Sztyk v Victorian WorkCover Authority
[2022] VCC 1008
•1 July 2022
14
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-01226
| MARGARET SZTYK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28, 29 April 2022 (via zoom) | |
DATE OF JUDGMENT: | 1 July 2022 | |
CASE MAY BE CITED AS: | Sztyk v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1008 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – whether substantial organic basis – where unreliable historian
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227.
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr J Valiotis | Arnold Thomas Becker |
| For the Defendant | Mr R H Stanley | Hall & Wilcox |
HER HONOUR:
1Margaret Sztyk, a 64-year-old Polish-Australian woman, has applied for leave to bring proceedings for damages against the Department of Health and Human Services (“DHHS”). She claims to have suffered onset of severe lower back pain during an incident at work on 27 October 2014, when she was pushing a heavy green bin to the curb (“the incident”). The critical issue in this application is whether the debilitating back pain that Ms Stzyk now suffers arose out of, or in the course of, or due to the nature of, her employment as a disability care worker with the DHHS between 2002 and 2014.
Ms Sztyk’s life prior to the incident
2Ms Sztyk has had a difficult life.
3In her twenties, she married a man to whom she had one son. That man abandoned her when her son was still a young child.
4In 1981, Ms Sztyk left Poland with her son, travelling first to the United Kingdom and then the United States.
5In 1987, Ms Sztyk and her son moved to Australia, where Ms Sztyk married a man of Polish descent. He was violent and an alcoholic, and at times he would threaten to shoot Ms Sztyk and her son with the gun he kept in the house.[1] She fled to a women’s refuge and they divorced in 1989.[2]
[1] T36, L6-9.
[2] T36, L10.
6From 1989 onwards, Ms Sztyk raised her son as a single parent.
7In about 2002, Ms Sztyk commenced employment with the DHHS as a disability care worker. Her duties at work included assisting disabled and/or elderly clients with toileting, dressing, and feeding. Ms Sztyk also performed transport-related and administrative duties.[3]
[3] PCB 6.
8Between 2002 and 2006, Ms Sztyk was assigned to work at Kew Cottages. In 2003, she suffered a neck and mid-back injury due to a fall at work. Although the evidence is not entirely clear, it appears[4] that she took time off work due to this injury and was also on light duties, and reduced hours, for a period.
[4] See for example DCB 7; T33, L15-T34, L12
9Between February 2006 and December 2006, Ms Sztyk attended her general practitioner with symptoms of anxiety and depression.
10Again, although the evidence is not clear, it appears she took further time off work in this period.[5] Upon her return to work, she was reassigned to Oakleigh East.
[5]See clinical note for 3 March 2006 at DCB 91 (“encourage back to work”) and para 16 of plaintiff’s first affidavit.
11In 2010, Ms Sztyk was assaulted by the secret wife of her then boyfriend. This caused injury to Ms Stzyk’s knee and left her with Post-Traumatic Stress Disorder.[6] Around the same time, she was also experiencing problems with carpal tunnel syndrome. She was unable to work for a prolonged period.
[6] DCB 53; T40, L27-31
12In 2012, Ms Sztyk again returned to work. She said that, by October 2012, she was experiencing workplace stress and bullying. She said that the perpetrators of the bullying were the house supervisor and a fellow disability support worker, and that unpleasant remarks, unfair criticism, and hostility, were directed at her.[7] She said that this bullying impacted her motivation and confidence, as well as her sleep and emotional and mental wellbeing.
[7] PCB 5
13On 8 February 2013, her general practitioner recorded that Ms Sztyk complained of suffering aches and pains as if she had been drugged.[8]
[8] DCB 48
14On 5 April 2013, her general practitioner records her as having “Stress with ex partner separated 10 days ago … had to call police and get intervention order…Stressed at work, feels worn out”.[9] She was provided with a Mental Health Care Plan.
[9] DCB 47
15On 22 April 2013, she presented to the Monash Medical Centre Emergency Department with chest pains and tightness.
16In late December 2013, Ms Sztyk went off work again and lodged a worker’s injury claim form,[10] apparently due to stress arising from workplace bullying.
[10] Plaintiff’s first affidavit, para 24
17In around mid-2014, Ms Sztyk again returned to work. This time she was assigned to work at 24 Vision Street, Chadstone.[11]
[11] Plaintiff’s first affidavit, para 25
18On 15 July 2014, she attended her general practitioner complaining of (among other things) “back pain rt hip pain chronic”.[12] An x-ray of her lumbosacral spine was requested. On 26 July 2014, she attended the same general practitioner complaining of “hand pain like knife”.[13] On 6 October 2014, she attended complaining of “back pain; LS and rt hip pain”.[14]
[12] DCB 31
[13] DCB 31
[14] DCB 30
The incident
19On 27 October 2014, Ms Sztyk was working at the Vision Street premises. She attempted to move a large green bin to the curb for collection. The bin was heavier than she had anticipated. In her attempt to negotiate the uneven slope, she says she “wrenched”[15] her lower back and felt immediate onset of pain.
