Kastanas v C P N Nominees Pty Ltd
[2010] VCC 790
•25 June 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Unrestricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-04175
| PANAGIOTA KASTANAS | Plaintiff |
| v | |
| C P N NOMINEES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2, 3 and 4 June 2010 |
| DATE OF JUDGMENT: | 25 June 2010 |
| CASE MAY BE CITED AS: | Kastanas v C P N Nominees Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0790 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – plaintiff suffered prior problems with significant consequences before suffering aggravation of those prior problems – onus on the plaintiff to prove whether the prior problems were aggravated by work-related incidents and whether the aggravations met the statutory test – Grech v Orica Australia Pty Ltd (2006) 14 VR 602 – failure to produce evidence relevant to the prior problems and their consequences – failure to discharge the relevant onus – adverse inference open by reason of such failure – Jones v Dunkel (1959) 101 CLR 298.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with | Zaparas Lawyers |
| Ms N Wolski | ||
| For the Defendant | Mr R Smith SC with | Lander & Rogers |
| Ms V Nicholson | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 2 October 2008 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Richards SC appeared with Mr N Wolski of Counsel for the plaintiff, and Mr R Smith SC appeared with Ms V Nicholson of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the right shoulder, arising out of an incident which occurred on 28 May 2001, and the lower back, which arose out of an incident which occurred on 10 May 2002.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered her Court Book ("PCB"), pages 21-126 and from the defendant’s Court Book ("DCB"), page 65: Exhibit A
•
The defendant tendered its Court Book, pages 3-19; 31-43F; 54-64; 66-71; 73-80; 84-89; 105-106 and 124-135: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
9 The plaintiff was born on 13 August 1964 in northern Greece. She completed her schooling in Greece to sixth grade. She then left school, and did not obtain any further schooling. She was twelve years of age at that time.
10 The plaintiff was married in 1980. She and her husband migrated to Australia in 1981. The plaintiff has one child, a son, who was born in 1982. The plaintiff and her husband separated in 1985. They were granted a formal divorce in 1990.
11 The plaintiff commenced working in Australia in 1985 or 1986. The jobs which she has worked in have varied between being part-time and full-time. Essentially, she has worked in the hospitality industry and as a cleaner.[5]
[5] PCB 22
12 In 1999, the plaintiff was employed by Farehaven Holdings Pty Ltd which conducted a café known as ‘Cafe Limani’ at Station Pier, Port Melbourne. In 2000, the plaintiff and two of her friends commenced a business under the name of the defendant.[6] The first part of the defendant's name, ‘CPN’, represents the initials of the first names of the plaintiff and her friends.
[6] Con Alexopoulos and Nick Markon
13 The defendant purchased two businesses known as ‘Naturally Fresh’ and ‘Café Verona’ at the Cranbourne Park Shopping Centre in about May 2000. The two businesses were adjacent to one another. The nature of the businesses was the sale of take-away food and coffee. The two businesses were amalgamated by the removal of the dividing wall between both premises.
14 On 28 May 2001, the plaintiff injured her right shoulder when she lifted a box of milkshake cups onto a shelf above her head height.[7]
[7] PCB 24 and transcript 28-29
15 On 10 May 2002, the plaintiff was carrying a pot of boiling water weighing about 6 to 7 kilograms. She was carrying it away from her body because it was hot, and as a consequence she suffered an injury to her lower back.[8]
[8] PCB 25
The Issues
16 Mr Smith submitted that the issues with respect to the right shoulder injury are that:
•
the incident which occurred on 28 May 2001 was so trivial that it could not have caused any injury;
•
the plaintiff had suffered a number of injuries prior to 28 May 2001 which were relevant to a determination of what injury the plaintiff suffered on 28 May 2001; the permanent impairment of the function of her right shoulder, and what pain and suffering consequences flowed from that injury;
•
the plaintiff's failure to inform her treating medical practitioners and medico-legal specialists of her prior injuries rendered their opinions relatively worthless;
•
allied to the foregoing, that the plaintiff could have submitted medical reports from at the least three medical practitioners who treated her prior to 28 May 2001 and which would in all probability have disclosed the nature of her prior right shoulder injury, but she made a forensic decision not to;
•
if the plaintiff was able to successfully meet each of these issues, then the pain and suffering consequences and the loss of earning capacity consequences could not meet the statutory tests;
•
the plaintiff suffers from anxiety and depression. There was some evidence to suggest that her anxiety and depression resulted in an embellishment of her symptoms, and therefore, the plaintiff is required to undertake the so-called disentangling.
17 The issues were much the same in relation to the plaintiff's claim with respect to her lower back injury.
The Plaintiff's Prior Right Shoulder Injury
18 The plaintiff swore two affidavits in support of her application for serious injury. The first was sworn on 25 March 2008, and the second was sworn on 4 May 2010.
