Tosic, Nevenka v Mega Life Sciences (Australia) Pty Ltd

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-04027

NEVENKA TOSIC	Plaintiff
v
MEGA LIFE SCIENCES (AUSTRALIA) PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 June 2009
DATE OF JUDGMENT:	24 August 2009
CASE MAY BE CITED AS:	Tosic, Nevenka v Mega Life Sciences (Australia) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1468

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury – impairment to the cervical spine – chronic pain syndrome – pain and suffering – loss of earning capacity – Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie SC with	Zaparas Lawyers
Ms K Galpin
For the Defendant	Mr W R Middleton SC with	Lander & Rogers
Ms C Boyle
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from February 2004 and up to and in particular during March 2006 (“the period of employment”).
2          The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning permanent serious impairment or loss of a body function.
4          The impairment of body function relied upon is the cervical spine.
5          The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. Mr Dohrman, the plaintiff’s treating neurosurgeon, was required to attend for cross examination.
6          In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

Outline of s.134AB
(i)         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii)        The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and more than “significant” or “marked”;
(v)        I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi)       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii)      Subsections (38)(e) and (f) of the Act recite the formula by which loss of earning capacity is to be measured;
(viii)     Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix)       Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x)        I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and in Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 in reaching my conclusions.

The Plaintiff’s Evidence
7          The plaintiff is presently aged forty, having been born on 31 December 1968 in Yugoslavia. She attended school for twelve years and then married at about the age of twenty in 1989. The plaintiff has two sons aged eighteen and fourteen.
8          Whilst living in Yugoslavia after leaving school, the plaintiff was engaged in home duties. In May 2003, she came to Australia.
9          The plaintiff commenced her first job working with the defendant in February 2004. Her duties involved mixing coatings for vitamin tablets, applying coatings and packing. She worked thirty seven and a half hours a week, together with six hours’ overtime per week.
10        Prior to March 2006, there was only time for one coating process per shift. During such process the plaintiff had to mix the coating. She also had to get chemicals, plastic bags and boxes from the storeroom. The bags weighed about one and a half kilograms and the boxes weighed about twenty to twenty five kilograms.
11        The plaintiff was required to carry at least one of these boxes to the mixing machine each day, where she would load its contents into the machine using a twenty litre plastic bucket and then add chemicals. She lifted the bucket once per day.
12        The plaintiff was then required to obtain the vitamin tablets which were stored in ten kilogram packs in two hundred litre drums. She moved the drums on a trolley after they were lifted there by an hydraulic lifting device, however she had to manually rotate and manoeuvre the drums approximately two to four times per day.
13        The heaviest work undertaken by the plaintiff was loading and unloading the bags of tablets into the coating machine and moving the drum of tablets into the lifting device. Most of the work involved repetitive bending, lifting and stretching.
14        In March 2006, the work process was changed and the plaintiff was required to do two coating processes a shift rather than one. What had previously taken two to three hours by machine now took only forty five minutes.
15        This changed work process placed additional strain on the plaintiff’s neck and arms and within a few days she began to notice discomfort in her neck, shoulders and arms. Her right arm hurt first and then her neck. She reported her problems to the supervisor, Anna Nicholls.
16        The plaintiff kept working but her symptoms gradually worsened. Later in March the plaintiff developed back pain. On 20 March 2006, the plaintiff attended her usual general practitioner, Dr Bogetic whom she then saw about five or six times in relation to this work injury.
17        The plaintiff denied that she stopped seeing Dr Bogetic because Dr Bogetic told her that “all her problems were in her head”. The plaintiff explained that she changed doctors because Dr Bogetic would not refer her for testing of her lower back because she thought tests would not help as the plaintiff’s problem was stress.
18        Dr Bogetic prescribed the plaintiff some painkillers. She arranged an ultrasound of the plaintiff’s right shoulder and a CT scan of her neck and referred the plaintiff to Mr Drnda, neurosurgeon, who arranged for an MRI scan of the plaintiff’s neck in May 2006.
19        Mr Drnda told the plaintiff to take care of her neck but he did not think he could help with an operation. In cross examination, the plaintiff denied she told Mr Drnda her major problem was her left shoulder, saying she complained to him of pain on the right side. Mr Drnda imposed a five kilogram lifting restriction on the plaintiff’s work duties and advised her to attend physiotherapy. In cross examination, the plaintiff said she did not attend for physiotherapy and she did exercises at home.
