Nada Christina Drazevich v Ensign Services (Australia) Pty Ltd
[2013] ACTMC 14
•14 June 2013
NADA CHRISTINA DRAZEVICH v ENSIGN SERVICES (AUSTRALIA) PTY LTD [2013] ACTMC 14 (14 June 2013)
WORKERS COMPENSATION - aggravation of pre-existing condition - injury compensable if incapacity results from worsened pathology or exacerbated symptoms - whether cause of incapacity was work injury.
Workers Compensation Act 1951 (ACT)
Caldipp Pty Ltd t/as Slaven Motors v Delov [2002] FCAFC 352
No. WC118 of 2011
Magistrate: Morrison
Magistrates Court of the ACTDate: 14 June 2013
IN THE MAGISTRATES COURT OF THE )
) No. WC 118 of 2011
AUSTRALIAN CAPITAL TERRITORY )BETWEEN:NADA CHRISTINA DRAZEVICH
Applicant
AND:ENSIGN SERVICES (AUSTRALIA) PTY LTD
Respondent
DECISION
Magistrate: Morrison
Date: 14 June 2013
Place: Canberra1The Applicant, Nada Christina Drazevich by application dated 7 April 2011 requests arbitration with respect to the Respondent's liability for weekly compensation and with respect to compensation for permanent injuries.
2At the conclusion of the hearing it was not in dispute that the Applicant was at the relevant time a worker employed by the Respondent or that she had in fact suffered an injury in the course of that employment on 7 February 2011. Nor was it in dispute that the symptoms of the Applicant’s present condition are incapacitating although the extent of the incapacity is not conceded.
3The Applicant gave sworn evidence. She is 49 years of age. She left school halfway through year eight because her father was injured and she stayed home to help the mother. The Applicant has a history of having worked in nursing homes doing kitchen work or cleaning. She described also having worked in laundries. She has five children between the ages of 12 and 29 and worked in the period between when she had her children.
4The Applicant described having been injured on 2 prior occasions. One was a fall at Woolworths in 2001 for which she received some compensation. On the second occasion she rolled her ankle in a car park.
5The Applicant described having had some casual employment as a support worker for a women's refuge in about 2005. She was asked if she could recall what if anything was happening with her back in that period of time. She replied by saying she "might have went to the doctors a couple of times in regards to just a little, you know, it wasn’t major, yes I don't know." (T31)
6Her evidence-in-chief went on to the effect that she was pain free from the 2001 back injury within a period of perhaps 12 months or two years after the injury, but that she was having niggling problems, I presume with her back, when she rolled her ankle in 2006. (T32)
7Prior to starting work for the Respondent, the Applicant worked at Revlon packing boxes with make-up. That was in the period from June 2008 to October 2010. She described having had an employment medical examination. There is no documentary evidence about that but I infer that the result of the medical examination was that the Applicant was regarded as being fit to perform the duties required of her at Revlon. She said that the work involved selecting make-up from shelves and packing it into boxes before putting them onto a conveyor belt. She said that she was always on her feet, that the working hours were from 8 AM till 4:15 PM and that she had no difficulty doing that type of work at that time. (T30)
8The Applicant started work with the Respondent in November of 2010. She said she had a medical examination before starting work there and that she was required to complete an occupational health and safety course. (T53)
9The Applicant said that at the time of starting work with the Respondent, she was not having any back problems nor seeking any treatment. (T33) She said that she was however at that time taking medication for tendinitis and anti-depressant.
10She said that she was not seeing doctors for any other conditions at that time.
11The Applicant was employed by the Respondent as a laundry worker in Fyshwick. The Respondent supplies linen to hospitals and the Applicant's duties related to the washing, folding and ironing of that linen. She described the work as heavy work. She said that her normal duties involved bending and lifting and carrying and pushing trolleys. She said that she experienced no pain in her back from those duties for the Respondent prior to the incident on 7 February 2011. (T38)
12The Applicant said that on the day of the accident she was folding pillow slips. She said that she was folding them into bundles of 20 and as she turned to put one bundle into a tub, she collided with a towel tub which she described as being too close to where she was working. (T39)
13She said that she was standing at the time. She indicated a point of impact between her torso and the towel tub at about upper midriff level and slightly behind — that is towards her back — from the midline of the body. (T39)
14She said that the towel tub with which she collided was one used for discarding old towels and that it should not have been where it was. She described the towel tub as being on an aluminium trolley with wheels and which could be easily pushed with one hand. (T37)
15She said that she was winded when she struck the trolley. She said that two persons witnessed the accident and that there was a red mark on her skin. She said that the accident occurred just before 12 o'clock, that she had her lunch at 12:30 and that was when she told her supervisor. She said that at about 2:30PM that day, an incident report was completed by a person called Graham. She said that Graham completed the report on a computer in her presence. The incident report became Exhibit A12.
