Slaveska v Victorian WorkCover Authority
[2014] VCC 1194
•28 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01497
| HRISTINA SLAVESKA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 July 2014 | |
DATE OF JUDGMENT: | 28 July 2014 | |
CASE MAY BE CITED AS: | Slaveska v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1194 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – aggravation of pre-existing asymptomatic degenerative change in cervical spine
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Ansett Australia Ltd v Taylor [2006] VSCA 171
Judgment: Leave granted to bring proceedings for the recovery of pecuniary loss and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett | Arnold Thomas & Becker |
| For the Defendant | Mr S Smith | Hall & Wilcox |
HIS HONOUR:
1 This application for leave pursuant to s134AB(16) Accident Compensation Act 1985 (“the Act”) to bring proceedings for pain and suffering and pecuniary loss damages relies on a paragraph (a) injury. The injury relied on has been described as aggravation of pre-existing asymptomatic degenerative change in the cervical spine. The impairment thus is of the spine. There is little factual contest in this application. This application arises out of employment with Spotless.
2 The real issues for determination have been hard to clarify. The first issue is causation.[1] The defendant says the plaintiff’s condition was not caused by work. Secondly, the defendant then argues that any work contribution has ceased and symptoms which she now suffers from are just due to age. Thirdly, if there is a twin contribution of work and the aging process at the present time, then the plaintiff has not discharged the onus of disentangling the work contribution. Fourthly, the defendant argued that there is a non-organic component and the plaintiff has not established that the impairment has a substantial organic basis.[2]
[1]Transcript (“T”) 31-35, 100-103, 106, 108, 128
[2]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Meadows v Lichmore Pty Ltd [2013] VSCA 201
3 Interestingly, the defendant paid out no fault benefits initially from 21 May 2009 onwards. Then later in 2009 it served notices of rejection by letters from QBE in July 2009 and December 2009.[3] However, in 2011 following a medical report from Mr M Shannon to QBE, the insurer paid out on a s98C claim for permanent impairment.[4] In my view, this later decision raises the principle that though it is not conclusive this was an admission that is very significant that a compensable injury to the cervical spine had been sustained in the course of the plaintiff’s employment at Spotless. It has weight as it followed the earlier decisions to reject.[5]
[3]Defendant’s Court Book (“DCB”) 77 and 81
[4]T37-40; DCB 52, Plaintiff’s Court Book (“PCB”) 128
[5]Ansett Australia Ltd v Taylor [2006] VSCA 171
4 The plaintiff is aged sixty-one years. She started work with Spotless in late 2001 or the very start of 2002.[6] She worked in heavy, stressful manual work as a kitchen-hand involving cooking, cleaning and a multitude of other duties at various premises.[7] She was put off by her general practitioner due to neck pain, headaches and dizziness.[8] She had two weeks off work about five or six months earlier and had been struggling at work. Her symptoms were helped by those weeks of rest but on medical advice, she finally ceased work on 21 May 2009. She has not worked since.
[6]T32, 116; PCB 2
[7]PCB 2-3
[8]PCB 4
5 It is not contested that since coming to Australia in 1973 the plaintiff has worked virtually continuously in heavy factory or kitchen-hand type work. Apart from about four years off, due to having children, her work record continued up until 21 May 2009. She and her husband operated a deli/takeaway food shop for some nine years in which she virtually did everything, cooking, preparing food, cleaning, as well as serving customers.[9] She worked Monday to Saturday in this business. I accept her evidence that the work at Spotless was the hardest work she had ever done.[10]
[9]PCB 2
[10]T82
6 I accept that neck pain started after she had commenced work at Spotless.[11] No other health issues impaired her demonstrated work capacity before starting work with Spotless. Medical records indicated that neck symptoms led her to see her local doctor in late 2002 as there is a cervical spine x-ray taken on 17 December 2002.
[11]T84
7 Her work for Spotless was quite physical but at the Ruyton Grammar School after she started in 2003 her duties became even more constant, heavy and demanding. Due to another staff member not assisting fully, the plaintiff took on too much work and complained to the defendant about this. She said: “I had too much load.”[12] In effect, she was doing the work of two people in a kitchen arrangement that provided breakfasts, coffees, lunches, as well as attending to function catering.
