Margeta v Mercy Public Hospitals Inc
[2014] VCC 472
•16 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00908
| SNJEZANA MARGETA | Plaintiff |
| v | |
| MERCY PUBLIC HOSPITALS INC | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 April 2014 | |
DATE OF JUDGMENT: | 16 April 2014 | |
CASE MAY BE CITED AS: | Margeta v Mercy Public Hospitals Inc | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 472 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine and resulting impairment
Legislation Cited: Accident Compensation Act 1985
Cases cited: Dressing v Porter [2006] VSCA 215
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Walsh | Nowicki Carbone Lawyers |
| For the Defendant | Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by her in the course of her employment with the defendant. The relevant impairment of function relied upon by the plaintiff is that of the spine.
2 Although the plaintiff was involved in three separate incidents in which symptoms to her spine were either initiated or aggravated, given that the plaintiff seeks leave to commence a proceeding with respect to injuries occasioned over a period of time by reason of a work process which exposed her spine to injury arising from a number of alleged incidents in which she was required to manhandle heavy objects, I am satisfied that:
(i) it is appropriate to assess the impact of that work process upon the relevant body part affected by that process (namely the plaintiff’s spine); and
(ii) the cumulative effect of that process upon the plaintiff’s spine may be considered for the purpose of determining whether the plaintiff has suffered a “serious injury” pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”).
3 In the proceeding, the plaintiff relies upon two affidavits, sworn by her on 30 October 2012 and 24 March 2014 respectively, and that of her mother, sworn on 23 March 2014. In addition, the plaintiff was required to attend the proceeding for cross-examination and, accordingly, gave viva voce evidence.
4 In her affidavit of 30 October 2012, the plaintiff asserted that throughout the course of her employment with the defendant, she suffered:
(i) injury to the cervical spine, including but not limited to the neck;
(ii) injury to the back;
(iii) injury to the left shoulder;
(iv) bilateral carpal tunnel syndrome;
(v) psychological or psychiatric injury, including but not limited to stress, anxiety and depression.
5 In this application, the plaintiff relies only upon the injury and resulting impairment occasioned to her spine by reason of her work process.
6 I am satisfied that in assessing the consequences to the plaintiff of the injury to her spine in this instance, I should regard the full spine as comprising the one body function.
7 It is put on behalf of the defendant that much of the content of the plaintiff’s first affidavit cannot be relied upon by her.
8 In this sense, it is asserted on behalf of the defendant that:
(i) the plaintiff’s repeated reference to the fact that her workplace injuries gave rise to various consequences; and
(ii) the prefacing by the plaintiff of the fact that the cause of the consequences identified by her was her injuries without identifying which of her injuries was responsible for a particular consequence
gives rise to a situation in which the plaintiff has not, with sufficient particularity, identified which of the described consequences arise by reason of the injury to, and impairment of function of, the plaintiff’s spine.
9 I do not accept the submission put on behalf of the defendant in this respect.
10 In my opinion, a close analysis of the content of the plaintiff’s affidavit generally makes clear the relationship between the injury and impairment the subject of this application, and the consequences associated with that injury and impairment.
11 Further, I approach my task on the basis that the plaintiff is required to establish that the injury and associated impairment of function of her spine was a material cause of any of the consequences relied upon by her and not the sole cause of each such consequence.
12 In her first affidavit, the plaintiff describes the following symptoms and consequences as being associated with the injury and impairment of function of her lumbar spine:
· She experiences fluctuating pain in her neck and back
· She is limited in the housework she can undertake
· She avoids activities which involve bending and twisting
· Heavy housework is undertaken by her mother and mother-in-law
· She has difficulty sleeping for more than three or four hours at a time because of pain, discomfort and worry.
13 In her second affidavit, the plaintiff deposed to the fact that:
· She had been unable to return to the workforce since September 2010.
