Roffey v VWA
[2018] VCC 925
•27 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY
Case No. CI-18-00241
| DEBORAH MAXINE ROFFEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20,21,22,25,26 June 2018 | |
DATE OF JUTGMENT: | 27 June 2018 | |
CASE MAY BE CITED AS: | Roffey v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 925 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury- low back –pain and suffering
Legislation Cited: Accident Compensation Act 1985
Cases Cited:
Judgment: Application dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Ms K Bradey | Maurice Blackburn |
| For the Defendant | Mr D Myers | Lander and Rogers |
HIS HONOUR:
1 Leave is sought for pain and suffering only in relation to an impairment of the spine being a paragraph (a) low back injury. The plaintiff slipped and fell on a wet kitchen floor on 4 April 2013 while employed by the Country Fire Authority (CFA). She is a 57 year old woman who worked in a telephone call role.
2 Over the years before and after the fall she has suffered from a large number of other physical health problems. These include shoulder symptoms, osteoporosis, fractured ribs, Behcet’s syndrome, haemorrhoids with rectal bleeding, plantar fasciitis as well as problems in her elbows and knees. Breathing difficulties with chest region symptoms led her to need hospital treatment also in 2016. Many have required specialist attention.
3 That list is not exhaustive of the various other non-compensable conditions that have required many attendances on her family practice, Mordialloc Medical Centre. Dr Ashraf Farah has been her doctor there and still is. Sitting daily in this jurisdiction it has to be said these records are about as extensive as is ever seen. They encompass some twenty nine typed pages of computer records.[1] His Progress Notes or clinical records have to be viewed in the context of other additional hospital and specialist documents about these other conditions.
[1]Defendant’s Court Book(DCB)64-92
4 What also has to be kept in mind is that Dr Farah apparently does not deal with WorkCover matters. Accordingly after her initial attendance on him on 8 April 2013, four days after the fall at work, she had to seek treatment from another general practitioner for the subject low back injury and impairment.[2] She went off to another local clinic in Mordialloc being the McDonald Street Medical Centre. She attended there on Dr Robert Ferguson as a new patient on 16 April 2013.[3] From that second clinic further clinical notes have been provided.[4]
[2]Plaintiff’s Court Book(PCB)22
[3]PCB42
[4]DCB53-63
5 This has meant that unlike other cases where a local doctor has been dealing with all of a patient’s various health issues and gives an opinion about the claimed serious injury, here the general practitioners are hamstrung to an extent in not treating the full clinical picture of their patient’s medical problems.
6 Mrs Roffey has a history of work in different fields over the years. In this paragraph (a) application, as well as there being other physical conditions, on 4 January 2016 she went off work due to psychiatric injury after a workplace bullying type trauma.[5] This must have been of significance as she has not returned to the workforce since. She has continued to have psychological treatment. Her 25 May 2018 affidavit stated she has now gone to a new psychologist and was going “about every three weeks”[6] although she was intending to cease.
[5]PCB18,Exhibit 1
[6]PCB34
7 The claim relies on pain and suffering consequences only. I must assess the permanent low back impairment on its own when gauging any consequences. Her first affidavit was in September 2017 and a further affidavit on 25 May 2018 describes the up to date situation.
8 An affidavit from her husband is significantly limited. Any fair appraisal of it would leave the reader believing that his wife has never suffered from any medical condition except in her low back save for a transient elbow problem. Also there is no mention of 2005, 2009 or 2016 spinal traumas nor her ceasing work after psychological problems following bullying. In one of these incidents he was even said to have broken her ribs in a bear hug but no mention is made of it. I give his affidavit no weight.
9 The lower back impairment is an admitted compensable injury for which liability has been formally admitted.[7] Not surprisingly the defendant said disentangling was the central issue in its defence that the low back impairment on its own is not a “serious injury”.[8] The plaintiff of course carries the onus in this application.
[7]PCB57-60
[8]Transcript(T)2-3,11
10 I will not go through separately every report chronologically as is sometimes required in these applications. This is because there are so many other medical complaints and doctors involved with treating them. I will deal with a number of the medical practitioners relied on by the parties when commenting generally on the principal issue, on credit and any low back injury complaints.