16The Applicant went on to say that she sought medical treatment in relation to the incident on 10 February 2011. She said she saw a Dr Johnston, told him about the accident and that she was sore on her lower left pelvis. She was referred to the clinical entry dated 10 February 2011. It reads as follows:
Felt lightheaded this morning, temp 37.6, also lower back, was concerned regarding depressive medication. Discussed her present situation, support strategies and coping skills.
17It was pointed out to the Applicant that the entry does not refer to any incident. She replied by repeating that she went to see Dr Johnston on the 10th in regards to the injury at work. (T48)
18The Applicant said that when she saw Dr Johnston on that day the doctor told her that because she was taking an anti-inflammatory medication for her right arm, which I presume to be a reference to the tendonitis, she should continue taking the medication for her lower back. She went on to give evidence of seeing the doctor again on 22 February. That entry refers to the Applicant being hit by a big wheelie bin two weeks ago. The Applicant said that was a reference to the trolley bin she had struck on 7 February.
19The Applicant said that on the night of the accident — that is 7 February 2011 — she felt sore when she went home as she was bruised on her lower left side. She went on to say that she continued to work between 10 February 2011 and 22 February 2011 but that she was feeling more pain in her lower back and side each day.
20The Applicant said that she continued to work until 7 March 2011 but that she could not work thereafter. She said she saw Dr Johnston on that day and that he gave her a medical certificate to the effect that she was unfit for work. (T50) The entry in the clinical notes for that day reads as follows:
Went to work on Friday but could not handle it due to the back pain. Has now put in claim. Agreed to stay off work for two weeks and start on light duties after that, maybe two – three days/week.
21The Applicant said she had seen several different doctors at the Condor medical practice. She described the number of times she had seen a doctor at the practice in relation to the February 2011 work accident as "a lot", the last occasion being only two weeks before the hearing.
22The Applicant went on to describe the medications she was taking and her participation in pain management counselling and physiotherapy. (T 56)
23The Applicant referred to seeing a Dr Coyle about her medical condition at the request, as I understood the evidence, of the manager of her superannuation fund. I allowed the report into evidence over objection by the Respondent.
24The Applicant was asked whether there have been days or weeks or months since February 2011 when she had no pain in her lower back, she replied by saying that she had pain all the time and every day. (T 65)
25The Applicant said that she had not worked since March of 2011 and had not attempted to find work. When asked why she had not attempted to obtain work since 7 March 2011, she replied by saying "I'm unfit to work, like mentally and with my symptoms of chronic lower back pain, I can't work." (T 65) She was asked whether the medication she was taking had any effect on her and she replied by saying that she got a lot of memory loss and that she was cloudy in the head. I got the impression that she was referring to her cognitive processes and not her vision. She said that she had been referred for an assessment by an orthopaedic surgeon but that she was still on the waiting list to see him or her.
26Under cross-examination, the Applicant at first said that she did not get a medical certificate from Dr Johnston on 10 February 2011. When it was pointed out to her that the doctor's notes recorded that he had issued a certificate on that day she agreed that it was likely that he had done so. (T 68)
27She was asked whether when she went to see Dr Johnston on that day she had told him that she was feeling lightheaded. Her response was to repeat once again that she went to see Dr Johnston in regards to her injury. When the question was repeated — that is, did she tell him that she was feeling lightheaded — she responded by saying no she did not. She said that would be an error by the doctor. (T 69)
28She went on to say that she could not remember saying that she was feeling lightheaded but that she did remember going to see him about the injury on 7 February.
