O'Keefe v State of Victoria
[2022] VCC 449
•21 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-03769
| ANNE O’KEEFFE | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 March 2022 | |
DATE OF JUDGMENT: | 21 April 2022 | |
CASE MAY BE CITED AS: | O’Keefe v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 449 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the neck with radiation of pain into the right shoulder and arm – concurrent medical condition of peripheral neuropathy – prescription of significant painkilling medication for the concurrent medical condition – need for unravelling – adverse inference in failing to adduce medical evidence of the concurrent medical condition – modest medical treatment – whether the claimed impairment consequences are “serious” – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act (2013), s325
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Jones v Dunkel (1959) 101 CLR; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepicv One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: The plaintiff’s originating motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr L Allan | Minter Ellison |
HIS HONOUR:
Introduction
1The plaintiff is a sixty-six-year-old married woman who was born in April 1955. She qualified as a laboratory assistant, and after pursuing employment in different fields, she obtained employment with the defendant as a laboratory assistant at the Taylor’s Lakes Secondary College in 2008 (“the College”).
2The work tasks the plaintiff was required to perform at the College involved the setting up of the laboratory where teachers would then provide tuition to their students.[1] It was my impression from the content of the plaintiff’s first affidavit[2] and her oral evidence, that the work tasks were often physically arduous. The plaintiff referred to particular incidents which occurred which were more provocative in the causation of an injury to her neck:
· 26 March 2013, when she was moving a telescope weighing about 56 kilograms, resulting in her suffering a painful twinge across her right shoulder and neck;[3] and
· 25 November 2013, when she was again moving the telescope, resulting in her suffering a burning pain across her neck and right shoulder;[4] and
· 11 May 2015, when she was moving an extremely heavy trolley, resulting in her suffering immediate and sharp pain in her neck and right shoulder, with pain radiating between her right arm and the fingers of her right hand.[5]
[1] Transcript 43
[2] Plaintiff's Court Book (“PCB”) 5-14
[3] PCB 8
[4] PCB 9
[5] PCB 10-11
3The plaintiff submitted that the whole of the period of her employment is to be implicated in the causation of the injury to her neck, and that the incidents are not to be treated as discrete incidents. The defendant agreed.
4The plaintiff’s application was limited to the pain and suffering consequences of the impairment of the function of her neck. The defendant conceded that the plaintiff had suffered a compensable injury, however, there were a number of issues which it submitted militated against a finding that the plaintiff’s impairment consequences are “serious”.
5Mr A Dimsey of counsel appeared for the plaintiff, and Mr L Allan of counsel appeared for the defendant.
Executive summary
6For the reasons set out below, I am not satisfied that the consequences of the impairment of the function of the plaintiff’s neck are “serious”.
The Plaintiff’s medical treatment
7Following the occurrence of the incident of 26 March 2013, the plaintiff experienced persisting soreness in her neck and right shoulder. She first sought treatment from Ms Claire Freeman, physiotherapist, in about June 2013. In a report dated 21 May 2014,[6] Ms Freeman said that the plaintiff first attended her on 6 June 2013. This is the first occasion that the plaintiff sought treatment, but I think for the reasons which will become relevant later, the extent of the physical complaints made by her are important to note now and, in particular, her neck and right shoulder. She noted that the plaintiff had suffered:
“… major loss of cervical spine retraction and extension range of movement and moderate loss of flexion, left and right rotation and lateral flexion. All movements produced pain at end range of movement. There was marked stiffness on palpation of cervical and thoracic spine joints particularly on the left with tightness through cervical and right shoulder musculature.”
[6] PCB 69-72
8The plaintiff next sought treatment from Dr Alistair Macindoe, general practitioner, on 4 July 2013. In his report dated 30 August 2019,[7] he noted that the plaintiff reported neck pain, and he noted that she had a poor range of motion of her neck rotation to the right. He referred her to have a bone density test, which was normal. He noted that she had obtained treatment from Ms Freeman.
[7] PCB 65-66
9Ms Freeman subsequently provided the plaintiff with four episodes of physiotherapy treatment from 6 to 10 July 2013, noting a reduction in her pain, but her range of movement remained moderately restricted. She provided the plaintiff with a home exercise program which she was to undertake independently.
