Sheridan v Victorian WorkCover Authority
[2018] VCC 1431
•13 September 2018
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Case No. CI-17-03960
MARY SHERIDAN Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATES OF HEARING: 24, 26 April 2018
DATE OF JUDGMENT: 13 September 2018
CASE MAY BE CITED AS: Sheridan v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION: [2018] VCC 1431
REASONS FOR JUDGMENT
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WORKERS COMPENSATION – Application for leave to bring common law proceedings – Serious injury – Disentanglement – Leave refused
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APPEARANCES: Counsel Solicitors
For the Plaintiff Ms S Manova with Zaparas Lawyers
Ms M Yervsalimsky
For the Defendant Ms L Glass Hall & Wilcox
HIS HONOUR:
In this application for leave to issue common law proceedings for pain and suffering damages, the plaintiff alleges that she sustained a serious injury to her spine as a result of an incident in the course of her employment on 12 February 2015. In addition, or in the alternative, she claims that she sustained an injury to both shoulders in the same incident. Alternatively, she claimed an injury to her right shoulder. She thus also seeks a certificate for either a bilateral, or right, shoulder injury.
The issues in the proceeding included whether the plaintiff at the present time was in fact suffering any relevant injury to her spine. In this regard, the issue was whether the plaintiff’s current complaints related to a physical injury (limb (a) of the definition), or whether there was also a psychological or psychiatric condition (limb (c) of the definition). If there was also a psychological component, the issue was whether or not any physical injury could be properly disaggregated from a non-physical injury.
In the event that the plaintiff had a relevant physical injury, the issue was whether the pain and suffering consequences of a spinal injury met the relevant test.
In relation to the plaintiff’s shoulders, the issues were whether, if the plaintiff suffered a physical injury to one or both shoulders, these could give rise to a relevant impairment to a body function. In the event that there was a relevant impairment, then the issue became whether the impairment met the relevant test.
The employment, the injury and its sequelae
In February 2015, the plaintiff was a 54-year-old widow of Maltese extraction living with her three adult sons.
She was working in an IGA supermarket as a cashier and in the liquor department. As part of her duties she was required to close a heavy steel sliding door to the car park when the supermarket was locking up for the night. Sometimes the door or gate had to be closed manually. On 12 February 2015, the plaintiff and two other employees were attempting to close the door manually. She was standing in the middle of the door offering assistance, with the other two employees on each end of the door. The door became loose from its tracks and fell forward onto the plaintiff pinning her to the boot of a car nearby. She was pinned in that position for about a minute and could not breathe. The other two employees managed to push the door enough so that she could drop to the ground in the gap created. An ambulance was called and she was taken to the Western Hospital. She had trouble breathing in the ambulance and scans and X-rays were undertaken at the hospital. She was offered the opportunity to stay overnight but declined as she was afraid of hospitals. She was given Panadine Forte and discharged. The hospital records indicate that, after the X-ray results were examined, no abnormalities were detected. The plaintiff felt well after analgesia and was advised to return if she had any concerns. When the plaintiff arrived back at home, she had what she described as an anxiety attack.
The following day, although she could not recall this under cross-examination, she attended the Waterdale Medical Clinic. The clinical notes indicated that upon examination there was no tenderness and no restricted movement. The reason for contact was recorded as “minor trauma” and she was given analgesia. On the same day the plaintiff also saw Dr Al-Raheb from St Luke’s clinic and was noted to have pain on the lower thoracic and upper lumbar spine following a fall at work. The plaintiff saw Dr Al-Raheb on 16 and 17 February 2015. On the latter date the plaintiff complained of right shoulder and back pain. The plaintiff saw Dr Al-Raheb again on 27 February 2015 where she complained of neck pain. On 16 March 2015, she again saw Dr Al-Raheb and was referred for physiotherapy. The plaintiff saw her physiotherapist for the first time on 23 March 2015. On the same day, she saw Dr Al-Raheb and was advised of the CT results of the lumbar spine. The plaintiff saw Dr Al-Raheb on 17 April 2015 and complained of persistent neck pain.
The plaintiff was the subject of a number of diagnostic tests. A lumbar CT scan taken on 23 March 2015 identified severe spondylosis, mild canal stenosis at L4-5 and L5-S1, but most marked at the L4-5 region due to a posterior disc bulge. There was possible irritation or slight impingement of the exiting L4 and L5 nerve roots and moderate bilateral L4-5 facet joint arthritis.
A CT of the cervical spine on 18 April 2015 identified moderately severe C5-6 acquired canal stenosis due to a broad posterior disc osteophyte complex and marked degenerative spondylosis. There was likely C6 nerve impingement.
10. A MRI on the plaintiff’s cervical spine on 11 May 2015 identified moderate spondylosis together with multilevel disc bulges. A C5-6 nerve impingement was identified and neural narrowing at the C6-7 with mild impingement of exiting nerve roots. Similar findings were made in relation to the plaintiff’s lumbar spine with degenerative OA at L5/S1 and multilevel disc bulges.
11. The plaintiff’s treatment with Mr Strintzos, physiotherapist, consisted of massage mobilisation and an exercise program – the plaintiff was still in considerable pain throughout this time. She was referred to Dr Ong on 1 May 2015 and he arranged for additional investigations and changed her medication regime.
