Hubanic v Beauty Bazaar Pty Ltd
[2013] VCC 597
•30 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-01787
| ESMA HUBANIC | Plaintiff |
| v | |
| BEAUTY BAZAAR PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 May 2013 | |
DATE OF JUDGMENT: | 30 May 2013 | |
CASE MAY BE CITED AS: | Hubanic v Beauty Bazaar Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 597 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – injury to the cervical spine with an associated condition of temporomandibular joint disorder – impairment of body functions of the cervical spine and jaw.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for the injuries suffered by her by reason of the incident the subject of this application.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie | Henry Carus & Associates |
| For the Defendant | Ms B A Myers | Hall & Wilcox |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding claiming pain and suffering damages for injuries suffered by her in the course of her employment with the defendant. The injury relied upon by the plaintiff is injury to the cervical spine with an associated condition of temporomandibular joint disorder (“TMD”). The impairment of body functions are those of the cervical spine and the jaw.
2 There is no issue that the plaintiff suffered a fall in the course of her employment with the defendant on or about 26 April 2004, in the course of which she sustained an injury to her cervical spine.
3 The issues which arise for my determination in this case involve:
(i)whether the plaintiff presents with a Pain Disorder in the cervical spine which is non-organic in origin and if so, whether the plaintiff has “disentangled” to the requisite degree, the effect of any organic condition with which she presents in her cervical spine as the result of her injury, and any non-organic condition with which she presents;
(ii)whether the plaintiff’s TMD is a consequence of the cervical injury the subject of this application;
(iii)whether the organic consequences arising from the cervical injury suffered by the plaintiff the subject of this application meet the statutory definition of “serious injury”.
4 In the proceeding, the plaintiff relies upon three affidavits tendered by her dated 10 December 2010, 15 May 2012 and 29 April 2013 respectively, together with an affidavit of her mother, sworn 11 May 2013. The plaintiff also gave viva voce evidence in the course of the proceeding and was cross-examined. Otherwise, the parties rely upon medical reports and records tendered by them.
5 Little purpose is served in setting out in detail the content of the affidavits of both the plaintiff and her mother. It is not in issue that:
· The plaintiff is currently aged twenty-nine and was twenty years old at the time of her injury;
· That the plaintiff completed her Year 12 in 2001 and undertook a Diploma in Health Science in Wodonga, which qualified her to work as a beauty therapist;
· The plaintiff was an accomplished sportswoman having, during her school years, played competition tennis at a high level and having been appointed the sports captain at her school;
· From an early age, the plaintiff had been interested in “dressing up and doing hair and makeup”;[1]
[1]Plaintiff’s Court Book (“PCB”) 36
· Having chosen to train in beauty therapy, it was the plaintiff’s goal to open her own business as a beauty therapist. With this aspiration in mind, she moved from Albury to Melbourne, where she took up employment with the defendant.;
· At the time of her injury, the plaintiff had planned in the near future to set up her own business in company with a friend. The plaintiff’s aspiration in this respect was well-advanced, in that she, together with her friend, were, at the time of her injury, undertaking the renovation of a shop in Sydney Road, Brunswick from which the plaintiff’s practice was to operate;
· As the result of her injury, the plaintiff initially sought treatment from an osteopath, Dr Cliff Butler, and subsequently consulted a general practitioner, Dr Bowden. The plaintiff’s initial complaint to both her osteopath and her general practitioner involved the presence of acute left-sided neck pain. This condition initially incapacitated the plaintiff from work; however, by June 2004, the plaintiff was able to return to full-time employment with the defendant in which she undertook the normal duties required of a beauty therapist, with the exception of undertaking treatments which involved massage. Between July 2004 and the time she ceased employment with the defendant in July 2006, the plaintiff suffered “frequent flare-ups of increased neck pain and shoulder pain but managed to continue [to] work for Christina, but, as much as possible, tried to avoid pedicures and massages”.[2]
[2]PCB 13-14
· The plaintiff’s described reason for her cessation of employment with the defendant is in the following terms:
“Ever since the accident on 26 April 2004 I had ongoing neck and left shoulder region pain of a fluctuating nature; at times I would feel improved and then, particularly after a Thursday, would suffer increased symptoms; I was becoming very frustrated and sick of the ongoing pain that I was suffering whilst performing work as a beauty therapist and also concerned that I was letting my employer down. Accordingly, I sought alternative employment and managed to obtain a teaching position and so resigned from my employment with Christina at the Coburg business on 13 July 2006.”[3]
[3]PCB 14
6 Having ceased employment with the defendant as a beauty therapist, the plaintiff has, between July 2006 and the present date, undertaken a number of employment activities, including:
· teaching beauty therapy;
· acting as a travelling sales person distributing beauty products;
· working as a beauty therapist between January and June 2007, in the course of which the plaintiff suffered a flare-up of her symptoms such that “I finally decided in mid-2007 that I had to give away work as a beauty therapist; even though I loved the work, I continued to frequently get flare ups of neck and left shoulder pain and at times down my spine and down my left arm as a consequence of this work …”[4];
[4]PCB 15-16
· working as a receptionist for a plastic surgeon, Dr Allan Kalus, who subsequently appointed the plaintiff to manage his medical skin clinic, which employed three beauty therapists;
· working as a practice manager for a cosmetic company; and
· working in her current employment as a casual employee for a skincare clinic in Chadstone.
