] VSCA 201, [19].
4 Under paragraph (c) of the definition, the plaintiff was required to prove a "permanent severe mental or behavioural disturbance or disorder" on the balance of probabilities. "Permanent" refers to impairment "likely to last for the foreseeable future".[5] As to what constitutes "severe" mental disturbance, the authorities[6] have indicated that "severe" connotes something more than "serious" under the Act.
[5]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 [33]
[6] See Humphries v Poljak [1992] 2 VR 129, Mobilio v Balliotis [1998] 3 VR 833 and Papamanos v
Commonwealth Bank of Australia [2014] VSCA 167 [44]
5 As mentioned, the mental disturbance/disorder was said to be secondary to the first injury. At hearing, the plaintiff alleged Major Depressive Disorder, an Adjustment Disorder with anxiety and a chronic pain syndrome/disorder. As to the latter disorder, counsel argued the symptoms of an earlier diagnosed Adjustment Disorder with depressed mood had likely progressed to a chronic pain syndrome or disorder.[7]
[7] TN 194-195
6 Section 134AB(38)(d) of the Act provides that pain and suffering and loss of earning capacity consequences of injury to the psyche, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, must be fairly described as being more than serious to the extent of being severe.
7 The plaintiff was also required to discharge the burden imposed by section 134AB(e) which arose pursuant to (e)(i) and (ii), by establishing permanent loss of earning capacity due to mental disturbance/disorder, productive of financial loss of 40% or more.
8 The plaintiff would not establish the requisite loss of earning capacity if, after taking into account her psychological capacity for suitable employment post-injury and her attempts to participate in rehabilitation and training, she was psychologically fit for any employment which, if exercised, would result in her earning more than 60% of pre-injury earnings as determined in accordance with section 134AB(38)(f). The plaintiff's calculation of her without injuries earnings figure (as determined in accordance with section 134AB(38)(f)), namely the sum that most fairly reflected her earning capacity had injury not occurred, was eventually agreed at $29,120 gross per annum or $560 gross per week. 60% of this figure was $336 gross per week.
9 It was submitted that when the plaintiff ceased work in March 2013, she was permanently unfit to return to her pre-injury duties as a food services assistant. The plaintiff had, so the submission went, a retained physical capacity for work in the order of 50% of the 32 hours worked per week prior to 30 April 2008.[8] One of the questions for determination in this application was whether, and the extent to which, the plaintiff was psychologically incapacitated for work by reason of mental disturbance/disorder related to the first injury.
[8] TN 265
10 Sections 134AB(19)(b) and (38)(g) also required consideration of questions of retraining and rehabilitation in determining whether any mental disturbance/disorder was productive of permanent financial loss of 40% or more.
11 If the plaintiff satisfied the loss of earning capacity requirements under section 134AB of the Act, she was entitled to leave to institute proceedings for both her pecuniary loss and pain and suffering damages, without further determination of the pain and suffering component of the application.
12 The application was, however, complicated by the evidence of separate compensable injury for which the plaintiff lodged a further claim for compensation. Her formal claim for compensation for bilateral carpel tunnel syndrome was signed on 29 March 2011.[9] According to the claim made, the plaintiff was performing alternative duties as a sandwich maker when, from 10 April 2010, she noted symptoms and later reported this condition to her employer on 12 December 2010 (the second injury).
[9] TN 66 and 189 and Exhibit P4
13 On 30 January and 5 September 2012 the plaintiff underwent carpel tunnel release surgery, firstly, to her right arm and next to her left arm. From 11 March 2013 she was certified unfit for work due to the second injury and, until payments ceased on 20 June 2014, the plaintiff was paid weekly compensation for total incapacity. I was told the plaintiff has challenged the decision to end payments.[10]
[10] TN 82, 103 and 168
14 Based on the circumstances described and medical evidence obtained since March 2013 (including medico-legal assessments by the defendant’s psychiatrist, Dr White and by psychiatrist, Dr Kornan for the plaintiff, on 3 May 2013 and 14 April 2014 respectively[11] and the reasons published by the Medical Panel on 20 August 2013[12]), mental disturbance/disorder suffered in response to the first injury was probably unresolved at the time of the onset of symptoms of the second injury.
[11] DCB 58 and PCB 133
[12] DCB 151
15 It was, therefore, necessary to determine the nature and extent of any mental disturbance/disorder before the onset of the symptoms of the second injury in about April 2010 and to disentangle both the organic and non-organic consequences of the later injury.
16 On the evidence available to the Court, this was hardly a straightforward task. For instance, where the plaintiff relied on progressively worsening sleep patterns as an indication of the severity of her mental state, she was required to disentangle[13] the psychological from likely physical causes of sleep disruption and the extent of the organic[14] and/or non-organic contribution of the second injury to sleep disruption.
[13]PeakEngineeringPtyLtd & Victorian WorkCover Authority v McKenzie [2014] VSCA 67 [24]-[25] and [28]
[14] See nerve conduction study, dated 13 March 2013 at DCB 57 and the report of consultant physician, Dr
Blombery, dated 28 April 2014 at PCB 75
17 In summary, the defendant asserted, firstly, that the organic basis for any earlier diagnosed Adjustment Disorder had probably resolved. This may be so, however, the psychiatric evidence has indicated that, howsoever characterised, mental disturbance/disorder secondary to the first injury was probably unresolved before the onset of symptoms of the second injury.
18 Secondly, the defendant submitted the second injury, was responsible for the plaintiff’s current mental disturbance/disorder (irrespective of whether the condition was characterised as a Major Depressive Disorder, Adjustment Disorder or chronic pain syndrome/disorder) and for any physical or psychological incapacity for work. The evidence of whether, and the extent to which, the plaintiff was psychologically incapacitated for work by reason of the first injury was limited and, in the final analysis, insufficient to establish permanent financial loss of 40% or more.
19 Thirdly, if the plaintiff continued to suffer from mental disturbance/disorder secondary to the first injury, she had not, as required,[15] disentangled the consequences of this condition from any concurrent physical/psychological consequence of the second injury. The example of sleep disruption already cited, illustrates the problem the plaintiff confronted in identifying and separating out the organic and/or non-organic contribution of the second injury.
[15] See Peak Engineering Pty Ltd & Victorian WorkCover Authority v McKenzie [2014] VSCA 67 [24]
20 Lastly, if any unresolved mental disturbance/disorder secondary to the first injury was identifiable, the consequences of this disturbance/disorder were not permanent and severe. [16]
[16] TN 53-54 and 164-178
21 As my discussion of the evidence below shows, the failure to adequately identify and disentangle the contribution of the second injury to mental disturbance/disorder, proved fatal to the plaintiff’s application.
The reliability of the plaintiff’s evidence
22 Despite there being no current revealed pathology to help explain the extent of the plaintiff’s ongoing lower back symptoms, most doctors have accepted her complaints of pain and disability as genuinely made. Psychiatrists have also judged the plaintiff to be suffering from genuine mental disturbance/disorder, notwithstanding the plaintiff’s insistence at hearing that her symptoms were mediated by organic factors.[17] There was, nonetheless, some attack on the reliability of the plaintiff’s evidence.
[17] TN 99
23 The plaintiff was a difficult witness to assess. Her application was heard over some four days. On the days she attended Court the plaintiff invariably presented as an individual who paid particular attention to her grooming and attire. Throughout, the plaintiff’s behaviour and manner was robust, her answers appeared considered and, in giving evidence, at times, the plaintiff smiled. The latter drew comment from counsel on at least two occasions. The first of these was during the following exchange about the plaintiff’s daughter’s wedding in 2011:[18]
[18] TN 65
Did you go to the wedding? – – – Yes. Of course.
Did you smile? That was a happy occasion? – – – Yes.
Was it an arranged marriage or a marriage of love? – – – They met each other.
So it was a happy occasion with dancing, was it? – – – Yes.
And socialising? – – – (Through interpreter) Yes, I was happy and it’s socialised with my friends, was somewhat trying to hide my pains (sic).
Yes. But did you, in trying to hide your pains dance with your husband at your daughter’s wedding? – – – Once.
24 Another occasion was during an exchange about day-to-day activities performed by the plaintiff, with some of which she alleged she required assistance from her daughter and husband due to both her back and upper limb conditions: [19]
[19] TN 85
Do you baby sit your grandchild? – – – No.
How old is the grandchild? – – – Eleven months.
What do you do for your daughter in respect to your grandchild? – – – If my health was good enough, I would’ve loved to have had a better relationship with my grandchild.
Would you answer the question, please, madam? – – – Can you ask me again please?
Do you see some humour in me asking you to answer my question, do you?--- I’m trying to answer your questions.
You smiled Mrs Gokoglu. Did you see some humour in my question as to what you do with your grandchild?---No, no I’m just smiling. I don’t think that’s a problem is it?
Could you answer my question then – smiling or otherwise. What do you do for your grandchild and your daughter? – – – I don’t do anything for my grandchild. The only thing I do is pamper him when – him or her when the child comes over.
What you do when you pamper? – – – I speak to – – – (interruption by interpreter) (the plaintiff) I had to speak to her in Turkish and I sing to her in Turkish.
Do you hold her and cuddle her? – – – No.
Do you push the pusher? – – – No.
25 Leaving to one side, the manner of the plaintiff’s response, I did not find convincing either this evidence or the plaintiff’s later attempt during re-examination to qualify her earlier response through the following exchange:[20]
And (you) were asked whether you cuddled the child and you said no? – – – When I answered that, I probably went into the thought of I should be doing more as a grandmother. And I’ve answered no. But sometimes I do pat her head and cuddle her, and – but not as much as I want to.
What would you like to do? – – – I would like to have looked after her as a grandmother as much as I could.
[20] TN 117
26 The impression I was left with was of an intelligent witness, who, at times, was reluctant to make concessions, where she feared to do so might harm this application or the claim for the second injury. In my discussion of the evidence below I refer to various examples of this reluctance.
27 Lastly, I could find no justification for the suggestion that the plaintiff’s command of English necessitated reliance on an interpreter throughout the hearing (“she certainly does have basic English language skills. Her skills extend to speaking, but do not extend to reading and writing”[21]). The plaintiff studied English in Turkey.[22] She has lived in Australia since her late teens and both during medical examinations and the hearing demonstrated a very good understanding of spoken English. The plaintiff also demonstrated an ability to read English when required.[23] This is not to deny that occasionally, the plaintiff, for whom English is a second language, needed assistance with long or complex questions.
[21] TN 28-29
[22] Defendant’s Court Book (DCB) 134-136
[23] TN 99-100
28 Based on the matters summarised in the preceding paragraphs, I generally preferred the documentary evidence where any conflict in the evidence required resolution.
The evidence called and tendered
29 The plaintiff attested to the accuracy of her two affidavits sworn on 22 April 2013 and 10 July 2014 respectively. She was cross-examined.
30 The plaintiff and the defendant tendered extracts from their respective Court Books.
31 The material tendered by the plaintiff comprised multiple reports from treating doctors, health professionals and medico-legal specialists, copies of a Statement of Claim, Particulars of Injury and radiological reports.[24]
[24] Plaintiff’s Court Book (PCB) Exhibit P1
32 Additional documents separately tendered by the plaintiff comprised rehabilitation file notes kept by the employer between 12 April 2008 and 26 October 2011,[25] a copy of the report made by psychiatrist, Dr Douglas to the insurer on 10 May 2010[26] and a copy of the Claim Form for the wrist injury.[27]
[25] Exhibit P2
[26] Exhibit P3
[27] Exhibit P4
33 The material tendered by the defendant comprised multiple medico-legal reports, copies of nerve conduction study results obtained on 24 June 2010 and 13 March 2013 respectively, earlier radiological results from 11 November 2005 for the cervical and thoracic spine, the Claim Form for the lower back injury and the Employers Report both dated 20 May 2008, the plaintiff’s CV, a facsimile dated 27 April 2009 with undated correspondence from Dorset Rehabilitation Centre and the vocational assessment report of occupational rehabilitation provider, Recovre dated 25 November 2013.[28] The tender by the defendant also included a Medical Panel Certificate of Opinion with Reasons for Opinion dated 20 August 2013.