[12]PCB 3
8 It was only after she started at Spotless that she commenced suffering neck pain. She worked on. Some physiotherapy was undertaken which helped her keep going.[13] For about eighteen months she worked for Spotless in a Shell cafeteria where again she had to be “… doing everything involved in a cafeteria”.[14] She continued to really struggle on working until finally going off on medical advice. None of the above has been contested.
[13]PCB 4
[14]PCB 4
9 The first witness was the plaintiff’s general practitioner, Dr Dzartov. He is from the Epping Plaza Medical Centre whose records go back many years embracing different clinics as the plaintiff’s various local doctors changed practices over the years. She followed those doctors. He had personally treated her since April 2010, having taken over from Dr K Wong. His records indicated up until the time Dr Dzartov took over in April 2010 that the plaintiff was still doing her normal duties but with 10 minutes rest every hour.[15] He said the plaintiff’s clinical records indicated she had suffered from chronic neck pain since 2004.[16] Dr Dzartov considered her work contributed to her condition. She complained to him of dizziness but the main problem he thought was the problem in the cervical spine.
[15]PCB 42
[16]PCB 42
10 In oral evidence, while Dr Dzartov conceded there was a chronic pain disorder and some psychological aspects playing a part in this case, he still considered the substantial source of her ongoing pain was the organic condition of the cervical spine. That organic pain was the reason she is unable to work. Due to some different contexts in which the term “chronic pain disorder” seemed to be used, he was asked directly just what the source of her pain was.[17] He said it could be difficult to separate some psychological aspects from the physical. He agreed that a psychological aspect could heighten the perception of pain and the maintenance of it.
[17]T75-76
11 The expression “chronic pain disorder” he said seemed to be used in different senses. [18] He meant it was when a patient had regular pain and cannot cope with the pain and so it limited their ability to function normally as a human being. Accordingly, in order to better understand his evidence, I asked him directly whether the chronic pain she was suffering from was organically based or was a product of her mind. He quite clearly said the pain was organically based.[19] He repeated this again in terms of the chronic pain having an organic basis and he was also clear that the work at Spotless had made a material contribution to this organic pain.[20]
[18]T57-59; T64 and 74
[19]T75-76
[20]T76
12 At times his evidence seemed to vary as he was willing to agree with specialist opinion put to him. In the end he said that while quite understandable psychological aspects had manifested themselves on top of this plaintiff’s chronic organic pain, it was substantially a physically based pain that the plaintiff was predominately suffering from. The doctor was asked whether or not age-related problems were the reason for her symptoms and he did not agree. It was put to him that Mr P Wilde had given such an opinion but the general practitioner did not adopt it. I accept his evidence in the end as clearly amounting to the plaintiff suffering organically-based chronic cervical spine pain. It originated against a background of a pre-existing degenerative spine, as demonstrated on x-ray in December 2002. Her work at Spotless had made a material contribution to that pain and it kept her out of the workforce.
13 I accept Dr Dzartov’s opinion in regards to these matters as on the probabilities being accurate. He has seen the plaintiff on a number of occasions and was well placed to judge the plaintiff and comment on the issues in this application.
14 His written reports shed light on his opinion on causation. He said in March 2014 her employment was a significant contributing factor to aggravation of her cervical spine degenerative change. It was a permanent condition that would gradually deteriorate. She would avoid work positions involving spinal postures that when looked at would effectively put her out of manual labour. He thought it was due to her chronic neck pain that she became depressed and frustrated rather than her depression causing the neck pain.[21]
[21]PCB 47
15 The plaintiff gave oral evidence but there was little put to her. She said she had not had any neck symptoms prior to starting her work at Spotless. She had also repeated what her affidavit had described in that she had to cope with more than a normal workload at Spotless. It was her hardest job.