29She was asked if on 10 February she told Dr Johnston that she had raised temperature. She replied by saying again that she went to see Dr Johnston on that day in regards to her injury. Again the question was repeated and in response the Applicant said that she did not tell Dr Johnston on that day that she had a raised temperature. She went on to say that she did not in fact have a raised temperature. She said that if Dr Johnston's notes recorded that then they were incorrect. (T 69)
30She was asked whether on 10 February she told Dr Johnston that she was concerned about the medication she was taking for depression. She said that she never mentioned her depression. She was asked whether she was sure about that. The transcript records no audible reply. She was asked if that meant there was another error in the doctor's records and, after some hesitation, she said "No, I know but I’m – I don't recall. I know I went to Dr Johnston on the 10th in regards to my injury." (T 70)
31After some questions about what else was happening in her life at the time, the Applicant was asked about the reference in the doctor's notes to discussing her present situation, support strategies and coping skills. She said that that discussion had not taken place and that was another mistake by Dr Johnston. (T 71)
32The Applicant went on to say that she had at some time spoken to Dr Johnston about how she was feeling about domestic violence and the death of her mother and brother and support groups and the like but that did not happen on 10 February 2011. (T 72)
33The Applicant said that on the occasion of the consultation with Dr Johnston on 10 February, she also lifted her clothing and showed him the bruising at the point where she had struck the tub. She said that the doctor had "noted the bruising". She said she meant that she had had a conversation with Dr Johnston and it was apparent to her that he had seen the bruising. (T 74)
34Under cross-examination the Applicant agreed that she had left work on the day of the accident at about what was her normal finishing time in any event, and that she had gone back to work the following day and the day after that. (T 76)
35Under cross-examination it was put to the Applicant that Dr Johnston had not issued a medical certificate on 22 February. She accepted that it was likely that he did not issue a medical certificate on that day because that was not shown in his records, but said that she had to go and have an x-ray. She said she did see him again on 3 March 2011 after her X-ray and that he did issue a medical certificate on that occasion. She agreed that certificate was what was described in the question as a normal certificate and not a worker’s compensation certificate. She added that was because she didn't do the paperwork for the claim until 7 March. (T 78)
36The Applicant agreed that between 7 February 2011 and 7 March 2011, she kept working for the Respondent and performing her normal duties without taking any time off. It was suggested to her that she had performed her duties without making any further report to her manager and she responded by saying that she did say to them that her back was sore.
37Some time was spent in questioning the Applicant about her movements immediately prior to her collision with the tub. (T 79 to 84) There was some conflicting evidence given, but I attribute that to the difficulty in properly describing what had taken place rather than any actual confusion as to what had taken place. In the end result, as I understand the evidence, the Applicant said that she was standing in front of a machine which tied pillow slips into a bundle. She picked up a bundle of pillow slips and took a step to her left to walk around the machine in front of her to place them in a receptacle. The collision with the tub occurred as she stepped off from where she was standing. (T 84)
38The questioning in cross-examination went on to refer to certain problems which had been mentioned by the Applicant about her and her children being the victims of domestic violence at the hands of her ex-partner. She agreed with a proposition that those problems were well and truly behind her by 2011, but went on to concede that in 2011 her ex-partner was very ill and was staying at her house although she said she was not caring for him. She agreed that, in addition, her son had been diagnosed with mild bipolar disorder and that her daughter had been suffering depression and anxiety. (T 89)
39At this point in the cross-examination, the Applicant was referred to clinical notes indicating that she was having physio in August 2002 and that she had consulted doctors about back pain on 23 August 2002, 6 November 2002, 17 February 2003, 10 April 2003, and 14 April 2004. It was put to her that she was having problems with her back after the fall at Woolworths for a lot longer than two years and she responded by saying yes but that it was on and off and nothing like compared to what she's got to live with now. (T 93)
40The cross-examination along this line continued, referring the Applicant to visits to her doctor on 12 December 2005, on 18 August 2006 and 1 September 2006. The Applicant accepted that on that last occasion she had told the doctor that she rated the pain in her lower back as level 9 on a scale of 1 out of 10. When asked why she was suffering pain at that level in September 2006, she said it was because of the injuries she had in 2001 and the ankle injury in 2006. It was put to her that pain from her Woolworth injury didn't ever really go away after 2001. She replied by saying that it did but then it would come back. The following exchange then took place: (T 96)
Question: "It didn't ever go away completely did it? – It mightn't of. I don't know.
Question:Well, it was a continuing problem for you? – But I've worked at Revlon the three years it didn't not once gave me a problem.
Question:Answer the question. It was a continuing problem for you? – It might have done."
41When the proposition was put more precisely as being that her lower back was a continuing problem for the Applicant in the period from 2001 to 2006 the Applicant replied by saying “yes” but added it wasn't a continuing thing – it would come and go. (T 97)
42The Applicant was referred to the notes of a visit to her doctor on 2 January 2007 where she describes pain in her right lower back and limb. She agreed that at the time she was having leg pain associated with her back. She said she did not remember going for an x-ray but accepted that the if an x-ray was referred to in the doctor's notes then that might be correct.
