Mircevic v Alsco Pty Ltd
[2012] VCC 1603
•23 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06105
| VICA MIRCEVIC | Plaintiff |
| v | |
| ALSCO PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 15 and 16 August 2012 | |
DATE OF JUDGMENT: | 23 November 2012 | |
CASE MAY BE CITED AS: | Mircevic v Alsco Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1603 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – cervical dystonia – causation
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
JUDGMENT – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Ms A Malpas | Nowicki Carbone |
| For the Defendants | Mr P Jens | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the first defendant.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 Counsel for the defendants conceded that the plaintiff had suffered a serious injury, being cervical dystonia. What was in issue was whether the plaintiff’s employment was a cause of her condition.
4 The plaintiff was not required to give evidence. Both parties relied on medical reports and other material which was tendered in evidence. In addition, Dr Evans, Professor Cook and Associate Professor White were cross examined.
5 I have read all the tendered material.
The Plaintiff’s Medical Evidence
Dr Andrew Evans
6 Dr Evans, treating neurologist, provided medical reports dated 13 September 2010, 20 December 2011 and 16 July 2012 at the request of the plaintiff’s solicitor. In a letter dated 27 January 2009 to the referring doctor, Mr Bhadu Kavar, Dr Evans said he thought the pattern of the plaintiff’s cervical dystonia was reminiscent of a neuroleptic inducted disorder. He said the type of work the plaintiff had done and the history suggested a possible work-related etiology was more likely.
7 In 2010, Dr Evans said:
“On [the] balance of probabilities, I think that there is sufficient evidence to suggest that this was a peripherally induced dystonia, ie a dystonic posturing that arose out of or from the repetitive nature of her employment that required repetitive and stereotyped movements of her head and neck.”[1]
[1]Plaintiff’s Court Book (“PCB”) 45
8 He went on to say:
“In this particular instance, it is possible that the dystonia encountered in Mrs Mircevic’s case is a primary or idiopathic dystonia and is idiopathic or unrelated to the nature of the employment. However, I consider that the employment has at least contributed in part or possibly in full. Idiopathic cervical dystonia is uncommon with a prevalence of approximately nine per one hundred thousand. The pattern of dystonia seen in Mrs Vica Mircevic is an uncommon pattern. … The pattern of the dystonia also tends to coincide with the pattern of neck movements that she was required to make on an ongoing basis during her employment with Alsco Pty Ltd.”[2]
[2]PCB 45-46
9 In December 2011, Dr Evans said that the plaintiff’s severe segmental dystonia was currently stable, and he agreed with Associate Professor Owen White’s assessment about the nature of the injury, and the fact that it arose in the course of her employment.
10 In July 2012, Dr Evans said peripheral trauma and repetitive practices have been described to trigger or cause cervical dystonia. He said the plaintiff’s condition was consistent with that situation. He had viewed a DVD and further affidavit of the plaintiff and did not change his opinion.
11 Dr Evans told the Court that he had seen at least three dozen people where the dystonia movement had evolved from repetitive work practices.
12 In cross-examination, he said:
· “idiopathic” meant an unclear etiology but there are potential individual factors which can lead to an increased risk of dystonia;
· cervical dystonia is uncommon; idiopathic cervical dystonia was the most common of the cervical dystonias;
· an idiopathic dystonia is more likely to develop in adulthood;
· at the plaintiff’s age, it is more common that you do not find a cause;
· in January 2009, he recognised the non-focal nature of the dystonia; that is, it involved more than one body part;
· on the balance of probabilities, he regarded the plaintiff’s condition as a complex task-specific cervical dystonia; that is, where the dystonia overflows into other tasks, as distinct from a task-specific dystonia which is only specific to the task;
· it was the plaintiff’s bending and extension of the neck that the plaintiff specifically described to him that aggravated her condition over the years;
· he took into account the posture she adopted at work;
· he said there were two aspects to the posture, the physical adoption of the posture and the sensory contribution; that is, the pain and discomfit the plaintiff described when in the posture, which is consistent with a task specific dystonia;
· in the initial stages with occupational dystonia, the pain is relieved when the posture adopted is stopped, but the condition progresses to become painful all the time;
· he saw twenty to thirty people a week who were suffering from dystonia and he treated five a week who suffered from cervical dystonia;
· he agreed that the majority of patients who present with cervical dystonia did not have a causal link with employment;
· the plaintiff demonstrated having to lift her head back, and slightly tilted forwards, but extending backwards type of motion;
· the work that the plaintiff described was constant work, daily and multiple times per day;
· he said he equivocated on the question of causation;
· usually cervical dystonia deteriorates over somewhere between two to five years, with or without aggravating factors;
· after viewing a DVD taken in April 2008, his view was unchanged about the repetitive nature of the plaintiff’s employment and his opinion as to the cause of the injury;
· the repetitiveness of the extension movements of the neck in the first and third videos were not particularly vigorous or forceful, but involved alternating between looking down and looking up. He said he is not impressed by whether movement is forced: the levels of concentration and the fine motor control or fine motor function were relevant.