· She employs medication in the form of Panadeine Forte, Mobic and Diazepam and non-prescription medication, including Panadeine, Panadol and Voltaren Gel on a daily basis for pain relief, the major areas of her pain being her neck region between her shoulders and her lower back.
· She experiences pain on a daily basis in her neck and back and that she often experiences pain which radiates into her arms, particularly on the left side.
· She continues to be restricted in her ability to perform household tasks.
· She continues to experience difficulty sleeping, similar to that described in her earlier affidavit, commenting:
“I wake up in pain regularly throughout the night. My back and neck are often very painful and prevent me from sleeping.”
· She had enjoyed her work with the defendant, had enjoyed socialising with her colleagues, and that the loss of her employment has placed stress upon her and her home life.
14 For the reasons to which I will refer in the course of this judgment, I am satisfied that the injury to the plaintiff’s spine is a cause of each of these consequences.
15 I am further satisfied that the plaintiff has been rendered unfit to carry out her pre-accident duties which, subject to taking maternity leave for approximately twelve months upon the birth of each of her children, the plaintiff had undertaken in the course of her employment with the defendant during the substantial period in which she was employed by the defendant.
16 In her affidavit of 24 March 2014, the plaintiff’s mother describes the plaintiff as having trouble standing at the kitchen bench for long periods of time and performing simple household tasks, including washing and ironing. She said that her daughter enjoyed cooking before her injury and that now the plaintiff’s mother and her father perform a lot of her housework. She confirmed the statement made by the plaintiff in her affidavit that the plaintiff employed painkilling medication every day, and said that her daughter complained to her of the presence of pain on most days.
17 This evidence is unchallenged, is consistent with the findings I have made as to the medical evidence and the plaintiff’s capacity for activity according to that evidence, and I accept it.
The cross-examination of the Plaintiff
18 Little of consequence arose in the course of the plaintiff’s cross-examination to alter the evidence given by the plaintiff set out in her affidavits or the relevance of any of the medical reports which have been tendered and are relied upon by the parties.
19 In the course of cross-examination:
· The plaintiff confirmed that she had been involved in three separate incidents: the first on 22 June 2010; the second on 4 August 2010; the third on 28 September 2010, that her symptoms of back pain were initiated by the first incident; failed to resolve after the first incident and were exacerbated by each of the following incidents.
· No issue was taken with the fact that each of the incidents described by plaintiff involved her being required, in the course of her employment, to manoeuvre, on two occasions, trolleys supporting heavy patients and, on one occasion, a heavy green bin. Indeed, the cross-examination, in my opinion, made clear the justification in the plaintiff maintaining a position that her injury arose by reason of the nature of her employment.
· If there were any doubt as to this position, which, in my opinion, there was not:
(i) the histories provided by the plaintiff to the various medical practitioners who have assessed and treated her; and
(ii) the virtually uniform opinions expressed by those doctors to which I will refer subsequently in my reasons[1]
put the issue to rest.
[1]With the with the exclusion of Dr Kostos, whose opinion I do not accept for the reasons I will explain subsequently
20 It is incumbent upon practitioners not to raise issues which have no factual basis. In this case, time was lost by reason of enquiries made by me as to the way in which the defendant could assert that, in deciding the case, I was required to adopt an approach in which the consequences of the three incidents which the plaintiff relied upon as demonstrating an incapacity arising by the nature of her employment generally, should be identified and assessed individually. Positions of that type, if without merit, should not be taken. Given the circumstances in this case, it is clear that the time wasted by the debate which arose as to this issue made it inevitable that this hearing would occupy two days rather than one.
21 As to the balance of the cross-examination of the plaintiff, the only issue of any relevance which arises for my consideration involves the acceptance by the plaintiff in the course of cross-examination, that she developed “pain and numbness all over your body”;[2] This statement by the plaintiff is relied upon by the defendant to buttress its contention that the plaintiff’s symptoms are not organically based.