10The plaintiff returned to Ms Freeman and was treated by her on 8 November 2013. On that occasion, Ms Freeman noted that the plaintiff reported increased neck pain radiating into the right shoulder, with tightness to the posterior of her head, and nausea. Additionally, she noted that the plaintiff’s range of movement of her neck was significantly restricted. By that stage, she understood that the plaintiff had seen Dr Macindoe, who had referred her to have an MRI scan. She returned again for treatment on 23 January 2013 for her neck and mid back. Ms Freeman subsequently provided the plaintiff with five episodes of physiotherapy treatment from 23 January to 14 March 2014. The plaintiff reported a reduction in pain and some improvement of the range of movement, and increasing strength in her neck, however, Ms Freeman noted that the plaintiff reported exacerbations of pain when performing work tasks which required lifting and moving equipment.
11Dr Macindoe referred the plaintiff to have an MRI scan which was taken on 19 December 2013[8] which was followed by a second MRI scan taken on 15 January 2014.[9] An issue arose as to the reporting of the appearances on the first MRI scan. It was considered that the radiologist had misreported those appearances, and the second MRI scan was preferred as being accurate. In any event, whatever controversy was produced by the reporting by the radiologists was resolved by Mr Graeme Brazenor, neurosurgeon, to whom the plaintiff was referred by Dr Macindoe.
[8] PCB 61-62
[9] PCB 63
12Mr Brazenor saw the plaintiff on one occasion on 28 March 2014. He did not provide a conventional medico-legal report, but in a courtesy letter to Dr Macindoe dated 28 March 2014,[10] he preferred the second MRI scan as being accurate. He considered that it demonstrated chronic degenerative changes, most marked at C5-6, with other developmental abnormalities, and some lesser degenerative changes at C4-5 and C6-7. On examination, he found a very reduced range of movement in the plaintiff’s neck, and found that she was neurologically intact. He did not consider that surgery was warranted. He gave the plaintiff instructions about neck care, and considered that if she followed those instructions, surgery would be avoided.
[10] PCB's 96
13The plaintiff saw Dr Macindoe following the occurrence of the incident of 11 May 2015. As far as I am able to ascertain from the tendered material, the plaintiff did not have any treatment from about the time she saw Mr Brazenor until after the more recent incident occurred. The plaintiff reported that she felt the sudden onset of pain in her neck and across her right shoulder. On examination, Dr Macindoe found the range of the plaintiff’s neck movements were about 30 per cent of normal in all directions, but her shoulders were “alright”. Later, and on 12 June 2014, when she saw Dr Macindoe again, she reported pain in her right upper limb medially. On examination, Dr Macindoe found that her reflexes were normal and there was slight restriction of neck movements.
14At the time when Dr Macindoe composed his first report, he considered that the plaintiff had suffered an aggravation of long-standing cervical disc disease. He considered her prognosis to be guarded and that he expected she would have neck pain on and off for the rest of her life, and that there would be a slow deterioration over the balance of her life. In terms of treatment, he considered, in conformity with the advice apparently given by Mr Brazenor, that simple analgesics like paracetamol and nonsteroidal anti-inflammatories like Nurofen were all that was required to treat her neck pain.
15In his second report dated 7 December 2021,[11] Dr Macindoe essentially repeated the opinions he had previously expressed. Additionally, however, he noted that the plaintiff had made substantial changes to the way in which she undertook her work by avoiding carrying objects, leaning forward to push trolleys, and that otherwise she had an ergonomically suitable desk set up and was able to cope with her work. He also referred to her difficulties with driving, pushing a trolley in a supermarket, carrying baskets of washing, gardening, riding a pushbike, difficulty with sleep, and that extremes of movement of her neck were painful for her.
[11] PCB 67-68
16The incident of 11 May 2015 also saw the plaintiff return to Ms Freeman. She was provided with episodes of physiotherapy treatment over an eight-week period from 19 May 2015. Ms Freeman noted that the plaintiff suffered straining to her right upper shoulder and neck as a result of that incident. She also noted that the plaintiff reported that her main issue when walking was an experience of a pulling sensation in her right shoulder, and that at times, she experienced pain in her right forearm. Walking became a problem for the plaintiff, and she reported the same to Ms Freeman. Ms Freeman considered that what the plaintiff reported appeared to her to be nerve root compression and traction, and I assume that by traction she meant of the implicated nerve root.
