Huynh v Kenman Kandy Australia Pty Ltd
[2013] VCC 410
•19 March 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-11-01924
| LE HAO HUYNH |
| v |
| KENMAN KANDY AUSTRALIA PTY LTD |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 18 March 2013 | |
DATE OF JUDGMENT: | 19 March 2013 | |
CASE MAY BE CITED AS: | Huynh v Kenman Kandy Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 410 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to cervical spine – pain and suffering and economic loss – whether the consequences to the plaintiff are “very significant”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Alcoa of Australia Ltd v McKenna [2003] VSCA 182; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave to plaintiff to issue proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms N Wolski | Zaparas Lawyers |
| For the Defendant | Mr D E Curtain QC with Ms F Ellis | DLA Piper Australia |
HIS HONOUR:
1 In the course of her employment with the defendant as a packer, the plaintiff suffered pain in her left shoulder area, commencing in 2003. On 25 March 2004, in the course of repetitive work duties, there was a worsening of her left shoulder pain with numbness. She claims to also have suffered the onset of pain in her neck, and referred pain into her left arm, which increased over time and required essentially conservative treatment from a range of doctors. In 2005, there were no suitable light duties available for the plaintiff, her employment was terminated and she attempted employment with a number of other employers. She is unemployed at the present time. She claims a range of domestic, recreational, social and work activities are now lost or curtailed.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment in 2003 and 2004, and in particular on 25 March 2004.
3 The body function said to be lost or impaired is the cervical spine. The application is thus brought under ss(a) of the definition of “serious injury” referred to in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
4 The plaintiff and a consultant neurosurgeon, Professor Richard Bittar, were called to give evidence and be cross-examined. In addition, various affidavits of the plaintiff, medical reports and radiological reports were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff or Professor Bittar, but rather those parts of their evidence which I have relied upon in coming to the conclusions referred to in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
5 The plaintiff was born in Vietnam, and is forty-three years of age. She is married with two daughters, now aged ten and thirteen. She came to Australia in 1989.
6 She commenced work as a machine operator in 1993 with the company TRIM and worked there for seven years. She had short periods of time off work for the birth of each of her daughters. After working for TRIM, she was unemployed for a short time, and then commenced work with the defendant in 2000. She was employed as a packer and her duties involved tipping 7 kilogram trays of lollies onto a conveyor belt, spreading and sorting them, and then packaging them into boxes. She described the work as fast and repetitive, and it required in particular repetitive stretching of her arms. She worked eight-and-a-half hour days and earned approximately $600 gross per week.
7 She had studied English at an earlier time, but found it difficult. She has some English, although gave her evidence via an interpreter.
8 Aside from her work duties, she undertook all the domestic duties for her family, including cooking, cleaning, washing and keeping house. Her husband has also worked full time.
9 Prior to 2003, she had no significant injuries or illnesses, and in particular no pain or injury to her neck, left shoulder or arm.
The injury and its consequences
10 The plaintiff claims that in 2003 she began to experience numbness in her left hand, related to her work duties, as a result of which she saw her general practitioner, Dr Le, in December 2003. That practitioner gave her a letter to be provided to her employer[1] which referred to a “muscular pain involving her left shoulder and left arm” and requested lighter duties. At that time, she had only been back at work for a short period, having taken ten or so months’ maternity leave after the birth of her second daughter in January 2003. She said no lighter duties were provided.
[1]Plaintiff’s Court Book (“PCB”) 50
11 On 25 March 2004, she said she was pushing a box through a wrapping machine which became jammed. As she pushed harder, she felt left shoulder pain and numbness. She again went to see Dr Le and a CT scan of her neck was undertaken on 3 April 2004.[2] That showed a small central disc protrusion at C5-6.