12. The plaintiff returned to work about a week after the incident but struggled with her usual shift work because of the pain in her back, neck and shoulders. She continued to work her normal shift hours with a weight restriction of five kilograms until she saw Dr Ong. On 29 May 2015, the plaintiff reduced her work hours, and after a few months, this increased to 24 hours, and thereafter, 32 hours per week. In this period, she continued physiotherapy and regular consultations with her treating doctor as she was still in considerable pain. On or about 18 October 2015, the plaintiff lost her job at the supermarket.
13. After a period of unemployment, in March 2016 the plaintiff obtained a part-time job doing bar work at the Sunshine City Club and also began working at a local hotel. After two weeks of working at the hotel, the plaintiff stopped working there because the job involved cleaning, which caused too much pain in her back, neck and shoulders. The plaintiff deposed to feeling depressed as a result of the pain she was in.
14. The plaintiff was then in a position to begin working about 34 hours a week at Sunshine City Club because the work was lighter. The plaintiff continues to work in this position today. It is a very light job. She works between 36 to 38 hours one week and 33 to 34 the following week. Her duties involve serving at the bar, wiping down tables and distributing coins for the poker machines. She is required to restock the bar with bottles and take trays of glasses out of the dishwasher and place them at waist level onto the bar.
Course of treatment and reports from treating and examining practitioners
15. The plaintiff first attended Dr Ong, an Emergency and Trauma Medicine, Pain Management Program and Rehabilitation Program, consultant on 1 May 2015.
16. Dr Ong described her presenting complaint as neck pain with radiculopathy down her right arm and into her hand, right shoulder pain, lower back pain and radicular symptoms down both legs and noting that she was right-hand dominant.[1]
[1] Report of Dr Malcom F. S. W C-Ong dated 20 May 2015 (Plaintiff’s Court Book p. 22).
17. He noted that the plaintiff was seeing her physiotherapist and making slow progress. She was, at that stage, taking a number of medications. The plaintiff described her pain levels as 7/10 on average, with the worst being 9, and the best being 6. Her pain levels increased with activities and work, but decreased with rest and medication. Dr Ong noted that her sleep was disturbed for three to five hours each night.
18. He noted the various investigations, and found the range of movement limited in the neck, shoulders and lumbar spine.
19. His “impression/diagnosis” was “subacute to chronic neck/shoulders/lumbar injuries from musculoskeletal, discogenic, osteoarthritis and degenerative and possibly neurocompressive disease, from a work injury”. He found that the plaintiff was developing chronic pain syndrome, significant anxiety, mild depression and adjustment disorder.[2]
[2] Ibid.
20. His initial plan included return to work with restrictions and a referral for pain management if and when required.
21. Dr Ong noted:
“Following her further scans, it appears she does have significant pathology in her neck, lower back and shoulders. Given the injury is fairly recent, I have asked her to continue with rehabilitation acutely and manage her pain symptoms concurrently.
She is developing chronic pain symptoms and may need a pain program. If she does not get better or deteriorates, I will refer her to see an orthopaedic surgeon to exclude surgical indications.
Her mental state needs close monitoring. She remains anxious and depressed and has ongoing pain focus but she is trying to defocus and maintain her work duties as well as engage in gentle regular activities for the long term.
…Her conditions are consistent with her stated cause. Her injuries are subchronic becoming more chronic and have not yet stabilised.”[3][3] Ibid, p.25-26.
22. On 16 September 2015, Dr Ong provided an up-to-date report to the insurer in essentially the same terms.[4] He noted, however, that she was currently working 32 hours per week in alternative duties. She was now undergoing pain management and medical reviews with escalated and modified pain treatment programs. He noted she may be a candidate for a multidisciplinary pain management at a later stage. His impression was similar, although he now noted that the plaintiff was “developing chronic pain syndrome, centralisation of pain syndrome, significant anxiety, mild depression and adjustment disorder”.
[4] Report of Dr Malcom F. S. W C-Ong dated 16 September 2016 (PCB p. 27).
23. In his next report on 5 May 2017,[5] Dr Ong reported that the presenting complaint was the same as previously, although he now added “secondary depressive and anxiety symptoms”.
[5] PCB p. 33
24. He noted that the plaintiff had obtained alternative employment and her medication was reduced to Panadol Osteo, Celebrex and Endep. The pain scores were noted as an average of 5-7, with the worst being 8-9 and the best from 3-4/10. Dr Ong noted that although the plaintiff continued to have disturbed sleep of five to six hours, this was better than previously.
25. Dr Ong now diagnosed the plaintiff as having “chronic pain syndrome of neck/shoulders/lumbar spine, developed persistent pain syndrome (which will continue indefinitely), centralisation of pain syndrome, significant anxiety and mild depression developing, adjustment disorder and some PTSD traits from her injury”.[6]
[6] PCB p. 40.
26. His ongoing plan included to wean her into self-management strategies, aim to wean medications and refer her to a pain management program at a later stage if indicated.
27. In his final report dated 29 March 2018,[7] Dr Ong indicated that he last saw the plaintiff on 9 November 2017. He noted in that report that there had not been no particular complaints of left shoulder pain “apart from occasional mention of possibly compensatory pains in her left arm if she does over do things”.[8] He then essentially repeated his earlier report. He opined that:
“[the plaintiff] may well have aggravated her left shoulder from overuse/compensatory use, having the knowledge of her existing conditions previously and the type of hard working individual that she is.
