Rowe v St Vincent’s Hospital (Melbourne) Limited
[2024] VCC 67
•4 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-01829
| PAULINE JANET ROWE | Plaintiff |
| v | |
| ST VINCENT’S HOSPITAL (MELBOURNE) LIMITED (ABN 22 052 110 755) | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2023 | |
DATE OF JUDGMENT: | 4 March 2024 | |
CASE MAY BE CITED AS: | Rowe v St Vincent’s Hospital (Melbourne) Limited | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 67 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – compensable injury to low back – non-work-related medical conditions – injury resolved
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Johns v Oaktech Pty Ltd [2020] VSCA 10; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Scully | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr B R McKenzie | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff, Pauline Janet Rowe, is currently aged 59 years. In June 2012, Ms Rowe commenced employment as an operating theatre technician at St Vincent’s Hospital in Melbourne on a full-time basis. Her role involved manual lifting of theatre equipment and patients.
2Over the course of her employment, she alleges she suffered a low back/lumbar spine injury as a result of heavy, awkward and manual labour. In particular, on 17 January 2020, she was required to hold a male patient in an awkward position for an extended period of time during a spinal procedure.
3Ms Rowe seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering consequences, being for the permanent serious impairment of her lumbar spine.
4For the reasons that follow, I refuse her application.
The issues
5The Victorian WorkCover Authority (“the VWA”) accepts the incident occurred and that it resulted in injury to the low back.[1]
[1]Notice of impairment benefit liability, assessment and entitlement dated 13 October 2022, Plaintiff’s Court Book (“PCB”) 36
6The principal issues in dispute by way of summary are as follows:
(a) Is there an ongoing compensable injury?
(b) If so, do the consequences attributable to the injury to the low back meet the statutory test?
Legal principles
7The relevant legal principles in applications of this type are well known and not in dispute.
8The plaintiff bears the onus of demonstrating that her impairment is permanent, and that the consequences are “serious”.
9She must establish that the consequences to her with respect to pain and suffering, are serious in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.
10The seriousness of an impairment is determined by whether the pain and suffering and loss of enjoyment of life consequence, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, (can) be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[2]
[2] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
11The Court of Appeal in Johns v Oaktech Pty Ltd[3] has reiterated that in “serious injury” applications the credit of the applicant is of great importance.
[3] [2020] VSCA 10
12In considering Ms Rowe’s evidence, I have had regard to the authorities in dealing with credit on occasions of this type to the effect that the court must analyse and give appropriate weight to all the evidence, including objective evidence;[4] further that an adverse finding concerning credibility is not, by itself, sufficient to justify the refusal of the serious injury application.[5]
[4] Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108
[5] Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104, at paragraph [49]
Background
13Ms Rowe has been married for 35 years, and she and her husband have three adopted children aged 25, 29 and 31 years. She had a broad employment history including various administration roles prior to her employment at St Vincent’s Hospital as an operating theatre technician, where she worked from June 2012 until around February 2021. She also worked occasionally on a casual basis with Eastern Health in a similar role during this period.
14Since ceasing at St Vincent’s Hospital, she worked in various positions including:
· checking in patients at vaccination hubs;
· administration assistant work with ActivTec; and
· pharmacy assistant with National Pharmacies.
15Ms Rowe commenced a role at a smaller hospital, working 72 hours per fortnight, but had to resign as she was not able to work in the COVID area. Her immune system is compromised due to multiple medications taken for the treatment of her non-work-related rheumatoid arthritis.
16She is currently employed three days a week in an administrative capacity at St Vincent’s Hospital in the Barbara Walker Pain Clinic.
17In terms of her prior medical history, in 2009 or 2010, she suffered from an episode of back pain which was treated conservatively and eventually settled down. She did not take any time off work.
18Contemporaneous medical records from 2009 disclose that she injured her back at tennis several times, and developed numbness and tingling affecting all extremities.[6]
[6]Reports of Dr Graeme Symington, neurologist, dated 24 June 2009 and 20 July 2009
19She has suffered migraines intermittently since before her injury, which she managed with Imigran.