[2]Transcript 52
22 When the plaintiff was given the opportunity in re-examination to explain her symptoms in her own words, her description of her symptoms at Transcript 56-58 and further, her description of her symptoms at Transcript 48, do not accord with the description of pain and numbness all over her body and are generally consistent with the description of the plaintiff’s symptoms which was provided to Mr D’Urso, Dr Sutcliffe and the plaintiff’s general practitioners. For this reason, I do not attribute any significance to the response by the plaintiff in the course of her cross-examination upon this issue which is relied upon by the defendant.
The Plaintiff’s work history and my finding as to the reliability of the Plaintiff’s evidence
23 On 12 February 2014, Margaret Barrett, the Human Resources Manager of the Werribee Hospital, wrote to the plaintiff, advising her of the decision by the hospital to terminate the plaintiff’s employment effective from 21 March 2014 on the basis that it was the hospital’s position that by reason of the plaintiff’s “permanent restriction”, she would not be able to return to a position of patient services assistant and that the hospital was not able to offer the plaintiff any alternative position which would accommodate her physical restrictions. It was not suggested at that time that the hospital took a position that the plaintiff was other than a genuine historian or a previously valued employee.
24 The plaintiff’s longstanding history of employment with the defendant, her return to work following the first and second incidents in which her spinal symptoms manifested themselves notwithstanding the fact that she had made an incomplete recovery from those symptoms, and her approach to the defendant to allow her to return to work undertaking light duties which was declined by the defendant, attest, in my opinion to:
· The importance which the plaintiff attached to her work and her desire to continue in her employment with the defendant; and
· The veracity of the plaintiff’s evidence as to the significance of the loss of the employment to her.
25 Further, the combination of the above factors reinforces the impression which I formed of the plaintiff as being an honest historian who was doing her best to describe accurately the level of her symptoms and the effect of those symptoms upon her. At no time did I form the impression that the plaintiff was not answering truthfully nor accurately as to the level of her spinal symptoms or their effect, and I accept her evidence on these issues.
The medical evidence
26 Dr Suma Shivaraj was the plaintiff’s general practitioner for a considerable period of time.
27 In a report dated 11 September 2011, Dr Shivaraj describes the plaintiff presenting on 16 August 2010 with a history of chronic back pain in her lower back.
28 Dr Shivaraj describes the plaintiff providing a history of:
· being involved in an incident on 2 June 2010 when she felt a sharp pain in her lower back whilst moving a green rubbish bin in the course of her employment;
· thereafter returning to work with continuing symptoms and suffering a further episode of severe neck, shoulder and lower back pain on 4 August 2010.
29 As at September 2011, Dr Shivaraj opined that the plaintiff:
· Had suffered an injury to her lower back, neck and shoulders and that she had developed bilateral carpal tunnel syndrome;
· Was not fit for her pre-injury duties;
and reported that the plaintiff was employing painkillers for her back and neck pain.
30 At the referral of Dr Shivaraj, the plaintiff consulted Dr Nicholas Maartens, neurosurgeon, who, in a report dated 31 January 2011, describes the plaintiff developing symptoms in association with her work process in June 2010, which symptoms were exacerbated upon the plaintiff’s return to work in August 2010 and were such that the plaintiff was forced to discontinue working on 29 September 2010.
31 At the time the plaintiff presented to Dr Maartens, she described the presence of pain “worse in the lower back and in the left leg”, with associated numbness and tingling in the toes.
32 Dr Maartens obtained a history from the plaintiff:
· That she had difficulty standing on her feet for long periods of time and that her activities of daily living were affected such that she received assistance at home from her mother and mother-in-law.
· That her neck pain was worse on the left-hand side, and that she suffered from the presence of numbness and tingling in her fingers and wrist.
· That her current medication included Panadeine Forte, Mobic, Diazepam, Nurofen and Voltaren Gel.
