Jankoska v Oneforce Group and VWA
[2020] VCC 914
•26 June 2020
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04682
| DANIELA JANKOSKA | Plaintiff |
| v | |
| ONEFORCE GROUP AUSTRALIA PTY LTD and VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 & 24 March 2020 | |
DATE OF JUDGMENT: | 26 June 2020 | |
CASE MAY BE CITED AS: | Jankoska v Oneforce Group & VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 914 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; causation; delayed complaints; credibility
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Apps v VWA [2020] VSCA 21; Jayatileke v Toyota Motor
Corporation Australia Limited [2008] VSCA 167; Doolan v
Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219
Judgment: Leave granted for pecuniary loss and pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Rattray QC with Ms K. Manning | John Dellios |
| For the Defendant | Mr T. Storey | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Daniela Jankoska was employed by the first defendant, a labour hire company, between May 2009 and October 2011. During that period she generally worked for a host employer, Mushroom Exchange Pty Ltd (“the host employer”) on a permanent/part-time basis from 20 to 30 hours per week packing mushrooms. She claimed this work involved repetitive use of both arms and hands and some strain on her neck. There was no specific incident relied upon by Ms Jankoska, although she was struck from behind by a forklift in August 2011, some two months before she ceased employment with the host employer. Ultimately there was little reliance placed on this incident in terms of the present application.
2 Ms Jankoska maintains that she had commenced to experience discomfort and pain in her shoulders, neck, arm and hands during her work with the host employer and had attended her general practitioner, Dr Ristevski. The condition was initially treated as a carpal tunnel syndrome and she underwent surgery for that condition in late 2012. Her symptoms persisted and it was later recommended that she undergo cervical discectomy and fusion, which was performed in May 2016.
3 In the present application Ms Jankoska seeks leave to claim damages on the basis that she had sustained a serious injury arising out of or in the course of her employment with the first defendant, when placed with the host employer. She seeks leave in respect of both pecuniary loss and pain and suffering damages. Her application relies upon paragraph (a) of the definition of serious injury set out in s 134AB(37) of the Accident Compensation Act 1985 (“the Act”).
4 Mr Rattray QC, who appeared with Ms Manning on behalf of Mrs Jankoska, identified the spine as the body function relevantly lost or impaired for the purposes of the statutory definition.
5 Mr Storey, who appeared on behalf of the defendants, identified the issue of causation as the main area of dispute, although he took issue with the extent to which the consequences suffered by the plaintiff satisfied the statutory definition. In final submissions Mr Storey accepted that causation was the only issue remaining in dispute. A further complicating feature of this application involved Ms Jankoska working in two separate retail delicatessens for periods between late 2011 and April 2016, with the first period of employment ceasing in 2014, shortly prior to her carpal tunnel surgery.
6 Ms Jankoska was required for cross-examination, as was her treating general practitioner, Dr Jim Ristevski. The parties otherwise tendered material from their respective court books and clinical records as the evidence in this application.
7 Both parties filed written submissions at the conclusion of the evidence, principally as a result of the restriction on available court time during the COVID-19 pandemic.
The lay evidence
8 Ms Jankoska swore two affidavits in support of her application on 1 June 2018 and 17 January 2020.[1]
[1]Exhibit A, pp 1-14 & 200-208
9 In her first affidavit Ms Jankoska described commencing work with the host employer on 30 May 2009. She described the nature of her work which generally involved quality checking, packing and box assembly on a permanent/part-time basis, varying between 20 and 40 hours per week.[2]
[2]Exhibit A, pp 3-4 [9] to [12]
10 The work was described as highly repetitive with some tasks more physically demanding, and many of the work tasks being performed at a fast pace.
11 Ms Jankoska described developing “soreness, discomfort and pain in both wrists and hands, in both shoulders and arms and neck.”[3]
[3]Exhibit A, p 4 [14]
12 She referred to in an incident in about August 2011 when she was struck by a forklift:
“I did not think much of the incident. I continued working. I am unable to recall if I took any time off work at that time.”[4]
[4]Exhibit A, p 5 [16]
13 Ms Jankoska described attending her general practitioner, Dr Ristevski, in September 2011 in relation to pain in her right arm, elbow and wrist. She ceased work with the host employer in about mid-October 2011:
“After I stopped work, the pain and symptoms in the wrists and hands, and the shoulders, the neck settled but never went away.”[5]
[5]Exhibit A, p 6 [20]
14 Ms Jankoska obtained a job as a delicatessen assistant in late November 2011, working 10 to 15 hours per week over three to four days. She described this as lighter work, but continued having pain in both wrists and hands, worse in the right than the left. She eventually had further investigations and surgery was performed on her right wrist in late November 2012. Following the surgery her wrist remained painful and restricted and:
“… over time, the pain in the right wrist and hand got progressively much worse.”[6]
[6]Exhibit A, p 7 [24]
15 She remained off work for approximately 12 months recovering from the surgery. Due to the poor result on her right wrist, she declined to have surgery on the left wrist as had previously been recommended.
16 In about November 2013 she attended another general practitioner, Dr Ganasan, who recommended treatment by a psychologist. She travelled overseas with her husband in early 2014 and believed this helped her emotionally. In February 2014 she was having severe neck pain and other symptoms, including weakness in her left arm. She was having similar symptoms in her right arm which then became more severe. She was then referred to a neurologist. In May 2014 she was referred by Dr Ristevski for further investigations and then to a neurosurgeon, Mr Drnda, who she saw in late July 2014.