19 The plaintiff did not disclose any prior injury in her first affidavit. She did so in her second affidavit in significant detail. In summary, she described the following in her second affidavit:
•
on 6 May 1985, she was involved in a transport accident. She brought a common law claim which was settled for about $10,000. Her major injury was to her neck. The symptoms of injury resolved;
•
in about 1996, she experienced numbness in her right hand. She saw Dr Gouras, general practitioner, who referred her to Mr Hooper, orthopaedic surgeon who operated on her right wrist to relieve what the plaintiff believes was a carpal tunnel syndrome;
•
in about October 1997, she experienced pain in her lower back. She saw Dr Singh, general practitioner. He referred her to have a CT scan which was taken on 17 October 1997. She was off work about one month. She was referred to Mr Turner, orthopaedic surgeon, for treatment. The symptoms resolved, enabling her to return to normal duties;
•
since about October 1997 and after the resolution of the symptoms which she first experienced to her lower back, she suffered occasional lower back pain.
•
in about late September 1999, she experienced worsening lower back pain. She saw Dr Navani, general practitioner, who referred her to have a CT scan which was taken on 6 October 1999. She was off work for a few weeks. She was referred to Mr Georgilopoulos, physiotherapist, for treatment for a month or so. The symptoms resolved to the extent that by the time she commenced working for the defendant her back was not bothering her at all.[9]
[9] PCB 31-32
20 Mr Smith submitted that the clinical notes of Dr Chan, general practitioner, demonstrate that the plaintiff had an actively symptomatic right shoulder and lower back. He referred to the following entries:
• 1 May 2001: “right shoulder, cant click, cant abd left shoulder
no known injury
some hand pain with change of weather
slipped disc L5, physio, celebrix helps
Diagnostic Imaging Requested (VIG) - right shoulder XR
Diagnostic Imaging Requested (VIG) - ultrasound of left shoulder
[clicking, cant abd shoulder, ? Rotator cuff, can int roatate]
clicking purposes, OA
reduced abd and int roatation, roataor cuff problem
peripheral pulse normal
passive moement intact, cont celebrix.”[10][10] DCB 68
(sic)
• 8 May 2001:
“no phx of severe injury to right shoulder
still clicking on any ROM
letter to Mr. Razif
contd antiinflam-which helps
Script Written – VIOXX (TABLETS) 25 mg [30].”
(sic)
• 29 May 2001 : “seen by physio
Mr razif rv 19/6
centre link until 20/6/01
not workcover
oe still clicking right shoulder.”
(sic)
21 Mr Smith also referred to the following documents which demonstrated that the plaintiff was obtaining significant treatment for a right shoulder problem:
• a written referral to a physiotherapist of Mr Razif dated 22 May 2001. It refers to a diagnosis of right rotator cuff tendinitis.[11] • the clinical notes of a physiotherapist which records that Mr Razif was the referring medical practitioner; • an outline of the human body with shading over the right shoulder illustrating the area of complaints of pain made by the plaintiff; and • a calendar showing that the plaintiff received treatment from that physiotherapist on 23 and 28 May 2001. [11] DCB 125
22 The clinical notes of the physiotherapist are difficult to read, however, it would appear that the plaintiff was suffering from pain in her right shoulder which was worsening, and which restricted her capacity to undertake her work duties.
23 Mr Smith submitted that the foregoing demonstrated, firstly, that the plaintiff had an actively symptomatic right shoulder which incapacitated her for work, and secondly, that she required treatment to a significant extent in May 2001 and before the date of the occurrence of the incident on 28 May 2001.
24 The plaintiff could not remember seeing Dr Chan, Mr Razif or a physiotherapist in May 2001 and prior to 28 May 2001 for treatment.[12]
[12] Transcript 36-39
25 The plaintiff denied that she had suffered right shoulder problems for many months before 28 May 2001.[13] However, Mr Smith referred to the following histories given by the plaintiff to a number of medical practitioners which are dramatically to the contrary:
• Dr Navani referred the plaintiff to Dr Stockman, rheumatologist. He saw the plaintiff initially on 15 January 2002. He recorded the following history given to him by the plaintiff: "At that time Ms Kastanas gave me a several-year history of pain in the right shoulder. Initially the symptoms were intermittent, but about nine months prior to the visit the pain had been constant and symptoms did not improve after she stopped working, apparently two months prior to the visit. I had no history of any specific injury; it seems that the pain came on gradually."[14]
[13] Transcript 39
[14] PCB 68. Nine months prior to the date of consultation on 15 January 2002 takes the date of commencement of pain back to about March 2001. Dr Stockman repeated that history to Dr Navani on 15 January 2002 at DCB 128
[15] DCB 66
[16] DCB 67
• Dr Dugdale, radiologist, took an x-ray of the plaintiff's right shoulder on 1 May 2001. It showed no apparent abnormality.[15] • Dr Southwell, radiologist, performed an ultrasound on the plaintiff’s right shoulder on 3 May 2001. It showed no apparent abnormality.[16] 26 Mr Smith submitted that the foregoing clearly demonstrates that by May 2001, the plaintiff had an actively symptomatic and disabling right shoulder problem.
27 It is abundantly clear from the material which I have just reviewed that the plaintiff had suffered pain in her right shoulder going back to about March 2000 which had persisted, and then worsened to the point where she saw Dr Chan, and then Dr Navani.