20In around 2018, after a period of left hip pain and other symptoms, Ms Rowe underwent a left hip arthroscopy and was diagnosed with osteoarthritis. Since that time, she has ceased running and managed her hip pain with medication, including Panadol Osteo and Mobic.
21Following the incident on 17 January 2020, Ms Rowe had pain in her low back, right thigh and leg. She reported the injury in a telephone call to her nursing unit manager on 19 January 2020, and attended her general practitioner, Dr Rajitha Jayasuriya, the following day. She was prescribed Panadeine Forte and referred to Physica Spinal and Physiotherapy Clinic.
22She was also referred for a number of scans, including x-ray of the lumbar spine on 22 January 2020. This x-ray showed mild forward subluxation of L4 with respect to L5.[7] A CT scan of the lumbar spine on 23 January 2020 reported:[8]
“Severe bilateral facet arthropathy at L4/5 in combination with disc bulge results in severe right neural exit foraminal narrowing and compression of the exiting right L4 nerve root.”
[7]PCB 43
[8]PCB 45
23Ms Rowe underwent a CT-guided lumbar nerve root block on 29 January 2020 at the right L4 root, which involved inpatient treatment at Knox Private Hospital for two nights, and was successful in resolving radiculopathy symptoms.[9] She lodged a Worker’s Injury Claim Form at the time.[10]
[9] Transcript (“T”) 97, Line (“L”) 7 (concession by counsel for the plaintiff)
[10]Claim Form dated 30 January 2020, PCB 29
24She was certified unfit for any duties until February 2020, when she returned to work on modified duties. With improvement over time, she returned to full-time duties as an operating theatre technician in August 2020. She was certified by her physiotherapist as having full capacity for pre-injury employment from 11 September 2020.[11]
[11]Defendant’s Court Book (“DCB”) 8, Certificate of Capacity dated 11 September 2020
25In around April 2021, Ms Rowe was also diagnosed with rheumatoid arthritis, which is managed by rheumatologist, Dr Andrew Teichtahl. She takes medication including Methotrexate, folic acid, Pantoprazole and Mobic for this condition.
26Ms Rowe had experienced non-work-related pain in both hips before her work injury; and her rheumatoid arthritis has also produced painful symptoms in her neck, right wrist and hand, and right foot. This pain has, at times, been very significant and required long-term conservative management, together with prescription medication.
Contemporaneous records of low-back pain
27Despite attending her general practitioner on numerous occasions, in the period from 24 March 2020 and 29 August 2022, the clinical notes do not record any report of back pain or symptoms.
28The clinical record of Dr Tan of 24 March 2020, records:
“she is back to walking freely, yoga (avoiding the difficult exercises)
she is eager to return to usual duties.
will start seeing physio at physica.”[12]
[12]DCB 34
29The entry for 29 August 2022 of Dr Tan records:
“doing well
there is still pain in wrist- was better on pred, but now off it
just on methrotrexate [sic].back pain- seeing physio.”[13]
[13]DCB 24
30This gap is to be understood in the context of Ms Rowe’s evidence in her second affidavit,[14] and confirmed during the course of her cross-examination, that she kept her long-term general practitioner, Dr Tan, “in the loop” about any back symptoms.[15]
[14]Affidavit of the plaintiff affirmed 1 June 2023, PCB 24-25
[15]T16, L8-18
31This period of time, nearly two-and-a-half years, coincided with non-work-related:
(a) body aches;
(b) a great deal of treatment for her rheumatoid arthritis;
(c) significant neck pain;
(d) right wrist pain;
(e) an income protection claim for her plantar fasciitis in August 2021;
(f) problems with her left Achilles tendon;
(g) right hip pain (for which she had an injection);
(h) pain in her left and right feet;
(i) treatment for Meniere’s Disease; and
(j) migraines.
32The clinical notes in this period do not record any prescription of analgesic or opioid-based medication for her back-related issues.