Also, the fact that she is more likely to aggravate the left arm being the non-dominant arm.”[9][7] PCB p. 38.
[8] PCB p. 39.
[9] Ibid.
28. He was of the view that she could work with limitations up to four to five days per week, at six to eight hours per day, in a less intensive or sedentary role. Dr Ong noted that her prognosis remains guarded, and that it is likely the plaintiff will suffer persistent pain syndrome and limited capacity for the foreseeable future.[10]
[10] PCB p. 41.
Assessment of Dr Ong
29. In closing address the defendant criticised the reports of Dr Ong as essentially discursive. They essentially repeat the initial impression/diagnosis, and continued to describe the plaintiff as suffering from consequences of the original incident.
30. Further he did predict the development of a chronic pain syndrome. The opinions do not seek to differentiate out any physical or psychological conditions. Dr Kostos criticised the reports for identifying investigation findings as injuries. In final address I was urged to give solicitude to the reports from the treating practitioner as he had seen the plaintiff on a large number of occasions.
31. The repetitive content of the reports weakens them in my view. Further, the reports fail record any improvement in the plaintiff’s condition over the period notwithstanding that the plaintiff was able to return effectively to a lighter full-time position. Further, it is difficult to reconcile the conclusions with those of Dr Ho who found full movement of the limbs when he saw the plaintiff in July 2015.
Reports of physiotherapist
32. In March 2015, the plaintiff was referred for physiotherapy to Mr Strintzos and remained under physiotherapy treatment until about October 2017.
33. In his report of 8 April 2018, he noted that as at 17 July 2015, she has reported significant improvements in a number of her symptoms. He noted that her right shoulder injury had predominantly resolved. She had “full range of lumbar, cervical and shoulder movement.” Neurological testing of upper and lower limbs was unremarkable, and compared to initial assessment neck disability score had improved from 52 to 28% and back from 58 to 28%.
34. When first assessed, she was placed on a gym-based exercise program. In March 2016, she was reporting increased right shoulder pain and at that point underwent a cortisone injection. She was referred for a pain management program for eight weeks which she completed on 13 September 2017.
35. He concluded that she had aggravated pre-existing changes in the incident and the symptoms had not fully resolved. The injuries had stabilised and ongoing pain and functional limitation will persist in the foreseeable future.
36. He could not comment on the left shoulder, but found her right shoulder injury had stabilised and any mild function restriction was likely to persist.
Reports of Dr David Ho
37. On behalf of the insurer of the plaintiff was examined by an occupational health consultant, Dr David Ho on 14 July 2015. Upon examination he found no abnormality in her shoulders or arms, and active movement in both shoulders were equal to full range. He noted widespread symptoms in her right arm and non-specific areas in her back. He found “clinical examination however is essentially normal with full range of movement in her neck and her thoracolumbar spine without any local tenderness. Similarly movements at both shoulders and all joints in both arms and legs were essentially to full range.” He concluded “after today’s clinical examination I believe the likely soft tissue injury from the reported incident at work on 12th February 2015 has most likely resolved. I believe Ms Sheridan may be suffering from unresolved psychological effects from the incident with reported anxiety attacks.” He noted that she may benefit from counselling from a psychiatrist or psychologist. She was working on pre-injury duties but reduced hours and noted that the plan was to increase the hours of work.
38. His final opinion was that “in my opinion she could possibly have sustained an aggravation of pre-existing degenerative spondylosis or changes in the cervical and her lumbar spine. However with a full range of movement in her cervical and thoracolumbar spine I believe the likely or possible aggravation had resolved.”
39. In his second report following an examination on 28 March 2017 he reiterated his conclusion that the soft tissue injury had resolved. Any exacerbation as a result of the incident would be temporary. He noted that the plaintiff was reporting “a mixture of symptoms of a non-specific nature in her neck, shoulders and lower back. However clinical examination today revealed essentially full range of movement in her shoulders and her lower back.” He noted a greater restriction of movement in her neck than the previous examination. He was of the view that the plaintiff did not have a current injury or condition from the incident and her prognosis was good. He noted that she had a physical capacity to perform the physical requirements of her pre-injury duties and hours with an alternate employer/workplace or environment. She did not require any further treatment and her prognosis was favourable.
Assessment of Dr Ho
40. There is a stark contrast between the opinions of Dr Ho and those of Dr Ong. The former is of the view that the plaintiff has recovered from any injury sustained in the incident whilst the latter is of the opinion that there has been no recovery and the development of a pain syndrome. Significantly Dr Ho does record examinations showing a full range of movement. His first report coincides with the opinion of the physiotherapist that the plaintiff was reporting an improvement in her range of movement. Dr Ong does not appear to record examination findings in his reports. The second report of Dr Ho followed examination taken around the same time as the first report of Dr Kostos. Their conclusions are very similar. Dr Ho is of the opinion that there is a psychological contribution that needs to be addressed. Until the pain management program occurred during 2017 this had not occurred.