16 I accept on the probabilities that the plaintiff was able to work unimpaired by any health problems or neck impairment up to starting with Spotless. I accept her work there was heavier and more demanding than usual. I find that her employment at Spotless was the cause of her commencing to have neck symptoms. They were caused by the demands of working for Spotless coming on top of a background of pre-existing symptomless degenerative disease.
17 I also accept that the plaintiff has at all times been highly motivated to work. I found her a genuine and reliable witness. She did not overstate anything but was straightforward and direct. She has only ever worked in unskilled physical work in factory or kitchen-hand type environments all her adult life. She has no qualifications, skills or experience for any other type of employment. Her education in this country is non-existent. Her English skills, while reasonable, are not those of her native tongue.
18 I note the repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Clear, proper and adequate reasons are required. In view of the findings of fact in this case and my acceptance of the general practitioner’s evidence on the relevant issue, there is no need to go into great detail about the medical evidence.
19 The first treatment document is a cervical spine x-ray of 17 December 2002 that showed some moderate degeneration at two levels but nothing of great significance for a manual worker then close to fifty years of age.[22] This was to be contrasted with later radiology which indicated marked three level pathology in her cervical spine.[23]
[22]PCB 16
[23]PCB 25
20 The earliest treater’s report tendered was Dr K Wong. Dr Dzartov had taken over from Dr Wong. Dr Wong recorded the first complaints of neck pain and headaches by the plaintiff were in December 2003. She was still complaining of neck symptoms into 2004 and on into subsequent years.[24] This report is now quite dated and, apart from stating she had no current work capacity, the doctors did say this on causation: “…her symptoms seemed to be work-related”.[25]
[24]PCB 32
[25]PCB 32
21 Early physiotherapy reports in 2009 and 2010 from Mr S Gioskos described attendances in 2008. He clearly diagnosed a degenerative condition contributed to by postures at work. He said:
“It is without a doubt that Mrs Slaveska experienced the onset and progression of this pain at work as a result of her duties.”[26]
At that time, he said she was not capable of working.
[26]PCB 28
22 Mr Gioskos’s 2010 report went on to say:
“Mrs Slaveska is as a result of her cervical spine condition severely incapacitated and it is unlikely that she will ever be in a fit condition to return to any form of manual work.”[27]
[27]PCB 30
23 I accept the opinions of the physiotherapist in regard to causation and permanent incapacity for any suitable manual employment. The only “suitable employment” for this plaintiff has been repetitive, demanding, manual labour all her life.[28]
[28]Section 5 of the Act
24 Further physiotherapy reports from a Ms C Vinci were tendered. They are dated 2010 and 2011.[29] Her last report stated:
[29]PCB 36 and 39
“It is therefore my contention that Mrs Slaveska’s current presentation has been potentiated by her employment.”[30]
[30]PCB 40
The physiotherapist also said:
“Her condition is of a permanent nature. Future capacity for employment will continue to be limited by her ongoing injuries/incapacity.”[31]
I accept those views. They apply to the current situation in June 2014. All the physiotherapists support the plaintiff’s case on causation.
[31]PCB 40
25 The plaintiff’s treatment has been very extensive. A number of specialists of different descriptions have seen her at the referral of her local doctor or from another specialist. A number of the treaters really just recorded the symptoms and treatment, as they are not directly concerned with the legal issues in this application and did not comment directly.
26 For example the neurologist, Dr R Yerra, in 2010 was investigating causes of some dizziness that may have been vestibular in origin.[32] He saw the plaintiff at the referral of Dr C Tan, neurosurgeon, who had seen the plaintiff earlier in 2010.[33] These reports are dated and do not specifically address causation. Dr Tan thought it likely cervical spine degenerative disease was the cause of the neck pain. The reports really explored treatment options more than anything else, but what is clear is they saw the problems in the cervical spine region as organic. For example, denervation in the neck was explored by Dr Tan radiologically. They also took histories from the plaintiff of employment issues so I can imply they saw the patient in an employment context without specifically providing any comment on causation. The treatment options explored are all directed to organic problems not psychological.
