Lindsay v MIA Victoria
[2010] VCC 1342
•5 November 2010
ve
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
WORKCOVER DIVISION
Case No. CI-09-02251
| EVEYLYN LINDSAY | Plaintiff |
| v | |
| MIA VICTORIA | Firstnamed Defendant |
| and | |
| QBE WORKERS COMPENSATION (VIC) LIMITED | Secondnamed Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15, 16, 17 September 2010 |
| DATE OF JUDGMENT: | 5 November 2010 |
| CASE MAY BE CITED AS: | Lindsay v MIA Victoria & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1342 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – ss.98C and E – claimed injuries to right and left upper limb and right lower limb – specific incident of injury together with reliance on general duties and particularly on return to work after specific incident – compensation claimed and paid in relation to neck and right shoulder injury suffered in specific incident – whether symptoms in upper limbs partially related to injuries for which compensation already paid – ss.104B(5A), (5AA) and (5AB) – whether adequate evidence in relation to nature of general duties and duties performed upon return to work – evidence in relation to aggravation of pre-existing condition – whether burden of proof discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A. Malpas | Victorian Compensation Lawyers |
| For the Defendant | Mr N. Chamings | Thomsons Lawyers |
| HIS HONOUR: |
General background
1 This matter comes before me by way of an application for statutory benefits pursuant to the Accident Compensation Act 1985 (“the Act”). The plaintiff has issued a writ together with, ultimately, an amended statement of claim in which certain declarations are sought, together with the payment of some medical and like expenses and an order to set aside a determination rejecting a particular claim. If the foregoing sounds somewhat vague, it is because precisely what was being claimed in this case took some time to ascertain. There are multiple injuries in dispute. As shall be discussed, the plaintiff has sustained injuries to the cervical spine and to the right shoulder, liability for which injuries has been accepted and, indeed, the plaintiff has received payment in respect of these and continues to receive weekly payments, at least in respect of the injury to the cervical spine. After the evidence, I put to counsel what I thought were the issues to be determined, and at least rough agreement was reached in this regard.
2 Essentially, what is being sought by the plaintiff is a declaration of liability for the purposes of ss.98C and 98E of the Act in respect of injuries to the following limbs:-
(a) the right upper limb; (b) the left upper limb; (c) the right lower limb.
However, in respect of the right upper limb, compensation has already been received insofar as the impairment results from radiation of pain and symptoms from the cervical spine or resulting from injury to the right shoulder (a tear of the rotator cuff). Argument may exist as to whether compensation for impairment of the left upper limb has already been received insofar as any pain and symptoms in that arm are the result of referral from the cervical spine. It would appear that no claim form has ever been lodged in respect of that limb, but there may well be some referred pain from the cervical spine injury for which compensation has been paid. The alleged injury to the right lower limb is free from these particular complications.
3 The injuries to the upper limbs are, to a considerable extent, centred upon the elbows and hands, and particularly the thumbs. The injury to the right lower limb is basically one to the knee. In relation to the hands and the right knee, the existence of pre-existing degenerative changes looms large.
4 Ms A. Malpas of counsel appeared on behalf of the plaintiff. Mr N. Chamings of counsel appeared on behalf of the defendants. The interests of the defendants overlap entirely, and henceforth I shall refer only to “the defendant”, meaning MIA Victoria, being the plaintiff’s employer and in the employ of which entity it is alleged that the relevant injuries occurred. The plaintiff gave evidence and was cross-examined. On her behalf, oral evidence was adduced from Mr Kenneth Brearley, general surgeon specialising in trauma, who had examined her at the request of her solicitors. Evidence was also given by Dr Helen Sutcliffe, occupational physician, who has treated the plaintiff. The defendant called evidence from Dr Mary Wyatt, occupational physician, who had examined the plaintiff at the request of the defendant’s solicitors. Evidence was also called from Dr Roy Karna, rheumatologist, who had similarly examined, and from Mr Hugh Weaver, orthopaedic surgeon, who had also examined the plaintiff at the request of the defendant. The defendant also called Ms Gwendolyn Smith, who is its occupational health manager and who gave evidence, inter alia, concerning the duties performed by the plaintiff and particularly when she returned to work after her surgery. In addition, a considerable number of documents were tendered and each counsel made closing addresses.
5 In summary, the focus of the issues would appear to be upon whether the specified injuries arose out of or in the course of the employment or, insofar as at least some of the injuries appear to be by way of aggravation and the like, whether employment was a significant contributing factor to the occurrence of such injuries.
Factual background
6 The plaintiff is aged 60 years, having been born in Northern Ireland on 19 February 1950. She is a registered nurse and has various other skills. She migrated to Australia in approximately 1980, and, after a few years working here as a supervisor and charge nurse, returned to England where she had been educated. She there worked as a nurse manager before coming back to Australia.
7 Ultimately, she commenced employment with the defendant on approximately 1 February 2005 as a registered nurse (Division 1). The defendant conducts radiological examinations and, as far as this case is concerned, particularly CT scans. The plaintiff’s duties included the laying out of the trolleys, the greeting of patients, the taking of them to the CT machine or table, assisting with the manoeuvring of them into position and generally assisting the doctor with the procedures. She would then help them get changed and generally look after them following the procedure.
8 Shortly after starting work with the defendant, the plaintiff’s right knee “blew up”. She believes she was absent from employment for approximately one week, had a course of steroids, and then returned to employment when the condition settled down. She did not make a claim for compensation. The plaintiff’s medical history shall be discussed shortly. Suffice to say that this was not the first trouble which the plaintiff experienced in relation to her right knee.
9 The plaintiff then continued working without any significant difficulty until suffering injury to her neck and right shoulder on 22 December 2006. A large, semi-conscious man had to be slid from his hospital bed onto the CT table. He became distressed and had to be moved back to the hospital bed. The plaintiff was one of six people trying to manoeuvre him. She had to lean into the scanner and hold the patient’s legs whilst others pulled him towards the bed. The next morning she was aware of pain in her right shoulder and down the arm. The history of events immediately following is not contentious. Appropriate investigations were carried out. In addition to changes noted in her cervical spine, an ultrasound of the plaintiff’s right shoulder revealed a partial tear of the supraspinatus tendon.