17The plaintiff has not had any particular treatment for her neck or her right shoulder since sometime in 2015 when she saw Dr Macindoe and Ms Freeman. She said as much in her affidavits.[12] She said that she primarily manages her pain and symptoms through exercise and the use of medication. Her current use of medication comprises Lyrica, amitriptyline (also described as Endep) and Neurontin.[13] The plaintiff takes that medication at night. That medication was initially prescribed by Dr Courtney, pain specialist, and subsequent to his treatment of the plaintiff, Dr Macindoe has apparently continued to prescribe that medication for the plaintiff.[14] In her second affidavit, the plaintiff referred to using Nurofen as needed as well.[15]
[12] PCB 11 and 23, and by implication in her third affidavit sworn 29 March 2022 at PCB 25-26
[13] Transcript 11
[14] Transcript 12
[15] PCB 23
18Under cross-examination, the plaintiff was taken to the clinical records of Ms Freeman which she agreed disclosed that she had not seen Ms Freeman between 5 September 2016 and 4 October 2019.[16] There are other occasions when the plaintiff saw Ms Freeman for treatment, but it would appear that it was for lower back pain unrelated to her neck and right shoulder.[17] In her first affidavit, she said she continued attending Ms Freeman on a somewhat regular basis until November 2020, however, Ms Freeman’s clinical notes do not disclose any additional reference to treatment for neck pain. The clinical notes do disclose treatment for the plaintiff’s lower back. The plaintiff said that despite what the clinical notes disclose, Ms Freeman was still treating her for her neck and would make enquiries of the plaintiff about her neck.[18]
[16] Transcript 24-25. The clinical notes are at Defendant’s Court Book (“DCB”) 74-82
[17] DCB 82, which refers to treatment in 2016 for lower back condition
[18] Transcript 26-27
Peripheral neuropathy
19The plaintiff’s suffered an anaphylactic reaction due to exposure to iodine when she attended a professional development course which I assume occurred in the context of her employment with the defendant. Dr Macindoe recorded that she subsequently attended him on 13 February 2017. She reported numbness in her left leg in the lateral edge of her left foot. On examination, he found that she had a reduced left ankle jerk, and the sensation over her left foot was reduced.[19] Dr Macindoe considered that the plaintiff had developed peripheral neuropathy. He considered that it was related to her exposure to iodine and, importantly, he considered that the consequences of that exposure would “remain unchanged in the years to come”.
[19]Dr Macindoe also found other deficits when he examined the plaintiff, however, the defendant disavowed any reliance on them as being of any importance to this application
20Dr Macindoe referred the plaintiff to Dr Peter Courtney, anaesthetist and pain management specialist, in May 2017. She was later referred to Dr Christopher French, neurologist by Dr Courtney. The plaintiff agreed that it was Dr Courtney who prescribed her Lyrica, amitriptyline and Endep to treat the peripheral neuropathy.[20] She agreed that she saw Dr French for investigation of the peripheral neuropathy. She said that she was referred to Dr French for him to perform “some nerve response tests”. She understood that the results of the tests were that her nervous system was functioning, but that there was some muscular issue which might have been related to a minor branch of a nerve.[21]
[20] Transcript 32-33
[21] Transcript 34-35
21The plaintiff agreed that she has continued to experience problems with the peripheral neuropathy, and has continued to receive prescriptions from Dr Macindoe of Lyrica, amitriptyline and Endep.[22] The plaintiff agreed that if she had not suffered the neck injury, she would be taking that very same medication for treatment of the peripheral neuropathy.[23]
[22] Transcript 35
[23] Transcript 36
22In her first affidavit, the plaintiff said that she continues to suffer from peripheral neuropathy, particularly affecting her left leg and foot. She added that she continues to receive treatment for that medical condition. Nowhere in any of the plaintiff’s three affidavits does she describe treatment by Dr Courtney and Dr French. The reader of her first affidavit would be forgiven for believing that medication prescribed by Dr Courtney has been prescribed solely to treat her neck injury. The report of Dr Macindoe dated 19 June 2019 demonstrates in unequivocal terms that the plaintiff was prescribed Lyrica, amitriptyline and Endep to treat the peripheral neuropathy. She may well be obtaining a secondary benefit from the use of that medication, resulting in a reduction of pain in her neck, but the prescription of it has a primary aim to treat the peripheral neuropathy.
23The defendant submitted that the plaintiff has failed to discharge the onus borne by her referred to in Peak Engineering Pty Ltd & Victorian WorkCover Authority v McKenzie.[24] Maxwell P, with whom the other members of the Court of Appeal agreed, held that where there are two different injuries concurrently producing pain and suffering consequences, that it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of trial. Furthermore, that is an essential precondition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The defendant submitted that the plaintiff has not done so. I agree. The plaintiff has not deposed to what are the impairment consequences of the peripheral neuropathy. What is disclosed is that it is a medical condition of such significance that it warrants the prescription of Lyrica, amitriptyline and Endep which are types of medication usually reserved for the treatment of significant medical conditions.