33In the same period, Ms Rowe was also receiving regular treatment from her physiotherapist, Ms Claire Fitzgerald. Ms Fitzgerald’s treatment notes record:[16]
(a) following treatment for her low back on 24 March 2020, her low-back pain was going well on 8, 15 and 22 April 2020;
(b) sore as at 29 April and 6 May 2020;
(c) tightness on right side on 13 May 2020, with left-side pain;
(d) low back not too bad on 20 May 2020;
(e) constant left hip pain throughout this period;
(f) by 3 June 2020, her low back was good, just stiff in the morning, and Ms Rowe was not noticing it at work. She was waking in the night due to her hip and back when rolling in bed.
(g) on 17 June 2020, the right low back was fine with no issues reported;
(h) there was a flare-up in the right low back after sitting at lunch on 23 June 2020, which had settled by 1 July 2020, when Ms Rowe was without back pain;
(i) right low-back twinging on 23 July 2020, which had settled by the following week when “right low back feeling good”.
[16]DCB 81-144
34Physiotherapist, Mr Anthony D’Aloisio, certified Ms Rowe as having capacity to work on 11 September 2020.[17]
[17]DCB 109
35Thereafter, despite numerous attendances for physiotherapy, there is no reference to any back pain until 7 June 2022, in the context of a suite of other problems in relation to her hips, rheumatoid arthritis, difficulties, and wrist pain preventing her doing yoga. The note records:[18]
“LBP – not RA [rheumatoid arthritis].
Has to pace with housework.
Aggs [aggravating factors]: gardening, washing dog.”
[18] DCB 92
36Soreness was recorded as being on and off on the right side but, by 5 July 2022, the pain was not too bad, being stiffness more than pain, with no pain down the leg. The pain was “not too bad” through August and, by September 2022, she was just using heat when needed. There are no further entries until the last physiotherapy entry on 29 November 2022, which records “some niggles in low back”.[19]
[19]DCB 81-90
Ms Rowe’s evidence
37The plaintiff’s evidence overall does not assist her in establishing that she suffers from any ongoing work-related condition.
38As a witness, Ms Rowe did her best but I have some reservations about the reliability of her evidence overall due to the omissions and errors which although perhaps not deliberate, were material.
39Ms Rowe corrected her first affidavit affirmed 3 December 2022 which overstated the amount of treatment she had received in relation to her back injury. Her evidence of myotherapy attendances from once every three months on average was revised to just two or three times.
40Ms Rowe failed to correct her evidence at paragraph 70(c) that, “prior to my injury, I had no restrictions with running. Since my injury, I no longer run.” In cross-examination, she conceded that she ceased running after her left hip surgery in 2018, some years before her injury.[20]
[20] T39, L9-11
41She also deposed[21] that she does not do much shopping anymore and struggles to lift grocery bags out of her car and upstairs to her kitchen. This is in stark contrast to the history she provided to Ms Fitzgerald on 8 April 2020,[22] that lifting groceries was not a problem, and she accepted in her oral evidence that this was the case.[23]
[21]Paragraph 73 of her first affidavit, PCB 22
[22]DCB 128
[23]T41, L4-20
42Her statement that she struggles to garden for more than one hour at a time[24] must be assessed against her history to Mr Carey that “her ability to garden was really restricted by her worktime rather than any physical problem”.[25]
[24]Paragraph 71 of her first affidavit, PCB 21
[25]PCB 92
43I am troubled by the broad assertions Ms Rowe has made in her affidavits and in her histories to doctors as to the extent of her ongoing treatment over time, where the records show that there were very significant gaps in that treatment.
44She also did not disclose in her affidavit material the difficulties she had with her right hip or her serious neck condition for which she received a great deal of treatment, or difficulties with her Achilles tendon. Although she discloses the condition of rheumatoid arthritis,[26] she does not mention the effects of this on her hands and feet, which again are significant.
[26]Paragraph 30 of her first affidavit, PCB 12
45Ms Rowe accepts that her diagnosis of osteoarthritis precedes her work injury, and that she manages this condition with Panadol Osteo and Mobic. Further, that her rheumatoid arthritis is also managed with pain medication, including Mobic.
46She asserts,[27] however, that she takes Panadol Osteo daily and Mobic on workdays by way of medication in relation to her back injury. There is no evidence that she has ever been prescribed Mobic for her back injury, and she has been taking Panadol Osteo since before her work injury.