7 In the course of her employment with Dr Kalus, the plaintiff suffered flare-ups in her symptoms “lasting for two or three days every few months or so”.[5] In an attempt to manage the plaintiff’s symptoms, Dr Kalus injected the plaintiff’s neck region in October 2007 and referred the plaintiff for assessment by a neurologist, Dr White. In March 2008, Dr White referred the plaintiff to Dr de Graaff, the senior rehabilitation physician at the Epworth Rehabilitation Hospital in Camberwell, for management.
[5]PCB 16
8 Between the time of her referral to Dr de Graaff and the present date, the plaintiff’s management has been conservative and has involved the plaintiff employing medication to control her symptoms. This involves the plaintiff taking primarily non-prescription analgesia on a daily basis and Panadeine Forte less regularly (the latter being required to manage periodic exacerbations of her symptoms). In addition, the plaintiff is judicious in her range of activity so as to avoid exacerbating her symptoms, this attitude being demonstrated by the plaintiff regularly changing her employment to seek employment which did not exacerbate her symptoms.
9 At the present time the plaintiff employs either four to six tablets of Panadol or Nurofen each day to manage her symptoms. She also uses Panadeine Forte when she suffers flare-ups in her symptoms, this occurring “once a month to once every three months”.[6] On those occasions the plaintiff described a practice of taking two Panadeine Forte every four hours as directed by her doctor “for as long as my flare-up lasts”.[7]
[6]T23
[7]T23
10 In managing her TMD, the plaintiff employed a jaw splint which she wore at night which had been prescribed for her use by Associate Professor Gerschman, a specialist in orofacial pain and treatment of TMD. The splint is in the form of a mouthguard which, when in position, restricts the plaintiff’s ability to enunciate clearly.
11 The plaintiff described her present symptoms as involving:
(i)Frequent headaches –
“I generally wake every morning with a headache”.[8]
[8]PCB 30
(ii)Severe aching pain in her jaw which is such that –
“I often eat soft foods and cannot recall the last time I had something that required intense chewing like a steak. I can eat hard foods but I know I will be in more than my usual amount of pain the next day so I try to avoid chewy or hard foods.”[9]
[9]PCB 30
(iii)Neck pain which is constantly present in the form of moderate aching pain and which is the subject of periodic exacerbations, her condition being such that –
“I would estimate about once a month I have a significant increase in pain and about every two to three months a severe flare-up where I am bedridden for three or four days. When I have these flare-ups of intense pain in my neck and shoulder. At this time the pain is severe, not only in the left side of my neck but also down my left arm right down to my fingers and also around the muscles on the left side of my chest.”[10]
[10]PCB 30-31
The plaintiff said that to manage her flare ups of pain she employed Panadeine Forte or Nurofen Plus which medication made her sleepy stating:
“As this medication has a big impact on me, I do not wish to try anything stronger. I have found Nurofen Plus and Panadol sufficient for everyday use to take the edge of (sic) my pain enough that I am able to function throughout the work day.
(v)Difficulty getting to sleep and staying asleep by reason of aching pain in her neck, shoulder and jaw. The plaintiff employed herbal supplements to assist her to sleep. She said that she often lay –
“… awake because of pain and sleep poorly, which means I feel exhausted throughout the work day”.[11]
[11]PCB 25, PCB 31
12 As at the present date, the plaintiff continues to employ massage and osteopathic treatment in managing her condition. She funds this treatment herself, given the refusal of WorkCover to meet the costs associated with that treatment. In order to teach in the beauty industry, the plaintiff had been required to obtain a Certificate in Workplace Assessment Training. She obtained that certificate for a self-funded course which she undertook in Geelong.
13 The plaintiff described herself before the accident as a physically active person engaging either in gym work or running three or four times a week. She said that she had, since her accident:
· avoided running by reason of the fact that it impacted upon her neck;
· employed gym and yoga for the purpose of maintaining mobility and strength until early 2012, at which time she gave up those activities by reason of worsening pain in her neck and shoulder.[12]
· whilst she had the intention prior to her injury of pursuing her passion in touch football, and taking up tennis within a structured competition, she has not done so by reason of her symptoms.
The plaintiff’s viva voce evidence
[12]PCB 27
14 In the course of examination-in-chief, the plaintiff said that:
· prior to her injury, she would go either to the gym or go running three or four times a week.
· she had recently been prescribed Celebrex by her general practitioner, Dr Zheng, which she took every day, but at this stage she had not noticed any change in her condition.
· on a daily basis, she took four to six tablets of either Panadol or Nurofen and employed Panadeine Forte four hourly or as directed by her doctor when she suffered flare-ups of her condition, for as long as her flare-up continued and that these flare ups occurred once a month or once every three months.
· she consulted Professor Gerschman every six months to monitor and adjust her splint, and that she continued to employ herbal remedies to assist her to sleep.
Cross-examination of the Plaintiff
15 The plaintiff was cross-examined as to a number of medical conditions from which she suffered prior to sustaining the injury the subject of this application. These included:
· A heart problem in the form of a minor heart murmur.
· It was put to the plaintiff that she had presented to her general practitioner early in 2004 suffering from anxiety, which presentation the plaintiff could not recall and, further, that she presented to her general practitioner early in 2004 complaining of hyperventilating and suffering from chest pains, which the plaintiff could not recall.
· The plaintiff was taken to an entry in the notes of the Coburg Osteopathy Clinic, which recorded that the plaintiff had, for the last month, suffered from headaches prior to 26 April 2004, in respect to which the plaintiff responded that whilst she did not recall providing that history, “Well, it’s written there so we obviously discussed it”.
16 The plaintiff agreed that she had enjoyed touch football before moving to Melbourne and had intentions of participating in that sport in Melbourne but had not, at the time of her injury, organised a team, and that immediately prior to her injury her main exercise involved attending the gymnasium and running.