28 What followed is a pathway of treatment of considerable significance. Firstly, she gave Dr Chan a history recorded in his clinical notes of pain, clicking and an inability to abduct her right shoulder. Secondly, she was referred for a number of radiological studies. Thirdly, she was referred to Mr Razif for treatment, and he in turn referred her to a physiotherapist for treatment of a condition which he diagnosed as right rotator cuff tendinitis.
29 Interestingly, despite suffering an injury on 28 May 2001, the plaintiff did not mention the incident to Dr Chan when she was reviewed by him on 29 May 2001. She obviously saw him for a planned review, no doubt to discuss the progress of treatment for her right shoulder problem. On that occasion, Dr Chan recorded that the plaintiff had been to physiotherapy and was to be reviewed by Mr Razif.
30 Mr Smith cross-examined the plaintiff at some length about the entries in the clinical notes of Dr Chan and also about the treatment provided to her by Mr Razif and the physiotherapist.
31 The plaintiff was nonplussed by the entries in the clinical notes of Dr Chan. She was unable to explain how it was that she saw Dr Chan in May 2001 and before 28 May 2001 for extensive treatment for her right shoulder. Nor was she able to explain how it was that Dr Stockman obtained a history of symptoms of pain and disablement going back to March 2000 unless that history was given by her.
32 In addition to these areas of criticism made by Mr Smith of the way in which the plaintiff's case was presented, he submitted that there was a glaring absence of any evidence from Dr Chan, except for one page of his clinical notes, Mr Razif and the physiotherapist. The plaintiff was equally nonplussed by the evidence which demonstrated that she had seen Mr Razif and a physiotherapist for treatment prior to 28 May 2001.
33 Mr Smith submitted that the failure of the plaintiff to produce evidence from Dr Chan, Mr Razif and the physiotherapist leaves me in a position where I cannot determine the nature of the plaintiff's prior right shoulder problem nor the extent of the problems she was experiencing prior to 28 May 2001.
34 Mr Smith referred the plaintiff to the workers’ claim form she completed with the assistance of her son. It is dated 3 July 2001 and is signed by the her.[17] When asked whether she had suffered any previous pain/disability to her right shoulder before, she answered “No”.[18]
[17] DCB 73-75
[18] Answer to Question 30
35 The denial by the plaintiff that she had not suffered any previous pain/disability in her right shoulder is surprising given the treatment she obtained from Dr Chan, Mr Razif and the physiotherapist in May 2001, and all the more surprising given that the form was completed just over one month or so after she had treatment at the hands of Dr Chan, Mr Razif and the physiotherapist at a time when her memory of what occurred in May 2001 would have been fresh.
36 The form also reveals that the plaintiff saw Dr Navani for treatment. No evidence was adduced from Dr Navani of the treatment he provided the plaintiff following the occurrence of the incident of 28 May 2001.
37 Dr Gouras first saw the plaintiff on 10 May 2002 when she complained that she had suffered an injury to her lower back that day. Dr Gouras had treated the plaintiff since 13 June 1981. He had treated the plaintiff for injury to her neck and left shoulder caused by a transport accident which occurred on 6 May 1985, and then did not see her again until 10 May 2002.[19]
[19] PCB 42
38 There is a yawning gap in the medical evidence relevant to the plaintiff's treatment for her right shoulder between the time of its occurrence on 28 May 2001 and when she saw Dr Gouras about one year later, on 10 May 2002.
39 That evidence is of considerable importance in determining what injury the plaintiff suffered on 28 May 2001 and what treatment she was provided, and by whom.
40 Similarly, it is of considerable importance in relation to whether she continued to experience pain in her lower back, and whether she obtained any treatment for her lower back.
41 The only reference to any treatment during that period is a brief statement by the plaintiff in her first affidavit where she said that she went to see a medical practitioner at a clinic at Cranbourne.[20]
[20] PCB 24
The Absence of Medical Evidence
42 It is trite to say that an aggravation of a pre-existing medical condition can constitute an injury. Indeed, an application for serious injury based on an aggravation of a pre-existing medical condition is commonplace.
43 However, in order to give foundation to an application based on an aggravation of a pre-existing medical condition, it is for a plaintiff to, firstly, prove what the pre-existing medical condition was; the nature and extent of the aggravation; what the aggravation has produced in terms of a worsening of the pre-existing medical condition, and what consequences in terms of pain and suffering and loss of earning capacity have resulted from the aggravation.
44 What is undoubtedly the case here is that the plaintiff had an actively symptomatic right shoulder in May 2001 of such an order that she required significant medical investigation to uncover the cause of the pain and restriction of movement she was experiencing.
45 Consultations with Dr Chan, the x-rays and ultrasounds, treatment by a specialist, and subsequent treatment by a physiotherapist speak volumes of the apparent seriousness of the plaintiff's right shoulder injury in May 2001. It is not treatment for some passing or merely incidental condition.
46 In the absence of medical evidence from Dr Chan, Mr Razif, the physiotherapist and Dr Navani, I am left without a basis to find that the incident of 28 May 2001 resulted in an injury and consequences of any particular significance.