Reports of Dr Entwisle
41. The plaintiff was examined by this psychiatrist on 3 March 2017 and 5 February 2018. In his first report he noted that Dr Ong made a diagnosis of a chronic pain syndrome with significant anxiety, mild depression developing and an adjustment disorder. He noted that the plaintiff was feeling much better now that she had returned to work. He found that the plaintiff was not suffering from an adjustment disorder and the “current presentation is consistent with that of a pain syndrome”. She did not have a mental injury. His opinion was that she had a capacity to perform her pre-injury duties and he noted that she was working full-time. Her prognosis in relation to a psychiatric condition was good and she did not require further psychiatric treatment.
42. In his final report, having reviewed an extensive volume of material from other examiners, and noting that the plaintiff had been the subject of an armed robbery at her employment, he found that her diagnosis was “signs and symptoms of a pain syndrome” and “resolving post-traumatic stress disorder.” The latter is a reference to the armed robbery.
43. Again he found that there was no diagnosable mental injury. He confirmed in a later report dated 29 March 2018 that the plaintiff’s treatment with Endep could be appropriate as it is often prescribed “in low doses for pain particularly where functional factors and or chronic pain are involved. This is so in Ms Sheridan’s case”. It was not required or indicated from a psychiatric perspective.
Assessment of Dr Entwistle
44. There is consistency between the conclusions of Dr Ho and Dr Entwisle that the plaintiff has recovered from any physical injury but has a pain syndrome or psychological issues. His conclusion that the plaintiff has a pain syndrome is consistent with that of Dr Ong and also Dr Aliashkevich.
Reports of Dr Kostos
45. Dr Kostos examined on 22 March 2017. He found that the plaintiff had a full range of pain-free movement in her shoulders. The thoracolumbar spine was straight and movements were restricted with pain only in flexion and extension. She did not have lumbar spine tenderness but was tender over the upper sacral. He had the various investigations. He found that his only relevant examination finding was that the plaintiff was stiff throughout the spine with no other abnormalities found. The diagnosis was that “this woman has a stiff spine, presumably secondary to pre-existing constitutional disc degeneration and osteoarthritis. The investigations she has had cannot provide a diagnosis of her spinal pain.” He noted that the abnormalities found in the shoulder were unreliable. He said that she did not have any ongoing issues in her shoulders as demonstrated by the physical findings. He found that Waddell signs were not present. In relation to whether she had an injury he said:
“Although I do not believe that she has sustained an injury, it is clear that she has had a very traumatic experience and it would appear that she continues to suffer from psychological problems related to this incident but obviously this would be best assessed appropriately by a psychiatrist. However it is quite apparent that she has relied on passive treatment and as a result her clinical course has been exactly as expected in that her condition has not improved. Her condition will not completely resolve without further intervention.”
46. He went on to say that the plaintiff did not have a normal spine at the time of the accident but seemed to be coping quite well:
“Her stiff spine relates to constitutional factors as I’ve noted above and this has been contributed to by a passive treatment program. I do not believe the workers employment is a significant contributing factor to a particular injury but has resulted in a series of events that have led to her current presentation.”
47. He went on to say that there is no material contribution by the employment but that the plaintiff “has ongoing problems related to a stiff spine.” He found the prognosis poor but “if she can improve her spinal mobility her prognosis will improve.” He further indicated that she needs advice as to the nature of her condition and needs to have psychological issues dealt with and to pursue an active exercise program to improve her spinal mobility.
48. Dr Kostos examined again on 9 February 2018. He noted that the plaintiff had been involved in a pain management program where she found the group and individual counselling sessions helpful but struggled with the physiotherapy and the gym program. She was now no longer seeing Dr Ong and overall there had not been a change in her condition. The pain was now worse in the left shoulder but the low back pain seemed to be her main problem. She has pain at night which results in poor sleep patterns. The pain was aggravated by a stationary position. He noted that she continued to work full-time. He noted that there was an increase in pain levels with more anxiety and panic attacks after the robbery. He found a full range of movement of the shoulders with pain on the left. The neck movements were slightly restricted. Whilst examining the plaintiff’s spine the plaintiff made a gagging noise and he ceased the examination.
49. His conclusions were that the plaintiffs spinal movements were much improved but tenderness was more widespread. He found left shoulder adhesive capsulitis. He confirmed there was no evidence of an injury related to the incident in 2015. He found that there were nonphysical factors also impinging on her presentation and that Waddell signs were now present. He concluded “unless the worker understands the true nature of her problems and embarks on an exercise program and her psychological issues are dealt with, there is little likelihood of any improvement in her condition”. He found the prognosis poor.
50. In a supplementary report dated 3 April 2018, having reviewed the notes from the clinics, he opined that the various investigations were misinterpreted and that the treatment based on the misinterpretation had failed. He noted that there had been prior attendances for back pain and stress. The additional information confirmed his previous opinion. He recommended that the Celebrex be discontinued.
51. In a final report dated 23 April 2018 he again confirmed that the shoulder ultrasounds are unreliable. He disagreed with the opinion of Dr Weekes as not being evidence based. He disagreed that overuse could cause the left shoulder problems.
52. He also disagreed with the opinions of Dr Aliashkevich which he said ignored the medical evidence and “used the results of investigations to make a diagnosis.” He asserts that the investigations cannot be used to determine the cause of pain. He concludes:
“the occupational restrictions detailed by Mr Aliashkevich each are completely non-evidence based and only served to medicalise the worker’s condition further and will inevitably lead to a continued deterioration in her condition. His report can be completely discounted.