13 In re-examination, Dr Evans said:
· if the dystonia was idiopathic in origin, the kind of work the plaintiff performed could have aggravated the condition;
· he sees one or two patients a week where he can attribute a cause.
Mr Robert Hjorth
14 Mr Hjorth, consultant neurologist, provided reports dated 21 October 2010 and 23 May 2012 at the request of the plaintiff’s solicitor. Mr Hjorth diagnosed cervical dystonia. He said the cause of cervical dystonia is often unclear. Sometimes it can be a generalised dystonia but such cases are rare and did not apply in the plaintiff’s case. He said the plaintiff had cervical dystonia as part of a more segmented dystonia. He said sometimes it can occur as a complication of psychotic drugs which did not appear to apply with the plaintiff. He said that cervical dystonia can occur as a result of injury to the neck or shoulder and it can occur when a person has to adopt a fixed or stressful neck posture as part of their work, which he believed applied to the plaintiff’s cervical dystonia.
15 In his fifteen years’ experience at the Botox Clinic at The Royal Melbourne Hospital, he had seen patients where the condition was caused by work posture and activities, which he believed was the case for the plaintiff. He said once a patient develops cervical dystonia, it usually persists, even though the patient would stop or change their work habits. He said Dr Andrew Evans was an acknowledged expert in movement disorders.
16 In May 2012, Dr Hjorth reported that he had viewed the DVD supplied by the plaintiff’s solicitor and medical reports from Professor Helme. He agreed with Professor Helme that “the majority of cases of cervical dystonia are idiopathic,” in the sense that one is not sure where they come from, but said some cases have a possible cause. He said a small number of them have a relationship to work which can be as a result of trauma such as a whiplash injury or the result of sustained abnormal posture.
17 After viewing the DVD, he said that the work the plaintiff performed with the first defendant would have contributed to her developing the condition. He said, experience suggests that the kind of work and posture the plaintiff was doing has sometimes/often been responsible for the condition. On balance, he said it was probable that the plaintiff’s cervical dystonia had been caused, at least in part, by her repetitive work. He concluded that her employment was a cause, at least partially and significantly, of her cervical dystonia.
Professor Mark Cook
18 On 19 November 2011, Professor Cook, neurologist, saw the plaintiff at the request of her solicitor.
19 It was Professor Cook’s opinion that, on the balance of probabilities, the plaintiff’s employment was the cause of the development of a cervical dystonia. He said dystonias are a complex group of neurological symptoms and the cause of these conditions is unknown. Some are related to medications or a known genetic defect. Others may develop in relation to a repetitive task, which is best recognised in conditions such as task specific dystonias that affect musicians.
20 He reviewed the DVD which did not cause him to alter his opinion. He said sometimes relatively discontinuous tasks such as writing precipitate the condition, so he did not think one can look at the continuous and repetitive nature as being the sole element responsible for the cause.
21 In cross-examination, he said:
· it is often the case that the condition evolves so that other regions might become involved and symptoms might become more severe, even when one has ceased doing the apparent aggravating activity;
· even if a plaintiff is suffering idiopathic cervical dystonia, the probabilities are that the condition would progress;
· the majority of dystonias have not been associated with a particular activity, but those that have been typically develop in the context of a repetitive activity; for instance, playing a musical instrument;
· the bulk of dystonias have no known cause in terms of physical activity and the plaintiff could fall into that category;
· musicians are a category where a pattern has built up because of the numbers that have developed dystonias;
· he thought the plaintiff’s repetitive folding and turning may have been a triggering factor;
· he thought it is likely that the repetitive nature of the tasks is relevant, given that he had seen it in other circumstances; that is, musicians;
· a person with cervical dystonia, whether it is aggravated or not by further movement of the cervical spine, was likely to get worse in any event;
· it could just be a coincidence that she was involved in her work and developed the condition;
· it was impossible to dismiss that the work triggered the condition.
The Defendant’s Medical Evidence
Dr David Freilich
22 In March 2006, Dr Freilich, neurologist, saw the plaintiff upon referral from the plaintiff’s general practitioner. He said the plaintiff presented with spasmodic torticollis. The treatment of choice was injections of Botox into the affected muscles. He did not perform the treatment and referred her to another neurologist, Dr Michael Poon. He said the plaintiff’s pain came on spontaneously and in his opinion was unrelated to her employment.
Dr Michael Poon
23 Dr Poon, neurologist, treated the plaintiff from May 2006 to October 2008. He said the plaintiff’s cervical dystonia did not appear to be work related. He said cervical dystonia will worsen with any form of stress, whether this be emotional or physical, at home or work. He said her condition had worsened to the extent that she is struggling to finish her work, but her workplace was unlikely to have caused or worsened her cervical dystonia.
