Pilcher v Bendigo Health Care Group
[2012] VCC 1614
•14 December 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-11-00568
| DEBRA PILCHER | Plaintiff |
| v | |
| BENDIGO HEALTH CARE GROUP | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 September 2012 | |
DATE OF JUDGMENT: | 14 December 2012 | |
CASE MAY BE CITED AS: | Pilcher v Bendigo Health Care Group | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1614 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – neck injury – pain and suffering – loss of earning capacity.
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted for pain and suffering damages and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Maurice Blackburn |
| For the Defendant | Mr P B Jens | Hall & Wilcox |
HIS HONOUR:
Introduction
1 The plaintiff in this action seeks leave to commence common law proceedings against the defendant, her former employer, Bendigo Health Care Group, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.
2 The application refers to an injury to the plaintiff’s neck which she claimed she sustained on or about 8 March 2006 when, in the course of her employment, she exited a room, and the floor outside had been cleaned and was wet, causing her to slip and fall heavily, basically on her right side.
3 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of her employment as alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of this compensable injury. Paragraph (a) recites that “serious injury” means “permanent serious impairment or loss of a body function”.
4 In his opening, counsel for the defendant indicated that the first issue before the Court was whether the condition from which the plaintiff was presently suffering, being cervical dystonia, was causally related to the compensable injury. Secondly, it was put that, at best, the plaintiff was suffering from a type of Chronic Pain Syndrome and it was not clear, on the evidence, what was physical and what was psychological in the plaintiff’s presentation. Thirdly, the defendant contended that the plaintiff could not satisfy the Act insofar as the requirements of the narrative (s134AB(38)(b) and (c)) and of the loss of economic capacity amounting to 40 per cent or more (s134AB(38)(e)). Finally, it was contended that if the plaintiff was to establish the relevant loss of economic capacity that, on the evidence, she would have to show that she was totally incapacitated on a permanent basis.
5 The plaintiff, on the other hand, argues that the impairment to the neck as at the date of hearing is “serious”, both in respect of economic loss and pain and suffering consequences, and she has proved that the injury, which occurred on the relevant date, has either caused directly the present condition of cervical dystonia or has been a significant contributing factor to that injury, the resulting permanent serious impairment or loss of a body function, being the neck, and to the consequences of such injury.
6 Viva voce evidence was adduced from the plaintiff and two treating doctors, being Dr David Murphy, Clinical Director of Rehabilitation at St Vincent’s Hospital in Melbourne, and her general practitioner, Dr Dennis Anthony O’Connor. All three witnesses were cross-examined. Counsel for both parties then tendered various medical reports and allied medical professional reports.
7 At the conclusion of all the evidence, counsel for the defendant, in a fair and pragmatic manner, significantly narrowed the issues for the Court to decide. He stated:
“We’ve heard the viva voce evidence and how it’s gone and we’ve listened carefully to your Honour’s discussion indeed, with Dr Murphy at the close of yesterday and the discussion as to the materials from Mr Dooley, as opposed to the opinion of Dr Murphy. So we take that into account and say to your Honour that we would concede the issue of pain and suffering, and then in relation to loss of earnings there is, as indicated at the start of the hearing, it’s not an issue about hours.
If your Honour found that there was any incapacity, my learned friend concedes that the earning capacity argument would fail. If your Honour found that it was to be the opposite the plaintiff obviously succeeds.”[1]
[1]T119, L31 – T120, L11
8 The evidence relating to the issue that was left for decision, was to the effect, that following the injury, the plaintiff returned to work on light duties until 2009. The defendant’s argument is that the work stopped at that point because she was dismissed from employment at a time when she wanted to continue in the work and was able to do so. The plaintiff’s case was that she was struggling with the light duties work in 2009 and she was in a position where she would have to shortly give it up in any event.
9 In essence, counsel for the defendant argued that all medical practitioners had certified the plaintiff as fit for suitable work up until March 2010. It was contended by counsel that after that point in time the two treating doctors referred to above had changed their minds, to the effect, that the plaintiff was now totally and permanently incapacitated for employment. Counsel further submitted that neither of the doctors had adequately explained why it was that the condition was now worse than it was in 2009 or 2010. In essence, defence counsel submitted that neither treating medico-legal examiner gave a sufficiently persuasive answer to the question “What has changed?”