10 Following treatment by way of medication and physiotherapy, which was not particularly beneficial, the plaintiff was referred to Mr Myron Rogers, and on 19 July 2007 he performed a two level cervical spinal cord and nerve root decompression, rhizolysis and interbody grafting, these procedures being performed at the C5/6 and C6/7 levels.
11 The plaintiff had initial improvement, followed by a recurrence of symptoms requiring quite intensive rehabilitation. The plaintiff returned to work on 1 October 2007. That she worked on restricted duties and for limited hours is not in dispute. Greater confusion exists concerning the precise nature of the duties performed and the number of hours worked. In relation to the latter, the plaintiff gave evidence that she commenced on two hours per day, two days per week and got up to three hours per day, two days per week. After reviewing all of the evidence, I am satisfied that she has in fact understated the number of hours worked. Ms Smith gave evidence that the records revealed that the plaintiff resumed work on the basis of four hours per day on a Tuesday and Thursday with a proposal that she increase to four hours per day, three days per week. The evidence of Ms Smith was that, as at the date on which the plaintiff ceased work, namely 20 November 2007, she was working 12 hours per week. I might say that this coincides with the history given, for example, to Dr Wyatt. Accordingly, whilst Ms Smith was not speaking entirely from a clear recollection but rather from notes as to what was proposed and what was presumably happening, her evidence is probably more accurate and the plaintiff was understating the position. Whilst perhaps not a great deal hinges upon it one way or the other, I hasten to add that, if anything, understating the hours worked upon return potentially acts to the detriment of the plaintiff’s claim. Certainly it does not represent embellishment, and I am in no way critical of the plaintiff in this regard.
12 There is then the issue of the duties performed by the plaintiff upon her return to work. That she was confined to assisting in relation to CT scans for patients is something which I accept. Precisely what was involved in these duties is another matter. I should add that the period of the return to work is of particular significance in relation to the right knee injury, although the plaintiff did not submit that damage to the right knee occurred exclusively during that period. Nevertheless, it is of importance. The plaintiff’s evidence in relation to what she did during the return to work period is to be found at page 15 of the transcript, and, leaving out the questions, is essentially as follows:
“I ended up doing just CT. Somewhat limited, but still the same job … Getting patients, getting them settled, taking the pictures into the doctors, going into the CT room and putting in (indistinct but probably something in relation to putting patients in the machine), getting them off the CT scanner, et cetera”.
13 Dr Sutcliffe, who supported the link between employment and the knee injury, took the following history:
“She recalled that she was offered a return to work plan in September 2007 and she attempted to return to work but was placed in the same duties as originally, in one of the busiest offices.
She managed to persist for six-seven weeks and increased her hours slightly.
However she performed repeated turning with rotation of the knees in the small office in which she worked. She calculated that she turned about 18 times for each patient.
She developed onset of right knee pain in November 2007 and saw her local doctor who placed her off work”.
14 Dr Sutcliffe concluded that the plaintiff’s need for right knee replacement surgery was as a result of osteoarthritis in the right knee aggravated by the constant turning and rotation required in her occupation as a radiology nurse.
15 This history of the small office, the number of turns and the like was not elicited from the plaintiff. It was not a history given in such detail to Dr Wyatt. Whilst a history was given of attempted returns to work and swelling of the right knee, the account of duties performed was as follows:
“Ms Lindsay indicates when she was back at work she was doing office duties, and she did need to stand up and move about regularly. She was not doing a very physical job, however Ms Lindsay did indicate that the regular standing and walking seemed to aggravate her symptoms”.
16 The history given to Mr Brian Davie, consultant orthopaedic surgeon, who examined the plaintiff at the request of the defendant, was as follows:
“Ms Lindsay also described problems associated with her right knee. This condition is not related to this particular incident, but rather is a result of an old injury when she fell at work 21 years previously while employed at the Baxter Retirement Village. She has undergone two arthroscopic procedures for the management of this complaint …”.
17 The history given to Dr Karna was this:
“She 22 years ago had a right knee problem occurring in work compensable circumstances, wherein she injured her right knee and thereafter has had trouble walking with intermittent swelling and buckling in the knee and now is on the public hospital waiting list for a right knee replacement. She can walk for 20 minutes, but has continuing pain and rest pain and restriction of movement of the right knee … She did work in October 2007 through to December 2007 part-time, but then her knee became an issue and she ceased work and she had ongoing pain in the neck and shoulders as well”.
18 In relation to the knee, Mr Weaver took the following history:
“As far as her work situation is concerned, she resumed work for a time following her surgery: she told me that she worked part time but she was nevertheless put back to working in a CT suite. She was not lifting patients but did what she called ‘paperwork and arm work’. She worked on a limited basis, 6 hours a week, for a time. During this period a pre-existing unrelated right knee injury added to her problem. As a consequence, when she went off work again, for a 10 day period, the employers would not have her back …”
19 Professor Kenneth Myers, examining at the request of the plaintiff’s solicitors, and whilst implicating employment, recorded the following:
“She was off work until late 2007 and at that time after return to work, there was gradual worsening pain in the right knee and the knee ‘blew up’. In retrospect she states that the right knee had ‘blown up’ about six weeks after first starting work with MIA but that had settled down”.
20 The history recorded by Mr Brearley is this:
“She says she returned to work in about September 2007 on a graduated return to work program but she was unable to increase her hours beyond about three per day. During this period she says that her right knee became swollen and painful. She had suffered an injury to the right knee twenty-two years ago in a fall at work and she had two arthroscopies in the years following and courses of steroid injections.
She says the knee never returned to normal but it did not stop her from doing her normal work and all activities. However when the right knee ‘blew up’ at work in about October 2007 she was no longer able to continue at all”.
21 Ms Smith gave evidence concerning the duties of the plaintiff following her return to work. In relation to what occurred, Ms Smith gave evidence that the plaintiff was required to act as a patient assistant for the CT unit. She would collect patients from the reception area, walk them around to the cubicle, ask them to get changed if necessary, and then accompany them into the CT room. She would check details of such things as date of birth, allergies and the like. The plaintiff would check whether contrast was required for the CT scans, but did not administer same. She was not required to handle patients manually, and this was a clear restriction pursuant to the return to work plan. After the patient was on the CT table, the plaintiff could wait with the radiographer in an adjoining room. Initially she was putting numbers on films, but that duty was withdrawn because it caused pain in her hands. She would collect the films and take them to the radiologist. To the best of Ms Smith’s knowledge, the plaintiff coped with her duties until 20 November 2007. In a telephone conversation on 11 October 2007, the plaintiff advised that she had sore hands with the right worse than the left. Ms Smith further gave evidence that the plaintiff would not be on her feet constantly. She would accompany a patient from reception to the CT room, and would then have the opportunity to sit while the CT was in progress, and then may be required to walk the patient back to reception together with the taking of films to the radiologist. Ms Smith was assured that the plaintiff was taking breaks.