11 It needs to be said at the outset that some caution always needs to be exercised when dealing with clinical records without hearing from the doctor, but the records in this case have considerably more detailed information than most. In cross-examination the plaintiff was taken through many of the dates and reasons for visits to Dr Farah. The medical records and the plethora of prescription medications she has been on constantly throughout these pages of notes tend to show that she has been dealing constantly with unremitting pain in many areas for years, both before and after 4 April 2013. At one stage the records list about nine medications she was getting scripts from Dr Farah for these other conditions outside the low back problem. The plaintiff has not only been treated by Dr Farah but has also been referred to and treated by a number of different specialists for different painful conditions.
12 There could hardly be a more obvious example of the multiple symptoms, including significant pain troubling her in other parts of her body, than one page of Dr Farah’s clinical records in 2017.[9] Across dates only about six or seven weeks apart his notes record her seeing for treatment and investigations no less than four specialists that he had seen fit to refer her to. These referrals were for other ailments, that is for reasons not related to the low back injury before me. Dr Farah would not treat her for the low back because it was a WorkCover matter. In those few weeks she was recorded as seeing a Mr Ross, Mr Simon Bell, Dr Chern Lee and Mr Myron Rogers as specialists.
[9]DCB71
13 This burst of treatment was in a period of almost four years from 2014 to 2018 when there was really little or no treatment for the low back impairment. I asked her myself why she was not seeking specialist treatment for the low back problem before me. She said it was because WorkCover ceased to pay for treatment. This was not persuasive as it goes without saying that WorkCover were not paying for Mr Ross, Mr Bell, Dr Lee or Dr Rogers.
14 Just taking Dr Farah’s notes of last year, 2017 alone, not only was she being treated by the four specialists listed for non-compensable other problems but she was also referred to Mr P Moran, orthopaedic surgeon, for knee complaints. She was being treated also by a specialist cardiologist in 2017 as well as by a Dr Sturrock for specialist gynaecological management. Dr Farah also sent her to a Dr Kathy Low, consultant respiratory and sleep physician, last year for breathing and other complaints. In addition last year she was treated by Mr Coughlan, physiotherapist and a hand therapist as well as a massage therapist for other injuries. She came under some other specialist in Pattersons Lake for treatment.[10] There is not a single doctor with a complete history of the plaintiff’s medical picture.
[10]T78-79
15 Various treatments for other conditions aside from the low back have extended well into this year. She is still seeing Dr Sam Engel, rheumatologist, for rib fractures she said have not healed. These other conditions are clearly ongoing and troubling enough to require specialist attention. In 2017 the neurologist, Dr Lee, was still recording persistent thoracic level pain and noting “diffuse aches and pains throughout the left arm” as well as “restricted left hand grip due to swelling and discomfort at the wrist”.[11] Treatment was continuing by way of physiotherapy and pain relief even though she had undergone carpal tunnel surgery. Another specialist as recent as 11 April 2018, referred her to a Monash Lung Clinic and she is awaiting an appointment there to get in for whatever advice and treatment that may involve. [12]
[11]DCB15
[12]DCB89
16 On top of all these many other physical ailments there has been the psychiatric condition since at least 2016 that has been of sufficient moment to put off work and she is still off up to the present time. It goes without saying that if it is that serious for a plaintiff motivated to work over many years then an inference is it must also be having some real impact on her daily life and enjoyment of life.
17 She signed a very detailed and precise statement on 20 December 2016 in support of her bullying/stress claim which led to her going off on WorkCover.[13] There was some reluctance on her part to admit her capacity to produce such a statement and take the notes and details implicit in such a comprehensive exercise. She said it was really just dictated orally.[14] Her reticence was unexplained and really indicated a witness who when faced with an awkward situation would at times say something not borne out by evidence or common sense.
[13]Exhibit 1
[14]T112-113
18 That statement in paragraph three dealt with her enjoyment of some leisure activities that any reader would conclude she was still enjoying. When faced with the apparent inconsistency with what she swore about the limitation on these same activities due to the 2013 low back injury, she was very equivocal and indeed evasive. She said “used” to enjoy was what she really meant in that statement about her bullying claim.[15] Either the reader in the bullying case or this court was being misled on this topic.
[15]T105-109
19 Also in paragraph nine of that signed statement she said she returned to “normal duties” on 28 July 2013.[16] This was after her return from an overseas trip. In evidence before me she had said had not returned to “normal duties”. [17] This was inconsistent evidence on a simple issue that leads to a conclusion that different versions of one matter were given to different audiences depending on the matter being investigated or considered at the time.