Dr Clayton Thomas
24 In February 2008, Dr Thomas, a rehabilitation and pain management specialist, treated the plaintiff on one occasion. He said the dystonia was not work related.
Associate Professor Owen White
25 Associate Professor White, neurologist, provided reports dated March, April and May 2008 and October 2009 to the defendants’ insurer. In his first two reports, Associate Professor White accepted that the plaintiff had an underlying tendency to the development of dystonia and that there was evidence in the literature to suggest that rapid repetitive movements can aggravate and precipitate dystonia in those people who are predisposed to it. He accepted that her work fitted the criteria for activities that might precipitate dystonia and said it was unlikely that her work was the only contributing factor.
26 He believed that there was likely to be an underlying tendency to the development of dystonia that had been aggravated by the nature of the plaintiff’s work, which he described as quite repetitive.
27 In April 2008, on reviewing the nature of the plaintiff’s duties, he said:
“It seemed quite likely that it was not so much the weight of the sheets that she was manipulating that contributed to her condition, but it was the frequency and repetitive nature of the duties that would have contributed. On that basis, I would have to say that I believe her work duties have been a significant contributing factor to the development of her dystonia.”
28 In May 2008, Associate Professor White reviewed correspondence forwarded by the defendants’ insurers from Dr Freilich. He reiterated his previous opinion, and said he did not believe it possible to deny the likelihood that her work has contributed in some way, given the repetitive nature of her activities.
29 In October 2009, Associate Professor White said:
“I have stated I believe her cervical dystonia is primarily constitutional but it is not possible to completely exclude a contribution from her work.”
30 He had retrieved the last five years of literature on cervical dystonia, and said:
“In brief, cervical dystonia is considered largely constitutional and the only reported case where distinct activity was identified as a cause was in substantially unusual circumstances in a double upper limb amputee who learnt to write holding a brush in his mouth.
Nonetheless, there are reports of cervical and shoulder region dystonias developing after trauma and I have personally been involved in a case wherein a patient developed severe dystonia afte prlonger [scil after prolonged] right shoulder region pain and development of a protective but unproductive posture.”[3]
[3]Defendants’ Court Book (“DCB”) 23
31 He said he believed the major contribution here is constitutional. He was not convinced work has contributed but it is not possible to exclude a contribution from a work-related strain injury.
32 In cross examination, Associate Professor White said:
· it was potentially significant that Dr Poon reported the plaintiff had developed uncontrollable head rotation towards the right with associated hypertrophy of the left sternocleidomastoid (around the jaw), which correlated to the movements the plaintiff described she performed at work.;
· the plaintiff’s work fits the criteria for activities that might precipitate dystonia; however, reported cases involved complex fine motor movements and not proximal muscles, as is the case of the plaintiff;
· he could not exclude the possibility that there is a significant work contribution;
· his initial opinion was that the work may be contributing and, on balance, he has moved very slightly from that position. He now says he cannot exclude the possibility that there is a significant work contribution;
· he changed his view as a result of the literature research and his own research into motor control.
33 In re-examination, Associate Professor White said:
· the facial dystonia was an independent dystonia to the cervical dystonia; they are separate syndromes;
· the two dystonias developed around the same time and on that basis, he thought it more likely that there was an underlying constitutional component to both;
· this does not rule out the possibility that work had aggravated the cervical dystonia, but that would be purely speculative.
Professor Robert D Helme
34 Professor Helme, consultant neurologist, saw the plaintiff at the request of the defendant’s solicitors in October 2010 and December 2011. Professor Helme said the plaintiff exhibited typical features of cervical dystonia, also known as spasmodic torticollis. He said some forms of focal dystonia, such as the occupational cramps (for example, as seen with writer’s cramp and musicians utilising rapid hand movements as part of their playing technique) have been associated with repetitive movements. In his opinion, the cause of the plaintiff’s condition is unknown and is therefore called idiopathic. His reasons were:
· the idiopathic group is the largest category in the plaintiff’s age group;
· the time course and clinical description in this case matched that described for the idiopathic category;
· there was no specific injury or infection and no other neurological disease had become apparent over the five years of observation in this case;
· the repetitive movements have not been identified as a cause of cervical dystonia, as opposed to the occupational cramp conditions;
· further, the abnormal movements in this case have spread to involve muscle groups that do not parallel the movement described by the plaintiff.
35 Professor Helme reviewed the DVD and the affidavit. He said he would agree with the description by Mr Davies, that:
“Whilst the duties performed are of a repetitive nature, they are not of a strenuous nature.”