22 Ms Smith also stated that there were chairs, along with a desk, in the nurses’ room and chairs in the CT area. CT bookings were made either every 15 minutes or 30 minutes and the actual procedure, with the patient in the machine, took between five and 20 minutes. A good proportion of the plaintiff’s time would have been spent walking. In relation to the amount of walking to be done and any twisting and turning, Ms Smith said that the walking was done along one corridor with one right angle turn. The plaintiff would walk approximately ten or eleven metres, then turn the corner, and then walk another ten metres, or possibly a shorter distance. Following the procedure, the plaintiff could direct the patient back to the reception area, and did not have to accompany such person. This would be done a number of times over the course of four hours. Ms Smith referred to it being done ten times over four hours, but it may be that she was simply selecting this figure as an example. However, with bookings every 15 or 30 minutes, the escorting of some ten to twelve patients over four hours sounds as if it would be a fair estimate.
23 Whilst dealing with the evidence of Ms Smith, her records indicated that the plaintiff reported to her on 10 September 2007 that she had pain in the left elbow, was seeing a doctor and having physiotherapy. On 11 October 2007, the notation in the records was:
“Sore hands right and left. Left sided neck pain. Not doing
anything at work. Only moving paperwork”.
The plaintiff ceased work on 20 November 2007. An entry of 22 November
2007 reads:“Knee swollen and painful. Thinks it is due to sitting around for one year and now returning to work and having to walk, twisting and turning in the corridors”.
24 Ms Smith was the last witness, and, as quite often happens with such a witness, her evidence expanded somewhat as it went on. She was not simply adopting a report. Not all of that evidence was put in the terms in which it was given to the plaintiff or to the medical witnesses. Accordingly, I raised the issue of whether or not there had been any breach of the rule in Browne v Dunn (1893) 6 R 67. Mr Chamings’ response was that the evidence given by the plaintiff at T 15 concerning her general duties upon resumption of work was not greatly different from that given by Ms Smith. There is some force in that, and I also appreciate that some of Ms Smith’s evidence, such as that relating to the distances to be walked and the one turn to be made, in fact emerged late in her evidence and following the production of some file notes not previously seen. Nevertheless, the fact remains that certain aspects of her evidence were not put to the plaintiff or, for example, to Dr Sutcliffe. It was not suggested that this in some way rendered her evidence inadmissible, but a question of weight does arise.
25 Thus, we have a situation where particular and detailed evidence in the history given to Dr Sutcliffe, and which would appear to have some influence on her thinking, was not in fact given by the plaintiff and some aspects of the evidence given by Ms Smith were not put to the plaintiff or to Dr Sutcliffe, or, for that matter, to Mr Brearley.
26 On balance, I tend to agree with the proposition that the general evidence given by the plaintiff at T 15 does not differ markedly from the evidence given by Ms Smith. The evidence given by Ms Smith was certainly more detailed. However, even after making some adjustment for the weight to be attributed to it in the circumstances, and having viewed the witnesses, it seems to me that her account of what duties and physical activities were involved in the return to work plan is accurate. It is not inconsistent with the plaintiff’s oral evidence – it is simply more detailed.
27 Ms Smith’s evidence does cast a somewhat different light upon, if not almost conflicting with, the history obtained by Dr Sutcliffe in relation to the plaintiff performing repeated turning with rotation of the knees in the small office in which she worked, and turning about 18 times for each patient. However, as stated, there was no oral evidence as to this from the plaintiff. It was not up to Mr Chamings to make the plaintiff’s case for her, and I can fully understand why he would not wish to cross-examine her concerning a more advantageous account apparently given by the plaintiff to one of her own witnesses and concerning which there was no detailed evidence. Further, the accuracy of the history taken by Dr Sutcliffe was not put in cross-examination of Ms Smith.
28 In all of these somewhat confusing circumstances, I accept that the physical duties required of the plaintiff upon her return to work between 1 October 2007 and 20 November 2007 were those referred to in the evidence of Ms Smith.
The injuries suffered by the plaintiff
(a) The plaintiff’s medical history prior to 22 December 2006 29 The plaintiff had sustained a number of injuries prior to those of 22 December 2006 and thereafter. As a child, she was involved in a motor vehicle accident and suffered injuries including a perforated bowel, a chipped spine and the loss of her appendix. In approximately December 1989, she suffered a fall in which she tried to save herself with her right hand. As a result, she suffered injury to the right thumb and wrist, back and left shoulder. She also injured her right knee. In relation to the right knee injury, it is apparent that the plaintiff subsequently had arthroscopies performed in this regard, and was under the care of Mr Peter Moran, orthopaedic surgeon. She agreed that Mr Moran had at the time (approximately 20 years ago) told the plaintiff that she would ultimately come to a total knee replacement on the right side. She continued performing nursing duties. The degree of symptomatology experienced thereafter is perhaps debatable. The plaintiff gave evidence that, prior to commencing employment with the defendant, she was not having any problems with her knee – see T 20. To Dr Karna she gave the following history:
“She 22 years ago had a right knee problem occurring in work compensable circumstances, wherein she injured her right knee and thereafter has had trouble walking with intermittent swelling and buckling in the knee and now is on the public hospital waiting list for a right knee replacement”.
To Dr Wyatt she stated that she had long-term knee osteoarthritis (see the report of 22 December 2007), and on 4 September 2008 gave the following history to Dr Wyatt:
“She had returned to work part-time in October 2007 but developed right knee problems and was placed off work. Ms Lindsay explained that this was on a background of having sustained a knee injury about 22 years before and having longstanding problems. Her knee replacement had been recommended”.