[2]PCB 71
12 At that time, she was also seen by the “work doctor”, Dr Shmerling, complaining of pain in her left shoulder/neck region with a numb tingling sensation in the left upper arm[3]. There was a full range of movement in the neck and shoulders. He assessed the plaintiff as suffering a recurrence of left neck/shoulder strain and referred her for physiotherapy and prescribed anti-inflammatory medication. There was some debate as to a letter written from this doctor to Dr Le of the 17 June 2004[4] in which Dr Shmerling referred to the plaintiff’s left neck pain as being ‘longstanding’. However, according to his report of the 23 August 2005[5] he said he first met the plaintiff on 26 March 2004 and he may well have meant that three month period.
[3]PCB 33
[4]Defendant’s Court Book (“DCB”) 18
[5]DCB 33
13 When he reviewed her on 27 April 2004, she said there was some improvement but her left wrist area was sore with a tingling sensation. Nerve conduction tests were performed to investigate carpal tunnel syndrome, which showed no abnormality. Dr Shmerling eventually referred her to Dr Mark Patrick, rheumatologist, in August 2004.[6] That doctor received a history of intermittent pain in the neck and into the left hand, worse with activity[7], and he thought she had suffered a C5-6 disc prolapse with slowly resolving symptoms and without neurological deficit. He noted her work duties had reduced and thought the prognosis was good. She continued to see Dr Shmerling[8] until August 2004.
[6]PCB 63
[7]PCB 63
[8]DCB 33-34
14 She also saw a physiotherapist.[9] He noted left shoulder and neck pain of gradual onset. There was numbness into the left arm and hand. At this point, most practitioners noted the plaintiff had a good range of cervical movement.
[9]PCB 35-36
15 In August 2004, she changed general practitioners to Dr Cong Phan of the Hallam Family Practice. That practitioner has remained treating her to the present time, and has provided a range of reports.[10] When he first saw the plaintiff on 29 August 2004, he received a history of pain and numbness of the left arm since the incident of 25 March 2004.[11] The pain developed and in his first report,[12] he said the plaintiff was suffering considerable pain to the left side of her neck.
[10]PCB 35-49B
[11]PCB 35
[12]PCB 36
16 In October 2004, Dr Phan arranged a further CT scan which showed no evidence of disc herniation, spinal canal stenosis nor calcification.[13] He initially diagnosed cervical spondylosis with non-specific muscular pain over the left shoulder and arm. He referred her for further physiotherapy and said she was reluctant to take analgesic medication because of the side effects. At that point, Dr Phan said she was struggling to cope with her work, and working reduced duties, two hours per day. He noted the onset of depression and insomnia and prescribed an anti-depressant medication in April 2005.
[13]PCB 74
17 In March 2005, Dr Phan referred the plaintiff to the Victorian Rehabilitation Centre, and Dr Clayton Thomas. He saw her in March and then again in May 2005.[14] He received a history of pain to the left side of her neck and into the left shoulder. He noted general good mobility with slight limitation of cervical movements. He considered the plaintiff had suffered a soft tissue strain to her neck, and by that time, an MRI scan of the cervical spine had been undertaken.[15] That scan noted focal disc protrusions at C4-5 and C5-6 with mild indentation on the cervical cord, but without cord damage. Dr Thomas said the scanning showed clear-cut mild multilevel disc degeneration with evidence of left-sided foraminal stenosis, more marked at C6-7. He concluded the plaintiff was suffering symptomatic spondylosis of the cervical spine with referred pain to the left arm. He was uncertain of the precise level which was responsible for her pain. He thought the injury was work related and that the plaintiff had the capacity for suitable light duties.