47 Mr Richards submitted that I should accept the plaintiff’s evidence that she suffered an injury on 28 May 2001, and I should be fortified in reaching that conclusion because subsequent to 28 May 2001, the plaintiff was off work for nearly one year, only returning to work for five days before she suffered the injury to her lower back on 10 May 2002.
48 The difficulty with the inference which Mr Richards says I should draw is that an inference is a logical conclusion based upon proven facts. The proven facts are that the plaintiff was involved in an incident of lifting on 28 May 2001; the plaintiff’s evidence that she suffered an injury to her right shoulder, and that she was subsequently off work for nearly one year.
49 That is all very well, but the reason for her absence is not proven at all satisfactorily. Was it solely because of what happened on 28 May 2001, or was what happened on 28 May 2001 insignificant in the background of a very troublesome right shoulder problem which was apparently causing worsening problems for the plaintiff according to the history she gave to Dr Stockman?
50 It must be remembered that according to Dr Chan, the plaintiff had pain in her right shoulder; she could not abduct it, and there was a presence of clicking and crepitus on examination which Dr Chan considered warranted a diagnosis of rotator cuff syndrome. Furthermore, the plaintiff was using Celebrex which is a strong anti-inflammatory medication. She was later prescribed another strong anti-inflammatory known as Vioxx.
51 This is in the setting of the admission against interest made by the plaintiff to Dr Stockman who recorded the duration of her symptoms in her right shoulder as over several years, which symptoms became constant and as a consequence it caused her stop work. It is significant that Dr Stockman recorded categorically that there was no history of a specific injury at the time when he wrote a report dated 11 December 2003,[21] and the letter to Dr Chan dated 15 January 2002.[22]
[21] PCB 68
[22] DCB 128
52 It is interesting to note that the plaintiff did not tell Dr Stockman of the incident of 28 May 2001. She had two opportunities to do so - on the occasion when he first examined her on 15 January 2002, and then when he re-examined her on 26 February 2002.
53 The only evidence which creates a distinction between the state of the plaintiff’s right shoulder prior to 28 May 2001 and subsequently are the further radiological studies, namely, an MRI scan taken on 23 December 2002,[23] and an MRI scan and ultrasound of the right shoulder taken on 7 December 2006.[24] Both show an abnormality in the supraspinatus tendon, but no tear of the tendon.
[23] PCB 71
[24] PCB 73
54 Mr Hooper, orthopaedic surgeon, referred the plaintiff to have the first MRI scan. Mr McQueen, orthopaedic surgeon, referred the plaintiff to have the second.
55 The plaintiff did not produce any evidence from Mr Hooper. The report of Mr McQueen dated 29 April 2010 makes no reference to the treatment provided by Dr Chan, Mr Razif and the physiotherapist, and also the history recorded by Dr Stockman of a long-standing right shoulder problem without any history of a specific incident.
56 The other medical opinions directed to the plaintiff's right shoulder are unreliable because the plaintiff did not provide a history of her prior lower back problems, as follows:
• she did not give Dr Gouras a history of her prior right shoulder problems.[25] •
she did not give Mr Hayes, orthopaedic surgeon, a history of her prior right shoulder problems. Mr Hayes examined the plaintiff on 16 December 2002. [26]
•
she did not give Mr Kron, physiotherapist, a history of her prior right shoulder problems.[27]
•
she did not give Mr McQueen, orthopaedic surgeon, a history of her prior right shoulder problems.[28]
•
she did not give Mr Mangos a history of her prior right shoulder problems. He examined her in November 2009. Indeed, the plaintiff told him that apart from the carpal tunnel syndrome, she had been free of accidents, operation and illnesses.[29]
•
she did not give Mr Flanc, vascular surgeon, a history of her prior right shoulder problems. He examined the plaintiff on 3 February 2010.[30]
•
she did not give Mr Polke, orthopaedic surgeon, a history of her prior right shoulder problems. He examined the plaintiff on 15 February 2007 and 12 January 2010. He did not indicate in his reports whether he asked the plaintiff whether she had such a history.[31]
•
she did not give Mr Dooley, orthopaedic surgeon, a history of her prior right shoulder problems. He examined her on 8 April 2010.[32]
[25] PCB 38-46.4
[26] PCB 58-63
[27] PCB 47-54
[28] PCB 66-67
[29] PCB 75
[30] PCB 91
[31] DCB 39-43e
[32] DCB 55
The Right Shoulder Injury Conclusion
57 I reject the plaintiff’s evidence that her right shoulder was in a reasonable state before 28 May 2001, and that it was only the incident of that date which was a cause of her going off work for nearly one year.
58 I find that the plaintiff had an actively symptomatic right shoulder problem for years which worsened over a nine-month period consistent with the history given to Dr Stockman, and that it worsened to such a degree that by May 2001, she required active medical intervention by Dr Chan, Mr Razif and a physiotherapist.
59 I do not accept the plaintiff’s evidence that what occurred on 28 May 2001 was as significant an event as she says it was. I do not accept that it alone caused her the significant symptoms which she subsequently experienced.
60 The clinical notes of Dr Chan clearly demonstrate that the plaintiff was having serious trouble with her right shoulder. The fact that she did not tell Dr Chan of the incident of 28 May 2001 when she was reviewed by him on 29 May 2001 is very strange, particularly if it was such a provocative incident and was the real cause of the injury which put her off work for about one year.