[15] History contained in report of Dr Lester Walton dated 19 September 2021, PCB 23
20Ms Sztyk says she felt afraid to complain and carried on working, hoping that her condition would improve.
21The following day, Ms Sztyk attended a local medical clinic. She is recorded as complaining of “knee pain, back pain foot pain and wt gain”.[16] There is no mention in the clinical notes of any sudden onset of pain when pushing a green bin.
[16] DCB 30
22Ms Sztyk says that the pain worsened and she eventually informed her supervisor. The clinical records of her local medical clinic record that, on 20 November 2014, she attended complaining of “sore lower back pain”.[17] She was referred for a CT scan and told to try Celebrex and Panadeine Forte. Sometime in late November or early December 2014, her back seized up at home and she was conveyed to Monash Emergency Department by ambulance.[18]
[17] DCB 29
[18]Plaintiff’s first affidavit, para 29; see also Clinical records of Primary Medical & Dental Centre Highett for 2 December 2014, DCB 29
23Ms Sztyk says she attempted a return to work in January 2015, but struggled. Her pain flared up and she went off work. Her employment was terminated in 2016 or 2017. She has not worked since.[19]
[19] Plaintiff’s first affidavit, para 31 - 36
Ms Sztyk’s current condition
24Ms Sztyk says that she now suffers constant pain in her lower back, which extends from her lower back down into her buttocks and groin. She says that this pain extends down into her legs if she attempts to perform any physical activity. She says that some days the pain is so bad that she spends nearly the entire day in bed, only getting out of bed to go to the bathroom or kitchen to get something to eat. She says that as a result of this pain, she has difficulty with prolonged sitting and prolonged standing and is very restricted in what she can lift – to the extent that, on one occasion, she had difficulty with carrying a 2-litre milk bottle.
25Although she can walk her dog for up to thirty minutes in her local area, she has difficulty with prolonged walking. She says her symptoms have worsened over the years - that she now often uses a walking stick, as she is not stable on her feet and is fearful of being knocked over. She says she has difficulty getting dressed and doing tasks, such as putting on her pants and shoes. She says she requires help with household duties such as vacuuming, mopping and heavier cleaning. She says she wakes up most nights due to lower back pain and finds it difficult to fall back asleep once she wakes, as she is in pain and unable to get comfortable. She finds she has to move between the bed and sofa in an attempt to get comfortable. She says she is regularly tired during the day and naps most days. She says she regularly falls asleep on the sofa in front of the television.
The Plaintiff’s submissions
26Mrs Sztyk’s claim is formulated in two alternative ways:
(a) her pain is a consequence of an injury of organic origin (in the form of soft tissue issue to the lumbar spine, aggravation of spondylosis, or a pain syndrome of organic origin) which amounts to a permanent serious impairment of her spine;[20] or
(b) her pain is a consequence of a permanent severe mental disorder, in the form of a non-organic chronic pain syndrome.[21]
[20] See paragraph (a) of the definition of serious injury in s325 of the WIRCA
[21] See paragraph (c) of the definition of serious injury in s325 of the WIRCA
27Ms Sztyk submitted that her injury arose out of, or in course of, her employment between 2002 and 2014. In the alternative, she submitted that her injury arose specifically from the incident on 27 October 2014.
28In oral submissions, Senior Counsel for Ms Sztyk submitted that the Court should not allow Ms Sztyk to be “pushed down between two stools”[22]. Senior counsel for Ms Sztyk submitted that the Court should be satisfied that Ms Sztyk’s current symptoms were caused by her employment and that if they were not due to an injury of organic origin they must necessarily be due to a chronic pain syndrome of non-organic origin. Either, it was submitted, would satisfy the requirements of a serious injury in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
[22] T10, L18, relying upon Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227
29I note, for completeness, that a claim for a separate injury arising from workplace bullying was raised on the materials, but ultimately not pursued by Ms Sztyk at the hearing.
The Defendant’s submissions
30The defendant submitted that:
(a) Ms Sztyk was an unreliable witness with poor cognition, as evidenced by the fact that she had provided inaccurate medical histories and was unable to recall the name of the treating psychologist whom she had seen for approximately six years;
(b) the lack of treating medical evidence in support of the plaintiff’s case is problematic. In such a case where there were extensive and varied problems complained of, it was not sufficient to rely on medico-legal opinion alone;
(c) the plaintiff did not establish the necessary causal link between her impairment and her employment, whether to the incident of 27 October 2014, or the course of her employment. The opinions of Dr Graeme Brazenor and Dr Tony Kostos, medico-legal experts called by the defendant, should be preferred to the opinion of Mr Russell Miller and Dr Gavin Weekes, medico-legal experts called by the plaintiff. Dr Brazenor, in particular, had access to a more comprehensive history and radiology, and provided a detailed explanation of his path of reasoning. The course of the employment claim was late raised and lacked an evidentiary foundation;
(d) the plaintiff did not establish an organic basis for her impairment. There was no satisfactory disentangling of the impairment consequences referable to the physical injury alone. In oral submissions, counsel for the defendant emphasised to the Court, that medico-legal practitioner, Mr Miller, had mentioned the presence of chronic pain syndrome under the heading “Mental State”;
(e) the plaintiff did not lead any expert evidence on the presence of a psychologically-generated pain disturbance or disorder capable of assessment under subparagraph (c) of the definition of serious injury in s325 of the Act. The defendant further submitted that, even if the Court were satisfied that the plaintiff suffers from a psychiatric pain disorder, there is no medical evidence that the plaintiff’s employment was causative;
(f) There is insufficient evidence to conclude that the plaintiff’s injuries had occurred as a result of, and in the course of, her employment.