33 Mr Maartens opined:
“I think her main problem is the work she does given her physique, scoliosis and the lumbar degenerative disc disease, to which I am sure thirteen years of working as a patient service assistant would have contributed. … She would only be able to return to her work with restrictions on bending, lifting and the weight she transports. I do not anticipate her situation improving spontaneously.”
34 Mr Maartens further commented that he was not confident about being able to help the plaintiff with her symptoms by undertaking surgery other than in treatment of her carpal tunnel syndrome.
35 The plaintiff’s current general practitioner, Dr Nadine Nicolaai, in a report dated 20 August 2012, opines that:
(i) The plaintiff was a longstanding patient of Dr Shivaraj, who presented with:
§ cervical spondylosis, most pronounced at C6-7
§ bilateral carpal tunnel syndrome
§ thoracic scoliosis
§ lower lumbar degenerative disc disease
(ii) The plaintiff’s condition had not stabilised, that she was still in pain and that she would benefit from physiotherapy, osteotherapy and hydrotherapy;
(iii) The plaintiff was incapacitated to return to her pre-injury employment.
36 In a report dated 28 May 2013, Dr Nicolaai maintained the previous opinion expressed by her, and commented that the plaintiff still had “ongoing pain and had seen physiotherapists and other allied health providers to help her in the management of her pain, minimal relief”. She opined that the plaintiff’s current medical conditions were permanent and that her prognosis was poor.
37 Dr Robert Hjorth, neurosurgeon, in the course of a medical examination the subject of a report dated 23 April 2013, obtained a history from the plaintiff:
(i) that her neck was stiff;
(ii) that she experienced pain when she turned her head;
(iii) that her shoulders were stiff;
(iv) that she had difficulty cooking because she was unable to stand for very long by reason of the presence of back pain and that her hands were weak.
38 At that time, Dr Hjorth opined that:
· The plaintiff presented with an injury to her lumbar spine while she was working for the Werribee Mercy Hospital in 2010;
· At some stage following the injury to the lumbar spine, the plaintiff had sustained an injury to her cervical spine;
· The plaintiff’s work was related to her symptoms and that psychological factors played a role her presentation;
· The plaintiff presented with no evidence of making a conscious attempt to exaggerate her symptoms;
· A diagnosis of fibromyalgia would also be a reasonable explanation of her pain symptoms;
· Having regard to the differentiation by Mr Hjorth between the concepts of conversion, hysteria, malingering, anxiety and depression and fibromyalgia, in the course of his report, I am satisfied that in employing the latter term, Dr Hjorth was doing so to describe an organic rather than non-organic basis for her presentation;
· Further, the statement by Dr Hjorth that that psychological factors played a role (my emphasis added) in the plaintiff’s presentation, satisfies me that he was not opining that her physical symptoms were not a cause of the plaintiff’s pain and disability, but rather the contrary.
39 On 19 December 2012, Dr Henry Kipe, a resident working under Dr Maartens, described Dr Maartens as reviewing the plaintiff on that day, at which time an examination of the plaintiff revealed her sensation being reduced in the “C5, C7 and C8 dermatomes and in the L2-L5 dermatomes”.
40 Dr Kipe reported that Dr Maartens had examined an MRI scan of the plaintiff’s cervical spine dated 14 December 2012 and had taken the view that the disc protrusion revealed as being present did not account for her brachialgia or numbness. He noted that an arrangement had been made to undertake a lumbar spinal MRI scan.
41 On 7 August 2013, Dr Carmen McInerney, a resident of the Department of Neurosurgery of The Alfred hospital, reported to Dr Nicolaai that the plaintiff was seen in the Outpatient’s Clinic of the hospital with respect to her ongoing back and neck problems.
42 Dr McInerney reported that it was the opinion of the Neurosurgical Registrar at that time that the plaintiff did not present with any lesion which was amenable to surgical treatment and that her symptoms of left-sided sciatica were not supported by the imaging which had been undertaken. She opined that the plaintiff would benefit from ongoing conservative management of her degenerative spine, with physiotherapy and sensible analgesia.