[16]Exhibit 1
[17]T98,109
20 The plaintiff was examined in March 2017 by Mr Roy Carey, a surgeon engaged for the defendant. She made it clear to him that she had “no past history of low back problems whatsoever”.[18] She said nothing to him about 2005 nor her 2009 complaints which involved levels of her spine. He recorded a clear history from her in which “She disclaims any history of spinal pain or injury before the subject injury, and hasn’t had any relevant accidents or injuries since.”[19] Nothing was said to him about the 2016 for which required her to attend the emergency department of a large public hospital. [20]
[18]PCB67
[19]PCB69
[20]DCB34-39
21 When challenged about these omissions in terms of the history that Mr Carey had taken from her she basically offered two explanations. Firstly she tried to differentiate these other non-compensable pains as somehow not being “spinal” pain.[21] Secondly she also said as to the 2016 incident, which took her to the emergency department that “It was not a significant accident or injury”[22]. Both these attempts to minimise or get around an obvious inconsistency between what she was saying to the court and what she had told Mr Carey and medical records show, were evasive and in the end unpersuasive.
[21]T23-30
[22]T27
22 Turning to her treatment for the low back it is Dr Ferguson’s clinic that she was asked about. His records are informative and show a consistent pattern of improvement and then resolution of her low back by about 28 July 2014. Any perusal of his notes shows a diminishing frequency of visits in the latter half of 2013 ending with just a few in 2014. The visits include comments such as “doing full shifts and working normal hours” (19 July 2013), “has improved since last visit” (13 September 2013), “has good days-more good than bad” (8 November 2013) and then “feeling best she has four years with her back” (6 May 2014).[23]
[23]DCB59-61
23 Then on 15 July 2014 the doctor treating this work injury recorded “No back issues reported”.[24] Finally the last mention to him of her back was on 28 July 2014. She had just returned from an overseas trip that involved her driving considerable distances around England and the doctor recorded “No back issues since returned to work after holidays”.[25]
[24]DCB59
[25]DCB59
24 Dr Ferguson’s written report confirmed that this was the last mention that he got from her about her back.[26] This comes in an important context of him continuing to treat her for a number of other non-compensable medical conditions up to mid- 2017 but there being no record of any back complaints beyond 28 July 2014.[27]
[26]PCB43-44
[27]DCB54-59
25 This is consistent with her having effectively recovered. It is also consistent with her at that time seeking full-time hours at work (38 hours per week) in lieu of her previous part-time hours (18 hours per week) following her return from the overseas trip in mid-2014. Dr George Wilson, who saw her in May 2014 and then assessed the workplace said in June 2014 “…there should be no reason why she cannot get a full clearance to take up the full-time position which would give her guaranteed rostered hours”.[28]
[28]DCB45
26 It needs to be stated this opinion is now quite out of date. I must assess the situation now. Also Dr Wilson did not have any history about her 2005 for 2009 back complaints. He saw her in 2014 so obviously he could know nothing about the 2016 fall. It is fair to say he did not have anything like a full history of all her other medical issues. Accordingly he did not have any capacity back then to disentangle any current low back impairment and its consequences from the list of the other medical conditions that are relevant to this application.
27 The fact that she had effectively recovered by the middle of 2014 was confirmed by a treating specialist, Mr Juan Aw, she had been sent to by Dr Ferguson in 2013. [29] He had said in November 2013 that she had made “slow but steady progress”. He then discharged her from his care in February 2014 but with the option for her to come back “…if her symptoms were to worse again”.[30]
[29]PCB64,65
[30]PCB64,65
28 In spite of that offer by her treating specialist she never went back to him. This is in stark contrast with the litany of other persisting medical problems both physical and psychological that have led her to be treated by a large number of practitioners between 2014 and now. Mrs Roffey is a person who is very prepared to seek medical attention including at specialist levels when she feels she needs to. Effectively there has been no treatment since 2014 that was specifically directed to her low back. She said she takes medication for a number of conditions which include her back but there has been no proper disentangling. She has recently had physiotherapy but principally that was for her main pain being in the lower cervical spine.[31]
[31]DCB19
29 I must assess any low back impairment now and separated out from other conditions relevant to pain and enjoyment of life. Even if that could be done, the evidence of her recovery by mid-2014 and the absence of any current significant treatment tend toward showing an injury that is not causing consequences now that are very considerable. Similarly the three lumbar radiological reports involved are plain Xray, CT and MRI investigations. They do not reveal any objective significant pathology for a woman in her fifties. [32]
[32]PCB54-56
30 It has been stated many times that there is something of a value judgement to be found in most applications such as this and there are matters of fact, degree and expression involved. Sitting virtually every day in this jurisdiction, applications can at times involve radiologically demonstrated pathology that is so patently demonstrative of injury that to an extent it can speak for itself. That is not the case here.
