Mery v Aero Properties Pty Ltd
[2011] VCC 219
•21 March, 2011
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-03698
| MARIA MERY | Plaintiff |
| V | |
| AERO PROPERTIES PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28, 29, 30 July and 2, 3 August 2010 |
| DATE OF JUDGMENT: | 21 March, 2011 |
| CASE MAY BE CITED AS: | Mery v Aero Properties Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 219 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application; s.134AB Accident Compensation Act 1985; leave sought in respect of both pain and suffering and loss of earning capacity damages; reliance on part (a) and part (c) of definition of “serious injury”; whether admission of event of compensable injury by acceptance of liability and Workcover payments rebutted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A. McTiernan | Grace Placencio Davies & Co Lawyers |
| For the Defendant | Mr J. Batten | Thomson Playford Cutlers |
| HER HONOUR: |
1 Mrs Maria Mery seeks leave to bring proceedings to recover damages in respect of both pain and suffering and pecuniary losses which she alleges she suffered as a result of injuries sustained on 14 April 2004 in the course of her employment with the defendant. To obtain such leave she must satisfy the court that she suffered a “serious injury” under the definitions and requirements of s.134AB of the Accident Compensation Act 1985 (the “Act”). She relies on part (a) of the definition of “serious injury” in respect of an injury to her spine and, or alternatively (if the spine is to be divided), in respect of injury to her cervical spine and thoracolumbar spine. Alternatively, she relies upon part (c) of the definition, claiming to have suffered severe permanent mental or behavioural disturbance or disorder. The condition relied upon is a Major Depressive Disorder, or at least an Adjustment Disorder with depression and anxiety, secondary to the effects of physical injuries that she sustained.
2 The evidence consisted of the documents set out in the attached schedule, and oral evidence of the plaintiff and of her treating psychiatrist, Dr Geoffrey Hogan, who were both required to attend for cross-examination.
3 As in most applications of this nature, the credibility and reliability of the plaintiff as a witness is very important, because not only the court but also the doctors whose opinions are in evidence are heavily dependent on the plaintiff’s account of the extent and timing and duration of symptoms of most injuries.
4 Mrs Mery gave evidence through an interpreter in Spanish. That process almost inevitably involves some misunderstandings and questions and answers at cross-purposes, and frustration by all involved. This was heightened in this case by cross-examining counsel relentlessly pursuing forms of question and language that were overly long and incorporating multiple propositions, sometimes with multiple negatives, legalistic, or cross- referring to documentation not likely to have ever been read by or accessible to the plaintiff personally. This process left me uncertain on a number of occasions as to whether the plaintiff understood what she was being asked, and notwithstanding that Mr Batten said on several occasions that he “got the answer”, I could not put much meaning or weight on such answer in its context.
5 My impression of the plaintiff was that she was genuinely trying to remember and answer to the best of her ability. I did not think that she was deliberately lying or evasive or prevaricating. She said that when she gets nervous she does not remember things, and I accept that as true, and that it occurred from time to time during her cross-examination. Most of the psychiatrists who have examined her accept that she has problems with memory and concentration. She was at times clearly mistaken during cross-examination[1]. Where I have had doubt about the reliability of her memory I have turned to other evidence on those issues to reach the findings I have. Overall, my impression was that Mrs Mery kept her composure, and was genuinely attempting to answer, and that most of her evidence is reliable.
[1] Such as insisting that it was the male Dr Andrada – Dr Ernesto Andrada – whom she first saw after the injury, and who ordered tests and Xrays, whereas not only the clinic records and Xray report, but also her own and her husband’s affidavits say it was Dr Lorinda Andrada.
Plaintiff’s relevant personal circumstances and background
6 Mrs Mery is now aged 55. She was born in Chile where she completed school at age 18, and married about two years later. She had two children before migrating with her husband and children to Australia, in 1984.
7 Initially in Australia only her husband worked while she cared for the children. Her mother arrived in Australia a couple of years later, and was then available to mind the children, and Mrs Mery commenced fulltime employment. She worked as a process worker for Electrolux for approximately ten years until she took maternity leave in late 1996. In April 1997 she gave birth to twins. In 1998, the Electrolux factory was closing, and she was invited to return to work there for one day so that she would be eligible for a redundancy package, which she did. Although she occasionally visited and assisted her husband at his work with the defendant, as a cleaner at Eumemmering Secondary College in Fountain Gate, she did not engage in formal employment again until January 2002.
8 As a wife and mother of four children, her life at that stage centred on her home and family, and a large extended family of her husband. I accept that she did most of the housework and cooking, some gardening, and kept active physically and socially, especially with extended family, and that she liked dancing. She has never driven a car.
9 In January 2002 she commenced part-time employment with the defendant as a cleaner at the same school where her husband already worked. Her hours were the same as his - 3pm to 7pm, five days a week. Her duties included cleaning classrooms, science and other work rooms, as well as kitchens, toilets and offices. The work included emptying bins of rubbish into larger “wheelie” bins, as well as dusting, sweeping, mopping floors, scrubbing of graffiti, and washing walls, benches, basins and mirrors, and vacuuming offices and classrooms. The duties were physically demanding and required active and strong movements.
10 Between them the plaintiff and her husband also needed to empty wheelie bins into a large skip or Dumpmaster. Because the mechanical device provided for this did not work properly, the bins often needed to be lifted and tilted forward to be emptied into the Dumpmaster. The bins, when too heavy, were lifted by her and her husband together.
Events causing injury
11 The plaintiff’s case is that on 14 April 2004 while emptying a wheelie bin of rubbish into a Dumpmaster she suffered injury to her neck and back. Her claim is also based on psychological injury alleged to have arisen due to the effects of the physical injuries.
12 It was only during the course of the hearing that the defendant put in issue whether the plaintiff suffered any injury at all or arising from her work on 14 April 2004[2]. This was raised by Mr Batten notwithstanding that his client had previously accepted liability under the Act in respect of weekly payments and impairment benefits[3].
[2] T 47, line 1 to T67.
[3] Exhibit S; T 228.
13 I was critical of the raising of this issue so late in the history of the matter, especially after the defendant’s statement of issues handed to the court on the first morning started with: ”What now is the true nature and extent of the injury occurring on 14 April 2004?”, but in the interests of justice allowed the defendant to run the broader case by re-igniting this issue. It turned into the defendant’s primary focus of attention.
14 The plaintiff claims – and says on affidavit[4] and during cross-examination - that on 14 April 2004, as she was lifting and tipping a 120 litre wheelie bin of rubbish into the Dumpmaster, with her right arm outstretched and above her shoulder level and her left hand at the base of the bin, she experienced severe sharp pain in the right side of her neck and right shoulder, and pain in her back, such that she could not continue to work. She says that she waited for her husband, who was collecting more bins to bring to be emptied into the Dumpmaster. Mr Mery does not claim to have seen the actual incident, but says[5] that he had left seven wheelie bins for her to empty into the Dumpmaster, and when he returned found her in tears, and she told him that she was in pain from what occurred. He says that he told her to sit down while he completed her duties for her, but she could not sit or stand comfortably due to pain. When the work was finished, he drove her to the family’s general practitioner’s clinic, Eastern Medical Centre. Her usual general practitioner, Dr Paleschi, was not available, and she was seen by Dr Lorinda De Leon-Andrada. Mr Mery says that he was present when she told the doctor of what had happened and of experiencing pain in her neck, back and right shoulder, and saw the doctor examine these areas.
[4] Exhibit A
[5] By affidavit on which he was not cross-examined – Exhibit D
15 The plaintiff also relies on the defendant’s payments under its WorkCover liabilities of weekly payments[6], and acceptance of liability on her non- economic loss impairment application, specifically for injuries to the plaintiff’s neck, back and psychiatric condition[7] as admissions. These are to be regarded as significant, albeit not conclusive, evidence that she was injured at work on the date alleged[8].
[6] T 228
[7] Exhibit S – letter 24 August 2005
[8] Ansett Australia Ltd v Taylor [2006] VSCA 171 at para [40] per Ashley JA
16 The defendant argues that the admissions are displaced or refuted in this case by other evidence, essentially derived from the records of the medical practice attended by the plaintiff, and also some inconsistencies in claim documents.
17 The medical clinic records[9] show an attendance on Dr Lorinda Andrada on 14 April, 2004, at 6.36pm, but without mention of lifting a bin or any work incident. Rather, the history records complaint of pain on right thigh and back of the leg, and of feeling tired for about a year and increasing lately. Examination included her shoulders, the right having “heavy sensation”, and the cervical spine where there was no tenderness, and thoracic where there was mild tenderness over T5, and full range of movement. The legs were also examined. Celebrex was prescribed, and diagnostic testing including cervical xray, and blood tests. Cervical spine xrays were conducted on 19 April, with the report addressed to Dr Lorinda Andrada. The clinical notes record the next attendance on Dr Lorinda Andrada on 28 April for review of Xray, that there was discussion of the cervical spine Xray, discussion that Panadeine forte was too strong for her tummy and Indocid suppository helps, prescription for Neurontin was given and a referral for physiotherapy with review in a week.