17 Ms Jankoska’s symptoms continued, but in November 2014 she returned to work as a casual delicatessen assistant, working about 13 to 15 hours per week. She was referred by Dr Ristevski back to Mr Drnda in about September 2015. She eventually underwent spinal surgery performed by Mr Drnda on 2 May 2016. She has not returned to work.
18 Ms Jankoska described a poor result from the surgery stating:
“Overall, it seemed the surgery had made little difference to the chronic problems I had been having with my neck and arms and hands.”[7]
[7]Exhibit A, p 10 [36]
19 Her affidavit described referral to a further neurosurgeon for a second opinion and a recommendation for revisional surgery. She declined this surgery as she was fearful it would make things worse. She described in considerable detail the restrictions in her day-to-day life as a result of her ongoing problems with her neck, arms and hands following the spinal surgery. She described remaining under the care of Dr Ristevski and referred to ongoing emotional problems requiring further psychological treatment:
“The depression and the anxiety are a direct consequence of the physical injuries suffered in the course of my employment with the Defendant.”[8]
[8]Exhibit A, p 14 [50]
20 In her second affidavit sworn shortly prior to the hearing, Ms Jankoska described ongoing pain and restricted movement of her neck:
“I have pain from the neck into both shoulders and the lower neck. I have pain and symptoms in both arms and hands, especially the right hand and the fingers of the right hand.”[9]
[9]Exhibit A, p 201 [3]
21 She described the pain as:
“… constant, it never goes away; it varies in intensity. There is always a level of aching discomfort, worse on the right side on the neck than the left.”
22 The pain was described as unpredictable and fluctuating.[10]
[10]Exhibit A, p 201 [6]
23 She described a number of restrictions in her day-to-day life and noted greater weakness in the right arm and hand than the left. She described being naturally right-handed.[11]
[11]Exhibit A, p 202 [10]
24 Ms Jankoska also described her work with the host employer in more detail, and stated that she was struggling to keep up with the pace of the work on each of the tasks she was allocated. She also referred to her difficulties with the English language and her inability to use computers. She had done work in factories and a training course as a personal care attendant. She had found work in this field to be very confronting and upsetting.[12]
[12]Exhibit A, p 204 [17]
25 Ms Jankoska also referred to suffering a neck injury in earlier employment in about 1996. She stated:
“I was treated by Dr Ristevski. I had physiotherapy treatments and used medications. I was off work for about 2 weeks before returning to work on modified duties and later without any restrictions.”[13]
[13]Exhibit A, p 204 [18]
26 Ms Jankoska’s second affidavit also described casual work she had done as a delicatessen assistant with one employer from November 2011 until March 2013, and with a second employer from November 2014 until approximately April 2016. She also described having surgery on her right wrist in November 2012, after which she was off work for about six to eight weeks. She also described having gall bladder surgery in September 2013, resulting in approximately 12 months off work.[14]
[14]Exhibit A, pp 204-205 [19] & [20]
27 Ms Jankoska had been reviewed by Mr Timms in August 2019 and Mr Drnda in October 2019. She had decided she would not have further surgery to her neck. She was continuing to take medications as prescribed by Dr Ristevski. She described a worsening of neck pain and soreness in both arms when she did not take the medication.[15]
[15]Exhibit A, p 206 [27]
28 She continued to be frustrated, depressed and worried about the chronic neck pain and pain and symptoms affecting her arms. These caused difficulties with many of her day-to-day tasks.[16]
[16]Exhibit A,, p 207 [28]
29 When cross-examined I noted the following matters as relevant to his application:
· Ms Jankoska worked between two and four days per week, with her hours varying between 25 and 30, and rarely up to 40 hours.[17]
[17]Transcript (“T”) 14, Line (“L”) 4 to L 15
· The individual tasks were light in nature, but the work was constantly repetitive and fast.[18]
[18]T 15, L 28 to T 16, L 11
· Ms Jankoska maintained she had complained about the pace of the work at meetings, but did not make written complaints.[19]
[19]T 17, L 3-7
· Ms Jankoska agreed that there was no complaint about wrist, elbow or neck pain made at the mushroom factory between May 2009 and September 2011. She stated that she experienced pain initially in 2010 and gradually got worse by 2011.[20]
[20]T 18, L 19-31
· From mid-2010 she would complain from time to time to her general practitioner, Dr Ristevski. This concerned pain in her hands, arms and neck.[21]
[21]T 19, L 4-18
· She had complained to Dr Ristevski about neck pain in 1997.[22]
[22]T 19, L 28-31
· Ms Jankoska recalled taking tablets around that time, but could not recall whether she had any scans taken.[23]
[23]T 20, L 12-23
· She could not recall attending Dr Ristevski with a complaint of right elbow pain in July 2008.[24]
[24]T 21, L 2-5
· Ms Jankoska was taken to clinical records showing complaints of neck pain on 6 March 2009 and 10 August 2011, but no further reference to the neck in that period. She maintained that she had mentioned the neck to Dr Ristevski.[25]
[25]T 25, L 24-31
· Ms Jankoska was asked about a medical record on 17 May 2011 noting she was stressed and anxious, her husband was undergoing a court hearing and she was having sleeping difficulty and work difficulty. She maintained that the cause of this was pain in her hands and the repetitive work:
“I couldn’t catch up with the work, the problems with the neck.”[26]
[26]T 26, L 6 to T 27, L 13
· Ms Jankoska agreed that in August 2011 she was struck in the back by a forklift while working on a line boxing plastic bags containing mushrooms.[27]
[27]T 27, L 14 to T 28, L 3
· She had pain and bruising around the mid-back area. There was no documented report of the incident.[28]
[28]T 29, L 2-24
· She did not require any time off work or change of duties. She effectively kept working as normal.[29]