20        During this period, the plaintiff was given help at work with lifting but she was still required to engage in mixing, coating and making up boxes and cleaning and setting the machine which required bending and use of her arms and her discomfort discontinued.
21        In June 2006, as she was having difficulty coping with work, the plaintiff went to see her husband’s doctor, Dr Pjesivac. In cross examination, the plaintiff said she told him of “mainly her neck and headaches and everything else”. Since that time the plaintiff has continued to complain to Dr Pjesivac of neck and back pain, with her neck pain being worse.
22        Dr Pjesivac reduced the five kilogram lifting restriction to two kilograms with no repetitive bending or lifting and also sent the plaintiff for a lumbar CT scan in June 2006.
23        When the plaintiff took the new WorkCover certificate from Dr Pjesivac to work on 23 June 2006, she was told by the defendant that she could have a week off but if she could not get back to her previous work there were no suitable duties for her.
24        The plaintiff was then off work for about three weeks and made a WorkCover claim on 6 July 2006.
25        On 13 July 2006, the plaintiff was offered light work, working eight hours a day, five days a week, mainly sitting at a bench checking tablets. That work, however, involved her bending forward constantly and caused her ongoing discomfort. The plaintiff’s hours were reduced to six hours a day and then to four hours a day on 31 July 2006.
26        The plaintiff continued working four hours a day inspecting tablets and doing the occasional packing working in quality control until September 2007, when she had to cease work because of neck discomfort as she could stand working no longer. Looking down to do her duties for four hours as if writing was very painful. She also had the occasional problem with her back.
27        In cross examination, the plaintiff explained that she had severe problems with her back from time to time when she had her period or when she was constipated. Physiotherapy treatment helped her. The plaintiff first received treatment from a physiotherapist at Dr Pjesivac’s clinic in August 2007. From December 2007 the plaintiff has been treated by another physiotherapist, Dr Cvetkovic.
28        The plaintiff explained that originally the treatment plan with Dr Cvetkovic was to treat her neck one week and her back the following week. However, more often than not the plaintiff has had treatment for her neck. This treatment has not helped her neck. The plaintiff has had no lasting improvement from any treatment or any medication with respect to her neck.
29        Dr Pjesivac referred the plaintiff to another neurosurgeon, Mr Dohrmann, whom she saw on 18 September 2006. Mr Dohrmann suggested physiotherapy but WorkCover would not pay for it. He also referred the plaintiff to Mr Barrett, an orthopaedic surgeon, whom she saw in October 2006. Mr Barrett advised the plaintiff to be careful with her back and he arranged a lumbar MRI scan.
30        The plaintiff was also referred to Ms Stefanovic, psychologist, as she was becoming increasingly anxious concerning her pain. The plaintiff first saw her in early 2007, and continues to see Ms Stefanovic monthly because of her depression.
31        The plaintiff was referred back to Mr Barrett in March 2008. She was also referred back to Mr Dohrmann in May 2008. Mr Dohrmann arranged a further MRI scan of the plaintiff’s neck in October 2008. After the scan Mr Dohrmann discussed with the plaintiff the possibility of a neck operation but he did not think it would necessarily improve her level of discomfort.
32        The plaintiff presently takes Panadol or Panadex every day for neck pain. She has also been prescribed Panadeine Forte and also occasional Temazepam to help her sleep. In more recent times the plaintiff has been prescribed Digesic every time she sees her doctor. When her neck pain is worse, she takes a tablet every four hours. If she does not take Digesic she takes Nurofen Plus tablets every four hours. The plaintiff has been taking Digesic more frequently since she started an English course in February 2009. However, those tablets have made her feel constipated and tired. She also takes Endep, which was prescribed in about September 2008.
33        The plaintiff continues to attend Dr Pjesivac about twice a month and she sees her physiotherapist about twice a week. Dr Pjesivac arranged for the plaintiff to attend a pain management clinic in Caulfield in mid 2008, however, the plaintiff is still on the waiting list.
34        The plaintiff has constant neck pain which can spread into the back of her head, her shoulders, arms and shoulder blades, worse on the right side. If she sits or stands unsupported for more than an hour or so she gets increased neck pain. She has tightness in her neck, as well as pain, and her pain is aggravated if she turns her neck to extremes or quickly, again worse on the right side.