[32]PCB 48–49
[33]PCB 33–34
27 Another physiotherapist in the order of the treaters was a Ms S Kelly, who saw the plaintiff in 2012. She reported in 2013 on C4/5, C5/6 and C6/7 pathology. She noted the heavy and repetitive nature of the plaintiff’s work from 2004 to 2009. She stated:
“There is a very strong relationship between her employment and this injury.”[34]
[34]PCB 77
28 She felt the plaintiff had no capacity for work in her previous role and, considering her age, limited education and limited transferable work skills, suitable work was unlikely.[35] Further deterioration was likely and ongoing treatment was required.[36] I agree with these comments.
[35]PCB 77
[36]PCB 78
29 Ms Kelly reported very recently in March 2014. She stated there was no current capacity for suitable, unrestricted, manual employment. She thought that incapacity was likely to remain indefinitely.[37] Deterioration was likely. She noted the facet joint injections and cervical medial nerve branch blocks that the plaintiff had undergone had provided only transient relief. She thought:
“I suspect she will remain completely incapacitated with chronic work pain…”[38]
I accept these very up to date opinions of Ms Kelly.
[37]PCB 82
[38]PCB 83
30 Dr P Courtney, anaesthesia and pain medicine, was another doctor in the long line of treaters. He first saw the plaintiff in 2013 on the general practitioner’s referral. He thought cervical spondylosis was a reasonable diagnosis. The prognosis was guarded. In spite of the nerve blocks he administered, the plaintiff’s pain rapidly returned. He thought radio frequency denervation might be a palliative treatment option. I read this as meaning it would not be a cure of her problem but would help pain.[39]
[39]PCB 85
31 Clearly, again this specialist is treating organically based symptoms. On causation, he simply said she was in hospitality employment and “…her problem seemed to be a cumulative one.”[40] I read his reports as concentrating on treatment for an organically based pain problem.
[40]PCB 84
32 Mr C Timms, orthopaedic surgeon, was the most recent of the treating specialists. He saw the plaintiff in September 2013. He took a history of kitchen work causing increasing neck pain and then going into the arm.[41] He thought her “…employment has led to her current set of symptoms”. She was incapacitated for her pre-injury employment due to her cervical spine injury, which was stable.[42] The position was permanent.
[41]PCB 88
[42]PCB 90
33 I accept these very current specialist views. Indeed, quite gloomily, Mr Timms raised the spectre of anterior two-level discectomy and fusion surgery. He is alone in this suggestion. It could hardly be more obvious that it was a very real organic condition he saw when he offered her such major invasive treatment as an option.[43]
[43]PCB 90
34 The last treater to mention is Mr P Wilde, orthopaedic surgeon. His opinions are in a way curious and not properly explained. He saw the plaintiff in September 2009. He reported then that the diagnosis was a chronic cervical spine condition or aggravation of cervical spondylosis. Her work was a contributing factor to her cervical injury. She had pre-existing asymptomatic degenerative disc disease, but the repetitive work caused internal disc and facet joint derangement that precipitated symptoms. He thought she would always suffer chronic cervical pain and stiffness.[44]
[44]DCB 59
35 Mr Wilde stated, in answer to a specific question, that there was a direct relationship of the plaintiff’s injuries to the nature of her work as a kitchen hand. She should not perform repetitive tasks he said.[45] He thought the position would remain for the foreseeable future. He ended by saying some psychological factors amplified her pain, but really said no more than that.
[45]DCB 60
36 Mr Wilde then reported several times again in April 2010 and July 2010 but without ever seeing the plaintiff since his original and only examination in 2009.[46] He still accepted the causative link to work.[47] However, he seemed to see the psychological factors requiring more comment without really explaining why this had become the case since 2009.