[29]T 30, L 4-8
· She stopped work in October 2011:
“Because of the pain I was experiencing I couldn’t cope with the work that I was doing.”[30]
[30]T 31, L 4-6
· She agreed giving a history to Dr Entwisle that she had ceased because there was not enough work. She maintained she had told him also that she was experiencing pain, but the agency had said there was a reduction in work.[31]
[31]T 33, L 9-21 & Exhibit 2, p 26
· She agreed that there may have been a business downturn and she was only working two to three days per week for the month. She agreed that she eventually received no calls to attend work, but maintained that her biggest problem was the pain she was experiencing.[32]
[32]T 33, L 26 to T 34, L 24
· After ceasing work at the mushroom factory she worked in a delicatessen in Lalor for approximately 12 months commencing in late 2011. After ceasing that work she went to another delicatessen.[33]
[33]T 35, L 12-19
· She did this work because she wanted to continue working and found an easier job that she could do.[34]
[34]T 35, L 24-31
· Ms Jankoska maintained she complained about her neck to Dr Ristevski after finishing work with the Mushroom Exchange. She was being prescribed Mobic.[35]
[35]T 36, L 18-31
· She agreed that a prescription of Mobic in October 2011 related to her right wrist and right elbow.[36]
[36]T 37, L 9-11
· She did not recall complaining about bilateral hip pain in July 2012, “not much, vaguely.”[37]
[37]T 37, L 13-16
· Ms Jankoska agreed she told Dr Shan, in August 2017, that she had to stop working in October 2011 without mentioning the business slowing down.[38]
[38]T 40, L 22 to T 41, L 6
· She also agreed that in March 2017 she had told Mr Timms that she had hurt her neck at work moving pallets. When it was suggested this was a different history to that given to other doctors she stated:
“I don’t understand what’s different about it because in my work I was experiencing pain, and I was always pulling pallets in as part of my job.”[39]
[39]T 41, L 12-22
· She agreed telling Professor Bittar in May 2019 that her work was done at a fast pace with repetitive rapid upper limb movements. She denied telling him that she was instructed not to come to the factory in mid-October 2011.[40]
[40]T 43, L 1-28
· In early 2014 she saw another general practitioner, Dr Ganasan, whose practice was closer to her home. He referred her for cervical spine x-rays. She informed Dr Ristevski of those results.[41]
[41]T 45, L 1-18
· In late 2012 she was referred to a Dr Chang, a specialist who performed a carpal tunnel release on her right wrist. She returned to work at the delicatessen after that procedure. She was off work for about six or eight weeks.[42]
[42]T 45, L 19-29
· In mid-2013 Ms Jankoska had surgery for a gall bladder condition. She was off work for approximately 12 months following that procedure.[43]
[43]T 47, L 3-6
· When further cross-examined Ms Jankoska maintained that she had complained of neck pain to Dr Ristevski while working at the Mushroom Exchange.[44]
[44]T 48, L 6-31
· She disagreed with the proposition that Dr Ristevski had not commented on neck pain in the medical reports prior to early 2014 stating:
“The fact that I was telling him earlier before that time when I first developed the pain, maybe he started taking notice and recording it when he started sending me to a specialist and maybe that’s when he considered it to be serious.”[45]
· Ms Jankoska agreed that she had done a training course as a personal care attendant, “it was for a cleaning job,” probably in 2009 before commencing at the Mushroom Exchange.[46]
[45]T 49, L 23-27
[46]T 54, L 1-18
30 Finally in cross-examination Ms Jankoska was asked about a number of alternative job descriptions. She maintained that she had continued working at the delicatessens, “I was forcing myself with a lot of pain, and that’s why I ended up having the surgery.”[47] She maintained she had a poor result from surgery and could not return to work”
“I know my pain, I know my limits. With the pain that I experience at the moment, I know that I can’t do work. If I was able to do work, I would have gone back like I did before.”[48]
[47]T 57, L 23-29
[48]T 58, L 1-4
31 In re-examination Ms Jankoska denied that she had been offered any re‑training or assistance in obtaining work. She maintained that if she had to keep her head down, looking forward for a long period of time, her symptoms would be:
“?---Very bad. I experience dizziness and also pain in my neck.
What about repetitive reaching and repetitive picking up items?---I experience pain. I find it very difficult.”[49]
[49]T 60, L 13-19
The medical evidence
32 The plaintiff tendered in evidence a considerable volume of medical material from treating doctors and medico-legal consultants.[50] This material included two recent reports from the treating neurosurgeon, Mr Armin Drnda, dated 25 October 2019[51] and 13 January 2020.[52]
[50]Exhibit A, pp 31-35, 38-41, 69-149, 183-199 & 211
[51]Exhibit A, pp 198-199
[52]Exhibit A, p 211
33 Mr Drnda had first seen Ms Jankoska on referral from Dr Ristevski in July 2014. At that time he diagnosed what he described as a:
“… chronic quite large disc protrusion at C5/6 causing compression on the C6 nerve root in the foramen on the right side.”[53]
[53]Exhibit A, p 71
34 He wrote to Dr Ristevski again in October 2015, after reviewing Ms Jankoska. He noted an increasing complaint of neck pain at that time, but was not optimistic for surgery offering any benefit:
“… I am not looking forward to offering Mrs Jankoska surgery as per her really negative attitude. Psychological factors are so dominant that they can overcome any potential benefit of surgery.”[54]
[54]Exhibit A, p 72
35 In December 2015 he wrote again to Dr Ristevski advising that he would proceed with surgery, noting her pathology as follows:
“MRI scan showed she has got clear C5/6 foraminal stenosis with disc osteophytes complex, so it is rather chronic. It is compressing the C6 nerve.”[55]
[55]Exhibit A, p 73
36 She came to spinal surgery at the Austin Hospital on 2 May 2016. Unfortunately it would appear the results following that surgery were much as Mr Drnda had earlier predicted.