[9] Exhibit V
18 There is no mention in the clinical notes of a work incident until 30 April 2004 when she is recorded as seen by Dr Ernesto Andrada with a history of constant and persistent neck and back pain, and unable to sleep, since 15 April, whilst at work as a cleaner attempting to lift and empty a rubbish bin shoulder high and complaining of neck and lower right sided back pain, and “now wants Work Cover certificate”.
19 Mr Batten argues that the time of the consultation with Dr Lorinda Andrada being 6.36pm indicates that she was not even at work when she says the incident occurred, because her and her husband’s hours were 3pm to 7pm. I reject that argument as they both say that they left and drove to the clinic as soon as the work duties were finished, and I do not find it inconsistent that that was at least a half hour before 7pm.
20 Mr Batten also argues that with no medical report tendered from either Dr Andrada, I should draw an inference that they would not have assisted the plaintiff’s case, based on the principle in O’Donnell v Reickard[10]. He argues that that inference together with the content of the clinical notes ought to leave me unable to find on the balance of probabilities that the alleged event occurred or caused injury on 14 April.
[10] [1975] VR 916 – argued at T229-231
21 For reasons aired at the time this was raised, I do not regard the O’Donnell v Reichard principle as applicable in the context in which the defendant seeks to invoke it here. From the time that the WorkCover claim was presented to the employer in September 2004, it and its insurer’s claims agent had an authority from the worker to contact her doctors for information. There is evidence of contact with the doctor for a return to work plan in November 2004. There was a discrepancy between the date the plaintiff’s form stated the injury occurred, and that filled in by the doctor on the Injury report form, and the claims agent had the ability to obtain from the general practitioners a medical report or an explanation for that discrepancy. No such report has emerged. I was told that this case involves “a no-documents claims agent”, which had not kept paper versions, and had no accessible computer recordings, of the claims agent’s file including original claim forms and other documents relating to payments of compensation in respect of the injuries in the meantime[11].
[11] T59, 228-9
22 The plaintiff left the care of both Drs Andrada at the beginning of March 2005. The defendant placed great weight on this[12]. I do infer that there was to an extent a falling out with them as to whether she had the capacity to return to work, and that provides an explanation for the lack of report and non-calling of evidence from them, although obviously does not mean that they were unavailable to provide a report or be called. It is consistent with an inference on a different issue – ie the extent of ongoing incapacity – but in my view it does not lead to the inference urged here that the work incident causing injury did not occur. In all of these circumstances I am not prepared to draw an adverse inference against the plaintiff and not the defendant for failing to obtain a report or explanation from either Dr Andrada as to whether or not the attendance on 14 April was for the alleged work injury.
[12] Eg T213, lines13-29
23 Notwithstanding that the clinical notes for 14 April make no reference to a work injury or even complaint of shoulder or neck or back pain, the referral for an Xray of the cervical spine, together with examination of neck, shoulders and thoracic spine, are indicative that there was complaint of symptoms in those areas, and therefore also indicative that the clinical notes are not a full reflection of what was said during that consultation.
24 Further, although the details in the medical records may not have been obtained until after the Originating Motion was issued and under the subpoena process, the defendant had much earlier challenged the honesty of the plaintiff’s claim in another respect – alleging fraud as to whether she in fact returned to work between 16 November 2004 and February 2005. If there had been any real suspicion that a work injury had not in fact occurred at all I would have expected the point to be taken much earlier. However, once that issue was settled and the plaintiff’s claim in respect of that period accepted and weekly payments made from February 2005, there followed the acceptance of liability in August 2005 for the impairment claim[13].
[13] Exhibit S
25 The clinical notes of a physiotherapist who treated the plaintiff from 14 May 2004[14], reflect that the date of injury was first given as 14/4 and then crossed out and “?19” written- and a description “lifted green bin”. Referral to him is in the clinical note of Dr Lorinda Andrada on 28 April. I infer that the change of date in the physiotherapist’s notes reflects confusion arising from the date of the Xray.
[14] Exhibit T
26 A WorkCover claim form was not submitted until 2 September 2004[15]. It shows the date of injury as 14 April 2004, but apparently changed from 15 April. That change is of no significance whatsoever in my view.
[15] Exhibit AC
27 A Notice of Injury form[16] dated 14 May 2004 puts date of injury at 19 April, but that part of the form appears to have been completed by Dr Ernesto Andrada[17]. The final version of that document was not signed by the plaintiff at all. Notwithstanding cross-examination suggesting that Mrs Mery gave the doctor that information – which she could not specifically recall – I have little difficulty inferring that the date of 19 April was a mistake by Dr Ernesto Andrada, who had taken over the plaintiff’s treatment within the clinic from 30 April, had noted her injury to have occurred at work on 15 April, and 19 April was the date of an Xray of the plaintiff’s cervical spine. His wife was the doctor who ordered the Xray, and the clinical notes have that as occurring on consultation on 14 April. Despite the extended attention given to this issue during the hearing I do not regard those documents as raising any serious inconsistency as to the date and occurrence of the plaintiff’s injury.
[16] Exhibit 12
[17] Form signed by Dr Andrada 14/5/04; with the employer’s section at the foot dated 18 April, having a changed date from what it appears the plaintiff was initially signing with “14/5/04”as the underlying date.
28 The defendant argues that the plaintiff’s credibility and reliability is unsound and cannot be relied upon. I have already described my impression of her as a witness and that I did in general terms find her credible and reliable. In my view if the plaintiff’s claim were, as asserted by Mr Batten, “predicated on a lie”[18], then I would expect the plaintiff and her husband to have created a better lie. If Mr Mery – who was not cross-examined – were party to a fabrication in describing finding his wife in distress and taking her to the doctor as soon as he finished his work that day, it might be expected that he would also have claimed to have actually witnessed the injury occur, rather than arriving shortly afterwards. If they were both fabricating the incident and injury, they might be expected to have told the doctor that the incident occurred on the same day that he was asked for a WorkCover certificate.
[18] T 60, line 5
29 It is not unusual for there to be discrepancies in details including dates as they are recorded in the ordinary course of people attending doctors, and of lodging WorkCover claims, and in my view none have been raised here of sufficient cogency or significance to displace either the plaintiff’s version of what occurred, or the defendant’s earlier admission of liability for injury to her neck, back and a psychiatric condition arising from her employment on 14 April 2004.
Events following injury
30 I am satisfied that notwithstanding the date in her claim form the plaintiff in fact did not return to work between 15 and 30 April 2004. She continued to attend the Eastern Medical Clinic, seeing both Dr Ernesto Andrada mainly for her injuries, but also Dr Lorinda Andrada on occasions, and other doctors there for conditions not related to her work injuries. By late May 2004 she was reporting symptoms of depression. She attended physiotherapy from 14 May until approximately September 2004. In September 2004 she was referred to Dr Robert Gassin’s pain clinic.
31 A return to work starting with two hours per day on restricted duties started 16 November 2004. She complained to her doctors within days that even a short time at these duties caused very bad pain. She continued on that return to work until the end of the school year in December. On re-commencement of the following school year she returned to work for about two weeks[19], but also returned to her doctors complaining of pain and was certified unfit to work from about mid-February, 2005.
[19] Exhibit W – agreed facts in absence of records.
32 She changed doctors from the beginning of March 2005, moving to Dr Michael O’Toole, who has been her treating general practitioner ever since. He continued with the referral to Dr Gassin. He continued to prescribe medication, both for pain and for depression. He also referred her to a number of other specialists, including to a psychiatrist, Dr Osianlis, whom she attended for some months in 2005, but then ceased as she regarded herself as better on medication.
33 It is implicit in the defendant’s case that Dr O’Toole must not have been as rigorous as Dr E Andrada, because he has been willing to continue to certify her as unfit for work. I see no basis for that criticism. It seems from the course of treatment over the years that Dr O’Toole was not merely accepting of this patient’s complaints, or leaving her on medication without further thought. He has made a number of referrals to seek specialist opinion about her complaints and about treatment options.
34 She was referred to Mr Xenos, neurosurgeon, in May 2005, and again in September 2006. He confirmed cervical nerve impingement but did not recommend surgery.
35 On 25 June 2005 she was admitted to hospital with transient global amnesia, which, after exclusion of neurological cause, was attributed to an acute psychiatric crisis. She was referred by Dr O’Toole to Dr Kempster, neurologist, about such amnesia incidents.
36 She was referred to Dr Seneviratne, Neurologist and Neurophysiologist, about the right arm pain and parasthesia. She has had nerve conduction tests carried out by Dr Kranz.