The Evidence
10 The defendant tendered a medical report of Mr Kenneth Brearley, general surgeon, dated 17 April 2007. At that time, the plaintiff gave a history of having physiotherapy twice a week. She continued to take Valium at night, and Panadol every eight hours or so. She was also taking Fenac, an anti-inflammatory, three times daily. Mr Brearley’s diagnosis was a probable cervical-disc injury with acute prolapse or possibly a facet-joint injury. It was causing severe muscle spasm and resultant most severe neck stiffness and pain. The condition had not resolved and was still causing her incapacity for work and the need for treatment.
11 The defendant then had the plaintiff seen by Dr Mary Wyatt, occupational physician, who reported on 11 November 2007.[2] At that time, Dr Wyatt took a history that the plaintiff was doing very light tasks in the workplace which were not physically demanding on the neck. Treatment included ongoing physiotherapy and hydrotherapy, as well as seeing the occupational therapist at the rehabilitation centre. She had been placed on Norspan patches and had been advised to gradually wean off the use of her soft collar. Dr Wyatt reported that a copy of the MRI scan indicated foraminal stenosis at C3-4 and C5-6 with some suggestion of impingement on the exiting C5 nerve root. Dr Wyatt considered the plaintiff had chronic neck pain with referred pain in the right upper arm, and it was reasonable to accept that there was some continued work contribution to the condition. She considered the employment to be a contributing factor to the continued symptoms and to materially contribute to the incapacity for work. Dr Wyatt considered that regular analgesics, a focus on rehabilitation and return to work, and an understanding of her condition, were important aspects of her overall management.
[2]Exhibit 3
12 Next the plaintiff was seen for the defendant by Mr Peter Kudelka, orthopaedic surgeon, and he reported on 29 April 2008.[3] He took a history that the plaintiff continued to be treated by Norspan patches, Endep, Valium and Digesic, and neck pain and stiffness persisted. On examination on 24 April 2008, the cervical spine had considerable restriction of movement, and he thought the muscles in her right arm were weaker than on the left. Mr Kudelka noted that an MRI scan of her cervical spine dated 16 May 2007 showed degenerative changes in the mid-cervical region, which he considered were significantly aggravated in the fall of 8 March 2006 and were responsible for her symptoms. His diagnosis at the time was work-aggravated cervical spondylitis. Her management plan at that time was to be referred to a neurosurgeon for consideration of active treatment, as conservative management so far had failed to relieve her symptoms to a significant extent. He considered that the plaintiff, at that point, had a reduced capacity for work but was not fit for her pre-injury general nursing duties, nor would she become fit for those duties in the foreseeable future. At the time she was working in administrative duties, and he thought she could continue in this regard and increase her hours towards a full-time program. However, he doubted whether a return to work plan would be of any value until she had been properly assessed by a neurosurgeon.
[3]Exhibit 4
13 The defendant then had the plaintiff assessed by Dr Michael Dooley, orthopaedic surgeon, who reported on 23 January 2012.[4] He considered that the plaintiff had aggravated degenerative disc disease of the cervical spine in the work-related episode. He could not explain her ongoing symptoms on the basis of organic injury only, and he thought that she had developed a Chronic Pain Syndrome and that the pain was out of proportion to the physical injury or the degree of underlying degenerative disc disease. He considered that the majority of the ongoing symptoms related to a psychological reaction to injury and/or pain. He did not believe that the plaintiff was deliberately exaggerating her symptoms. He noted the treating physician’s opinion that she was suffering from cervical dystonia, and he disagreed with the diagnosis. He considered that dystonia refers to involuntary muscle movements secondary to a central nervous system condition. He did not believe that she had such a condition. He noted that the plaintiff was being treated “by a very experienced rehabilitation physician in Bendigo” (Dr Murphy) and he was sure that both he and the other treating practitioners were doing “the best job possible”. From an orthopaedic viewpoint alone, he thought she would be capable of carrying out light physical work and clerical duties. In a supplementary report dated 13 February 2012 he thought that she could work in a wide variety of light duties. However, he added the qualification:
“Her ability to work in administration and reception areas would depend on the work involved. Within the various administrative job descriptions, it is stated that the person required must be able to work in a complex busy environment. I believe that Mrs Pilcher would struggle in this regard. She would struggle with some aspects of filing, storage etc.”