[46]DCB 61 and 66
[47]DCB 64 and 67
37 Mr Wilde then saw the plaintiff again just over two years ago in June 2012. He said then the contribution of employment was steadily diminishing and it was principally age-related degeneration that was the underlying factor. Any effect of work will have ceased. I cannot follow this report. The reasoning is not clear. Precisely when and why the work contribution just ceased and age just took over is not explained. By sixty years of age, as though that is some milepost, he considered the work no longer a cause seemed to be his argument.[48] Originally in 2009, he said the chronic cervical pain and stiffness would be suffered always and he never mentioned simple age would take over as the cause. He clearly saw employment as a contribution to the cervical injury with its direct relationship back then. I do not accept this doctor’s 2012 opinion that the relationship of her work to her condition somehow then just ceased. Without hearing from the doctor explain his opinions, I find them somewhat illogical and unclear. Based on only two examinations he seemed to do something of an about face in terms of causation. The general practitioner and physiotherapists, for example, have had a much better opportunity to evaluate the situation.
[48]PCB 75
38 The plaintiff’s medico-legal opinions start with Mr R Miller, orthopaedic surgeon, who saw the plaintiff in 2012. His opinion is quite clear. He thought there was pre-existing degenerative change in the cervical spine that had:
“…been significantly influenced by her work which involved a significantly physical component over a protracted period of time.”[49]
Given her age and experience, he saw no realistic return to work.[50]
[49]PCB 54
[50]PCB 55
39 Mr Miller then wrote a further report this month. He was sent some material, including the plaintiff’s chiropractic records of eight visits from November 2002 into 2003. He repeated that he considered there was a pre-existing disposition to the cervical spine disease. Her work had contributed to the evolution of that disease and that effect persisted and amounted significantly to her current clinical status.[51] I accept this very current specialist opinion. She has cervical spine degeneration that has been made symptomatic by her Spotless work and it remains so.
[51]PCB 58
40 Mr D Brownbill, neurosurgeon, also reported very recently in February 2014 and again this month. He said:
“I consider that on probability this lady had longstanding multiple level constitutional cervical spine degeneration changes which were aggravated by those described repetitive work activities.”[52]
[52]PCB 96
41 He then reported again in response to specific questions. Her condition was stable and she would have difficulty performing any work for which she was suited, he said.[53]
[53]PCB 97
42 After being sent further material, Mr Brownbill wrote again on 1 July 2014. He repeated his views:
“On review of all the information provided I consider this lady on probability (sic) sustained aggravation of cervical spine degenerative changes in 2002/03 as a result of her work activities …”[54]
I accept his opinion.
[54]PCB 101
43 The last medico-legal witness for the plaintiff was Dr H Sutcliffe, occupational physician, who reported recently along similar lines in March 2014. She stated:
“I believe that Mrs Slaveska sustained aggravation of degenerative change in the cervical spine as a result of the duties performed in her occupation as a catering assistant with Spotless.”[55]
[55]PCB 109
44 She repeated this view in answer to a specific question on causation.[56] She considered the plaintiff’s condition stable and that she had no capacity for suitable work. This was a permanent incapacity.[57] I accept her opinion as being up to date and fairly reflecting the evidence in this case.
[56]PCB 110
[57]PCB 111
45 Before leaving the medical witnesses the plaintiff relied on, it is worth noting that the doctors who have seen her on a regular basis and the various physiotherapists did not comment about there being any non-organic or psychological issues at play in terms of the plaintiff’s symptoms. These professionals know her far better than Mr Wilde or several of the defendant’s doctors who I will deal with shortly. I accept that these treaters are in a much more informed position to make a comment about whether non-organic issues played any significant part.
46 There has been no specialist psychiatric report tendered by either side in this case. However, the treating psychologist, Mr Z Stojcevski, provided a report in March of this year. He saw the plaintiff in 2013 and had five counselling sessions with her. He made it quite clear that it was the physical pain in her neck and into her upper limbs and head that was the predominant focus of her clinical presentation.[58] He considered that she was incapacitated in regard to employment due to her cervical spine injury and associated with that were her physical injuries. When one reads his report that is understandable in a context of her being incapable of doing her previous work and suffering now with pain over a number of years. This is the only report from a professional dealing with non-organic problems by way of his practice. I do not consider that his report supported the defendant’s argument that there was any non-organic component to the impairment of this lady’s cervical spine. It has a substantial organic basis on all the evidence in this case that has been tendered on behalf of the plaintiff.