37 She has been treated by psychiatrist Dr Hogan since 2009, with ongoing psychotherapy (with professional interpreter present) and after various adjustments, a combination of medication that has given some improvement, but not resolution of her symptoms. She had been recently referred to a Spanish speaking psychologist at the time of the hearing.
38 She now takes Endone, sometimes Panadeine Forte although it causes bowel problems, and sometimes Pandol Osteo for pain, as well as the combination of anti-depressant and anxiety medication.
39 She has not attempted any employment since February, 2005.
Medical evidence
40 To identify the compensable injury or injuries that occurred, I next turn to the large number of medical reports.
41 Dr Ernesto Andrada, on the first Workcover certificate[20], diagnosed musculoskeletal back/neck pain. On the Notice of Injury form two weeks later he described the nature of injury as “cervical nerve root irritation/back pain”, affecting neck /back, from lifting and emptying rubbish bin at shoulder length high, described the x-ray as showing “[?] cervical spondylosis at C5/C6 with impingement”. His clinical notes show complaint of depression from attendance on 28 May 2004, and prescription of Zoloft. He referred her in September 2004 to Dr Robert Gassin. He continued to certify her unfit to return to work until a return to restricted duties on fewer hours from 16 November 2004. He or his wife provided further certificates in February, 2005, that she was unfit for work at that stage.
[20] Exhibit 16
42 Dr Robert Gassin, musculoskeletal physician[21], saw the plaintiff on five occasions between October 2004 and October 2005, first referred to him by Dr Ernesto Andrada in relation to chronic right-sided neck and shoulder pain sustained after lifting a rubbish bin to shoulder height at work. He recommended an MRI scan for which WorkCover accepted liability, and that revealed encroachment and compression of the sixth nerve root bilaterally and the C7 nerve root on the right. Initially, he prescribed Prednisolone but that was discontinued due to bloating. He obtained WorkCover authorisation for nerve root injections in December 2004, but she did not proceed with them at that stage. She complained of pain in her neck and right arm and also in the upper back, numbness and heaviness in the right arm and pins and needles in the right middle finger. She also described stretching pain in the lower back.
[21] Exhibit H.
43 Dr Gassin diagnosed right C6 or more likely C7 radicular pain as the result of nerve root irritation. This diagnosis he considered supported by the clinical history and examination and MRI scan findings. His opinion[22] was that her employment was a significant contributing factor to her neck injury and would remain so, so long as her neck, upper back and right arm symptoms persisted.
[22] In report of April 2006
44 She was sent to him for re-examination by her lawyers in June 2008. On her description overall her symptoms in relation to her neck and right arm had changed little, but there was the additional report of heaviness in the head and tiredness. She reported that the pain was most severe in her neck and upper back. On examination he found a very limited range of neck movement in all plains, she was tender throughout the cervical and upper thoracic regions and neurological examination revealed decreased muscle strength in a non- anatomical distribution in the right arm and subjective decrease in right hand sensation in a glove-like distribution. He could not illicit arm reflexes. She showed significant decrease in range of right shoulder movement. His considered examination revealed evidence of psychological distress and noted discrepencies found. He viewed an x-ray and ultrasound of her right shoulder of 1 December 2005, noting the x-ray revealed some irregularity of the greater tuberosity of the humerus and the ultrasound a possible intrasubstance tear on the anterior aspect of the supraspinatus tendon and subacromial bursitis. A CT scan of the lumbosacral spine of 1 December 2005 revealed disc degenerative changes particularly at L4/5 and L5/S1 levels, with compromise of the left L5 nerve in a narrowed exit foramen. An MRI scan of the cervical spine, dated 13 July 2006, showed little interval change since the MRI scan of 19 November 2004. He confirmed the earlier diagnosis and noted that as her symptoms had been present for over four years he expected them to persist for the foreseeable future.
45 Dr Michael O’Toole, who has been Mrs Mery’s treating general practitioner since approximately the end of February 2005, provided several reports.[23] On first consultation she reported being a school cleaner for approximately four years and had been suffering neck pain for about one year, which she described as of gradual onset, but that on 14 April 2004 she lifted a rubbish bin and experienced severe pain in her neck with the pain radiating to her right arm and to the index and middle finger. He understood that she had been off work until attempting a return to work in November 2004 but found that the work she was doing aggravated the cervical pain. She had previously had physiotherapy and seen Dr Robert Gassin. He gives accounts of her ongoing complaints of persistent neck pain, and also of being depressed. She was seen by his colleague, Dr Cheng, on 16 May 2005, who noted persistent complaint of cervical pain. Dr Cheng viewed a return to work plan which he considered inappropriate at the time. Dr O’Toole relates her admission to Monash Medical Centre on 25 June 2005 with an acute psychiatric crisis manifested by transient global amnesia. He had continued to see her during the second half of 2005 when she continued to complain of cervical pain and also of depression and problems with her short-term memory. She was seen by a neurologist, Dr Peter Kempster, in October 2005 but no organic cause for the global amnesia was found.
[23] Exhibit J.
46 Dr O’Toole had referred her to Mr Chris Xenos, neurosurgeon, in May 2005, who advised against surgical intervention and agreed with Dr Gassin’s opinion that she should have a CT guided nerve root sheath injection. At around that time Dr O’Toole had also referred her to Dr George Osianlis, psychiatrist, to treat her for her depression, and she was prescribed anti-depressant medication.
47 In September 2006 she was referred for a review to Mr Chris Xenos. He noted the persistent presence of cervical pain and in light of MRI evidence stated that she had valid reasons to have radicular pain down the right arm. He discussed the options of treatment which offered a reasonable chance of improving her right arm symptoms but not help her neck pain and again advised a nerve root injection. The nerve root injection was eventually performed in January 2007. She was reviewed in March 2007 by Mr Xenos, who discussed the option of fusion surgery at C5/6 but he wrote to the general practitioner that he was not confident that the treatment would be of major benefit and advised continuing with conservative management.
48 She had also consulted Dr Clayton Thomas, rehabilitation physician, who also recommended conservative treatment and recommended it would be worth trying to wean her off Endone and changing her to a long lasting analgesic. Dr Thomas advised Dr O’Toole he was not convinced that a rehabilitation program would be of any benefit to her.
49 Overall, Dr O’Toole maintained the view that she has cervical spondylosis and disc disease at the C5/6 disc and that she also suffers from depressive illness. He considered there to be a clear correlation between the onset of neck pain and the incident in April 2004 as she described. He says there is no curative treatment for her cervical spine condition, she remains on Endone and also Panadeine Forte up to two tablets as needed and takes Efexor daily. In his last report of March 2008 he considered that a recent psychiatric report of Mr Bruce Read was consistent with recent correspondence from Dr George Osianlis that she no longer suffered depressive illness, but noted that patients who have had a significant depressive illness are at high risk of relapse. He considered symptomatic cervical spondylosis and disc disease were preventing her from returning to manual work.
50 Dr Cheng, of Langton Medical Centre, confirmed his view that the proposed return to work plan dated 4 May 2005 was not one for which Mrs Mery was at that time fit, and he believed her condition would be worsened at that time by commencing duties described in the proposal[24]. He certified her unfit for a further month.
[24] Exhibit K
51 Mr Chris Xenos[25], neurosurgeon, saw the plaintiff in May 2005 on referral from Dr O’Toole. She gave a history of the mid-April 2004 incident of lifting rubbish bins and noticing a sudden onset of back pain. He had a history that she ceased work at that stage and had not been back since. Her problems in May 2005 were interscapular pain with radiation up to predominantly the right side of the neck and associated headaches, and she said that the pain was constant. In addition there was some vague radiation of pain down the right arm with some intermittent sensory disturbance in the middle finger or the right hand occurring only at night, but this did not appear as big a problem for her.
[25] Exhibit N.
52 Mr Xenos noted that an MRI scan of her cervical spine demonstrated mild degenerative changes and at C5/6 a diffuse disc bulge slightly worse on the right hand side, which could account for the nerve root compression and possibly the symptoms in the right arm. He considered the big issue was that by then she had chronic pain. He did not think that surgical intervention would help because her main problem was not the right arm pain and that would be the main indication for surgery. He supported the recommendation of Dr Gassin for a CT-guided nerve root sheath injection. He thought it important that she continue with regular walking, use of heat and massage to the neck and shoulder areas and possibly some physiotherapy and hydrotherapy.
53 She was referred again to Mr Xenos in September 2006, and there was a more recent MRI of her cervical spine. He was surprised she had not had the nerve injection and also surprised by the amount of heat, massage, physiotherapy and hydrotherapy. He said that she had valid reasons to have radicular pain down the right arm, reflecting what was shown on the MRI, although the chronicity of that pain concerned him. He confirmed cervical spondylosis which probably explained the continuing neck and muscular-type shoulder pain. He still did not recommend surgery. He again suggested the CT-guided nerve root injection into the right C5-6 (C6 root) using local anaesthetic and steroid, which he thought had a 50 per cent chance of some improvement, and that could be used as an indication to justify surgical intervention. He did not comment on her capacity for work.