The history taken by Mr Brearley, as recorded in his report of 7 April 2010 is as follows:
“She says she returned to work in about September 2007 on a graduated return to work program but she was unable to increase her hours beyond about three per day. During this period she says that her right knee became swollen and painful. She had suffered an injury to the right knee twenty-two years ago in a fall at work and she had two arthroscopies in the years following and courses of steroid injections.
She says the knee never returned to normal but it did not stop her from doing her normal work and all activities. However when the right knee ‘blew up’ at work in about October 2007 she was no longer able to continue at all”.
To Professor Myers she gave an account of a fall in which she slipped on liquid on the floor, had two arthroscopies, but was not aware of what they showed. She had various injections performed by a rheumatologist which had improved her condition and thereafter she was always able to walk but never run. She said this did not interfere with her work.
30 The history recorded in the records of the Long Beach Medical Centre, as set out in the report of Dr McInerney of 20 May 2010, is that the plaintiff attended Dr Richards of the same clinic on 21 November 2007 with pain and swelling in the right knee. Dr Richards took a history that 20 years previously the patient had an arthroscopy after a fall at work. X-rays organised by Dr Richards on 21 November 2007 showed marked degenerative changes in the lateral aspect of the right knee joint.
31 The history taken by Mr Weaver in his report of 10 March 2009 is very brief. In relation to the return to work period, he commented that a pre-existing, unrelated right knee injury added to her problem. However, Mr Weaver had examined the plaintiff on 14 May 1992 in respect of the action brought in relation to the slipping accident of 1989, and in particular examined her right knee. At that time he considered that there was the possibility of degenerative changes developing in the knee and that, as a consequence, she may at some future time come to surgery. He recorded a history of the plaintiff being involved in two separate injuries involving the right knee, one being at approximately Christmas 1989 when she fell backwards. Then, following this, she began to experience right knee pain on an intermittent basis over the following 12 months. She had physiotherapy treatment, had the knee strapped and exercised. The second incident of injury recorded was in October 1990 when she slipped on some liquid. Her right knee remained sore after this and she was prescribed anti-inflammatory medications. By Christmas 1990 she was in quite severe pain all the time and ultimately underwent an arthroscopy in February 1991. As at the time she saw Mr Weaver in May 1992, the plaintiff stated that she had not returned to work at all subsequent to that episode of injury, and her right knee continued to be painful and swollen. A second arthroscopic examination had been performed in May or June 1991, but this was helpful for only approximately a fortnight. The right knee again became swollen and painful and she was referred to a rheumatologist. She had local steroid injections to the right knee which were only partly helpful and was taking anti-inflammatories. To Mr Weaver she complained of ongoing symptoms, some swelling, and the knee giving way beneath her on an intermittent basis. As at the time of seeing her, Mr Weaver was of the view that her injury, whilst genuine, had become slight and the plaintiff would be capable of obtaining appropriate employment as a hostel supervisor. He noted that she had undergone an appropriate course of retraining. He thought that her residual symptoms would abate slowly with the passage of time, but the possibility that she might develop longstanding degenerative changes in the right knee could not be ruled out entirely. He assessed her as having sustained a ten per cent loss of right lower limb function. He thought that she had a low grade persisting synovitis.
32 On 19 December 2007 the plaintiff was seen by Mr Michael Khan, orthopaedic surgeon, upon referral by Dr Richards. The history taken by Mr Khan, as recorded in his letter of 20 December 2007, is as follows:
“She has a long history of problems with her right knee, which had an arthroscopy done by Mr Peter Moran years ago. He told her that she would require total knee replacement surgery at that time.”
Mr Khan viewed plain x-rays of the knee, which, in his opinion, showed fairly advanced degenerative arthritis with practical obliteration of the joint space in the lateral compartment and very advanced patello-femoral arthritis with osteophyte formation.
Mr Khan went on as follows:
“Taking into consideration the longstanding problem with her right knee, which has resulted in fairly advanced degenerative changes in the knee, in my opinion, she will eventually require total knee replacement surgery.”
Mr Khan does not seem to have seen the plaintiff again, and certainly no further report from him was placed in evidence.
33 The orthopaedic surgeon who has treated the plaintiff in relation to her knee replacement, namely Mr Peter Hannon, wrote to Dr Richards on 29 May 2008. The history that he took is as follows:
“Thank you for referring this 58 year old nurse for assessment of her osteoarthritic right knee. She has had a long history of problems with her right knee and underwent some arthroscopies about 20 years ago. She was coping reasonably well until the last two to three years when the pain in her knee has been increasing in severity and is restricting her mobility. She is unable to work as a nurse because of her chronic knee pain … This lady has advanced osteoarthritis of the lateral compartment of her right knee …”
34 The plaintiff’s evidence was of right knee problems following the slipping incident. After recovering from that, effectively she had no problems with her right knee before commencing work with the defendant. Having done that, her knee “blew up” after a few weeks. She had a course of steroids, her knee settled down and she went on working. She missed approximately one week from work, made no compensation claim and specifically stated that she had no further problems with her knee thereafter (prior to 22 December 2006).
35 I have already dealt with the duties performed and the histories given in relation to the return to work period.
36 The plaintiff has also suffered from some other prior injuries. She has previously fractured her left patella. Whilst in England she slipped in a car park, injured an intervertebral disc, and required a laminectomy. The records of the Long Beach Medical Centre also reveal severe burning pain in the dorsal spine and radiating to the right shoulder, this entry being 27 May 2004. The plaintiff has no recollection of this.
(b) The injuries sustained on 22 December 2006 37 It is not suggested that any direct injury to the knee was received in the incident of 22 December 2006. However, the injuries then sustained and its sequelae are relevant in relation to the claims for the arms.
38 It is accepted that, in the incident in question, the plaintiff suffered injury to the cervical spine and also suffered a partial tear of the supraspinatus tendon in the right shoulder. The injury to the cervical spine led to the surgery performed by Mr Myron Rogers on 19 July 2007. A radiological investigation of 28 December 2006 confirmed marked narrowing of the C6/7 disc space and similar but less marked changes at C5/6. What was found at C6/7 was described as being consistent with extensive disc degeneration. The report of an MRI scan of 2 January 2007 refers to a very degenerate disc at C6/7 and a marked reduction in disc space height at C5/6. Foraminal encroachment at C5/6 bilaterally was also found. Mr Rogers performed a two level spinal cord and nerve root decompression and inter-body fusion. It is noted by Dr McInerney that thereafter the plaintiff continued to report neck pain as well as right shoulder, arm and hand pain with paraesthesia also being noted in the right hand. Dr McInerney has recorded complaints of left arm and hand pain at the first consultation he had with the plaintiff on 25 July 2008. A further MRI performed at the request of Mr Rogers showed results which pleased him and he felt that there was no indication for further surgery.