35        When her pain spreads to the back of her neck, the plaintiff gets headaches every two to three weeks, lasting about one to three days. At those times she takes Panadeine Forte and Panadol and usually she has to lie down for most of the day. It hurts when she opens her eyes. Before her neck injury, the plaintiff occasionally had headaches but nothing like they are now.
36        Raising her arms above chest height seems to increase her neck pain. She has to be careful how to move and avoid jarring her neck. She prefers to carry things in her left arm. If she carries items in excess of two kilograms in her right hand she experiences increased right shoulder, arm and neck pain and even lifting a cup of coffee can cause discomfort.
37        In cross examination, the plaintiff described her present pain is in the middle of her neck and goes into her shoulders and the right side of her neck. It goes from the right side of her neck over the top of her right shoulder to the shoulder blade down her arm to the elbow. From time to time the plaintiff gets pain which goes down her forearm into the hand, little finger and ring finger, and from time to time to the thumb. From time to time she gets pain between her shoulder blades. Occasionally she has left shoulder pain going into the left arm. Sometimes the pain runs from her spine to her lower back. From time to time she has lower back pain into the buttock and right leg calf, foot and toes. She has right thigh pain during her menstrual cycle and when she is constipated. The pain also goes from the middle of the neck to the top of her head. The pain goes down into her forehead when she has a severe headache which is not a migraine.
38        In cross examination, the plaintiff confirmed she is restricted in her neck movement. She demonstrated she could flex her neck to about forty five degrees.
39        Since ceasing work the plaintiff has less frequent severe pain and severe headaches than when she was working and was taking a lot more tablets. She had pain all over when she was working but never had had similar pain before March 2006.
40        When sitting the plaintiff sometimes leans her head a little to the left as that makes it more comfortable. She puts a pillow under the left side of her head whilst watching television. She can drive a car but has to be careful not to turn her head too quickly. She turns her whole upper body and uses the mirror more. She tends to use the bottom half of the steering wheel as prolonged raising of her arms increases the discomfort in her shoulder blades and neck. She sits closer to the steering wheel so she does not have to stretch her arms. She believes that since her injury she has lost grip strength in her hands, particularly the right, and when she opens the car door after driving she tends to push it open with her right elbow.
41        The plaintiff finds it hard to get to sleep at night and she is sometimes helped by tablets. She has been given a thin pillow by her physiotherapist. Rolling over in bed is painful for her neck and she usually wakes several times a night because of pain but she can sleep until the middle of the night if she has taken medication.
42        In the morning the plaintiff’s neck is always stiff and she sometimes wakes with a headache. She usually massages her neck and uses Rapid Gel which helps a bit. She uses a heat pack which relaxes her muscles. She finds it best if she keeps her head up when cleaning her teeth and brushing her hair. She uses her left hand for those tasks as it is less painful and she tries to do them quickly to limit the discomfort. She is right handed but tends to favour her left hand as this causes less arm and neck pain. She mainly uses her left hand to wash her hair. She uses a hair dryer in her left hand and does not brush her hair at the same time. She dresses slowly and carefully and prefers to wear tops which open in the front. She has increased neck discomfort in the cold weather.
43        At home the plaintiff’s sons do the vacuuming and clean the toilet and shower because she cannot do it with the bending and pushing involved. The plaintiff’s mother also helps with these tasks about once a month. The plaintiff can put clothes in the washing machine and she can hang out smaller items on a clothes hoist and her sons hang the rest of the washing on the line.
44        The plaintiff does most of the cooking but she has to get help with vegetables. She does not feel as strong in her hands anymore and any force away from her body seems to cause increased shoulder and neck pain. She has to get help lifting any weights of more than a few kilograms.
45        The plaintiff cannot stand at a bench or stand for more than twenty minutes before having a break and walking around and relieving the stress on her neck. Sometimes she has to lie down.
46        Before she was injured the plaintiff used to help maintain the garden, digging the vegetable patch and flowerbeds and weeding. She no longer does gardening as the bending and the force through the arms cause increased neck pain.
47        Prior to suffering injury, the plaintiff used to enjoy reading Serbian romantic novels. She cannot read now for more than fifteen minutes because she loses concentration due to increased neck pain. She can read a bit longer in bed with a special pillow.