[14]PCB 51-53
[15]PCB 76-77
18 Dr Phan then referred the plaintiff to Mr Xenos, neurosurgeon, whom she saw on one occasion on 2 June 2005. He received a history of the onset of neck and left shoulder pain on 25 March 2004, with numbness in the left forearm and hand. By the time he saw her, she was suffering chronic neck and left shoulder pain with radiation into the interscapular area, and intermittent radiation into the left arm and hand. He reviewed the MRI scan which he said demonstrated multilevel degenerative changes at C4-5 and C5-6, which he thought were asymptomatic. He said there was a very mild left C6-7 disc bulge causing foraminal stenosis which he said could account for the plaintiff’s referred pain into her left arm. He concluded that the majority of the plaintiff’s problems were muscular type pain in the neck, shoulder, with referred pain into the arm. Surgery was not an option. He thought an appropriate plan was chronic pain management and rehabilitation at the Victorian Rehabilitation Centre. At that time, he thought she was unable to return to her pre-injury duties and that her future would depend upon whether any functional improvement could be obtained through rehabilitation.[16]
[16]PCB 58-59
19 Eventually, the plaintiff commenced a rehabilitation program at the Victorian Rehabilitation Centre in June 2005 and attended regularly over an eight week period. She received instruction as to exercises, physiotherapy and taught pain management strategies.
20 On 19 August 2005, she received notification from her employer that there was no ongoing work available.
21 She persisted with treatment from Dr Phan and attended a gymnasium for exercise and hydrotherapy.
22 In February 2009, she commenced work with another employer, Australian Fresh Leaf Herb Pty Ltd, working as a packer, six hours per day, four days per week. The work involved light packing, but she was unable to continue because of neck pain, after a few months.
23 She then worked in a gift shop, six hours per day, three days per week, but had difficulty stocking shelves because of neck pain.
24 She then found work in September 2009 on a full-time basis packing ham products. However, she was asked to do heavier duties, lifting up to 5 kilograms which she was unable to do, and quit the job in January 2010 with neck pain and headaches.
25 She remained under the treatment of Dr Phan, who provided counselling, anti-depressant and pain medication and recommended gym and home-based exercises, with the intended aim of improving her strength and mobility. A further CT scan of the cervical spine was undertaken in April 2007,[17] which showed a small central disc herniation at C5-6. A further CT scan of July 2010,[18] showed prominent posterior bulging at C4-5 and C5-6. At C6-7, there was minor posterior annular bulge without evidence of focal disc protrusion.
[17]PCB 77
[18]PCB 78
26 In October 2010, Dr Phan referred the plaintiff to Mr Tiew Han, neurosurgeon. He obtained a history of pain over the left shoulder, left sided headaches and a tingling sensation into the left hand. Having reviewed the radiology, he considered the plaintiff was suffering cervical disc degeneration at multiple levels, predominantly over the C6-7 level associated with foraminal stenosis. He also noted disc degeneration at C4-5 and C5-6. He thought the foraminal narrowing at C6-7 was responsible for her left-sided arm pain. He considered there was no prospect of surgery. He thought the neck and arm pain were related to her work, in particular to the incident of 2004. He said the plaintiff was not fit for her pre-injury duties and also that it was “doubtful that she could find alternative duties given the nature of her pain which could easily be exacerbated with any movement of the cervical spine”.[19] He considered the prognosis as poor and that she would remain with neck pain for many years.
[19]PCB 70
27 The plaintiff has not worked since early 2010, although, according to her affidavit,[20] she has continued to look for work in the Vietnamese community.
[20]PCB 15
28 According to her evidence, she currently takes the following medication:
·Endep, one tablet of 25 milligrams at night for pain;
·Panadeine Forte (also known as Prodeine Forte) on an ‘as needs’ basis, one to two per week;
·Panamax or Panadol for pain from time to time;
·Nexium for stomach upset;
·Motilium for nausea;
·Various Chinese vitamins.
29 A further MRI scan of the cervical spine was undertaken in September 2012.[21] This showed multilevel disc bulging and degeneration at levels from C3-4 to C6‑7. Substantial scoliosis and kyphosis was noted. The degeneration was most marked at C5-6 where there was substantial cord and foraminal narrowing, compressing the left C6 nerve root.