The credibility and reliability of Ms Sztyk’s evidence
31Ms Sztyk was an extremely difficult witness. It was clear that she needed the assistance of a Polish interpreter when giving oral evidence, despite having sworn two detailed affidavits without the assistance of a translator. Even with the assistance of an interpreter, her answers were frequently non-responsive. She could recall very little of her personal and medical history prior to the incident. She maintained that, prior to the incident, she lived a “normal life”,[23] even when shown detailed clinical notes of her long history of specific mental health and physical issues. She was defensive, volatile and aggressive. She accused counsel for the defendant, who throughout cross-examination had behaved entirely respectfully and appropriately, of being abusive towards her. On the second day of the hearing, she attended wearing sunglasses and struggling to hold herself upright. She said she had no sleep the night before and had taken some medication to calm herself down. It was soon clear that she was not in a state to give evidence and it was necessary to adjourn the hearing to a third day.
[23] T35, L4
32Nevertheless, I formed the view that Ms Sztyk was an honest witness who was doing her best to tell the truth as she experienced it. Indeed, counsel for the defendant did not submit that Ms Sztyk was a liar.[24] Put simply, there was no filter to Ms Sztyk’s evidence. She was forthright, unguarded and ultimately bewildered by a process she believed was victimising of her. Her difficult and volatile presentation, and lack of recall, must be understood against her background of trauma, isolation and cultural dislocation, and her ongoing experience of pain. She clearly felt the pain and injustice of her situation deeply.
[24] T94, L 2-4
33However, there can be no doubt that Ms Sztyk was an unreliable historian. Her recollection of events prior to the incident was coloured by her unshakeable belief that she had suffered an injury at work on 27 October 2014 and that this injury had altered the course of her life. Pre-existing symptoms or diagnoses which were inconsistent with this internal narrative were either not recalled by her, or outright rejected. She could not recall presentations at hospitals in 2001 and 2005. She could not recall the name of her treating psychologist of six years, Ms Petrina Schoorman. When assessed by Mr Russell Miller, she denied any history of previous problems with her back,[25] despite clinical records of previous back and neck symptoms.
[25] See, for example, the report of Mr Miller dated 17 August 2021 at PCB 32
34I also take into account the fact that Ms Sztyk’s son was not called to give evidence and no explanation was given for his absence. It is open to the Court to draw an inference that his evidence would not have assisted Ms Sztyk.
35Given all of the above, to the extent of inconsistency, I have preferred the evidence contained in Ms Sztyk’s clinical records to evidence given by Ms Sztyk. I have also treated Ms Sztyk’s evidence as to other events in her past with caution. I am more willing to accept that evidence where it is relatively contemporaneous, uncontroversial, or where there is no contrary evidence, particularly where it might be assumed that the defendant would be in a position to put forth contrary evidence if it existed (e.g.: as to the dates on which Ms Sztyk took breaks from employment).
36However, concerns about the reliability of Ms Sztyk’s recall do not impact directly on her ability to describe her current symptoms. Aside from some questions in relation to her weight, Ms Sztyk was not challenged on her evidence as to her current symptoms in cross-examination. Further, there were times during her cross-examination when Ms Sztyk appeared to me to be experiencing significant pain, of a nature which was both distracting and exhausting. This was not done in a melodramatic or attention-seeking manner. I accept she was genuinely experiencing pain at these times, which may well have contributed to her volatile demeanour in Court.
37I acknowledge that the intensity of Ms Sztyk’s experience of pain may be coloured by her internal narrative of injury – in other words, she may experience pain more intensely than some others. However, I do not accept that this makes that pain any less genuine or disabling. In this context, I accept Ms Sztyk’s evidence as to her current symptoms of constant and debilitating daily pain, and her need for regular pain medication such as Panadol, Panadol Osteo and Mobic. I accept that this pain is so debilitating that it restricts her capacity to walk and to care for herself and her home. I accept that it renders Ms Sztyk incapable of earning income in suitable employment.
38There remains, then, to consider the question of whether Ms Sztyk’s current symptoms are a consequence of either a permanent serious impairment of a body function; or a permanent severe mental disorder which arises out of, or in the course of, or due to the nature of, Ms Sztyk’s employment with the DHHS. Answering this question requires consideration of the medical evidence.