43The cross-examination went on to refer the Applicant to visits to her doctor in November of 2007 complaining of back pain and in October of 2008 complaining of back pain. She accepted that the October 2008 visit was at a time while she was working at Revlon. She accepted that the doctor's notes from the October 2008 consultation referred to ongoing pain. She agreed that she must have told the doctor that she had continuing back pain. When asked if she thought that continuing back pain related to the Woolworth injury in 2001, the answer was yes. (T 98)
44The Applicant was then referred to a record of a consultation with a doctor Toua on 15 March 2010. Those notes referred to a recent fall at Woolworths. The Applicant said that was a reference to the fall in 2001. She was asked if she was still having back problems in March 2010 and she agreed that she was. (T 102)
45In re-examination, Mr Richards sought to clarify what the Applicant had said about still suffering pain in 2010 from the Woolworths fall in 2001. The Applicant was asked when was the last time she saw a doctor in relation to pain in her back from the Woolworths fall and she replied by saying "I can't remember." (T106)
46Oral testimony was also given at the hearing, by telephone, by Dr Le Leu for the Applicant and by Dr Wallace for the Respondent. A report by Dr Le Leu dated 9 December 2012 was put into evidence as Exhibit A11. Reports by Dr Wallace dated 15 August 2011 and 14 August 2012 were put into evidence as Exhibits R2 and R3. Other medical evidence was admitted in documentary form.
47I will deal with the medical evidence in more detail later. First I deal with my assessment of the Applicant.
48It is apparent that the Applicant has not had the benefit of even an average level of formal education. She left school halfway through year 8 when she would have been about 13 years of age. She presents as having below average oral communication skills and a vocabulary which is not extensive. In addition the Applicant’s evidence was that she was “cloudy in the head” as a result of her current medications. In making my assessment of the plaintiff’s testimony I take these things into account.
49Mr Richards pressed on me that I should also take into account, at least in relation to the questions asked in cross-examination about the March 2010 consultation with Dr Toua, that the Applicant was tired after lengthy cross-examination and wanted to go home. I accept that the Applicant may well have been tired at that point in the cross-examination but I do not accept that her response to the questions she was asked was unreliable as a consequence. It was apparent to me from the Applicant’s verbal response and her nodding at the time that she was conceding that in March 2010 that she was still suffering back pain which she attributed to the 2001 accident.
50Even making proper allowance for the factors referred to, the Applicant was an unimpressive witness.
51If the testimony of the Applicant is to be believed, there are multiple instances of doctors’ reports failing to record matters she says she reported or recording matters she says she did not report.
52In particular the records of the visit to Dr Johnston immediately post accident make no reference whatsoever to a work accident or work related injury. They make no reference to any observation by the Doctor of the bruising the Applicant says she suffered and, she says, was observed by the Doctor.
53I think it is inherently unlikely that the doctors’ records are defective to the extent that the Applicant says they are.
54Another factor affecting my assessment of the credibility of the Applicant is the way in which she sought to downplay the extent and frequency of on-going problems from her 2001 and 2006 injuries.
55The overall impression left by the evidence-in-chief of the Applicant was that she experienced no ongoing problems from the 2001 fall after a period of 1 or 2 years post accident, apart from some short term niggling pain stemming from the incident in 2006 when she rolled her ankle.
56Early in her cross-examination the Applicant confirmed her testimony that the injury suffered in Woolworths in 2001 had resolved within two years of it occurring. She said that from 2003 until February 2011 she might have gotten the occasional little back pain and got over it. She said that it wasn't ongoing. (T 91)
57But as her cross-examination continued, the Applicant was faced with the entries in the medical records showing doctors attendances in August 2002, November 2002, February 2003, April 2003, April 2004, December 2005, August 2006, September 2006, January 2007, November 2007, October 2008 and March 2010. The Applicant sought to downplay the significance of those consultations by being somewhat evasive in her answers and by saying that the pain she suffered was on and off but nothing like the level she was now experiencing. When asked directly (as recorded on page 96 of the transcript) if she had a continuing problem as at 2006, she did concede that she might have done.
58The picture painted by the evidence given in cross-examination of the Applicant was vastly different to that following her evidence-in-chief.
59Even making a generous allowance for the factors to which I referred earlier, the conclusion I reach is that the Applicant was not being completely truthful in her evidence about the ongoing effects of her injuries in 2001 and 2006. That conclusion causes me to question the reliability of her testimony generally, except to the extent that it is supported by other evidence.
60Before moving to the medical evidence I make some further observations about what is in contest in these proceedings.
61It is not in dispute that the Applicant suffered from a pre-existing degenerative condition — that is, a condition existing before the February 2011 work accident — although the evidence does not, in my mind, go so far as to establish, one way or the other, whether that pre-existing degenerative condition is properly described as a disease or as a pre-existing injury, in the case of the latter by way of being the consequence of the 2001 accident.