[28] DCB Exhibit D1
34 After discussion and consideration of the High Court authority in Wingfoot Australia Partners Pty Ltd v Kocak as well as the earlier decision of the Court of Appeal in Lianos v Inner & Eastern Health Care Network, the Panel’s reasons, on which the plaintiff also eventually relied, were tendered without objection.[29]
[29] (2013) 303 ALR 64 and [2001] 3 VR 136 respectively and TN 130 to 141
35 The Panel’s reasons explained the basis for the Members’ opinion that the plaintiff sustained a now resolved soft tissue injury to her lower back. However, whilst the plaintiff had previously presented with features consistent with an Adjustment Disorder with depressed mood, in August 2013, the Panel concluded her symptoms were more accurately characterised as a mild Chronic Pain Disorder due to the resolved soft tissue injury and to psychological factors relevant to the first injury.[30] I will discuss this evidence in greater detail shortly.
[30] DCB 87
36 I have read and considered all the materials tendered and, where appropriate, referenced individual documents.
37 It was common ground the plaintiff attended eight psychological counselling sessions between 7 May 2013 and 26 November 2013 with psychologist, Ms Oksuz.[31] Payment for these sessions was apparently made under the claim for the second injury. For reasons not explained at hearing, no report was forthcoming from this treating psychologist.[32] I was invited to and did infer that Ms Oksuz’s evidence would not have helped the plaintiff’s case in establishing permanent severe mental disturbance/disorder secondary to the first injury.[33]
[31] TN 98
[32] TN 60, 85, 86 and 98
[33]O'Donnellv Reichard [1975] VR 916
Background matters
38 Various background matters to which the plaintiff deposed in her evidence are summarised in the paragraphs that follow.
39 The plaintiff is 45 years of age. She completed Year 10 or 11 in Turkey before migrating to Australia in 1985.[34] The plaintiff is married with two adult daughters.
[34] PCB 15 or DCB 134-135
40 One daughter married in 2011. As mentioned, there is an 11 month-old grandchild. The second daughter lives at home with the plaintiff and her husband. Notably, neither this daughter, nor the plaintiff’s husband gave evidence corroborating the plaintiff’s claim that one or the other of them had assumed various tasks and activities she deposed she could no longer perform.[35]
[35] PCB 19-20 and 25-26
41 Irrespective of whether, as claimed, this was prepared with the assistance of one of her daughters or husband, the CV submitted in 1999 for employment with the defendant and the affidavit material evidenced a long history of employment in Australia from about 1986. This material also indicated that further study undertaken between 1995 and 1996 had led to the plaintiff obtaining a Certificate in Occupational Studies.
42 There were discrepancies between the dates given in the CV and the first affidavit, the latter sworn in April 2013. I have preferred the dates and description of employment recorded in the more contemporaneous CV. This document recorded work as a child care worker in a Turkish Child Care Centre between 1986 and 1990, as a manager of a pizza takeaway business of which the plaintiff was an owner between 1990 and 1992, as a domestic cleaner between 1992 and 1993, again as a child care worker for three months in 1996 and as a clothing inspector between 1997 and 1998.
43 Under cross-examination the plaintiff told the Court that the takeaway business had been not been sufficiently profitable to support her family as well as the family of her older brother, who had worked with her and her husband (the latter was also an owner) in the business.[36]
[36] TN 81
44 From about mid-March 1999 the plaintiff commenced employment as a food services assistant. This involved delivering food and catering for patients at the John Fawkner Hospital, duties the plaintiff deposed frequently required her to push heavily laden trolleys up and down corridors and in and out of lifts.
45 The circumstances under which the first injury was suffered on 30 April were set out in the plaintiff’s first affidavit as follows: [37]
“11. On 30 April 2008, as part of my usual work duties, I pushed my meals trolley into a lift which already had a student trainee inside with a trolley laden with water jugs. Suddenly, one of that trolley’s wheels came off. I called for help while the student trainee was holding up the water jugs trolley from toppling over. The student trainee and the co-worker who answered my call were holding up the trolley whilst I bent down and attempted to put the wheel back on. As I did so, a different wheel came off from the water jugs trolley causing the trolley to topple over and fall on top of me. I was pushed backwards and felt a sharp pain in my lower back. About half an hour later I began experiencing worsening lower back pain radiating down the back of my right leg to the foot.”
[37] PCB 17
46 Prior to the first injury, the plaintiff apparently worked part-time, on average 32 hours per week. Whilst the affidavit evidence suggested the plaintiff also worked some overtime, both the Claim Form and the report made by the employer on 20 May 2008 indicated to the contrary.[38]
[38] DCB 117-120
47 In her first affidavit, sworn in April 2013, the plaintiff relevantly recalled a medical history involving her spine. She recalled lower back symptoms during 1999. A CT scan was said to have reported normal results and the symptoms gradually resolved. The plaintiff further recalled symptoms of a stiff neck in about 2005, for which for a short period until the symptoms resolved, she underwent physiotherapy. The plaintiff, however, expressed uncertainty about whether this episode in 2005 had also involved radiological investigation (“I may have been referred for scans of my neck and shoulders”[39]).
[39] PCB 16
48 The Claim Form submitted by the plaintiff in May 2008 indicated pre-existing neck, upper back and shoulder soreness apparently reported in March 2008, but not the earlier problems to which the first affidavit referred or, for that matter, lower back pain suffered in the period 1999 to 30 April 2008 to which the plaintiff deposed in her second affidavit in July 2014. The latter summarised this history as follows:[40]
“3. I refer to paragraph 5 of my first Affidavit and say that I have suffered some lower back pain symptoms over the years in the period from 1999 to 30 April 2008. These pain symptoms were of short-term duration and associated with the performance of my work duties for the Defendant. I have been shown the clinical notes of Medlot Medical Clinic which record my attendances with back pain in about August 2006 and October 2006. I do not have a particular recollection of these attendances.”
[40] PCB 22
49 Under cross-examination, the plaintiff acknowledged she had suffered a stiff neck in 2005, yet through the responses given the plaintiff indicated no recollection of this episode, the treatment received or, until reminded of this, the identity of her doctor at the time. Even after being reminded that a doctor, Dr Alpay, had sent her for x-ray of her neck and middle back, the plaintiff claimed no recollection of the referral or discussion with her doctor of the results of the x-ray.[41]
[41] TN 70-72
50 Among other things, the x-ray investigation revealed anterior wedging at the T11 and to a lesser extent at the T10 levels with a 30% reduction in the anterior aspect of the T11 vertebral body height. At the time, the radiologist had queried whether the plaintiff was known to have previous Scheuermann’s disease.[42]
[42] DCB 116A
51 When questioned about back pain in about August and October 2006, also mentioned in the second affidavit in 2014 and apparently recalled after the plaintiff was shown clinical notes from the Medlot Medical Clinc, the plaintiff reiterated she had no recollection of these attendances or of the area of her spine treated on these dates. However, having initially rejected the proposition that this pain might have again involved her middle back, the plaintiff immediately contradicted this evidence when she indicated she had no recollection of the area of her spine treated.
52 I have accepted that with the passage of time, the plaintiff may not have recalled all episodes of back pain to which the clinical records referred or the detail of those episodes recalled and of the results of radiological investigation undertaken in November 2005 and 1999. I did not, however, find convincing the plaintiff’s failure at hearing to recall particularly any discussion with her doctor of the results of the November 2005 investigation. Whilst she acknowledged the possibility of pain or symptoms, I was left with the impression the plaintiff’s diffidence in this regard was driven by a reluctance to concede something that might harm her claim (“But I’m sure it wasn’t something significant”[43]).
[43] TN 80
53 This is not to deny, firstly, the plaintiff’s unchallenged evidence that earlier isolated episodes of back pain had not prevented her continued employment or, secondly, that this application for leave was not specifically concerned with comparison of the plaintiff’s back condition before and after the first injury. As mentioned, the application before the Court was confined to the psychological sequelae of the first injury and assessment of the severity of any identifiable consequences.
Treatment of the lower back injury and the onset of symptoms of mental disturbance/disorder before April 2010
54 The plaintiff was initially treated in the Emergency Department of the hospital. The next day she attended her general practitioner, Dr Munir at the Medlot Medical Clinic.
55 Three reports submitted, either to the Accident Compensation Conciliation Service (the ACCS) or the plaintiff’s earlier legal representatives, between 29 September 2010 and 23 March 2012 were tendered.[44] These reports post-date the alleged onset of bilateral carpel tunnel symptoms from April 2010. The second injury was mentioned only in passing in the doctor’s final report to the solicitors (“Incidentally she had sustained bilateral Carpel Tunnel Syndrome while working at the kitchen and is currently having treatment for these(sic)”[45]).
[44] PCB 39-44
[45] PCB 44
56 Among other things, the doctor’s evidence confirmed the plaintiff’s attendance on 1 May 2008 for treatment of sharp stabbing pain in the lower back, initially radiating into the plaintiff’s buttocks and upper thigh and, later, extending to her lower legs, with numbness in association with prolonged sitting.
57 CT scans obtained by Dr Munir on 9 May 2008 relevantly reported mild facet joint osteoarthritis at the L4/5 and L5/S1 levels and a minor broad-based disc bulge at the L4/5 level indenting the thecal sac and abutting the exiting L4 nerve root bilaterally without obvious neural compromise.[46]
[46] PCB 86
58 Treatment was conservative, consisting of analgesic and anti-inflammatory medication and, from 19 May 2008, physiotherapy. The report from physiotherapist, Ms Blazevic dated 12 October 2010[47] provided some early indication of the impact of the first injury on the plaintiff’s emotional state: “Mrs Gokoglu was highly distressed. She had never had a back injury before and her pain was not improving…..” and “Mrs Gokoglu was having secondary symptoms of tightness in the upper back and neck due to pain and stress from injury. She was having frequent headaches. She was also suffering anxiety and depression as a result of pain and disability”.[48]
[47] PCB 45-47
[48] PCB 45 and 46
59 In May 2008 the plaintiff made an unsuccessful attempt to return to light duties on restricted hours.
60 The plaintiff was next referred by Dr Munir to orthopaedic surgeon, Mr Kuldelka, who saw her on five occasions between 26 May 2008 and 12 January 2012. On 2 June 2008 Mr Kudelka obtained MRI scans of the lumbar spine. These relevantly confirmed kyphotic deformity in the thoracic spine and associated secondary degenerative disc disease and noted the presence of a broad-based posterior disc bulge at the L4/5 level contacting the theca (“causing minimal flattening, however, the central canal, lateral recesses and neural foramina are capacious”).[49]
[49] PCB 87-88
61 Mr Kudelka noted both the disc herniation revealed on CT scans on 9 May 2008 and pathology, he characterised as degenerative changes, revealed by the MRI images obtained on 2 June 2008. He attributed the plaintiff’s symptoms (recorded as tenderness in the lower lumbar spine with no radiculopathy) to degenerative changes in the lower lumbar region, in the treatment of which Mr Kudelka advocated ongoing physiotherapy and the use of analgesia.