The medical evidence
Ms Sztyk’s treating practitioner reports
39Reports from three treating practitioners were tendered in evidence.
40Dr Rino Arcon is a general practitioner who provides a medical report, apparently dated 19 November 2020. [26] Dr Arcon diagnoses Ms Sztyk with lower back pain, disc prolapse at L2-S1, facet joint degenerative changes at L4-L5 and L5-S1 and anxiety and depression. He describes her injury as work related. He expresses the opinion that:
“… considering Margaret [sic] current general health and her age I believe that lower back pain will gradually deteriorate in years to come and will continue to have significant impact on her ability to work and health in general.”[27]
[26] This date is taken from the Courtbook index, rather than the report
[27] PCB 17
41Ms Petrina Schoorman is a psychologist who provided a medical report dated 18 November 2020. She treated Ms Sztyk for four periods between 2014 and 2020. She notes that:
“… Margaret also has a number of chronic health issues that impact on her mental health including lower back pain, knee damage, limited mobility and high blood pressure.
… As Margaret was not employed while in counselling and the workplace injury was not discussed in the sessions I am unable to comment on her diagnosis, relationship between employment and injury, capacity, prognosis, stabilisation or further deterioration … .”[28]
[28] PCB 18
42Dr Victor Wilk is a musculoskeletal physician who provided a medical report dated 25 May 2015. He saw Ms Sztyk on three occasions between March and April 2015. He also reviews Ms Sztyk’s clinical records from two medical clinics. He diagnoses Ms Sztyk with a “non specific lower back strain” with a “prominent element of anxiety contributing to her pain”.[29] He describes her as providing a reasonably consistent history of injury on 27 October 2014 and concludes that:
“… It does appear, therefore, that her lower back pain is probably related to her employment”.[30]
[29] PCB 21
[30] PCB 21
The Plaintiff’s medico-legal expert reports
43Mr Russell Miller is an orthopaedic surgeon who assessed Ms Sztyk on 12 August 2021 and 28 January 2022, in person. On each occasion, he had the assistance of an interpreter. He prepared three reports. He noted, in his first report dated 17 August 2021, that it was a complex and difficult history to take “as the client had some difficulty recalling the precise sequence of events and symptom evolution”.[31] He records Ms Sztyk as stating that she had no previous problems with her back. He notes that her work as a disability support worker from 2002 imposed “physically demanding duties involving handling, bathing and dressing disabled clients”.[32] He records Ms Sztyk’s description of the incident on 27 October 2014. He notes that low back pain is Ms Sztyk’s major problem and that there:
“… is severe ache, discomfort, and pain in the low back, radiating into the buttocks, groin, and both legs, particularly on the left side. There is occasional numbness and tingling in the legs. The symptoms fluctuate, they are at times severe and there is a pattern towards deterioration. She has difficulty with prolonged standing and sitting … Low back pain is the dominant feature”.[33]
[31] PCB 33
[32] PCB 31
[33] PCB 32
44His diagnosis is as follows:[34]
“Lumbar Spine
There has been an injury to the lumbar spine, which includes musculo-ligamentous strain and aggravation of degenerative disease. There is no evidence of radiculopathy, neurological deficit, or structural injury.
The described injury is associated with the development of a chronic pain syndrome, which influences the current clinical presentation and contributes to the overall fair prognosis.
[34] PCB 34
Mental State
There has been an adverse mental state reaction which includes: anxiety, depression, and development of a chronic pain syndrome. This complicates the assessment and management of her condition and would benefit from additional assessment by a psychiatrist.
It is my view however, that the current clinical status is satisfactorily explained by defined organic disease.”[35]
[35] PCB 34
45In relation to causation, he concludes:
“The relationship between the work and the lumbar spine injury and its sequelae is a complex and multifactorial issue which includes the following factors: (i) pre-existing disease, although I note there were no pre-existing symptoms, (ii) significant physical work over a protracted period of time, (iii) work related injury on 27 October 2014 and (iv) specific aggravation at home in November 2014. The current clinical status is regarded as being substantially work/injury related.” [36]
[36] PCB 35
46In his second report dated 31 January 2022, Mr Miller considers additional clinical records and radiology and the results of his second physical examination. He notes that his views are unchanged from his first report.
47In his third report dated 20 April 2022, Mr Miller specifically considers the fact that Ms Sztyk had some pre-existing lower back symptoms. He also considers the report of a CT scan from 5 June 2018. He accepts that, although there were pre-existing symptoms in the lumbar spine prior to the incident, the nature of the symptoms changed following the incident. He concludes that the diagnosis is likely to be one of musculo-ligamentous strain, aggravation of degenerative disease and probable specific pathology at the L5/S1 level. He maintains his view as to the complex and multifactorial nature of the relationship between work injury and the spine.
