Hinchliffe v AME Systems Pty Ltd & CGU
[2011] VCC 1237
•28 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-02269
| CHRISTINE MARY HINCHLIFFE | Plaintiff |
| v | |
| AME SYSTEMS PTY LTD and | First Defendant |
| CGU WORKERS COMPENSATION (VIC) LIMITED | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE WISCHUSEN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 9 and 17 February 2011 |
| DATE OF JUDGMENT: | 28 June 2011 |
| CASE MAY BE CITED AS: | Hinchliffe v AME Systems Pty Ltd & CGU |
| MEDIUM NEUTRAL CITATION: | [2012] VCC 1237 |
REASONS FOR JUDGMENT
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Catchwords: s 134AB, injury to thoracic spine, paragraph (a) of definition of serious injury relied upon, chronic pain syndrome/disorder, whether psychological or psychiatric consequence of physical injury
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. Bird with | Stringer Clark |
| Mr S. Wubbeling | ||
| For the Defendants | Mr P. Scanlon SC with | Lander & Rogers |
| Mr P. Jens | ||
| HIS HONOUR: |
1 In these proceedings, the plaintiff seeks leave to bring a proceeding for the recovery of damages in respect of an injury to the upper thoracic spine.[1] Leave is sought pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”). The leave sought is in relation to both the pain and suffering consequences of the injury, and the loss of earnings consequences of the injury.
[1] Leading counsel for the plaintiff opened the case on this basis, T 1. Earlier, in Particulars of Injury given in these proceedings on 9 September 2010, a list of ten complaints/conditions, some of them psychological in nature, was relied upon.
2 In the application, the plaintiff relies only upon sub-paragraph (a) of the definition of serious injury.
3 The evidence consisted of affidavits sworn by the plaintiff and her former husband. The plaintiff gave evidence before me. She was not cross- examined.
4 Each of the parties tendered documents from their court books – claim documents, medical reports, medical certificates and radiological reports. Extracts from clinical records were also tendered.
5 Discussion with counsel at the commencement of the hearing revealed that the defendant denies that the plaintiff has suffered an identifiable physical injury, denies that there is any injury at all, and denies that the symptoms of which the plaintiff complained when she first ceased work were connected with her employment. Thus, as I understood it, the nature, extent and compensability of the physical injury relied upon was in dispute.[2]
[2] T 15, 17, 18
6 In such an application the plaintiff bears the burden of satisfying me of the requirements for the grant of leave under s 134AB.[3]
[3] The relevant principles to be applied when considering whether an injury is a serious injury are set out in s.134AB and are explained in many decisions of the Court of Appeal, including - Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; State of Victoria v Rattray [2006] VSCA 145; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; Church v Echuca Regional Health [2008] VSCA 153; Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167; Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 and Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143.
Background
7 The plaintiff is now 54 years of age. She is separated from her husband. She was educated to Form 2 level. She has worked in manual jobs for most of her adult working life. She had time away from the workforce to raise her family and to care for one of her children, who died after a long illness at the age of 12.
8 She began work with the defendant in April 2002. Her duties involved the assembly of electrical harnesses for use in the manufacture of trucks.
9 The plaintiff last worked for AME in May 2006.[4]
[4] Her letter of resignation, dated 25 May 2006, was tendered in evidence, DCB 189
The plaintiff’s account of her injury
10 In her first affidavit, the plaintiff said that she last worked in about May of 2006. She described her employment and her duties in the period from April 2002 as being heavy and requiring reaching to shoulder height. She described the lifting of tubs of wire from the floor on to a desk, and then lifting bundles of wire out of the tub and performing tasks upon them at a desk. When the bundles were complete, the tub was lifted and placed back on the floor. The same process was repeated on the next tub. The plaintiff said that she was lifting about 15 tubs per day in this way. The plaintiff also described another work activity which required the pulling of wires from a 7 foot high stand.
11 In paragraph 4 of her affidavit the plaintiff swore:
“As a result of doing the work I have described, I suffered the onset of severe back pain as well as arm pain. However, it is my back pain which remains debilitating and serious.”
12 Expanding upon this in paragraph 5, the plaintiff swore that:
“I developed pain in my back which became progressively worse in February 2004 and the pain was of such severity that I was taken to the Ararat Medical Centre where I consulted a general practitioner and certified off work and provided with pain relieving medication, Tramal.”
13 The plaintiff swore that after that treatment she attempted to resume work. She suffered further aggravation of back pain and had further periods of time off work. She said she was forced to cease work in May 2006.
14 As to her symptoms at the time of swearing her affidavit in September 2009, the plaintiff swore:
“I have constant pain in the back and at its worst it is painful to breathe in and out. The pain is a burning, pulling, stabbing sensation, variable and made worse with sitting or standing for too long or turning quickly. Sometimes the pain extends across to the right shoulder blade and sometimes into my left shoulder blade and upper bicep.”
15 The plaintiff next listed the consequences of the symptoms she had described, and set out in some detail her inability to pursue a wide range of domestic and recreational activities and her inability to work. She said she had intended to work indefinitely had she not suffered injury.
16 In a further affidavit sworn on 24 January 2011, the plaintiff said that before commencing employment with the defendant, she had had a good record of work and set out, without much detail, jobs she had held since leaving school. She explained that she had spent many years looking after one of her twins who had a congenital illness and died when he was 12 years of age.
17 The plaintiff also set out a number of injuries she had suffered in employment, again with scant detail, mentioning a week off work with a shoulder injury while working at the community college, some back pain in 2002, some right elbow pain in July 2002, and some left elbow pain in July 2006.
18 As to her present treatment, the plaintiff said that she sees her general practitioner for prescriptions every two or three months, that she presently takes Capadex, but had been taking narcotic analgesics for quite some time before that. She said she uses heat packs at night and “Deep Heat” and that she drinks more alcohol than she should, in order to get relief from the pain and help her sleep.
19 As to her current symptoms, the plaintiff said that she wakes every day with pain. Her pain is usually in the range of 3 to 6 out of 10, but at least once or twice a day it increases to the level of 8 or 9 out of 10.
20 The second affidavit goes on to describe a range of consequences of the plaintiff’s pain in respect of her working, recreational and domestic activities. She also swears that she enjoyed her work and now misses interaction with her workmates and the pride that she took in performing her work. She also said that she would like to get back into the workforce but because of her limitations and poor sleep she did not think she could be a reliable worker and could not think of a job that she could realistically perform.