54 Reports from Dr Peter Kempster, consultant neurologist[26], confirm that he saw her on referral in October 2005 and again in May 2006 each time in relation to transient global amnesia. He found no neurological abnormality as a basis for those episodes.
[26] Exhibit L.
55 Dr Janaka Seneviratne, a neurologist and clinical neurophysiologist, on referral from Dr O’Toole in 2008[27] was asked to evaluate Mrs Mery’s right arm pain and paraesthesia. The MRI of the cervical spine of 2006 was noted, as were nerve-conduction studies performed by Dr Henryk Kranz in March 2006 which showed a mild right median neuropathy at the wrist compatible with a clinical diagnosis of right carpal-tunnel syndrome. Dr Seneviratne considered the plaintiff’s neck pain and right-arm symptoms were mainly due to right C6 radiculopathy or a right C6 nerve-root compression. Right carpal-tunnel syndrome symptoms were separate to her right C6 radiculopathy symptoms. Dr Seneviratne commented that although it was difficult to say how long her C6 nerve-root compression had been present, it was consistent with her story regarding the injury occurring at work in 2004. There was no surgical role seen as advisable in her management, but a physiotherapist or musculo skeletal specialist for ongoing management.
[27] Exhibit O.
56 Mr David Brownbill, Consultant neurosurgeon, examined the plaintiff at the request of her solicitors in December 2008 and June 2010[28]. He considered her alert and co-operative without embellishment. Active cervical spine movements were all restricted by one third, there was tenderness on palpation of both sides of her neck, painful right shoulder movements, but no changes in temperature or colour and no muscle wasting. He studied the radiological documentation and multiple reports of other doctors provided to him. His opinion was that the plaintiff has suffered aggravation of pre-existing asymptomatic degenerative changes of the cervical and lumbar spines in the described work incident, giving rise to neck, right arm and back pain with pain by referral to between the shoulder blades. By June 2010 he regarded her condition as stabilized and did not anticipate any significant alteration in the future.
[28] Exhibit Q
57 The plaintiff was also examined by Dr Geoffrey Klug, Neurosurgeon, for medico-legal reports[29]. In May 2009 Mr Klug thought it most probable that she was suffering from symptomatic cervical spondylosis, her complaints of neck pain with some referral of pain to the right arm being consistent with the findings on imaging including MRI scans. The pattern of pain in her right arm suggested that she was most likely suffering radicular pain in the region of the C7 nerve root, although he was not convinced that she was suffering from a radiculopathy in the right arm.
[29] Exhibit Y
58 On a further examination in April 2010, Mr Klug noted that there was no imaging of her lumbar spine since 2005, and noted that her complaints of symptoms were confined to the right side of her back and right leg, and he could not define any objective neurologic abnormality in the right leg which could relate to the previous CT scan, but he did note that the left calf was significantly thinner than the right and recommended further scanning. He confirmed that notwithstanding that radiological changes of the type shown in the plaintiff would not be uncommon in a person her age, he still felt it was most probable that the changes noted would be consistent with her complaints of neck pain with some referral of pain into the right upper limb.
59 The defendant had the plaintiff examined by Mr Michael Shannon in September 2005.[30] Her complaints to him were of ongoing pain in the low back, the neck, the head, the right shoulder, the right arm and right leg, and that her right arm goes numb. She denied to him having any previous history of neck or back trouble. On formal examination he found apparent significant restriction of cervical movement, but observed her to have a full free range of flexion and rotation. Reflexes in her arms were brisk, and there was no muscle wasting. He did find limited abduction of the right shoulder, producing neck and trapezius pain, but no evidence of intrinsic shoulder pathology.
[30] Exhibit 2.
60 Mr Shannon confirmed that x-rays of the cervical spine on 19 April 2004 showed significant narrowing of the C5/6 disc space, with significant posterior osteophytes and bilateral foraminal stenosis. An MRI scan of the cervical spine showed multilevel disc degeneration, particularly at C5/6, with posterior osteophytes extending into the spinal canal and resulting in bilateral foraminal stenosis. Similar but less marked changes were noted at C6/7. He saw an x-ray of her lumbar spine showing lipping at all levels and significant narrowing of the L4/5 and L5/S1 disc spaces.
61 He doubted she could have hurt her neck, shoulder, right arm, low back and right leg in the one incident, but noted she had significant pre-existing degenerative change in her neck and back, and, if that had previously been symptomatic, he considered she had sustained aggravation of pre-existing cervical and lumbar disc degeneration, and the aggravation probably continued when she saw him “to some degree”. He accepted she probably had some impairment in both her neck and back, although thought there was considerable lack of cooperation with his examination.
62 Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff for the defendant on 28 March 2006.[31] When he saw her she was complaining of constant neck pain and that her neck movements were restricted, constant right shoulder pain with right shoulder movements restricted, and intermittent low back pain with restricted back movements. She also said that her right leg swells, and she had pain around her right knee. She denied any history of pain in her neck, right shoulder or back prior to April 2004. She was taking pain medication and also Efexor at the time. On examination he found some limitation in cervical spine movements, arm reflexes were normal, and some restriction in shoulder and low back movement. He viewed various radiological reports. His opinion was she had aggravated degenerative disease of her cervical and lumbosacral spines, and sustained sub-acromial bursitis of the right shoulder with a possible tear of the supraspinatus tendon of the right shoulder.
[31] Exhibit 3 – report dated 3 April 2006.
63 Mr M. Khan examined the plaintiff for the defendant in April 2005.[32] At the time, her complaints were of pain in the low part of the right side of her lumbar spine radiating along the whole of the thoracolumbar spine and top of the right shoulder-blade, and also pain along the right side of her neck. She complained that treatment had not given relief, and her condition had deteriorated. He found she had reasonable movement of her cervical spine, but with some pain and discomfort on the right side of the neck during execution of those movements. She had a hot area and tenderness in the left sacroiliac joint area. He measured restrictions of movement, particularly side flexion of her thoracolumbar spine. Right shoulder movements were within normal range, and he could not detect any neurological signs in her arms apart from referred pain to her right middle finger from the right side of the neck. He saw the MRI scan of her cervical spine and x-rays of her lumbar spine.
[32] Exhibit 4.
64 Mr Khan’s opinion was that the work lifting and twisting incident had resulted in chronic soft-tissue and musculoskeletal and ligamentous strain to the lower part of the neck, right shoulder-blade area and to the left side of the lower part of the back, and had flared up pre-existing asymptomatic degenerative changes in her cervical spine at the C5/6 level and degenerative changes affecting the facet joints on the right side at the C6/7 level with some irritation of the right C5 and C6 nerve roots. She had also flared up pre-existing asymptomatic degenerative arthritis affecting multi levels of the lumbar spine, and asymptomatic mild left sacroiliac joint arthritis.
65 He did not think her a suitable candidate for surgery in the presence of her depression, but considered referral to a neurosurgeon for an independent assessment in relation to the possibility of surgery in relation to her right-sided C6 cervical nerve root was appropriate.
66 The defendant also had the plaintiff examined by Mr Michael Dooley, orthopaedic surgeon, in June 2009.[33] Her complaints to him were of ongoing neck pain, right shoulder girdle pain, right arm pain, and thoracolumbar spine pain, and she was taking Panadeine Forte, Indocid, and Endone for her pain, and was on anti-depressant medication. On examination he found tenderness along the dorsum of the cervical spine and over the right shoulder girdle region. There was limited flexion forwards and to the sides, but rotation to left and right was reasonable in neck movement. He found weakness of right grip strength, but no visible wasting of the arm muscles, and reflexes were present and symmetrical. Power around the shoulder was difficult to assess because of pain. There was tenderness along the thoraco and lumbar spine regions. Lateral flexion and rotation was reduced. Ankle jerks were symmetrically reduced, but sensation was intact. He had radiological reports available.
[33] Exhibit 5.
67 He believed it was most likely that she aggravated underlying naturally- occurring degenerative disc disease of the cervical spine in the work episode. He considered that in time she had developed a chronic pain syndrome in which the constancy and intensity of her ongoing pain was out of proportion to the injuries sustained. He described a chronic pain syndrome as involving a complex psychological and physical interaction in response to injury and/or pain. He explained why he categorised her as within the group of patients he sees who have successfully combined work and family multitasking for many years, and then, if they sustain a musculoskeletal injury it sometimes is the straw that breaks the camel’s back, and the person cannot quite get back to normal, and subsequently they do not cope as well, and there is a general decompensation. That was his clinical assessment of Mrs Mery, and he doubted any further testing would lead to a diagnosis. His view was that the appropriate treatment for her was to increase her activity, such as walking regularly and carrying out a general exercise and fitness program, and if she did that, he thought the current constancy and intensity of her ongoing pain would improve with time, and she would be able to reduce her analgesic medication. He did not recommend any further specific treatment. From the orthopaedic viewpoint, he considered the effects of the aggravation had ceased, from an organic point of view, and he reconfirmed his views in relation to the chronic pain syndrome.