62There is some complication surrounding the distinction between concepts of injury and disease in the context of workers compensation and significant overlap between them. The questions to be determined are perhaps made more complex because of not insignificant differences between the legislative provisions in this jurisdiction and those upon which several leading judgements in this area have been based.
63If the Applicant has suffered injury by way of aggravation of a pre-existing injury, then she needs to establish that her present incapacity is because of the aggravation of that pre-existing injury, and that the aggravation arose out of or in the course of her employment with the Respondent. That is the effect of sections 4, 31, 39 and 40 of the Act.
64If the Applicant has suffered an injury caused by a pre-existing disease (and the injury was not of itself incapacity-causing) then the Applicant needs to also establish that her employment substantially contributed to the injury. That is the added effect of section 31(2) of the Act.
65Whilst it may be that there is some uncertainty about whether the Applicant's condition before the accident in February 2011 is properly described as being the result of a pre-existing injury (within the meaning of section 4) or a disease (for the purposes of sections 27 and 31 (2)), I have concluded that nothing turns on that for present purposes.
66I note that in accordance with the decision of Higgins J (sitting in the Full Court of the Federal Court) in Caldipp Pty Ltd t/as Slaven Motors v Delov [2002] FCAFC 352, aggravation of a pre-existing underlying disease is compensable if:
a.“the pathology is worsened so that incapacity results; or
b.the symptoms, whether experienced before or not, are exacerbated so as to result in incapacity for work.”
67Insofar as his Honour’s decision was directed towards what may constitute incapacity for the purposes of the Act, there is no reason as a matter of principle for differentiating between a pre-existing underlying disease and a pre-existing underlying injury, and I know of no authority requiring me to do so. The aggravation is compensable if what is caused is either worsened pathology or exacerbated symptoms which, in either case, cause incapacity for work.
68When aggravation of a pre-existing condition is the basis for compensation then a further question arises as to the time period over which the aggravating incident continues to operate as a cause of the incapacitating exacerbated symptoms but I have not needed to consider that question in these proceedings for reasons which will become obvious.
69The Applicant says that the February 2011 accident caused the incapacitating symptoms of which she presently complains. That accident clearly took place in the course of the Applicant’s usual employment duties with the Respondent. The focus in this case is properly upon whether there is a causal connection between that accident and her present incapacitating symptoms. If such a connection exists, then in this case the Applicant’s employment has substantially contributed to her incapacity regardless of whether the pre-existing condition resulted from a pre-existing injury or a disease.
70But it is still necessary for the Applicant to establish a causal connection between the February 2011 work accident and the exacerbated symptoms of which she presently complains.
71The first question to be determined by me therefore is this — does the evidence establish, on the balance of probabilities, that the February 2011 work accident was a cause of what the Applicant says are her present exacerbated and incapacitating symptoms?
72In final address, Mr Richards for the Applicant pointed out that it was not in contest that an injury had been suffered in February 2011 or that the Applicant subsequently suffered at least some incapacity. As he points out, the Applicant was working before the injury and was unable to work after it. He presses on me that there is no alternative other than that the injury caused the incapacity.
73There are two observations to be made about that submission. The first is that the Applicant bears the onus of proof. The absence of some other explanation for the onset of symptoms is clearly relevant to the assessment of cause but does not relieve the Applicant of that burden of proof.
74The second point to be made is that the obvious other possibility for the onset of the Applicant’s symptoms is the ongoing degeneration of the pre-existing degenerative condition because of the passage of time or for other reasons unrelated to the February 2011 work accident.
75There is no evidence before me of the likely course of the Applicant’s pre-existing degenerative condition for a woman in her late 40s who has customarily had employment performing manual labour. There is no evidence to suggest, on the one hand, that she could have expected to remain symptom-free for many years to come; or on the other, that she was overdue to have developed the symptoms of which she now complains either spontaneously or as a result of some everyday occurrence outside her employment. In the absence of such evidence I cannot speculate as to what the likely course of her condition may have been.
76I turn to consider the medical evidence.
77Oral testimony was given at the hearing, by telephone, by Dr Le Leu for the Applicant and by Dr Wallace for the Respondent. A report by Dr Le Leu dated 9 December 2012 was put into evidence as Exhibit A11. Reports by Dr Wallace dated 15 August 2011 and 14 August 2012 were put into evidence as Exhibits R2 and R3. There is other medical evidence in written form but it is the testimony and reports of Dr Le Leu and Dr Wallace which are crucial to the determination of this application.