Therefore this case emphasises the need for workers to be under the care of doctors with expertise in musculoskeletal medicine and if this had been done all of the issues that I have detailed could have been avoided.”
Assessment of Dr Kostos
53. The opinions expressed in the reports are categorical. He takes a club to every contrary opinion on the field. He opens his report dated 3 April 2018 with the statement “I am appropriately qualified to write the report that follows, and I have no conflict of interest.” He had read the Expert Witness Code. He concludes his reports dated 30 March 2017 and 27 February 2018 with: “This report is an independent and impartial reflection of my findings and conclusions based on my examination and the evidence provided to me. The contents of this report are true to the best of my knowledge and belief.”
54. The examination findings are similar to those of Dr Ho. The conclusions are very critical of the treatment by Dr Ong and the conclusions of Dr’s Weekes and Aliashkevich. The plaintiff submitted no reliance should be placed on the opinion of Dr Kostos on the basis that he found no injury, yet injury had been admitted by the employer. I will return to that submission below.
Reports of Dr Weekes
55. This pain specialist examined on 28 February 2018 the plaintiff described constant low back pain, 6/10, she had pain 6/10 with radiation into both shoulders she also had bilateral shoulder pain worse on the left that began after the incident. Left shoulder pain seems to have begun about six months ago secondary to increase use of the arm. Right shoulder pain averages 5/10 and left side 8/10.
56. He noted that the plaintiff did have some symptoms suggestive of depression. He diagnosed “aggravation of cervical spondylosis and lumbosacral spondylosis. Contributing factors include myofascial pain and possible sensitisation.” He was of the opinion that the shoulder pain was secondary to cervical spondylosis. He recommended further investigation in relation to the left shoulder.
57. He linked the ongoing symptoms to the incident. He concluded by stating “it is my opinion that there is a significant physiological contributing factors (sic) to her right and left shoulder pain and back and neck injury/pain as detailed above.” This reference is difficult to understand, and has the appearance of “boilerplate”. In his report he noted that the plaintiff has been referred for a pain management which had helped her “somewhat psychologically.” He also refers to her mood. It is not clear whether this reference to myofascial pain and possible sensitisation is a reference to a physiological or a psychological condition. He opined that there would be future employment restrictions and that the prognosis was relatively poor.
58. In a further report dated 17 April 2018 he had been provided with an ultrasound of both shoulders. He maintained that the finding of bursitis and tendinitis could be contributing to the pain in the left shoulder and recommended a steroid injection. He also noted that it is most likely that there is a myofascial element to the pain in the left shoulder that is contributing.
Report of Dr Aliashkevich
59. In his history he records the plaintiff complaining about “severe pain across her neck and lower back and a pain in both shoulders. She scores the intensity of her pain as being around 6/10 – 8/10 despite particular pain medications” he notes that she is very limited in her domestic and social activities.
60. After examination and considering the various other reports and investigations states that diagnosis of the plaintiff’s back (neck) injury was as follows:
§ Chronic and refactory low back (neck) pain
§ History of work-related injury on 12 February 2015
§ Chronic numbness of the big right toe (in the hands)
§ Lumbar (cervical) spondylosis with multilevel disc bulges
§ Degenerative disc disease at L5/1 level (right foraminal stenosis C5/6 with impingement of C6 nerve root) (bilateral foraminal stenosis of C6/7)
§ Degenerative facet arthroscopy bilaterally at L3/42 at L4/S1 levels
§ Chronic pain syndrome
§ Central sensitisation, suspected myofascial pain syndrome
§ Depression
§ Smoking 8 cigarettes per day
61. His conclusion was that her condition was “consistent with the stated work related injury. In my opinion, her injury was a materially contributing factor to significant aggravation of her pre-existing cervical and lumbosacral spinal degenerative condition.”
62. Noting that he was not a qualified pain specialist or rheumatologist he opined that the injury “had started a cascade of chronic pain syndrome, typical for central sensitisation and likely subsequent evolution of a myofascial pain syndrome/fibromyalgia syndrome. In my opinion, Mary is experiencing the pain amplification/distortion from the development of central sensitisation on a background of organic aggravation of her spondylosis and musculoskeletal injury.” He was of the view that there was an organic basis for her condition and that her pain had evolved into “a chronic pain syndrome and possible myofascial pain syndrome due to central sensitisation.” He referenced two medical journal articles on myofacial pain.
63. He was asked as to the organic basis for the plaintiff’s pain and opined that it was organic in character. The possible physiological sources included aggravated degeneration, aggravated impingement of the nerve roots, and the stretching/crushing injury to the spinal ligaments. He does not seek to apportion the contribution from those sources. He was unable to make comment on the shoulder injury.
Assessment: an advocacy report?
64. It is difficult to assess this examiner’s report. It is based on a single examination. It is premised on an unchanged trajectory of the plaintiff’s condition since the accident, yet while she had a period off work she is now, on her own admission, working almost normal hours in a light job.
65. It has the appearance of an advocacy document in that the examiner gives a very wide list of possible injuries, conditions and consequences without any nuanced analysis of the relative contribution, history and trajectory of each. Further, he gives an opinion in two areas, namely pain management and rheumatology, and as an occupational specialist, outside his admitted expertise. In support of the former opinion two dense medical journal articles are attached, without any analysis of which particular parts are directly on point. The report purports to have considered the reports of other specialists yet does not specifically refer to them. Although he records that the plaintiff has chronic pain syndrome, he does not address its significance in the clinical picture.