62 Review on 19 June 2008 apparently revealed no change. However, as confirmed by his final report, dated 10 April 2014 and submitted to the plaintiff’s current solicitors, over nearly five years of treatment, the treating orthopaedic surgeon remained of the view that the back pain and stiffness reported by the plaintiff was due to work-related aggravation of lumbar spondylitis.[50]
[50] PCB 132
63 It appears that between November 2008 and 2011 the plaintiff attended psychologist, Ms Selvi, for counselling. Without providing a specific diagnosis, Ms Selvi’s only report, addressed to the ACCS on 13 October 2010, indicated that she had provided interventions for stress management and to help the plaintiff develop “strategies and skills to manage and adapt to life with pain and obvious restrictions in her life due to her back injury”.[51] Whilst there was no mention of the impact of the second injury on the plaintiff’s mental state, in the months before this report was submitted, in June 2010, the symptoms of the second injury were investigated and the plaintiff had been diagnosed as suffering from bilateral carpel tunnel syndrome.
[51] PCB 48-49
64 Correspondence from the Dorset Rehabilitation Centre confirmed, firstly, that from about October 2008 the plaintiff engaged in outpatient therapies including hydrotherapy, physiotherapy and occupational therapy and, secondly, that by April 2009 the rehabilitation provider considered the plaintiff ready to transition from therapy to self-management with support programs in the community.[52]
[52] DCB 151-153
65 The plaintiff’s evidence was to the effect that she had benefitted from the rehabilitation undertaken. However, in his final report dated 23 March 2012 the treating doctor, Dr Munir advised the plaintiff’s former solicitors that, despite the treatment received and later physiotherapy, hydrotherapy and exercises the plaintiff’s symptoms had shown little response to therapy. She had, the doctor reported, developed “post anxiety/depression symptoms”, in the treatment of which the doctor had prescribed anti-depressant medication.[53] Based on the plaintiff’s reportage to the insurer’s psychiatrist, Dr Douglas in May 2010, the prescription of anti-depressant medication, Luvox (50mg daily) may have commenced from as early as 2008.[54]
[53] PCB 44
[54] DCB 5
66 In May 2009 the plaintiff returned to work on a return to work plan performing modified duties she deposed involved buttering and wrapping bread rolls, assisting with sandwich making, bagging cutlery, setting up food trays, preparing vegetables and labels as well as checking and recording fridge temperatures. Lifting was restricted to no more than 5 kg and pulling or pushing of trolleys was prohibited. The plaintiff gradually increased the hours worked to 4 hours per day, 4 days per week. However, from about 2011 onwards the plaintiff said her duties involved making sandwiches as an assistant to the sandwich chef. [55]
[55] PCB 18-19
67 The plaintiff’s evidence was that she struggled to perform even modified duties and to maintain the reduced hours of work due to lower back pain.
68 As mentioned, the plaintiff reported the onset of bilateral carpel tunnel symptoms from about April 2010. The first nerve conduction study ordered by Dr Munir, on 24 June 2010 reported evidence of severe abnormalities in the right arm and mild-to-moderate on the left,[56] although, the claim for compensation for the second injury was not notified until late March 2011.
[56] DCB 24
69 Despite the date reported in the Claim Form for the second injury, the treating general practitioner since mid-2012, Dr Baglar, recorded that symptoms of carpel tunnel syndrome were noted by the plaintiff from in or around 2008 (“She continued working despite her pain but when it became unbearable in 2010, she had to report her condition”[57]). This record accorded with the pre-operation evidence of the treating surgeon, Mr Lim. Among other things, in a report probably written in October 2011,[58] Mr Lim advised the plaintiff’s then doctor, Dr Munir, that the plaintiff had described a three to four year history of symptoms consistent with bilateral carpel tunnel syndrome (“She experiences pins and needles predominantly affecting her thumb, index and middle fingers in both hands. These symptoms are worse in the morning and she finds that it interferes with her driving, holding the phone as well as writing. She often wakes up at night with pins and needles and has also noticed that she has been dropping things of late”[59]).
[57] PCB 66
[58] PCB 56. The day and year are unclear, a printing date on the document places it before 11 November 2011
[59] PCB 56
70 Under cross-examination, the plaintiff repeatedly resisted any attempt to have her recall when her symptoms started and denied telling Dr Baglar that she had worked on for four years with arm pain until this became unbearable.[60] The medical records mentioned (as well as a report to similar effect obtained in January 2014 by the defendant’s orthopaedic specialist, Mr Scott[61]), nonetheless, suggest that symptoms were first noticed in the years before Dr Munir arranged the initial nerve conduction study. For this reason, I have rejected the plaintiff’s attempt at hearing to refute the evidence of Dr Baglar in this regard.
[60] TN 89-90
[61] DCB 99
71 This is not to deny, however, the import of the evidence contained in the Claim Form and the plaintiff’s second affidavit, the latter to the effect that from about April 2010 onwards, the plaintiff experienced a gradual worsening of numbness in both wrists and tingling affecting three fingers, brought on and aggravated by sandwich making duties, which required repetitive use of her hands.[62]
[62] PCB 23
72 These symptoms apparently disrupted her sleep and impaired the plaintiff’s ability to open jars, cut up food, drive and hold objects (“I began to drop objects from my hands both at home and at work”[63]). I infer from this evidence that from about April 2010 organic and/or non-organic factors due to the second injury independently contributed to pain and disability and probably also impacted on the plaintiff’s capacity to perform modified duties as a sandwich maker.
[63] PCB 23
73 Mr Lim performed right carpel tunnel release surgery on 30 January 2012[64] and left carpel tunnel release surgery on 5 September 2012.[65] However, as mentioned, a more recent study made on 13 March 2013 has indicated likely ongoing problems, with evidence of mild bilateral median neuropathies noted.[66] I will revisit this issue in greater detail as part of my discussion of the later medical evidence.
[64] PCB 56
[65] PCB 60
[66] DCB 57
74 In the meantime, before the investigation of symptoms of the second injury, on 12 May 2010, the insurer’s psychiatrist, Dr Douglas assessed the plaintiff, who was in receipt of partial payments of compensation.[67] The salient features of Dr Douglas’ report are summarised in the following points:
[67] Exhibit P3
· the plaintiff reported she was then helping make sandwiches three hours for two days and four hours for another two days per week. She enjoyed the work, she pushed herself to do more and felt she was becoming better;
· the plaintiff reported experiencing depression a few months after her injury. In 2008 the plaintiff began taking Luvox, 50mg daily. This was, Dr Douglas noted, a modest dose. Moreover, since 2008 the plaintiff had attended psychological counselling each month and found this helpful;
· additional to the psychotropic medication mentioned, the plaintiff took up to 6 Nurofen Plus tablets and up to 4 Panadeine Forte tablets daily and anti-anxiety medication, Ducene (2mg) occasionally as necessary;
· in addition to low back ache, which with prolonged standing or sitting could refer into her legs, the plaintiff reported symptoms of depression (as for instance crying, irritability, shouting and poor memory and concentration);
· the plaintiff, nonetheless, described an ability to enjoy herself (“she can laugh” and “(s)he has enjoyed walks and travel, which she said she had done by plane”) and indicated matters consistent with improvement in her mood and memory and concentration. For instance, having previously experienced fatigue and tiredness, the plaintiff reported she then felt “like doing things. She looks forward to going to work. She said at work she thought they were happy to see her and she said work was like a second home to her” and “(s)he went through a period where she had written notes but noted that she had now stopped that and wondered if this was because she had improved. She said her appetite was good. However, she had put on 9kg in weight. She said this stressed her. She said she was trying to lose this weight. She thought she had put on the weight because she had previously walked about one hour each day and now only walks 30 minutes” (it appears that, as noted by Dr Douglas, during the course of the assessment the plaintiff contradicted herself by stating a walking tolerance of only 15 minutes) and “(s)he said she had a number of friends and believes she had a normal social life. She is happy to see her friends and enjoys calling on them. ..She belongs to a Turkish Women’s Club, which she attends about once per month”;
· Dr Douglas diagnosed an Adjustment Disorder with depressed mood in response to pain and disability caused by the first injury. Having noted steady improvement in her psychological state, Dr Douglas recommended the treatment regime continue unchanged until the condition plateaued, after which he advocated two or three further visits and anti-depressant medication for a further 6 months;
· the plaintiff was not ready to return to her pre-injury duties and hours, although Dr Douglas appeared to believe that, with gradual increments in the hours worked, the plaintiff could achieve this within two months. I understood this and other statements about the speed at which the plaintiff increased her working hours, referenced the plaintiff’s psychological capacity to cope with increased responsibilities (“From a psychiatric point of view, I would expect a complete recovery. It is likely that she will have continuing problems with her back but it is my expectation that she will learn to deal with that. She is motivated to continue on with her life”).
75 On 31 May 2010, accompanied by her husband, the plaintiff attended for examination by general surgeon, Mr McInnes at the request of the insurer. Notably, the plaintiff had not required the assistance of an interpreter to communicate with this specialist on this occasion or a few weeks earlier, with Dr Douglas. The latter had commented on the plaintiff’s “good grasp of English”.[68]
[68] DCB 8
76 The plaintiff was unable to recall the assessment by Mr McInnes or, as recorded, having told him that her condition had improved. The doctor recorded the improvement in these words: “She can cope with the modified work four hours per day and four days per week, but anything in excess of this she gets tired and experiences pain in her back. She still gets occasional pain down her right leg but it is not a real problem.”[69]
[69] DCB 16
77 The plaintiff generally confirmed that, as recorded, at the time she was still having physiotherapy, doing home-based exercises, able to walk up stairs, used a hot pack and back support at night and she was taking medication, Nurofen tablets and, occasionally, Panadeine tablets.
78 The plaintiff, however, denied informing the doctor that she suffered occasional pain in her lower back at night (“No, that’s wrong – that’s wrong. I think he’s trying to say varying pains, not occasional. It should be varying pains where I had constant pain but the amount of pain I had varied according to some days”[70]) or, as recorded, having indicated she was then able to cope with the modified duties but felt any increase in hours would result in a recurrence of pain (“No, I did not say anything as such”[71]).
[70] TN 106
[71] TN 108
79 The matters recorded by Dr Douglas and Mr McInnes and the evidence that the plaintiff had successfully (albeit gradually) increased the hours worked to 16 hours per week, were nonetheless consistent with a finding that, by early 2010 the plaintiff probably had experienced and reported improvement in her underlying physical condition and mental state. This was, despite her fear that any increase in the hours worked could lead to recurrence of back pain.
80 Whilst it was not clear whether Mr McInnes also viewed the MRI images obtained on 2 June 2008, he saw the reported result, which no doubt helped inform the diagnosis of degenerative disease of the lower lumbar spine, aggravated by the work-related incident on 30 April 2008. Mr McInnes concluded that, with conservative management, the plaintiff had made a suitable recovery and she was then fit to continue performing her modified duties.
81 Dr McInnes did not record a history of psychological problems or counselling or the taking of anti-depressant medication. This probably accounts for his observation that: “There is no other factor involved affecting her recovery and I believe that there are no psychosocial factors involved”.[72]
[72] DCB 20
82 In any event, in May 2010, the diagnosis given and the opinion expressed by Mr McInnes about the plaintiff’s physical capacity to continue performing part-time modified duties, accorded with the evidence of the treating surgeon, Mr Kudelka in reports written by him some years later. In short, at or around the time of the reported onset of symptoms relating to the second injury there was medical evidence of likely progress in the plaintiff’s physical condition and steady improvement in the psychological response to the first injury. As to the latter, I have accepted that at the time the plaintiff was probably suffering from symptoms of an Adjustment Disorder with depressed mood secondary to the first injury.
Treatment and assessment subsequent to the onset of symptoms and the second injury in 2010
83 Dr Munir’s correspondence to the ACCS in September 2010 was to the effect that his patient was suffering from: “chronic pain secondary to disc pathology and spinal canal stenosis after an injury at work” on 30 April 2008.[73] I understood this to be a diagnosis of chronic pain secondary to injury-related aggravation of degenerative spinal pathology. Dr Munir opined the plaintiff would never return to her heavier pre-injury duties and noted that fear of re-injury had slowed her recovery (“She is very anxious and fearful of re-injury that her recovery is progressing slowly”). At the time it was made, the latter observation referenced the plaintiff’s mental state, without also indicating the presence of features of significant mental disturbance/disorder due to the first injury.