21 The plaintiff’s former husband swore an affidavit. In it, he deposes that they separated in 1990, but remain close and that he sees the plaintiff almost every day. Although his account is not detailed, it corroborates the plaintiff’s account of her pain and of the difficulty she has with physical activities.
22 Before me the plaintiff gave further sworn evidence in which she gave more detail about her working history. As to the other injuries she had suffered she said - in respect of the shoulder injury at the community college, the back pain in 2002, the pain to her right elbow in July 2002, and the left elbow pain in 2006 - that she had got over each of those injuries. As to her intake of the prescription analgesic Capadex, she said that she had been told by her doctor to cut it down, from 6 to 8 a day to 4 a day, and that she had done this.
23 As to the injury to the upper thoracic spine, the plaintiff said that at the time she gave notice of it, the pain:
“was extremely painful to the point my whole body was shaking.”[5]
[5] T 20
The history of the claim for weekly payments
24 The plaintiff first made a claim in respect of an injury to her thoracic region in early February 2004.[6]
[6] DCB 9, also exhibit B
25 The claim form, signed on 19 February 2004, described the injury as -
“mussel (sic) lockup and spasms”
26 Affecting her:
“middle back”
27 The claim form contains other information:
- that the injury was first noticed on 2 February 2004;
- that she ceased work on 11 February 2004;
- that the cause of the injury was “unknown”;
- that it had been reported on 3 February 2004;
- that she was being treated by Dr Venes; and
- that she had had the “same thing” previously.[7]
[7] In some of the histories, there is reference to pain in same region in 2002, eg Mr Bourke at DCB 113
28 An “Employer Claim Report” was made on 16 March 2004. It contains similar information.[8] It describes the injury as “muscle spasm’s”, and records that the claim form had been received on 1 March 2004 and the “Certificate of Incapacity” on 17 February 2004. The author advised the agent that the employer had no reason to believe it was not required to pay compensation.
[8] DCB 12
29 The certificate referred to appears at DCB 35. Issued by Dr A Venes on 13 February 2004, it certifies the plaintiff unfit for work from 11 February 2004. In it, Dr Venes describes the injury as:
“Pain middle of back, L (left) side”
And the diagnosis as
“Soft tissue pain? Muscular strain/tear”
Under “other details” Dr Venes wrote
“Leaning over in seat and lifting boxes to from trolley to work station”
30 The next two medical certificates, issued by Dr Venes on 20 and 23 February 2004, somewhat mysteriously certify that the plaintiff was suffering from “low back pain”,[9] and then, from 27 February 2004, there are “Certificates of Capacity” from a number of practitioners,[10] some certifying periods of restricted duties, and others total incapacity, most of them relating specifically to injury to the thoracic region, until a certificate from Dr G Bertuch issued on 1 July 2005, also concerning “thoracic back pain”, and certifying that the plaintiff was expected to be fit for normal duties on 4 July 2005.[11]
[9] DCB 37 & 39
[10] DCB 43 - 74
[11] DCB 75
31 On 11 March 2004, CGU Workers Compensation (Vic) Limited (“CGU”) accepted the plaintiff’s claim in respect of an injury occurring on 2 February 2004.[12]
[12] Exhibit C
32 After that time it appears that the plaintiff returned to work for various periods, before eventually ceasing work altogether in 2006.[13]
[13] In evidence was a claim form signed by the plaintiff on 16 February 2006, DCB 14, concerning an injury to the left elbow after two days of “pulling wires of rack”, it seems likely that the certificate of Dr Fransch, DCB 77, certifying “epicondylitis (tennis elbow)” was lodged with this claim. Certificates of Capacity concerning the elbow condition cover the period until 6 March 2006, when Dr Fransch certified that she was expected to be fit for normal duties from that date.
33 Next, there are certificates, commencing on 7 December 2006, of total incapacity due to “musculoskeletal back pain in thoracic region” and “work related back pain” covering various periods, initially monthly periods, and after June 2007, three monthly periods are certified until March 2010[14] when Dr Bertuch’s certificate refers to “thoracic and lumbosacral back pain”.[15]
[14] DCB 87 - 105
[15] DCB 106, this is the latest “Certificate of Capacity” in evidence.
34 The plaintiff has not worked since May 2006. She is in receipt of weekly payments on the basis that she has no current work capacity, and is likely to continue indefinitely to have no current work capacity.[16]
[16] S93CC(1) of the Act. I was informed in the opening that her payments had been terminated on two occasions, and that, after the opinion of the Medical Panel was given on 22 September 2008 (PCB 47) weekly payments had continued to the present time.
Chronology of medical treatment, findings and investigations
35 In respect of the injury relied upon in this application, the plaintiff first attended the Ararat Medical Centre on 6 February 2004. According to his report, addressed to CGU,[17] Dr Venes said that the plaintiff:
“… stated that on 2/2/04 she felt some pain between her shoulder blades, more to the left side. She felt this had happened when reaching forward to work on a wire harness basket and the way she was sitting at the workstation.”
He continued -
“On examination, she was tender over the left subscapularis muscle, and the muscle was quite knotted with spasm. She was initially started on Tramal 100mg bd but had a reaction to this and on 13th February was changed to Digesic and Diazepam for muscle relaxation.
She continues to have a locking in her back due to pain when seen on 20/2/04. This was mainly afternoon. She was started on some physiotherapy and gradually improved to the point of wanting to go back to work on modified duties. Despite physiotherapy her pain continued but she had less spasm. She became quite frustrated at not being able to go back to work due to her pain and decided she would like to attend chiropractic treatment rather than physio.”
[17] PCB 29
36 Clinical notes from the Ararat Medical Centre were tendered in evidence.[18] They are in typed form and are somewhat abbreviated.
[18] Exhibit D and exhibit 2
37 To this point in the chronology, they contain the following entries:
“February 6, 2004
pain l. Medial subscapular area. O/E tender over muscle subscapularis. spine.
Actions: Prescriptions printed:
February 13 2004
had reaction to Tramal and was sick w/ it. Told not to take any more.
has some Digesic at home and may try these. also as has a lot of
muscle spasm to trial diazepam 5mg b.d. and to start physio. This pain
started at work on 2nd Feb and she thinks it may be due to her reaching
forward to get harness baskets and the way she sits at work station. To
review next Fri.