17 The plaintiff agreed that she was initially away from work for approximately three weeks following her injury and thereafter she returned to light duties on reduced hours, at which time she was seeing her osteopath quite regularly and her condition was being monitored by her general practitioner.
18 The plaintiff said that upon her eventual return to full-time hours with the defendant, she undertook the duties required of her as a beauty therapist with the exception of massage; that her main treatment at that time involved consulting her osteopath; and that by the end of 2004 she was seeking treatment from her osteopath as needed. She agreed that she would consult the osteopath perhaps monthly or sometimes there might be two months between visits.
19 The plaintiff accepted that the first medical note of any complaint made by her as to the presence of pain in her temporomandibular joint appeared in the notes of her general practitioner on 1 July 2004. It was put to the plaintiff that her first complaint to her osteopath as to the presence of temporomandibular joint symptoms was made in or about June 2005, to which the plaintiff responded “I don’t remember the date that I spoke to my osteopath about my jaw. It wasn’t the first day that I went to see him”.[13]She did not challenge the position put to her that it was some fourteen months after her fall that her osteopath commenced to treat her temporomandibular joint symptoms.[14]
[13]Transcript (“T”) 41
[14]It is in this context that the defendant takes issue with the plaintiff’s temporomandibular joint symptoms being related to the incident the subject of this application
20 The plaintiff agreed that she had been to Bali for a holiday after her fall and before she ceased employment with the defendant.
21 The plaintiff said that she could not remember when she initially reported to her osteopath that she was suffering from symptoms in her jaw, but did not take issue with the fact that this might have occurred some fourteen months after her fall. She agreed that she had worked as a lecturer for a few months; as a travelling sales person in beauty products, which required her to travel around the suburbs of Melbourne; as a beauty therapist in a clinic in Thornbury for some six months; with Dr Allan Kalus, who employed her as a receptionist, but then promoted her to the position of manager of his medical skin clinic, in which occupation she supervised three beauticians who actually provided the therapies. At the same time, the plaintiff said that for approximately twelve months, whilst working full-time with Dr Kalus, she also spent six hours on a Saturday teaching at a TAFE College in Geelong, which position continued for approximately twelve months.
22 The plaintiff said that her flare-ups of neck pain occurred once every couple of months, at which time her pain was severe enough to require her to employ Panadeine Forte.
23 The plaintiff agreed that when she had been referred to the Epworth Hospital for an assessment in 2008, she spoke to a psychologist about feeling anxious, depressed and stressed, and agreed that she had felt that way regarding her injury since 2004.
24 The plaintiff said that between 2007 and 2008, she went for a holiday to Thailand for approximately ten days.
25 The plaintiff said that she had first consulted Professor Gerschman in 2009 because her jaw “had gotten a lot worse” and that she had, since that time, seen Professor Gerschman “approximately six times, at a rough guess”. She said that Professor Gerschman’s treatment involved the making of two consecutive night splints for her use. The plaintiff described these splints as mouthguards, in respect of which she expressed qualifications as to her ability to speak whilst she was wearing one.
26 The plaintiff said that she had been in a relationship with her present boyfriend since October 2011 and undertook activities such as going out to dinner, going to movies and socialising with friends. She said she had been on holiday to Queensland at Christmas and had relaxed while she was there.
27 The plaintiff said that having left her employment with Dr Kalus in August 2011, she had obtained a position in sales and business development, which required her both to drive and to travel interstate once every six months. This position also involved her in some country driving and required her to be out on the road most days. The plaintiff said that having undertaken that work for approximately twelve months, she had obtained employment with another company as a sales representative. The plaintiff described this work as involving driving through the city and suburbs but also more country trips than involved in her previous work.
28 The plaintiff said that during the last twelve months she had employed intermittent Panadol and Nurofen in management for symptoms, that she could not recall telling Mr O’Brien, who examined her in May 2012, that she was taking no medication. She accepted that as at May 2012, she was consulting her osteopath when she needed to and that the period between consultations could stretch out to monthly or two-monthly periods.
29 The plaintiff said that she retained the ability to cook, to shop, to buy food, to mop and sweep and clean the bathroom. She said she did not iron, that she had difficulty at times washing her hair, that if she was suffering from a flare-up she was unable to dry her hair and that normally she had trouble cleaning her teeth and was restricted in her ability to hold a hair dryer.
30 The plaintiff said that she had ceased going to gym some eighteen months, ago; that she had recently gone out to dinner at a restaurant in Lygon Street where she had eaten lamb shanks with mashed potato and that she would eat bread when attending a restaurant.
31 The plaintiff was cross-examined as to the history and examination provided to and undertaken by Professor Gerschman in May 2013. She agreed that there had been an almost 50 per cent reduction in her capacity to open her mouth during the period between Professor Gerschman’s assessment of her in late 2009 and the present time, commenting that she had noticed the condition in her jaw getting worse over the last twelve months to two years. The plaintiff described this deterioration as being a gradual one and explained that she had not contacted Professor Gerschman earlier during this period because “Well I was wearing my splint every night”.
32 The plaintiff said that the pain she was experiencing in her jaw had been at a minimum nine out of ten for some months. She did not take issue with the fact however, that Mr O’Brien had recorded the plaintiff as telling him that during the period which had elapsed between his examinations of the plaintiff, there had been little change in her jaw pain. The plaintiff described her pain as having increased substantially in the last six months and that she thought that her jaw pain had been at a minimum level of nine out of ten for at least a couple of months.