37 Dr Drnda’s next report was not until October 2019 when he noted on examination as follows:
“… she looked pretty depressed. She had limited movements in her neck in all directions. There was a fear of movement present … She has signs of illness behaviour. She otherwise had normal strength in all muscle groups although she required a lot of encouragement to perform because her fear of movement was interfering with assessment. Reflexes were all on the lower end of normal and symmetrical. There were no definite changes that would be (in) keeping (with) a normal dermatomal pattern. There was a vague loss of feeling in most of her right arm. She was tender over the right side of the neck and over sternocleidomastoid and trapezius muscles. Palpation there was producing local pain but was also triggering pain that was spreading down her spine and down into her arms. These were typical trigger points. She had further tender points along her right arm, which is not a feature of radiculopathy.”[56]
[56]Exhibit A, p 198
38 Although Mr Drnda felt that there were still persisting stenosis at the C5/C6 level, he could not attribute her right arm and neck pain to that local region:
“Ms Jankoska exhibits typical signs of central sensitisation. There is a degree of illness behaviour. She is depressed.”[57]
[57]Exhibit A, p 198
39 Mr Drnda recommended treatment by a psychiatrist and believed that she required multidisciplinary pain management at that time. He did not recommend any further surgery stating:
“I would not attempt surgery because the likelihood of that surgery will not achieve anything and there even is a small change to get worse in a situation where there is central sensitisation.”[58]
[58]Exhibit A, p 198
40 Mr Drnda’s final report was dated 13 January 2020 and directed to the plaintiff’s solicitors. He was asked specifically whether “central sensitisation” represented an organic injury. He stated:
“Central sensitisation is a scientifically proven, organic change in the central nervous system pain pathways … resulting in spontaneous pain generation, pain amplification and perpetuation. Once established there is no cure to central sensitisation and thus no cure for chronic pain. However, there are self-help techniques and strategies aimed at improving pain control and restoring improved function.”[59]
[59]Exhibit A, p 211
41 Mr Drnda did not address the issue of causation.
42 The material tendered on behalf of Ms Jankoska included three reports from another treating neurosurgeon, Mr Craig Timms.[60] Mr Timms first saw Ms Jankoska on referral from Dr Ristevski on 1 March 2017. He recorded a history as follows:
“Around August 2011 she hurt her neck at work moving pallets.”[61]
[60]Exhibit A, pp 89-91 & 193
[61]Exhibit A, p 89
43 He noted her ongoing complaints following the surgery. He also noted the development of a pseudomeningocoele (spinal fluid leakage) extending down from the C6 level. He commented that such complications following surgery usually resolve, although apparently not in her case. He stated:
“I believe she has been offered further surgery, decompression and drainage of the pseudomeningocoele which may be a reasonable thing. However, again, in my experience this is quite unique and I cannot give any educated advice from any time of experience with this particular process, other than to suspect they are probably quite difficult to deal with.”[62]
[62]Exhibit A, p 89
44 At that stage he recommended further imaging and noted that Ms Jankoska was not keen to undergo any further surgery.
45 On 23 March 2017 Mr Timms wrote to an insurer, presumably in relation to a disability insurance policy.[63] He regarded Ms Jankoska as completely incapacitated at that time, stating:
“Mrs Daniela Jankoska was involved in a significant cervical spine surgery and this (she) has unfortunately suffered a complicated surgical treatment course at the Austin Hospital which has worsened her condition.
…
Mrs Daniela Jankoska is receiving analgesia, physiotherapy and massage. She is likely to require further investigation and may require a surgical procedure to repair the injury suffered, likely at the cervical surgery performed at the Austin Hospital. From my assessment of her she remains permanently incapacitated.”[64]
[63]Exhibit A, p 91
[64]Exhibit A, p 91
46 Mr Timms examined Ms Jankoska again in August 2019. He wrote to Dr Ristevski on 28 August 2019 describing her as having had “a fairly stormy course.” He recorded a history of employment as follows:
“She was working in a mushroom factory in Mernda from 2009 to 2011. The last three or four weeks before stopping work she had increasing pain in her neck and down both arms. She had to stop work because she was unable to function with decreased range of movement in the neck and pain and weakness down both arms to the fingers.”[65]
[65]Exhibit A, p 193
47 Mr Timms noted treatment given through the Austin Hospital, and also the surgical procedure performed by Mr Drnda. His report was then directed to the potential for any further surgery. There was no aspect of the report directed towards the issue of causation.
48 The treating general practitioner, Dr Ristevski, had provided three reports dated 17 March 1997, 16 January 2017 and 15 November 2016.[66] Although there was no recent report tendered in evidence, his clinical notes were tendered by the defendant.[67] Additionally Dr Ristevski had been required by the defendant for cross-examination and gave evidence in some detail before me.