[4]Exhibit 5
14 The plaintiff, herself, gave evidence that she returned to work in May 2007 doing clerical work. She started doing eight hours per week, increased to twelve hours, and ultimately worked up to fifteen hours in 2009. When asked how she was coping, she replied “Not good at all”.[5] When asked why she was not coping, she replied “Because my neck was getting worse. It just continued to get worse and worse and worse.”[6] She said that she had sought employment from four retail shops since ceasing work in order to improve her self-esteem. She said that if she had obtained employment she would have explained her situation, and if she had been unable to do it she would have said so.[7] When asked realistically whether she would have been able to perform any of the retail jobs, she replied “No”.[8]
[5]T62, L15
[6]T62, L17
[7]T62, L20-28
[8]T62, L1
15 The treating rehabilitation physician, Dr David Murphy, was called and cross-examined. He had been treating the plaintiff at the St John of God Hospital, Bendigo. He was a Fellow of the Australasian Faculty of Rehabilitation Medicine and he was currently the Clinical Director of Rehabilitation at St Vincent’s Hospital in Melbourne. He had a particular interest in pain management and work-injury management, and had been practising in rehabilitation medicine for twenty-one years. His diagnosis for the plaintiff was one of cervical dystonia, which he described as abnormal muscle movement which is persistent over a period of time. It can cause abnormal posturing on the part of the body that is involved, and it can cause pain and discomfort.[9]
[9]T65, L14-19
16 Dr Murphy’s opinion was that the fall at work had caused some trauma to the structures of the cervical spine, in particular some of the soft tissues. This in turn had set up secondary motor patterning, which is recognised as a consequence of trauma, and hence causes the ongoing dystonia.[10]
[10]T65, L29 – T66, L2
17 Dr Murphy had been treating the plaintiff since 2007 and was still giving her a Botox injection on a regular basis, every three months. He was also prescribing trigger-point injections performed by the general practitioner.
18 Dr Murphy conceded that in 2007, he considered that she might be able to work twenty hours per week, which was subsequently reduced to fifteen hours. In his latest report, after seeing her over a number of years, he thought she could not return to any nursing work, and as at the date of hearing, he thought that she was totally incapacitated.[11] He agreed with the plaintiff’s own evidence that she would be unable to perform any retail work because realistically she could not sit or stand for any periods of time, and she was in constant pain, and as a result, her concentration had gone.[12]
[11]T66, L8-19
[12]T66, L20-26
19 When asked in cross-examination why, in March 2010, he stated she was not able to work more than fifteen hours per week, and why he did not say she just cannot work, he answered “Because as a rehabilitation physician to say somebody is absolutely totally unable to work is quite a negative thing”.[13] Further, he stated that having been of the opinion two years ago that there may have been a possibility she would be able to return to work, he now thought that realistically she was not able to work. He thought the plaintiff would work if she could, and it was two years since that time. He said that her condition had not changed, and in fact it is probably at times worse, and he thought it was quite clear that the lady [the plaintiff] was not capable of working.[14]
[13]T69, L8-10
[14]T69, L16-24
20 In cross-examination, Dr Murphy agreed that the plaintiff, by definition, really had a Chronic Pain Syndrome, by which he meant pain which lasted for more than six months.[15] He disagreed that it was a psychological diagnosis, but that it was really a collection of problems, being a combination of physical, functional and psycho-social factors.[16]
[15]T71, L7-13
[16]T72, L4-13
21 When he was asked to justify why he considered her to be totally incapacitated, he stated:
“I was very closely associated with this lady’s return to work program, having very close liaison with her rehabilitation team and a return-to-work offer. Also her employers and her direct employers. This lady would not have worked fifteen hours a week if it was not for an incredibly supportive team to be able to [do] that and also to allow lots of latitudes that wouldn’t have been allowed in an employer. Mrs Pilcher on paper was working fifteen hours a week, but in reality she would be doing a few hours here and there and taking a lot of time off during her hours to attend to her rehabilitation program and do hydrotherapy and do everything trying to improve her situation.”[17]
[17]T73, L1-13
22 When cross-examined upon Mr Michael Dooley’s report, Dr Murphy agreed the plaintiff had naturally occurring age-related degenerative disc disease of the cervical spine.[18] He also thought it was reasonable that Mr Dooley should consider that the plaintiff had aggravated degenerative disc disease of the cervical spine in the work-related episode. When asked about Mr Dooley’s opinion that the majority of Mrs Pilcher’s ongoing symptoms related to a psychological reaction to injury, he considered that an overall analysis was not correct based on a single episode of examination.[19] He agreed with the proposition that once a Chronic Pain Syndrome becomes established, it was difficult to reverse.[20]