Re-examination of the Plaintiff
33 In re-examination, the plaintiff said that whilst she went shopping, undertook vacuuming, mopping, sweeping, washing and ironing, these activities “caused me quite a lot of pain and discomfort” describing herself as being “lucky enough to have my partner that does them for me”. She said that she had paid for her osteopathic treatment since 2010, that prior to her accident, she had been a very good tennis player and that she had wished to continue playing competition tennis in Melbourne prior to her fall, that she had not taken up this activity prior to her fall because she had only been in Melbourne for a short period of time and was “looking into competition and teams and that sort of thing”.
The medical evidence
34 Dr Sylvia Bowden, the plaintiff’s general practitioner, reported in June 2004 that the plaintiff presented to her with acute, severe left-sided neck pain, left-sided muscle spasm and stiffness following the incident on 26 April 2004. On 27 April 2004, Dr Bowden described the plaintiff’s symptoms radiating from the left side of the neck into her left shoulder and left scapular region and as being as such that it was interfering with the plaintiff’s sleep. As at June 2004, Dr Bowden reported that the plaintiff was initially totally incapacitated for work, that she responded slowly but steadily to treatment, that her hours of work increased gradually from four hours to eight hours per day over a period of four weeks, and that the plaintiff was expected to return to normal duties as at 11 June 2004.
35 In a further report, dated 14 August 2004, Dr Bowden described the plaintiff’s clinical course as having fluctuated since her return to work, commenting:
“She has really been free of neck pain and has had significant flares of pain and stiffness of her neck that were often triggered by her work as a beauty therapist.
In July 2006 she decided to change employment due to the recurrent flares of neck pain that were often triggered by the manual work involved in being a duty therapist.”[15]
[15]PCB 50
36 As at 14 August 2008, Dr Bowden opined:
“In summary, Ms Hubanic developed a significant chronic relapsing musculo-ligamentous strain of her cervical spine as a direct result of a fall at work. There was no past history of neck problems and no hereditary factors involved. The fall at work was the sole contributing factor to her neck pain.
…
Ms Hubanic is currently working full time but not in her pre injury employment. It would be considered inadvisable for Ms Hubanic to work as a beauty therapist due to the manual nature of the work which has inevitably led to flares of her underlying neck condition.”[16]
[16]PCB 51
37 Mr Peter Battlay, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in May 2004 and 15 August 2006.
38 In May 2004, Dr Battlay expressed the opinion that the plaintiff had suffered a cervicothoracic soft tissue strain which initially caused her temporary incapacity and was, as at May 2004, causing her a partial incapacity. He opined that there was no likelihood of permanent impairment.
39 In August 2006, Mr Battlay re-examined the plaintiff, at which time he obtained a history that the plaintiff had experienced a severe flare-up of her condition in May 2006 which incapacitated her from employment for some three weeks, after which, although resuming employment, she had returned to working four hours a day until July 2006, when she had resigned.
40 Mr Battlay opined at that time, that the plaintiff had suffered from a whiplash injury; that she was still experiencing symptoms from that injury; that she presented with a partial incapacity such that it would be “inadvisable for her to return to working as a beauty therapist” and that she should “avoid fixed position situations and strenuous physical activity such as massaging”.[17]
[17]Defendant’s Court Book (“DCB”) 9
41 In a report dated 15 May 2012, Mr Clifford Butler, the plaintiff’s treating osteopath, opined that the plaintiff’s:
“… main issue is her neck and shoulder pain resulting from upper cervical dysfunctions as a consequence of her injury. Due to the whiplash type nature of her injury she has suffered long standing strain through her sternocleidomastoid, scaline, upper trapezius and levitator scapulae muscles.
This results in marked jaw pain and headaches, with treatment beneficial for up to three weeks at a time. Without such treatment I believe that Esma would find it very difficult to work and maintain employment due to the severity of her neck pain and headaches.”[18]
[18]PCB 55
42 Associate Professor Owen White, neurologist, reported upon the plaintiff’s presentation to him in March 2008 at the referral of Dr Allan Kalus, the plaintiff’s then employer. At that time, he commented:
“As you were aware she has longstanding persistent pain around the left shoulder following injury.
…
At this stage I believe she has developed a Pain Syndrome due to the fact that she has been using the shoulder inappropriately. I suspect she would benefit from rehabilitation as there is substantial spared neural function on examination.
On that basis I have referred her to Steve de Graaff for an assessment and organisation of an appropriate program if he thinks that is reasonable.”[19]
[19]PCB 66
43 In May 2008, Dr de Graaff, a senior rehabilitation physician at the Epworth Rehabilitation Centre, Camberwell, opined, in a letter dated 1 May 2008 addressed to the Claims Agent, CGU Workers Compensation, that the plaintiff:
“… has a marked Pain Syndrome involving her left shoulder relating to a fall in April 2004. There is a suggestion of supra scapular nerve injury but she clearly has a myofascial syndrome with persistent pain involving the left shoulder region and impacting upon her function in the left upper limb.
I believe that she would benefit from a multi disciplinary functional restoration and pain management program but in the first instance I request funding for a multi disciplinary assessment by physiotherapist, occupational therapist and psychologist to consider the appropriate program for this lass.