[66]Exhibit A, pp 76-86 & 183-186
[67]Exhibit 1
49 Dr Ristevski’s first report, dated 17 March 1997 noted complaints of pain to the neck, left shoulder and lower back, first reported to him on 26 August 1996. At that stage she had been working as a machine operator for Australian Wiring Systems and Dr Ristevski noted her work as “repetitive in nature but not generally heavy.”[68] He diagnosed the injury as musculo ligamentous in nature and noted that she had returned to her normal pre‑injury duties when he last saw her on 25 October 1996. A certificate of capacity relating to that examination as also tendered in evidence.[69]
[68]Exhibit A, p 76
[69]Exhibit A, pp 74-75
50 Dr Ristevski’s more recent report of 16 January 2017 related to the injuries relevant to the present application.
51 Dr Ristevski noted Ms Jankoska’s employment history in various jobs in the past, “including work in a mushroom producer and most recently work in a delicatessen.”[70] He recorded a development by gradual onset of right neck and right upper limb pain and pins and needles sensation in her right hand without specific injury. He referred her for radiological examination in June 2014 and then referred her to Mr Drnda.
[70]Exhibit A, p 80
52 As to the central causation issue Dr Ristevski’s report opined the following:
“Mrs Jankoska did not sustain any specific injury. She has worked in various jobs including a mushroom processing plant and more recently in a delicatessen. She last worked in the mushroom plant around 2012 via an employment agency. The nature of the past work may have contributed to the development of the neck lesion.”[71]
[71]Exhibit A, p 82
53 When Dr Ristevski was cross-examined noted the following matters relevant to my determination:
· He agreed with Mr Storey that he would use and apply the Medical Board of Australia’s “Good Medical Practice” Code of Conduct.[72]
· Dr Ristevski was taken through the Code of Conduct in some detail and agreed that he attempted to apply it to his practice in relation to maintaining records and administering treatment.[73]
· He had initially started treating Ms Jankoska in around 1996.[74]
[72]T 69, L 1 to T 71, L 27
[73]T 69, L 18 to T 75, L 27
[74]T 76, L 27 to T 77, L 26
54 Dr Ristevski was provided with his clinical notes.[75] He was then cross‑examined at some length largely interpreting clinical notes made between July 2008 and May 2014.[76]
[75]Exhibit 1
[76]T 79 to T 90
55 Dr Ristevski agreed that he had recorded a complaint of pain near the right side of the neck on 24 February 2013.[77] He also agreed that from the moment he was appraised of the neck problem he did a number of things, including referring her to a specialist.[78]
[77]T 90, L 26-31
[78]T 91, L 9-11
56 Dr Ristevski agreed there had been no specific incident reported to him as to how the neck injury had occurred.[79]
[79]T 92, L 14-23
57 Dr Ristevski agreed that he had not recorded any complaint of neck pain during the period of employment between May 2009 and October 2011.[80]
[80]T 94, L 23-27
58 Dr Ristevski agreed there was no note of the nature of the work at the mushroom processing plant in the clinical notes, but:
“I was aware of what the nature of the work was like and – yeah, as I said before, I’ve seen the processing plant.”[81]
[81]T 95, L 5-13
59 Dr Ristevski believed the causal link between the discovery of the major disc prolapse requiring surgery and the work for the employer was shown by the absence of previous radiological change and:
“… there was no other condition or injury that would account in her daily life that – the only thing that I could account, that may have contributed to the neck presentation was the nature of working in a repetitive type environment in a factory which occurred during the time of the mushroom employment.”[82]
[82]T 96, L 19-30
60 Dr Ristevski was taken to the plain x-ray report of 9 February 2014, which had been requested by Dr Ganasan. He agreed that the minimal degenerative changes then shown at the C5/C6 level could be present in a large number of people and may be slightly symptomatic or completely asymptomatic.[83]
[83]T 97, L 28 to T 98, L 20
61 Dr Ristevski was taken to a superannuation medical certificate relating to a consultation on 11 November 2016. He agreed he had completed that document noting symptoms first commenced on 16 June 2014 and further recording “progressive symptoms over a five year period.” He explained that this should have noted progressive pathology over a five year period.[84]
[84]T 98, L 25 to T 100, L 6 & Exhibit A, pp 183-186
62 Dr Ristevski agreed that it was possible that the pathology could have developed as a result of Ms Jankoska working at the delicatessen if she had been doing heavy work there. He believed the likelihood was that the progression would have taken longer.[85]
[85]T 102, L 24 to T 103, L 2
63 Dr Ristevski had made his own observations of work subsequently performed by other workers at Mushroom Exchange. He agreed he had not specifically gone through everything:
“… but I was aware what, what she was doing, based on where she was working.”[86]
[86]T 103, L 3-18
64 He was aware that she had worked at two delicatessens, but had no actual details of what she was doing.[87]
[87]T 103, L 26-30
65 When re-examined Dr Ristevski was asked to comment on work with the employer which he described as rapidly repetitive work.[88]
[88]T 105, L 13-15
66 Dr Ristevski was asked to comment on the relationship between that work and the progression of her condition and stated:
“In my opinion, on the balance of probabilities the nature of that work contributed to the development of her presentation.”[89]
[89]T 106, L 5-15
67 Dr Ristevski stated it was not unusual for symptoms to increase over time with the progression of degenerative change:
“We get patients that have radiology and they have no symptoms and then gradually the symptoms evolve. And we get patients where there’s an acute injury and then the symptoms come on instantly.”[90]
[90]T 108, L 31 to T 109, L 7
68 Dr Ristevski agreed that the presenting complaints in the right and left arms in 2011 were suggestive of a carpal tunnel syndrome, but he agreed a potential differential diagnosis would be cervical radiculopathy.[91]
[91]T 111, L 15 to T 112, L 28
69 A number of medico-legal opinions were tendered into evidence.[92] Without descending into great detail, I acknowledge the opinions of a general surgeon, a neurosurgeon and two occupational physicians supporting a causal link between Ms Jankoska’s cervical spine condition and the need for surgery with the employment at the Mushroom Exchange based upon the history recorded by the relevant examiners. In each case the opinions supporting a causal relationship was based upon the nature of the work being of repetitive manual tasks (as variously described).[93]
[92]Exhibit A, pp 97-149
[93]Exhibit A, pp 104, 115, 136 & 146
70 It is also clear from the medico-legal opinions, and indeed those of the treating medical practitioners, that Ms Jankoska had been treated for a carpal tunnel condition which may have produced similar symptoms, of numbness at least, in both upper limbs to those symptoms relating to the cervical spine lesion.