39 An opinion from another neurologist, Dr Churchyard, was obtained. He arranged nerve conduction studies. He reviewed the plaintiff on 17 October 2007 and stated that the studies on the arms had shown mild underlying nerve injury to the right C6 cervical nerve. The existence of carpal tunnel syndrome was excluded as a result of nerve conduction studies performed by Dr Russell Rollinson.
40 One of the problems that has to be resolved in this case concerns the extent to which symptoms and disability experienced by the plaintiff in her upper limbs in fact emanate from the injury to the cervical spine and its treatment. Thus, the opinions of medical examiners in this regard are of assistance insofar as they bear upon the source or cause of some of the injuries claimed.
41 Dr Robert Gassin, musculoskeletal physician, treated the plaintiff. She had been referred to him by Dr Alice Lam of Carrum Downs Medical Centre. Dr Gassin, in a report dated 2 April 2010, expressed the following view:
“Ms Lindsay’s symptoms are most likely arising from more than 1 source. The shooting pain down both arms is most likely due to chronic damage to 1 or more cervical nerve roots at, or adjacent to, the level of the cervical decompression and fusion surgery. The pain at the base of both thumbs is most likely due to osteoarthritis. The bilateral shoulder and elbow pain could be due to local pathology or referred from the neck.”
42 Dr Karna has referred to the plaintiff having cervical degenerative change, aggravated by her employment, with cervical referred pain into each arm. In his report of 2 March 2009, he refers to this being superimposed upon a right rotator cuff injury and constitutional osteoarthritis involving the hands in addition to the right knee. In his oral evidence, he confirmed that he thought that the symptoms in the thumbs were most likely due to osteoarthritis. He described reasons why he thought that this was so. He did not believe that the pain in the thumbs was related to the neck injury. In the witness box, his examination of a radiology report from 2007, not being one which he had previously seen, confirmed his views. In cross-examination he stated that he did not think that the onset of pain in the right thumb related to the neck injury. He did not believe that it was referred neurological pain from the neck and shoulder. He did believe that it was due to the osteoarthritic disease process in the hand. He stated that it was feasible that, if there was a complaint of such pain immediately after the December 2006 incident, a relationship could exist.
43 To Professor Myers, examining on behalf of her solicitors, the plaintiff described a shooting pain down the outer aspect of the arms into the thumbs bilaterally. She also described pain in the right shoulder and both elbows, together with a loss of sensation in the whole of the right hand. Professor Myers noted x-rays of 7 march 2007 which indicated evidence of osteoarthritis in the hands, and also ultrasounds of the elbows showing extensor tendonopathy. In expressing an opinion about the various arm injuries, Professor Myers referred only to the left elbow tendonitis. In a somewhat global opinion, he included this injury as one which occurred during the course of the plaintiff’s work activities with the defendant, but otherwise made no specific comment in relation to causation.
44 Mr Brearley, in his report of 7 April 2010, mentioned limitation in the use of the right arm as being resultant from the rotator cuff tear. In listing the injuries involved, he also referred to bilateral medial epicondylitis, relating this condition to the episode of 22 December 2006 on the basis that problems with the elbows developed as a result of overuse following the plaintiff’s inability to use the right arm normally. I might say that, whilst Mr Brearley took a history that the plaintiff developed medial epicondylitis in the left elbow attributed by her to overuse of the left arm because of the right shoulder injury, and of the development of similar symptoms in the right elbow, the recorded history in this regard is certainly not extensive. Apart from referring to the fact that the plaintiff has pain down the left arm and into the left thumb and pain in the right arm limited to the right wrist and thumb, and that carpel tunnel syndrome has effectively been eliminated as a cause, Mr Brearley’s report is, in reality, confined to his opinion in relation to the elbows, and particularly the left elbow, insofar as the limb injuries are concerned. In his oral evidence, Mr Brearley maintained his view that the x-rays of the hands taken on 27 March 2007 were indicative of general osteoarthritic changes even though the report of the radiologist seemed to confine such changes to thumbs and index fingers. Essentially, he was of this view because he believed that the other osteoarthritic changes in the hands had not yet become visible. In relation to the left arm and hand, and in particular the thumb, Mr Brearley did not believe that referred radicular pain was the cause.
45 In her report of 30 June 2009, Dr Sutcliffe stated that the persisting impairment of the plaintiff’s upper limbs was a result of the surgery performed. In her subsequent report, Dr Sutcliffe referred to the plaintiff developing right and left elbow tendonopathy and osteoarthritis in both thumbs. Further, she referred to the plaintiff as having a very substantial loss of capacity of the right and left upper limbs as a result of the cervical spine injury. In cross- examination she expressed the view that the situation in relation to the right and left elbow tendonopathy was complicated, effectively saying that the right upper limb condition would lead to overuse of the left. This would in turn again lead to overuse of the right arm and therefore the tendonopathy was, by association, related to employment. I interpret that as an opinion linking the elbow conditions to the original injury. As shall be discussed, her evidence in relation to the thumb conditions, and whether they are related directly or indirectly to the incident of injury on 22 December 2006, was not particularly clear.
(c) Injuries after 22 December 2006 46 Whilst it would seem apparent that the plaintiff had difficulties in relation to her right knee prior to 22 December 2006 and that there was pre-existing osteoarthritis, the manner in which the plaintiff’s case was presented was substantially directed towards employment activities occurring after 22 December 2006 and following the plaintiff’s return to work. There had been a flare-up in the plaintiff’s knee condition shortly after she commenced employment with the defendant, but her condition settled and she worked on. I have previously discussed these matters. As I understand it, in respect of the knee injury, the plaintiff was concentrating largely upon employment duties performed after 22 December 2006. I have discussed aspects of this above. In addition, as mentioned, what could be described as at least a theory has been put forward in relation to overuse of the arms after 22 December 2006 and in relation to her general duties both before and after that date.