February 20 2004
pain in back still severe and feels that her back has locked up. Seems
to be muscular spasm mainly in afternoon. Sleeps reasonably well at
night... to increase diazepam to(sic 2) on morning and lunch and to
nocte. Warned not to drive.. See early next week after physio.
February 23 2004
has improved somewhat but feels a bit zonked so reduce to half bd. and
one nocte. Cert. to fri. and review as still having physio.
February 27 2004 trial shot(sic short) days of 2hrs daily initially.
pain has flared up again despite being of work. has been under some
stress has been on diazepam only Actions:
TRAMAL SR 100 SR TABLET 100mg ceased
Prescriptions printed:
March 12 2004
still having a lot of pain between periods of pain free. has not had any
relief from physio, but has not had any u/s and wants to try Chiropractor.
To start on reducing course of prednisolone and see if it helps.
Friday, 26 March 2004 wants to try increasing hours. At present on one twice a day. to reduce by half tab per week and cease over 3/52. review in 2/52 w/view to increasing hrs still a bit more.”
38 Pausing at this point in the chronology of treatment, there appears to be nothing in the notes, or in Dr Venes’ report of 23 March 2004, which suggests that in that period of six weeks or so, the cause of her incapacity for work became back pain of lumbar origin rather than thoracic. There is nothing in the notes which explains why the two certificates, issued on 20 and 23 February 2004, refer to lumbar back pain.
39 Chest and thoracic x-ray films were normal.[19]
[19] DCB 134, taken on 9 February 2004
40 In his report of 23 March 2004 Dr Venes continued:
“Her diagnosis is not yet clear, but she may well have torn a fibre of her left subscapularis muscle. This normally would start to heal around 6 to 12 weeks – if a strain only the time is usually less. In any case I would anticipate it should resolve in a matter of 1-2 months. I believe her condition to be caused by work and work would aggravate it. Her current symptoms are pain and burning and a tightening of her upper back muscles between the shoulder blades and a sore spot over the middle of left subscapularis muscle. This is exacerbated by forward pushing and raising of her left arm and shoulders. These signs are all elicited during the examination also.”
41 Dr Venes then discussed various treatment options.
42 Again, comparing the content of that report (written when all these events were quite recent) with the clinical notes, there is quite a bit more in it than can be found in the notes. For example, there is no examination finding recorded (after the first presentation on 6 February) in the period presently being examined.
43 On 1 April 2004 Dr Venes recorded:
“has had a lot of pain again and pain now in renal areas. To have U/S
and Urine M&C. Actions:
Prescriptions printed:
PROTHIADEN CAPSULE 25mg one nocte.”
44 On that day the doctor issued a “Certificate of Capacity” in which he recorded the injury as “L upper back pain” and his diagnosis as “painful spasm left infraspinatus” and noted that the plaintiff had been having chiropractic manipulation and Prothiaden, and included the comment:
“has previously been on reduced hours 4 hours daily but has been unable
to continue due to pain.”[20]
[20] DCB 47
45 On April 20, 2004, the plaintiff saw Dr Sobia Rashid at the Ararat Medical Centre. The note reads:
“backache. is on modified duties working 5hrs a day.
tender left renal angle. urinalysis erythrocites.? renal calculus. to discuss with Dr TV re frther workup Ct scan. not happy at the thought and thinks her symptoms are related to her rt shoulder. could be a combination of
muscular spasm and renal colic.??
shaky, tremulous. says is not taking any medication as nothing helps.
Work cover cert for 2/52 and r/v with dr Venes.”
46 Two days later, on April 22, 2004, the plaintiff was seen again at the Ararat Medical Centre, this time by Dr Derek Pope. The note reads -
“Intermittent pain in mid-thoracic spine since Jan. Has been getting
manipulation with some success but flares up intermittently at work with
muscle spasm Examination:
tendet T5-7 left lat ++ with some 2ry spasm
shoulder joint normal and normal ROM
Reason for visit:
left facet joint injury thoracic spine
Plan:
w/c cet 2 days,
heat/analgesia
manip? tomorrow”
47 In the next entry, May 4 2004, Dr Venes noted:
“has been reasonably free of spasm over the last few days. Also had
some funny reaction to Prothiaden so stopped
......... not taking any medication at present. Still having manipulation at
Greg Sims with some improvement.”
48 On June 4 2004, Dr Venes noted:
“has felt better and needs clearance Cert. to start on 7/6” –
the certificate issued that day comments “has settled down”.[21]
[21] DCB 55
49 June 23, 2004, seen by Dr Lawrence Chan, who recorded:
“L sided musculoskeletal pain under L scapular, happened at work, no
injury/lifting prior.
Examination:
mild tenderness under L scapular, FROM[22] head/neck/ L shoulder.
Management:
nurofen, cert 1 day.”
[22] Full range of movement, I presume
50 July 1, 2004. Dr Rashid:
“same recurrent problem, pain left shoulder mainly scapular. some
tenderness muscles scapular border no restriction of shoulder
movements.
muscular pain. seeing chiropractor
cert 1/7 and for modified duties for 10 days and then normal duties.
review prn.”
51 Between 1 July 2004 and 27 January 2005, the plaintiff was seen on four occasions for unrelated problems.
52 On the 27 and January 2005 she saw Dr Peter Haslau. His note reads:
“AME worker, W/COVER payments ceased, but cannot work due to
undiagnosed L infrascapular pain, managed by a chiropractor twice a week, which does not appear to improve the problem. Describes pain as burning, freezing, pulling.
Examination: Pain at approx. L. T5 facet or T/V process area. overlay, I feel. TDR form completed, for sickness payments.”
53 For reasons unexplained, on 2 May 2005 Dr Greg Sim, chiropractor, issued the three separate certificates covering the period from 16 December 2004 to 28 February 2005.[23] Each of them certified that the worker was suffering from the thoracic back pain and that the diagnosis was “thoracic mechanical back pain with associated muscle spasm”.