[73] PCB 40
84 On review by Mr Kudelka on 28 March 2011 the plaintiff apparently complained of back and right leg pain. She reported she was performing part-time modified duties and taking Nurofen, the anti-inflammatory, Voltaren and Luvox, as well as undergoing physiotherapy.[74]
[74] PCB 131
85 The results reported by radiologists following further MRI scans ordered by Mr Kudelka on 5 April 2011[75] and by neurosurgeon, Professor Bittar on 17 August 2012,[76] had not specifically referenced degenerative changes in the lumbar spine. The radiologists’ conclusions were reported as follows:
[75] PCB 90
[76] PCB 91
“No spondylo nor retrolisthesis. Focal kyphosis T10/11 secondary to mild anterior height loss of the vertebral bodies. Secondary disc degenerative change. Very subtle disc bulge at T11/12 mildly flattens the anterior conus, distal cord and conus otherwise normal in appearance. Normal bone marrow signal.
Throughout the remainder of the lower thoracic and lumbar spine, there is no disc bulging and the central canal and neural exit foramina are capacious. No neural compression. The facet joints are satisfactory.”[77]
and in 2012:
“Conclusion: Degenerative changes at T11/12 and to a lesser degree at T10/11. Shallow right paracentral protusion T11/12. Whilst this distorts the ventral thecal sac, no focal cord effacement is identified. Low grade facet joint arthopathy at these levels. No evidence of compressive disc prolapse in the lumbar region.”[78]
[77] PCB 90
[78] PCB 91
86 As this claim was made under paragraph (c), it was not necessary to resolve any reported discrepancy in the radiological results. The later results, nevertheless, indicated little in the way of pathology, to explain the persistence and severity of the plaintiff’s physical symptoms from 2011 onwards.
87 However, for present purposes I was satisfied that the treating orthopaedic surgeon probably viewed the images obtained at his request on 5 April 2011 and, having done so, as mentioned, without further explanation on 8 April 2011 and, finally, on 12 January 2012 he again reported the plaintiff was suffering from the effects of work-related aggravation of lumbar spondylitis on 30 April 2008.
88 On 2 December 2011, at the request of the insurer, the plaintiff was assessed by psychiatrist, Dr Athey and occupational physician, Dr Graham in respect to the first injury.[79]
[79] DCB 26-38 and 39-45
89 Documentation available to Dr Athey apparently included the treating psychologist’s only report, reports written by Dr Munir and the physiotherapist, the latter dated 12 October 2010 and the reports submitted by Dr Douglas and Mr McInnes.
90 The salient features of Dr Athey’s lengthy report are summarised in the following points:
· the plaintiff identified ongoing pain and frustration as her “biggest problems”. She gave a history of the first injury and the development of bilateral carpel tunnel symptoms, the latter whilst employed making sandwiches;
· as to her physical symptoms, among other things, the plaintiff described pain involving: “a lot of pain every day with pain radiating to her legs and the pain in her upper back spreading out along her whole back” and “burning feelings and weakness in both hands because of her carpel tunnel syndrome”;
· as to her psychological state, I found untenable the submission by the plaintiff’s counsel that the description of the plaintiff’s problems were confined to the back injury.[80] If anything, the plaintiff’s description of high levels of anxiety, palpitations, her pessimistic view of life (she believed that “things will now go wrong”), tearfulness, difficulty having fun, her dislike of people visiting because she was too tired, fear of what would happen to her when she underwent the carpel tunnel surgery and her belief that she was worthless tended to implicate both injuries. This was not to deny that, as noted by Dr Athey, the difficulty in adapting to “her injuries” and alterations in the plaintiff’s lifestyle probably had commenced after the first injury;
[80] TN 211
· the plaintiff reported undergoing physiotherapy and massage, taking Panadeine Forte, Mersyndol Forte and the same dose of Luvox (50mg) (apparently the latter medication was not helping) and consulting her psychologist and general practitioner;
· Dr Athey concluded the plaintiff was still suffering from an Adjustment Disorder with mixed anxiety and a depressed mood, reactive to the physical injury suffered in 2008. The adjustment disorder was, he said, partly due to back pain and partly due to the plaintiff’s inability to pursue the same level of occupational and social activities. This evidence confirmed that mental disturbance following the first injury was probably unresolved without providing an analysis of whether, and the extent to which, organic and/or non-organic factors due to the second injury contributed to mental disturbance;
· Dr Athey concluded the current treatment was not helping the plaintiff. He advocated doubling the dose of her anti-depressant medication or trialling an alternative medication to better manage the symptoms of depression and referral to a psychiatrist for treatment of depression should the general practitioner not want to manage this condition;
· in view of the lack of progress demonstrated since Dr Douglas’ examination in May 2010, Dr Athey was guarded in his assessment of the plaintiff’s prognosis. He, nonetheless, predicted improvement in the plaintiff’s psychiatric state if either the lower back injury improved or the plaintiff found a suitable quality of life despite the injury. In this case, the defendant argued (in view of later medical evidence with good reason) that the lower back injury was likely soft tissue injury which had resolved. It followed, so the submission went, the persistent symptoms of lower back pain upon which Dr Athey’s assessment of an Adjustment Disorder had been made, were no longer mediated by organic factors. This submission, nonetheless, failed to address the likely continuance of the mental disturbance/disorder despite any resolution of the physical injury. I will discuss the current psychiatric diagnoses in more detail in due course;
· whilst he was concerned about the effectiveness of the low level of anti-depressant medication in managing symptoms of depression and the plaintiff’s lowered mood, in December 2011, Dr Athey’s evidence was to the effect that the plaintiff’s psychological capacity to remain at work performing light duties and to perform the activities of daily living probably would not have altered if her treatment ceased. He, nevertheless, felt that ongoing employment as a sandwich maker would assist the plaintiff’s mental state, as would more effective treatment of her psychiatric symptoms.
91 As we now know, payment of medical and like expenses ceased and, after 29 sessions, from about November 2011 psychological treatment with Ms Selvi was discontinued. As far as I can tell from the evidence, the plaintiff continued to take the same anti-depressant medication in the same dosage until 2013. The only other specialist treatment was between May and November 2013. During this period the plaintiff participated in 8 counselling sessions with the second psychologist, Ms Oksuz. As mentioned, this treatment was funded under the second injury claim.
92 Dr Graham’s report tells us that, on the same date as Dr Athey’s psychiatric assessment, the plaintiff reported constant pain in her low back of varying severity and taking time off work recently due to pain radiating into her right leg, up her back and pins and needles under her foot.
93 In addition to the anti-depressant medication, the plaintiff was then apparently taking Nurofen Plus, opioid analgesics, Panadeine Forte and Mersyndol Forte and undergoing physiotherapy and massage on alternate weeks.
94 Dr Graham appeared to accept that there was evidence of constitutional and symptomatic degenerative changes in the lumbar spine, in the treatment of which Dr Graham considered a self-directed exercise program was preferable to ongoing physiotherapy (and massage). Dr Graham believed cessation of physiotherapy would not alter the plaintiff’s ability to remain at work or undertake the activities of daily living.
95 Dr Graham considered the plaintiff physically fit for normal duties as a food services assistant. Relevantly, despite his opinion about her physical capacity, Dr Graham believed the plaintiff presented as significantly depressed. If the conclusions reached by Dr Graham were justified, arguably, by December 2011 the persisting physical symptoms of which the plaintiff complained, were no longer substantially mediated by organic factors.
96 Following the first carpel tunnel release surgery on 30 January 2012, the plaintiff was off work for some weeks. She commenced wearing a right wrist splint. Based on the matters to which the plaintiff deposed in her second affidavit, she has continued to wear this splint and later-on a left wrist splint during periods of severe pain.[81] I infer from the plaintiff’s further evidence that she wore the splints most days and almost every night that, following surgery, the wrist/arm pain experienced by the plaintiff was probably severe most days and almost every night. This evidence indicated that, at the very least, organic and/or non-organic factors due to the second injury continued to make a significant contribution to the plaintiff’s pain experience on a day-to-day basis.
[81] PCB 23
97 A number of reports were obtained during 2012 from treating doctors and health professionals and from medico-legal specialists. I have already mentioned Mr Kudelka’s report dated 14 February 2012 and Dr Munir’s reports to the ACCS and to the plaintiff’s former solicitors dated 24 February 2012 and 23 March 2012 respectively. Their reports were directed to the first injury.
98 Notably, on 14 February 2012, the treating surgeon had also given advice to the plaintiff’s former solicitors through which he predicted the plaintiff might increase her hours of work to up to 20 hours per week.[82] However, whilst at the time, Mr Kudelka had been aware of the impending decompression surgery, he did not review the plaintiff’s condition or comment on whether, and the extent to which, the second injury contributed to any reduction in the plaintiff’s physical capacity for work. As such, his reports and analysis of the earlier radiological material tended to contradict the submission made on behalf of the plaintiff, to the effect that the onset of a non-organic chronic pain syndrome was the most likely cause of her persistent symptoms in the period preceding the onset of the symptoms of the second injury.
[82] PCB 130
99 In his reports, Dr Munir directly linked the reported consequences to the physical or psychological effects of the first injury. For instance, the doctor attributed the reported reduction in social and recreational activities to physical and psychological factors,[83] whereas ongoing restrictions on the plaintiff’s work capacity were, he said, due to physical factors (she was fit to do restricted light duties up to 16 hours per week where there was no lifting, bending or rotating of the lower back and no heavy pulling and pushing[84]). At the time, Dr Munir considered continuing treatment (psychological, physiotherapy, attending gym/swimming and home exercises), would support the plaintiff remaining at work and this would also assist in the treatment of the Adjustment Disorder. I infer from this evidence that, in early 2012, the then treating general practitioner had not considered the plaintiff incapacitated for work by reason of ongoing mental disturbance/disorder. His evidence did not advance my understanding of whether, and the extent to which, organic and/or non-organic factors due to the second injury contributed to any mental disturbance/disorder.
[83] PCB 44
[84] PCB 44
100 In a report dated 19 March 2012 and addressed to the ACCS, physiotherapist, Umit Oflay,[85] expressed support for ongoing intermittent access to physiotherapy to allow the plaintiff to deal with chronic lumbar spine pain the physiotherapist believed was due to the first injury.
[85] PCB 37-38
101 Notably, among other things, the physiotherapist recorded further time off work in March 2012 because, as reported by the plaintiff, work had aggravated wrist and pain symptoms following right carpel tunnel surgery in January 2012. This evidence alone indicated that, at the time, the second injury probably contributed to incapacity for work without also indicating the extent to which the second injury contributed to specific consequences.
102 In summary, in the period between late 2011 and early 2012, treating and most medico-legal practitioners, other than the insurer’s occupational physician, appeared to accept the first injury had remained symptomatic. The plaintiff had not been certified unfit for work due to mental disturbance/disorder, rather, before and after the onset of symptoms of the second injury and the first carpel tunnel release surgery she continued to perform the modified part-time duties. Furthermore, for different reasons, the evidence of both the treating orthopaedic surgeon and the occupational physician, left open the possibility that the restrictions imposed at the time on the plaintiff’s working hours due to lower back impairment might not be permanent.