43 Mr Paul D’Urso, consulting neurosurgeon, examined the plaintiff on 2 December 2013. On that occasion, Mr D’Urso noted the content of an MRI scan of the plaintiff’s cervical spine which suggested the presence of a right paracentral disc prolapse at C5-6 with mild cord impingement and more significant circumferential disc and osteophyte complexes at C6-7, with some focal cord impingement. This MRI scan also recorded the presence of a focal prolapse at C7-T1.
44 Mr D’Urso further reported as to an MRI scan of the lumbar spine dated 18 February 2013 as revealing a small paracentral disc prolapse at L4-5, without neural compression.
45 Mr D’Urso opined that:
· The plaintiff was presenting with a symptomatic degenerative condition of both her cervical and lumbar spines and that her workplace activity had been a precipitating factor to the development of both symptoms and her current incapacity;
· The plaintiff presented with a permanent incapacity into the foreseeable future for employment activity;
· The plaintiff did not have the capacity for arduous domestic cleaning or gardening activity or any type of recreational sporting activity;
· The plaintiff’s condition appeared to be stabilised, and that she had no capacity for any type of employment activity for which the plaintiff had the skills or ability to perform.
46 The defendant points to an entry contained within the plaintiff’s medical history of the Pinnacle Medical Centre with respect to an examination undertaken on 18 April 2011 which contains the comment “multiple somatic pain syndrome … fibromyalgia”. The author of the entry is unclear. Equally, the content of the entry is not repeated in other entries contained in the record. In these circumstances I accord the entry little weight, given the volume of evidence to which I have referred which opines in support of the organic nature of the plaintiff’s presentation
47 Further, the suggestion that the plaintiff was presenting with a somatic pain syndrome on 18 April 2011, if designed to convey the presence of a non-organic basis for the plaintiff’s presentation, is inconsistent with the fact that on the same day the plaintiff was prescribed Panadeine Forte and Mobic in treatment of her symptoms, which prescription was identical to that provided for the plaintiff one month earlier and in the following months.
48 Given that the Pinnacle Medical Centre is the centre at which Dr Nicolaai practises and that Dr Nicolaai, in her reports, fails to make any mention of the fact that the plaintiff may be presenting with a condition which is not organically based, I do not find the submission by the defendant that random entries of a shorthand nature appearing in a medical record are persuasive upon the issue as to whether the plaintiff’s condition is sponsored by primarily non-organic factors.
49 Dr Helen Sutcliffe, an occupational physician, in a report dated 17 August 2012, opined that:
· The plaintiff sustained a disc derangement in her lumbar spine and an aggravation of pre-existing disc degeneration in her thoracic and cervical spine in association with the heavy manual handling tasks she performed in the course of her employment with the defendant.
· The plaintiff’s prognosis was poor with respect to each of her spinal conditions;
· The plaintiff would experience persisting limitation of function in all aspects of her daily living; and
· The plaintiff had no capacity for pre-injury employment as the result of her work-related conditions.
50 The defendant relies upon a number of reports from Dr Tony Kostos, rheumatologist.
51 In his first report, whilst Dr Kostos obtained a history from the plaintiff that she was employed by the defendant in work which involved the pushing of trolleys, wheelchairs and cleaning and delivering meals, that she experienced a spontaneous onset of sharp pain in both legs associated with the loss of feeling and problems with balance on 22 June 2010, which onset of symptoms was associated with no specific history of an injury or accident.
52 Whilst Dr Kostos appears to have obtained a history that the plaintiff returned to work in the presence of continuing symptoms, he makes no mention of the incidents described by the plaintiff which occurred on 22 June 2010, 4 August 2010 or 28 September 2010, which history was obtained by each of the medical practitioners who have assessed the plaintiff and have opined in the case.
53 It may be argued that the plaintiff’s position as to the incident which occurred on 29 September 2010 was not made clear to a number of medical practitioners who have assessed her.