66. I will return to the weight to be given the report below.
Does the plaintiff have a left shoulder injury?
67. The defendant admitted for purposes of payment of compensation injuries to the lumbar spine, neck and right shoulder. The defendant denied any injury to the left shoulder.
68. In support of the argument that the plaintiff has an injury to the left shoulder, the plaintiff relies on her complaints of pain to her left shoulder and dysfunction. Further, she argues that she has suffered an overuse injury to the left shoulder as a consequence of the injury to the right shoulder.
69. The defendant disputes any injury to the left shoulder noting that the original complaints of pain to the left shoulder only emanated around six months prior to the hearing. The competing medical evidence is that Dr Kostos disputes there is any injury at all to the left shoulder. Mr Christopher Pullen, who only saw the plaintiff once, is of the view that the plaintiff has suffered a bilateral injury to her shoulders. This report, however, notes an identical range of movement between the two shoulders. Dr Ho makes no reference to a left shoulder injury. He noted in his report dated 30 March 2017 that the left shoulder was not a problem currently. In his earlier report he had indicated full movement in both shoulders.
70. Dr Ong in his final report notes that injury to the left shoulder was not part of the original injury. He is of the opinion that such an injury could be secondary to the right shoulder injury.
71. Dr Weekes is of the view that complaints of pain to the right shoulder and arm could emanate from the cervical spondylosis.[11] He also suggested that the pain in the left shoulder may emanate from the bursitis identified on an ultrasound. He suggested an injection to resolve the matter. That has not occurred. Dr Kostos has found frozen shoulder. He is of the opinion that is an idiopathic condition and not related to overuse.
[11] Report of Dr Gavin Weekes dated 28 February 2018 (PCB p. 62).
Conclusion: no left shoulder injury
72. The very late in the piece complaints of pain to the left shoulder support the proposition that the plaintiff has not suffered any injury to her left shoulder in the original incident. That conclusion is supported by Dr Kostos and the plaintiff’s own treating practitioner, Dr Ong, who does not support her on this point. I find the opinion of Dr Weekes not of assistance on this point and prefer the conclusion of Dr Kostos that the plaintiff has not suffered an injury to her left shoulder. His direct opinion that favouring the left shoulder would not cause the current condition is supported by the earlier lack of complaint.
Final address issues
73. I turn now to consider the issues thrown up in final address in relation to the admitted injuries to the cervical and lumbar spine and right shoulder arising out of the incident.
74. The defendant’s case was that the plaintiff was required to first identify a physical injury, and then when such an injury has been identified, satisfy the Court that the pain and suffering consequences met the “at least very considerable” test. Applying the two-step test essayed in Meadows v Lichmore Pty Ltd [2012] VSCA 1290, which itself emanated from the earlier decision in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46, the defendant submitted that the plaintiff on the medical material could not satisfy the Court that there was a substantial organic basis for the pain and suffering consequences relied on. Alternatively the medical material did not sufficiently allow for a “disentangling” of the physical or organic contributions from the psychological contributions as required under s 134AB(38)(h) of the Act.
The competing medical opinions
75. There are two widely disparate threads to the medical material in this matter. The plaintiff’s material, relying on the treating doctor, Dr Ong, and supported in relation to the shoulders by Mr Pullen, and in relation to the spine and neck by Drs Weekes and Aliashkevich is that the incident aggravated an underlying spinal condition and that the pain consequences of that aggravation remain. The plaintiff’s case is that she suffered an aggravation of degeneration in her cervical and lumbar spine as a result of the incident. Her case is that that injury continues to cause her impairment, and that impairment will continue indefinitely.
76. In contrast, the defendant’s position, as encapsulated in the opinions of Drs Ho and Kostos is that the plaintiff now no longer has any continuing physical injury as a result of the incident and her presentation is that of a pain syndrome which is a psychological condition, and which could only be the subject of a limb (c) claim. Any aggravation of underlying degeneration has well and truly resolved and that the plaintiff’s present complaints are of a psychological nature and do not amount to evidence of a physical injury. Alternatively, insofar as the plaintiff is complaining of pain emanating from her spine, then this is a psychological response as distinct from a physiological response to the incident. It follows from this, according to the defendant, that the plaintiff is not in a position to prove that she has a physical injury. Rather, on the material, she does not have an organic limb (a) injury at the present time or, alternatively, on the material before the Court, the physiological consequences of that injury cannot be separated from the psychological and psychiatric consequences as required under s. 324 of the Act. The plaintiff is also not now suffering from any shoulder injury, and certainly not a left shoulder injury.
77. It was not in dispute between the parties that the plaintiff is entitled to combine a lumbar, thoracic and cervical spine injury.
What is the nature and extent of her spinal injury?
78. The issue is to first to identify the physical injury, its nature and extent, and then determine whether it is a long-term injury.
79. It is convenient to first consider the plaintiff’s claim that she has an organic spinal injury, the pain and suffering consequences of which meet the relevant test.
80. The Western Health report indicates that the plaintiff had “minimal pain mid-thoracic and left anterior chest wall fourth rib medically. Moving all limbs normally”. She was stated to have “felt well after Panadeine Forte with minimal pain and keen for discharge.”