The nature of the injuries the subject of dispute
(a) Right lower limb 47 It seems reasonably clear to me that the claimed injury to the right lower limb, and being injury to the right knee, is one in the nature of a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease for the purposes of s.82(2C) of the Act. The plaintiff had a history of right knee trouble going back many years. It is apparent from her evidence and from the histories obtained by various medical examiners that she underwent arthroscopies in 1991 (see the report of Mr Weaver of 19 June 1992), and that she was told by Mr Peter Moran that she would come to total knee replacement.
48 In his letter of 20 December 2007 to Dr Richards, Mr Khan indicated that he had viewed plain x-rays of the knee, and they showed fairly advanced degenerative arthritis with practical obliteration of the joint space in the lateral compartment and very advanced patello-femoral arthritis with irregularity and osteophyte formation in the trochlear surface of the femur. His conclusion was that, taking into consideration the long-standing problem with her right knee which had resulted in fairly advanced degenerative changes, a total knee replacement was required. The radiologist’s report of 21 November 2007 also referred to severe narrowing indicative of degenerative change and marked osteoarthritic changes. Mr Brearley diagnosed aggravation of previous right knee injury and osteoarthritis finally resulting in total knee joint replacement. Professor Myers made a similar diagnosis, as did Dr Sutcliffe. Dr Karna referred to a constitutional osteoarthritic tendency with osteoarthritis present in multiple sites, whilst Mr Weaver referred simply to a pre-existing, unrelated right knee injury and referred in cross-examination to possible aggravation of a pre-existing joint problem. In short, the overwhelming weight of evidence is that the plaintiff had long-standing degenerative osteoarthritic changes in the right knee. The plaintiff’s case, as typified by the evidence of Professor Myers, Mr Brearley and Dr Sutcliffe, is based upon aggravation of a pre-existing condition. Therefore, in relation to the injury to the right knee, s.82(2C) is relevant and it must be established that the employment was a significant contributing factor to the injury. Section 5(1B) of the Act is also relevant.
(b) Right upper limb 49 The situation in relation to the right upper limb is more complicated. The plaintiff has already claimed in respect of injury to her neck and right shoulder suffered by her on 22 December 2006, and the defendant accepted liability in respect of these injuries. What was put as being sought by the behalf prior to the evidence being given was effectively a declaration in relation to the elbows and lower arms. In closing addresses, when I was again attempting to clarify what was being claimed, Ms Malpas confirmed that, on the right side, radiating or neck related arm symptoms and disabilities had already been dealt with (although this was not the situation in relation to the left arm for which the claim had been rejected).
50 Thus, the claim in respect of the right arm focuses particularly upon the elbow and the thumb. In regard to the latter, it is again clear that osteoarthritic changes have been present for some time – see the x-ray of 27 March 2007. Further, as reported by Dr Gassin, x-rays performed on 21 July 2009 revealed osteoarthritis at the base of each thumb. Dr Karna also stated that the plaintiff almost certainly had some degree of osteoarthritis at the base of her thumb joints. It seems to me apparent that any work-related injury involving the right thumb would be by way of aggravation, there being no evidence of any specific traumatic incident. Again s.82(2C) and 5(1B) are operative.
51 In relation to the right elbow, the nature of the injury is not as clear. An ultrasound of that joint was organised by Dr Gassin. The conclusion of the radiologist was that a two millimetre articular surface partial thickness tear of the common extensor origin was noted. Tendonopathy was noted adjacent to this. Dr Gassin has made little reference to this in his report. Mr Brearley examined the plaintiff’s right arm and found some tenderness over the medial side of the elbow but movements were normal. He diagnosed bilateral medial epicondylitis, and described elbow problems as a result of overuse following the plaintiff’s inability to use the right arm normally. His evidence in relation to the elbow complaints did not take matters furthers. Dr Sutcliffe simply referred to right elbow tendonopathy and related this to overuse. Dr Karna made little reference to elbows in his report and was neither examined or cross-examined concerning the plaintiff’s elbows at any length, if at all. Mr Weaver found the function of the elbows to be satisfactory and otherwise his report of 10 March 2009 contains little concerning them. Again, very little was elicited from him in either examination-in-chief or cross-examination concerning the right elbow. Mr Brian Davie, reporting to the defendant’s solicitors, described the plaintiff’s condition as being one of tennis elbow.
52 In her report of 22 December 2007, Dr Wyatt made mention of the fact that the plaintiff has arthritis in her hands. In her subsequent report of 2 March 2008, which report was essentially directed towards the plaintiff’s right knee problems, Dr Wyatt referred to the plaintiff as having right arm complaints of poorly defined pathology. When reporting on 7 September 2008, she mentioned the plaintiff’s neck and right arm complaints as developing in the context of the lift at work in December 2006. Her report of 12 February 2010 contains a reference to bilateral epicondylitis, but Dr Wyatt also referred to the most likely diagnosis in relation to the plaintiff’s hands, wrists, elbows and shoulders as being widespread osteoarthritis. In her oral evidence, she confirmed that the pain in the hands suffered by the plaintiff did not arise from her neck. Dr Wyatt was shown radiological material. She stated that the x- rays indicated that the plaintiff had osteoarthritis at the base of her thumbs. She was of the view that the development of numbness, together with pins and needles, in the right hand was explicable in terms of the neck injury.
53 I am satisfied that the plaintiff does suffer from bilateral epicondylitis, which obviously involves the right upper limb. The evidence in relation to this is somewhat sparse, but, on balance, I am of the view that it is not an injury in the nature of an aggravation. There does not seem to be any evidence indicative of a pre-existing condition. Therefore, the appropriate test is a consideration of whether the injury arose out of or in the course of the employment.
(c) Left upper limb 54 What has been said in relation to the right elbow and thumb appears to be equally applicable to the left elbow and thumb. The additional factor to be discussed is pain radiating from the cervical spine.
(d) Injury to the upper limbs – issue of pain and symptoms emanating from injuries for which compensation has been paid 55 Ms Malpas submitted that pain radiating from the cervical spine to and down the left upper limb was to be taken into account as the claim for the left arm had not been accepted and disability on the left side has not been assessed. Mr Chamings approached the matter on the basis that sequelae from the neck injury were to be excluded as compensation had already been paid in respect of that injury.