[18]T74, L19-21
[19]T75, L10-27
[20]T76, L3-5
23 When asked whether this situation could be a dystonia which had developed spontaneously, he replied that it was possible, but:
“It’s my opinion that this particular problem – and I have observed the plaintiff and I have been closely following this lady’s course of events and been – having reviewed her situation on many occasions and looked through the various possibilities of what has occurred, I am quite convinced that the fall and the development of pain in the region has led to the development of the muscle movement disorder.”[21]
[21]T76, L19-26
24 When specifically asked about Mr Dooley’s opinion that dystonia refers to involuntary muscle movements secondary to a central nervous system condition, Dr Murphy replied:
“He’s not up with things, that cervical dystonia can occur in the setting of trauma and pain, and it is recognised that it is a phenomenon that occurs in this situation.”[22]
[22]T79, L18-24
25 Mr Murphy later stated that the plaintiff had improved in terms of the range of movement and in the pain in the neck, but there had been no improvement in her for work capacity.[23] He further stated that there was improvement in her condition after the injections, and it then returned to a baseline after a period of time.[24] When it was put to him that if an employer could be found, such as existed in 2009, then maybe his opinion of 2010 would apply, he replied:
“That’s a big if, and I think, given the events that are factored in two years later, there is no prospect of any employment, despite Mrs Pilcher’s ethos, work ethic, which is very strong, and perhaps kept her going at work longer than many other people. I think that the prospect for her return to work is not there at all. I don’t think that she is capable now of any form of work. She has worked hard to get there, tried to get there, but unfortunately it has not eventuated.”[25]
[23]T89, L3-5
[24]T89, L8-10
[25]T89, L23-31
26 When asked what was stopping her from returning to work, he replied that it was mood difficulties, difficulty with concentration and attention to doing her work because of pain. The pain was coming from her neck and from her shoulder, and it was being caused by soft-tissue cervical pain from what he called myofascial trigger points and the secondary cervical dystonia.[26]
[26]T92, L11-20
27 In being asked again to comment on Mr Dooley’s opinion that the work fall had aggravated degenerative disc disease of the cervical spine, he replied:
“I agree that that was probably the initial event that occurred, that clearly Mrs Pilcher had some established degenerative changes in the neck, there has been an acute injury which has made or caused potential causes of problems, in terms of degenerative discs and joints in the neck which have been asymptomatic to become painful, that triggers off then a cycle of muscle spasm and pain and the eventual development of the motor abnormality which is dystonia. The manifestation of the condition is the holding of the head at an angle of 45 degrees.”[27]
[27]T97, L1-12
28 Finally, when asked to disregard any psychological component of her presentation, would she be able to physically do some work, he replied:
“Given the overall situation where things have gone, I don’t think that this lady will be capable of work now.”[28]
[28]T98, L29-31
29 The treating general practitioner, Dr O’Connor, was subjected to sustained cross-examination in a similar vein and was also of the view that the plaintiff was totally incapacitated. When asked why she was not fit for the same modified duties as earlier, he replied:
“Well, the attempt at returning her to the workforce at the earliest possible stage was made with a lot of effort in an attempt to actually see if her symptoms would resolve over that period of time and that she would then be able to maintain a modified duties capacity. The thing that has changed since that time is the fact that her symptoms are still persistent, and she was unable to manage with the modified duties that she attempted to do, and so the chronicity of her problems and then the time away from work means that her capacity to return to the workforce is significantly reduced and in my opinion she will not be able to return.”[29]
[29]T111, L1 9– T112, L1
30 It was suggested to him that if she had not been dismissed from the job she would still be at work, and this was refuted. He said that her capacity to work is the thing that is worse, and the thing that had changed was the chronicity of her problem and the complexity of her condition.[30]
[30]T113, L9-16
Conclusion
31 Both Dr Murphy and Dr O’Connor have had the advantage of treating the plaintiff over a number of years, and both were subjected to determined and sustained cross-examination. I accept the expertise of Dr Murphy in the field of rehabilitation medicine, and particularly with reference to cervical dystonia, and, having seen the plaintiff cross-examined as well, I believe that she is not fit for any job in the workforce because of the ongoing pain and the consequences that I have referred to above.
32 Leave will be granted to the plaintiff to issue proceedings for economic loss, and in view of the concession already reasonably made by counsel, leave will also be granted to issue proceedings for pain and suffering damages. I will hear the parties as to costs orders.
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