78Dr Le Leu is an occupational physician. He saw the Applicant for the purposes of preparing his report on 3 December 2012. In his report, Dr Le Leu expresses his opinion that the Applicant suffered injuries as a result of the accident on 7 February 2011. It is apparent from the report that the doctor was asked to record his diagnosis and prognosis of the injuries suffered by the Applicant as a result of the accident. Under that heading the following appears:
She has had only one lot of medical imaging so far as I'm aware and that was the x-ray of the pelvis and lumbar spine of to March 2011 which showed degeneration in the lower lumbar spine.
79The doctor goes on in his report to express the view that the Applicant has reduced capacity for work, that the reduction in capacity will be permanent and that she is only fit for light work of a sedentary or semi-sedentary nature. He says at that point that "I note that she was able to work at her normal rate before the subject accident so the reduction in capacity has been brought on by the subject accident".
80Dr Le Leu was cross-examined about the medical history which had been given to him by the Applicant. He said that the Applicant did not mention any back injury in 2001. Having been told of such an injury, I understood him to adopt a position for the purposes of his testimony of assuming that, from the applicant's point of view, she was asymptomatic and had no residual problems. (T11, 30 April 2013).
81The cross-examination of Dr Le Leu continued with Mr Muller asking how the doctor’s assessment of the Applicant’s condition would change if certain things were assumed. After some to and fro between counsel, the question was put to Dr Le Leu, without objection, on the basis that he was to assume "a history of an attendance upon a doctor in October 2008 and complaints of ongoing back pain related back to an injury in 2001 and that there had been intermittent complaints of back pain in the intervening period”.
82The doctor’s response included that the background suggested was important. As I understand his evidence, he went on to say that it gave rise to a question as to whether the pattern of the pain suggested a discogenic component. He further said that against that background of back pain, he would expect there to be some pre-existing changes on an x-ray before the 2011 accident, and that the history indicated probable pre-existing structural degeneration.
83Dr Le Leu had before him the report of an x-ray taken after the 2011 accident. He agreed that, on the basis of the x-ray report, the findings on that x-ray were consistent with the history he had been asked to assume. I think it is clear that the doctor meant that the x-ray findings were consistent with the assumed history without taking into account the February 2011 accident. (T15)
84Dr Le Leu was further asked to accept that, in March 2010, there was also complaint to a treating doctor of ongoing back pain related to a fall at Woolworths in 2001. (T16)
85Dr Le Leu made it clear under cross-examination that the Applicant had given him to understand that she had been asymptomatic prior to the subject accident. He was asked whether, armed with the history he was being asked to assume by Counsel for the Respondent, he had cause to alter his opinion as to the significance of the February 11 incident.
86His response was as follows:
Well, an incident like the one at work in February 2011 could have exacerbated her pre-existing problem, so – and could have caused more right leg pain. So now if I knew that, I'd be assuming that she had this pre-existing pattern of back pain going back many years, but that incident in February 2011 had exacerbated the problem, brought on right leg pain, which may or may not have been there in the past and she hadn't recovered from it, whereas before the incident, she was able to work and after the incident, she wasn't able to work. So that's the way I view it, I suppose.
87As is apparent from that answer, the doctor’s opinion was influenced by his acceptance that the Applicant suffered pain although being able to work before the February 2011 accident but that she suffered pain and was unable to work after it.
88Dr Le Leu was then asked questions about the mechanism of the injury. He said he had been told that the mechanism was a combination of a tripping and twisting injury. He was asked to put out of his mind any suggestion of tripping and to accept a particular version of events. He was asked to assume that the piece of equipment the Applicant struck was a trolley as opposed to a tub. (T17) He was further asked to assume:
That it was a trolley that, as that name suggests, was on wheels and was something that you could push or pull with one hand, but the trolley was positioned slightly behind her and to the left of her, that she took a step to the left and in stepping to the left, bumped into the trolley such that there was contact with the left side of her body in the region of her rib cage.
89The doctor’s response was as follows:
Well, I guess if it rolled so readily, it should have presented very little resistance to touching against it, so I guess it would be hard to imagine how that sort of contact could cause a new injury or even exacerbate a pre-existing injury, if that is a correct description of the incident.
90I note that the doctor’s answer to this question was not qualified by reference to the Applicant’s apparent ability to work before the accident and apparently inability to do so after it. In other words I read the doctor’s evidence in answer to that question as being that, in his opinion, it is hard to imagine how the mechanism described could cause a new injury or exacerbate a pre-existing one despite the Applicant’s apparent ability to work before the accident and apparently inability to do so after it.