81. The plaintiff records in her affidavit that she had pain in her lower back, neck and right arm when she saw her general practitioner after the incident. The Waterdale clinic notes of 13 February 2015 indicated that on examination there was no tenderness and no restricted movement, and the reason for contact was listed as “minor trauma”. She was given analgesia.
82. The St Luke’s medical records indicate that x-rays of the thoracic and lumbar region were ordered on 13 February 2015. On 17 February, the plaintiff was complaining of right shoulder pain and back. She also had neck pain for one day in a note on 27 February. The report of 17 April 2015 refers to persistent neck pain. The initial examination by the physiotherapist on 23 March indicates non-specific cervical and right shoulder pain. It also indicates that the plaintiff had developed low back pain, neck and distal right arm pain. In evidence the plaintiff indicated that she requested a referral to a physiotherapist as her general practitioner kept assuring her that she would recover and the pain did not go away.
83. In the initial notes of Dr Ong, there was no reference to pain in the left shoulder. There was, however, limited range of movement of the shoulders. In the initial reports he referred to the need to closely monitor her mental state.
84. In final address the defendant submitted that the contemporaneous records of the incident support the conclusion that the original injury was relatively minor but that the plaintiff suffered a significant psychological response to it. It was that response, in a sense predicted by Dr Ong, that was carried through to the present time and was dominating her presentation.
Conclusion as to current condition with no cross-examination of doctors
85. Reconciling the competing medical opinions in order to reach a conclusion as to the plaintiff’s current condition is not easy in circumstances where the doctors have not been called for cross-examination and, save for Dr Kostos, have not expressed an express opinion on contrary doctors’ reports.
The plaintiff’s attack on Dr Kostos
86. The plaintiff’s counsel was very critical of the reports of Dr Kostos, and submitted that they should carry little weight as they are at odds with all other opinion. She emphasised that he had found that there was no current injury in circumstances where the defendant had admitted injury for the purpose of payments of compensation. He had not explained how, given the finding of spinal stiffness, and the medical investigations showing degeneration, the plaintiff’s pain complaints could not be attributable to that finding.
87. She also submitted that Dr Kostos had not exposed a path of reasoning given the employment “has resulted in a series of events that have led to her current presentation” yet he does not identify how the accident was involved.
88. Finally, by seeking to assert that the investigations have been misinterpreted as representing injuries, on the basis that many asymptomatic individuals would have such findings, he does not grapple with the fact that the plaintiff was asymptomatic prior to the incident, yet now has chronic neck and spine pain.
Dr Kostos preferred
89. I do not see the criticisms as decisive in a consideration of the weight to be accorded to the opinions. In considering the opinion of Dr Kostos, it must be recalled that Dr Ho had indicated that he regarded any underlying aggravation as having ceased by the time he first examined in July 2015 and confirmed that on the second examination in 2017. What Dr Kostos appears to be saying, in a shorthand manner, is, as he indicated in his report dated 27 February 2018, that “I do not believe that she has ongoing evidence of an injury related to the incident in 2015.” In making that statement he is consistent with the opinion of Dr Ho. Dr Ho records that he has undertaken two careful examinations.
90. There is a fundamental divergence between the approach of Dr Kostos and that of Drs Ong, Weekes and Aliashkevich. The latter two doctors give prominence to the findings upon investigation. They have only seen the plaintiff once.
91. On the other hand, Dr Kostos has opined that the various investigation results do not constitute a diagnosis as such and the findings could just as easily be found in asymptomatic patients. He focusses on the need for proper examination findings in order to identify an injury. His opinion is that the plaintiff’s present condition is not related to the February 2015 incident. She is not “injured” and needs to be told that and have her psychological and social issues dealt with.
92. He is either right or wrong about that matter. He has expressed his opinions on the present condition of the plaintiff after his two examinations and after considering a large volume of material including the opinions of Drs Ong, Weekes, Ho, and Aliashkevich.
93. It is very unsatisfactory to have to weigh his forthright opinions over the competing opinions without both sides having an opportunity to articulate their criticisms of each other, and face cross-examination.
94. I have considered the criticisms made by Counsel for the plaintiff of Dr Kostos and the favourable weight that is often given to the treating practitioners, but do not consider them persuasive. I am not prepared to dismiss out of hand the considered opinions of a well-regarded medico-legal examiner in circumstances where the plaintiff’s criticism of him have not been tested in the traditional way.
95. After considering the competing arguments, in reaching a conclusion as to the plaintiff’s present condition, and the nature and extent of any injury arising out of the incident, I give particular weight to the reports of Drs Ho and Kostos over those of Drs Ong, Weekes and Aliashkevich. While Dr Ong has treated the plaintiff over the period 1 May 2015 to November 2017 his reports are essentially repetitive and discursive. He opined in his first report that the plaintiff would develop a pain syndrome and continues to include that as a consequence of her work injury without any rigorous analysis as to whether the original physical injury has resolved. He repeatedly notes that the plaintiff has significant anxiety and mild depression,yet does not address the extent to which this is relevant to his “impression/diagnosis”. He does not appear to address the opinion of the physiotherapist that there had been an improvement in her physical outcomes as assessed by him. The physiotherapist described the right shoulder injury as “stabilised and any mild function restriction is related to the work injury and likely to persist in the foreseeable future.” He does not grapple with the original treatment of the plaintiff at the hospital and by her GP, which was that this incident was minor. That is consistent with a reference to the opinion of Dr Karna in Dr Entwisle’s report of 12 February 2018 that the plaintiff on 23 January 2017 “presented with symptoms but not signs of a physical injury in regard to her cervical spine.” (emphasis added)
96. Notwithstanding the criticisms by the plaintiff, I find Drs Ho and Kostos are convincing. Each of them has seen the plaintiff on two occasions and as early as 15 July 2015 Dr Ho was of the opinion that the plaintiff’s soft tissue injury had resolved and that she needed psychological counselling. His full qualifications and experience were not in evidence, but the two reports have an internal consistency and coherence that any physical injury had resolved, that must be accorded weight.