68 Finally, I note the reports of Dr George Barton, consultant occupational physician, to whom the defendant sent the plaintiff for successive assessments[34]. His views differ from all other medical examiners. On first examination in October 2004, he thought it only a possibility that she had sustained any injury in the described incident, and believed it medically inconceivable that such a simple activity could result in about six months of widespread and persisting symptoms. He thought her presentation pointed towards a functionally based condition. He then visited the workplace where he was told that her duties did not include the emptying of wheelie bins. In July 2006 he examined her with an interpreter, but noted that she did not bring any X-rays or investigation and he did not believe any were required at that stage. He continued to consider that there was non-physical basis for her problems, and argued that she should return to work to overcome her depression, that is to counter her disabled role, and thought it very questionable whether her employment continued to be a contributing factor to any problem (which he had not accepted even in October 2004). He acknowledged that it was likely to be argued that her psychiatric state had resulted from the initial injury and was still contributed to her employment.
[34] Exhibit 1
69 On reviewing her in March 2009, Dr Barton took a history that her symptoms of pain had worsened. He took measurements noting no muscle wasting. He noted that x-rays and other investigation were included in correspondence. However, he did not accept that she had a right-sided disc problem in her neck because he did not think it correlated with her symptoms in that he would expect there to be a range of objective findings supporting some radiculopathy or neurological impairment. He acknowledged that she may have developed a soft tissue injury as a result of the work activity but said such a condition had physically since resolved, and she had features of a chronic pain problem with functional overlay. He believed her physical prognosis was very good despite her well-entrenched sick role.
70 Dr Barton examined her again in April 2010. His view was that her widespread symptoms that had persisted for inappropriately long periods and not supported by any clear objective evidence of any particular physical problem, are features that point towards her problem being one of a chronic pain problem rather than of some ongoing physical injury. He acknowledged that her investigative findings are not completely normal, but thought there was nothing in them pointing to a particular problem that would have been caused by her work activities of April 2004. From this I infer that he was referring to the general cleaning duties and not the emptying by lifting and tipping of a wheelie bin, because he had been told that that was not one of her duties.
71 I turn now to the psychiatric evidence.
72 Dr George Osianlis, psychiatrist, treated her between May 2005 and April 2006.[35] When first seen in May 2005 she appeared depressed, gave the history of her injury and neck and arm pain. She described having few interests, poor sleep, increased eating and anxiety. He considered there were grief issues related to her lost independence because of increased reliance on her husband, and guilt as to her husband losing his job which she believed was due to her putting in a WorkCover claim. At first she denied suicidal thinking but at subsequent consultations expressed thoughts, including hanging herself. Associated with the depression was poor memory and concentration and periods consistent with dissociation. He considered she had a major depressive disorder and pain disorder secondary to the work- related injury sustained in 2004. He treated her with individual psychotherapy and anti-depressant medication, to which she showed good initial response but after about six months the benefit wore off and he commenced her on alternative medication. In August 2005 he considered her unfit to work and unfit to participate in the return to work process. He noted she had expressed the desire to work but her skills and poor English precluded most forms of work other than manual labour. He noted financial stressors. He said adequate compensation will help to relieve financial problems but pain and mood problems were likely to be ongoing. At the time of his last report[36] he considered that she remained unwell, that her depression and pain had not stabilised, he was still treating her with Efexor taken in the morning and Seroquel at night, to help with sleep, mood and agitation, and also working with supportive psychotherapy and she required ongoing treatment. She was then currently unfit to work, and it was likely that her psychiatric injury had rendered her unfit to work and unfit to participate in the return to work process.
[35] Exhibit M.
[36] 2 May 2006.
73 Dr Geoffrey Hogan has been the plaintiff’s treating psychiatrist since July 2009, and provided a report[37] and was cross-examined in the hearing. On initial consultation she said she had been suffering with depression for four years and been in treatment with Dr O’Toole for it over that period. She gave the history of the work injury in April 2004, and told him that since the accident she had never returned to work except for one week, which Dr Hogan had noted was inconsistent with other documentation. When questioned as to other significant stressors over recent years, she denied any. He read from other documentation of a history of considerable stress with her employer and WorkCover.
[37] Exhibit B.
74 She told him of her pain, which she said was relieved with Endone, Panadeine Forte and Indocid, and of her restricted ability at household activities, that her sleep was broken and that pain interfered with sleep, and she would lie awake unable to stop thinking. Her appetite was quite erratic. Her energy levels were very poor. She lacked social interest, and did not feel like seeing anyone, whereas she said she had previously been very active, and liked to look good, and liked to laugh. On first interview she was depressed in mood with some tearfulness, but no evidence of a disordered thought stream, perceptional abnormalities, delusional ideation, nor cognitive impairment.
75 His assessment of her was that she had, as a result of the work injury, suffered pain that was constantly present, greatly limited her physical activities, and was of a severity that required opiate analgesic relief. He assessed her as having a sound premorbid personality without evidence of past or familial disposition to psychiatric disorder, and sustained lengthy periods of employment. He considered that in response to her chronic pain she had developed significant depressive symptoms with constant depression of mood, evening worsening, frequent tearfulness, some suicidal thoughts, sleep disturbance, erratic appetite, quite poor energy, marked social withdrawal, impairment of concentration and memory, excessive tension and loss of libido.
76 Diagnostically she presented with a chronic pain syndrome (as there was inadequate evidence for an organic basis to her chronic pain) and an adjustment disorder with depressed mood of moderate severity.
77 He tried adjustments of medication, noting that previously Efexor had produced inadequate response. She did not tolerate some of the changes well, and felt others were not helpful.[38] He considered overall there had been some improvement from her presenting depressive symptoms in response to alteration of medication, but at the time of his report, and of giving oral evidence, her affective symptomatology in itself would still preclude employment, and her chronic pain was unaltered. The primary goal of her treatment is to relieve her suffering from her depression, and while minimising pain medication is part of the aim, it is not the primary goal[39]. He considered that on finalisation of litigation it was unlikely that she would no longer need his treatment.
[38] Pages 6 and 7 of Exhibit B.
[39] T 161-2
78 Dr Victor Botvinik, consultant psychiatrist, examined the plaintiff for the defendant in April 2006 and provided a supplementary report in May.[40] She gave him a history of becoming depressed, upset and frustrated in the period after she stopped working due to her physical injuries, in 2005, then of returning to perform light duties which she thought was good for her depression, but then stopping working because there were no further light duties. She had not worked for nearly two years before seeing him. She was then taking Efexor for depression, and a small dose of Seroquel, one tablet at night. She was seeing a psychiatrist, with whom she communicated through her husband as interpreter. She described herself to him as being frustrated, upset and disappointed with dealing with pain, and because she lost her employment, and having crying spells and a flat mood. She also complained about memory deterioration and could not tell him the exact names of her medications or exact days of treatment.
[40] Exhibit 6.
79 He considered her mood was definitely flat, but did not believe she was significantly depressed, but did find mild symptoms of depression. She did not show symptoms of overt anxiety. She did show some symptoms of physical pain and discomfort, asking for permission to stand up for a while before sitting down again. He considered her speech to be at normal rate, and could not find any formal thought disorder or any other psychotic symptoms. He considered her cognitive functions were slightly impaired, her memory was not very good, but otherwise she answered all of his questions coherently, through an interpreter.
80 From a psychiatric point of view, she was suffering from a pain syndrome and from a mildly depressed mood, both secondary to her physical condition. He disagreed with her treating psychiatrist that she was suffering from major depression. He considered it an adjustment disorder with mildly depressed mood which is treatable and reversible, and considered that when her physical condition improves the psychiatric symptoms will definitely improve and she will not be suffering from any significant psychological, emotional or psychiatric distress, disturbance or imbalance.
81 He could not find any non-work-related factors contributing to her condition. He recommended she continue seeing her psychiatrist on a monthly basis, rather than fortnightly, particularly regarding her poor command of English and poor capacity to understand and express herself.
82 Dr Rasanjali Ratnayake, consultant psychiatrist, examined the plaintiff for the defendant in January 2008.[41] Mrs Mery said she began to feel low in mood after seeing specialists, Dr Gassin and Mr Xenos, and realising that her symptoms were not going to improve. Approximately six months after her injury her husband lost his job, which caused further stress, and subsequently she started to feel low in mood, irritable and tearful, and to experience fatigue and sleep disturbance. She said she felt useless and that “something was dying” inside her, she felt guilty over not doing housework, and felt “caged in”. She had seen a psychiatrist, Dr Osianlis, who commenced her on the anti- depressant Zoloft, then later saw another psychiatrist who changed her anti- depressant to Cipramil, after which she said that her mind felt calmer and she was less anxious and irritable.