[27]Paragraph 57 of her first affidavit, PCB 18
47Ms Rowe was unable to explain the period of nearly two years between August 2020 and June 2022 when she was not having treatment for her back, despite attending her general practitioner regularly during this period. There is no evidence as to any symptoms in her low back she was experiencing during this period[28] save that not long after she returned to work full time, she says she began to struggle to keep up with her workload and felt fatigued. She accepts that she was certified as fit to return to work again at normal capacity in September 2020, and merely says that she returned to seek treatment in late 2022 due to a flare up in back pain.
[28] cf Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [24]
48The gaps in treatment and inconsistent disclosure of her musculoskeletal conditions makes assessment of her evidence about the progression of her symptoms over time difficult and, ultimately, reinforces the need for the Court to have appropriate regard to the objective medical evidence.
Treating doctors
49The plaintiff’s application is not supported by her treating doctors.
50Her general practitioner, Dr Tan, initially diagnosed Ms Rowe in February 2020 with acute lumbar back pain with right-sided radiculopathy to L4 territory.[29] In his opinion, by October 2020:
(a) prognosis was good, and she had in fact made “great improvements” from the therapy she had received;
(b) “while there is possibility of acute exacerbations, it should again respond to short-term medical management”;
(c) accepting that work was a material cause, Ms Rowe had a current capacity for work provided she pay particular attention to safe lifting principles.
[29]Report of Dr Joon Win Tan, general practitioner, dated 15 October 2020, PCB 60-62
51Ms Rowe was back to normal duties at the time of writing his report. He made no comment in relation to Ms Rowe’s ability to undertake domestic, social and recreational pursuits.
52In his later report of 16 June 2023, which corresponds to his last attendance on Ms Rowe, Dr Tan recorded that there had been a full recovery from the acute event, with further treatment by way of maintenance physiotherapy to address exacerbations of back pain on an “as needs” basis. In his opinion, Ms Rowe:
(a) has ongoing restrictions requiring her to take frequent short breaks when sitting, to stand and gently mobilise, limiting the number of times she has to bend, with no reaching above shoulder height, no carrying loads of more than 5 kilograms and no use of trollies over 30 kilograms;[30]
(b) was improved and stable with intermittent exacerbations possible, but expected to be mild and preventable through adherence to physiotherapy advice;
(c) had minimal pain and impairment to daily activities; and
(d) had safely returned to pre-injury capacity.
[30]PCB 64-65
53Significantly, in terms of Ms Rowe’s pain symptoms, Dr Tan recorded that they were “good, fully resolved”. In his opinion, there was no impact on her pre-injury employment or residual employment capacity or her ability to undertake domestic, social and recreational pursuits, as there had been a full resolution of symptoms.[31]
[31]PCB 66-67
54Ms Rowe’s physiotherapist, Ms Claire Fitzgerald expressed opinions in a similar vein. Ms Fitzgerald diagnosed clinical signs of right L4 radiculopathy upon her examination on 20 January 2020, but by the date of her first report in August 2020, recorded that the acute radiculopathy had improved significantly, and that she would expect the symptoms to settle further over the next two to three months.
55Ms Rowe was then back to full hours, and Ms Fitzgerald expected Ms Rowe to be able to complete all duties when surgery recommenced, which had been disrupted by COVID-19.
56In Ms Fitzgerald’s opinion, Ms Rowe was then able to undertake domestic and social tasks, save she was not yet back to her previous physical activity because her walking distance had been reduced compared to prior to injury.[32]
[32]PCB 57
57In her final report of 21 June 2023, Ms Fitzgerald noted that she was no longer treating Ms Rowe but that, in terms of prognosis, Ms Rowe –
“… may experience occasional low back pain as a result of the arthropathy of her L4/5 facet bilaterally on CT. This is a degenerative process and likely to continue to deteriorate over time.”[33]
[33]PCB 58
58In other words, Ms Rowe’s treating physiotherapist considers that any ongoing low back pain is as a result of the underlying osteoarthritic condition.