Treatment and assessment from mid-2012
103 As we now know, after many years of treatment, the plaintiff changed her treating doctor in 2012. Under cross-examination the plaintiff rejected the proposition she had commenced consulting general practitioner, Dr Baglar from 13 July 2012 for treatment of the carpel tunnel problem. Her evidence was that the change occurred because the plaintiff felt Dr Munir had been unsupportive and she had lost “trust in him as a professional”.[86] Regardless of the reason for the change, from mid-2012 the plaintiff attended Dr Baglar who referred her to specialists in the investigation and treatment of both the first injury and the second injury.
[86] TN 104
104 Dealing chronologically with both the treating and medico-legal medical evidence obtained in 2012, I note that Dr Baglar initially referred the plaintiff to neurosurgeon, Professor Bittar. He examined the plaintiff on 9 August 2012. After obtaining repeat MRI of the plaintiff’s lumbosacral spine, he reviewed her condition once more, on 6 September 2012. Three reports were tendered. The first two of these, dated 9 August and 6 September 2012 respectively, were addressed to the general practitioner.[87] The last report, dated 20 April 2014, was addressed to the plaintiff’s solicitors.[88]
[87] PCB 50-52
[88] PCB 53-55
105 The salient features of Professor Bittar’s reports are summarised as follows:
· the plaintiff presented complaining of progressively worsening pain which radiated in a band-like fashion across her lumbosacral region into both legs, affecting her right more severely than her left leg;
· the plaintiff did not provide the earlier radiological investigations. This led to repeat scanning on 12 August 2012. As mentioned, the results of this imaging and Professor Bittar’s review of the images were reported as indicating no abnormalities in the lumbar region;
· on review on 6 September 2012, clinical examination revealed minimal right-sided lumbar tenderness, mild but painful restriction in the range of lumbar flexion, normal straight leg raising bilaterally and no lower limb deficits;
· on the available clinical and radiological information by 6 September 2012, Professor Bittar reported he had been unable to identify the precise anatomical cause of the lower back and leg pain of which the plaintiff complained. He recommended referral to pain specialist, Dr Gassin whom the plaintiff consulted in February 2013;
· without further reviewing the plaintiff, in 2014, Professor Bittar suggested that further investigations could shed some light on the underlying cause of the pain reported. However, on the information available to him, which had not included the results of earlier radiological investigations, this specialist, nonetheless, concluded the plaintiff had likely suffered a work-related soft tissue (musculoligamentous) injury. He again recommended review by Dr Gassin.
106 On 21 September 2012 and 30 May 2014, neurosurgeon, Mr Dohrmann conducted medico-legal examinations of the plaintiff at the request of her solicitors.[89] On the second occasion he received a more extensive range of materials, which included a raft of reports from treating and medico-legal doctors and copies of the radiological reports relating to the plaintiff’s lumbar spine obtained from 9 May 2008 onwards, as well as the results of the most recent nerve conduction study obtained on 13 March 2013.
[89] PCB 93-110
107 The salient features of Mr Dohrmann’s reports are summarised as follows:
· the plaintiff gave, and subsequently confirmed, a history of no lower back symptoms before 28 April 2008;
· in 2012, the plaintiff reported chronic low back pain which varied in intensity. There were, she said, days where pain was “not too bad or even minimal”. However, typically she experienced central lumbar pain with radiation to the right and left side into the right buttock and down the posterior aspect of the right leg to the foot, which could extend upwards into the upper lumbar and low thoracic region. The plaintiff also described pins and needles particularly in the sole of the right foot and numbness “sometimes” in the toes of this foot. In 2014 the plaintiff reported lower back pain had been “up and down” since 2008 but had worsened since 2013. She reported constant daily back pain of varying intensity. The symptoms earlier reported were ongoing, however, on this occasion the plaintiff also indicated experiencing similar symptoms (albeit rarely) in her left leg, extending to the left foot;
· in 2012, the plaintiff reported tolerances of about 30 minutes for walking and sitting and of between 20 and 30 minutes for standing stationary. In 2014, the plaintiff’s tolerance for walking had decreased to about 20 minutes;
· in Mr Dohrmann’s opinion “depression” was also a feature (I have accepted the plaintiff’s submission that there was no evidence to support the further suggestion that the plaintiff may have suffered from pre-existing depression, the symptoms of which had been worsened by the first injury). In 2014, the plaintiff reported depression and panic attacks;
· in 2012, the plaintiff’s daily medication consisted of 4 to 6 tablets of both Panadeine Forte and Nurofen Plus and 2 to 4 tablets of Mersyndol Forte, as well as antidepressant and antacid medication. By 2014, however, the plaintiff’s daily medication regime involved taking up to 4 Mersyndol Forte tablets (mostly at night), taking 6 tablets of Nurofen Plus and Panadeine Forte and taking the antidepressant, Cipramil. She also reported taking the opiate analgesic, Endone perhaps every month, using Norspan patches, taking medication for migraines and taking an occasional Xanax tablet to treat panic attacks;
· in 2012, the plaintiff reported she enjoyed work which involved working part-time modified duties for 16 hours per week. The plaintiff believed she could manage this work for the foreseeable future and appeared to be hopeful of further physical improvement with an increase in her capacity for activity generally;
· in 2012, Mr Dohrmann diagnosed chronic low back pain and referred right leg pain, without radiculopathy, which he thought was probably caused by work-related injury to the L4/5 discs. However, having accessed reports of the radiology obtained between 2011 and 2012, in April 2014, Mr Dohrmann could not be satisfied there was evidence of degenerative disease in the lumbar spine. He diagnosed chronic non-specific low back pain due to soft tissue injury of the lumbar spine with referred right leg pain, but without evidence of radiculopathy and no persuasive evidence of lumbar disc injury (“I consider that Mrs Gokoglu’s symptoms and incapacities derive substantially from a presumed soft tissue injury of the lumbar spine”). Whilst, initially Mr Dohrmann also thought there may be some link between the radiological changes shown at the T11/12 level of the spine, by 2014 he rejected any relationship between lower thoracic condition and injury suffered on 30 April 2008;
· in 2012, Mr Dohrmann considered the plaintiff partially fit for work for the foreseeable future but not for her pre-injury duties, which had involved repeated bending with trays and repeated pushing of trolleys;
· in 2014, the plaintiff reported she had ceased work because of the combined effects of symptoms affecting both hands and because of lower back pain and referred right leg pain. Based on her report that lower back pain was the greater of her problems, Mr Dohrmann concluded that the plaintiff’s incapacity for work was substantially due to her lower back condition. As my discussion of particular Dr Blombery’s evidence shows in due course, he (and some of the other doctors) received reports that the plaintiff’s hands were the greater problem.
108 Based on the evidence of Professor Bittar and Mr Dohrmann, from 2012 the revealed pathology and the results of their clinical examinations had not identified a substantial organic basis for the persistent physical symptoms described by the plaintiff.
109 In a report to the plaintiff’s solicitors dated 29 January 2013, Dr Baglar generally summarised the history and status of the two WorkCover claims. [90] This report and the plaintiff’s affidavit evidence, among other things, confirmed that following left carpal tunnel release surgery on 5 September 2012, the plaintiff travelled to Turkey to visit her sick mother, during which time the plaintiff deposed she continued taking her prescription medication (“I was feeling depressed and unhappy due to my lower back and hands injuries and I visited my mother partly to get some psychological and emotional support from her”[91]).
[90] PCB 58-60
[91] PCB 23
110 Having returned from Turkey the plaintiff resumed part-time modified duties, with which, in January 2013, Dr Baglar believed she was coping. In this and a later report dated 14 April 2014, Dr Baglar attributed the development of reactive depression and an adjustment disorder to both the first injury and the second injury (“her emotional state was not helped with her second condition (sic)”[92]). He did so without also being asked for his opinion on the extent to which organic and/or non-organic factors due to the second injury contributed to mental disturbance/disorder.
[92] PCB 60 and 63
111 In 2013, the plaintiff was either treated or assessed for medico-legal purposes by a number of specialists in respect to the first injury or the second injury. Dealing in date order with both the treating and medico-legal medical evidence, I note that, general surgeon, Mr Flanc, conducted medico-legal examinations at the request of the plaintiff’s solicitors on 1 February 2013 and 5 March 2014.[93]
[93] PCB 111-128
112 As with Mr Dohrmann, on the occasion of the second examination, Mr Flanc received a more extensive range of medical materials, which included the most recent MRI scan of the plaintiff’s lumbar spine obtained by Professor Bittar on 17 August 2012. The salient features of Mr Flanc’s lengthy reports are summarised as follows:
· in 2013, low back pain was intermittent. It developed with prolonged standing and became more severe due to prolonged standing or sitting or in activities such as bending;
· in 2013, the plaintiff reported the onset of and surgery for the symptoms of bilateral carpel tunnel syndrome, the subject of the separate WorkCover claim. The plaintiff reported her symptoms had improved significantly following surgery. She described only some ongoing discomfort. This report was surprising in view of the certification for total incapacity for work some weeks after this examination due to symptoms of the second injury;
· the lower back symptoms reported by the plaintiff both in 2013 and in 2014 were similar to those reported to Mr Dohrmann;
· in 2013, Mr Flanc also commented on the discrepancy between the radiological evidence of degenerative changes in the lower spine in 2008 and the absence of similar findings in the scans obtained on and after 5 April 2011. As mentioned, this evidence was not decisive of the leave application made under paragraph (c) only. It did, however, ‘muddy the waters’ in identifying the nature of the injury suffered in April 2008 and, the role of organic factors in mediating the persistent symptoms reported;
· having re-examined the plaintiff and reviewed additional materials available to him, in 2014, Mr Flanc was similarly unable to identify a precise cause of the plaintiff’s lower back pain. He, nevertheless, believed the plaintiff’s reported lower back pain was genuine and significant and related to the first injury (“However, whether there is an underlying mild degenerative condition of the lumbar spine which is not visualised on her imaging or whether she is suffering from some residual chronic back strain is difficult to say”). These comments again indicated a belief that organic factors were still generating symptoms;
· in Mr Flanc’s opinion it was also likely that the plaintiff’s symptoms were being influenced by the development of chronic pain syndrome caused by sensitisation of pain pathways, resulting in pain of greater severity and extent than expected from the physical injury alone. Notwithstanding counsel’s submissions to the contrary, I understood from the tenor of his report that, the chronic pain syndrome referenced by Mr Flanc had not excluded physical factors as a cause.[94] In any event, Mr Flanc recommended that the plaintiff’s solicitors seek a report from Dr Blombery, whom Mr Flanc correctly noted had previously examined the plaintiff in respect to the second injury;
· based on the plaintiff’s physical condition alone, Mr Flanc assessed the plaintiff as physically capable of performing light part-time duties not involving any heavy lifting, twisting or repeated bending as well as her part-time light duties as a sandwich maker, provided she was free to sit when necessary.
[94] TN 35-37 and 263-265
113 In the weeks preceding the cessation of the plaintiff’s employment, on 6 February 2013, at the request of the insurer, psychiatrist, Dr Prytula conducted an independent impairment assessment of the lower back condition under section 98C of the Act.[95] In a lengthy report, among other things, this psychiatrist noted the second injury and surgery affecting both hands (the results of which the plaintiff reported were not “100%”). As it turned out, Dr Prytula wrongly believed this condition had involved a previous WorkCover claim. His report otherwise relevantly recorded the following matters:
[95] DCB 46-56
· the plaintiff reported ongoing pain in the back and legs. She was upset and angry at times about the work-related incident on 30 April 2008;
· the plaintiff reported suffering pain at work and pushing herself to continue working;
· medication mentioned by the plaintiff included, Nurofen Plus, Mersyndol Forte, Zantac and Panadeine Forte, as well the same daily dose of Luvox (50mg);
· Dr Prytula diagnosed an Adjustment Disorder with Depressed Mood of mild severity consequent on the physical injury, the symptoms of which involved reduced memory and concentration, sleep disturbance caused by pain, feelings of fatigue and depression and tearfulness. He considered the psychiatric impairment stabilised with ongoing limitations on the plaintiff’s daily activities. Notably, the report of this assessment, having indicated ongoing mental disturbance/disorder causally linked to the first injury did not also assist my understanding of whether, and the extent to which, mental disturbance/disorder impacted the plaintiff’s capacity for employment and whether, and the extent to which, organic and/or non-organic factors due to the second injury contributed to the plaintiff’s inability to adjust to her changed circumstances and to her depressed mood.