31 It is not for a Judge to read too much into radiology reports when no doctors have been called, but spinal reports are tendered almost every day in these applications. Dealing very briefly with the radiology that has been tendered, a CT of her cervical spine in January 2007 showed that, if anything, the pathology in the neck is greater than in the low back. In her neck there is significant disc degeneration reported with encroachment.[33] At best, in her low back the radiologist described mild disc desiccation at multiple levels. But without hearing from any experts not much else can be said about the radiology.[34]
[33]PCB86-87
[34]PCB55
32 This is one of those applications that depends to a large extent on what I make of the plaintiff as a witness. It was very informative to have the opportunity to not only hear her evidence but also to observe her demeanour over a very lengthy cross-examination that went for three days. I found her an unreliable witness in a number of important areas. I will only give a few examples out of a number of topics on which her evidence was inconsistent, difficult to reconcile and in the end quite unsatisfactory.
33 From the start she tried very hard to distinguish the low back pain suffered at work on 4 April 2013 from the back complaints and notes following the 2005 consultations and in the fall at home on her buttocks in 2009. [35] She was a witness who was really trying too hard to make a distinction by pointing to precise areas of the human anatomy in terms of where pain was experienced.
[35]T16-20
34 She was similarly unconvincing in trying to distinguish spinal pain and neck pain from the notes that referred to neck and mid back pain.[36] I found her evidence also unpersuasive in relation to the topic of osteoporosis for which she has required treatment for many years and still does. When faced with the material from another specialist she was being treated by in recent times, Dr Sam Engel, rheumatologist, she was very reluctant to admit that after a bone scan she knew she was suffering from osteoporosis in the lumbar spine.[37]
[36]T30
[37]T51-53
35 His evidence could not have been clearer back in October 2012 when he reviewed her after a bone density scan. That scan “showed significant osteoporosis at the lumbar spine”.[38] He went on to mention at least three prescription medications that she was either on or commencing. These were Actonel, Ostelin and Imuran. In spite of her being sent to the specialist and being investigated and treated by him she would not admit that she knew or that she had ever been told she had osteoporosis involving her lumbar spine. Her evidence was evasive.
[38]DCB15a
36 When pressed on this topic her response was that she thought it was in her “whole body” but not specifically the low back.[39] Somehow she wanted to give the court the impression she did not know the “whole body” included the lumbar spine. She was very unsatisfactory on this topic. Her evidence was unreliable.
[39]T52
37 This was a lay witness who was sufficiently across medicine that affected her that when asked what cardiac investigations showed in 2017 she shot back an instant answer : “There was a 4 centimetre dilatation of the descending aorta …” [40] Her medical knowledge was considerable and including the various specialities of doctors treating her, what each of the large number of medications was for and what the different radiological investigations were about.
[40]T195
38 She was medically informed enough to repeatedly try to distinguish her pre work injury low back complaints from the subject low back pain because they were from “ilio-lumbar ligament” injury which was different from the current low back injury.[41] The professed ignorance about osteoporosis was inconsistent.
[41]T25-26
39 In both her affidavit and her oral evidence the plaintiff sought to minimise these non-compensable other injuries and medical conditions. This evidence was unpersuasive and there were unexplained variations throughout what she was saying. It was also inconsistent with the vast body of medical material. It showed years of investigations of many different descriptions from both general practitioners and a large number of varied specialists and some of which are still ongoing.
40 Also there were inconsistencies that were very difficult to reconcile between events in 2005, 2009 and then the 2016 one at home in trying to disentangle low back symptoms and impairment from what happened to her as a result of these non-compensable traumas. At least two involved heavy falls onto her buttocks. Some attendances at emergency departments of hospitals as well as her own chosen doctors have been required. On the probabilities they were insults to her spine that occurred on these occasions. To now separate out low back symptoms as a result of the work fall in 4 April 2013 has proved to be a proof that has not been made out.