The defendants’ medical reports
71 Dr Ian Taubman, general physician, did not regard Ms Jankoska’s neck condition as being relevantly work related. He described the neck condition as degenerative and stated, at the time of his first report on 21 September 2016:
“Based on my examination and the history provided to me, this is not a new injury or medical condition or an aggravation, acceleration or exacerbation. It is a deterioration of a constitutional pre-existing medical conditions which are not work related.
In my opinion, the worker’s condition is not related to employment.”[94]
[94]Exhibit 2, pp 8-9
72 In a short supplementary report dated 7 November 2016 Dr Taubman disagreed with the opinion of Associate Professor Bruce Love ascribing a causal link between the employment and the neck injury.[95]
[95]Exhibit 2, pp 11-12
73 Associate Professor Bruce Love, orthopaedic surgeon, provided an initial report to the defendants’ insurer on 26 September 2016. He recorded the following history relating to employment:
“She states that in 2011 she had been working for several years in a factory that processed mushrooms. She said the work was high speed packing of mushrooms which were placed into bags and then packed into boxes which then had to be stacked on a pallet. This was rapid work and had to be done frequently in order for the pallets to be moved away.
From her it appears that the first symptoms were those of sensory disturbance in both hands.
She was diagnosed as having carpal tunnel syndrome following nerve conduction studies.
…
As time went by, she developed additional problems in the neck. These symptoms came on slowly but she cannot nominate any specific event that produced the neck symptoms.”[96]
[96]Exhibit A, Defendants’ Court Book (“DCB”) 15
74 His opinion concerning the cervical spine was as follows:
“Her cervical spine does not have a history of significant injury. Symptoms have come on spontaneously. I would be of the view that the neck symptoms are constitutional in nature. However, it can reasonably be accepted that the nature of her work while packaging mushrooms has aggravated the cervical spine condition. The images of the cervical spine taken before cervical spine surgery do not reveal major degenerative changes. The changes demonstrated on an MRI prior to cervical spine surgery reveal modest changes only.
I therefore conclude that her cervical spine condition can reasonably be accepted to be an aggravation of early degenerative change as a consequence of the nature of her work.”[97]
[97]Exhibit A, DCB 17
75 In a supplementary opinion provided on 14 November 2016, Associate Professor Love regarded the aggravation of the cervical spine condition as having ceased. However, Associate Professor Love also stated as to Ms Jankoska’s capacity:
“She is not fit to return to her pre-injury duties and hours at ‘Once Force Group’ and I doubt that this will occur in the foreseeable future.”[98]
[98]Exhibit A, DCB 23
76 Mr Ian Jones, orthopaedic surgeon, examined Ms Jankoska on 21 August 2017 and reported to the defendants’ solicitors on the same day.[99]
[99]Exhibit 2, pp 39-47
77 Whilst Mr Jones noted the poor result following the spinal surgery, he did not relate Ms Jankoska’s neck or bilateral arm complaints to her employment with the employer between 2009 and 2011.[100]
[100]Exhibit 2, p 47
78 Mr Kevin Siu, neurosurgeon, provided four reports to the defendants’ solicitors dated 20 September 2018, 21 March 2019, 27 November 2019 and 17 December 2019.[101]
[101]Exhibit 2, pp 48-58 & 66-72
79 In his first report he commented on the relationship between employment and the cervical spine injury as follows:
“As far as the neck is concerned, again she has had chronic neck symptoms and although she had a significant disc prolapse, I cannot really note work as the causation of her symptoms.
…
I remain unconvinced that work has precipitated the cause of the injury.”[102]
[102]Exhibit 2, p 51
80 Mr Siu re-examined Ms Jankoska on 20 March 2019 and noted that she reported no improvement or deterioration in her condition. He again commented on the causation issue:
“In summary, the worker had presented with neck pain and discomfort in both hands subsequent to working as a process worker picking mushrooms from a conveyor belt.
I previously formed the opinion that the employment would not have caused a disc prolapse. I remain of that opinion because her activities in her employment is unlikely to aggravate a degenerative condition.”[103]
[103]Exhibit 2, p 56
81 Mr Siu examined Ms Jankoska on a third occasion on 27 November 2019. At that stage he had been provided with the clinical records from Dr Ristevski from June 2008 and the report of Professor Bittar dated 3 May 2019. On that occasion he commented as follows as to causation:
“I do believe that most of her symptoms are from constitutional degenerative changes and therefore work has not contributed to the onset of symptoms.”[104]
[104]Exhibit 2, p 69
82 He specifically disagreed with Professor Bittar’s opinion supporting a relationship between the work and the subsequent worsening of symptoms:
“I disagree with Dr Bittar’s opinion and my conclusion is that there is constitutional degenerative symptoms accounting for her symptoms and work as a machine operator between 2009 and 2011 has not contributed to her symptoms.”[105]
[105]Exhibit 2, p 70
83 Finally Mr Siu provided a further supplementary opinion on 17 December 2019, after reviewing the complete clinical records from Dr Ristevski. He stated:
“I am still of the opinion that the employment between 2009 to 2011 has not caused the worker’s neck condition. I am still of the opinion that most of her symptoms are constitutional degenerative changes and work has not contributed to the onset of symptoms.”[106]
[106]Exhibit 2, p 71
84 Dr Phillip Mutton, occupational physician, provided a report to the defendants’ solicitors on 4 April 2019, after examining Ms Jankoska on the same date. That report did not express any opinion on the question of causation and was effectively limited to matters concerning Ms Jankoska’s capacity for suitable employment.