[41] Exhibit 7.
83 She told of an admission to Monash Medical Centre in June 2005 after suddenly losing her memory, and this episode of global amnesia lasting for about a day, and the doctors excluding physical cause and saying her memory loss was due to depression.
84 Dr Ratnayake noted no suicidal thoughts and no significant depressive themes, and that Mrs Mery was able to experience pleasure. (I note that this was put to Dr Hogan who simply responded that on first consultation with him Mrs Mery was in tears.) She was not motivated to return to work, feeling that the pain would not improve and would continue to worsen, and that she had become entrenched in the sick role, with a strong illness conviction. This doctor administered cognitive testing, finding her well oriented in regard to time, place and person, testing concentration and attention, and finding her unable to do subtraction, as her mathematical ability was poor, and also having difficulty with the other tests. The doctor considered her of average intelligence, but with a somewhat inadequate general knowledge, and considered that the remainder of the interview showed no evidence suggestive of impaired attention or concentration, and her short-term memory was tested and found to be unimpaired.
85 The diagnosis was of development of a depressive disorder in 2005 in the context of chronic pain secondary to her work-related injury. On examination there was not a depressed affect or significant depressive themes in the content of her thoughts, and cognitive functioning was said to be not impaired. The diagnosis was of adjustment disorder with depressed mood, in remission.
86 Dr Nathan Serry, consultant psychiatrist, provided a medico-legal report containing an impairment assessment to the defendant[42] in September 2005. His opinion was that she had become frustrated, upset, depressed, anxious and apprehensive, with feelings of uselessness and loss of confidence, as a result of chronic pain and associated limitations from injuring her neck, shoulder and back in the course of her work. He felt she suffered a pain disorder secondary to a general medical condition, and with psychological factors and a resultant adjustment disorder with anxiety and depression. He suspected her episodes of confusion were stress-related. The pain disorder and the adjustment disorder, in his view, do limit her daily living activities, social functioning, concentration and occupation. He assessed her impairment at 20 per cent, and that it had arisen as a consequence of the physical injury and was therefore secondary in nature.
[42] Exhibit Z.
87 Dr Edward Cole provided four psychiatric reports for the defendant. He first assessed her in October 2004[43], when she described the work incident of lifting the bin on 14 April 2004, and described treatment by various doctors, including Dr Robert Gassin. She said she still suffered from constant pain in the same areas, although it varied in severity, and was aggravated by sitting for long periods, and kept her awake at night. She was able to do various household tasks, but not all, and her husband did the vacuuming. Lately she had been worrying a lot, and was concerned that she was unable to look after the twins or her grandson, and she became irritable and easily upset, felt depressed, and could become tearful, but also had some good days. She found it hard to concentrate and was forgetful and indecisive, and had difficulty going to sleep, and woke up during the night, finding it difficult to return to sleep, as she could not stop thinking.
[43] Exhibit AA – first report dated 19 September 2004 says he saw her with an interpreter on 15 October 2004 – but is in same terms to one dated a month later.
88 Dr Cole considered that she appeared anxious but was responsive in conversation. With the aid of an interpreter, she gave what seemed to be a straightforward account of herself and her problems. His opinion was that she was suffering from an adjustment disorder with mixed anxiety and depressed mood, the condition stemming from her physical injury and from the limitations imposed upon her by that injury. Her state of mind was such that she was more aware of, and preoccupied by, her pain and limitations than might otherwise be the case, but he felt there was no suggestion of symptom exaggeration at either a conscious or an unconscious level.
89 He noted that anti-depressant medication had been prescribed, which he regarded as appropriate, but he doubted whether psychiatric treatment beyond that had a great deal to offer. He noted she was capable of doing a little light housework, but when all factors were taken into consideration, including her age, lack of skills, poor command of English, history of injury and physical restrictions, he thought it was unlikely anyone would be prepared to offer her employment.
90 A further report of 18 March 2005 from Dr Cole was written without re-examining the plaintiff but in response to the supply to him of a report of David Barton dated 14 October 2004. In response, Dr Cole noted that Dr Barton could find no objective evidence of injury and did not consider the radiological findings to be very significant or to be responsible for the widespread nature and persistence of her present symptoms. Dr Cole said that there may be a functional component in her condition, but he could not find any evidence on his earlier examination to suggest that she was exaggerating her symptoms at a conscious level, and he noted that unless she was observed carrying out activities which she said she could not do, which he doubted was in fact the case with her, it would be difficult to say that she was fabricating her symptoms.
91 He was asked to re-examine her on 25 March 2010, which he did, again with a professional interpreter assisting. He considered that she appeared anxious but was responsive in conversation, giving little indication of understanding English, and used the interpreter throughout. With the interpreter’s aid, Mrs Mery gave what appeared to be a straightforward account of herself and her problems. Her speech was normal in rate, tone and volume. She was a little vague when it came to recording dates and times. There was no suggestion of thought disorder, delusional thinking or other evidence of psychosis, and she did not appear to be in any discomfort during the interview.
92 Dr Cole’s view was that Mrs Mery continued to suffer from a chronic adjustment disorder with mixed anxiety and depressed mood as a result of her injuries and their consequences. Again it was not his impression that she was exaggerating any of her symptoms either physical or mental at a conscious or an unconscious level. He regarded her condition as stabilised, and considered she will require to remain under psychiatric care and on appropriate medication for at least another six months and perhaps longer.
What compensable injury or injuries were sustained?
93 I am satisfied on the balance of probabilities that on or about 14 April 2004 while lifting and tipping a bin at work, Mrs Mery suffered injury to her neck and back, being aggravation of cervical degeneration in particular at C5/6 level including nerve impingement at C6, and also aggravation of lumbar degenerative change. I am satisfied that these can appropriately be classed as impairment to the body function of her spine as a whole, but if I am wrong and each section of the spine is to be considered separately, then I am satisfied that the injury to her cervical spine is the most serious.
94 Although all doctors agree that she would have had pre-existing cervical and lumbar degeneration, I am satisfied that it had caused minimal prior symptoms. There is a record of her reporting lower back pain, maybe after lifting, to her GP in July 2001[44], and of diagnostic imaging of the whole spine being ordered. The resultant report on her cervical spine showed minimal degenerative change. There is no further report to her general practitioners of lumbar pain, and none of cervical pain, until April 2004, and none during the period of more than two years that she worked for the defendant before the subject injury.
[44] Exhibit V – Eastern Medical clinic records for July 12, 13, 2001
95 Even though she told doctors she had no prior back or neck problems, and in her evidence she could not recall any previous back pain or x-ray despite the content of the clinic records being put to her, I do not consider that the one instance in July 2001 undermines the reliability of the medical opinion based on her history denying prior symptoms. Further, in considering the consequences of what is diagnosed as an aggravation of a condition, I do not regard there as having been any disabling symptoms prior to the aggravation.
96 I am also satisfied that as a result of ongoing pain and its effects on her, the plaintiff suffered secondary psychological injury. I am satisfied that it has been at least an Adjustment Disorder with depression and anxiety, and that during its worst periods has reached the severity required for the diagnosis of a Major Depressive Disorder. I am also satisfied that she has suffered a pain disorder of psychological nature, also secondary to her physical injury.
“Disentanglement”
97 I have found the plaintiff to have suffered injury under both part (a) and part (c) of the definition of serious injury. As already outlined, most of the doctors have recognised that she has both physical and psychological injuries, and have addressed the ultimate issues, including her capacity for work, from their own area of expertise, be it physical or psychiatric. I have used those specifically separated opinions to reach my conclusions.
98 I recognise that the use of the term pain syndrome or pain disorder inevitably calls for qualification as to whether it is an organically or mentally founded condition. I have accepted the psychiatric diagnosis of a pain disorder here as referring to the perception of pain even if any organic origin has ceased to have effect.
99 To the extent that some doctors giving opinion on her physical injuries have attributed some symptoms, especially in her right arm and hand, to a pain syndrome of non-physical basis[45], I have not taken those symptoms into account in assessing the extent of consequences.
[45] It is not entirely clear to me whether Mr Dooley’s opinion falls into this category
Serious injury as to pain and suffering?
100 I find that the injury to the plaintiff’s cervical spine has led to chronic neck pain, particularly on the right side, and also referred pain in her right shoulder and down the arm at times, with some paraesthesia in fingers, and pain between the shoulder blades. These findings are specifically supported by Mr Xenos, Dr Seniveratne, Mr Brownbill and Mr Klug.
101 She takes significant quantities of pain-killing medication, and that has had side effects of differing types causing her at times to have to stop or change medications. Her sleep is interrupted by pain.
102 I do not include as consequences of her compensable injury the headaches of which she complains as she had a long prior history of those.