48        The plaintiff socialises less since suffering injury and finds it uncomfortable when friends talk about what “they are doing in their work and buying things” as she has nothing to say.
49        The plaintiff prefers to be at home where she can rest. Her neck injury has placed a strain on her relationship with her husband as she finds it difficult to be interested in what he is doing and finds it harder to keep herself looking nice. Putting on and taking off make up is painful. It is hard to show affection. Even embracing her husband causes the plaintiff neck discomfort and she worries and is frustrated about her inability to contribute to the family. Generally, since the injury, the plaintiff has become depressed and has lost hope that she will get better.
50        In about October 2008, the plaintiff was contacted by a rehabilitation agent who arranged for her attendance at an English course in Dandenong which she started in February 2009. The course is held from Monday to Friday (except Tuesday when it is for four hours in the afternoon) from 8.30 am to 12.30 pm with a break at 10.30 am. Since attending the course, the plaintiff has suffered increased neck pain and more headaches and has had to leave the course early on many days because of these problems. The plaintiff now gets a bad headache every week and finds it hard to learn English when her neck pain is worse.

51 In cross examination, the plaintiff explained that it was her “burning wish” to continue on with her English studies but her neck problems have worsened to the point where she only attends for about half the time, namely two hours per day. She has problems studying not only because of her pain but because of problems with her concentration and memory.
52 The plaintiff has not looked for work since ceasing employment with the defendant in September 2007. She does not intend to look for work at the moment. She thought it would be different having to work than doing the housework and going to TAFE, as when she is at home she can do what she can and that would not be possible at work. In re examination, the plaintiff stated but for her neck pain she would now be working.

Treating Doctors
53        Dr Pjesivac from Hygia Medical Management in Oakleigh most recently reported in May 2009. He noted the plaintiff first presented on 22 June 2006 with a history of left sided neck pain, headaches, right upper limb pain and lower back pain since February 2006.
54        On examination of her cervical spine at the initial consultation, Dr Pjesivac noted the plaintiff appeared depressed with diminished active rotation and cervical extension. In his view, there were no signs of functional overlay and there was a mild weakness of right grip strength. The plaintiff’s range of lumbar movement was near normal and her straight leg raising was negative in both lower limbs. Her reflexes were normal and neurologically the plaintiff appeared intact. There was mild tenderness on palpation in her lumbar region bilaterally.
55        Dr Pjesivac noted that in addition to her cervical and lumbar pain, the plaintiff had developed depressive symptoms resulting from her ongoing disability and chronic pain.
56        When he reported in October 2008, Dr Pjesivac considered the plaintiff had no working capacity. He noted she was attending physiotherapy, psychotherapy and pain management. She was also taking non steroidal anti inflammatories, analgesics and antidepressants.
57        In May 2009, Dr Pjesivac reported that the plaintiff’s symptoms, including headaches, neck, shoulder and lower back pain had not changed greatly over the last twelve months.
58        In Dr Pjesivac’s view, the plaintiff presented with symptoms of cervical disc prolapse, depression and lower back pain, most likely due to an exacerbation of her pre existing lumbar spondylosis. He considered the plaintiff’s employment represented the most significant contributing factor in the development of the conditions.
59        Dr Pjesivac thought the plaintiff did not have any work capacity and in his opinion, this was entirely due to her physical injuries, complicated by her depression. He considered the plaintiff was most likely to remain as such in the foreseeable future and that she required ongoing physiotherapy, psychotherapy and pain management to maintain her current level of functioning.
60        Mr Drnda, neurosurgeon, examined the plaintiff on referral from Dr Bogetic in April 2006. On examination, the plaintiff complained of neck pain, occasional aches and pains down the right upper arm which very occasionally went into her forearm. He noted the plaintiff’s major issue at that time was pain between her left shoulder and neck, which she suffered about two weeks ago. The plaintiff also had pain down the back, she got headaches and there was pain on the left side of her chest.
61        The plaintiff told Mr Drnda that for about two years she was exposed to lifting five to fifteen kilogram weights of tablets and dye and that she also needed to sort them at shoulder level so that meant she was working with her arms upwards.
62        On examination, Mr Drnda could not find much neurologically; there was normal range of movement in the neck and shoulders and neurologically the plaintiff was intact.