[21]PCB 78b
30 She continues to see Dr Phan every three months or so. She has physiotherapy from a Mr Rosso. She sees another local doctor in Springvale, Dr Hung Pham[22] every two or three months and another physiotherapist. According to the most recent report of Dr Phan:
“In my opinion, her employment is still material in causing her current symptoms as her injury never resolved and her symptoms had been continuously present since her injury. She currently does not have any capacity for any form of employment. I consider this lady totally and permanently incapacitated given the duration of her symptoms and the degenerative nature of the condition. Her prognosis is poor.”[23]
[22]There appears to be no report from this practitioner.
[23]Report of the 2 February 2013, PCB 49a
31 In November 2012, she commenced study in English at Redi Teach. She found this difficult, and although the course recommenced in 2013, she lasted only a day because of neck pain.
32 The plaintiff says at the present time, she suffers constant left-sided neck pain, spreading into her left shoulder. She has intermittent pain and numbness into the left arm and hand. She says she has difficulty turning her neck quickly or with prolonged bending of her neck, which causes pain and headaches. Her head requires regular support. She suffers regular headaches, and her sleep is affected. She is unable to lift anything with her left hand of more than a few kilograms for any length of time, although in cross-examination accepted that she shopped regularly by herself and with the children, and was able to carry the shopping. She described significant discomfort at night and the pain in her neck woke her several times. She gets some modest relief from exercises at the gymnasium, hydrotherapy and with physiotherapy. She is able to undertake all of her personal activities of daily living, and when the children were younger, dressed them and provided for their needs. She still does the cooking, although with difficulty with the heavier tasks. Her husband assists with vacuuming and mopping. She finds it difficult to scrub or clean the toilet. She is unable to hang clothes on the line above shoulder level, although in Court demonstrated that she was able to lift her left hand straight up, she said with some pain.
33 She said she becomes moody and tearful because of the ongoing pain and it has affected her relationship with her husband.
34 Generally, she says the pain in her neck and left shoulder area have become worse with time. Her treatment at the present time is essentially conservative.
Medical opinions
35 The plaintiff was examined by Professor Bittar, neurosurgeon, in July 2012 and February 2013.[24] At that time, the plaintiff complained of neck pain radiating into the shoulder and left arm, associated with numbness to the left forearm and hand. He also obtained a history of lower back pain with referred pain into the calf. He said the lower back pain was not work-related. He received a history that pain was exacerbated by carrying weights of more than 3 kilograms and with sudden neck movements. He said the plaintiff’s symptoms caused a significant interference with her sleep and that she required assistance in most household and recreational activities. When he examined her, the range of cervical spine movement was moderately restricted. He reviewed the various radiological reports, including the MRI scan of September 2012, which he said demonstrated scoliosis and kyphosis at C4-5. He noted multilevel disc bulging with left sided foraminal and canal stenosis at C5-6. He said that from the most recent MRI, there had been a degeneration of her condition. Professor Bittar also noted that there was evidence of cervical myelopathy (spinal cord compression). As to work capacity, he said:
“In my opinion, she is permanently incapacitated for her pre-injury duties as a packer. Considering her age, education, training, skills and extremely limited English, as well as the nature and severity of her work-related cervical spine condition, it is my opinion that she has no capacity for suitable duties.”[25]
[24]PCB 79-83, 98-103
[25]PCB 102
36 He said further:
“Given that she has developed clear evidence of cervical myelopathy on clinical examination, as well as marked compression of the spinal cord at C5/6 I would recommend that consideration be given to surgical decompression and stabilisation of the spine. I would recommend that she be reviewed by her neurosurgeon, Dr Han, in the near future. … Her prognosis is relatively poor. She is likely to suffer from significant pain and disability into the foreseeable future.”[26]
[26]PCB 102
37 Professor Bittar also attended to give evidence and be cross-examined. I found him an impressive witness. He agreed the plaintiff had underlying but asymptomatic degeneration in the cervical spine before March 2004. He said the history by the plaintiff to him was that it was the incident of March 2004 which caused the onset of neck pain. It was suggested that, in accordance with the opinions of Messrs O’Brien and Elsner, the plaintiff may have suffered some strain to the neck or shoulder which had resolved, but to the extent she was now suffering symptoms, that was due to the underlying degenerative condition which was not work related. He disagreed with this. He further disagreed that he was in a less advantageous position than other doctors who has seen the plaintiff in earlier years to assess the cause of her condition, as it is of benefit to look at the clinical picture with hindsight. He said the clinical picture matched the history and the radiology. He said conditions such as the plaintiff was suffering often evolved over time.