48Dr Gavin Weekes is a pain specialist who assessed Ms Sztyk twice by Zoom, on 26 October 2021 and on 2 February 2022. On both occasions, he had the assistance of a Polish interpreter. In his first report dated 26 October 2021, Dr Weekes notes that Ms Sztyk describes some mild intermittent lower back pain prior to the incident. He records her description of the incident on 27 October 2014. He also records difficulty obtaining an accurate history from Ms Sztyk noting that:
“It was very difficult to get definitive functional limitations from Ms Sztyk as she describes her functionality is very variable depending on the day and some days, she is largely bedbound secondary to her pain, but it does sound like she has severe limitations with standing, walking and sitting depending on the particular day. … .”[37]
[37] PCB 38
49He notes spondylitic changes on an MRI scan of the lumbar spine taken on 1 December 2014. He concludes that Ms Sztyk is suffering from lumbar spondylosis, which is a cause of her current condition. Although he says that the reasons for this conclusion are detailed in his report, those reasons are not expressly explained. As he did not conduct a physical examination, it appears he relies solely upon an acceptance of Ms Sztyk’s history and described symptoms in combination with spondylitic changes on the MRI scan on 1 December 2014 (only a little over one month after the incident).
50In his second report, dated 2 February 2022, Dr Weekes considers additional investigations from 2003 and 2010. He diagnoses “Aggravation of lumbar spondylosis”. In relation to causation, he concludes:
“It is my opinion based upon what has been reported to me that her employment with Department of Health to be the cause of her chronic lower back condition in particular the incidence of October 2014 seems to be the main precipitating factor albeit I do make note of that client was unclear about exact dates on interview today.” [38]
(sic)
[38] PSCB 24
51In a third report, dated 21 April 2022, Dr Weekes reviews clinical notes from two medical clinics as well as the report of a CT scan from 5 June 2018. He concludes that his opinion has not changed and “Ms Sztyk’s index injury in 2014 has been the dominant precipitating factor for her current clinical condition”.[39]
[39] PSCB 27
52Dr Lester Walton is a psychiatrist who assessed Ms Sztyk once by video conference on 15 September 2021, with the assistance of an interpreter. He assessed her again on 13 January 2022, again with the assistance of an interpreter. In his first report, dated 15 September 2021, he diagnoses Ms Sztyk with a chronic adjustment disorder with mixed anxiety and depression. He notes that:
“The main restrictions are in relation to this woman’s ongoing pain. Indirectly, because she is now reliant upon others, the loss of independence being a major stressor, Ms Sztyk has succumbed to significant mood disturbance and related symptoms. … .”[40]
[40] PCB 27
53In his second report, dated 18 January 2022, he considers evidence of Ms Sztyk’s part history of psychiatric problems dating back as far as 2001. He also considers the report of the defendant’s medico-legal psychiatrist, Dr Steven Adlard, who diagnoses Ms Sztyk with a delusional disorder. Dr Walton does not accept that this diagnosis is established, and maintains his original diagnosis of a chronic adjustment disorder with mixed anxiety and depression.
The Defendant’s medico-legal expert reports
54The defendant relies upon four medico-legal experts.
55Mr Clive Jones is an orthopaedic surgeon who assessed Ms Sztyk once on 18 February 2015. In his report, he records that Ms Sztyk is complaining of severe low back pain and stiffness that she feels renders her unable to return to work. He notes that Ms Sztyk walked normally and sat comfortably throughout the interview. He records a history of her suffering injury on 27 October 2014, but continuing to work for the next six weeks, before going off work in December 2014. He states :
“… If the relied upon incident actually caused an injury, it would have been evident immediately and it is just impossible she would be able to work normally for the next six weeks before making a claim and going off work. … .”.[41]
[41] DCB 212-3
56He diagnoses her with a soft-tissue problem in the lower spine, but expresses doubts as to whether it is related to her employment at all.
57Dr Tony Kostos is a rheumatologist who examined Ms Sztyk once on 10 May 2021, apparently without the assistance of an interpreter. He notes that he has been provided with a long history of low back pain, that Ms Sztyk does not mention the incident when she attends her general practitioner on 28 October 2014, and that the first mention of the incident in the clinical records is on 20 January 2015. He concludes, on the basis of the information provided, that the incident did not result in any specific injury. He also records that “her examination findings are not consistent with a physical problem and she clearly has markedly exaggerated pain response with non-organic signs”.[42] He continues:
“The medical evidence also tells us that a specific diagnosis of the cause of back pain cannot be made on the basis of a history and examination. Furthermore there was no indication for further investigations to be performed because abnormalities seen on investigations to be performed because abnormalities seen on investigations can also be seen in asymptomatic individuals and therefore according to the Guidelines should not have been performed at all.
However, compounding the fact that they were performed is her understanding that she has been told that she has permanent damage in the spine.
Therefore the radiological findings are irrelevant.
The only possible diagnosis that can be made is that this woman has a chronic pain syndrome and this relates to psychological and social factors with the role of inherent personality traits, previous life experiences, attitudes and beliefs and the adaptability to cope with anxiety and stress becoming increasingly appreciated.”[43]
[42] DCB 219
[43] DCB 219
58Ultimately, he concludes that Ms Sztyk does not have an injury that is materially contributed to by her employment.