114 It appears that on 26 February 2013, Dr Gassin assessed the plaintiff on referral from Professor Bittar. He submitted reports to both Professor Bittar and the plaintiff’s solicitors.[96]
[96] PCB 81-85
115 Having viewed the results of the most recent MRI scan and following clinical examination, Dr Gassin diagnosed non-specific, somatic low back pain. I understood this diagnosis referenced pain with a non-specific physiological cause.
116 Dr Gassin advised against injection techniques, which he felt were unlikely to reveal a treatable pain source. Dr Gassin recommended ongoing rehabilitation under the care of a physiotherapist with expertise in pain rehabilitation and that the plaintiff continue her medication regime. At the time, the reported daily medication regime apparently involved 4 to 8 tablets of Nurofen Plus and Panadeine Forte, 4 to 6 Mersyndol Forte tablets and one Luvox tablet, as well as the application of Voltaren gel to the plaintiff’s lower back.
117 Dr Gassin’s evidence further indicated likely physical unfitness for work performed before the first injury but a retained capacity for work of a non-physical nature for at least a few hours each day. His evidence, nevertheless, helped exclude organic factors as a likely source of the persistent symptoms of which the plaintiff complained.
118 As mentioned, the plaintiff was certified as totally incapacitated for work from 11 March 2013 by reason of the second injury. It was submitted on behalf of the plaintiff that, by the time she ceased work, mental disturbance/disorder, essentially a chronic pain syndrome, had overtaken the organic injury suffered as a result of the first injury. The consequences of the mental disturbance/disorder were, so the submission went, well established and permanent and, objectively speaking, severe in their impact on the plaintiff’s psychological capacity for work and her capacity to undertake day-to-day activities.[97]
[97] T.N. 241-253
119 In her second affidavit, among other things, the plaintiff explained the reasons for ceasing employment from March 2013 as follows:[98]
“9. I stopped work in about early March 2013 due to the combined effect of pain symptoms in my lower back and hands and associated physical restrictions. As I have mentioned in paragraph 28 of my first Affidavit prior to stopping work in March 2013 I have struggled with my work duties and had to really push myself to work. My lower back pain gradually worsened during 2012. My hands failed to improve following the surgeries and continued to cause me pain and physical restrictions. As a result I could no longer cope with the performance of my work duties and had to stop.”
[98] PCB 24
120 This evidence notwithstanding, the evidence of the general practitioner indicated that symptoms of the second injury had driven the decision to put the plaintiff off work because he wanted Dr Blombery to investigate the plaintiff’s reports of neuropathic-like pain in both arms (burning pain, “climbing up in her both forearms (sic)”[99]).
[99] PCB 63
121 On 3 May 2013, psychiatrist, Dr White examined the plaintiff at the request of the insurer in respect to the claim for compensation for the second injury.[100] The materials available to Dr White had not included the earlier psychiatric reports and it was unclear from his description of the documents received, the extent to which he was informed about the plaintiff’s earlier mental state relevant to the first injury.
[100] DCB 58-70
122 Dr White’s report, nonetheless, showed that he obtained from the plaintiff her history of her circumstances and treatment between the first injury and the onset of the symptoms of the second injury in 2010. If I am correct in my interpretation of Dr White’s report, he linked the plaintiff’s current mental disturbance/disorder to both the first injury and the second injury, without also assessing the significance of each in the production and maintenance of the current mental disturbance/disorder. Common sense suggests, however, that with the development of pain and disability due to symptoms of the second injury, the surgeries which had not led to full recovery and the need to undergo further investigation and treatment, the second injury made a real and very significant contribution to the plaintiff’s mental state as at the date she ceased work.
123 This psychiatrist was informed by the plaintiff she stopped work in March 2013 due to worsening pain in her wrists. The latter apparently improved markedly if the plaintiff avoided heavy work and took her medications. The plaintiff, nevertheless, complained of constant and fluctuating back pain.
124 The salient features of Dr White’s report are summarised in the following points:
· the plaintiff reported psychiatric symptoms (involving difficulty sleeping because of both pain and worry, a slowing of her thinking and trouble concentrating, constant tiredness and feelings of worthlessness and feelings of guilt) were impacting significantly on activities of daily living. For instance, the plaintiff reported that she had ceased socialising from the beginning of 2013 due to her symptoms, she had difficulty concentrating when attending a cake decorating course for two hours on Thursdays with her sister-in-law and her participation in activities such as shopping, cooking and cleaning had steadily reduced because she could not “be bothered”. Under cross-examination, the plaintiff told the Court the cake decorating course had been her sister-in-law’s idea to get the plaintiff out of the house and take her mind off her pain. According to the plaintiff she had tried to participate, but had been unable to complete the course due to pain;[101]
[101] TN 108 and PCB 27
· a new antidepressant medication, Cipramil had not helped, although Xanax had assisted sleep. Other medical evidence indicated that in the months preceding Dr White’s assessment, Dr Baglar changed the plaintiff’s antidepressant medication to Cipramil (20mg daily);
· neither earlier psychological counselling nor fortnightly counselling with another psychologist since early 2013 had helped. The latter, obviously referenced Ms Oksuz’s treatment;
· the plaintiff reported wanting to work if she was well but felt unsupported by the employer (“She acknowledged feeling anger towards her workplace, whom she felt had not been supportive”[102]). Notably, the anger directed to her employer appears to have arisen subsequent to the onset of symptoms of the second injury;
[102] DCB 64
· at interview, Dr White found no disturbance of concentration or memory and assessed no major disturbance of the plaintiff’s general judgment, insight or motivation;
· Dr White diagnosed Major Depressive Disorder, Single Episode (as distinct from a diagnosis of recurrent Major Depressive Disorder). He considered the plaintiff’s psychiatric illness may have developed in the context of a Pain Disorder Associated With Both Psychological Factors and a General Medical Condition in that the depressive symptoms could be aggravating and perpetuating the plaintiff’s chronic pain syndrome. These were conditions Dr White said appeared to have been precipitated by workplace injuries. This statement clearly implicated both the first injury and the second injury as likely precipitants of one or both mental disturbances/disorders, without providing any analysis of how any earlier diagnosed disturbance would have progressed had it not been for the onset of symptoms of the second injury;
· post-traumatic embitterment due to perceived limited support in the workplace and unresolved legal issues were additional factors Dr White thought could have contributed to the plaintiff’s symptomatology;
· in Dr White’s opinion the plaintiff required psychiatric assessment and management of her psychiatric condition, which involved a complex mixture of biological, psychological and social factors. He anticipated indefinite psychiatric treatment, the duration of which would depend on the progress of the plaintiff’s chronic pain.
125 I did not understand from reading Dr White’s report whether and the extent to which, he considered the plaintiff psychiatrically incapacitated for work.
126 On 13 June 2013, occupational specialist, Dr Boffa examined the plaintiff at the request of the insurer, specifically in respect to the second injury.[103] Dr Boffa was informed that, despite improvement following surgery, the plaintiff had developed new pain at the wrists which radiated proximally up the forearms. Dr Boffa’s report indicated the following matters:
[103] DCB 71-75
· the new pain had not settle and disturbed the plaintiff’s sleep despite wearing night splints;
· having returned to work in January 2013 the plaintiff had not coped with pain and weakness in both wrists and hands and ceased work;
· the plaintiff’s problems with her hands interfered with her performance of household chores such as the cooking and preparation of meals and washing of dishes and clothes. She was troubled by pain in the forearms and wrist and had become depressed and withdrawn;
· the plaintiff no longer played the Turkish mandolin or went bike riding with her husband. In further evidence in chief the plaintiff told the Court that for a period of about eight months after she ceased employment she attempted to learn this instrument but gave up due to pain in her back and hands.[104] Under cross-examination, the plaintiff was unable to recall when she first commenced learning the instrument or, for that matter telling Dr Boffa in June 2013 that she no longer played this instrument.[105] However, the plaintiff’s evidence as to when she last rode a bike with her husband suggested that this activity may have ceased before the first injury;[106]
[104] TN 60
[105] TN 64
[106] TN 64-65
· the plaintiff took Panadeine Forte, Nurofen Plus and Mersyndol Forte and Cipramil as well as an occasional Xanax tablet, the latter for anxiety;
· Dr Boffa noted the development of bilateral median neuropathic pain and secondary depression following partially successful bilateral carpel tunnel release operations. He recommended changing the antidepressant medication to Cymbalta. In Dr Boffa’s experience this drug had proven beneficial in treating depression and neuropathic pain. He also recommended referral to a Turkish speaking psychiatrist for treatment of secondary depression and high levels of distress;
· in Dr Boffa’s opinion the plaintiff was not fit to return to her pre-injury duties, that is the modified duties performed prior to cessation of employment, until secondary depression and neuropathic pain were appropriately managed;
· Dr Boffa recommended review of the plaintiff’s condition in six months.
127 This then brings us to the evidence of pain physician, Dr Blombery to whom the plaintiff was referred by Dr Baglar, apparently in the treatment of a pain syndrome affecting the plaintiff’s hands and back. Five reports dated 20 August 2013, 12 September 2013, 31 October 2013, 28 April 2014 and 3 July 2014, addressed to either Dr Baglar or the plaintiff’s solicitors, were tendered.[107]
[107] PCB 69-80
128 Having initially examined the plaintiff on 12 August 2013, Dr Blombery concluded the plaintiff was suffering from a neuropathic pain type problem in her hands without evidence of complex regional pain syndrome, type 1. Initial treatment involved the plaintiff trialling the medication, Lyrica. However, on 31 October 2013 Dr Blombery informed the general practitioner the plaintiff’s pain had not responded to either this or an alternative medication, Amantadine. In October 2013, the plaintiff apparently rated the overall pain in her hands as 7 to 8/10 with pain, more marked on the right side than the left, which she reported kept her awake at night.
129 At the time, the plaintiff was still taking pain killing and antidepressant medication and diazepam, the latter occasionally. Dr Blombery suggested some physiotherapy and acupuncture. He also initiated a trial of medication used in the treatment of anxiety, Catapres (Clonidine) for six weeks, but ruled out a Ketamine infusion because Dr Blombery was not satisfied that the level of the plaintiff’s pain warranted this intervention.
130 Notably, in April and July 2014, Dr Blombery gave the following report to the plaintiff’s solicitors:
· the plaintiff had developed significant anxiety and depression and had been off work in the months preceding Dr Blombery’s first examination as a consequence of ongoing pain. Allowing for the report made in April 2014, I understood that these matters and the restrictions reported on activities at home were related to the condition of the plaintiff’s hands;
· in Dr Blombery’s opinion some of the pain of which the plaintiff complained was no longer part of the carpel tunnel compression of the median nerves but was caused by a pain syndrome due to neuropathic pain. I understood the latter to reference pain with a physiological cause;
· the plaintiff failed to return for review in November 2013;
· when Dr Blombery examined the plaintiff he understood her major problem related to her hands. Her back, he said, had not been a major component of her complaints. Whilst under cross-examination, the plaintiff resisted the suggestion that she had identified her hands as the major problem (“No, I didn’t. I suggested to him that I had both problems in my hands and my back” [108]), the emphasis on the second injury was clearly evident from the multiple reports submitted by this treating specialist between 2013 and 2014;
· Dr Blombery made recommendations about the future management of the pain condition affecting the plaintiff’s hands as a means of assisting the plaintiff in dealing with pain, as distinct from any expectation that the level of the pain experienced by her would be reduced;
· in Dr Blombery’s opinion the plaintiff’s major problem related to pain in her arms and the severity of this pain would prevent a return to work as a food services assistant or to suitable employment. However, whilst pain in the plaintiff’s back may prevent her from working as a food services assistant where it involved heavy lifting, the plaintiff had a retained capacity for light duties. This clearly referenced the plaintiff’s physical capacity for work without discussion of the hours worked.