[58]PCB 121
47 On the probabilities, this very well-motivated lady has worked all her life, has suffered some depression and anxiety from her constant pain, the inability of various treatments to cure her and the fact that she has to face the fact that she is no longer able to work and that is a permanent limitation. It is another thing to say that her impairment is not substantially organic. The vast weight of the evidence from the treaters and medico‑legal doctors I have referred to already support my finding of a substantially organic impairment.
48 Turning to the defendant’s medical evidence, it started with a very early report of Mr J Kendall Francis, surgeon, in June 2009. This was less than a month after she went off work and it is of little use in reaching a decision now in June 2014. He said her condition was pre-existing her employment at Spotless but she had “… developed neck pain associated with upper limb symptoms over the last four years in the course of her work.”[59] He did not think the actual degenerative condition had been caused by the work. Without hearing from him he seemed to accept though that the symptoms probably were caused by work although it is not entirely clear. It is a very out of date report in any event.
[59]DCB 40
49 Associate Professor J Hart also reported in 2009. He considered there was multi-level pre-existing degeneration and her condition was not work-related.[60] He saw her again in 2011 so his second report is also quite dated now. He thought she was not fit to return to her normal occupation and thought there was some abnormal illness behaviour.[61] I do not agree there was any abnormal illness behaviour. The plaintiff’s presentation in Court, while her cross-examination was not lengthy, did not indicate in any way a person who was prone to exaggeration. She was very matter of fact and straight forward in her presentation. It is curious that this doctor she told him she was 40 per cent better than when she had been seen in 2009 was someone suffering abnormal illness behaviour.[62]
[60]DCB 27
[61]DCB 36
[62]DCB 35
50 Abnormal illness behaviour, without hearing from the doctor, as I understand it is really a comment directed towards a worker exaggerating or making the most of their complaints, rather than someone indicating an improvement of that nature. The plaintiff did not agree that she had described any 40 per cent improvement but that is not to the point. It more a reflection on the doctor’s comment about abnormal illness behaviour and then a reported improvement to that extent that leads to some doubt about his reasoning.
51 There is a far more fundamental reason why I reject the opinions of this witness. He seemed to have a major misconception about this case. He referred to the plaintiff having a date of accident on 21 November 2008.[63] The history he recorded was on that day, she was performing normal duties at bench level and then seemed to have suffered the neck symptoms from something or other on that date. This is against all the evidence. This case concerns a very long period of years of sustained heavy repetitive work and not any single traumatic event on a particular day back in November 2008.[64]
[63]DCB 20 and 21
[64]DCB 22; PCB 2–4
52 He also described later on that the plaintiff’s major involvement with Spotless Services was “preparing sandwiches”.[65] This is a total misunderstanding of the extent of the duties that the plaintiff had in the course of the period of some seven years or so that she worked with Spotless. Based on this material, he said in the next paragraph that he did not consider her current condition was work-related.
[65]DCB 27
53 He finally commented that he had based his opinion on causation on five factors. There were clear errors in relation to the factual basis he had recorded. He said the plaintiff had symptoms for at least five years prior to the submission of her claim. That history might well be relevant to an investigation of some single incident on 21 November 2008 that he is considering, but it is certainly not inconsistent with a course of employment claim such as this. His second reason was that no specific episode occurred at work on 21 November 2008. Clearly, there was no such episode on the evidence and the plaintiff has never claimed there was.
54 He gave three other reasons but these two principal reasons and the total misconception he seemed to have about the facts of this case are such that I do not accept his opinions as soundly based. In 2011, he did not comment specifically on causation but his misconception about the facts in relation to how and when she sustained injury was not rectified.
55 Mr M Dooley, orthopaedic surgeon, reported more recently. He saw the plaintiff in February 2013. He saw a psychological reaction in this “… hardworking and loyal employee”.[66] “From an orthopaedic point of view …” symptoms would continue and she was unfit for heavy physical work.[67] I read that as him disentangling and commenting on an organically-based orthopaedic pain and incapacity.