[24] [2014] VSCA 67
24The defendant also submitted that I should draw an adverse inference against the plaintiff based upon Jones v Dunkel.[25] I think it is unnecessary to resort to the principle for which it stands, because I have concluded that the evidence demonstrates that the prescription of Lyrica, amitriptyline and Endep by Dr Courtney was for treatment of peripheral neuropathy; however, if I am wrong about that, then I am satisfied that Dr Courtney and Dr French are in the camp of the plaintiff. The failure to call them is unexplained; however, that unexplained failure does not permit any gap in the evidence to be filled for the benefit of the defendant. It is impermissible to speculate what they might have said had they provided medical reports or been called to give evidence. It is permissible to infer that their evidence would not have helped the plaintiff’s case. In circumstances where the plaintiff has failed to obtain medical reports from them, or call them to give evidence, I can more readily accept the evidence from Dr Macindoe that the prescription of Lyrica, amitriptyline and Endep was directed to the treatment of peripheral neuropathy, and not the injury to the plaintiff’s neck. I think it is fair in the circumstances to draw that adverse inference.
[25](1959) 101 CLR 298 per Dixon CJ at 308, and Windeyer J at 312 and 320-321, and Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 per Heydon, Crennan and Bell JJ at paragraphs [63]-[64]
25The plaintiff submitted that there is sufficient in the medical evidence to demonstrate that some of the medical practitioners knew of the peripheral neuropathy, or at least had it drawn to their attention, and none considered that it interfered with their capacity to diagnose that the plaintiff had suffered an injury to her neck, with radiation of pain through her right shoulder and into her arm, with a loss of function of her arm. I will deal with this submission more thoroughly in the course of summarising the medical evidence.
The medical evidence
26I think I have summarised the evidence of Ms Freeman, Dr Macindoe and Mr Brazenor sufficiently, but I will return to some of their evidence later in the context of other submissions made by the defendant in which it referred to other deficiencies in the plaintiff’s evidence.
27The plaintiff was examined by Professor Richard Bittar, neurosurgeon, on 3 December 2021 via Telehealth. He was provided with a letter of instruction dated 25 November 2021 in which the solicitor for the plaintiff informed him, among other things, that she suffered from peripheral neuropathy, particularly affecting her left leg and foot. There was no reference to treatment provided by Dr Courtney or Dr French. Furthermore, it disclosed that the plaintiff had been prescribed gabapentin (Neurontin), Endep, Lyrica and Nurofen. He was not informed that the medication, with the exception of Nurofen, had been prescribed to treat peripheral neuropathy.
28Professor Bittar obtained a history from the plaintiff that she was experiencing constant right-sided neck pain which varied between being a sharp burning and aching pain with an average severity of 6 out of 10 and a maximum severity of 8 out of 10. Additionally, that the following exacerbated her neck pain:
· sudden or repetitive neck movements
· pushing or pulling
· maintaining her neck in a fixed position for prolonged periods of time
· repetitive arm movements
· using her arms above shoulder height; and
· with neck flexion or extension.
29In her work context, she told him that using a computer for 10 minutes, sitting in one position for 30 minutes or driving for 45 minutes will worsen her neck pain. He also obtained a history of right brachialgia, which she also described as arm pain. It occurred three times per day, generally lasting one to two hours. The pain varied between burning, gnawing and aching. It radiated from her right trapezius into her shoulder and proximal arm, and generally to the elbow. She also experienced numbness and pins and needles in her right hand. She described the severity of her arm pain as similar to the severity of her neck pain with similar exacerbating factors.
30Professor Bittar noted that undertaking an examination through Telehealth was difficult, however, with the aid of an examination, and an inspection of the MRI scans, he diagnosed that the plaintiff suffered an aggravation of cervical spondylosis, causing neck pain and right brachialgia. He considered that she was fit to undertake her work as a laboratory assistant with an understanding that it was work of a relatively light physical nature which she had been able to maintain full time. His prognosis was for her condition to remain stable, and he considered that she required further treatment by referral for further radiological investigations and referral to a pain specialist and a neurosurgeon.