[23] DCB 61 to 66
54 Dr Sim wrote a report dated 18 March 2005, which contains little detail as to the period over which, or the frequency with which, he had treated her – although it is apparent from the notes already referred to that she had been having chiropractic treatment since early in 2004. His report records the fluctuating nature of her condition and describes:
“… this latest episode exhibits possible disc implications, which could
only be proven by CT scan or MRI, which have not been performed.”[24]
[24] PCB 33
55 On February 3, 2005, there is a long entry in the notes by Dr Bertuch. It sets out the history of the plaintiff’s problem and other injuries and records:
“….. O/E tender over thoracic spine,... pain felt to L near scapular border,
moves tentatively.
Actions:
Diagnostic Imaging requested: CT – Spine – Thoracic.”
After reference to her work duties appears the entry -
“Diagnosis:
...? discogenic injury
rev 1/52”
56 Dr Bertuch saw her again on 10 February 2005 and again in March, April and May 2005, during which time he records prescriptions for Capadex, Naprosyn and certificates he issued for various limited work activities.[25]
[25] The last entry in exhibit D. Certificates of capacity relating to this period are at DCB 67 to 76, the last of them, dated 1 July 2005, certifies the plaintiff fit to resume normal duties from 4 July 2005.
57 Exhibit 2 then continues the Ararat Medical Centre’s notes and there appears to be no mention of the plaintiff’s back injury after June 2005.
58 Keeping things in chronological order, it is worth noting that, in the meantime, the plaintiff was seen on the defendants’ behalf by the orthopaedic surgeon, John Bourke, on 22 June 2005.[26] Mr Bourke obtained a history that she had had pain in 2002 in the vicinity of the interior angle of her left shoulder blade which had settled with physiotherapy and that this had recurred on 2 February 2004. He recorded that she has had repeated episodes of spasm and electric shock feelings in the same area and that, at the time of examination, her symptoms had improved to the point where she was sore on some days, and pain free on others, but that when she is sore, it is in the left side of the mid back between the inferior angle of the shoulder blade and to the left of the mid line.
[26] DCB 113
59 On examination Mr Bourke found:
“lateral rotation to the right is restricted with pain being experienced on the left side near the interior angle of the shoulder blade. She is tender over the inner aspect, next to the interior angle of the left shoulder blade.”
60 At that time, it was Mr Bourke’s opinion:
“… This lady either has a thoracic disc injury or has inflammation where a rib joins a vertebra i.e. either at the costo-transverse or costo-vertebral joints. This is on the left side and is at the level of T7–T8.”
61 Mr Bourke cautioned her against rushing back to normal duties because she still had pain and thought further investigations and/or injections into the affected areas might help with her symptoms. As to her prognosis, he thought she was likely to have intermittent symptoms for some time, which should eventually settle.[27]
[27] DCB 116
62 Her next presentation for a work-related problem was to Dr Abra Fransch, in February 2006 regarding epicondylitis.
63 Following the notes through 2006, anti-inflammatory medication and steroids seem to be prescribed following the elbow problem.
64 No back problem is recorded until August 15, 2006 when Dr Bertuch has recorded:
“sore lower back recently, but okay now but pain radiating cephad to neck
on R side in suprascapular region, stiff neck with limited rotation”
65 On 4 October 2006 Dr Bertuch records:
“sore back for 4 yrs ... occurred while working at AME, painful spasms in
L side back medial to scapula. Referred to J Nelson.”
66 Pausing here, it seems that no note, or certificate, concerning the injury upon which this application is based, was made in the period from 1 July 2005 to 4 October 2006.[28]
[28] I should also note that whether it was proper to infer from this absence in the notes that the thoracic complaints were not mentioned or had improved is a question not explored with any witness in the case, or much referred to in submissions.
67 Mr John Nelson, orthopaedic surgeon, saw the plaintiff on 20 November 2006, on a referral from Dr Bertuch in relation to thoracic back pain. His report[29] dated 15 July 2008, states:
“On examination the only abnormality was some acute tenderness over the spinous process at T5 and T6. There was some reduction in movement in thoracic extension and rotation.”
[29] PCB 36
68 Mr Nelson’s report continues:
“I felt this was a difficult problem for her and most likely to be soft tissue in nature. It was unlikely there was any surgically treatable problem. However because of the continued symptoms in relation to a work- related event I thought it was worth doing and MRI. I thought it was unlikely this would find any abnormality, and this was confirmed on that result. (I enclose copy of the report).
The only other treatment I suggested that might be considered was a local steroid injection to the area of maximum tenderness but she did not return for further review.”
69 As the defendants’ submissions pointed out, the plaintiff’s affidavit does not specify what region of her back was injured, and the early medical certificates wax between the thoracic spine and the lumbar spine, as we have seen. This, the defendants submitted, pointed to great uncertainty as to the location of the alleged injury, in turn making identification of compensable injury impossible.
70 Whilst it would have been much better for those preparing the plaintiff’s case to have addressed the issue specifically in the materials, I am satisfied, up to this point in the chronology, after examination of the contemporaneous records, that the plaintiff regularly complained of and was treated for pain which she located in the region between her thoracic spine and her left shoulder blade.
71 Returning to Exhibit 2, on April 17, 2007 she was seen again by Dr Bertuch, who noted the MRI was “essentially normal” and wrote a prescription for the steroid injection Mr Nelson had suggested, and this was administered into the medial left scapular region on April 26, 2007.
72 The plaintiff was next seen on 6 May 2007. The notes record that the “injection helped for a while, now radiation of pain to contralateral side and down L arm.”
73 On a 17 July 2007, Dr Bertuch wrote a brief report,[30] describing her problem as “painful back in thoracic region”, noting that she continued to suffer pain in the chest, that rest, analgesics and anti-inflammatories had not helped and that the MRI was normal. He reported that a local injection helped for a short while only and that her pain prevented return to work.
[30] PCB 34
74 The plaintiff was seen at the clinic on regular intervals throughout 2007. Apart from the provision of certificates and prescriptions, not much is recorded in the notes concerning her back pain. The last entry for 2007 simply states “back still sore, but tablets ‘take sting out of it’.”
75 When next seen in March 2008 (noting that by now the Certificates of Incapacity were being provided at three monthly intervals) the notes record
“that her back still plays up .. eg got sore after sitting in church after
father’s funeral yesterday”
76 In June 2008 the note records
“back getting worse, back still sore from trip to Warrnambool 3/52 ago.
