Jordan v Commissioner of Police

[2015] NSWDC 153

District Court

New South Wales

Medium Neutral Citation:

Jordan v Commissioner of Police [2015] NSWDC 153

Hearing dates:

20 – 21 April 2015

Date of orders:

21 April 2015

Decision date:

21 April 2015

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Decision of the Commissioner of Police made on 14 August 2013 set aside

 

Finding that the suffering by the plaintiff of the condition of "chronic musculo-ligamentous strain of the cervical spine" was caused by the plaintiff's having been hurt on duty on 11 May 1989, 14 October 1991, 9 April 2002, 5 February 2004 and due to the type of work he performed for the defendant until 24 July 2008

 I order the defendant pay the plaintiff's costs.

Catchwords:

WORKERS COMPENSATION – Police Superannuation – Whether plaintiff hurt on duty – Plaintiff relied on four events capable of causing chronic musculo-ligamentous strain of the cervical spine – Conflicting medical opinion whether events capable of causing injury – Events capable of rendering plaintiff’s neck vulnerable – Work done by plaintiff involved prolonged sitting – Prolonged sitting caused vulnerable neck to become chronically symptomatic

Legislation Cited:

Police Regulation (Superannuation) Act 1906

Cases Cited:

Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656

Category:

Principal judgment

Parties:

Derek Anthony Jordan (Plaintiff)
Commissioner of Police (Defendant)

Representation:

Counsel:
Mr T Ower (Plaintiff)
Mr S Lowe (Defendant)

  Solicitors:
Walter Madden Jenkins (Plaintiff)
Rankin Ellison (Defendant)

File Number(s):

RJ61/14

Publication restriction:

No

Judgment

1. HIS HONOUR: The plaintiff Mr Derrick Anthony Jordan is a former senior sergeant of police. He was attested as a probationary constable of police on 7 November 1986, and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). The plaintiff last physically worked as a senior sergeant of police on 24 July 2008. He sought medical discharge in an application that was sent to the administrator of the Police Superannuation Fund on 16 May 2011.

2. On 24 November 2011 the Police Superannuation Advisory Committee established by the Act certified that the plaintiff was incapable of discharging the duties of his office on account of a "major depressive disorder". On 1 December 2011 the defendant by his delegate determined that the suffering by the plaintiff of that specified infirmity of mind was not caused by his having been hurt on duty. Eventually, on 27 May 2013, as a result of litigation in this Court, the defendant made a fresh determination and accepted that the suffering by the plaintiff of the infirmity of "major depressive disorder" was caused by his having been hurt on duty.

3. A few weeks later, on 18 June 2013, the Disputes Committee established under the superannuation legislation, an emanation of the SASTC, decided that the plaintiff was also unable to perform the duties of his office on account of "chronic anterior-talofibular ligament instability - right ankle; minor early osteoarthritis in the left knee; musculo-ligamentous strain of the lumbar spine; osteoarthritis of the right knee; an injury to the left ankle; as well as a chronic musculo-ligamentous strain of the cervical spine".

4. On 14 August 2013 the defendant by his delegate determined that the suffering by the plaintiff of all but the last of those conditions was caused by the plaintiff's having been hurt on duty. However, at the same time the defendant by his delegate determined that the "chronic musculo-ligamentous strain of the cervical spine" was not caused by the plaintiff's having been hurt on duty. As a result of that certification the plaintiff made an application to this Court on 12 February 2014, seeking to have that decision of the Commissioner of Police concerning the plaintiff's cervical spine set aside, and to replace it with a certification that the suffering by the plaintiff of a "chronic musculo-ligamentous strain of the cervical spine" was caused by his having been hurt on duty.

5. The simple issue, therefore, is for me to determine whether the plaintiff has established, on the balance of probabilities, that his suffering of "chronic musculo-ligamentous strain of the cervical spine" was caused by the plaintiff's having been hurt on duty. I should in the first place point out that the terminology "chronic musculo-ligamentous strain of the cervical spine" contains an oxymoron. A musculo-ligamentous structure is not part of the spine, which is a bony column in the body. I can only assume that what was intended to be certified was a chronic musculo-ligamentous strain of the neck.

6. The plaintiff was born in the United Kingdom on 24 June 1962. He migrated with his family to Australia when he was young. He told me that he grew up in the Blue Mountains area of this State, in particular at Springwood. His final school education was completed at St Gregory's College, Campbelltown, where he was a boarder. He obtained the Higher School Certificate in 1979. Between 1980 and 1986 the plaintiff travelled and had a few different jobs. He applied to join the Police Force and was offered a place in the Police Force on a number of occasions, finally accepting an offer, the defendant's final offer to him. The plaintiff attended the Goulburn Police Academy between August and November 1986, before being attested as a probationary constable, as I earlier said, on 7 November 1986.

7. The plaintiff's first posting was to Lismore, where he worked in general duties. The first injury relied upon by the plaintiff occurred on 11 May 1989. There is a contemporary report of injury form completed by the plaintiff. The report of injury form was made on the same day as the event in question. The details of the incident recorded in the contemporaneous document are these:

"At about 2.50am on 11 May 1989, as a result of a motor vehicle accident, I was thrown forward in my seat and when restrained by the seatbelt, I experienced severe discomfort to my middle/lower back and to the left side of my body in the rib cage region. Accident occurred when Police vehicle travelling north in Richmond Hill Road, collided with a cow which suddenly came out onto the road from the scrub."

The injuries reported in that document are these:

"Pain in the lower/middle back region and left side of body in the rib cage region."