59Dr Adlard is a psychiatrist who assessed Ms Sztyk once on 24 June 2021. It is not clear whether this assessment was in person or remote, and there is no mention of an interpreter in his report. He concludes that Ms Sztyk “clearly has a paranoid illness”[44] which he says had been evident since it was first documented in March 2006. He diagnoses Ms Sztyk with a delusional disorder and mixed depressive/anxiety condition, neither of which are related to her employment. He also concludes that she “probably” had an adjustment disorder arising out of her bullying claims in 2012/13 and another adjustment disorder arising out of her claimed back symptoms in late 2014. However, he concludes that these conditions are no longer present and her existing presentation is consistent “with her long-standing, pre-existing psychiatric difficulties”.[45] In relation to the question of whether Ms Sztyk has a chronic pain syndrome or somatic symptom disorder, he says:
“I note that Dr Kostos said in May 2021 that Ms Sztyk had a chronic pain syndrome related to psychological and social factors including her personality traits. I think this is often a problematic diagnosis in a medicolegal context and I would be loath to say that Ms Sztyk had a chronic pain syndrome/Somatic Symptom Disorder with predominant pain when considering her long-standing difficulties, the litigation she is involved in, and her presentation at the interview, despite her reported symptoms. I think it is possible that her distressed psychological state is increasing her pain perception somewhat, and she may well have some degenerative problems with her back and other parts of her body, though I do not think her presentation meet the full criteria for a Somatic Symptom Disorder. In any case, if it is considered that her back condition is unrelated to employment, then it follows that any pain syndrome she may have is unrelated to employment.”[46]
[44] DCB 237
[45] DCB 239
[46] DCB 238
60Dr Graeme Brazenor is a neurosurgeon who conducted a telephone interview with Ms Sztyk once on 11 February 2022, with the benefit of an interpreter. In his first report dated 11 February 2022, he conducts a detailed review of the documentary materials, including Ms Sztyk’s affidavit, clinical records and radiological reports. He concludes that there was “no significant pre-existing lumbar condition prior to 15 July 2014, with clear evidence of significant injury on 27 October 2014”[47] and that “on the balance of probabilities Ms Sztyk did sustain a soft tissue injury of lumbar spine on 27 October 2014.”[48] He does not express a concluded view as to whether the injury was sustained at work or not. However, he notes that Ms Sztyk’s account was “significantly implausible in several important aspects”. He notes that the frequency of consultations for back pain recorded in the clinical records gradually diminish in 2015 and are uncommon for 2016, 2017 and early 2018, before increasing from April 2018 onwards. He infers from this that Ms Sztyk suffered a re-injury in April 2018.
[47] DSCB 26
[48] DSCB 24
61In his second report dated 27 March 2022, he considers the actual images of three CT scans performed in 28 April 2011, 5 June 2018 and 20 May 2021. He concludes:
“These radiological additions do not change in any way my conclusions documented in my report dated 11 February 2022, except to observe that the three scans of lumbar spine do not show (and are not consistent with) a re-injury in April 2018. Hence the resurgence of presentations between 19 April 2018 and 4 April 2020 was not due to the injury sustained by unknown means on or about 27 October 2014, nor due to structural (ie: significant) re-injury.” [49]
[49] DSCB 59-60.
Analysis of medical evidence
62This case highlights the difficulty of the task confronting the Court when assessing the reliability of the medical opinions expressed in a serious injury application, without the benefit of cross-examination. None of the medico-legal expert reports are entirely satisfactory. There is also some force in the defendant’s submission that the reports of Mr Miller and Dr Kostos, in particular, lacked a clear path of reasoning. I am conscious that the onus of proof lies upon Ms Sztyk to establish that she has either suffered a permanent serious impairment of her spine or a permanent severe mental disorder.
63However, for the following reasons, I am satisfied that Ms Sztyk’s lower back pain arose out of her employment and has a substantial organic basis.
64First, I accept that Ms Szxtyk suffered a sharp onset of lower back pain on 27 October 2014, when pushing a green bin. I have accepted that she is an honest witness, although an unreliable historian. Ms Sztyk’s descriptions of the incident have been substantially consistent throughout, and date back to at least February 2015,[50] when her memory of the incident would still have been fresh. This ameliorates concerns about the reliability of her memory. On this point, I have a somewhat different view to Dr Brazenor, who only assessed Ms Sztyk once by telephone but describes her as “obfuscatory” and her account “significantly implausible”. To the extent of inconsistency, I prefer my own conclusions concerning Ms Sztyk’s credibility, based as they are on the opportunity to observe Ms Sztyk in the witness box over many hours. I also have a different view to Dr Adelard who diagnoses Ms Sztyk with a delusional disorder. I found it surprising that Dr Adelard was able to confidently state that many of the events experienced by Ms Sztyk in her troubled life were delusions and to reason from this to a conclusion that Ms Sztyk was suffering a delusional disorder, based solely on a review of documents and a single interview. I preferred the more measured approach of Dr Walton.