Unable to twist, bend etc, gets spasms ++”
77 She was seen by Dr Derek Pope at the clinic on 7 August 2008. The note records:
“painful lower back pasr (sic) 36 hours – no precip event, no lifting etc”
78 In the next two months the plaintiff was seen nine times in respect to what appears to have been severe acute low back pain, investigated by CT scan and treated with narcotic analgesia. She was also treated with an injection of Celestone near the left sacroiliac joint.
79 The entry on 7 October 2008 includes
“pain in back eased ? from injection or is on glucosamine currently.”
80 In 2009, the notes record the prescription of strong analgesics, complaints of sore back, complaints of grabbing pain in back and pelvic region causing left leg collapse, but no notes specific to the injury relied upon here. (In the documentary evidence, the only certificate of capacity written in the year 2009, is dated 18 December 2009, and concerns a thoracic back injury).[31]
[31] DCB 104
81 On 18 March 2010, Dr Bertuch recorded:
“lower back pain in sacral region, radiates down at L leg to ankle aggravated by most things, relieved by lying down. pain in thoracic region still present felt mainly as spasms. ... CT scan - Lumbar spine. (pain in low back with radiation down L leg to the ankle.”
82 The plaintiff was seen twice in April 2010 with left shoulder pain, and then in June 2010 she was seen for WorkCover certificates.
83 On 21 May 2010 Dr Bertuch wrote a short report:
“I have read of the medical panel assessment and agree with them about their findings. Christine has pain but very hard to prove biomechanical problems that would explain her pain. This pain however makes it most unlikely that she would be able to be meaningfully employed. Retraining would be difficult because of her schooling level. I have included copies of her numerous investigations for your perusal.
84 Seen by Dr Derek Pope on 17 September 2010, she complained that her trip to Warrnambool to see Mr Radley had “flared up” her back because of potholes on the road and she was found on examination to have
“very stiff thoracic spine and paraspinals.”
On that occasion, and on the next in October 2010, the reason for the visit is recorded as
“left facet joint injury thoracic spine.”
85 Lastly, in a report[32] dated 27 January 2011, Dr Bertuch wrote
“Essentially there is no change in her condition and I have included a couple of consultation documentations33 to give you some idea as to how her back effects her. There is no major anatomical defect to give a succinct diagnosis, but I have no doubt that her pains are genuine and that if she was to return to work, she would quickly succumb to her injuries.”
[32] PCB 41.1
86 Before leaving the chronology of medical treatment I should for completeness mention that two pieces of correspondence concerning the plaintiff’s right elbow condition (diagnosed as tennis elbow) for which she received medical treatment, chiropractic and physiotherapy in 2002 were tendered.[34]
[34] Exhibit 3 and Exhibit 6
87 In a letter from a Dr Chris Jackson, to the chiropractor Dr Greg Sim, Dr Jackson said that the plaintiff suffered from extensor tendonitis of the right elbow, for which ultrasound was the best treatment and expressed his concern in this way:
“I’m a bit concerned that this lady may go on to develop a chronic pain syndrome and I have my doubts as to her ability to return to work for her previous employer in the long run, although she tells me that lighter duties are available. The nature of the light duties is that some grip of both hands is required and at the moment she would not be able to perform this.”
Radiology
88 The investigations Dr Bertuch referred to in his last report reveal little of significance to any of the medical practitioners who have given opinions in the case. They included a CT scan of the thoracic spine on 14 February 2005, an MRI of the thoracic spine on 9 March 2007, A CT scan of the lumbar spine on 18 August 2008 and of the abdomen and pelvis on 18 September 2008. On 24 March 2010 there was a CT scan of the lumbar spine.[35] On 4 May 2010 there was an x-ray of the chest and left shoulder, and on 18 May 2010 a left shoulder ultrasound.
[35] Exhibit 4
Medico-legal reports
89 Medico-legal reports were tendered from eight practitioners and I shall deal with them in the order in which they first examined the plaintiff.
90 The plaintiff was examined on the defendants’ behalf by Dr Andrew Miller, an occupational health consultant. When he first saw her on 18 January 2005 she was complaining of pain and muscle spasm in her upper back, causing difficulty with household chores, and for which she was having chiropractic treatment twice a week and taking Nurofen. He found no abnormality whatever on examination (in particular he found normal alignment of the cervical and thoracolumbar spine, and no tenderness). Dr Miller thought her symptoms were most likely attributable to constitutional degenerative changes in the spine and that her employment was not a significant contributing factor to her injury.[36] He re-affirmed this opinion in a supplementary report dated 23 March 2005.
[36] PCB 108
91 On the 29 May 2007 the plaintiff was re-examined by Mr John Bourke in respect of her thoracic back pain (apparently he had seen her in relation to a left elbow injury in May 2006, and, as already noted, he had examined her in mid 2005). On this occasion the plaintiff gave a history that her pain had deteriorated in July 2006, and deteriorated further in March 2007 and was, at the time of examination, present all day, every day, and situated to the left of the mid-line and medial to the medial border of her left shoulder blade. He set out his examination findings[37] and, in answer to a question as to whether her condition had resolved said:
“She is complaining of pain in her posterior rib cage region particularly to the left of midline. Today there was no clinical evidence of a problem in this area nor is there radiological evidence.”
[37] Relevantly, the only finding in relation to the thoracic region was ““...a mild restriction of lateral rotation to the left with pain described at the extreme of the movement.”
92 Mr Bourke thought she was then unfit for her previous duties.
93 On the defendants’ behalf the plaintiff was examined by Mr Max Wearne on 25 January 2008.[38] The history taken by him included a description of her current symptoms:
“...she told me that she was aware of constant and localised pain in the same area i.e. between the vertebral border of the left scapular and the upper thoracic spine.”
[38] DCB 120
94 His examination findings identified no abnormality, although she identified the area between the left scapula and the upper thoracic spine as the site of her pain. He reviewed some of the radiology, which revealed no abnormality. It was Mr Wearne’s opinion that the complete absence of findings and of radiological abnormality led him to conclude that she had had an initial muscular injury to the upper back as a result of her employment, from which she had substantially recovered and that:
“… this has been supplanted by a massive psychogenic overlay which is
causing her to perpetuate her symptoms.”