85 Mr Storey on behalf of the defendants additionally tendered into evidence two reports from the psychiatrist Dr Timothy Entwisle dated 27 September 2016 and 18 November 2016,[107] and a report from another psychiatrist, Dr Dush Shan dated 14 August 2017.[108]
[107]Exhibit 2, pp 25-30
[108]Exhibit 2, p 31-38
86 Dr Entwisle diagnosed Ms Jankoska as suffering from an adjustment disorder with depressed mood. In his supplementary report he noted that Ms Jankoska’s psychical injuries occurred in non-work related circumstances and:
“… any diagnosable mental injury arising in those circumstances would not be regarded as work related.”[109]
[109]Exhibit 2, p 30
87 Dr Shan diagnosed adjustment disorder with mixed anxiety and depressed mood.[110] As to causation he similarly indicated that this would be the case only if the physical symptoms were found to be related to the relevant employment.[111]
[110]Exhibit 2, p 34
[111]Exhibit 2, p 35
88 The remaining evidence in the case consisted of vocational assessments from Mr Radley dated 13 January 2019,[112] and from Janette Ash on behalf of Recovre dated 8 May 2019.[113]
[112]Exhibit A, pp 150-176
[113]Exhibit 2, pp 73-85
89 Also tendered from the defendants’ amended court book was a notice advising the termination of Ms Jankoska’s weekly payments and medical expenses dated 30 November 2016,[114] the Medical Board of Australia Good Practice Guide,[115] and the referral letter from Dr Ristevski to Mr Drnda dated 20 June 2014.[116]
[114]Exhibit 2, pp 86-91
[115]Exhibit 2, pp 92-116
[116]Exhibit 2, pp 1170-118
Analysis
90 Both parties helpfully provided written submissions. The defendants’ submissions dated 2 April 2020 identified causation as the only issue remaining in dispute for determination. The plaintiff bears the onus of proof that a causal connection exists between her claimed neck injury and her employment at the mushroom factory. The defendants’ submissions cautioned reliance upon the plaintiff’s credibility and referred to the decision of Apps v VWA[117] where the Court of Appeal stated, in relation to conflicting histories given to doctors:
“In the circumstances, the applicant’s histories, and her accounts to doctors, were of critical importance in determining whether the accident was in fact the cause of her back condition.”[118]
[117][2020] VSCA 21
[118]Ibid at [66]
91 In that case the plaintiff had suffered an injury to her knees when she tripped in July 2008. She returned to work with that employer for a period of approximately two years, making no complaints concerning her back. In early 2014 she was found on x-ray to have a disc protrusion at L4/5. She sought leave in respect of a back injury said to relate to her earlier fall. The Court of Appeal noted a delay of approximately five years between the original fall and the discovery of the spinal lesion. The Court of Appeal also made reference to the fact that after leaving the relevant employment approximately two years after the fall, the plaintiff commenced work for a subsequent employer as a receiving clerk:
“This work involved some lifting and bending. In cross-examination, the applicant accepted that particular work involving pallets could require her to bend anywhere between four and a hundred times per day.”[119]
[119]Ibid at [11]
92 I note also in that decision:
“The judge at first instance, “did not find the applicant to be a particularly impressive witness.” As a result, he did not accept as accurate the history that she gave to many treating and consulting practitioners that she had ongoing pain in her right leg and/or her back from the time of the fall up to January 2014.”[120]
[120]Ibid at [67]
93 Appellate courts have recognised the inherent difficulty faced by a court in reconciling conflicting medical opinions where the evidence is contained in medical reports and the witnesses are not called to give evidence to enlarge on those opinions, or to be subjected to cross-examination.[121]
[121]Jayatileke v Toyota Motor Corporation Australia Limited [2008] VSCA 167 at [4] & Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219 at [10]
94 Mr Storey pointed to transcript references to Ms Jankoska’s evidence where she had asserted that she had complained to Dr Ristevski from mid-2010 about her neck pain. Mr Storey submitted that this evidence could not be reconciled with Dr Ristevski’s notes, nor indeed with the evidence that had been given by him. On such a basis he submitted that Ms Jankoska’s application should be refused on a similar basis to the reasoning in Apps.
95 Mr Storey’s written submission refer to two vague references to neck pain recorded in Dr Ristevski’s clinical notes on 10 August 2011 and 24 February 2013. Mr Storey submits that there is no assistance from those records to relate the complaints of neck pain to any work related event with the employer. There is also criticism of the failure to produce a report from Dr Ganasan, who had referred Ms Jankoska for the plain x-ray of her cervical spine in February 2014.[122]
[122]Exhibit A, p 31
96 The defendants’ submissions urge a conclusion that Ms Jankoska’s evidence is unreliable and untruthful as to the timing of the complaints of neck pain.
97 Insofar as the treatment given in 1996 is concerned, Mr Storey submitted that this should be seen in stark contrast to any treatment administered by Dr Ristevski following the notes of neck pain in 2011 and 2013. He additionally submitted that an adverse inference should be drawn from the failure by the plaintiff to produce any report from Dr Ganasan.