97. Consistent with a physical recovery the plaintiff in the period from the time of Dr Ho’s original assessment, and consistent with the initial reaction of the plaintiff’s GP that she would recover, she had been able to resume nearly full-time employment with the defendant and then later with another employer albeit in a light job. That she has been able to continue in effectively full-time employment, albeit light, is consistent with the opinion of Dr Kostos that she is not presently suffering any physical injury as a result of the incident.
98. The plaintiff on the other hand, relying on the opinion of Dr Aliashkevich and to an extent Dr Weekes, submits that the plaintiff has an underlying physical condition that is dominant or provides a substantial organic basis for her complaints. The condition is aggravation of her pre-existing degenerative cervical and lumbosacral spinal condition. The pain has evolved into a chronic pain syndrome and possible myofascial pain syndrome due to central sensitisation.
99. It is the defendant’s submission that this opinion ought not be accepted, and that it could not discharge the onus on the plaintiff to identify a physical injury.
Drs Ho and Kostos dispute that. There is a consistency in the reports of Drs Ho and Kostos. They do not dispute that the plaintiff is exhibiting a pain syndrome, variously described. Dr Entwhistle is of the view that there are “functional factors or chronic pain involved.” It is on that basis that she is apparently being prescribed a particular medication.
It is accepted by Dr Ong and Dr Aliashkevich that the plaintiff has a chronic pain syndrome. Dr Alashkevich is of the opinion that she also has depression.
The plaintiff carries the burden to prove that she has a limb (a) injury. In these circumstances, I accept the submission by the defendant that the plaintiff is required to identify an organic or physical injury. The question is whether on the evidence she had done so.
Stamboulakis is authority that the plaintiff is required to “strip away” the psychological and psychiatric from the physical in a limb (a) claim. In Stamboulakis, Maxwell P said:
9. For the assistance of judges, the applicable principles may be summarised as follows:
(1) Where an applicant for leave under s 134AB(16)(b) relies on physical injury – “permanent serious impairment or loss of a body function” – the Court in assessing the “pain and suffering consequences” must exclude “the psychological or psychiatric consequences” of the injury: s 134AB(38)(h).
(2) Accordingly, so far as the evidence allows, the Court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3) The Court must therefore exclude any pain and suffering consequences
which result from or are a manifestation of –§Any recognised psychiatric condition (eg. depression, adjustment disorder);
§Chronic pain syndrome or disorder;
§Functional overlay;
§Exaggeration of symptoms, whether conscious or unconscious; or
§Any other aspect of the injured person’s psychological response to the physical injury.
(4) Where the Court is unable to “disentangle” the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion (“more than significant or marked, and … at least very considerable”).
(5) For the assistance of the Court in deciding such matters, any medical witness who is of the opinion that there are both organic and non- organic contributors to the pain and suffering should be asked to quantify, so far as possible, the respective contributions to the pain and suffering of the organic and non-organic causes.In the material before the Court there is some evidence of each of the above dot points in (3) which imposes an obligation that the plaintiff must discharge.
In Carbone v Toyota Motor Corp Aust Ltd [2017] VSCA 249 at [61] , Osborne and Kaye JJA said that the Court of Appeal has described the approach as follows:
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”Here, I am not satisfied that the plaintiff has discharged her burden that there is a substantial physical or organic basis for her complaints of spinal and shoulder pain. The evidence of Drs Ong and Alashkevich that she has a chronic pain syndrome precludes this. Further, the barriers to “stripping away“ the non-physical component, on the balance of probabilities, are the opinions, which I accept, of Drs Ho and Kostos that any physical injury from the incident is no longer operative, and that the plaintiff has psychological issues. Dr Entwistle notes that the plaintiff is being prescribed medication that can be indicated where functional factors and or chronic pain are involved. He had diagnosed a pain disorder. Dr Kostos found on his second report Wadells signs. Dr Ong, in his first report had noted that the plaintiff was developing chronic pain syndrome. The clear evidence is that she did do so.
In the face of the emphatic conclusion of Drs Kostos and Ho that the plaintiff’s physical injury had resolved, and the admitted presence on the plaintiff’s own medical evidence of psychological conditions such as chronic pain disorder or syndrome, significant anxiety, and depression, the bald assertion of Dr Alashkevich and Weekes that there are physiological bases for the plaintiff’s pain, do not provide a cogent basis to find that the plaintiff has discharged her obligations to disentangle as required by Stamboulakis.
For all these reasons the plaintiff’s application will be dismissed.
I will hear the parties on appropriate orders.
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