91In re-examination, Dr Le Leu said that the history he had taken from the Applicant "was of a more serious sort of collision with a large plastic bin and she immediately, she said, felt winded and felt a niggle in the lower back". He was asked whether he would change his opinion – meaning the opinion in his report - if that history was accepted. He said that he did not think he would do so. It is apparent from what he said in giving that answer that it was based upon an acceptance that the mechanism of the injury was the “more serious sort of collision” conveyed to him by the Applicant as part of the history given to him by her.
92Dr Wallace was called in the Respondent's case. He had prepared 2 written reports which were put into evidence as Exhibits R2 and R3. One report followed an examination on 3 August 2011 and the second an examination on 6 June 2012. In summary, the opinion of Dr Wallace is that the Applicant suffered a soft tissue injury to her left pelvis on 7 February 2011 which resolved shortly thereafter, and that her lumbar spinal condition is due to pre-existing multilevel degenerative lumbar spondylosis which is constitutional in origin and not work related.
93In his evidence-in-chief, Dr Wallace said that if there was a history of back pain as late as March 2010 then, in his opinion, the Applicant's lumbar spinal condition was due to a combination of the previous injury in 2001 plus pre-existing degenerative pathology to the lumbar spine but certainly not related to a work incident in February 2011.
94Under cross-examination, Dr Wallace was asked if he accepted that the Applicant had a degenerative spinal condition at the time he saw her. He agreed with that proposition. He agreed that he would accept that somebody with an underlying degenerative condition such as that suffered by the Applicant can have that condition aggravated or accelerated or made worse as a result of a structural injury.
95He also agreed that the Applicant had suffered some injury at work in February of 2011 but he did not accept that that injury resulted in back pain. (T23)
96Dr Wallace had formed the view, based on the history he had and the information before him that the back pain started sometime later and was blamed on the February 2011 incident erroneously. There were various exchanges with the doctor in cross-examination about the significance of whether the Applicant suffered back pain immediately post-incident or some time thereafter. I was left with some uncertainty about the opinion he was expressing about that. The doctor was asked whether, if the February 2011 work accident was the cause of the Applicant's back pain he would have expected that back pain to have been present immediately post-accident. He responded to that question, but without answering the point raised in it. His response was that his major concern with causation was the mechanism of the injury. He went on to say that he took a detailed history of exactly what happened and that the incident, and I infer he means as described to him by the Applicant, "is just not consistent with being the cause of a lumbar spinal injury". (T 25)
97I must say that I did not find the evidence of Dr Wallace particularly helpful in the context of what needed to be decided in this case. That is, at least in part, because the both the written report and the oral testimony of Dr Wallace appear to focus on a causal connection between the February 2011 accident and the underlying pathology of the Applicant’s condition rather than on such a connection between that accident and the possible exacerbation of symptoms of a pre-existing condition.
98By way of example both of his reports (R2 and R3) refer to her “condition” not being due to her February 2011 work accident. In using the expression “condition” in this context I did not understand him to mean only the symptoms presently being suffered by the Applicant. R2 also says that the mechanism of the injury she described was “not consistent with being the cause of lumbar spinal pathology”.
99By way of further example, in his oral testimony, Dr Wallace was asked if a history of back pain as late as March 2010 affected his diagnosis. He responded by saying that he would conclude that the Applicant’s lumbar spinal condition was due to a combination of her previous injury and pre-existing degenerative pathology. Again, in using the expression “condition” in this context, I did not understand him to mean only the symptoms presently being suffered by the Applicant.
100And later in response to a question asked by me, Dr Wallace repeated his view that the mechanism of the injury was such that it was not consistent with being the cause of a lumbar spinal injury or of lumbar spinal pathology.
101For the reasons I have already given, with reference to the decision in Caldipp, the doctor’s evidence would have been more useful had it been directed towards the likelihood or otherwise of the February 2011 accident having been a cause of the exacerbation of symptoms suffered by the Applicant rather than as a cause of the underlying pathology.
102I turn to consider the crucial question of causation.
103It is apparent that the Applicant did not disclose her history of ongoing pain to Dr Le Leu. Under cross-examination, Dr Le Leu at first expressed the view that, even with a history of ongoing pain, an incident like that in February 2011 could have exacerbated the Applicant’s pre-existing problem. Later in his cross-examination when asked to assume certain facts about the mechanism of the February 2011 injury, he conceded that it was hard to imagine how contact with a wheeled trolley presenting little resistance could cause a new injury or even exacerbate a pre-existing one.