The plaintiff was the observer and not the driver of the large police caged truck. The plaintiff's seatbelt caused bruising on his left shoulder, passing across the front of his rib cage to the right flank near the waist. The plaintiff referred to his hip area. Before even confronted with a document, the plaintiff said that he did not report a neck injury in the form because the neck pain came on later. He said that he did make a complaint of it to another officer. The name I have recorded is Ian Hill but my note might be incorrect. The plaintiff described the mechanism of the injury and it is a classic whiplash type injury. It would be unsurprising that the plaintiff experienced some neck pain after that event. The delayed onset of symptoms relating to a whiplash injury of the neck is common. It is common for people not to experience neck pain until a day or more after the injurious motor vehicle accident. It is clear from exhibit 10, the contemporaneous record of this event, and from the plaintiff's own evidence, that no medical attention was sought and there was no time lost from work. I wholly accept that the plaintiff experienced neck pain after this motor vehicle accident. However, the plaintiff's evidence-in-chief did not maintain that he had constant and unremitting neck pain since that time.

8. The next event referred to in the evidence is an event on 14 October 1991 when the plaintiff, with other members of the NSW Police, were undergoing officer survival training. There was practice shooting, presumably with a police revolver, and physical training. A concern at that time was anti-logging protests in the Chaelundi State Forest. A group of police went out into the forest to train to deal with logging protesters. From the plaintiff's evidence it appears that the protesters would form a human chain, interlocking their arms in order to inhibit the access of, presumably, logging trucks and logging personnel into an area of the State Forest. The plaintiff was trained to apply pressure to the necks of protesters in order to make them break their grip on each other, such that the human chain formed by the protesters was broken. The plaintiff learnt to do that but in the process of learning to do that also had to act as a protester. One of his colleagues applied force to a pressure point behind one of the plaintiff's ears or behind both. After that training, the plaintiff noticed ringing in his ears or tinnitus, which could well be due not to pressure being applied to the neck but rather to the revolver shooting, and he also noticed and ear ache and bruising behind his neck. The bruising behind the neck indicates some blunt force trauma caused by somebody applying pressure over a cervical structure, in particular the neck muscles However, it is likely, as has been submitted by Mr Ower for the plaintiff, that other movements were involved in this exercise which could well have caused a straining of the neck. However, there is no contemporaneous record of any injury, and there is no evidence that the plaintiff sought any medical treatment, nor was there any time lost from work. No medical evidence has been adduced from anyone who treated the plaintiff while he was serving at Lismore between 1986 and 1995.

9. In 1995 the plaintiff was required to transfer from Lismore. He initially took a transfer to a one man police lockup at Capertee, a remote valley north of Lithgow and north of the Wolgan Valley, a former shale mining town. Capertee Police Station is an outpost of the Lithgow Police Station. At the time the plaintiff was married and had two young daughters. He eventually was to have three daughters. The plaintiff only stayed at Capertee for a few months, his wife being completely disenchanted with its location and presumably with its isolation. The plaintiff then was transferred to the Inverell Police Station, and whilst serving there became a senior constable. The plaintiff sought promotion to the position of sergeant. He was promoted firstly to Dareton and subsequently to Peak Hill as a sergeant of police, but lost both appointments as a result of appeals by other applicants to the Government and Related Employees Appeal Tribunal.

10. In 1999 the plaintiff took a lateral transfer to Griffith. That is, he transferred to Griffith as a senior constable. He was assigned to work with the Police Citizens Youth Club (PCYC). Two police officers were supposed to be involved with the PCYC. One was to be their club controller, in essence the manager, another was to be the club programmer, the officer who worked with troubled youngsters who were at risk of becoming criminals. However, the plaintiff performed the work largely by himself. His work was successful. He took the membership of the PCYC at Griffith from the lowest in the State to the highest in the State, and told me that during his work at Griffith he received, or the PCYC at Griffith received, three awards.

11. An event occurred on 9 April 2002. The plaintiff and a volunteer were moving a trestle table down a steep flight of stairs. The plaintiff's foot slipped on one of the steps, causing the plaintiff to lose his balance and fall. He fell seven or eight steps, to the bottom of the staircase. The plaintiff told me that he injured his tailbone, his back and his hips. The major injury was the injury to his tailbone, which was very painful, and the area in question was bruised. Coccyodynia, pain in the coccyx, is notoriously severe and often causes a chronic problem. The plaintiff went to the Griffith Hospital and X-rays were performed, but there is no suggestion that X-rays were performed of the spine. The plaintiff told me that he was on crutches for three or four weeks, although some medical histories indicate the period may have been four or five weeks. The plaintiff told me that he submitted a report of this injury. A contemporaneous station pad entry is exhibit B. That entry was made at 5.55pm. The entry is this:

"This date about 1710pm whilst carrying a fold-up six foot table down the stairs from the group exercise room, my right foot slipped off the end of the step and I fell to the floor (on the stairwell) landing on my tailbone. In falling, my back and neck were jolted and I am in pain at the moment in the vicinity of my tailbone/lower back area, and my right ankle area is also extremely tender."

From the contemporaneous record I can readily accept that the plaintiff jolted his neck when he fell down the stairs. It is possible that he also strained his neck in the process of falling.

12. There are other documents concerning this event. Firstly there is exhibit 6, a Register of Injury completed on 29 April 2002. That only refers to pain in the tailbone area and in the right ankle. It records the plaintiff’s attending upon the Griffith Medical Centre and seeing Dr Peter Calaizis. However, the same document records that the plaintiff lost no time from work. There is also a claim for hurt on duty benefits, exhibit 7, which was dated by the plaintiff on 10 April 2002. It appears not to have been seen by the plaintiff's commander until 22 May 2002, but that is explicable by the fact that the commander of the plaintiff was not in Griffith as such but in Wagga Wagga. In the form which he completed, the exhibit 7, the plaintiff lists his injuries. It would appear that the jolting to the plaintiff's neck was not foremost in the plaintiff's mind on 10 April 2002. However, the document may have been misdated by the plaintiff because in it he refers to an examination by Dr Calaizis on 26 April 2002. Perhaps it ought to have been dated 10 May 2002, which ties in better with the signature by the plaintiff's commander on 22 May 2002. If I be correct in so redating the document, then it appears that the plaintiff's neck symptoms were not severe enough for him to record them in a document made after 26 April 2002. However, that there were neck symptoms at the time I readily accept. The plaintiff in his evidence-in-chief, and again without consulting any document, admitted that he did not feel his neck pain as much as the pain in his tailbone and lower back. No evidence has been adduced from Dr Calaizis or from the local hospital, so one can assume that there was no record made by Dr Calaizis of a neck problem, nor was there any X-ray performed of the plaintiff's neck. The plaintiff in his evidence-in-chief admitted that he did not lose any time from work immediately after this event.