36 He added, although the activity is repetitive, it is irregular in type and not rapid. It was therefore his opinion that the cause of the cervical dystonia is unknown. Although a contribution from repetitive work activities should be considered, he thought it most unlikely.
37 On 6 February 2012, Professor Helme provided a further supplementary report considering the views expressed by Dr Hjorth. He said he could not discount the possibility that stressful posture and repetitive motor performance seen in the hands and fingers of professional violin and piano players, but considered it most unlikely given the lack of evidence in the medical literature. He said if the video working conditions of the first defendant is truly representative of the working conditions of the plaintiff, he was of the opinion the degree of sustained or repetitive activity involved was insufficient to cause cervical dystonia, even if such a relationship existed.
38 In July 2012, Professor Helme was provided with a further DVD of process work duties similar to those performed by the plaintiff during her employment with the first defendant and an extract of a safety DVD exhibiting the roller machine. He did not change his opinion from those expressed in his previous reports. I was informed that no one else has seen the DVD referred to by Professor Helme.
Analysis of the Evidence
39 What was in issue in this case was whether the plaintiff’s cervical dystonia was caused by or related to repetitive movements she performed in the course of her employment. The evidence was that the causes of cervical dystonia are unclear and there is differing medical opinion on the subject.
40 Whilst a considerable amount of material was placed before me, essentially the dispute between the parties centres on the apparent differences between the opinions expressed by Dr Evans, Mr Hjorth and Professor Cook, and those of Associate Professor White and Professor Helme.
41 I heard oral evidence from Dr Evans, Professor Cook and Associate Professor White and I was greatly impressed by their learning and experience in the field of diagnosing and treating neurological disorders. They were undoubtedly qualified to give expert evidence about this medical condition. They did their best to answer the questions that were put to them. At times this was complicated by the differences in the meaning of words in a legal, rather than medical, context. They did their best to assist me in determining the cause of the plaintiff’s injury.
42 The difference between the opinions was slight. On the one hand, the opinion of Dr Evans was that it was possible that the plaintiff’s dystonia was idiopathic and unrelated to the nature of her employment, but he thought her employment had probably contributed to or aggravated her injury. Professor Cook’s opinion was that even if the plaintiff's dystonia was idiopathic, working on for a number of years would at least have aggravated the condition. On the other hand, the opinion of Associate Professor White was that her injury was largely constitutional but he could not exclude the possibility that work had contributed to the injury. All witnesses accepted that the majority of cervical dystonias are idiopathic; that is, they occur spontaneously without any external cause.
43 Dr Evans was impressed by the level of concentration and the fine motor control or fine motor function of the movements the plaintiff performed at work, that the work was constant work, daily and multiple times per day and that the pattern of the plaintiff’s dystonia tended to coincide with the pattern of neck movements that she made during her employment. Dr Evans agreed that the area is controversial within the medical profession and there is merit in the opposing view. His opinion was consistent with those of Professor Cook and Mr Hjorth.
44 Associate Professor White, on the other hand, was mindful of the medical literature on dystonias, in particular that while the plaintiff’s work fits the criteria for activities that might precipitate dystonia, reported cases involved complex fine motor movement and not proximal muscles, as in the case of the plaintiff, and that the only reported case where distinct activity was identified as a cause of cervical dystonia was in a double upper limb amputee who wrote holding a brush in his mouth. Associate Professor White’s opinion was consistent with the opinion of Professor Helme.
45 In considering whether the plaintiff’s employment was a cause of her injury, I place greater weight on the evidence of the medical witnesses whose opinion was tested in Court. In particular, I am persuaded, on the balance of probabilities, by the evidence of Dr Evans. First, he has treated the plaintiff for in excess of four years. He is an acknowledged expert in movement disorders and leads the Movement Disorders Service at The Royal Melbourne Hospital. His evidence was supported by Professor Cook. Both witnesses gave evidence to the Court. Their evidence was supported by Mr Hjorth, neurologist. I accept that Dr Evans said he equivocated on whether the injury was work related, but overall considered her injury was related to her work.
46 I accept that Dr Freilich and Dr Poon, both neurologists, and Dr Thomas, do not accept work is a cause of the injury. I place less weight on their evidence because it was not tested in Court. In addition:
· Dr Freilich’s expertise in cervical dystonia did not extend to treatment of the condition. He saw the plaintiff on one occasion.
· Dr Poon’s reasoning was unsatisfactory. He said the condition will worsen with stress – physical or emotional, at home or work. He said the plaintiff’s condition has worsened, to the extent she struggled to finish her work, yet he concluded her workplace was unlikely to have caused or worsened her position.
· Dr Thomas’ speciality is rehabilitation and pain management, not movement disorders.
47 Given all the evidence, I am satisfied that the plaintiff has suffered a compensable injury under s5 of the Act. I am satisfied, on the balance of probabilities, that employment has been a cause of the plaintiff’s injury.
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