[108] TN 109-110
131 So far as this application under paragraph (c) was concerned, among other things, Dr Blombery’s evidence established that symptoms of the second injury probably contributed to physical incapacity for work other than light duties.
132 I have already noted in passing the opinion of the Medical Panel. The Panel comprised rheumatologist, Associate Professor Romas, orthopaedic surgeon, Mr Bourke and psychiatrist, Dr Carson. It appears that physiotherapist, Associate Professor Tehan, was consulted by the Panel prior to finalisation of the Panel’s opinion.
133 The reasons tendered showed that the Panel took into account a range of treating and medico-legal opinions and viewed the radiology obtained between 2008 and 2012. The plaintiff was physically and psychiatrically examined.
134 Without repeating the questions posed in full, the Panel was asked about the nature of the plaintiff’s current medical condition (including any sequelae) relevant to the first injury and asked to evaluate the appropriateness of ongoing physiotherapy and psychological services. As mentioned, in the Panel’s opinion the plaintiff had sustained a soft tissue lower back injury which had resolved and, in August 2013 she was not suffering from any intrinsic medical condition of her lower back relevant to the first injury. The Panel was also of the opinion that the plaintiff was suffering from a mild Chronic Pain Disorder due to the now resolved soft tissue injury and psychological factors relevant to the first injury.
135 When formulating its response to the questions posed, among other things, the Panel considered and rejected the conclusions (as expressed before August 2013) of Dr Munir, Dr Baglar, Mr Dohrmann and Mr Flanc as to the nature and severity of the plaintiff’s medical condition. In short, the Panel concluded these practitioners had overstated this, as well as the significance of the radiological changes shown in the plaintiff’s lower thoracic and lumbar spine. The Panel considered the latter to be both minor and/or constitutional in nature and origin.
136 However, as my discussion of Mr Dohrmann’s evidence has shown having reviewed the plaintiff and considered additional materials, in 2014, he too subsequently attributed the plaintiff’s chronic non-specific pain to soft tissue injury.
137 Evidently, the plaintiff told the Panel that she had ceased work in March 2013 because the results of hands surgery: “were not good”. She described ongoing pain and disability referable to her hand condition.
138 Among other problems reported, the plaintiff noted irritability (although the plaintiff apparently told the Panel she was rarely tearful), social withdrawal, poor concentration, weakness and a lack of energy, disrupted sleep due to both low back pain and hand pain, weight increase, arguments with her husband, an inability to enjoy their sex life and without being able to explain the circumstances in which these could occur, panic and anxiety attacks, the frequency of which had reduced to maybe once every 2 to 3 weeks or monthly.
139 As to the onset and maintenance of psychological problems, the plaintiff relevantly reported as follows:[109]
[109] DCB 83-85
“”I’m psychologically affected.” She said that she was first affected psychologically because of her back problem but said she is much worse now. She said the reason she is worse is that after her hand surgery she was particularly bothered by the WorkCover process and said she was constantly observed at work and called into the office for no reason.
She said that following her initial injury to her back her general practitioner referred her to a psychologist and commenced her on antidepressant medication and she said she was off work for one year.
The Plaintiff told the Panel that things changed in 2013 and she said that she blames a manager at work who she said intimidated her and has made her “much worse”.
…
She was able to sit comfortably for most of the interview rising on two occasions briefly but she used her hands and arms normally, to express herself. The Plaintiff was tearful and sobbed and cried throughout the interview. At times it was difficult to elicit personal information from the Plaintiff and this was particularly evident in regard to daily activities about which she was evasive. Her affect throughout was irritable and her mood both angry and sad. Her thoughts were totally preoccupied with her pain symptoms and the fact that she believed she was not improving physically but she was reluctantly agreeable to the fact that her psychological symptoms had improved. Her concentration and memory were considered to be within normal clinical limits and there was no evidence of psychotic phenomenology.”
140 Notably, the Panel’s conclusion that the plaintiff no longer benefitted from psychological services accorded with the opinion expressed by the plaintiff’s medico-legal specialist, Dr Kornan in April 2014. His report is discussed in more detail shortly.
141 Reports were obtained by the insurer from orthopaedic surgeon, Mr Scott and from hand specialist, Mr Stapleton following examinations of the plaintiff on 15 January 2014 and 22 January 2014 respectively.[110] Their primary concern was to assess the second injury, although both specialists were cognisant of the history of the first injury and, in Mr Scott’s case, he also conducted clinical examination of the plaintiff’s lumbosacral spine.
[110] DCB 98-112 and 113-116
142 In short, following his examination, Mr Scott had not been able to detect evidence of any complex regional pain syndrome type 1 or organic features of persistent significant median nerve compression in either wrist.
143 He concluded that anxious, nervous or depressive problems had magnified the plaintiff’s overall presentation: “with the development of what can be best described as bilateral regional pain syndrome without features of sympathetic activity, that is, an absence of complex regional pain syndrome type 1 features”.[111] Mr Scott recommended psychiatric assessment and deemed the plaintiff unfit for work: “by virtue of her major symptom complex affecting both upper limbs and associated apparent severe anxiety and depression and frustration”.[112]
[111] DCB 103
[112] DCB 105
144 Mr Stapleton questioned the relationship between the unresolved carpel tunnel syndrome condition and the plaintiff’s work: “It is a genetically predetermined problem and mainly it is suffered by women of menopausal age”.[113] This was not an issue for determination in the current application. The plaintiff, nevertheless, relied on Mr Stapleton’s observation that she presented during examination as profoundly depressed.
[113] DCB 115
145 The reports obtained from occupational physician, Dr Slesenger for the plaintiff and from rheumatologist, Dr Kostos for the defendant following assessments on 5 May 2014 and 28 May 2014 also emphasised the likely role of non-organic factors in the plaintiff’s presentation.[114]
[114] PCB 142-148 and DCB 91-97
146 Dr Slesenger concluded the first injury had initially caused soft tissue injury to the lower thoracic and lumbar spine and may have aggravated some previously asymptomatic degenerative change at the lower thoracic spine. Notably, the suggestion that the first injury may have also involved injury to the lower thoracic spine was not supported by the earlier medical evidence already summarised or by the initial description given of the location of pain affecting the lower back.
147 In any event, Dr Slesenger considered the plaintiff’s current presentation was due to a chronic pain disorder (“Since 2012 (the plaintiff) has noticed her mood has deteriorated. She described herself as being depressed, tearful and lacking interest in the world outside. She would often go to bed and not get up during the day. More recently she began to develop panic attacks when she starts to feel shaking and cannot breathe and feels dizzy. These are now occurring up to twice a week. Over the last six months she has noticed a significant deterioration in her mood”[115]).
[115] PCB 144
148 In Dr Slesenger’s opinion, the plaintiff was physically incapable of returning to pre-injury duties as a food assistant as a result of the first injury. However, it was, he said, the chronic pain disorder which prevented a return to alternative employment: “She has a chronic pain disorder present and I do not believe that she will be capable of returning to alternate duties given the severe levels of pain described along with the cognitive and memory disorder (possibly due to her medication or an underlying psychiatric impairment)”.[116]
[116] PCB 148
149 For different reasons, Dr Kostos diagnosed non-organic chronic pain syndrome, without there being any current impairment of the plaintiff’s back due to the first injury. In short, the rheumatologist rejected any suggestion that the plaintiff’s physical capacity for work was limited by the first injury.[117]
[117] DCB 96
150 Psychiatrist, Dr Kornan submitted the last of the psychiatric reports following an assessment on 14 April 2014.[118] The report was obtained only in respect to the first injury. The materials available to Dr Kornan included, among other materials, all of the defendant’s earlier psychiatric reports bar Dr White’s report and omitted the reports from treating doctor, Dr Blombery. I note, however, that the plaintiff advised Dr Kornan she intended to make another appointment with Dr Blombery. As we know from this doctor’s evidence, she has not returned for treatment after failing to attend an appointment in November 2013.
[118] PCB 133
151 Dr Kornan took a detailed history of the first injury and its sequelae. He was cognisant of the second injury and related surgeries. This was because the plaintiff alleged she had sustained the second injury trying to protect her back in the performance of light duties and because the two reports submitted by Dr Baglar before psychiatric assessment contained references to the second injury and treatment.
152 The salient features of Dr Kornan’s report are summarised in point form as follows:
· the plaintiff reported she continued working until 2013 when her back pain worsened and she was no longer able to cope;
· the plaintiff experienced constant back pain of varying intensity, leg pain, particularly affecting the right leg for a couple of days per week, migraines once a month, stomach pain brought on using strong painkilling medication, panic attacks every week, depression (“I don’t feel hopeful of the future”), social withdrawal (“I don’t want to see anyone”), sleep disturbance (“it’s hard to fall asleep”) and a worsening of back pain with the passage of time; [119]
[119] PCB 134 and 139
· at the date of this examination the plaintiff’s daily psychotropic medication consisted of Cipramil (20mg), three Diazepam tablets (5mg each) and Xanax (2mg);
· the plaintiff, who was being treated by her general practitioner, reported she was waiting to see a new psychologist. I note the history recorded was inaccurate, firstly, because Dr Kornan wrongly assumed Ms Selvi had provided psychological treatment until Christmas 2013 and, secondly, because he understood counselling had been twice monthly. In any event, during re-examination the plaintiff told the Court, Dr Baglar was in the process of organising an appointment with a Turkish speaking psychiatrist whose name she was unsure of. She affirmed her intention to pursue psychiatric treatment once this was arranged;[120]
[120] TN 115-116
· Dr Kornan diagnosed Major Depressive Disorder and Adjustment Disorder with Anxiety. In response to specific questioning, he attributed the plaintiff’s psychiatric ill-health to: “her employment injury, and after effects”.[121] In the context of this report, this statement appeared to reference only the first injury;
[121] PCB 138
· Dr Kornan concluded that the plaintiff was unfit for work due to a combination of physical factors and the plaintiff’s psychiatric state. Whilst he considered psychiatric factors limited the plaintiff’s capacity for pre-injury employment or for alternate duties to part-time employment, Dr Kornan clearly believed the plaintiff’s inability to work was primarily due to physical factors;
· unlike Dr White, Dr Kornan argued against further specialist treatment because he did not believe a psychologist or psychiatrist would offer the plaintiff more in the way of treatment than she was already receiving from her general practitioner. He recommended the plaintiff continue attending Dr Baglar and take the prescribed psychotropic medication over the next two or three years or possibly longer. Whilst he was not convinced this was entirely necessary, Dr Kornan was not adverse to the plaintiff obtaining further treatment from a pain management specialist such as Dr Blombery;
· Dr Kornan predicted the plaintiff’s mental illness would remain at current levels into the foreseeable future (“I see her psychiatric ill-health continuing as remaining in a fluctuating way at a level of moderate intensity for quite some time”).[122]
[122] PCB 140
153 The last of the medical reports was submitted by Dr Baglar to the plaintiff’s solicitors on 10 June 2014.[123] This report was directed to the second injury. The general practitioner relevantly opined that the plaintiff was suffering from unresolved bilateral carpel tunnel syndrome and neuropathic pain in both hands and was, the doctor said: “severely depressed because of her physical state and she does not have work capacity at all”.[124] I think it clear from the report, the general practitioner believed both the physical symptoms and psychological sequelae of unresolved bilateral carpel tunnel syndrome or neuropathic pain contributed to the plaintiff’s incapacity for work and disability in other areas of her life.