13. At the end of that year, on 25 November 2002, the plaintiff was promoted to be the zone commander of the PCYC for metropolitan Sydney and the Central Coast. That zone stretched from Umina in the north to Maroubra in the south, and essentially was the eastern suburbs of Sydney, the North Shore of Sydney and the lower Central Coast. As the zone commander, the plaintiff had the rank of a senior sergeant. He never was a sergeant of police, being promoted from the rank of senior constable directly to senior sergeant. That promotion bespeaks the plaintiff's effectiveness in his role as a manager of PCYC activities. As the zone commander, the plaintiff was required to travel every day throughout the areas of the zone, and when not travelling did a lot of work sitting down working at a computer, both at his place of work and his place of abode. When involved in prolonged sitting in either the car or before the computer, the plaintiff told me that his back and neck would often stiffen up. I accept that to be the case.

14. On 25 October 2003 the plaintiff was transferred to be the PCYC commander of the northern region. His office was at the Tamworth PCYC, in the most southerly part of the zone, so as to enable him to have more ready access to Sydney when he needed to attend Sydney for things such as meetings. The zone stretched from Tweed Heads to Port Macquarie and as far inland as Gunnedah. The plaintiff then commenced a regime of extensive travelling.

15. The plaintiff was provided with a government vehicle. Because the State paid no sales tax, and presumably no GST, the State could purchase vehicles and after they had travelled some 15,000 kilometres sell the vehicle at little cost to the State, and therefore cars were regularly replaced after they had travelled 15,000 kilometres. The plaintiff told me that he got a new car every three or three and a half months. That indicates that the plaintiff was travelling up to 60,000 kilometres every year.

16. The work in the northern zone also required extensive work behind a computer, both at home and at work. The plaintiff's work in the northern zone involved the introduction of civilian employees into PCYC as managers, so that the police involved in the PCYC could work with persons who were young offenders or who it was suspected might become young offenders.

17. On 5 February 2004 a further incident occurred. The plaintiff was establishing an office in an upstairs room the Tamworth PCYC and for that purpose was carrying parts of a filing cabinet up to the room. It was a two drawer filing cabinet. The plaintiff had already carried up the cabinet itself, and on the occasion in question was carrying up one of the drawers of the filing cabinet. The plaintiff told me that he missed his step and jolted both his back and his neck. He also sustained a laceration to his right arm. There is a contemporaneous report of injury form, namely exhibit 9. That lists injury to the lower back and hip, the right wrist, and also a laceration of the right forearm. The document which is exhibit 9 appears to have been a second claim form, because the paper is dated it 1 April 2004 and written beneath that date is "previously sent 6 February 2004". The document however bears a notation by the plaintiff's commander which bears date either 12 March 2004 or 12 May 2004. Initially I thought it was the March date but it seems more likely to have been a May date. Again, it is possible the plaintiff experienced some jolting or jarring injury to his neck as he told me but he did not mention it in the document made by him on 1 April 2004, some two months later. That suggests that the plaintiff's neck symptoms may have been transient.

18. By this time the plaintiff was living at Nambucca Heads where his new partner resided. At Nambucca Heads the plaintiff attended the Peachtree Medical Centre. On 29 March 2004 the plaintiff saw Dr Peter Lawler at that practice. The history recorded in the practice's notes (exhibit 5) is this:

"Complaint of lower back pain and neck pain in the last few days. Had a back injury two years ago, fell on the scrum [?bum] no fracture at the time, in the last few days wry neck as well, no arm pain at all and no leg pain at all, no sport for several years now, works with police as a coordinator for Police Youth Clubs, only walks now[,] no other exercise at all. No past ulcers, an asthma with a cold[.] Worse with a lot of computer work[.]"

The plaintiff was prescribed Voltaren, a painkiller, as a trial to see whether it would relieve the plaintiff's symptoms. He was told to take one three times each day with food. Dr Lawler noted the plaintiff needed examination of his back and neck, and that he also needed a weight management plan to be given to him. The only interpretation I can give to the doctor's notes is that the plaintiff experienced his wry neck symptoms a few days prior to 29 March 2004. There is no history given by the plaintiff of the event of 5 February 2004. He did give a history of the event of 9 February 2002. Clearly the plaintiff was assigning his low back complaint to the event of 9 February 2002. The plaintiff's wry neck appears to have come on much more recently, and the inference to be drawn from the words "worse with a lot of computer work" is the plaintiff has experienced symptoms in his neck from having to hold his head steadily and upright when working on a computer.