61 Lastly, there is no other conclusion which is reasonably open on the evidence given that the plaintiff chose not to produce evidence from Dr Chan, Mr Razif, the physiotherapist and Dr Navani. That evidence would have undoubtedly cast significant light upon the reason why the plaintiff was having such significant problems with her right shoulder in May 2001, and whether the incident of 28 May 2001 caused the plaintiff any injury, and if it did, of what significance.
62 The balance of the medical evidence relevant to the plaintiff’s right shoulder injury is seriously flawed because the plaintiff did not give any of those medical practitioners an accurate history of the condition of her right shoulder prior to the incident of 28 May 2001. I am not persuaded that any of that medical evidence assists the plaintiff in any way.
The Plaintiff's Prior Lower Back Injury
63 In addition to the history recorded by Dr Chan dated 1 May 2001 of a slipped disc at L5 requiring physiotherapy, there is a body of evidence which points to the plaintiff having had an actively symptomatic lower back injury for some time prior to 10 May 2002.
64 Mr Smith referred to a number of documents which demonstrate that the plaintiff suffered a significant problem with her lower back injury prior to 10 May 2002:
•
On 6 May 1985, the plaintiff was injured in a transport accident. She commenced a common law claim in the County Court at Melbourne by a Summons filed 4 December 1985 in which she claimed, among other things, an injury to her lower back. In her Particulars of Damage, she pleaded that she was unable to work at all and would be so unable to work at all for an indefinite period of time into the foreseeable future.[33]
•
In a list of special damages, the plaintiff repeated that she was unable to work, and that it was unlikely that she would be able to resume employment in the future.[34]
•
In about 1991, the plaintiff developed sudden serious lower back pain while trying on clothes at a shopping centre.[35] When the plaintiff was examined by Mr Byrne, orthopaedic surgeon, on 1 March 2002, he recorded a history of that incident. The plaintiff told him that she was diagnosed as having suffered a lumbosacral disc lesion, and that she had suffered episodic problems with her lower back since the occurrence of that incident.[36]
•
On 20 December 1993, the plaintiff attended the Western Hospital with pain in her mid to lower back and right hip. The history recorded by the attending medical practitioner was that the plaintiff woke up in pain and could not get out of bed. A diagnosis of a slipped disc was made.[37]
•
Dr Singh referred the plaintiff to Mr Turner, orthopaedic surgeon, in November 1997. Mr Turner recorded a history that the plaintiff experienced pain in her lower back and right leg and had experienced the same since mid-October of that year, and that the pain came on fairly suddenly without any specific incident. Radiological studies revealed a central bulge/prolapse at L4-5.[38]
•
A handwritten note from the Sunshine City Medical Centre dated 30 July 1998 to Social Security referred to the same pathology described by Mr Turner. The attending medical practitioner placed restrictions on her capacity to work, and more particularly, that the plaintiff was not to lift anything greater than 10 kilograms and to avoid recurrent bending and stretching, and to rest every hour.[39]
•
On 2 October 1999, the plaintiff injured her lower back in a lifting incident while working at Café Limani.[40] The plaintiff saw Dr Navani, who referred her to Mr Bradford, physiotherapist.
•
Dr Navani referred the plaintiff to have a CT scan which was taken on 6 October 1999 which showed abnormalities at L4-5 comprising posterior disc bulging with a small central disc protrusion slightly compressing the anterior aspect of the theca.[41]
•
Mr Bradford wrote to Mr Alexopoulos on 27 October 1999 advising that the plaintiff would not be able to return to work for a fortnight and that it would be appropriate to commence her on reduced hours and restricted activities with no lifting, bending, cleaning or prolonged sitting or standing.[42]
•
The plaintiff said that she saw Dr Navani on 16 April 2000. At that time she was taking non-steroidal anti-inflammatory medication for her lower back pain which was causing her a stomach upset. She said she stopped taking the medication which had the effect of relieving the stomach upset.[43]
•
The plaintiff said that after entering the business conducted by the defendant, that she was still experiencing lower back pain. She described it as not being severe pain.[44]
•
The plaintiff gave Dr Chan a history of suffering a slipped disc at L5 when she saw him on 1 May 2001, and that she was taking Celebrex to treat that medical condition.[45]
[33] DCB 84-87
[34] DCB 88-89
[35] Transcript 56
[36] DCB 5
[37] DCB 136-138
[38] DCB 61-62. Dr Singh referred the plaintiff to have a plain x-ray and a CT scan which were taken on 17 October 1997 (at DCB 59) demonstrating the same pathology described by Mr Turner.