103 The defendant tendered approx 14 minutes of video surveillance showing the plaintiff on two dates in 2009[46]. Most of it was taken on the one afternoon in Bunnings where she was with her husband in an aisle choosing items contained in large boxes. As she agreed in cross-examination, it showed her able to stand and walk around without difficulty, raise her right arm to reach above shoulder height, and move her neck to look at high and low shelves, and to each side. She bent forward to reach and hold an item at about knee level, and at one stage stood for a relatively sustained time with her knees partially bent and leaning forward from the waist. She did not look in any discomfort on this occasion, but was not moving with any haste. The only movement which to me was at all inconsistent with what she had told the majority of doctors, and the court, was that three times she flexed her neck – looking upwards – further and for longer than she had shown doctors or the court, albeit standing and leaning slightly backwards to do so. The other activities shown were her briefly getting into the car after the shopping, and walking and getting into the car after collecting her grandson. On each occasion her husband got into the driver’s seat. Her movements did not look restricted but nor were they beyond what she had described being able to do.
[46] Exhibit 11
104 The defendant acknowledged that it had had the plaintiff under surveillance for 91.5 hours, in periods in February 2009, June and July 2009 and January and February 2010[47]. It showed and tendered only 14 minutes of film. In that context I infer that there was nothing in the further surveillance which would have advanced the defendant’s case, and in particular nothing of her doing anything more active or contrary to her stated restrictions than was shown and tendered.
[47] T227
105 I am satisfied that as a result of the various symptoms from her neck injury, she does much less in the home than she used to do, although she still cooks and attempts most household tasks but much less frequently and does them more slowly than she used to do. She does still go shopping. She can accompany her husband or daughter to collect the younger children in the household from school, but my impression is that those are outings to address her psychological state and get her out of the house rather than an activity in which she used to engage. I do not overlook that the extent of her retained capacities should be considered to give context and shed light on the degree of her incapacity. I find that overall she is much less active generally than she used to be, within the home and outside it. For a woman to whom it was very important to run her home for her family, she has lost a lot of pride and self-esteem and felt guilt at being unable to do what she used to do for her family, particularly in relation to the twins who were still young children when she suffered her injury. There has also been financial strain as a result of her being unable to work, resulting in the younger children having to be removed from their private school, about which she was very upset, as well as her older daughter having to take over the mortgage on the family home.
106 I am satisfied that as a result of the injury to her spine, but in particular to her cervical spine, the plaintiff’s daily activities and lifestyle have been adversely affected to the extent that can fairly be described as more than significant and at least very considerable when compared with the range of other possible impairments of body function.
107 In relation to her psychiatric condition, the test is whether the consequences to her can fairly be described as “severe”, meaning something worse than “serious”, when compared with other possible mental or behavioural disorders. Given my conclusion that her psychological condition has caused a loss of earning capacity which meets the test under s 134AB (38) (e), I shall not separately consider the pain and suffering aspect of her symptoms of depression and anxiety.
Loss of earning capacity
108 Mrs Mery was working only part-time – 20 hours per week – at the time of her injuries, and earned only between approximately $11,500 and $12,160 gross in the two and a bit years she worked for the defendant before injury, this case is not one where an exact calculation under ss134AB (38) (f) arises. Her case essentially is that she has no real earning capacity now, and that should be regarded as permanent in the sense of being unlikely to change in the foreseeable future.
109 Except for Dr Barton, all doctors who have provided opinion on her physical condition, have accepted that she was unable to return to her full pre-accident duties. Several have outlined restrictions under which she has at least theoretically capacity to perform work. However examination of the details of these restrictions, together with her actual qualifications for alternative work, in my view shed light on what is in my view her lack of employment capacity.
110 Dr Robert Gassin on 1 December 2004 certified her fit for modified duties with restrictions of no lifting over five kilograms, no repetitive use of the right arm, no repetitive pushing or pulling, no repetitive twisting movement of the neck and no repetitive bending. On reviewing her in 2008, his view was that her physical injuries[48] in isolation effect her ability to perform her pre-injury employment and any other suitable employment, or to participate in occupational retraining. He considered she was fit for employment with the same restrictions he had previously noted, however her age, her command of English and her use of strong analgesics were further barriers to employment. He was not sure of her ability to perform non-physical office-type work, so he considered her prospect of returning to the workforce slim and could not think of any employment that he considered that she was suitable to undertake. As her condition had lasted more than four years, he considered that her work capacity was likely to remain unchanged for the foreseeable future.
[48] Clarified by letter 3 September 2008 to refer solely to her neck injury sustained at work in mid-April 2004 while lifting a bin to shoulder height.
111 Mr Moran said that from an orthopaedic viewpoint, she was fit for light duties not involving repeated bending and/or heavy lifting, and work in which she had the flexibility to sit or stand as pain dictated, but she should not work in an occupation that has to constantly flex or constantly rotate her neck, and should not use her right arm above shoulder height.
112 Mr Khan, in May 2005, considered she could undertake work avoiding repetitive use of her right arm, pushing and pulling with her right arm above her head, twisting and turning of her cervical and thoracolumbar spine, keeping her neck and back bent for long periods, or lifting unusually heavy weight, the maximum being 5 kilograms at a time. He did not consider her unfit for all work, but also did not consider she could do the return to work plan he apparently saw at the time[49], and noted that with suspected cervical nerve root irritation, repetitive movements of her right arm, including wiping tables, windows, ledges, hand-basins and toilets, or use of a mop, may cause flare- up of degenerative changes in her neck.
[49] I note that at about the same time Dr Cheng considered her unfit for a return to work plan.
113 Mr Brownbill considered that taken in isolation form any psychiatric component, her physical injuries affected her ability to perform her pre-injury work or suitable employment. He said that although theoretically she would be capable of work activities avoiding heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting, in realistic terms noting her age, her restricted use of English, her work experience limited to that involving physical activity, and her widespread degenerative change in her cervical and lumbar spines, she would have difficulty from an organic physical point of view, of obtaining employment for which she is fitted. In June 2010 he did not regard her as having a “ current work capacity” to perform pre-injury work or for any other work for which she is suited, and that her incapacity is likely to continue indefinitely. He considered that on the balance of probabilities her incapacity for work has been affected to a marked degree by her physical injury taken in isolation of any psychiatric injury, and he did not anticipate any significant alteration in the future.
114 Mr Klug considered that the plaintiff was probably unfit to resume her previous type of employment, but thought she could do work at bench-top height if given flexibility in the workplace, and also thought that the suggestions in a Vocational Assessment of November 2006 would be light enough for her physically but she would require retraining to undertake them and her poor command of English would make the attaining of such “somewhat difficult”.
115 Dr Horsley noted that Mrs Mery is disadvantaged, having relatively poor verbal English skills, poor literacy, has been out of the workforce for years, and these barriers prevent her from working in a more sedentary clerical role, and that with considerable restrictions on physical tasks due to her mechanical neck and back conditions, her opportunities for redeployment in the manual employment arena are realistically negligible, when also taking into account her age. She declined to comment on the psychiatric perspective, but put her views from the physical perspective alone[50].
[50] Report of 30 June 2010
116 Against all of those views, only Dr Barton thought her physically capable of returning to her pre- injury duties (which he believed did not include emptying wheelie bins) or for any age suitable employment. He did not accept that her radiologically shown spinal degenerative changes were reflected in her symptoms. He did acknowledge that psychiatrists might think her depression rendered her incapable of returning to work, but he believed that return to social interaction in the work-force would be best treatment for her depression.
117 Despite Dr Barton’s views, I am satisfied from the vast preponderance of medical opinion on her physical condition, that the degenerative change in her neck, including nerve impingement, continues to disable her from being capable of performing employment activities that require heavy lifting or sustained neck posture or repetitive arm movements.
118 I am satisfied that Mrs Mery has very limited ability to read or write in English, and only limited basic verbal English. The tone of cross-examination about her not having learnt much English was critical, but that does not dispel the fact that most doctors have noted that she relied considerably on an interpreter. In court she did not appear to me to be following much of what was said in English. I am satisfied that her very limited English precludes her from most office based work. I am also satisfied that at her age it is unlikely that formal English classes would have much success. She has no computer skills, and I do not consider her likely to be able to be trained in them now to an extent that would equip her for computer use in employment. In any event prolonged periods at a computer would be likely to aggravate her neck pain, and referred pain in her right shoulder and arm, if not also her back.
119 Her only employment experience has been in the sustained physical duties of wiping, bending, stooping and lifting of cleaning for the defendant, and 10 years as a process worker, which is work for which I am satisfied that she is now unsuitable as it would required sustained periods of standing or sitting with head flexed putting strain on her neck, or repetitive arm movements.
120 She said that she did a course after retrenchment from Electrolux, training her as a carer. There is no evidence that she ever sought employment using that training, which would now be more than 10 years old. She apparently did that course in Spanish. I am satisfied that she would be unfit due to her injuries for such work as it often requires physically lifting or supporting physically disabled people.