She also has a number of trigger points around her shoulder and these may need to be addressed if she does not respond to conservative management.”[20]
[20]PCB 57
44 At around the same time, Dr de Graaff responded to Associate Professor White in similar terms, commenting:
“I agree that Esma would benefit from some multidisciplinary rehabilitation, particularly targeting ergonomics, posture, core stability and pain management. At this point in time I am not keen to introduce any new medication. There may be a role for trigger point injections and I have asked Emma to think about these. I have also suggested some orthotic ideas for her.”[21]
[21]PCB 59
45 In a report dated 29 September 2008, Dr de Graaff commented further:
“Miss Huvanic (sic) has attended my rooms since that initial assessment with me on 1.5.2008. She was seen on 9.6.2008. Her clinical picture was unchanged. She continued to work with Mr Allan Kalus, Plastic Surgeon. I planned a review with her on 7.8.2008 which she did not keep. We continue to wait approval for a musculoskeletal rehabilitation program.”[22]
[22]PCB 63
46 As at the date of his report, Dr de Graaff diagnosed the plaintiff as presenting with a –
“… persistent pain picture with myfasial trigger points were noted around the left shoulder and neck regions … Clearly, prior to her fall on April 2004 Miss Huvanic (sic) had not had any significant pain issues or shoulder and neck issues. As such her fall at work on a slippery fall (sic) was a clear contributing factor to her presentation … With respect to her previous duties as a beauty therapist the various requirements of the job would make it extremely difficult given her shoulder pain and neck pain … She is clearly capable of undertaking administrative duties in a modified sense with minimised lifting, carrying, pushing. She would need regular rest breaks if persistent postures were necessary and she would need to be able to change her position on a regular basis.”[23]
[23]PCB 64
47 In a report dated 28 September 2008, Dr Kristian van Staveren, osteopath, opined that the plaintiff:
“… displayed increased muscle tissue tension throughout her shoulder girdle, and focal joint movement restrictions in her cervical and thoracic spines”.[24]
[24]PCB 70
The causation of the Plaintiff’s temporomandibular joint symptoms
48 I find it appropriate to focus at this point upon the cause of the plaintiff’s TMD.
49 There is no issue that the plaintiff:
· first complained of temporomandibular joint symptoms to her general practitioner some months after her injury; and
· first sought treatment from her osteopath some fourteen months after her fall in June 2005.
50 I am satisfied that, between the date of the plaintiff’s initial injury and her presentation to both her general practitioner and her osteopath referred to above, the medical evidence establishes that the plaintiff was suffering from an organic condition in her neck which caused pain and stiffness, which in turn affected the function of her left shoulder. I make this finding on the basis of the persuasive body of medical opinion which opines that the plaintiff was presenting during that period with:
· “a significant chronic relapsing musculoligamentous strain of her cervical spine”;[25]
[25]The opinion of Dr Sylvia Bowden, PCB 51.
· a credible history of ongoing symptoms and restrictions since 2000 and the work-related whiplash injury with no specific aggravating activity to be associated with her worsening symptoms which seems to have occurred quite gradually until she went off work;[26]
· neck pain, left shoulder pain and associated headaches requiring her at times to employ Panadeine Forte, Nurofen or Celebrex, with a minimal to variable response.[27]
[26]The opinion of Mr Peter Battlay, referring to the plaintiff’s flare-up of symptoms in May 2006 and her cessation of employment as a beauty therapist, in his report as at August 2006.
[27]The comments made by Dr de Graaff in his report of 1 May 2008.
51 I am satisfied, having regard to Dr de Graaff’s opinion in September 2008, that it was appropriate to manage the plaintiff’s presentation with trigger point injections, orthotics, ergonomics, posture, core stability and pain management; that Dr De Graaff diagnosed as at that time that the plaintiff was presenting with a physical injury to her cervical spine which had initiated a Pain Syndrome, the latter being organic in nature.
52 Further, it is clear that as at September 2008, no medical practitioner who had managed the plaintiff’s condition or assessed her presentation for the purposes of this application, took issue with the fact that her organic presentation was such that:
(i)It precluded her from working on an unrestricted basis in her chosen career;
(ii)A persistent feature of the plaintiff’s presentation involved cervical pain and left shoulder pain.
53 In dealing with the cause of the plaintiff’s TMD, I do so in the setting of my satisfaction, for the reasons expressed above, between the plaintiff sustaining the injury to her cervical spine the subject of this application and late 2008, the plaintiff was presenting with:
(i)An organic condition in her neck which affected the function of her left shoulder
(ii)Well established temporomandibular joint symptoms given the plaintiff’s history of presenting to both her general practitioner and her osteopath with TMD related symptoms well prior to September 2008.
54 In November 2009, the plaintiff first presented to Associate Professor Jack Gerschman for treatment of her TMD. In a report dated February 2010, Professor Gerschman opined that this disorder arose out of her workplace injury, commenting:
“… the diagnosis of the TMD which developed as the result of the work injury, is that of a TMD with a myogenous component (muscle based) as well as an arthrogenous component (internal derangement, disc displacement and disc deterioration).”[28]
[28]PCB 86
55 It was put on behalf of the defendant that the opinion expressed by Professor Gerschman as to the relationship between the plaintiff’s workplace injury and her TMD was based upon a misconception by Professor Gerschman that the plaintiff’s symptoms came on immediately in association with her fall, in that in the course of his report, Professor Gerschman comments:
“Ms Hubanic was working as a beauty therapist for Beauty Bazaar when she fell and hit her shoulder on the metal part of a stool and her head on the top of the stool.
As a result of this fall she experienced –
·Head pain and cervical pain
·Left lumbar pain radiating to the thigh
·Paraesthesia in the left triceps and left 4th and 5th fingers
·Bilateral Temporomandibular Joint pain, mainly on the right side.