[39] DCB 63. The note was probably written by Dr Singh - Transcript 60
[40] Transcript 60-61
[41] DCB 64
[42] DCB 65
[43] Transcript 63
[44] Transcript 63-64
[45] DCB 68
65 Mr Smith referred to the workers’ claim form completed by the plaintiff with the assistance of her son. It is dated 8 October 2002. It refers to the plaintiff suffering an injury to her lower back and legs on 10 May 2002. When asked whether she had suffered any previous pain/disability in that area, she answered that three years beforehand she had suffered back pain for a period of four weeks.[46]
[46] DCB 78-80
66 The answer the plaintiff gave is quite clearly wrong. To say that she suffered a lower back injury three years beforehand (1999) which troubled her for only four weeks is nothing short of extraordinary. I do not accept that the plaintiff was telling the truth when she gave that answer. I do not accept that she could not remember a lower back problem which had troubled her significantly since 1985, and was certainly still troubling her by May 2001, and very probably thereafter and before 10 May 2002.
67 The plaintiff did not deny that she had suffered a previous lower back injury. However, the impression I obtained was that the plaintiff was reluctant to admit that she had a lower back injury of any particular magnitude. She admitted that she may have had some problems with her lower back from 1998, but she said that they were not so bad as to prevent her from being able to work.[47]
[47] Transcript 65
The Absence of Medical Evidence
68 The very same observations I made in relation to the absence of medical evidence relevant to the plaintiff’s claim with respect to her right shoulder injury apply here in relation to a claim with respect to her lower back.
69 It is very obvious that Dr Singh, Dr Chan and Dr Navani treated the plaintiff for her lower back injury. No evidence was produced from any of them to demonstrate the nature of the problem the plaintiff was experiencing with her lower back prior to 10 May 2002.
70 The medical evidence which was produced suggests that the plaintiff had a very troublesome lower back which was certainly still troubling her by May 2001, requiring her to use Celebrex. In addition, the reference in Dr Chan's clinical notes of a slipped disc at L5 adds weight to the proposition put by Mr Smith that the plaintiff had suffered a disc injury many years beforehand which was still actively causing her symptoms of pain and limitation of movement in her lower back.
71 Mr Richards submitted that I should conclude that the plaintiff did not have a lower back problem which was incapacitating because she was able to work until the incident of 28 May 2001 which suggested that her lower back was able to sustain the physical effort required to undertake work in the hospitality industry.
72 Mr Richards also referred to the report of Mr Byrne, orthopaedic surgeon, who saw the plaintiff for an insurer on 1 March 2002, which is about two-and-a-half months before the occurrence of the incident of 10 May 2002. He submitted that Mr Byrne obtained an accurate history of the plaintiff's prior lower back problems.
73 The particular passage from Mr Byrne’s report which Mr Richards relied upon is as follows:
"She developed pain in her lower back about 10 years ago for no apparent reason while trying on clothes [at] Highpoint West in Dandenong. Apparently she was diagnosed as having a lumbosacral disc lesion, was treated with physiotherapy and it eased over about a month. She has had episodes of problem in her back since. One bad about three years ago working at a Port Melbourne Restaurant, putting bottles in a fridge. She was off work for eight weeks with this and it eased with physiotherapy and injections and apparently she still has intermittent trouble but nothing relating to the present accident." [48]
[48] DCB 5
74 The incident referred to was the incident of 2 October 1999. The plaintiff did not tell Mr Byrne that she first suffered lower back problems in 1985, and that she had a longstanding lower back problem from about that time.
75 Obviously Mr Byrne could only work on the history which the plaintiff provided him. It is simply not possible for me to determine whether he might have come to a different opinion had he been given the full history as I have set it out in paragraph 62 above.
76 Mr Smith submitted that any comparison between the full history of the plaintiff’s lower back problems and the short history given to Mr Byrne shows up the dramatic shortcomings in the history he obtained, and as a consequence, Mr Byrne’s opinion regarding the injury which the plaintiff suffered on 10 May 2002 is so flawed that any opinion based upon it must be unreliable.
77 Mr Byrne examined the plaintiff's lower back. He found no abnormality. It would appear that the purpose served by his examination of her lower back was to answer a question asked of him whether the incident of 28 May 2001 had aggravated her lower back. He said it had not.
78 Mr Byrne re-examined the plaintiff on 20 June 2003. He repeated the same history which he obtained from the plaintiff on the previous occasion he examined her. He obtained an accurate history of the incident which occurred on 10 May 2002.
79 Mr Byrne had a CT scan which was taken on 28 October 2002 which he considered showed a moderate sized bulge of the L4-5 disc. He expressed the following opinion:
"Regarding her lower back, she would have injured his lower back at least ten years ago and again 3-4 years ago as described in my first report. I do not believe that it really settled but she said that it was alright prior to the episode of 04/05/02. It would appear in this episode she strained this region, the initial injury would have been to the 4-5 disc and its degenerative change would pre-existed (sic) this episode. I feel the disc probably was bulging but may be she produced a further strained (sic) over this area giving (sic) her present symptoms. The pain is in her back and down both legs, although there was no neurological deficit in the lower limb and [there] does not seem to be neural compression clinically."[49]
[49] PCB 12A. I assume the reference to 4 May 2010 should be 10 May 2010.
80 Mr Byrne was of the opinion that the plaintiff's employment was the major contributing factor to the production of the pain and disablement which she described to him.
81 The most significant part of the history which Mr Byrne was not provided with were the radiological studies which Mr Turner had for his use, and the CT scan obtained by Dr Navani which I have summarised in paragraph 63 above.