41 Her last affidavit on 25 May 2018 paints a clear picture of a plaintiff who has no social life whatsoever save for involvement with Toastmasters. It is a picture of someone who as at 25 May 2018 was still seeing a treating psychologist every three weeks or so. It also gives the reader a clear impression of a worker who is effectively unable to perform any real work due to being unable to sit or stand for prolonged periods on account of back pain. [42]
[42]PCB34-37
42 Then the twenty eight pages of extracts from her website and Facebook page were dealt with in cross-examination. [43] These extracts largely speak for themselves as they comprise pages of her advertising herself to the public. Many pages of typed details appear about the plaintiff as a marriage celebrant and how it would be to a couple’s advantage to have her perform the ceremony of about 20 to 30 minutes for between $500-1000.
[43]Exhibit 2
43 The plaintiff said most of this material was put together get six to eight years ago. This appeared an attempt to deal with obvious inconsistency in that she said the low back pain prevents her from doing much writing. However there are many pages of material that were not written six or eight years ago. They are very recent as they refer at the end of 2017 and to the gay marriage legislation. She openly invites same sex couples to book her celebrant services. When she was asked whether she felt this was misleading couples she did not agree. She claimed that she would accommodate their needs and if she could not officiate would pass them onto some other celebrant. I do not accept this evidence. The likelihood is she is holding herself out for marriage ceremonies of all types she would readily perform herself.
44 The capacity that she is advertising herself to the public goes well beyond being just a marriage celebrant. She advertises herself as able to officiate and effectively MC all sorts of events, ceremonies and celebrations. She can accommodate by way of her public speaking and master of ceremonies abilities such functions as corporate functions, trivia nights, presentations, sporting and charity events, engagements, anniversary, birthdays, retirements, coming-of-age, welcome home, new home, get well, bon voyage, farewell, divorce, adoption, graduation, pregnancy and even winning the lottery. This exhaustive list ends with “Using your imagination, the list is endless.”[44]
[44]Exhibit 2 p6
45 The Facebook page goes on to extol her virtues and offer even wider invitations. She offers same-sex marriages on a ship because she is “a celebrant who cruises all the time”.[45] She was inviting couples to marry in Cairns last year as she would be in Cairns and could organise a celebration on a cruise ship between 12 to 16 September 2017. The plaintiff, who has sworn in her affidavit of 25 May 2018 that her only form of social activities these days is part of Toastmasters, told the court she does “back to back” cruises. Her evidence was so unacceptable regarding this extensive advertising site and posts that it could be described as deceptive. It is totally at odds with the description of how severely she says the low back condition limits her socially and generally.
[45]Exhibit 2 p24
46 Film was shown over two dates being 22 May and 26 May 2018 which were either side of her last affidavit sworn on 25 May. [46] This film seriously impugned her credit. It started on 22 May with her standing in no apparent discomfort and having no trouble for some minutes at a railway station. This would not amount to much except three days later she swore “I now have trouble doing things like just standing on the train platform waiting for the train.”[47]
[46]Exhibit 3
[47]PCB36 .
47 The lengthy film of 26 May was taken the day after her affidavit on 25 May and is far more damaging. Film is shown constantly in these applications and it is only a snapshot of a worker’s activity and there may or may not be deletions by the film maker. Nevertheless this showed an engaging and at times animated plaintiff in discussion with other people on a train trip into the city to participate in a National Trust walking tour of the Spring Street area and East Melbourne. The tour goes for some time. It is very inconsistent with a person who swore she really had no social life apart from Toast Masters. This tour goes as far as the Freemason’s Hospital area and beyond before a return walk through the Fitzroy Gardens to the Spring Street area.
48 This 26 May walking tour needs further comment. In cross-examination and before it was shown she was invited to comment on a walking tour and she said that it was “Just pretty much around a block, that was all, in East Melbourne.”[48] To suggest that was “all” it was is just not true. She was being asked about a simple matter only a few weeks ago that a person could hardly be confused about given the length of time and considerable distances involved.
[48]T176
49 Even after the lengthy film was shown she was still less than straightforward in cross-examination. It was an evasive answer to what was really an obvious inaccuracy to call it a walk “around a block” when she said: “As I said to you, I didn’t have a map, I just followed and it felt like it was an East Melbourne block, if you get my drift.”[49] As well as the inability to stand being caused by her low back, the affidavit of 25 May 2008 described an ability to walk that is impacted with her having to avoid hills or take them very slowly.[50] The next day, 26 May, her ability to walk was shown to be quite normal. She kept up with the walking group around the streets and in the gardens. At times she walked briskly and she walked on grassy slopes. The capacity to walk showed an incongruity between her evidence and what she did one day after the 25 May affidavit.