31The plaintiff also relied on the reports of Mr Roy Carey, orthopaedic surgeon, who examined her on 4 February 2021 to undertake an impairment assessment on referral from an insurance agent. He provided a report dated 4 February 2021,[26] and a short supplementary report dated 23 February 2021.[27] Mr Carey obtained a history from the plaintiff that she continued to have neck pain which varied in intensity according to posture and activity. Additionally, he obtained a history that she suffered problems with her right arm from the shoulder down the arm to the hand, although, he noted that her fingers now seem to be unaffected. He also noted that she was conscious of weakness in both arms. After examining the plaintiff and inspecting the MRI scans, Mr Carey diagnosed that the plaintiff suffered an aggravation of pre-existing cervical spondylosis, producing neck pain and right brachialgia. The balance of his opinion is less important, because it was devoted to an impairment assessment.
[26] PCB 118-123
[27] PCB 126
32The last relevant medical practitioner to examine the plaintiff was Mr Michael Dooley, orthopaedic surgeon, who examined her on 9 February 2022. He provided a report dated 11 March 2022.[28] Mr Dooley obtained a history from the plaintiff that she had ongoing pain and stiffness in her neck. She had the following difficulties:
· lifting the washing basket
· pushing trolleys
· driving
· difficulty with activities over shoulder height
· sleep; and
· that her husband carried out most of the heavy household chores.
[28] DCB 20-23
33He understood that she was working full time as a laboratory assistant. After examining the plaintiff and reviewing the reports of the radiologists referred to in the letter of instruction from the solicitors for the defendant dated 4 February 2022, Mr Dooley diagnosed that the plaintiff had suffered a soft tissue injury to her neck, with aggravation of underlying degenerative disc changes. Although he referred to there being no objective neurological deficit affecting the plaintiff’s upper limbs and that she had a full range of motion of both shoulders, he did not diagnose right brachialgia. He had been provided with the reports of Professor Bittar and Mr Carey.
34Both Professor Bittar and Mr Dooley were informed that the plaintiff was diagnosed with peripheral neuropathy in the letters of instruction, however, neither undertook any examination of the plaintiff relevant to peripheral neuropathy nor made any reference to it in the body of their reports. Either they did not read the letters of instruction or considered that the peripheral neuropathy was of no account or simply ignored the reference to it and concentrated on the injury to the plaintiff’s neck. This is altogether very unsatisfactory, because the plaintiff submitted that I should assume that they knew of the peripheral neuropathy, took it into account and considered it to be of no relevance to the history they obtained of the plaintiff’s complaints, and their diagnosis and prognosis.
The Plaintiff’s consequences
35The plaintiff continues to work as a laboratory assistant. Despite what she says about the disabling impact of the impairment of the function of her neck, right shoulder and arm, she has not been absent from her work for even one day. The only absences appear to have been due to the exposure to iodine.[29] The plaintiff has made alterations to her work by having her staff undertake the heavy work, for example moving the telescope.[30] Otherwise, the impression I am left with is that the plaintiff works a full day and meets all of the requirements of her job description. Additionally, the plaintiff described being on her feet to a significant extent during the day, which she has calculated to be 12,000 steps per day, calculated through a device known as a Fitbit.[31]
[29] Transcript 18
[30] Transcript 50
[31] Transcript 46
36In Sumbul v Melbourne All Toya Wreckers Pty Ltd,[32] Chernov JA observed that it would ordinarily be difficult to conclude that pain and suffering consequences could be considered to be at least very considerable where it was demonstrated that the injured person was physically able to return to work; however, in subsequent decisions of the Court of Appeal, it was considered that Sumbul is not authority for the proposition that a return to work is somehow determinative against an injured person on the issue of pain and suffering consequences. In Stijepic v One Force Group Aust Pty Ltd & WorkCover Authority,[33] Ashley JA and Beach AJA considered that the most that could be said, and what can be taken from what Chernov JA said, is that if an injured person successfully returns to work, it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are “serious”. They added that it is the whole of the evidence that must be considered.[34]
[32] [2006] VSCA 292 ("Sumbul”)
[33] (2009] VSCA 181
[34] paragraph [47]
37The plaintiff described the impairment consequences in her three affidavits. The following is a summary:
· Constant neck pain which varies, depending on the activity in which the plaintiff is involved, with a worsening in the afternoon after she has completed work.
· A struggle to reach for things above head height, for example reaching up into a pantry, wardrobe, cupboard and shelving and putting up and taking down washing off the line and lifting anything above shoulder height.
· Difficulty carrying anything above 3 kilograms, which limits her capacity to lift and carry groceries, washing and domestic rubbish.
· Difficulty performing repetitive manual movements, such as ironing, vacuuming, sweeping and mopping. She obtains assistance from her husband with a lot of the housework.