59Based upon the evidence of the treating medical practitioners, the VWA submits that Ms Rowe no longer suffers from any ongoing medical condition as a result of the incident at work on 17 January 2020. It also submits that the medico-legal opinions do not establish causation. I accept those submissions.
Medico-legal opinion
60Consultant rheumatologist, Dr Loretta Reiter, prepared a report at the request of the VWA based on an examination of various documents. She did not conduct any clinical evaluation or examination of Ms Rowe.
61In her opinion: [34]
“… Ms Rowe has underlying, constitutional, age related degenerative lumbar spine disease in particular L4/5 and L5/S1 facet joint arthropathy, which would be the reason that she experiences mechanical pain with flare ups of pain with activities as she has described in her affidavit. The aggravation that she had at work on 17 January 2020, in my opinion, has resolved.”
[34]DCB 15
62Dr Reiter notes that prior to the incident on 17 January 2020, Ms Rowe had severe facet joint degenerative disease which has slowly developed over the preceding years, which is the cause of her current low-back issues, including the intermittent flare-ups of pain if she does certain physical activities. In her opinion, Ms Rowe’s prognosis is poor, as degenerative disease is a slowly progressive condition.
63In a strongly worded report, Dr Reiter states: [35]
[35]DCB 17
“7 Your comments as to whether the claimed incident on 17 January 2020 and/or employment in general between June 2012 to October 2021 aggravated, accelerated, exacerbated, contributed to or deteriorated any pre-existing conditions of osteoarthritis and rheumatoid arthritis, and if so:
In my opinion, I do not consider the claimed incident on 17 January 2020 and/or her employment in general between June 2012 to October 2021 aggravated, accelerated, exacerbated, contributed to or deteriorated any pre-existing conditions of osteoarthritis or her rheumatoid arthritis.
(a)The extend and duration of the work related aggravation;
This is not relevant.
(b)Whether the worker [sic] related aggravation still materially contributes to the worker’s current condition or whether, in your opinion, the effects of the work related aggravation have now ceased.
This is not relevant.
8Please state by way of percentage, the likelihood the worker would have eventually come to her current physical condition, even if she had not performed the work with the employer.
It is my opinion that she would have 100% likelihood the worker would have eventually come to her current physical condition, even if she had not performed the work with the employer.”
64This report is consistent with the expected prognosis of Ms Rowe’s condition at the time she was examined by Dr Gary Davison, occupational physician, on 17 February 2020, shortly after the incident. His opinion was that Ms Rowe probably suffered an exacerbation of pre-existing lower lumbar facet joint arthropathy at the L4-5 segment, which was asymptomatic at the time.
65Whilst he accepted the employment materially contributed to that aggravation, he expected Ms Rowe’s condition to improve and hopefully resolve over the next six to twelve weeks.[36]
[36]PCB 75
66Mr Geoffrey Littlejohn, rheumatologist, examined Ms Rowe on 10 October 2022, and obtained a history that she takes Mobic for pain; and she attends her general practitioner, Dr Tan; her physiotherapist, Ms Claire Fitzgerald, every four weeks; and myotherapist, Ms Kate Walters, every three months.
67Mr Littlejohn’s diagnosis was of local pain and some referred pain at times to the leg due to symptomatic lumbar spondylosis without radiculopathy. In his opinion, Ms Rowe’s degenerative lumbar spine disease, causing facet joint arthritis and disc degenerative change in the low lumbar area, was rendered symptomatic following a work incident on 17 January 2020.
68Mr Littlejohn accepted that the clinical presentation was consistent with the workplace incident described, and assessed her combined Whole Person Impairment of the lumbosacral region of 5 per cent.
69Mr Littlejohn saw Ms Rowe on one occasion, and did not have the benefit of numerous attendances upon her, as did her general practitioner and physiotherapist. He apparently relied upon ongoing symptoms, as recorded in his report, which are not supported by the evidence.