95 Mr Kenneth Brearley, general surgeon, examined the plaintiff on three occasions, 1 August 2008, 20 January 2010 and 24 September 2010.
96 On the first occasion, Mr Brearley recorded her current complaints as “constant discomfort or pain in the upper back between the shoulder blades” worsened by various activities and gradually worsening.[39] On examination she indicated that the site of her pain was to the left of the midline at the level of T5 and T6, close to the border of the scapular. He found no tenderness in this area.
[39] PCB 43
97 Mr Brearley thought the diagnosis was not clear but in his view:
“The diagnosis is thus of injury to the soft tissues of the left side of the vertebral column at the level of the mid thoracic spine. The structures involved would be the underlying interspinous musculoligamentous structures.”
98 He went on to say that he would normally expect some resolution of these symptoms over time. He felt that she was quite unfit for any manual labour. As to further treatment he said:
“A pain management course would be helpful for her. This would include psychological counselling to help her cope with the pain. It would be advisable to reduce her analgesic intake if possible.”[40]
[40] She was taking six Capadex capsules per day on average
99 As to her prognosis and degree of disability, Mr Brearley thought she was significantly disabled
“... as a result of her back injury and ongoing pain”
and that there was no likelihood of improvement in the foreseeable future.
100 Mr Brearley re-examined the plaintiff in January 2010 and prepared a report dated 20 January 2010.[41] He took a history that she was considerably worse and that the pain in the left side of her upper back was quite constant. In addition, she told him of the onset of low back pain and left sided leg pain about 12 months before this consultation. Again she pointed to the left side of T5 and T6 as the site of the pain where, on examination, he found no tenderness or other abnormality.
[41] PCB 49
101 Mr Brearley’s opinion was:
“The reason for her ongoing symptoms remains elusive. Physical examination and imaging, both MRI and CT, show no abnormality. The presumptive diagnosis remains injury to the soft tissues of the interspinous ligamentous structures.”[42]
[42] PCB 51
102 Mr Brearley saw the plaintiff for the third time in September 2010.[43] On this occasion the plaintiff told him that there had been no change in her constant left-sided upper back pain and that her low back pain and left-sided leg pain was not nearly as severe as the upper back pain. She was then having physiotherapy for left shoulder pain. She was still taking Capadex. Again there was no abnormality on examination. Once again, Mr Brearley thought she had no capacity for employment.
[43] His report dated 24 September 2010 appears at PCB 61
103 In evidence was the Certificate of Opinion of the Medical Panel,[44] given on 21 November 2008. It appears that medical questions were referred to the Medical Panel by His Honour Magistrate Wright on 22 September 2008. Although the documents which accompanied the Magistrate’s referral were not in evidence, I was informed in opening, and this seems to be confirmed by the nature of the medical questions the Panel was asked to answer, that the dispute before the Magistrates’ Court concerned the nature and compensability of the plaintiff’s medical conditions and whether or not the plaintiff had a current work capacity.
[44] Given under Part III of the Act
104 In the Medical Panel’s opinion, the nature of the plaintiff’s medical condition relevant to the alleged[45] injury of back pain, was:
“... that the plaintiff is currently suffering from:
(a) mild residual muscular dysfunction following a substantially resolved soft tissue injury of the interscapular region and a chronic pain disorder, relevant to the alleged back pain injury.”
[45] Alleged, presumably in the Magistrates’ Court proceedings.
105 In answer to further questions, it was the Medical Panel’s opinion that employment was a significant contributing factor to the plaintiff’s “back pain injury” and that she did not then have a current work capacity and that her incapacity was still “materially contributed to by” the back pain injury.[46]
[46] It was not suggested that I was bound by this opinion (Pope v WS Walker & Sons [2006] VSCA 227) though I may have regard to it, as another medical opinion in the case, perhaps more independent than some.
106 On 20 October 2009, the plaintiff was examined by Dr David Kotzman on the defendants’ behalf. The purpose of the examination was to conduct an assessment under the 4th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (“the Guides”) in respect of injuries for which to the plaintiff’s claim for impairment benefits had been accepted by the defendant.[47]
[47] By a letter dated 22 October 2009 the defendant accepted the plaintiff’s claim under section 98C, 98E in respect of an injury it described as “substantially resolved soft tissue injury to the inter-scapular region and chronic pain disorder” PCB 109, and advised the plaintiff that it had determined that she was suffering from a combined whole person physical impairment of 5%.
107 At that time the plaintiff’s complaints included:
“constant sharp, pulling, burning pain in mid back, in the region of the left shoulder blade, which radiates through the left side of the chest and the left shoulder and to a lesser extent into the left side of the neck.”
108 Dr Kotzman found little on examination, other than mild restriction of the range of motion of her neck and thoraco-lumbar spine and expressed his opinion that:
“This woman is suffering from persisting thoracic spine dysfunction, as a consequence of a chronic pain disorder, relevant to the accepted substantially resolved soft tissue injury of the interscapular region and a chronic pain disorder injury ...
Based on the findings on thoraco-lumbar examination, the worker has clinical signs thoraco-lumbar injury, without evidence of radiculopathy or loss of motion segment integrity.”[48]
[48] DCB 106-107
109 In April 2010, the plaintiff was examined on the defendants’ behalf by Dr David Ho, an occupational health consultant. Dr Ho examined her for the purpose of “assisting in reviewing the worker’s and medical and other health services and assisting in considering the worker’s weekly payments entitlements.”[49] Dr Ho took a history from the plaintiff and conducted an examination. He regarded that examination as essentially normal in respect of the symptoms with which this application is concerned. Dr Ho concluded:
“I do not believe Ms Hinchliffe currently has a physical condition or injury, which is related to her employment.[50] I do not believe Mrs Hinchliffe had sustained any work related injury to her neck or shoulder or upper back in the absence of any specific injury or incident or any changes in work practice.”
[49] Doctor Ho’s report commences at DCB 126
[50] DCB 131
110 Dr Ho thought she was fit for her pre-injury employment on a full-time basis.
111 On behalf of the plaintiff’s solicitors, the plaintiff was examined by Mr David Brownbill, neurosurgeon, on 5 October 2010.[51] At that time her complaints were of left-sided back pain at the level of the lower shoulder blade, present all the time, fluctuating in severity, and when severe shooting across the front of the chest and at the back across to the right shoulder blade.