54 However:
(i) That Dr Kostos should be unable to obtain a history which identified the plaintiff’s involvement in any traumatic incident;
(ii) The extreme position taken by Dr Kostos as to the idiopathic nature of carpal tunnel syndrome and his assertion that such a condition could not be associated with the type of work duties which the plaintiff was required to undertake, in circumstances in which the totality of the investigation by Dr Kostos of those work duties following a three-line statement:
“At both of these hospitals she worked as a patient services assistant which involved pushing trolleys and wheelchairs, cleaning, delivering meals, etc, she was employed on a full-time basis”
suggests the employment by Dr Kostos of a shallow and inappropriately judgmental approach to his task of assessing the plaintiff and opining upon her presentation; with the result that I am satisfied that I should accord no weight to the opinions expressed by him.
55 On 7 February 2013, Associate Professor Geoffrey Littlejohn, a rheumatologist, interviewed and examined the plaintiff.
56 Associate Professor Littlejohn expressed the opinion that the plaintiff presented with fibromyalgia, which he described as involving a significant psychosocial input. He opined that the plaintiff presented with degenerative change in the discs of her cervical, thoracic and lumbar spine, commenting:
“Even though her back pain came on in the context of her work in the first instance, she now has clinical features of a Chronic Pain Syndrome, namely fibromyalgia.”
57 I interpret the use by Associate Professor Littlejohn of the word “fibromyalgia” to be describing the presence a non-organic pain process.
58 Given the overwhelming content of the medical evidence to which I have referred which generally accepts that the plaintiff presents with organically-based symptoms sponsored by direct injury to the spine or aggravation of pre-existing degenerative conditions in the spine, I am satisfied that I should prefer that evidence to the largely isolated position held by Associate Professor Littlejohn.
59 For these reasons I am satisfied that the plaintiff presents primarily with an organic condition which materially contributes to her pain and incapacity and, accordingly, that the plaintiff’s pain and the associated incapacities described by the plaintiff in her affidavits and evidence, are the consequences of the impairment of the function of her spine.[3]
[3]See Dressing v Porter [2006] VSCA 215 (17 October 2006)
Conclusion
60 I am satisfied that the organic condition present in the plaintiff’s spine which involves an aggravation of a pre-existing degenerative condition in her spine generally and that of a pre-existing thoracic scoliosis specifically, has been such as to:
· Incapacitate the plaintiff from engaging in the employment which was very important to her and had been a part of her life for many years;
· Expose the plaintiff to symptoms of pain of which:
(i) Require her to employ prescription-strength painkillers on a daily basis to manage that pain;
(ii) Interfere with her ability to sleep;
(iii) Preclude her from engaging in any heavy form of physical activity which involves bending or twisting and as such, preclude her from heavy housework;
(iv) Are aggravated by activities which involve the plaintiff standing for long periods of time or performing simple tasks such as washing and ironing or cooking.
61 I am further satisfied that:
· The plaintiff’s employment was very important to her;
· The plaintiff was very proud of the work that she undertook, the fact that her capacity to undertake that work had been recognised by the defendant, and that she enjoyed the social aspects of her work.
and that, in these circumstances, that the loss for the plaintiff of her employment gives rise to a loss which is appropriately being described as “very significant”. Further, I am satisfied that whilst the plaintiff may retain a theoretical capacity for employment, she is unlikely to find work which will give her the satisfaction which she derived from her employment with the defendant. When that loss is considered in its context as being additional to each of the consequences to the plaintiff to which I have referred in the course of these reasons; I am satisfied that the plaintiff has established that the consequences to her of the injury and impairment the subject of this application are appropriately described as being more than significant or marked and as being at least very considerable.
62 For the reasons set out above I am satisfied that the plaintiff is entitled to the leave which she seeks in this application.
63 I will hear the plaintiff as to the precise form of the order which should be made in this proceeding and also upon the issue of costs.
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