19. On 19 April 2004 the plaintiff again saw Dr Lawler. The plaintiff told the doctor that his back and neck pain were better with Voltaren and with his getting up and moving about. The doctor's notes set out a plan. The plan was for the plaintiff to have a set of stretching exercises for car trips, which exercises were to be performed every two to three hours. The plan was also for the plaintiff to treat is own neck, as well as treating his own back. The plaintiff was asked to undertake an exercise regime. He was to locate gyms in country towns which he was attending and was to find out the hours that they were open. There was also a plan relating to reducing the plaintiff's weight. A goal was set of reducing the plaintiff's weight from 123 kilos to 110 kilos by November 2004. At the same time Dr Lawler wrote a certificate. This is on the stationery which generally results in the certificates being referred to as "WorkCover certificates". The diagnosis provided was of neck pain and lumbar pain due to excessive sitting and driving. Dr Lawler expressed the view that the plaintiff's work was a substantial contributing factor to that diagnosis. The management plan was for physiotherapy, medication and modification of the plaintiff's workplace and work practices. A certificate of fitness for suitable duties was issued to cover the period from 15 June 2004 to 15 July 2004. It would appear that from that time onwards, until the time the plaintiff stopped working as a senior sergeant of police, the Commissioner of Police accepted that the plaintiff's neck condition was caused by his having been hurt on duty. I have made a mistake. The certificate to which I have referred follows upon the plaintiff's examination by Dr Lawler on 15 June 2004 rather than 19 April 2004. However, the doctor's records indicate that he did write a letter concerning compensability on 19 April 2004. He refers to the letter as "WorkCover" which is apt in the circumstance of the Police Force to refer to hurt on duty claims. However, that document has not been put before me.

20. I go now to the examination on 15 June 2004 by Dr Lawler. On that occasion the doctor noted the plaintiff still had some back and neck pain, and the neck pain was now in the occipital region but it was less than before. The doctor noted that Voltaren had helped. The plaintiff was awaiting written materials which may have concerned the exercise regime or may have concerned his diet, and that he is also "trying Weight Watchers now". The doctor also noted that the plaintiff had tried to increase his exercise levels. The reason for the visit is recorded not as back pain but as "neck pain". Again Voltaren was prescribed. That led to the certificate which is the first of the two in exhibit F.

21. The inference to be drawn from the first certificate in exhibit F, is that the plaintiff was supposed to go back to see Dr Lawler on or about 15 July 2004. However, the plaintiff did not. He went back to see the doctor on 9 August 2004. There is reference in the notes to the plaintiff's considering a lumbar support for the car, and also for its use when he was working on the computer. The doctor noted that Voltaren did help, but the plaintiff had a restricted range of movements in his neck. There was also reference to weight loss issues and a gym program. The clear inference to be drawn is that the plaintiff complained at that time of both neck and back pain.

22. There were further attendances upon Dr Lawler. On 4 September 2004 the plaintiff had acute bronchitis. The plaintiff attended upon Dr Lawler again on 14 September and the diagnosis appears to have been maxillary sinusitis. The next visit to the Peachtree Medical Centre was on 25 January 2005. On that occasion the plaintiff saw Dr David Cheang. The doctor noted the plaintiff required a "WorkCover certificate" for neck pain. The plaintiff also told the doctor that a recent exacerbation of back pain was trying to move a light box. Some of the doctor's notes do not make much sense to me. However, they appear to be mainly related to the low back, an onset of pain due to "the recent exacerbation". The doctor's notes go on to say the plaintiff had been on "restricted duties" for 18 months "mainly for neck pain following fall". However, the restricted duties appear to have only been for some nine months at that time.

23. The plaintiff went back to see Dr Cheang on 7 July 2005. The plaintiff told the doctor of back pain which in general was stable but caused a lot of aching with static posture, such as when the plaintiff was driving or doing desk work. The doctor also recorded a history of a recent neck muscular stiffness occurring in the mornings. There was no acute spasm. The doctor found the plaintiff has tenderness in, I infer, the bulk of his cervical musculature, but the tenderness fluctuated. The doctor noted a reasonable range of movement on examination. The plaintiff had seen a lady known as "Joanne" for massage but the plaintiff complained of soreness after the massage. The plaintiff also told the doctor that he was going to the gym and starting some exercises there. On the consultation on 25 January 2005 the plaintiff had obtained a light duties certificate from Dr Cheang covering the period from 29 January 2005 to 25 March 2005. There is no reference in the notes for 7 July 2005 of the issuing by Dr Cheang of any certificate.

24. On 15 February 2006 the plaintiff returned to the Peachtree Medical Centre and on this occasion saw Dr Timothy Francis. The doctor's notes refer only to an injury to the plaintiff's back, but point out that he was on permanently modified duties for some 12 to 18 months by that time and that there had been minimal change in the plaintiff's condition. Considering that the light duties had been prescribed for the plaintiff not only for his back but also for his neck, and that there were minimal changes in the plaintiff's condition, I infer that the plaintiff may well have complained to Dr Francis about his neck as well as his back, or merely referred to the problems in his spine. That is the last occasion on which the plaintiff attended the Peachtree Medical Centre.

25. He commenced attending the Flynns Beach Medical Centre at Port Macquarie some time in 2007. The first document produced by that practice on subpoena is a radiological report addressed to Dr Benjamin Gordon dated 5 April 2007. However, there is no note in the records of the practice, which are exhibit Q, relating to an attendance upon Dr Gordon on or prior to 5 April 2007. However, attend upon Dr Gordon on or prior to 5 April 2007 the plaintiff must have done. The radiological examination is of the cervical spine and also an unrelated area of the body which need not be mentioned. The radiologist Dr Nolan has reported the X-ray of the cervical spine this:

"The alignment is normal. The disc spaces and foramina are normal in appearance. The vertebral soft tissues are normal. There are no cervical ribs."

The radiological report does not suggest any abnormality in the cervical spine. However, it is clear that no doctor has subsequently seen the X-ray plates made on 5 April 2007. Whether they show some incipient degenerative change subsequent to degenerative disc disease or the like, I do not know.

26. On 10 May 2007 the plaintiff went back to see Dr Gordon, who reviewed the X-rays of the cervical spine. Dr Gordon merely notes that they were "NAD" meaning no abnormality detected. He referred his patient to Mr John Norman, an osteopath. The referral is interesting. It says this:

"Thanks for seeing Derrick, who has neck pain and stiffness. This is most pronounced on looking to the right. On exam there is a decreased range of movement on looking to the right and lateral flexion to the right. X-rays look fine. Will you suggest a management plan for this man to increase his range of movements and determine pain."