3.2 Subsequent History
Unfortunately as in many cases the jaw injury was not attended to as the focus was on her other injuries.”[29]
[29]PCB 82
56 It is put on behalf of the defendant that Professor Gerschman, in expressing his opinion as to the causation of the plaintiff’s TMD, did so on the basis that it was his belief that the plaintiff’s symptoms manifested themselves by reason of a direct trauma to her temporomandibular joint in the course of her fall, or the onset of TMD symptoms with some immediacy following the fall.
57 In my opinion, this position is misconceived when the full content of Professor Gerschman’s report is analysed and account is taken of his diagnosis of the presence of a muscle-based component and a disc displacement component being responsible for the cause of the plaintiff’s symptoms.
58 This is particularly so in my opinion when account is taken of the fact that Professor Gerschman referred the plaintiff to Mr Peter Selveratnam, who Professor Gerschman described as “a very experienced physiotherapist/ musculo/skeletal therapist” who opined, in a report dated 30 December 2009:
“Thank you for recommending Esma who fell at work in 2004 while working as a beauty therapist and hit her shoulder on the mental part of a stool and her head at the top of the stool. Following the sequel she experienced temporomandibular disorder. Esma also experienced cervical pain, left lumbar pain radiating to the thigh, paraesthesia in the left triceps, and the left fourth and fifth fingers.”
And further
“Esma has TMD signs in the TMJ, messeters and cervical signs. Her posture and spinal condition exacerbate her condition. Esma was commenced on a postural and upper cervical program. I have emphasised to Esma that self-management of her condition is important in addition to intervention.”[30]
[30]PCB 77
59 I interpret the comments made by Dr Selveratnam and those made by Professor Gerschman to be expressing an opinion that the plaintiff’s TMD developed secondary to and as a result of her cervical complaint.
60 This interpretation is, in my opinion, supported by the comments as to causation by Dr Michael Aldred, a specialist oral pathologist, in his report dated 8 March 2013, in which he opined as follows:
“1 The history provided by the worker as to:
(a)The onset and progress of symptoms.
The onset of symptoms was dated 26.04.2004. The patient assumed the problem would settle but it did not. The initial acute severe pain has become a chronic pain. This is attested to in the correspondence from Dr. Owen White and Dr. Stephen De Graaf.”[31]
[31]PCB 162
61 It is clear that Dr Aldred, in commenting as to the onset and perpetuation of the plaintiff’s symptoms, is referring to the symptoms in the plaintiff’s cervical spine, as it is these symptoms which were referred to by Dr Owen White and Dr Stephen de Graaff, neither of whom in their reports refer to any facial pain or jaw pain. Dr Aldred opined:
“There is no doubt that the patient has temporomandibular disorder. This seems to be associated with a left neck and shoulder pain syndrome.”[32]
[32]PCB 163
62 It follows that I am satisfied that both Professor Gerschman and Dr Aldred have opined authoritatively:
(i) as to the cause and prognosis of the plaintiff’s TMD; and
(ii) that the plaintiff’s TMD is secondary to the injury sustained to her neck and shoulder as the result of the overall 2004 injury.
63 I am satisfied, on the basis of this analysis, that the plaintiff has established the relationship between the TMD with which she presents and the primary injury the subject of this application, being that occasioned to her cervical spine. I am further satisfied that it is appropriate to categorise the plaintiff’s TMD as being a consequence of that injury.
The Plaintiff’s cervical condition
64 In addition to the evidence to which I have previously referred as to the condition and symptoms which the plaintiff was presenting in her cervical spine as at late 2008, a number of medical practitioners have opined as to the plaintiff’s current presentation.
65 On 15 May 2012, Dr Albert C Leung, a rheumatologist, who saw the plaintiff at the referral of her then general practitioner, Dr Zeng, opined that the plaintiff was currently employing Panadol or Panadeine Forte and Nurofen, which she found helpful in alleviating her symptoms; that she presented with “musculoskeletal pains in which she will contemplate steroid injections”.[33]
[33]PCB 100
66 Although Mr Leung had arranged for the plaintiff to undergo an MRI scan of her cervical and lumbar spines, together with an x-ray of her left shoulder, and commented that he would review the plaintiff in one month’s time, it is clear that at the time in which he authored his report in May 2012, he did not believe the plaintiff to be presenting with other than an organic injury.
67 In a report dated 23 April 2012, Mr Kenneth Myers, consultant general surgeon, opined that the plaintiff presented with ongoing pain in her neck, jaw and left shoulder with restricted movements of the left shoulder, and that her condition had stabilised. In a further report, dated 23 April 2012, Mr Myers made it clear that his assessment of the plaintiff’s presentation was that her neck, jaw and shoulder pain was not contributed to by any psychiatric disturbance, nor did it contain any non-organic factors.
68 In two reports dated 5 June 2012 and 6 May 2013, Dr Peter Blombery, consultant vascular physician, opined the plaintiff presented with a non-specific Pain Syndrome which involved the sensitisation pain pathways as the result of the presence of an “organic disorder of pain nerve pathways”.
69 It was put on behalf of the defendant that Dr Blombery’s path of reasoning in expressing his opinion was not developed by him and, accordingly, that I should give it no weight in regard to the decision taken by the defendant not to challenge the opinion expressed by Dr Blombery through cross-examination.
70 Whilst I accept that there is some merit in the position taken on behalf of the defendant that the thought process employed by Dr Blombery in expressing his opinion is not made clear in his two reports, in my opinion, in the absence of the defendant challenging the position put by Dr Blombery, the lack of a clear path of reasoning on Dr Blombery’s behalf should affect the weight which I give to the opinion expressed by him but should not devalue the opinion such that no weight is applied to it.