[50] Report of Clive Jones dated 19 February 2015, DCB 212
65In reaching this conclusion, I have considered the lack of specific reference to any such incident in the clinical records of Ms Sztyk’s general practitioners in October and November 2014. The notes of a general practitioner in a busy practice are necessarily brief and often incomplete. This must be particularly so when dealing with a patient such as Ms Sztyk, for whom English is a second language, who was under significant stress and who has had longstanding struggles in communicating in a clear and measured fashion. The fact that the incident was not mentioned in the clinical notes of Ms Sztyk’s initial appointments with her general practitioners does not lead me to reject her clear and consistent evidence in relation to the incident.
66Second, I accept Ms Sztyk’s evidence that she has experienced ongoing and worsening lower back pain since 27 October 2014. Ms Sztyk’s evidence is corroborated by the direct evidence of her treating general practitioner, Dr Arcon who commenced seeing Ms Sztyk on 28 May 2015 and diagnoses Ms Sztyk with chronic lower back pain arising from a work related injury which happened on 27 October 2014. Against this, Dr Brazenor identifies in his report that there was a reduction in reports of back pain in the various clinical records which he reviewed in 2016, 2017 and early 2018. He infers from this that Ms Sztyk’s pain had substantially resolved by 2016. Although the thoroughness and detail of Dr Brazenor’s review of the clinical records is impressive, I do not accept that he is an expert on the subject of what would or would not be reported by a patient to their general practitioners; nor on what would or would not be recorded in the clinical notes of any such general practitioner. The picture is further complicated by the number of different practitioners consulted by Ms Sztyk in the relevant time-period and the fact that the clinical records of some of these practitioners were not tendered in evidence, despite being relied upon by Dr Brazenor in his report and, in the case of the Mentone Medical Clinic and Central Bayside Community Health Clinic notes, available in the defendant’s Court Book. This left the Court unable to assess for itself the global picture drawn by the clinical notes with any certainty. It is also complicated by Ms Sztyk’s previously-mentioned difficulties communicating in a clear and measured fashion and her concurrent depressive/anxiety condition, which may have inhibited her from seeking treatment for any ongoing chronic pain.[51] In all the circumstances, I do not accept that the inference that Dr Brazenor draws from the clinical records (not in fact comprehensively tendered in evidence) should be accepted by the Court. I prefer the account of Ms Sztyk.
[51] As diagnosed by both Dr Adelard and Dr Walton
67The defendant also relied upon occasional references in the clinical notes of Ms Petrina Schoorman to looking for volunteer work, returning to work on reduced hours, considering joining a choir or completing further studies. In my view, these matters are not inconsistent with Ms Sztyk continuing to experience ongoing pain. Indeed, they are consistent with Ms Sztyk having an ongoing desire to recover from her injuries and return to work (as she had done in the past) which was ultimately unsuccessful. The notes of Ms Schoorman also contain reference to hydrotherapy and physiotherapy treatment, which is consistent with Ms Sztyk having ongoing issues with back pain.
68Third, the opinions of Mr Miller best explain the facts as I have found them, which demonstrate a temporal concurrence between Ms Sztyk’s employment and her symptoms of back pain. Ms Sztyk experienced some initial lower back pain shortly after she returned to work with the defendant, which she reported to her general practitioner on 15 July 2014 and 6 October 2014. She then experienced a sudden increase in that pain during the incident on 27 October 2014. I have accepted that her pain has been ongoing and worsening since that date. These facts are consistent with Mr Miller’s diagnosis of a complex multifactorial organic injury for which both Ms Sztyk’s employment and the incident on 27 october 2014 were a cause.
69However, these facts are not consistent with the opinions of Dr Brazenor or Dr Kostos. Dr Kostos’ opinion is that the incident on 27 October 2014 did not result in any specific injury. Dr Kostos provides no explanation for the onset of pain which I have accepted occurred on 27 October 2014. Indeed, his reasoning seems to set up an impossible burden for claimants such as Ms Sztyk: On the one hand he says “The medical evidence also tells us that a specific diagnosis of the cause of back pain cannot be made on the basis of a history and examination”. On the other, he says that “abnormalities seen on investigations can also be seen in asymptomatic individuals and therefore…should not have been performed at all”.[52] He concludes that the only possible diagnosis is a chronic pain syndrome that relates to psychological and social factors. However, both parties agreed that he lacked the relevant expertise to make such a diagnosis.
[52] DCB 219
70Dr Brazenor accepts that there was a soft tissue injury on 27 October 2014. His initial opinion, however, is that this soft tissue injury resolved before Ms Sztyk was re-injured in about April 2018. One of the foundations of this opinion is his interpretation of the clinical records, an interpretation which I have not accepted. In any event, having viewed the actual image of the CT Scan of Ms Sztyk’s lumbar spine dated 5 June 2018, he moves back from this opinion in his second report, stating “the three scans of lumbar spine do not show (and are not consistent with) a re-injury in April 2018. Hence the resurgence of presentations between 19 April 2018 and 4 April 2020 was not…due to structural (i.e.: significant) re-injury”[53]. He leaves the reader of this report with no explanation of the resurgence (as he describes it) of symptoms in 2018.