98 The defendants’ submissions urge a conclusion that Ms Jankoska’s evidence is unreliable and untruthful as to the timing of the complaints of neck pain.
99 Having had the opportunity of observing the plaintiff during cross‑examination, and noting the difficulties she has experienced particularly since the complications following her spinal surgery in 2016, I am prepared to accept that there is a degree of unreliability, probably due to some unconscious reconstruction of the timing of events. I do not believe, however, that she attempted to mislead me in her evidence, but probably has a genuinely and strongly held belief as to the relationship between her neck injury and her employment with the Mushroom Exchange. Her evidence is supported to some extent by the clinical notes of 10 August 2011 and 24 February 2013.
100 In my view it is most probable that any such complaints were made in the setting of treatment directed towards the bilateral carpal tunnel syndrome which had been diagnosed in 2012. Dr Ristevski accepted this in re‑examination.[123]
[123]T 91
101 I also note the submissions on behalf of the defendants relating to the differing histories recorded by medico-legal examiners and even some treating practitioners. I do accept that the treating neurosurgeon, Mr Craig Timms, recorded a history noting:
“Around August 2011 she hurt her neck at work moving pallets.”[124]
[124]Exhibit A, p 89
102 In his second report Mr Timms noted:
“The last three or four weeks before stopping work she had increasing pain in her neck and down both arms.”[125]
[125]Exhibit A, p 193
103 This history is not consistent with the evidence given before me, and must significantly weaken any opinion on causation formed by Mr Timms. However, Mr Timms has not commented on causation in his reports.
104 The opinion of the treating surgeon, Mr Drnda, to which I have already referred, is not of any assistance as it does not address any issue of causation.
105 The absence of a report from Dr Ganasan is of little significance, as it would appear Ms Jankoska only went to him for a referral for x-rays as he was close to her home.
106 Dr Ristevski’s evidence in support of such a conclusion was based upon his claimed knowledge of the Mushroom Exchange workplace, which he had visited but not in relation to Ms Jankoska. Mr Storey in his written submissions was critical of Dr Ristevski maintaining that such professed knowledge of the workplace did not precisely identify the tasks which Ms Jankoska was required to perform during her period of employment. I do not see those criticisms as fatal to the overall opinion of Dr Ristevski.
107 The plaintiff’s submissions are critical of the defendants for failing to adduce any evidence as to the duties performed by Ms Jankoska. The defendant bears no onus of proving such matters. Nevertheless there is direct evidence by Dr Ristevski supporting a causal connection and such evidence must necessarily be based not only on his lengthy period of treatment of Ms Jankoska, but also on his apparent knowledge of the Mushroom Exchange acquired in other circumstances.
108 Where such a causal link is supported by a longstanding treating medical practitioner who has actual knowledge of the workplace, such opinion cannot be easily set aside in the absence of any contradictory evidence challenging the general description of the plaintiff’s duties as being generally repetitive and fast paced. This accords with the plaintiff’s description of the nature of the work with the host employer.
109 I do accept in this case that Ms Jankoska did experience some degree of pain emanating from the cervical spine condition in the latter part of 2011. Absent any evidence suggesting an alternative cause (such as a frank incident or some aggravation of the condition from other sources), I accept that the development of symptoms from that time, which were probably masked to some extent by the concurrent carpal tunnel syndrome, represented an aggravation of the underlying degenerative condition.
110 There seems to be little argument on the medical evidence that it was the progressive degenerative condition which led to the frank prolapse discovered on the MRI examination in June 2014. Such a causal link was accepted by Associate Professor Love, who was one of the first examiners to provide a report to the first defendant’s insurer. Although Associate Professor Love expressed a view less than two months later that the effects of the aggravation had by that time ceased, his opinion is somewhat ambiguous in that he notes also that Ms Jankoska was not fit to return to her pre-injury duties at that stage.
111 The opinions of Dr Taubman, Mr Jones and Mr Siu provide evidence militating against a finding in favour of the plaintiff on the causation issue. Conversely the medico-legal opinions from Mr Scott, Dr Kennedy, Dr Sillcock and Professor Bittar all support a causal relationship.
112 As has frequently been said in applications of this type, the volume of medical opinions favouring one conclusion should not be determinative of the ultimate outcome absent a sound path of reasoning being disclosed. There is sadly a lack of evidentiary detail before the court concerning the nature of Ms Jankoska’s true employment activities, equally there are certainly vagaries about the frequency of her complaints concerning neck pain. Nevertheless her evidence, and that of her treating general practitioner, Dr Ristevski, were the subject of searching and thorough cross-examination by Mr Storey.
113 On balance I accept the plaintiff to the extent that she did make complaints relevant to her neck, probably from the latter months of 2011. I am also persuaded that Dr Ristevski, as her long-term general practitioner with at least some knowledge of the Mushroom Exchange workplace is in a strong position to express an opinion concerning causation.
Conclusion
114 I am satisfied that Ms Jankoska has demonstrated that her employment by the first defendant with the host employer was a cause of injury to her in the nature of an aggravation, exacerbation, acceleration or deterioration of an underlying degenerative condition present in her cervical spine. Noting the sensible concessions set out in the written submissions on behalf of the defendants, I am therefore satisfied that she has suffered a serious injury for the purposes of s134AB of the Accident Compensation Act 1985 (“the Act”).
115 I propose to grant leave to the plaintiff to claim damages for both pecuniary loss and pain and suffering in accordance with the provisions of s134AB(16)(b) of the Act.
116 I will hear the parties in respect of the formal orders sought and on the question of costs.
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