56 It seems to me that the reasoning of Mr Chamings is correct. The plaintiff made a claim for impairment benefits, this being dated 23 December 2007. The injuries referred to were to the neck, left and right shoulders and psychiatric injury. The date of injury was given as 22 December 2006. A description of how it occurred is broad, simply referring to the injury arising out of or in the course of employment. However, the date is clearly that of the relevant incident involving the plaintiff, the patient and the CT machine.
57 At the request of the defendant and in relation to the claim for impairment benefits, the plaintiff was assessed by Mr Gerald Moran, orthopaedic surgeon. Pursuant to the AMA Guides (4th edition), he assessed her impairment of the cervico-thoracic spine as being five per cent whole person impairment. He found that there was no objective evidence of radiculopathy. He assessed her impairment of the right upper extremity, having noted that she had a partial tear of the supraspinatus tendon of the right shoulder, at 15 per cent. He applied the Combined Values Chart to arrive at an ultimate impairment assessment of 11 per cent. As I understand it, an offer based upon this assessment was accepted. Thus, compensation has already been paid in respect of sequelae of the injury to the cervical spine. This is so regardless of what has in fact been claimed in respect of the left arm and what has been accepted or rejected.
58 Further, in this regard I would refer to s.104B(5A), (5AA) and (5AB) of the Act. Essentially, the plaintiff is only entitled to make one claim for compensation under s.98C (or, as set out in s.104B(5AB), under s.98E) in respect of injuries arising out of the same event or circumstance. Insofar as injury to the right or left upper limbs by way of referred pain from the neck or involving the right rotator cuff was sustained by the plaintiff, it seems to me that such injuries arose from the one event. Thus, the fact that compensation has already been paid in respect of sequelae of the neck injury, and bearing in mind the wording of the Act, seems to me to lead to the conclusion that the plaintiff is excluded not only from relying upon radiating pain and symptoms in the right arm, as conceded, but is also so excluded in relation to the left arm.
59 Further, in this regard I would refer to the decision of the Court of Appeal in Victorian WorkCover Authority & Anor v Hartley [2010] VSCA 74. The Court of Appeal determined that injuries sustained during and following surgery for an injury arise out of the same event or circumstance as the original injury itself. In such circumstances, a further claim pursuant to s.98C cannot be made.
Ruling 60
I now turn to a consideration of whether, on the basis of the evidence before me, the appropriate statutory tests have been satisfied. I shall deal with the injuries in turn.
(a) Right lower limb 61
I accept that this injury did not arise out of the incident of 22 December 2006 and that no compensation has been paid in respect of it. As previously stated, I am of the view that it is an injury in the nature of an aggravation, and accordingly what is to be considered is whether employment was a significant contributing factor to the injury to the knee.
62
There are two concepts to be considered. One is the course of employment generally. The other relates more specifically to the period when the plaintiff returned to work following the neck surgery and when her symptoms ultimately became far more acute.
63
In relation to the former proposition, I accept that the plaintiff did suffer right knee pain a short time after commencing her employment with the defendant and was absent from work for approximately a week. She had a course of steroids, and, by her own evidence, had no further problem with her knee, at least prior to 22 December 2006. I note when she saw Mr T.J. Russell, surgeon, at the request of the defendant on 11 April 2007, she gave a history of having a right knee fall at work 20 years ago, requiring a couple of arthroscopies, but her knee was still giving her problems. There is no reference to difficulties encountered shortly after commencing work with the defendant, but I accept that such did occur. In any event, her oral evidence is to the effect that she had no problems with her knee during the period presently being considered. It was put to her that the records of the Long Beach Medical Centre contained a history of a slip on a wet step at a restaurant in June 2006 which resulted in a blow to the flexed right knee. However, the plaintiff said that she was only troubled with knee pain until the bruising went away, and after that did not continue to have problems with her knee. Whilst some recorded histories refer to some right knee difficulties over the years, I accept that the restaurant incident was no more than a temporary exacerbation.
64
In his report of 7 April 2010, Mr Brearley supported the general proposition that the plaintiff’s right knee injury resulted from aggravation of the previous injury to the knee, but also listed it as one of the injuries resulting from the episode of 22 December 2006. Were that so, the plaintiff may well immediately face difficulties in respect of the operation of s.104B of the Act, as referred to above. However, Mr Brearley also expressed the opinion that the plaintiff’s work with the defendant did involve a good deal of lifting of patients of various sizes and that this no doubt would impose a significant strain on her arthritic knee and lead to the early need for the total knee replacement surgery. He gave similar oral evidence, including reference to the fact that, in his opinion, the need for the total knee replacement was accelerated by reason of her duties. Mr Brearley had been given a history by the plaintiff to the effect that her job involved frequent lifting of patients onto trolleys and examination tables, together with some lifting of limbs and holding of same. The patient’s oral evidence in this regard was as follows:
“I lay out the trolleys, I greeted the patients, took them in, changed and got them on the tables, and assisted the doctor with the procedures. Then I assisted the patients to get changed and get out or spend time looking after them after the procedure.” (See T13.)
65 The plaintiff then went on to describe the knee trouble which she encountered early in her employment and the fact that she had no troubles thereafter. It was not spelt out with any clarity that, as recorded by Mr Brearley, her work involved a good deal of lifting of patients of various sizes. Mr Brearley was at something of a loss to explain why the plaintiff’s knee “blew up” when she had returned to work on considerably fewer hours than previously, and was not “really traumatising it significantly at that time”. He said that he was talking “in general terms” when he considered that work may have made a contribution to worsening knee pain.
66 In his report of 1 February 2010, Professor Myers has referred to the aggravation of pre-existing osteoarthritis in the right knee and stated that, on the balance of probabilities, the plaintiff’s right knee would not have been sufficiently symptomatic so to require surgery if it had not been for strains placed upon it in the course of the plaintiff’s work activities. The actual description of her work activities given to Professor Myers, and presumably forming the basis of his opinion, was as follows:
“She commenced work for MIA as a Div I nurse in February 2005. She described herself as ‘a floating sister, relieving at different centres, assisting with procedures and in the CT rooms in the Peninsula’.”