82 The other medical opinions directed to the plaintiff’s lower back are unreliable because the plaintiff did not provide a history of her prior lower back problems, as follows:
•
she told Dr Gouras that she had fully recovered from her prior lower back problems she had experienced before the incident of 10 May 2002.[50]
•
she told Mr Hayes, orthopaedic surgeon, a similar history of full recovery from her prior lower back problems. Interestingly, Mr Hayes examined the plaintiff on 16 December 2002. He obtained a history that the plaintiff had a painful lower back, and that she suffered an injury with the defendant in May 2002. He examined the plaintiff's lower back, and concluded that she suffered a straining injury to the soft tissues of her lumbar spine and an exacerbation of an underlying pre-existing L4-5 intervertebral disc problem.[51]
•
she told Mr Kron, physiotherapist, a similar history of full recovery from her prior lower back problems.[52]
•
she did not give any history of suffering a lower back problem to Mr Williamson, orthopaedic surgeon, who saw her for treatment on 5 August 2007 and 3 October 2007.[53]
•
she plaintiff did not give any history of suffering a prior lower back problem to Mr Mangos. He examined her in November 2009. Indeed, the plaintiff told him that apart from the carpal tunnel syndrome, she had been free of accidents, operation and illnesses.[54]
•
she gave a history of suffering a prior lower back problem to Mr Dohrmann, neurosurgeon. He examined the plaintiff on 12 May 2010. However, she told him that she had experienced a few minor episodes of lower back pain prior to 2002 and that subsequent to 1998, she had no problems with her lower back.[55]
•
she gave a history of suffering a prior lower back problem to Mr Flanc, vascular surgeon. He examined the plaintiff on 3 February 2010. However, the only history he obtained was of lower back pain many years previously.[56]
•
Mr Conroy, general surgeon, did not obtain a history of any prior lower back problems. He examined the plaintiff on 12 July 2005. He did not indicate in his report whether he asked the plaintiff whether she had such a history.[57]
•
Mr Polke, orthopaedic surgeon, did not obtain a history of any prior lower back problems. He examined the plaintiff on 15 February 2007 and 12 January 2010 He did not indicate in his reports whether he asked the plaintiff whether she had such a history.[58]
•
Mr Dooley, orthopaedic surgeon, obtained a more detailed history from the plaintiff of her prior lower back problems. He examined her on 8 April 2010. She told him that she hurt her lower back in 1997 and had a CT scan of her lumbar spine in 1999. Interestingly, he referred to the plaintiff being reviewed by Mr Turner in November 2007. He understood that from some material which he was provided by the solicitors for the defendant.[59]
[50] PCB 46.4
[51] PCB 62
[52] PCB 48
[53] PCB 55-57
[54] PCB 75
[55] PCB 82
[56] PCB 91
[57] DCB 31-34
[58] DCB 39-43e
[59] DCB 55
83 It is apparent from the foregoing that Mr Byrne obtained the most detailed history of the plaintiff’s lower back problems, however, as I have already observed, that history had dramatic shortcomings.
The Lower Back Injury Conclusion
84 I reject the plaintiff’s evidence that her lower back was in a reasonable condition before 10 May 2002, and it was only the incident of that date which was a cause of an injury and her subsequent incapacity for work.
85 I find that the plaintiff had an actively symptomatic lower back for a considerable period of time prior to 10 May 2002, and indeed, and certainly as at May 2001.
86 It is difficult to gauge how significant the event of 10 May 2002 was in terms of the causation of an injury, because of the absence of relevant medical evidence of Dr Singh, Dr Chan and Dr Navani.
87 I do not accept the plaintiff’s evidence that what occurred on 10 May 2002 was a cause of the significant symptoms which she subsequently experienced.
88 The clinical notes of Dr Chan, as at May 2001, demonstrate that the plaintiff had an actively symptomatic lower back requiring the use of medication.
89 Lastly, and based upon similar reasoning relevant to the plaintiff’s claim in relation to her right shoulder, there is no other conclusion which is reasonably open on the evidence given the plaintiff chose not to produce evidence from Dr Singh, Dr Chan and Dr Navani. That evidence would undoubtedly have cast significant light upon the reason why the plaintiff was having such significant problems with her lower back in May 2001, and whether the incident of 10 May 2002 caused the plaintiff any injury, and if it did, of what significance and with what consequences.
90 Again, like the evidence in relation to the plaintiff's claim in relation to her right shoulder, the balance of the medical evidence is seriously flawed because the plaintiff again did not give any of those medical practitioners an accurate history of the condition of her lower back prior to the incident of 10 May 2002. I am not persuaded that any of that medical evidence really assists the plaintiff.
General Observations
91 Mr Richards submitted that one of the most cogent pieces of evidence in favour of the conclusion that the plaintiff did suffer an injury on both occasions of significance with consequences capable of meeting the statutory tests was the fact that the plaintiff was working up until 28 May 2001, and had returned to work for some days prior to 10 May 2002.
92 The fact that the plaintiff was working is really only a part of the evidence which the plaintiff needed to adduce in order to succeed in proving that she suffered an injury which resulted in an impairment of a body function with consequences which meet the statutory tests.