It would appear that the plaintiff's symptoms were more pronounced on the right side than the left side. Mr Norman's notes have been put before me. Under the heading "Presenting Symptoms" Mr Norman has recorded this:

"Injury to neck and back dating a number of years. Most recent injuries being 2002 and 2004. Pain lower back and hip area, and also regular pain in neck region and back of neck."

The osteopath's notes then refer to neck pain with restricted movement "both ways", from which I infer he means both to the left and the right. Other notes made by the osteopath indicate some symptoms in the upper thoracic spine as well. What exactly Mr Norman did for the plaintiff I do not know.

27. The next document before me relates to the circumstances in which the plaintiff stopped working. The document is an incident notification form, exhibit D, recording a report by the plaintiff to Superintendent Moore on 24 July 2008 and which was recorded by Superintendent Moore on 26 July 2008. The narrative provided is this:

"Senior Sergeant Jordan has had ongoing work conflict of late with the regional general manager PCYC [name provided]. A heated exchange of email occurred on the evening of 24 July 2008 before going off sick. Senior Sergeant Jordan has been affected psychologically by dealing with people he feels are incompetent or untruthful within the work environment. Other issues he struggles with are a lack of resources and other support over an extended period of his policing career. He is also claiming a recurrence of a pre-existing hurt on duty, with ongoing pain in his back and neck, aggravated constantly by travel and desk/computer work."

The plaintiff submitted a claim for hurt on duty benefits, which appears to bear the date 8 August 2008 and was countersigned by the plaintiff's commander on 13 August 2008. After referring to the plaintiff's failing to start work on 25 July 2008, the narrative is this:

"Ongoing HOD injury to neck/back which is chronic, causing continuous neck/back pain and exacerbated by travel in vehicle and computer type work which often requires lot periods of concentration and body position. New psychological injury has been caused over a long period of time with ongoing dispute with PCYC NSW staff, including workplace conflict, lack of resources, lack of respect/regard for NSW Police/position et cetera. Also includes issues related to previous service which is related in [illegible] to current duties with young people and safety issues."

It would appear that the precipitating event that put the plaintiff off work was the stress involved with his work, which is no doubt reflected in the major depressive disorder initially accepted as the certified infirmity by the Police Superannuation Advisory Committee.

28. The plaintiff attended upon Dr Graeme Lucas at the Flynns Beach Medical Centre on 28 July 2008 but the reason for the visit was a lower respiratory tract infection. The diagnosis made was of bronchitis. However, at the same time a letter was written "re WorkCover" which I assume means concerning the plaintiff's hurt on duty claim. The notes go on to record that there was a review of the plaintiff's "old case" and the plaintiff said that he needed an adjusted seat in his car due to back pain with long journeys, and he also needed ergonomic review of his desk chair. There was also then reference to workplace conflict in his work with the PCYC. The plaintiff was advised by Dr Lucas to take time off work. In essence the plaintiff has been absent from work ever since.

29. On 22 August 2008 the records of the Flynns Beach Medical Centre made by Dr Lucas indicate that the plaintiff would benefit from remedial massage for tensing in his neck, and for that reason he was referred to Ms Kathy Lawrence, a physiotherapist. There are subsequent references to the need for ongoing physiotherapy and other treatment for the plaintiff's neck.

30. I am aware only of the one radiological investigation of the plaintiff's neck, that performed at the request of Dr Gordon by Dr Nolan on 5 April 2007. There was no evidence, as one might expect of a man of the plaintiff's age, of having incipient degenerative disease in the neck, degenerative disease of the discs or osteoarthritis of the vertebral column. There was also no medical evidence, as distinct from opinion, as to whether there is any problem with the facet joints of the vertebrae in the neck, the partes interarticulares.

31. I accept that from at least 29 March 2004 the plaintiff has suffered from neck symptoms which have caused him ongoing problems in that part of his anatomy. The reason given in the contemporaneous certificate by Dr Lawler is that the neck pain was due to excessive sitting and driving. One can look closely through the medical evidence after 29 March 2004 and see references to neck pain, neck symptoms and problems with driving and prolonged sitting behind a desk working at a computer or working at home on a computer. According to Dr Lawler, the plaintiff's employment was a substantial contributing factor to the symptoms which he first diagnosed on 29 March 2004.

32. One of the issues in this case has not been adequately addressed by the medical practitioners. As I have pointed out, the certification is of a chronic musculo-ligamentous strain of the neck. The medical practitioners use the word "chronic" in counter distinction to acute. "Acute" comes from the Latin adjective "acutus" which means "sharp". According to a medical dictionary available to me, "acute" means, medically, "sharp or severe, or having a rapid onset of severe symptoms following a short course". If something is chronic, it is not acute. The same dictionary tells me that "chronic", derived from the Greek noun "chronos" meaning "time", means "long, drawn out" and when applied to a disease means one that is not acute. Generally, a musculo-ligamentous strain starts out as an acute condition and then stabilises and can become "chronic". Here there is no evidence of any acute strain, but rather a chronic strain which appears to have come on insidiously. When symptoms which can definitively be related to the certified infirmity are diagnosed on 29 March 2004, Dr Lawler expressed the view that they are related to the plaintiff's long driving in his work as the zone commander of the northern region for the PCYC, and also due to spending long periods of time working at a desk sitting in front of a computer holding a fixed posture.

33. There are, in addition to the first problem that I pointed to concerning the certified infirmity, other problems with the diagnosis of a "chronic musculo-ligamentous strain". Those problems are philosophical rather than medical. Generally, medical practitioners tell me that a muscular injury can be a strain, a sprain, or a tear. Those are in ascending order of magnitude. Even torn muscles heal by knitting themselves back together. They may do so with scar tissue, and scar tissue can cause a mechanical problem because scar tissue might rub against normal muscle tissue and cause an inflammation or symptoms. Here there is no suggestion the plaintiff even tore a muscle, merely that he strained it. However, I have to accept as a matter of law that it actually exists, although no one has ever explained to me why a musculo ligamentous strain can become chronic. As I said, that is an inquiry which is not open to me in this case.