104Clearly that evidence is not helpful to the Applicant on the question of causation.
105There is some other evidence which is, at least superficially, helpful to the Applicant by way of the report of Dr Coyne — Exhibit A16. It says: "the diagnosis appears to be aggravation of previously asymptomatic degenerative L4/5 anterolisthesis.” Dr Coyne goes on in his report to say this: "I would be hopeful that with appropriate conservative treatment sufficient improvement will occur for her to return to work as a laundry worker. Her mechanism of injury, a simple bump on her left buttock or left low back, would not be expected to result in permanent significant damage to her lumbar spine."
106Again, the issue for present purposes is not whether the injury resulted in permanent damage, but rather whether it was a cause of exacerbated and incapacitating symptoms. That is not something expressly addressed in the report, which was apparently prepared for the manager of her superannuation fund in connection with an income protection claim.
107I note that, whilst referring to the mechanism of injury in the passage just referred to as a “simple bump” the doctor had earlier in his report referred to the Applicant having given him a history of a collision with considerable violence.
108The overall tenor of Dr Coyne's report is, in any event, very guarded. His reference to the diagnosis "appearing to be" aggravation of the pre-existing condition is an example.
109Against the background of the guarded tenor of the report, the purpose for which it was prepared, the terms of the history the doctor was apparently given and the fact that he could not be made available for cross-examination, I attach no weight to it as evidence of a causal connection between the February 2011 accident and the symptoms of which the Applicant presently complains.
110It is not in contest that an accident occurred on 7 February 2011 causing some injury to the Applicant. I find that such an accident occurred. I find that the accident occurred when the Applicant, holding a bundle of pillow slips, took a step to her left to move around to the side of the machine she was working at. I find that, in the course of doing so, the left side of her torso came into contact with a stationary wheeled towel tub, at a point on her body which was about midriff level.
111I find that the Applicant consulted Dr Johnston on 10 February 2011, but that she did so for a purpose unrelated to the February 2011 work injury. I reject the Applicant’s evidence about the deficiencies of the doctor’s records. I find that she did not tell him about the accident at work or the injury suffered as a result of that accident, and that she did not show him any bruising on her body. I find that the Applicant did report the accident at work to Dr Johnston on 22 February 2011 — some 15 days after it occurred.
112I find that the towel trolley was an aluminium wheeled trolley which could be easily pushed with one hand and presented little resistance to movement. I find that the impact between the Applicant and the towel trolley involved the application of only slight force to the body of the Applicant and was not a serious collision. I find that it resulted in a localised low level soft tissue injury. My finding about that is reinforced by my conclusion that the Applicant saw Dr Johnson on 10 February 2011 for a purpose unrelated to her 7 February 2011 injury.
113I find that the Applicant suffered ongoing back and leg pain as a result of a pre-existing degenerative condition which was constitutional in origin, or was a result of the injury suffered by the Applicant in 2001 either alone or in combination with the injury suffered by the Applicant in 2006. I find that she suffered that ongoing pain from 2001 until at least March 2010, that such pain was suffered not infrequently and at varying levels including to a level rated as 9 on a scale of 1 to 10.
114Whilst due weight must be given to the consideration that the Applicant was apparently symptom-free for the 12 months leading up to the accident, the fact remains that she was suffering from a significant pre-existing degenerative condition. Dr Le Leu did in re-examination say that his original opinion would not change if the history was of a more serious sort of collision. However on the basis of my findings as to what occurred at the worksite on 7 February 2011, I conclude that the scenario put to Dr Le Leu in cross-examination about the mechanism of the accident was materially an accurate one. Dr Le Leu’s response was that it was hard to imagine how that sort of contact could cause a new injury or even exacerbate a pre-existing one.
115I find that the injury suffered on 7 February 2011 was a low level soft tissue injury to the left torso of the Applicant. I find that the soft tissue injury had resolved by the time she was examined by Dr Wallace on 15 August 2011.
116I am not satisfied that the February 2011 accident caused the Applicant’s lumbar spinal condition or the exacerbated and incapacitating symptoms of which she presently complains.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the Reasons for Decision of his Honour, Magistrate Morrison.
Associate: Gary Khoo
Date: 14 June 2013
Counsel for the Applicant: Mr D Richards
Solicitor for the Applicant: Romano Satsia Kordis Legal
Counsel for the Respondent: Mr A Muller
Solicitor for the Respondent: Astridge & Murray Lawyers
Date of hearing: 12, 13 February 2013 and 30 April 2013
Date of decision: 14 June 2013
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