[51] PCB 64
112 On examination her thoracolumbar spinal movements were three quarters of full range in flexion and extension and otherwise full. There was:
“a tender focal spot just to the left of the midline in the thoracic spine at
the level of the scapular lower angle.”[52]
[52] PCB 66
113 Mr Brownbill reviewed the radiological and medical reports that had been provided to him in some detail and concluded:
“On the history provided, she has suffered some likely musculo ligamentous injury to structures about the mid thoracic spine giving rise to pain, but without neurological damage.”
114 It was Mr Brownbill’s expectation that “pain will continue in a fluctuating manner indefinitely.”
115 In answer to further questions concerning his report addressed to him by the plaintiff’s solicitors Mr Brownbill wrote on 27 October 2010:
“… I consider it likely that as a result of her physical activities in general on 4th February 2004 when she had been sitting at her desk performing her full normal process work, she on probability had suffered some musculo ligamentous injury to structures about the mid thoracic spine but without neurological damage.”
116 Mr Brownbill stated, as he had earlier, that the assessment of such an injury lay within the province of orthopaedic surgeons.
117 On the same day as she had seen Mr Brownbill, the plaintiff was examined by Mr John F O’Brien, orthopaedic surgeon.[53]
[53] Mr O’Brien’s report is dated 20 October 2010, PCB 70
118 Mr O’Brien took a history which included a description of “constant pain localised to the left, approximately the mid thoracic region.” His examination findings included that extension to 10° precipitated complaint of pain to the left of the mid thoracic spine. Rotation to the right caused the same symptoms at 10° and there was minimal tenderness at the site of pain just to the left of the spinous process at T5-6 medial to the medial border of the left scapular.
119 In Mr O’Brien’s view:
“Current signs are indeed very mild relating to some reproduction of pain on thoracic extension and rotation with minimal tenderness localised to the left spinous process of T5-6.”
120 He thought it difficult to define, on this clinical basis, the exact anatomical cause of pain and therefore concluded, on the basis of the patient’s history, that her non-specific thoracic pain had now turned into a “chronic pain syndrome” given the total lack of response to treatment.[54]
[54] PCB 72
121 Mr O’Brien thought her prognosis was poor, stating:
“In fact given the patient’s employment history and the nature of her chronic pain I would suggest this patient can now be regarded as totally incapacitated. In fact I would suggest this patient is not likely to return to any form of gainful employment and thus I would consider the patient is totally and permanently incapacitated.”
122 For completeness I should mention that the plaintiff attended upon Bill Radley, psychologist and vocational assessments specialist, for a “Vocational Assessment Review”.[55] Mr Radley thought she had no capacity for any type of employment in the future.
[55] PCB 76
123 On 5 August 2010 the plaintiff completed a “Workhab Functional Capacity Evaluation” with Mark Zampatti a physiotherapist.[56] Apparently, the plaintiff was referred to him for an assessment of her current functional capacity and to “correlate the results against her capacity to return to employment”.
[56] PCB 52
124 It appears from Mr Zampatti’s report that the plaintiff was put through a number of manual handling and exercise tests and, other than to say that he thought her results demonstrated reasonable consistency, his report does not shed much light upon the nature of her injury.
125 I have set out in detail the documentary material upon which the parties have relied in this proceeding because the complete absence of cross examination of any of the witnesses leaves to me the difficult task of determining the weight to be given to conflicting opinions, without ever having their evidence or opinions tested, or other views put to them.
126 Nor has there been any exploration with any of the medical witnesses as to what is meant, in the context of this plaintiff’s symptoms, by the use of the expression “chronic pain disorder” or “chronic pain syndrome”.
Submissions
127 At my request each of the parties provided written submissions to which they then spoke briefly.
128 The defendants’ submission contained a review of the much of the medical material, submitting that although there were localised signs and tenderness early on, the more recent opinions pointed to the existence of a chronic pain disorder. Particular reliance was placed upon Mr Wearne’s opinion[57] and it was submitted that, at best:
[57] That is that an initial muscular injury had been supplanted by a massive psychogenic overlay and that her symptoms were psychogenic in origin
• there had been a muscular injury; • that it was not possible on the evidence to identify any organic injury that would result in ongoing symptoms; • that paragraph (c) was expressly not relied upon; and “accordingly, if it be found that the cause of the plaintiff’s problem is a chronic pain syndrome, that must be ignored for the purpose of this application (See section 134AB(38)(h) and (i))”;[58] • that the specific local tenderness, seen in earlier examinations, was not evident more recently. [58] Paragraph 27 of the defendant’s submissions
129 In its written and oral submissions, the defendants contended that the plaintiff had failed to establish that the incapacity for work (which in the end was not in dispute) did not result from a psychiatric or psychological consequence of physical injury. It was submitted that it is not possible to identify any organic injury that would result in the symptoms reported and so, if the cause of the plaintiff’s symptoms is a “chronic pain syndrome” or “chronic pain disorder” the symptoms must be ignored for the purposes of this application because of the operation of sub sections (h) and (i) of subsection (38). In this regard the defendant relied upon the observations of Maxwell P in Mutual Cleaning And Maintenance Pty Ltd v Stamboulakis[59] and the more recent decision of Toyota Motor Corporation Australia Limited v Jayatilake [ 2008] VSCA 167.
[59] [2007] VSCA 46, paragraph 9, after referring to the analysis in additional materials filed on the appeal at the Court’s request,
130 The defendants’ submission assumed that the expressions “chronic pain syndrome” or “chronic pain disorder” used by the medical commentators in the case to describe the plaintiff’s condition were, whichever variant is used, by definition, “psychological or psychiatric” consequences of the physical injury relied upon. It was submitted that this assumption was properly founded by reference to the observations of Maxwell P in Stamboulakis and was supported by a comparison with some of the illustrative examples found in the judgement of Ashley JA in the later case of Jayatilake. Further, Mr Jens, junior counsel for the defendants, informed me that he had “never found” a case in which a chronic pain syndrome or chronic pain disorder had been found to be a paragraph (a) condition and that it was “beyond doubt” that the doctors in this case were using those expressions to describe a psychiatric or psychological condition.