70I observe the following:
(a) Despite her sworn evidence in her initial affidavit, Ms Rowe does not attend a myotherapist every three months. She corrected her evidence in the witness box to record that she has seen a myotherapist only two or three times since the incident;
(b) At the time Ms Rowe provided this history to Mr Littlejohn, she had only seen myotherapist, Ms Walters, on the one occasion. Ms Walters’ report records she was managing the pain in her low back overall, finding an improvement with less aggravation, but that she had to be careful. Ms Walters expresses no view as to causation;[37]
(c) Ms Rowe did not consult her general practitioner in relation to her low-back injury at all during the period from 24 March 2020 until 29 August 2022, and not thereafter;
(d) Ms Rowe was certified by her physiotherapist as having full capacity on 8 September 2020. She did not receive further treatment again until 7 June 2022, and then only for low-back pain “that was not too bad, just heat when needed, aching after vacuuming/mopping”;
(e) Ms Rowe did not disclose to Mr Littlejohn her longstanding history of left hip symptoms and arthroscopy in 2018, and very significant rheumatoid arthritis with metatarsophalangeal joint symptoms. Nor did she disclose that the prescription of Mobic was for her rheumatoid arthritis and underlying osteoarthritis, not her low-back injury.
[37]PCB 68
71Mr Roy Carey, orthopaedic surgeon, examined the plaintiff on 19 July 2023.[38] Mr Carey was provided the uncorrected affidavits of Ms Rowe, the reports of Dr Davison and Mr Littlejohn referred to above, and the clinical records of Dr Tan and Ms Fitzgerald. He was not provided with the up-to-date opinions of Dr Tan or Ms Fitzgerald.
[38]PCB 88
72He obtained a history that Ms Rowe now complains of stiffness and tightness in her lower back which is constant, but she may only develop the feeling of pain with various postures and activities, without referred or radicular symptoms in either lower limb. She was generally stiff and sore in the mornings, but uncertain whether this is from her back, her rheumatoid arthritis or both. After a warm shower, she is generally okay after 30 minutes.
73In his opinion: [39]
“In the absence of any more specific or acute pathology on this single imaging [of the lumbar spine on 23 January 2020], it would seem that the diagnosis is likely ‘aggravation of’ pre-existing but non-bothersome lower lumbar spondylosis (including the degenerative spondylolisthesis), producing back pain but without radiculopathy or cauda symptoms.”
[39]PCB 95
74Unable to provide a prognosis without a definitive physical diagnosis, Mr Carey anticipated her current “bothersome symptoms” will persist into the foreseeable future. In his opinion, the progress of her underlying degenerative condition at L4‑5 would not have been influenced in any substantial way by the incident at work as described on 17 January 2020, and that no further treatment is required. His report states that “it seems that her condition is benign”.
75Mr Carey accepted that the incident at work was a significant contributing factor (by aggravation) to her current condition. He expected an exacerbation of symptoms from time to time, “as you would expect with age-related degenerative lumbar spondylosis in the general population”;[40] and that she would remain fit for the work she is doing at present on current hours.
[40] PCB 98
76It is likely that Mr Carey’s opinion as to causation has been infected by the history he obtained that, “over all this time [from the date of injury to the date of Mr Carey’s report] her principal treatment has been through her GP and physiotherapist”.
77Mr Carey’s evidence is internally inconsistent: on the one hand that she suffers from an ongoing aggravation to her underlying osteoarthritic condition at L4-5; on the other that “the progress of her underlying degenerative condition at L4-5 would not have been influenced in any substantial way by the incident at work”.
78I prefer the evidence of Ms Rowe’s treating medical and allied health practitioners, supported by the opinions of Drs Davison and Reiter, and find that the initial aggravation has resolved.
Conclusion
79Relying, in particular, on the opinions of Ms Rowe’s treating general practitioner and physiotherapist, I find that she has no ongoing compensable injury as at the date of this application.
80Taken as a whole, the evidence establishes that Ms Rowe’s low back returned to its pre-injury state in or about September 2020, and she is currently left without symptoms save for occasional flareups, which – even on the evidence of Mr Carey – relate to her underlying osteoarthritic condition.
81Leave is refused to the plaintiff to commence proceedings for damages in respect of injuries suffered in the course of her employment on 17 January 2020.
82I will hear the parties as to final orders including costs.
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