34. The doctors who have provided medico-legal reports have all been qualified. Some of the reports are of little utility. The first is from Professor Ghabrial of Newcastle, who saw the plaintiff on 16 February 2011 and reported on 25 March 2011. Professor Ghabrial accepted the plaintiff sustained an injury to his neck and back in the motor vehicle accident of 11 May 1989. He also has a history of the events of 9 April 2002 but only a history the plaintiff then issued injuring his back and coccyx. Professor Ghabrial has no history of the event of 5 February 2004 but does refer to the plaintiff stopping work on 13 August 2008 (an erroneous history) and of the plaintiff's having an aggravation of his neck and back problems resulting from travelling for long distances as a zone manager. As far as examination was concerned, Prof Ghabrial said this:

"Examination of the neck, on 16 February 2011 showed marked muscle guarding on the left side with almost very little movement towards the left side and tenderness all over the neck, more marked in the upper cervical region. Neurological assessment of the upper limbs showed no abnormalities.

I understood that he had X-rays of cervical spine as a result of his injuries which showed no evidence of fractures."

Muscle guarding is a voluntary condition. It is caused by a patient refusing to move a muscle because he or she fears the onset of symptoms. As far as the neck was concerned, Professor Ghabrial diagnosed "severe soft tissue / facet joint injuries to cervical spine". Again I point out that there is no evidence of any injuries to any facet joint or pars interarticularis. A soft tissue injury can be described as a musculo-ligamentous strain. Professor Ghabrial appears to have accepted that it was ongoing. He believed the plaintiff's employment was a substantial contributing factor to all the conditions of which the plaintiff told the doctor.

35. Dr George Kalnins, an orthopaedic surgeon, was qualified by the administrator of the Police Superannuation Fund. He examined the plaintiff on 13 July 2011. Dr Kalnins has a history of the injury of 11 May 1989 and of the plaintiff’s experiencing neck pain after that event. He also has a history of the event of 9 April 2002 but only records a history that the plaintiff injured his low back at the time. He obtained no history of the event of 5 February 2004. The doctor records under the heading "Current Symptoms" that the plaintiff only had pain on rapid movement of his neck, with no associated radicular symptoms. On examination the doctor recorded this:

"Examination of his cervical spine revealed no deformity. There is diffuse tenderness over the posterior cervical spine.

Forward flexion was possible with the chin reaching to within two fingers' breadth of the sternum. Extension was three quarters of the normal range.

Rotation to the left was three quarters and to the right was half the normal range, with a complaint of neck pain at the extremes of movement.

Shoulder movements on each side were full and pain free. Neurology and circulation were normal in his upper limbs and there is no evidence of either median or ulnar nerve neuropathy at his wrists and elbows respectively."

In his opinion the doctor pointed out that there was no evidence of any advanced osteoarthritis of any of the plaintiff's joints, which is completely correct. As far as Dr Kalnins was aware, there had been no radiological investigation of the plaintiff's cervical spine, but that understanding was incorrect. There was one, but it does not appear to reveal any abnormality. Dr Kalnins diagnosed "multiple musculoskeletal injuries". That diagnosis begs the question as far as the neck is concerned, because clearly the plaintiff had not injured his cervical spine, meaning the bony structure as such. The only diagnosis is of a musculo-ligamentous strain, so Dr Kalnins accepts a muscular strain of the neck. He accepted that the plaintiff injured his neck on 11 May 1989. He did also think that the injury of 9 April 2002 occurred but he only has a history of the plaintiff's injuring his back in that event. The doctor then said that there was a "direct causal relationship" because the various injuries of which the plaintiff was complaining and his continued symptoms. Dr Kalnins therefore appears to accept the plaintiff had a muscular strain of the neck on 11 May 1989 which was the cause of the ongoing symptoms. That in my view is a very brave diagnosis. In a supplementary opinion of 6 September 2011 Dr Kalnins said this:

"Clinically, his back and neck have stiffness with accompanying pain. However, to give a medical diagnosis, he would require imaging to both these areas."

Again that does not assist me greatly.

36. The plaintiff's solicitors have qualified Dr Robin Higgs, an orthopaedic surgeon. Dr Higgs examined the plaintiff on 20 March 2013. Dr Higgs has a history of the motor vehicle accident of 11 May 1989. He records that as causing injury to the plaintiff's low back and chest regions. I note with some bemusement that Dr Higgs turns the cow involved in the motor vehicle accident into a bull. He went on to obtain a history that the plaintiff was able to recover sufficiently after a period of two weeks to return to normal working activities, although it is clear on the plaintiff's evidence that no time was lost. Dr Higgs also has a history of the event of 9 April 2002 and obtained a history of plaintiff’s having an injury to his neck at the time. According to Dr Higgs' history, the plaintiff returned to work after that event and then only performed "light, restricted, suitable working activities", which appears in my view of it to be contrary to the weight of the evidence. The doctor has a history of the event of 5 February 2004 but only has a history of that causing injury to the plaintiff's back. He also has a history of a further injury suffered by the plaintiff on 13 August 2008, but since the plaintiff stopped working on 24 July 2008 that history is inaccurate. However, it does refer to the plaintiff's being required to travel for long periods of time in a motor vehicle.