121 She has never learned to drive, and anyway even if she now learnt, in my view her neck would make sustained driving unachievable, and her medication could well interfere with her ability to concentrate on the road. I therefore consider that any form of delivery work would be unsuitable.
122 I am satisfied that ongoing consequences of her physical injury continue to render her unfit for suitable employment, and that even though she has admittedly made no attempts to find suitable employment or to retrain for any alternative employment, she is in my view unfit to do so. I find that her current condition is likely to continue for the foreseeable future and therefore so will her incapacity for any suitable employment.
123 Further, from the psychiatric viewpoint, Dr Hogan says that her depressive symptoms are still such that they would preclude employment – low energy levels, which effects whether she could do a day’s work with any consistency; concentration and memory; mood, and stress tolerance such as ability to sustain interpersonal contact, to deal with stresses of employment without being in tears at the end of the day’s work.[51] He thought it likely that her depressive symptoms, having lasted for some six years, are chronic and likely to remain so, and are unlikely in the future to improve sufficiently for her to regain capacity for any employment. Even though on cross-examination he conceded it was a possibility that she could get back to work, I accept his view that that is not likely.
[51] T 168-9
124 Although Dr Osianlis’ views are now several years old, he having not treated her since 2006, in my view his observations about her psychiatric condition are consistent with her more recent condition as treated and described b Dr Hogan, and he had opinied that it was unlikely she would ever be able to return to work.
125 The opinion of Dr Cole as to her work capacity was that he did not consider her capable of doing her pre-injury employment, and, notwithstanding that she still did some of her own housework, when all of the other factors, including her age, poor English, lack of skills, history of injury and physical restrictions, were taken into consideration, he did not think anyone would be prepared to offer her even part-time light work. He considered her effectively totally and permanently incapacitated for any form of employment that might open to her.
126 He was specifically asked whether she could perform the jobs listed in a vocational assessment enclosed.[52] His opinion was that her capacity to perform these jobs was very limited. He considered her incapacity would last indefinitely, and he could not see her making a graduated return to work.
[52] Listed at outset as Resolve vocational assessment dated 11 November 2006.
127 Dr Botvinik considered that from a purely psychiatric point of view she should be able to perform some light suitable duties, if one ignored her physical symptoms and her pain and discomfort. He considered her fit to travel by public transport. In a supplementary report, specific as to suitable employment options, Dr Botvinik stated that he did not believe that she would be able to work as a community carer because quite often those duties involve quite strenuous physical activities, and from a physical point of view he did not consider she would be able to do it. From a psychiatric point of view she could work as an aged and disabled carer. From a purely psychiatric point of view she would be able to work as an electronic assembler or as a product quality controller, hand packer, or as a crossing supervisor.
128 Dr Ratnayake ‘s opinion was that from a psychiatric perspective she had the capacity to return to work through a graduated return to work plan, and that from a purely psychiatric perspective she was fit for pre-injury duties with no restrictions or modifications at the time of examination.
129 I note that both Drs Botvinik and Ratnayake gave opinions on work capacity based on their assessments that she was suffering only mild depression or it was in remission at the time of examination. I am not satisfied that that is still the case nor that it has been for most of the intervening years. The psychiatrists who have seen the plaintiff more than once, in particular her treating psychiatrist, Dr Hogan, as well as Dr Cole, consider her much more seriously and permanently affected by depressive symptoms, and some of anxiety. I accept their opinions on this, and in particular I found Dr Hogan’s explanations of what aspects of her symptoms disable her from employment, as convincing.
130 I note a vocational assessment form Recovre in 2009[53] found her capable of several types of process or assembly work. In reaching that conclusion the author of the report did not address the effect of her psychiatric condition, including ability to concentrate, or to handle interaction with other people, and a reading of those job descriptions in my view shows them to be unsuitable, including as they all do sustained periods at individual task, much more neck posture than she could in my view maintain reliably, time constraints such as dealing with one item each 20 seconds, and they all assume full-time employment.
[53] Exhibit 13
131 I am therefore satisfied on the balance of probabilities that the plaintiff’s psychological condition is a significant material cause of her being unable to engage in any suitable employment, and that it is likely that that condition and level of incapacity for employment will continue for the foreseeable future.
Conclusions
132 I am satisfied that on or about 14 April 2004 the plaintiff suffered injury at her work for the defendant while lifting and emptying a bin. She suffered injury to her whole spine, or alternatively to her cervical spine, which I am satisfied meets the test for a serious injury in respect of both pain and suffering and loss of earnings.
133 I am further satisfied that she also suffered psychological injury secondary to the physical injury suffered at work, and that that condition, being an Adjustment disorder with depression and anxiety and a pain disorder, also satisfy the test for serious injury. I propose to grant leave to the plaintiff to bring proceedings for damages in respect of each of those injuries.
SCHEDULE OF EXHIBITS
MERY v AERO PROPERTIES (CI-08-03698)
| Number and | Short Description of Exhibit | Tendered by |
Identifying Mark
on Exhibit
A Three Affidavits from Ms Mery sworn 21 April 08, 16 Plaintiff June 09 and 30 June 2010 B Report of Dr Jeffrey Hogan dated 30 May 2010 Plaintiff C Statement of Janita Doravely and Juan Androver Plaintiff D Affidavit of Nelson Christian Mery sworn 30 June 2010 Plaintiff E Affidavit of Dyana Jara 30 June 2010 Plaintiff F Photographs of wheelie bin and dump master Plaintiff G Radiological reports Plaintiff H Reports of Dr Robert Gassin dated 6 October 04, 28 Plaintiff April 06, 18 June 08 and 3 September 08 J Report of Dr O’Toole dated 19 June 05, 20 May 08, 14 Plaintiff September 08, 18 April 09, 22 May 10 K Dr Cheng dated 16 May 05 and 26 August 2005 Plaintiff L Letters from Dr Kempster to Dr O’Toole dated 17 Plaintiff October 2005 and 15 May 2006 M Reports of Dr Osianlis dated 31 August 2005 and 21 Plaintiff May 2006 N Letters from Mr Xenos to Dr O’Toole dated 5 Sep 06 Plaintiff and 9 March 07 O Letters to Dr O’Toole from Dr Seneviratne and to Plaintiff plaintiff’s counsel dated 3 October 2008 and 29
October 2008P Discharge summary from Southern Health dated 25 Plaintiff June 2005 Q Reports from Mr Brownbill dated 16 December 2008, Plaintiff 16 June 2010 and 30 June 2010. R Reports from Dr Horsley dated 9 December 2009, 28 Plaintiff June 2010, 30 June 2010. S Workers claim for impairment benefit dated 9 June 05 Plaintiff and copy letter from QBE dated 24 Aug 2005 T Extract from physiotherapist clinical notes dated 4 May Plaintiff 04 to 25 May 04 and interpretation document dated 14
May 04U Med Certificate dated 8 Feb 05 from Dr Ernesto Plaintiff Andrada V Extracts from Medical records of Eastern Medical Plaintiff Clinic Dandenong in clinical notes for period 7
December 2000 to 30 April 2004W Schedule of particulars of all absences Plaintiff X Report of Dr Reid dated 25 Jan 08 Plaintiff Y Reports of Mr Klug dated 19 May 2009 and 12 April Plaintiff 2010 Z Report of Dr Serry dated 12 September 2005 Plaintiff AA Reports of Dr Cole dated 19 Sep 04, 19 October 04, Plaintiff 18 March 05 and 31 March 2010 AB MRI report dated 13 July 2006 Plaintiff AC Workers claim form dated 2 Sep 04 Plaintiff AD Extract of Dr Gelman clinical notes Plaintiff
| Number and | Short Description of Exhibit | Tendered by |
Identifying Mark
on Exhibit
1 Reports of Dr Barton dated 14 October 2004, 27 Defence October 2004, 5 July 2006, 18 march 2009, 8 April
20102 Report of Mr Shannon dated 29 September 2005 Defence 3 Report of Mr Moran dated 3 April 2006 Defence 4 Reports of Mr Kahn dated 13 April 2005 and 11 May Defence 2005 5 Report of Mr M Dooley dated 15 June 2009 Defence 6 Report of Dr Botvinik dated 4 April 2006 and 2 May Defence 2006 7 Report of Dr Ratnayake dated 30 January 2008 Defence 8 Extract from clinical records of Dr O’Toole Defence 9 Employers claim report 3 Nov 2004 Defence 10 Page from Medicentre Frankston hospital dated 25 Defence Dec 2004 11 DVD of surveillance dated 29 June 09 & 12 July 09 Defence 12 Notice of Injury form dated 14 May 2004 Defence 13 Reports by Recovre document dated 18 June 2009 Defence and 12 April 2006 14 Report of Sunil Kumar of Resolve rehabilitation service Defence dated 12 April 2006 15 Report of Resolve Rehabilitation Service dated 10 Nov Defence 06 with attached return to work plans 16 Certificate of capacity by Dr Ernesto Andrada dated 30 Defence April 04
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