38 He said the process the plaintiff was undertaking in March 2004 could account for the injury she suffered, even if the there was only a “reasonable amount of force” used.[27] He would not necessarily expect the plaintiff’s symptoms to reduce when she ceased work. He said the radiological findings at C4-5 and C5-6 could be as a result of trauma or degeneration or both. He said process workers were at risk of cervical injury because of the repetitive nature of their work. He said here, according to the history provided by the plaintiff, there was a clear mechanism of injury. From his clinical examination, there was clear compression of the plaintiff’s spinal cord.
[27]PCB 80
39 The defendant arranged for the plaintiff to be examined by a number of practitioners. The report of Mr David Brownbill, neurosurgeon, of October 2004 is of little assistance given its age and that Mr Brownbill did not have available all of the radiology.
40 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, in May 2005, December 2005 and July 2012. In the latest report,[28] Mr O’Brien received a history that the plaintiff experienced constant pain over the entire area of the left shoulder, extending to the left side of the neck at a level of 4 to 5 out of 10. The pain increased on certain activities up to 6 to 8 out of 10. The plaintiff also reported some intermittent pain through the left elbow and into the left hand. He noted she was self-managing her pain with hydrotherapy and a Tens machine, with self-funded physiotherapy. He said the plaintiff stated that she was able to do all of her normal activities of daily living, including housework and care for her two children. She drove a car, did the shopping, with some assistance from her husband, and had last worked in 2009. He said the plaintiff did not require any more active treatment, nor was there any indication for further investigation.
[28]DCB 77e-g
41 It appears Mr O’Brien did not have access to any radiological investigation, save for the CT scan of April 2004 and the MRI scan of April 2005.[29] Although he concluded the plaintiff’s prognosis was poor, and despite the report of continuing chronic pain, he said physical signs did not demonstrate any functional impairment. He said she was capable of employment in modified or light duties.[30]
[29]DCB 24
[30]DCB 77G
42 The plaintiff was examined by Dr Nigel Strauss, psychiatrist, in June 2005,[31] December 2005,[32] August 2007,[33] and July 2012.[34] He said he formed the “impression” that the plaintiff was somewhat manipulative, although he did not say why.[35] Having considered the opinions of the various physical doctors, including Mr O’Brien and Mr Elsner, Dr Strauss concluded that the plaintiff had a mild pain disorder which “causes her some frustration”. He did not consider that her psychiatric condition satisfied the criteria for an adjustment disorder or significant anxiety or depression. He said he “detected” significant marital problems and that the plaintiff used her pain to “manipulate” her husband. He described the plaintiff as “very inactive and dependent upon her husband and somewhat controlling in this regard”.[36] He said that it was difficult to know how much of the plaintiff’s pain was due to deliberate over-exaggeration and how much was genuine, or due to unconsciously derived psychological factors related to her desire to stay at home and not work.
[31]DCB 26
[32]DCB 37
[33]DCB 65
[34]DCB 77a
[35]DCB 77b
[36]DCB 77c
43 It is not clear from Dr Strauss’s reports on what basis he formed the view that the plaintiff wished to stay at home and not work. The plaintiff emphatically denied this in cross-examination. Further, that statement stands in clear contrast to her history of full time employment, with only very short periods away from work for the birth of her two children, and then attempts to re-enter the workforce after her injury. I reject Dr Strauss’s conclusions in this regard. In fact, in my view, he appears to have taken a strong stand against the plaintiff for reasons which are not clear from his reports. Further, he appears to have relied heavily on the physical findings of Messrs O’Brien and Elsner. I find his reports of little assistance.