[123] PCB 65-68
[124] PCB 68
154 Based on the evidence summarised above, no specialist or treating doctor has provided evidence that explains the extent of any organic and/or non-organic contribution of the second injury to the plaintiff’s current mental state.
The affidavit evidence of consequences of mental disturbance/disorder
155 Both affidavits were sworn by the plaintiff after she ceased work in March 2013. Whilst in some instances the plaintiff either during her oral evidence or in her affidavits identified consequences attributable to one or other of the injuries, there was a tendency to conflate particularly the psychological consequences of the separate injuries without also disentangling the likely contribution of continuing physical consequences of the second injury. This was particularly noticeable in the first affidavit sworn in April 2013 in which the plaintiff made passing reference to the second injury.
156 However, in her second affidavit, sworn on 10 July 2014, the plaintiff deposed to a range of consequences, some of which were traceable to the period between the first injury and the onset of the symptoms of the second injury from about April 2010. Without attempting to address all of these individually, the consequences alleged are summarised in point form below:
· the plaintiff attended Dr Baglar every 2 to 3 weeks. From day to day she took varying combinations of painkilling medication (Panadeine Forte 6 tablets and sometimes 8 for particularly severe pain symptoms, Nurofen Plus, 6 tablets and Mersyndol Forte, 4 to 6 tablets or, instead of these medications she used a Norspan patch). Her daily medication regime also included two Zantac tablets, Cipramil (20mg), Diazepam (5mg) or Xanax (2mg) and the strong painkilling medication, Endone. It was not clear from the evidence as a whole whether, and the extent to which, organic and/or non-organic factors due to the second injury contributed to the increase in pain killing medication and, more recently, the increase in psychotropic medication;
· sleep disruption caused by both lower back and hand pain. Poor sleep apparently caused lethargy during the day. I was unable to determine from the evidence the extent to which organic and/or non-organic factors due to the second injury contributed to this consequence;
· feelings of depression, anxiety and hopelessness and panic attacks about twice weekly, which produced heart palpitations and breathlessness and limited the plaintiff’s activities outside the home due to her fear of experiencing panic attacks and anxiety. Difficulty with prolonged driving was another problem the plaintiff related to her fear of suffering a panic attack. Both back pain and hand pain (difficulty steering and holding the wheel) apparently also limited the plaintiff’s driving endurance. The evidence summarised earlier indicated complaint of depression and anxiety prior to the onset of symptoms of the second injury, not to mention a likely adjustment disorder. However, none of the medical evidence and, in particular, the specialist evidence involved analysis of how the plaintiff’s mental state would have progressed absent the onset of symptoms of the second injury or apportioned the causes of the plaintiff’s current psychological condition between one injury or the other;
· migraines lasting several days and causing nausea about once every month. In May 2010 the plaintiff apparently informed Dr Douglas she had suffered severe headaches, perhaps twice weekly for many years. If the migraine headaches reported in 2014 were due to non-organic factors, whether, and the extent to which these were due to the first injury was unclear;
· lower back pain and some referred leg pain exacerbated by activities such as prolonged sitting, lifting heavy objects, heavier household tasks and carrying heavy bags of shopping. Problems with the plaintiff’s hands similarly limited the plaintiff’s activities and caused other difficulties with opening jars, cutting up food and holding objects;
· weight gain of some 5 to 7 kilograms which the plaintiff attributed to both injuries. Notably, this represented a reduction in the 9 kilogram weight gain the plaintiff reported to Dr Douglas in May 2010, before the onset of the symptoms of the second injury;
· avoidance of socialising, although the plaintiff deposed she still maintained some social contact with her friends. As we know from the record made by Dr Douglas in May 2010, the plaintiff reported a normal social life and engagement with her friends. The evidence that the plaintiff avoided social interaction and activities, such as going out for meals, dancing and going to the movies, all appeared to emerge subsequent to the onset of the symptoms of the second injury;
· frequent arguments with her husband, which had strained their marriage. In May 2010 the plaintiff reported getting on well with her husband, although she also reported arguments due to her loss of interest in sex because this was painful;
· upset and depression due to her inability to complete the cake decorating course to which I have already referred in passing. This and the plaintiff’s efforts to learn and play a Turkish mandolin were activities the plaintiff attempted in about 2013, probably after she ceased employment, the latter primarily due to her hand condition. The plaintiff deposed she found the cake decorating classes enjoyable when her pain symptoms (that is pain symptoms in her hands and back) were less severe.
Findings
157 My findings are summarised in the following points:
· the most recent MRI results from scans of the lumbosacral spine obtained in 2011 and 2012 have not revealed pathology which could account for the persistent symptoms of which the plaintiff complained. Treating doctors and numerous medico-legal specialists have since diagnosed either soft tissue injury or non-specific back pain. Irrespective of whether her condition is now properly characterised as a chronic pain syndrome, as suggested by Dr Kostos or as a chronic pain disorder, as suggested by the Medical Panel’s opinion and the evidence of Dr Slesenger, I was satisfied there was no longer a substantial organic explanation for the persistent and worsening lower back symptoms of which the plaintiff complained;
· from 2008 the plaintiff manifested and was treated for symptoms of mental disturbance/disorder secondary to the first injury. Treatment involved a low daily dosage of psychotropic medication, prescribed until well after the onset of symptoms of the second injury, as well as monthly counselling by a psychologist, until funding ceased in about November 2011;
· I was not satisfied by the medical evidence as a whole that, the plaintiff was suffering from a non-organic chronic pain syndrome/disorder or, for that matter, a Major Depressive Disorder before the onset of symptoms of the second injury. In May 2010, the insurer’s psychiatrist, Dr Douglas diagnosed an Adjustment Disorder with Depressed Mood secondary to pain and disability caused by an organic injury. Dr Douglas concluded the plaintiff would likely continue to experience some low back pain. Given the very positive reports received by him and the progress made under the treatment regime described above, I was satisfied that, at the time, Dr Douglas’ expectation that the plaintiff would achieve a complete psychiatric recovery, was justified;
· following the onset and investigation of symptoms of the second injury, in 2011 treating and medico-legal specialists received reports of back and right leg pain. The former was described as constant and varying in intensity;
· following the onset and investigation of symptoms of the second injury the treatment of the plaintiff’s mental disturbance continued as before, although, as mentioned, by about November 2011 funding for psychological treatment ceased. It was not renewed after the Medical Panel concluded, among other things, psychological services were no longer appropriate;
· in December 2011, the plaintiff continued to present with an Adjustment Disorder (on this occasion with mixed anxiety and depressed mood ) in the context of reportedly significant and widespread daily back and leg pain and burning feelings and weakness in both hands. Psychiatrist, Dr Athey recommended increasing the dosage of or changing the plaintiff’s psychotropic medication. Relying on medical evidence as a whole, I could not be satisfied of any psychiatric incapacity for employment at that time;
· I infer from the description of the symptoms of the second injury, the fact that the plaintiff underwent surgery twice in 2012 and from the wearing of wrist splints that, in the period from 2011 onwards, the plaintiff was significantly affected by both pain and incapacity due to a condition unrelated to the first injury;
· In February 2013 the plaintiff again present with an Adjustment Disorder (on this occasion with depressed mood) causally linked to the first injury, which, for the purposes of the impairment assessment, psychiatrist Dr Prytula, assessed as being of mild severity;
· the plaintiff was certified totally incapacitated for work from about March 2013 due worsening symptoms in her arms and the need to further investigate these, not by reason of the first injury or psychiatric incapacity for work;
· during early 2013 the plaintiff’s psychotropic medications included Cipramil and Xanax and she commenced psychological counselling with Ms Oksuz, funded under the claim for the second injury;
· in May 2013 psychiatrist, Dr White, assessed the plaintiff under the second injury claim and diagnosed a Major Depressive Disorder, Single Episode. Dr White alluded to the possibility that the psychiatric illness had developed in the context of a Pain Disorder based on both psychological and physical factors. His evidence appeared to implicate both the first injury and the second injury as likely precipitants of one or both mental disturbances/disorders. He advocated psychiatric treatment. Whilst I have accepted the plaintiff’s evidence she would attend for psychiatric treatment if recommended, at the date of hearing no appointment was pending. However, allowing for the Medical Panel’s findings and Dr Kornan’s recommendations in April 2014, I could not be satisfied that mental disturbance/disorder relating to the first injury required intervention by a psychiatrist or, for that matter, ongoing psychological treatment;
· the medical reports and the results of investigations undertaken during 2013 have confirmed ongoing organic and non-organic consequences flowing from the second injury;
· the plaintiff relied on the Medical Panel’s conclusion in August 2013 that the previously identified features of an Adjustment Disorder with depressed mood were now, probably more accurately characterised as a Chronic Pain Disorder. Based on all of the material available to me and the Medical Panel’s reasons for rejecting the provision of further psychological services, I have accepted that the Panel’s analysis helped explain the persistence and likely progression of the plaintiff’s symptoms of mental disturbance since Dr Douglas diagnosed an Adjustment Disorder with depressed mood, without the Medical Panel having also considered the role of the second injury in the production and maintenance of a Chronic Pain Disorder characterised by the members as “mild”;
· when the plaintiff’s medico-legal expert Dr Kornan, conducted his assessment in April 2014 he no doubt understood (having read, particularly Mr Flanc’s recent reports), there was considerable uncertainty about the precise organic cause of the constant lower back and leg pain reported by the plaintiff. He, nonetheless, diagnosed Major Depressive Disorder and Adjustment Disorder with Anxiety and predicted this would continue in a fluctuating way at a level of moderate intensity for quite some time. Notably, Dr Kornan recommended continuation of the current treatment regime, which only involved ongoing oversight by the general practitioner and prescription of psychotropic medication;
· based on the evidence summarised, I was satisfied that at the date of hearing the plaintiff suffered from symptoms of mental disturbance/disorder, with varying diagnoses offered subsequent to the plaintiff ceasing work involving a Major Depressive Disorder, a Chronic Pain Disorder and/or an Adjustment Disorder, the latter with anxiety. However, none of the treating or specialist evidence appropriately delineated or analysed the probable level of psychiatric incapacity absent the additional significant organic and/or non-organic factors imposed following the onset of symptoms of the second injury;
· howsoever the plaintiff’s mental disturbance/disorder was characterised by specialists in 2013 and 2014, I could not be satisfied, whether and the extent to which, absent the second injury, the first injury contributed to any psychiatric incapacity for work. For instance, recent expert evidence had indicated a likely current psychiatric incapacity for work. However, if correct in concluding that a chronic pain disorder incapacitated the plaintiff for work, Dr Slesenger did not also discuss or analyse the role of the second injury. Dr Kornan, on the other hand, considered the plaintiff only fit for part-time employment but emphasised the role of physical factors in restricting the plaintiff’s capacity for employment, again without discussion or analysis of the extent of the role of the second injury.
158 Importantly, the evidence on which the plaintiff relied did not provide a clear basis for determining the extent to which the plaintiff would have continued to be affected by mental disturbance/disorder absent the significant organic and/or non-organic effects of the second injury, nor did it permit disentanglement of the likely consequences of the second injury.
Orders
159 In all, the plaintiff did not meet the proofs required of her in respect to any pain and suffering and loss of earning capacity consequence of mental disturbance/disorder to which the first injury contributed and she has not established permanent severe mental or behavioural disturbance or disorder on the balance of probabilities.
160 It must, however, be kept in mind that my findings in respect to the plaintiff’s paragraph (c) claim were confined to the first injury.
161 For the reasons outlined, I propose to make orders dismissing the application.
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