37. According to Dr Higgs' history, those prolonged periods of motor vehicle travelling were causing the plaintiff "to experience aggravation of his neck and aggravation of his low back pain." I assume he means that they made the symptoms of the condition worse. However, if they could make the symptoms of the condition worse, they could also cause the condition, in my view. In a further part of his report the doctor refers to the neck pain continuing to be aggravated by any prolonged period of sitting, and particularly by a posture associated with the use of a computer terminal. He noted that the plaintiff experienced headaches that were localised to the orbital and frontal regions of the scalp, but neck pain traditionally causes pain in the occipital region, that is the back of the head. Under the heading "Cervical Spine Examination" the doctor said this:

"The cervical spinal posture is normal. Palpation confirms that there is no tenderness to palpation. There is no evidence of any paracervical resting muscle spasm, and there no evidence of any paracervical muscle spasm with cervical spinal motion. Cervical spinal motion is a little restricted. Forward flexion movement is normal but extension of the neck is restricted. There is evidence of asymmetric restriction of cervical spine on rotation and lateral flexion movements. Rotation of the neck to the right side is possible to 40 degrees and to the left side only 20 degrees (normal 80%). Right flexion of the neck to the left side is represented by only a jog of movement and lateral flexion of the neck to the right side is possible to only 10 degrees (normal 45%)."

One will note that he thought the plaintiff's limitation was that the right was more badly affected by the left, which is consistent with what Dr Gordon wrote to Mr Norman on 10 May 2007 but is inconsistent with the observations made by Professor Ghabrial. The doctor makes it clear in a further section of his report that neurologically the plaintiff was normal, and that there was no problem in either upper limb. Under the heading "Diagnosis and Opinion" the doctor said, inter alia, this:

"My consideration of all of the evidence has caused me to form the conclusion that Dr Gordon has suffered from soft tissue musculo ligamentous strain injuries to be cervical spinal region. The initial injury was suffered at work on 9 April 2002. Subsequently temporary episodes of aggravation were experienced on 5 February 2004 and 13 August 2008. The soft tissue injuries to the neck have caused Mr Jordan to suffer from neck pain and to suffer also from asymmetric restricted range of cervical spinal motion. I am pleased to be able to report that there is no evidence of any verifiable upper extremity radiculopathy."

How the doctor can posit that the plaintiff injured his neck in the event of 5 February 2004 without a history of it is beyond me, although the reality appears to be the plaintiff did sustain some neck symptoms at the time. The doctor went on to express the view that the plaintiff's work was a substantial contributing factor to the various conditions which he diagnosed, which included the soft tissue musculo-ligamentous strain injury to the neck.

38. The plaintiff's solicitors have also qualified Dr James Bodel, an orthopaedic surgeon. Dr Bodel took a history of the injury of 11 May 1989, the events at the officer survival training course on 14 October 1991, of 9 April 2002 and 5 February 2004, and obtained a history of the plaintiff’s injuring his neck in each event. He also accepted that there was a further "injury" "on or about 8 August 2008" when the plaintiff was required to drive his vehicle for a prolonged period of time. On examination the doctor found the plaintiff had tenderness in the trapezii at the base of the neck and on the right-hand side, with a reduced range of flexion, extension and rotation of the neck in all directions. The doctor noted that the most restricted rotation was to the left and on extension. Again that is more consistent with Professor Ghabrial than either with Dr Gordon and/or Dr Higgs. There was no problem in either shoulder or in either upper limb, and no clinical sign of any radiculopathy or even referred pain in either arm. Dr Bodel expressed this opinion:

"In response to your further inquiries in this matter on 23 December 2014, I would confirm that there is evidence of a chronic musculo-ligamentous strain of the cervical spine which has been caused by this series of episodes of injury that have occurred at work as listed in the History section above and also by the nature and conditions of this gentleman's work, particularly after he moved into the Youth Command in the mid 1990s and had to undertake a lot of travel. He has had a number of episodes of injury and also has suffered an aggravation, acceleration, exacerbation and deterioration of a disease process in the cervical spine which is clinically evident, although I cannot confirm this exactly because I have not seen any X-rays or scans of this region. I am satisfied, however, that there is a direct causal link between the nature and conditions of his work in general and the listed episodes of injury that have involved the neck and his ongoing complaints and this is work related."

39. This formulation is also not particularly helpful. The doctor uses the terms "nature and conditions of this gentleman's work" which is cant, often used by lawyers to refer to the aggravation, acceleration, exacerbation or deterioration of disease, which is not cant but terms of art in the Workers Compensation Act 1987. I have had reason to comment about that terminology commencing in Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656 and more recently as well. The terminology "nature and conditions of employment" is, as I said, cant but is generally used by practitioners to refer to an allegation of either microtraumata or the aggravation et cetera of a disease. Dr Bodel does not tell me what the disease is that has been aggravated et cetera. That is his job. I am unable to identify any disease. However, putting what the doctor has written together, it appears to me that what he is diagnosing is that both the events of which he has a history and the work the plaintiff did, in particular driving and sitting behind a desk, caused a general weakening of the cervical musculature and perhaps ligaments, and ended up perpetuating the symptoms in the muscles and the ligaments. This is really a case of microtraumata rather than disease. That is my reading of what Dr Bodel says.

40. The other practitioner in this case is Dr Roger Pillemer, also an orthopaedic surgeon. The plaintiff's examination by Dr Pillemer is interesting. According to the plaintiff, he was at the front counter of Dr Pillemer's surgery in Newcastle at 11.12am on 15 March 2015 and had completed the consultation and was outside on the footpath at 11.28am. In other words, the whole process of history taking and examination took no more than 16 minutes. Indeed it could have been a number of minutes less. According to the plaintiff, the examination was very quick and the doctor was upset because the plaintiff was 11 minutes late for the consultation. It is abundantly clear that Dr Pillemer did not believe the plaintiff. Under the heading "Examination" Dr Pillemer said this:

"Mr Jordan has a very interesting presentation, being a strongly built adult male in no obvious discomfort today who removes his upper garments without any particular problem.

He showed very significant restriction of cervical movement with no more than 15 degrees being present in any direction, whereas on indirect observation a far greater range of movement was noted to be present. Similarly, he would only abduct either shoulder to 80 degrees today and other movements were very restricted, whereas on undressing and dressing a greater range of shoulder movement was noted to be present.