[53] DSCB 59-60
71Mr Miller also had the opportunity to physically examine Ms Sztyk on two occasions and in person and his opinion is broadly consistent with that of Dr Weekes and Dr Arcon. Dr Brazenor, on the other hand, assessed Ms Sztyk only once and by telephone. Dr Kostos assessed Ms Sztyk once in person but apparently without the benefit of an interpreter. Further, Dr Brazenor and Dr Kostos’ opinions cannot stand together. Dr Kostos is of the view that Ms Sztyk had long-standing pre-existing problems with her lower back and the incident on 27 October 2014 did not result in any specific injury. Dr Brazenor finds that there was no significant pre-existing lumbar condition prior to 15 July 2014 and accepts that Ms Sztyk suffered a soft tissue injury of the lumbar spine on 27 October 2014.
72Mr Miller frankly acknowledges that causation is a complex and multifactorial issue, with relevant factors including pre-existing disease, significant physical work over a protracted period of time, the work injury on 27 October 2014 and further aggravation at home in November 2014.[54] However, he accepts that both Ms Sztyk’s work duties (more generally) and the incident on 27 October 2014 are a cause of her current condition which is “satisfactorily explained by defined organic disease”[55]. This seems to me to be a balanced and non-dogmatic approach.
[54]In his third report, Mr Miller stated that the aggravation occurred in November 2017 (PSCB 20), but when read in conjunction with the history given in his first report (PCB 32, first paragraph) it is apparent that this is a typographical error and the date should be November 2014.
[55] PSCB 16
73Mr Miller was initially provided with an inaccurate history that Ms Sztyk had no prior back symptoms. He was also initially only provided the report of the MRI from 1 December 2014. However, he ultimately considered radiological reports of MRI from 1 December 2014 and CT scans from 11 June 2008, 19 July 2010 and 5 June 2018 and also Ms Sztyk’s pre-existing symptoms of back pain. Upon being provided a more accurate history, he made sensible adjustments to his opinion.
74I have considered the fact that Mr Miller was not provided with the CT Scans of 28 April 2011 or 20 May 2021, which were considered by Dr Brazenor in his second report in conjunction with the CT scan on 19 July 2010. According to Dr Brazenor, the CT Scan of 28 April 2011 showed a diffuse annular bulge at L5/S1 which pre-dated the incident on 27 October 2014 and the CT Scan of 20 May 2021 showed that the asymmetry at the L5/S1 disc had resolved. Had Mr Miller considered these two scans, he may not have expressed the view that he did in his third report that there was “probable specific disc pathology at the L5/S1 level”. However, this view is not contained in Mr Miller’s earlier two reports and does not appear to be critical to his conclusions in relation to the organic basis of Ms Sztyk’s injury; or its relationship to her employment.
75In conclusion, I accept Mr Miller’s opinion (and to the extent they are consistent with the opinion of Mr Miller, the opinions of Dr Weekes and Dr Arcon). I accept on the basis of these opinions that Ms Sztyk has suffered a lumbar spine injury of substantial organic basis that arose out of her employment with DHHS and the incident on 27 October 2014. No further disentangling is required.[56]
[56] Meadows v Lichmore Pty Ltd [2013] VSCA 201
76I accept that this lower back pain is significant and constant and dramatically interferes with Ms Sztyk’s capacity to undertake her normal daily activities and to enjoy life. As I have already noted, it may well be that Ms Sztyk’s experience of pain is heightened by her internal narrative of injury and personality. It is a matter of ordinary experience that some people experience pain more intensely than others, for a multiplicity of reasons. This does not raise Ms Sztyk’s experience of pain beyond that of the consequences of an injury of substantial organic basis. Indeed, on one view it would be against the evidence for me to find this, given neither of the psychiatrists found the existence of a somatic symptom disorder.
77I accept that Ms Sztyk’s lower back pain is sufficient to render her incapable of working in any suitable employment, thereby reducing her income earning capacity from suitable employment to zero. The defendant submitted that, given Ms Sztyk’s long history of mental and physical issues, she might have stopped work in any event. However, there is no evidence that her other physical and psychological issues would have prevented her from continuing in employment were it not for her lower back pain. Indeed, although Ms Sztyk has had interruptions to her employment previously due to the vicissitudes of her life she has always previously demonstrated a willingness and ability to return to employment. She was not able to on this occasion.
78I accept that Ms Sztyk’s symptoms of lower back pain, which continue to be experienced eight years after the incident and if anything are worsening, are permanent.
79In light of the above, I am satisfied that Ms Sztyk has suffered a permanent and serious impairment of her spine, both as to the pain and suffering consequences and the loss of income earning capacity consequences (including the requirement that she suffer a current and permanent loss of income earning capacity of at least 40 per cent).
80I will grant Ms Sztyk leave to bring proceedings for damages and hear from the parties on the question of costs.
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