[49]T177
[50]PCB36,T171-172
50 Another matter that went to credit was the plaintiff complained to the court that at times her low back condition is so bad that “I can barely move”. She also complained that it can mean “I’ve been confined to bed.”[51] Yet for a patient who attends a litany of doctors about a plethora of conditions and has continued to do so many years, she has not been back to the doctor with these complaints. This is very inconsistent with her general willingness to go to doctors. It lends itself to the view that any low back problems are not very significant.
[51]T172
51 In view of what I have said about the plaintiff as a witness and the failure to prove the extent of any compensable low back impairment independent of other health issues, it is not necessary to comment at length about the doctors. I have already discussed a number of them but in deference to the parties I will direct a few remarks. The physiotherapist, Dr B Coughlan, reported that he had first seen her as a patient back in 1997 for right shoulder problems. He did not have the records now so what the current position was with respect to that is just not described. He then saw her in September 2011 for right tennis elbow complaints. He noted that she was also suffering from Behcet’s disease and was under the rheumatologist Dr Engel. He noted that in 2012 she had suffered fractures of her ribs.
52 Then he saw her in relation to the 4 April 2013 low back problem. Eventually treatment was stopped on 30 May 2014. He did not see her again until 13 February 2018 but then it was “…with significant neck and shoulder pain and a continuing problem with her lower back.”[52] He considered that she had had a low back problem that would continue to bother her for the rest of her life. But it is not possible on this material to disentangle any low back impairment from the other ailments he was seeing her for. Significantly his report points to both the gap of nearly four years in treatment for the low back between 2014 and 2018 as well as to the relative paucity of treatment for any low back impairment.
[52]PCB46
53 I have already commented on the other treaters being Dr Farah, Dr Ferguson and Dr Aw. As well I have directed some remarks to Dr G Wilson and Mr Roy Carey who saw her for medico-legal purposes at the request of the defendant.
54 Dr A Aliaskevich is a neurosurgeon who saw her once in February 2018 for a medico legal report. His history is markedly inadequate in terms of all her other medical conditions and with respect to the 2009 event involving her back. It is so deficient in having a full picture of her total clinical condition and in light of what I have concluded about the plaintiff as a witness, I give it limited weight.
55 The plaintiff also tendered a number of handwritten and other brief extracts from treaters that were relied on to either buttress her credit or support the claimed extent of her low back impairment.[53] These documents did not take the matter any further in terms of the proofs required of the plaintiff.
[53]PCB73-90
56 Turning to the defendant’s tender , it would be rare to see a serious injury application with the defendant tendered a body of no less than twenty nine letters or reports from the plaintiff’s treating practitioners.[54] This does not count their copious progress notes and clinical records. These were all in support of its primary defence that she has not proved any low back impairment, viewed separately from her other health issues, that satisfies the test of “serious injury”. Some of these have been commented on regarding credit. They speak for themselves about a number of other major medical problems.
[54]DCB1-39
57 That body of material includes nine documents from Dr Farah, the general practitioner who has treated her for her various non-compensable problems, along with his lengthy clinical notes. Seven reports from her treating rheumatologist, Dr Sam Engel, have also been tendered by the defendant. There are two reports from her treating neurologist, Dr Y Lee, as well as two from her treating neurosurgeon, Mr Myron Rogers. Three come from her orthopaedic surgeon, Mr Simon Bell, as well as one from her plastic surgeon, Mr D Ross. There were also two from her cardiologists Dr Teperman and Dr M Premarate. Two further documents came from respiratory and sleep physician, Dr K Low, together with Alfred Hospital records.
58 The defendant also relied on an application by Dr Farah to the government, only 12 months ago in June 2017, for a permit to give her narcotic medication. This was for two medical conditions. They were osteoporosis and rib fractures. The government issued that permit.[55]
[55]DCB50-52
59 There is no need to go into any detail about these various letters and reports from treaters. It is sufficient to say they support the defendant’s primary position that the plaintiff has not proved any significant low back impairment independent of the extensive list of other past and present medical problems most of which have required specialist expertise. I have already directed some comments to Dr Wilson and Mr Carey who the insurer and defendant engaged.
60 For the reasons set out I am not satisfied the plaintiff has proved any permanent low back impairment suffered on 4 April 2013. If I am wrong on that then no low back injury on its own and separate from other medical problems has reached the bar of “serious injury” under the Act.
61 The application is dismissed.
0
0
0