71 Professor John Hart, orthopaedic surgeon, examined the plaintiff in December 2008 and February 2011.
72 In 2008, Professor Hart found the plaintiff to be presenting with a spasm in her left trapezius muscle and limitation of movement of the cervical spine in all directions. He makes no comment to the plaintiff in any way presenting with complaints which were out of keeping with an organic distribution of symptomology, and opined that the plaintiff was presenting with a Chronic Pain Syndrome following the soft tissue injury to her cervical spine. In expressing his opinion, Professor Hart commented that the plaintiff presented with symptoms and signs in the cervical spine but no evidence of radiculopathy. It is unclear from the content of Professor Hart’s report as to whether he is employing the term “Chronic Pain Syndrome” in the way in which that term was employed by Dr de Graaff (whose diagnosis Professor Hart refers to at page 4 of his report, namely an organic condition) or a psychological condition, although the finding by Professor Hart of muscle spasm would suggest the presence of an organic condition affecting the plaintiff’s left trapezius muscle.
73 In his report of 9 February 2011, Professor Hart expresses a similar opinion to that expressed in his previous report. In the course of that report, Professor Hart comments that upon examination of the plaintiff’s cervical spine her range of movement was similar to that which was present when he previously assessed her in 2008, but that on this occasion the plaintiff had a diminished range of movement in her left shoulder, in respect of which he opined:
“She now has limited abduction of the left shoulder but this appeared to be related to pain in the neck rather than an intrinsic lesion in the shoulder itself, as all other shoulder movements were of normal range.
…
The major condition affecting the worker was her recurrent neck pain, which had not responded to a prolonged osteopathic program.
…
The worker’s symptoms have now persisted for almost seven years despite normal investigations.”[34]
[34]PCB 159
74 Whilst Professor Hart commented in this report that when he had previously examined the plaintiff, he considered that she was suffering from a Chronic Pain Syndrome, he did not further opine as to the presence of that condition or its consequences in the course of his 2011 report.
75 In opining that the plaintiff’s neck pain was responsible for limited abduction presence in her left shoulder, it is clear that Professor Hart was satisfied that the plaintiff was, in 2011, presenting with an organic condition in her cervical spine. It is unclear to me whether, in 2011, Professor Hart was opining that the plaintiff continued to present with a Chronic Pain Syndrome or whether, if such a Syndrome was present, it influenced the plaintiff’s presentation in either a minor or major way. For this reason, I do not find the opinion of Professor Hart persuasive one way or the other on this issue.
76 Dr Kevin Fraser, a rheumatologist, in a report dated January 2013, opined that, whilst the plaintiff suffered soft-tissue injuries in the region of her cervical left shoulder girdle as the result of her fall at work, those injuries had long since resolved and the plaintiff’s ongoing symptoms were caused by psychosocial factors. At the same time, Dr Fraser expressed the opinion that the plaintiff’s temporomandibular joint injury had probably been influenced not by any primary injury to the temporomandibular joint but “muscle spasm secondary to the Chronic Pain Syndrome”.[35]
[35]DCB 41
77 I find Dr Fraser’s statement that the plaintiff presents with psychosocial factors which have maintained an originally organic condition which has long since resolved (which I interpret to be a statement that the plaintiff is presenting with no organic condition in her neck or left shoulder), whilst at the same time opining that the plaintiff’s TMD is secondary to muscle spasm (which is clearly a physical reaction of the muscle to pain), to be positions which are essentially mutually exclusive of one another, and for this reason, I find Dr Fraser’s opinion bordering on the nonsensical and totally unpersuasive.
78 Mr John O’Brien, orthopaedic surgeon, assessed the plaintiff in May 2012 and April 2013. On the occasion of his first examination of the plaintiff, Mr O’Brien commented that the plaintiff presented with minor and somewhat variable restriction of movement in her cervical spine and that she presented with non-specific neck and shoulder pain of a chronic nature, and, indeed, given the described clinical course, it seems reasonable to refer to the problem as that of a Chronic Pain Syndrome.
79 Mr O’Brien opined that the plaintiff’s condition was stable and that her disability was such that she would be unable to undertake activities which required the repetitive use of her upper limbs.
80 In his further report of 29 April 2013, Mr O’Brien expressed the opinion that the plaintiff presented with –
“… chronic non-specific neck and shoulder pain with variability of signs indicating that there are non-organic factors influencing the clinical course and therefore the overall problem I believe is that of a chronic pain syndrome.”[36]
[36]PCB 117
81 I accept the position put on behalf of the defendant that in employing the term “Chronic Pain Syndrome” in both of his reports, Mr O’Brien was referring to a condition in which non-organic factors were influencing the plaintiff’s clinical course. At the same time, I am satisfied that Mr O’Brien was not opining that the plaintiff presented with no organic factors, commenting, as he did, that he considered the plaintiff capable of –
“… continuing with employment which does not require any form of heavy physical form of activity. Thus, the administrative role currently undertaken I am sure does fall within her physical capabilities. From the physical perspective I see no reason why the patient should not be able to continue with such employment.”[37]
[37]PCB 117
82 I take this statement by Mr O’Brien to be an expression of opinion which raises issues as to the plaintiff’s capacity on organic grounds to manage employment which required her to act as a masseur.