44 The defendant arranged for the plaintiff to be examined by Mr Keith Elsner, orthopaedic surgeon, January 2006,[37] May 2007[38] and July 2012.[39] In his first two reports, Mr Elsner concluded that the plaintiff showed no evidence of any injury to her neck, left shoulder or left arm. He found no neurological dysfunction, although said there had been a transient exacerbation of the degenerative changes in the neck. He noted a full range of neck movement. In his final report he noted that the plaintiff continued to complain of pain in her neck, left shoulder and with referred pain into her left arm in respect of which she took various medications and had physiotherapy and hydrotherapy. He noted the plaintiff’s general practitioner had diagnosed multilevel disc degeneration with foraminal stenosis at C6-7 and compression of the C7 nerve root. Upon examination, he found diffuse tenderness along the left side of the neck and with a full range of motion, albeit carried out in a guarded manner. He examined the MRI films of November 2010 which he said showed some mild further increase in the degree of degenerative change from the earlier films. He said the plaintiff had sustained a soft tissue injury to her left shoulder as a result of her work activities on 25 March 2004. He said:
“It is now 8 years since the subject injury, and there is no sign of any muscle wasting around the left shoulder and no swelling or deformity. In my opinion she has no residual injury affecting her left shoulder and indeed has no injury affecting her left arm/left upper limb. It is my opinion that she does have some constitutional degenerative changes in her cervical spine, but in my opinion, these were neither caused by nor aggravated by her employment at Kenman Kandy. It is my opinion that there may have been some mild temporary exacerbation of constitutional cervical degenerative changes, from what I would consider to be a relatively minor incident on 25 March 2004. However, noting my findings on examination on 1 May 2007, when she had already been off work for nearly 2 years, and noting the surveillance observations in December 2005, it is my opinion that any symptoms that she may experience in her neck are now unrelated to her employment at Kenman Kandy. It is possible that she may experience some intermittent aching in her neck from her constitutional degenerative changes, and may experience some intermittent referred symptoms into her left upper extremity, but there is no objective sign of a radiculopathy in her left upper extremity.”[40]
[37]DCB 45
[38]DCB 62
[39]DCB 68
[40]DCB 74
45 He considered she had no incapacity for employment as a result of her work injury.
46 It is significant that Mr Elsner was not provided with the most recent MRI scan of September 2012 which, according to Professor Bittar, showed degeneration from the previous film, and also, in his opinion importantly, showed a significant kyphosis at C4-5 with spinal cord compression.
47 I prefer the opinions of the plaintiff’s various treating practitioners, particularly her general practitioner, Dr Phan, and her treating neurosurgeon, Mr Han. I further prefer the opinion of Professor Bittar. He is the only consulting practitioner to have had access to the MRI scans of September 2012. Neither Mr O’Brien nor Mr Elsner appear to accept the complaints of chronic neck and shoulder pain in the history provided by the plaintiff, although it is not clear why that is the case. The opinion of Dr Strauss is of little assistance.
Credibility of the plaintiff
48 I found the plaintiff a credible witness giving a believable account of the injury she has suffered and its consequences. She made concessions in cross-examination, as I would expect of an honest witness. There were no major credit issues put to her, save that in a short passage of surveillance film taken in December 2005, she appeared to walking without restriction, and for a distance of less than 100 metres, jogging. When these activities were put to Professor Bittar, he was not surprised the plaintiff was able to engage in them. In cross-examination, she said that she did not go jogging at the present time and could not recall whether she had been jogging in the past. When asked whether jogging would be too painful she said, yes, but that she attempted exercises in a swimming pool. I did not view the video film as impeaching her credit.
49 Having concluded the plaintiff is an honest witness, generally I accept her complaints of the onset and continuation of pain and restriction as set forth in her affidavits, in her evidence before the Court and in the histories to the various doctors.