131 The defendants also made reference to the most recent report of the treating general practitioner – where he attached copies of recent entries in the notes “to give you some idea as to how her back affects her”[60] as supporting their submission that a range of other complaints were reported by the plaintiff.[61]
[60] PCB 41.1,
[61] When examined, PCB 41.2, 41.3, the notes do record complaints of thoracic pain and stiffness, as well as complaints of other areas.
132 On the plaintiff’s behalf it was submitted that the defendants’ contention that no physical injury could be identified was hollow because -
•
The defendant had not challenged a word of the plaintiff’s account of her symptoms and disability, or their continuity, over the past seven or so years;
•
The defendant had accepted the claim for weekly payments in respect of physical injury to the plaintiff’s mid back;
•
The plaintiff is still in receipt of weekly payments under the Act for that injury;
•
The defendant had accepted,[62] as recently as late 2009, that the plaintiff had a physically based permanent impairment of the function of the mid back.
[62] Ansett v Taylor [2006] VSCA 171
133 Further, it was submitted that the weight of the medical evidence was that the plaintiff had suffered a musculo-ligamentous injury which continued to cause her chronic pain.
134 The submission referred also to the observations of those who have seen the plaintiff regularly, and managed her condition over many years, making the point that it was accepted by those doctors that her symptoms were genuine and were easily exacerbated by physical activity.
135 As to the medical evidence, it was submitted on the plaintiff’s behalf that no treating doctor had ever diagnosed a psychiatric or psychologically driven pain disorder; that the plaintiff had consistently identified the same portion of her anatomy as the source of her pain to a great number of the doctors in the case; that even Dr Kotzman found clinical signs of thoracic spinal injury as late as October 2009 and that the opinions of Mr Wearne, and earlier Mr Bourke and Dr Ho, should be discounted as those doctors did not accept the plaintiff’s complaints of localised pain to the left of her thoracic spine.
136 In response to the defendants’ submission, that by definition the expressions “chronic pain syndrome” and “chronic pain disorder” were necessarily references to psychological or psychiatric conditions, reference was made to the observations of Ashley JA in Veljanovska[63] at paragraph 40, where his Honour observed, on the facts in that case, that a finding that a chronic pain syndrome was a paragraph (a) injury may also have been open.
[63] [2005] VSCA 227
Findings
137 On balance I am satisfied that a careful examination of the whole of the evidence in the case, including the medical evidence, establishes that the plaintiff suffered compensable injury to her back in the region between the thoracic spine and the inferior angle of the left scapular in February 2004. At various times the diagnoses considered or offered have included thoracic disc injury, inflammation at the costo-transverse or costo-vertebral joint, muscle strain or musculo-ligamentous injury. Although no imaging studies have been able to demonstrate any pathology which is a likely cause of the plaintiff’s symptoms, I am satisfied, on balance, accepting, as I do, that the plaintiff has continued to experience pain in the same region of her back from the time of the injury until the present time, that the plaintiff sustained compensable physical injury to that region of her spine. I am also satisfied that it is this injury which continues (despite the absence of a certain diagnosis as to its cause or nature) to be a cause of the symptoms of pain and stiffness from which the plaintiff suffers.
138 Further, I am satisfied, on the whole of the evidence, that the plaintiff’s experience of mid back symptoms renders her totally incapacitated for suitable employment[64] and likely to remain so indefinitely. The plaintiff’s evidence that she could do no work because of her symptoms, and the ease with which they are exacerbated, is simply not challenged, and, in any event, this finding is supported by the weight of the medical evidence I have set out.
[64] Having regard to the factors set out in the definition of suitable employment in s.5 of the Act
139 The consistency of complaint and medical opinion, over the years since the original injury was sustained, also persuades me that the compensable injury to her mid back in February 2004 still materially contributes to her current symptoms and incapacity. That this is so is the view of the plaintiff’s treating doctors, the Medical Panel and a number of the medico legal examiners.
140 It follows that, as she is now, the plaintiff satisfies the loss of earning capacity tests set out in section 134AB, and, with one reservation to which I shall now turn, would otherwise be entitled to the leave sought in respect of both the loss of earnings consequences and the pain and suffering consequences of that injury.
141 As already set out, the defendant’s main contention in the case is that the plaintiff’s experience of pain and the incapacity it causes must be disregarded by reason of ss 38 (h) and (i) because they are psychological or psychiatric consequences of the physical injury.
142 I have concluded, on balance, that the plaintiff’s experience of chronic pain in the thoracic region to the left of her spine, and the disabling consequences of her experience of that pain, are of organic origin, and are not psychological or psychiatric consequences of her physical injury.
143 I have reached this view for a number of reasons. First, I accept the plaintiff’s evidence:- that she actually experiences the pain, that it is disabling, that it is easily exacerbated by activity and that she gets some, but not complete, relief from analgesia (and alcohol). These matters are in my view consistent with physically based pain.
144 Secondly, the proposition that her pain is now of psychological or psychiatric origin or cause has not been put to any of the doctors in the case.
145 Thirdly, there is no mention in the treating doctors’ reporting or clinical records that suggests she has been diagnosed with, or treated for, any psychological or psychiatric condition, and, apart from a very brief period, no medication been prescribed for such a condition.[65]
[65] Apart from Prothiaden for perhaps a month in 2004
146 Fourthly, I do not accept the opinions relied upon by the defendant that the plaintiff suffers from a disorder of the “functional overlay” type. In my view, an examination of the symptoms of which the plaintiff has complained over the years shows that this is not a case where a local injury has produced widespread chronic symptoms affecting anatomically unrelated parts of the body, much less an hysterical presentation when examined. Rather, it is a case in which the “core” complaint has been consistent and disabling. In my view, detailed examination of the treating doctors’ records, certificates and correspondence shows a long and relatively consistent history of complaint of pain and disability arising from a specific, well localised, region of the plaintiff’s thoracic spine on the left side. True it is that she has at times been treated for lumbar pain with radiation, and for arm injuries, but her evidence that these other symptoms have resolved was not challenged, and the complaint of thoracic pain has persisted throughout.
147 For these reasons, I am satisfied that her total incapacity is a consequence of physical injury in the region between the thoracic spine and the left scapular border, and that her incapacity is not a psychological or psychiatric consequence of that injury.
148 It follows that the plaintiff is entitled to the leave sought.
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These were the notes of 17 September 2010 and 17 January 2011, PCB 41.2,.3
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