Findings
83 I am satisfied that the plaintiff presents with an attitude of seeking to minimise where possible the effect of her injury upon her life and lifestyle. I make this finding taking into account :
(i) The plaintiff’s work ethic demonstrated by her history of seeking employment which will accommodated her symptoms and persevering in that process not withstanding the fact that the effect of her injury and associated incapacity has been to deny her the opportunity to pursue her career as a beauty therapist;
(ii) The plaintiff’s decision to self fund the retraining necessary to allow her to teach within the beauty industry;
(iii) The plaintiff’s self funding of the osteopathic and massage treatment which she employs to manage her symptoms;
(iv) The plaintiff’s demeanour as she gave her evidence in which she made appropriate concessions and presented as a creditable witness.
84 It was put on behalf of the defendant that the tenor of the evidence in this case was such that it provides no justification for the fact that the plaintiff presents with any organic injury and that psychosomatic non-organic factors were primarily responsible for her symptoms.
85 In my opinion, the evidence clearly points to the contrary position. I am satisfied, having regard to the analysis of the medical evidence which I have undertaken above, that the preponderance of medical evidence supports the proposition that the plaintiff suffers from an organic condition in her cervical spine which continues to restrict the movement of her cervical spine and is responsible for the presence of muscle spasm and restriction of movement in the plaintiff’s left shoulder, and I find that evidence to be persuasive as to this issue.
86 I am further satisfied that the plaintiff suffers from an organic condition in the form of temporomandibular disorder which is:
(i) Chronic;
(ii) Caused by and is secondary to the traumatic injury to the plaintiff’s cervical spine;
the consequences of which condition are appropriately described by Professor Gerschman in his reports of February 2010 and January 2012.
87 I accept, however, the position put by the defendant that:
(i) the plaintiff’s complaint to Professor Gerschman in his most recent report of May 2013, that she has, during the past month, experienced symptoms of jaw pain which have not decreased below the level of nine out of ten, represents what appears to be a very significant increase in her symptoms;
(ii) the reason for and likely duration of this escalation in symptoms is unexplained by Professor Gerschman; and
(iii) I cannot, in the circumstances, be satisfied as to the permanence of those symptoms.
88 I am satisfied however that, in assessing the permanent consequences to the plaintiff of her TMD, I should employ findings by Professor Gerschman, as at June 2012, at which time he expressed the position that the plaintiff’s prognosis was guarded and stabilised, which position was in accord with that expressed by Dr Aldred as the result of his examination of the plaintiff in March 2013 (at which time the plaintiff made no report of a significant increase in her symptoms).
89 As the result of the above examination, Dr Aldred opined:
“She certainly has a temporomandibular disorder. The frustrating aspect of all this is that there has been little improvement in the symptoms over the period of almost 10 years … I am not confident that there will be significant improvement in the future given the limited response to treatment over the past 10 years ... I note that she is paying for this treatment herself as it appears that WorkCover have declined ongoing payment. I am not certain of the reason for WorkCover making this decision not to fund her treatment given that there seems to be a clear link between her injury, the pain from which she has suffered and which she continues to suffer.”[38]
[38]PCB 163-164
90 On the basis of the findings I have made, I am satisfied that the consequences of the injury suffered by the plaintiff to her cervical spine are such that:
(i) The plaintiff has permanently lost the opportunity to pursue her career as a beauty therapist, which career I am satisfied was one which:
§ the plaintiff was pursing with a passion at the time of her injury; and
§ was regarded by the plaintiff as being the primary direction of her future employment,
and I am satisfied that this loss alone, for this plaintiff, is one which gives rise to consequences which are appropriately described as being more than significant;
(ii) With the loss of her career path, the security of the plaintiff’s professional direction has been replaced with the uncertainty attendant with seeking employment in occupations in respect of which the plaintiff possesses no particular training and which must be tailored to suit her restricted physical capacity.
(iii) The plaintiff suffers from a stabilised position in her jaw which requires her to be selective in the type and nature of food which she eats; and causes her the pain and restrictions described by her as detailed in the report of Dr Aldred and in the relevant statements made by the plaintiff in her affidavits;
(iv) The plaintiff is required to ingest regular non-prescription analgesia which is complemented by the use of Panadeine Forte to deal with the periodic exacerbations of her symptoms, which when they manifest themselves are incapacitating;
(v) They cause the plaintiff to wake most mornings with a headache;
(vi) They involve symptoms of cervical pain which are constantly present in the form of moderate aching pain but involve regular exacerbations every two or three months which involve increases in the plaintiff’s pain sufficient to result in her being bedridden and requiring her to employ prescription strength pain control;
(vii) They cause the plaintiff to sleep poorly such that her lack of sleep affects her stamina;
(viii) They limit the plaintiff’s ability to engage in strenuous physical activities including preventing the plaintiff the opportunity to take up again her tennis playing in which she had previously engaged at a senior and competent level.
91 In deciding the issue which arises in this case namely, whether the plaintiff’s pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked and as being at least very considerable, I am required to assess the consequences in terms of pain and suffering which the plaintiff’s injury have occasioned and determine where the facts of this case sit in the broad spectrum of cases. The task which I am required to undertake has been described as involving one in which I am required to take into account –
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to some extent, by what is retained.”[39]
[39]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
92 I am satisfied that the consequences to the plaintiff of the impairment of function to her cervical spine which, considered in the context that they are permanent and are visited upon such a young woman, are such that they are appropriately described as being more than significant or marked and as being at least very considerable and, accordingly, that the plaintiff is entitled to the leave sought by her in this application.
93 In the circumstances, I propose to make an order that the plaintiff have leave to commence a proceeding claiming damages for the injuries suffered by her by reason of the incident the subject of this application.
94 I will hear the parties as to the precise form of the order which is to be made in the proceeding and also upon the issue of costs.
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