· Difficulty driving and, in particular, reversing the car when head checks are required, and travelling more than 45 minutes as a passenger.
· The need for a special cushion to support her back and neck when sitting on the couch.
· Pushing shopping trolleys, and trolleys at the College.
· Experience of occasional numbness in her right shoulder, extending down to her right hand, with weakness in her right arm.
38Additionally, the plaintiff said that in the eleven days preceding the date of trial, she weaned herself off Lyrica and amitriptyline. The result of doing that was the return of considerable pain, and contextually, I understood that to mean considerable pain in her neck.[35] She had taken two Nurofen on the day of trial but did not describe whether that medication ameliorated any of the pain that she has more recently experienced.
[35] Transcript 11
39Under cross-examination, the plaintiff agreed that she has had very little medical treatment. She self manages the problems she experiences with her neck, right shoulder and arm through exercises shown to her by Ms Freeman, and through the use of the medication prescribed for treatment of the peripheral neuropathy, and, additionally, the use of Nurofen.
Disposition
40I will now draw together the threads of the summary of the evidence, my analysis of it and the competing submissions of the plaintiff and the defendant.
41Firstly, I consider that the plaintiff is both a creditworthy and a mostly reliable witness. I do not think that where I have not accepted aspects of what she deposed to in her affidavits, that it impinges upon her creditworthiness, but perhaps her reliability.
42Secondly, I accept the plaintiff’s evidence that she suffered an injury to her neck and, in any event, the defendant concedes that the plaintiff suffered that injury and that it is a compensable injury; however, the defendant submitted that there is no sound evidence to also conclude that the radiating pain through her right shoulder and into her arm are causally related to the injury to her neck.
43The defendant pointed to the second MRI scan which does not demonstrate any impingement of any nerve structure emanating from the neck and finding its distribution through the right shoulder and arm, however, there are a number of aspects of the evidence which satisfy me that I should accept the plaintiff’s evidence that the radiating pain she experiences through her right shoulder and into her right arm are causally related to the injury to her neck. There is the evidence of the plaintiff, which I accept on this issue. In my summary of the evidence, there are references in the reports of Ms Freeman going as far back as 2013, and Dr Macindoe at least by about mid 2015. Both Professor Bittar and Mr Carey considered that the plaintiff’s complaints of right shoulder pain were deserving of a diagnosis of brachialgia. Their diagnosis appears to me to be based upon similar complaints that the plaintiff made to Ms Freeman and Dr Macindoe. The fact that Mr Brazenor and Mr Dooley made no comment about the plaintiff’s right shoulder or made a similar diagnosis of brachialgia, needs to be weighed into consideration, but the absence of their reference to it cannot overwhelm what I consider to be a body of persuasive medical evidence on this issue.
44Thirdly, I am not satisfied that the prescription of Lyrica, amitriptyline and Neurontin were initially prescribed only for the treatment of neck pain. I am satisfied, both by primary evidence and by inferential reasoning, that it was prescribed by Dr Courtney to treat a condition he diagnosed of peripheral neuropathy. I am, however, satisfied that there is a secondary benefit to the plaintiff. That medication appears to ameliorate some of the pain the plaintiff experiences in her neck. I am satisfied that Dr Macindoe and, in particular, Mr Brazenor, considered that the more appropriate medication to treat the plaintiff’s neck pain were analgesics like paracetamol and nonsteroidal anti-inflammatory medication such as Nurofen. That was certainly the opinion of Dr Macindoe when he provided his reports dated 30 August 2019[36] and 7 December 2021.[37]
[36] PCB 65-66
[37] PCB 67-68
45Fourthly, I am not satisfied that the impairment consequences contended for by the plaintiff meet the statutory test. I accept that the plaintiff experiences pain in her neck and radiating pain in her right shoulder and arm, however, she is able to engage in full-time work and a measure of her pre-injury activities to the extent that I do not accept that they are significant or marked, and I certainly do not accept that they are at least very considerable. It is not the case that the plaintiff cannot perform tasks above head height, carry objects, perform repetitive and manual movements, drive or ride in a car, sit comfortably, push trolleys and sleep. What she has said amounts to difficulty in engaging in those activities. Furthermore, and additionally, the fact that the plaintiff is able to work full time, with restrictions on the heavier nature of that work, and has had very little medical treatment, are also telling against a conclusion that her consequences are at least very considerable.
46In the circumstances, I am not satisfied that the impairment of the function of the plaintiff’s neck, right shoulder and arm is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.
47The plaintiff’s originating motion is dismissed.
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