63        Mr Drnda noted the March 2006 CT scan showed some minor changes which were disc protrusion at C4-5 which was central and the foramina looked “OK”. He noted that at C5-6 there were some spondylitic changes but also to a milder degree. In his view, the foramina looked capacious, as did the spinal cord.
64        Mr Drnda considered the plaintiff had a problem mainly with muscular strain and there was no doubt it was work related. He thought the plaintiff required to do regular exercise and needed to have physiotherapy and some restrictions at work.
65        In his view, for a while the plaintiff should not be involved with repetitive, bending, twisting or lifting objects, especially above chest height, and she needed to vary her job. He thought this should be achieved at work with the involvement of an occupational therapist.
66        Mr Drnda last reported in June 2006 after he arranged an MRI scan of the plaintiff’s cervical spine in May. He noted it showed C5-6 disc degeneration with protrusion, however without cord compression or neural compression. The foramina looked “okay”. To some extent there were changes at C4-5 but these were much less extensive.
67        Mr Drnda considered the plaintiff probably had more muscular strain on the basis of cervical spondylosis. He thought she was getting worse in the lower back and had pain down her lower leg as well, all of which were a consequence of strain at work. Mr Drnda also thought the plaintiff was very much stressed which worsened the situation. He considered her muscular headache was possibly turning into migraine and noted she had pain over the right half of her head.
68        Mr Drnda considered the plaintiff required a lot of stress management, with help at work where she could permanently do a job which was not too strenuous for her neck and lower back.
69        Mr Dohrmann, neurosurgeon, first saw the plaintiff on 18 September 2006. On that occasion he noted she presented with chronic neck and right upper limb pain, telling him she had developed right sided neck pain which gradually spread to involve the thoracic and lumbar spines.
70        On examination, active rotation of the cervical spine was diminished, as was extension. Mr Dohrmann noted there were no signs of functional overlay with normal power and a full effort apparent in the upper limb. There was mild weakness of right grip strength and pinprick appreciation was diminished in the right little finger. The deep tendon reflexes were intact and there were no long tract signs.
71        Having seen the May 2006 cervical MRI scan, Mr Dohrmann was of the view it revealed a capacious cervical spinal canal and exit foramina and there was a C5-6 disc prolapse and a mild C4-5 disc bulge.
72        At that stage, Mr Dohrmann considered the plaintiff presented with symptoms consistent with a cervical disc lesion that did not warrant surgical treatment. He advised conservative management and a course of physiotherapy, and also advised the plaintiff it might be necessary for her to seek alternative work as he considered it likely she would have further problems with repetitive or physical work.
73        Mr Dohrmann noted he saw a copy of Mr Drnda’s report and commented that it was evident that his assessment and views expressed therein were essentially identical to his. In cross examination, Mr Dohrmann said he thought such consensus would have been in relation to the inappropriateness of surgery rather than to other issues that Mr Drnda dealt with.
74        The plaintiff was again referred to Mr Dohrmann in May 2008. She told him that over the previous two years her pain had worsened. She also reported lower back pain with right leg pain. To specific questioning, the plaintiff mentioned numbness in her little and ring fingers of the right hand. She told Mr Dohrmann her headaches had been less frequent since she stopped work in October 2007.
75        On examination, there were diminished neck movements, especially on rotation to the right and extension. There was possible slight reduction of the right biceps jerk compared to the left and there was weakness of right grip. There was a collapsing pattern of weakness in the right upper limb.
76        Because of continuing right arm symptoms and the possible signs of radiculopathy, Mr Dohrmann felt a repeat MRI scan was warranted.
77        Prior to receiving that MRI scan, Mr Dohrmann thought the plaintiff presented with a symptomatic cervical disc prolapse, the symptoms of which appeared to bear some relationship to the repetitive work she had been performing. He noted there was no specific history of injury but it was considered likely her employment had been an aggravating factor in the development of the cervical disc lesion. He considered the plaintiff was currently unable to perform her pre injury duties because of continuing neck and right arm pain and headaches. He thought that these might be related to nerve root compression caused by the protrusion and the new MRI scan would be useful in that regard.