[66]DCB 18
[67]DCB 18
56 He saw her again in June 2014. He made his views then even more specific:
“I remain of the view that Mrs Slaveska has naturally occurring age-related degenerative disc disease affecting the C5-6 and C6-7 levels of the spine. I remain of the view that during the course of her work, she aggravated this underlying condition.”[68]
[68]DCB 15b
57 Whether he saw some psychological reaction impacting on her pain or not he again stated that:
“Again, from an orthopaedic viewpoint only, … Mrs Slaveska would be unfit to carry out heavy physical work.”[69]
[69]DCB 15c
58 The use of the word “only” in this second report makes it very clear that Mr Dooley was disentangling the organic from the non-organic. He had no doubt that her neck problems were substantially organic.
59 A Dr K Fraser, rheumatologist, reported in 2013 and 2014. He attributed her neck problems to age-related degenerative changes. If there had been some symptomatic aggravation caused by work it would have ceased by now he thought.[70] I do not accept his opinion. It is against the vast weight of medical evidence in this case. He does not set out just why age would suddenly cause all these problems in the spine in an otherwise fit lady. The plaintiff has worked for years. When and why does age just start to cause symptoms? He did not set out his reasoning. I reject his opinions on causation as unclear and not persuasive in saying that age suddenly took over from an asymptomatic condition aggravated by work.
[70]DCB 9
60 Finally, it needs to be mentioned that a surgeon, Mr M Shannon, saw the plaintiff back in 2010 for an AMA permanent impairment assessment. He found a percentage permanent impairment, so he was clearly of the view that the cervical spine was work-related. It was early days but he wrote to QBE:
“Mrs Slaveska is suffering from a degenerative change in her cervical spine aggravated and possibly accelerated by the general nature of her employment.”[71]
[71]DCB 54
61 It should be stated that facts not in dispute have some temporal relevance when findings on the probabilities are required and the Court is left with little assistance by way of oral evidence. In spite of years of full time hard work, the plaintiff had no symptoms until she worked at Spotless. It was the hardest job she had ever done. Symptoms slowly developed. They required more and more treatment. By the end of her seven years or so with Spotless, the symptoms that started up after commencing that employment had reached the stage of being incapacitating. These facts add weight to the plaintiff’s case that her employment at Spotless has been a significant contributing factor to her spinal impairment.
62 She has been to several general practitioners and at least three different physiotherapists. She has seen at least five different specialists. They have been focussed on finding a solution to an organic problem. It is relevant also that the last in the line of specialists, Mr C Timms, has recently suggested two-level discectomy and fusion as a treatment option. This is treatment of the most invasive nature. It is directed towards an obvious substantial organic problem, leading to her current symptoms, and any understandable psychological response to that predicament. Such response is mild only and not productive of any impairment of the spine.
63 I reject the defendant’s argument on causation. I also reject its argument about disentanglement in the two senses advanced[72] namely, delineating the work cause from the age-related condition as well as the organic from the non-organic. The weight of the evidence is that her work at Spotless rendered symptomatic a degenerative condition that had never troubled her before that work. The symptoms lit up by that work are continuing to the present time and will do so for the foreseeable future. I do not accept that absent Spotless she would be suffering neck symptoms that have thrown her out of work. The evidence clearly establishes on the probabilities that her impairment has a substantial organic basis and her work at Spotless has been a significant contributing factor to that.
[72]T128
64 At the very end of submissions I was asked by the defendant to draw an inference against the plaintiff for not seeking to cross-examine Associate Professor Hart. I do not draw such an inference. For years now, these applications have been dealt with largely on the papers. The defendant has not sought to cross-examine Mr Timms, who alluded to a fusion operation as being appropriate. I do not draw any inference against the defendant. The weight of serious applications in this Court would mean the system ground to a halt if every doctor who gave an opinion that a party did not agree with was required for cross-examination. While an inference such as this may well properly be open in a damages trial, to seek to have the Court draw one in a threshold application such as this is to really ignore the reality of the jurisdiction. I do not draw any inference against either party.[73]
[73]T164-166
65 For the reasons described, I grant leave to bring proceedings for pecuniary loss damages. It follows in accordance with practice that leave also extends to pain and suffering damages.
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