Conclusions
50 I am satisfied the plaintiff suffered an injury to her neck in the course of her work activities, in particular in March 2004. I am satisfied that the injury was an exacerbation of a previously asymptomatic cervical disc degenerative disease at a number of levels, in particular at C4-5, C5-6 and C6-7. While it is not clear which of these levels is the source of the plaintiff’s pain, I am satisfied it is one or all of them. In particular, I accept the opinion of Professor Bittar that, having reviewed the MRI scan of September 2012, there is significant degeneration at those levels with kyphosis and, importantly, indentation and compression of the left C6 nerve root. In essence, there is support for the plaintiff’s complaints of pain in the neck with referred pain to the shoulder and the left arm, from the MRI scans in particular that of September 2012. Neither Mr Elsner nor Mr O’Brien had that MRI available.
51 The plaintiff has an impressive work history. I accept that she has been largely in full time employment a number of years after arriving in the country, with only brief periods away from work for the birth of her children. I am further impressed with her attempts to return to employment on three occasions after her work with the defendant was terminated. All in all, I assess the plaintiff as having a strong work ethic. All of that mitigates against the supposition in particular of Dr Strauss that the plaintiff preferred to remain at home looking after her family, than to work.
52 I accept the plaintiff’s complaints of ongoing persistent neck pain. This has required a range of significant treatment over the years, mainly of a conservative nature, including the prescription of pain relieving medication, physiotherapy, hydrotherapy and various other forms of treatment. I further note the opinion of Professor Bittar that there is the prospect of surgery when it can be determined the precise level in her cervical spine which is causing the pain.
53 Mr Curtain’s principle argument in submissions was that, in accordance with the opinions of Messrs O’Brien and Elsner, that while the plaintiff may have suffered some soft tissue injury either to the neck or shoulder in the incident of March 2004, that to the extent that she suffers pain in the neck with referred pain down the left arm, that is related to the underlying degeneration in her cervical spine, and not to any work related trauma. For the reasons expressed, I prefer the opinions of Dr Phan, Mr Han and Professor Bittar that the plaintiff’s complaints are related to her employment, in particular what occurred on 25 March 2004. That is the history obtained by all those doctors. Initially, the plaintiff’s symptoms appear to be with her left arm, although it is consistent that was related to her cervical spine. I note the first CT scan of 3 April 2004, requested by Dr Le, was of the cervical spine. It is reasonable to infer he considered the problem with the pain or altered sensation in her left arm was neck related. Further, I accept her evidence as contained in her affidavits, and to the Court, that the onset of significant problems in the cervical spine were related to the workplace incident.
54 Further, in accordance with the principles established by Alcoa of Australia Ltd v McKenna,[41] once the plaintiff has established that she suffered an injury in compensable circumstances, the consequences of which meet the statutory test, then it is a matter for the defendant to show, where it is alleged the plaintiff’s injury occurred outside employment, or was not significantly contributed to it by employment, that the plaintiff’s case is “absolutely hopeless” or “bound to fail”. The causal connection between the plaintiff’s injury and any workplace incident, or process of employment should be a matter to be determined at trial, rather than in this preliminary gateway application. However, notwithstanding, and for the reasons stated above, I am satisfied that the plaintiff’s current symptoms and consequences are related to her employment.
[41][2003] VSCA 182 at paragraph [19]
55 I accept the opinions of Dr Phan,[42] Mr Han[43] and Professor Bittar[44] that the plaintiff currently has no work capacity. She has limited English and has been always employed in manual processing type work. These matters are to be taken into account in assessing “suitable employment” within the definition in s5 of the Act. The plaintiff’s application in respect of economic loss thus succeeds. According to the principles established by Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[45] given my finding in respect of loss of earning capacity, the plaintiff’s application as to pain and suffering also succeeds.
[42]PCB 48, 49b
[43]PCB 70
[44]PCB 102
[45][2009] VSCA 170 at paragraphs [63]-[64]
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