67 The plaintiff also gave to Professor Myers a history of her knee blowing up after she returned to work in late 2007, and also told him that her right knee had blown up about six weeks after first starting work with the defendant, but that condition had settled down. Whether Professor Myers reached the conclusion that he has because of personal knowledge of some nursing duties or because of the history given to him is not entirely clear. The support for the proposition of general aggravation by reason of work activities is in comparatively brief form.
68 Dr Sutcliffe took a history of the plaintiff developing the onset of right knee pain in November 2007. The work description which she obtained was of the plaintiff arranging preparation of the patients and performing assistance at procedures whilst working in the CT department. She also obtained a history as follows:
“Ms Lindsay provided a history of recent right knee replacement surgery as a result of osteoarthritis in the right knee aggravated by the constant turning and rotation required in her occupation as a radiology nurse…From the description obtained today Ms Lindsay was required to perform frequent turns with rotation of the knees in the course of her employment as a radiology nurse. I believe that this resulted in aggravation of osteoarthritis in the right knee.”
69 As mentioned earlier, Dr Sutcliffe also obtained the history of the plaintiff performing the repeated rotation approximately 18 times for each patient. She took that part of the history specifically in the context of the return to work plan. As stated, that detailed history was not elicited from the plaintiff. However, I shall essentially treat Dr Sutcliffe as supporting the proposition that the plaintiff’s general duties aggravated her osteoarthritic knee condition throughout the course of her employment, and not just in the period of the return to work plan.
70 Dr Karna took what appears to be an appropriate history of the plaintiff’s duties. The history taken by him in relation to the knee problem itself has been set out previously. Dr Karna had little to say about causation of the knee injury in his report, because he believed that he was examining the plaintiff in relation to the neck and right shoulder injuries. When the sequence of events was put to him in cross-examination, he expressed the view that if there was to be further trauma accelerating the osteoarthritic problem – that is, trauma further to that which had occurred some 20 years previously – it would be trauma of the type associated with torn ligaments or torn cartilages. He doubted that what he described as day-to-day mobilisation and general walking would have represented a substantial aggravating influence. If such activities caused pain and swelling, that was just part and parcel of the osteoarthritic disease process. However, he doubted that the process was changing at a pathological level. He doubted whether being on one’s feet represented an injurious, traumatic event.
71 The history taken by Dr Wyatt basically concerned itself with events occurring during the return to work plan in 2007. Such history is recorded in her report of 22 December 2007. In a subsequent report of 2 March 2008, Dr Wyatt took a further history of the knee injury and of the arthroscopies years earlier, and noted that the plaintiff “had continued problems from that time”. She also noted that, over the preceding 12 months, the plaintiff had been active with hydrotherapy and exercising. In this report, Dr Wyatt was uncertain as to whether the fall decades previously “was covered through the current system”, but felt that it had contributed to the development of the arthritis. However, she also observed as follows:
“That is to say, the employment over the last few years does not present to be a contributing factor to Ms Lindsay’s right knee arthritis.”
72 In the history recorded in his report of 10 March 2009 by Mr Weaver, there is a brief reference to an “unrelated right knee injury”. Otherwise, at that time he did not concern himself with such injury. In his oral evidence, he referred to the fact that his understanding was that the need for a right knee replacement was nothing to do with the incident of December 2006. He stated that the plaintiff, when examined, had made no complaints to him of the knee being a work-related problem and he “took it as read” that it was something which was pre-existing. In cross-examination, he stated that he had no difficulty with the concept that, in 1992, the plaintiff had a genuine right knee problem and that he estimated the loss of function of the right lower limb as being 10 per cent. In relation to the contribution to the injury of employment with the defendant, Mr Weaver referred to the plaintiff’s employment over a 28 year period. He stated that employment over a period of time can cause some aggravation of a pre-existing joint problem, but, in the absence of a specific incident, referred to such contribution as being “proportionate”. He referred to the contribution of work with the defendant as being “minor”. He stated as follows:
95 In my opinion, and bearing in mind the sequence of events, the only aspect of the plaintiff’s injuries to her upper limbs which could possibly, on the evidence, be work-related is the injury to the right thumb. In arriving at that conclusion, I am assuming for the purposes of the exercise that the symptoms came on almost immediately after the incident of 22 December 2006 as recounted by the plaintiff to Mr Weaver and Mr Davie, even if not so spelt out in evidence. In my view there is simply no adequate material to link the right thumb condition, or indeed the arm injuries generally, to the plaintiff’s general duties either before or after the injury to the neck. That that would bring us back again to the provisions of the Act and to the fact that the plaintiff has already claimed, and received, compensation pursuant to s.98C in respect of the cervical and right shoulder injuries suffered in the relevant incident. It seems to me that that is then the end of the matter, although that the balance of the evidence (including the lack thereof) favours the position taken by witnesses such as Dr Wyatt in any event.
96 In summary, it is my conclusion that the plaintiff has failed to discharge the burden of proof in respect of any of the claimed injuries to the right upper limb. Apart from any statutory difficulties which she faces, there is scant, insufficient and inadequate evidence supporting her position in relation to the claims of epicondylitis. I am also not persuaded in relation to the osteoarthritic condition of the right thumb.
(c) Left upper limb 97 As mentioned earlier, it was convenient when discussing the right upper limb to deal also with evidence and observations which involve the left upper limb. Further, whilst the two claims are not identical, there are substantial similarities.
98 In my opinion the claim in relation to the left upper limb is, if anything, weaker than that for the right. The same statutory difficulties apply. The lack of satisfactory evidence in relation to the bilateral epicondylitis remains. I still prefer the evidence adduced on behalf of the defendant. In relation to pain in the left thumb, this commenced whilst the plaintiff was in rehabilitation after her surgery. The link to the incident of 22 December 2006 is tenuous indeed, even assuming that the Act permitted the claim to be made. Evidence linking any injury to the left upper limb to the duties of employment generally, and whether before or after 22 December 2006, seems to me to be thin in the extreme. I again prefer the evidence adduced by the defendant.
99 In summary, the plaintiff has also failed to discharge the burden of proof in relation to any injury to the left upper limb.
Conclusion
100 The plaintiff has failed to discharge the burden of proof in respect of the claimed injuries to the right lower limb and to each upper limb. The application is dismissed accordingly. I shall hear the parties as to any ancillary orders that are required.
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