93 It is fundamental to an application for serious injury that the plaintiff prove that she suffered a compensable injury. However, where the compensable injury is an aggravation of a pre-existing injury, then it is for the plaintiff to prove what the aggravation is and what consequences flow from the aggravation and whether those consequences meet the statutory tests.
94 It is wholly insufficient to leave the evidence in a state where it points to the presence of a pre-existing injury with its own consequences in terms of pain and suffering and loss of earning capacity, and then to simply say that an aggravation occurred without any attempt to measure the nature, extent and degree of the aggravation.
95 A failure to establish the foregoing amounts to a failure to adduce evidence on which the judge is expected to determine what consequences flow from the injury caused by the aggravation.
96 Mr Richards referred to Grech v Orica Australia Pty Ltd.[60] However, on my reading of the judgment of Ashley JA, there is nothing in what his Honour said which assists the plaintiff.
[60] (2006) 14 VR 602
97 In Grech, the plaintiff was able to identify, by inference, that pathological changes occurred in his hands after 20 October 1999 by reason of the work that he continued to undertake after that date which was sufficient to satisfy his Honour that a compensable injury had been incurred. However, his Honour made the following telling observation:
“But the plaintiff in fact continued to use his hands in stressful fashion at work on and after 20 October 1999. Symptoms of compression developed. The inference is very strong that the plaintiff suffered injury on and after 20 October 1999, involving the further hypertrophy of tissue, and compression of the median nerve on each side sufficient to produce compressive neuropathy. Upon that analysis, the plaintiff sustained injury meeting a condition of compensability in that period. It was productive of consequences. But it does not follow that such consequences — that is, the entirety of the consequences — did not also result from, or at least were not materially contributed to, by injury sustained before 20 October 1999. That is so even though the consequences of injury — which, let it be assumed, met the definition of ‘serious injury’ — did not ensue until after 20 October 1999. Whether there was such a connection would be a question of fact, to be decided on the evidence.[61]
[61] at 619
98 Applying the reasoning of his Honour to the facts of the plaintiff's case must mean that a question that arises for consideration is whether the entirety of the consequences of the injuries which the plaintiff suffered on 28 May 2001 and 10 May 2002 resulted from those incidents.
99 His Honour made that point with great clarity when he then observed:
“What I have just said does not mean, of course, that a defendant could not contend that all or some part of the consequences in respect of which a plaintiff seeks to recover damages were caused only by compensable injury sustained in the period 12 November 1997- 19 October 1999. Were a defendant so to allege — either on a s 134AB(16) application, or at trial of a permitted proceeding — the issue would then become one of evidence — just as is the case when a plaintiff brings a common law action reliant upon a particular incident and the defendant asserts that the disabilities for which the plaintiff seeks to recover damages are the result of some earlier and statute- barred incident, or some incident in a domestic setting.”[62]
[62] at 619
100 The very observation made by his Honour was the subject of the submissions made by Mr Smith that the plaintiff had not produced sufficient evidence to demonstrate that all or some part of the consequences of the injuries she suffered were caused by the compensable injuries she suffered on 28 May 2001 and 10 May 2002.
101 The principle analysed by his Honour was the subject of very particular attention in Petkovski v Galletti.[63] Where an application is based upon the aggravation of a pre-existing condition, I must consider what the evidence discloses as to the prior condition of the plaintiff.[64]
[63] (supra)
[64] at 444
102 I referred to the rule in Jones v Dunkel[65]and O'Donnell v Reichard[66] in the course of the submissions made by both Mr Richards and Mr Smith of the failure of the plaintiff to produce evidence from the medical practitioners to whom I have referred relevant to the consequences which the plaintiff suffered to her right shoulder and lower back prior to 28 May 2001 and 10 May 2002.
[65] (1959) 101 CLR 298
[66] [1975] VR 916
103 The rule provides, in short, that where the plaintiff could have explained a state of affairs regarding the consequences of her prior injuries by producing evidence, and the evidence is of witnesses in her camp, and the failure to produce that evidence is unexplained, then, without speculating as to what the evidence might have been, an inference can be drawn that the evidence would have been of no assistance to the plaintiff, and on that footing a judge can prefer other evidence which has been produced.
104 Here there is an obvious failure by the plaintiff to call the evidence of those medical practitioners whose evidence I consider to be highly relevant to a fundamental issue in determining whether the plaintiff suffered consequences which meet the statutory tests. I see no reason why an inference should not be drawn adverse to the plaintiff that the evidence would have been of no assistance to her, and that I should not prefer the evidence that is before me.
105 The evidence before me establishes that the plaintiff had an actively symptomatic right shoulder and lower back well before 28 May 2001 and 10 May 2002 with consequences in terms of pain and suffering and loss of earning capacity.
Conclusion
106 The conclusion I have reached is that the plaintiff has failed to discharge the onus which she bears to prove what the consequences of her prior problems with her right shoulder and her lower back were in order for me to be satisfied that the aggravation of those pre-existing problems have consequences for her which meet the statutory tests.
107 It is for these reasons that I dismiss the plaintiff's Originating Motion. After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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