Reflexes are present and equal, and there was significant weakness of grip strength bilaterally. In addition he complains of diffuse hypoaesthesia to pin prick in a generalised fashion of both arms from the fingertips to the shoulders.

There is no possible organic cause to explain Mr Jordan's presentation today and there is obviously a very significant exaggeration of physical findings and maximisation of claimed disability."

Under the heading "Diagnosis" only one diagnosis is proffered by the doctor. It is of "abnormal illness behaviour". Before using that terminology he referred to "a very significant functional component" in the plaintiff's presentation to him on that day. Once upon a time the doctors would use the term "functional overlay" to refer to some psychiatric illness that could be anything from psychosis to malingering. This was later renamed "abnormal illness behaviour", the terminology used by Dr Pillemer, and has more recently been ascribed the moniker of "chronic pain syndrome".

41. Dr Pillemer expressed the view that in his opinion computer work and car travel would not cause any injury "to the cervical spine". He does not say that it might not cause injury to muscles and ligaments in the neck. The doctor went on to say this:

"If X-rays show significant degenerative change it is possible that the nature and conditions of his work could have been an aggravation of this underlying condition but I very much doubt this, and I would be reluctant to give a further opinion without seeing investigations."

It is clear to me that Dr Pillemer did not believe the plaintiff and did not accept that he had chronic musculo-ligamentous strain of the neck.

42. Those doctors who do accept a diagnosis of that condition or the like, or assign it to either one of the injuries relied upon by the plaintiff or a combination of more than one of those injuries, or a combination of those injuries or some of them and the type of work the plaintiff did, in particular driving for lengthy periods of time in a vehicle to which he was assigned by the NSW Police, or its subsidiary the PCYC, and by the type of work the plaintiff did sitting for lengthy periods in front of a computer holding his neck in a fixed position.

43. That the plaintiff was experiencing symptoms either made worse or being perpetuated by in particular his driving is attested to in an report which he made on 3 April 2006. The essence of the report is a request for the plaintiff to get a new motor vehicle. Under the heading "Background" he stated this:

"As per previous discussions with the Commander and State Coordinator, PYC and CSG and the CEO and general manager finance PCYC NSW Ltd, regarding my physical restrictions and capacity relative to my 'permanent restricted duties' status and the smaller motor vehicles now being utilised by PCYC NSW Ltd relative to the ongoing pain, discomfort and continuing aggravation I am experiencing to my neck and back, previously injured and documented in NSW Police HOD claims 22991/6 and 22991/7 and associated medical certificates and other injuries as documented in the earlier period of my policing service."

The comment which then follows is of the plaintiff's trying various vehicles and not having the ability to work in them properly. In one place Mr Jordan said this:

"Having to always drive in a very low position with my legs compressed for long distances is causing me much pain and discomfort to the extent that I, upon reaching a destination .. am in significant pain to my back and also usually unable to rotate my neck to any great extent, having to turn my whole body to, for example, speak to someone. It is affecting my sleeping pattern and general comfort and I am suffering headaches regularly. I have had a HOD back and neck injury for some time. It has been diagnosed as having reached maximum medical improvement. Often when driving long distances or sitting for long periods, such as in front of the computer, I have increasingly experienced considerable pain and discomfort. Now, since changing my previous vehicle to this much smaller Subaru, this has become almost a daily occurrence - and for prolonged periods."

Then comes the request for a larger motor vehicle. HOD claim 22991/6 is the event of 9 April 2002 and HOD 22991/7 is the event of 5 February 2004.

44. I, for one, do not believe in trial by claims management, that is, that because the condition has been previously accepted as duty related, it must therefore be duty related, because same claim manager thought so. That is only the claim manager’s opinion and what is important is mine, not his. However, the one thing that is clear to me is that I ought accept the plaintiff's evidence. I accept that he was truthful in his evidence to me. If anything, his symptoms were understated. He clearly made admissions contrary to his own interest in his evidence-in-chief. I did not form the view, as did Dr Pillemer, that he was exaggerating. Clearly there are differences at various examinations in the physical findings, but an amorphous condition such as a chronic strain is apt to lead to different symptoms at different times.

45. I cannot exclude the possibility that any of the four frank injuries relied upon by the plaintiff, all of which occurred in the course of the plaintiff's employment and arose out of it, were capable of rendering the plaintiff's neck vulnerable to further insult. That is, a strained muscle, once strained, becomes more vulnerable to further strain. However, it appears to me on the balance of probabilities that the type of work the plaintiff did as the zone commander for the northern region of the NSW PCYC, involving prolonged driving over protracted periods and prolonged sitting in front of a computer with his head held in one way, was apt or capable of further rendering the musculature symptomatic, and as this went on the damage, whatever its nature might be, became chronic. It appears to me that the four events relied upon may have been contributing factors but were not in themselves an acute strain which later became chronic. Rather, they may have rendered the plaintiff more vulnerable to further muscular insult to his neck and the type of work he did as the zone commander of the northern region of PCYC caused the neck symptoms to become chronic, leading to restricted range of movements, and those chronic symptoms and restricted range of movements can be diagnosed, as diagnosed by Dr Bodel in particular, as a chronic musculo-ligamentous strain.

46. I have inquired of counsel for the parties if any further reasons for judgment are required and I am told that none is so required. For those reasons, I set aside the decision of the defendant made on 14 August 2013 and I find that the suffering by the plaintiff of the condition of "chronic musculo-ligamentous strain of the cervical spine" was caused by the plaintiff's having been hurt on duty on 11 May 1989, 14 October 1991, 9 April 2002, 5 February 2004 and due to the type of work he performed for the defendant until 24 July 2008. I order the defendant pay the plaintiff's costs.

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Decision last updated: 10 August 2015