78        The plaintiff then attended for a third consultation with Mr Dohrmann on 24 November 2008, at which time the plaintiff was not examined by him. He noted that the MRI scan performed on 30 October 2008 revealed a broad based disc bulge and posterior osteophytes at C4-5 causing mild C4-5 foraminal stenosis. It also confirmed persisting asymptomatic right sided broad based disc bulging at C5-6 associated with posterior osteophytes.
79        Mr Dohrmann discussed these results with the plaintiff and indicated that surgery was technically possible but that the results of an operation would be difficult to predict. In particular, he noted the prospect for relief of the plaintiff’s neck pain and headache was relatively poor. Because those appeared to be her chief continuing complaints, Mr Dohrmann advised again against operation. He considered pain management was an appropriate conservative option and noted the plaintiff was on a waiting list for a pain management clinic.
80        Mr Dohrmann concluded the plaintiff would appear to have no realistic work capacity. The diagnosis remained cervical disc prolapse, likely to be related to the plaintiff’s previous work as a factory worker. He considered she did not have the capacity for pre injury employment and he could not conceive of any alternative duties for which the plaintiff might be suited that would be likely to lead to reliable full time or even part time work.
81        Mr Dohrmann attended for cross examination.
82        In examination in chief, Mr Dohrmann explained that the plaintiff’s symptoms appeared to bear some relationship with the repetitive work she had been performing. Such symptoms included diminution of active movements of the neck from side to side and backwards consistent with a patient with a cervical disc prolapse. He explained the mild weakness of right grip strength would correspond in general terms with compression of a nerve root by a C5-6 disc prolapse. He noted the diminished pinprick appreciation in the right little finger but said it would not, of itself, fit with that particular level of the spine.
83        On seeing the further 2008 MRI scan of the cervical spine, there was no change, in his view, as to the relationship between the symptoms complained of and the underlying pathology.
84        In cross examination, Mr Dohrmann agreed the plaintiff’s basic complaints initially were right sided neck pain, gradually spreading to involve the thoracic and lumbar regions.
85        He did not think her lumbar pain would be directly explicable by a problem in the neck but it was not an uncommon complaint. He considered it was likely, unless there was a separate problem involving the lumbar spine, that there was an organic component to the plaintiff’s condition and then a non organic additional component of which the back ache would arguably be part of.
86        Mr Dohrmann defined functional overlay as physical findings on examination rather than to a particular pattern of symptoms, using the example of the so- called collapsing pattern of weakness that patients with functional overlay exhibit that cannot be explained organically.
87        Mr Dohrmann made this finding on the second physical examination but not on the first. He explained such a finding did not fit any organic or pathological investigation and it could be something that manifested either consciously or subconsciously as a response to an injury.
88        Mr Dohrmann confirmed he had seen the film of the 2006 cervical spine MRI scan. He disagreed with Mr Drnda’s view that there was no appreciable nerve root compression shown on the scan.
89        Mr Dohrmann confirmed that on the second examination, he found slight reduction of right biceps jerk and weakness of grip. He explained the biceps jerk is an objective physical finding that cannot be mimicked or suppressed, and pointed to dysfunction of the right C6 nerve root. He disagreed that a depressed bicep jerk was a soft sign, saying that it was significant. He acknowledged the weakness of grip was perhaps more possible to be affected by conscious or subconscious factors, but, again, he thought it was consistent with C5-6 disc protrusion.
90        Mr Dohrmann explained that other possible signs of radiculopathy would relate to motor examination, the sensory examination and the reflex examination, so in other words the strength, the sensitivity to pinprick and the presence or absence of the reflexes. He accepted that the plaintiff only had the right biceps jerk as an objective sign but explained that he thought the right grip was a motor phenomenon. He did not attach much significance to wasting, and said it would normally not be measured in a clinical setting.
91        Mr Dohrmann commented that on the second examination, pinprick appreciation was sharper in the left hand generally, and said that could be consistent with a functional overlay but equally it could be consistent with nerve root involvement.
92        Mr Dohrmann agreed that on the third visit the plaintiff complained of more pain in the left arm.
93        Mr Dohrmann was cross examined at length about the terminology he used to describe his findings at C5-6. He explained that in his view, a bulge is mild and a prolapse or protrusion are interchangeable terms to “suggest something more substantial”.
94        In his report of 6 December 2008, Mr Dohrmann had in fact described the findings at C5-6 as a bulge, as did the radiologist. Mr Dohrmann explained he “had broken his own law” by using the word “bulge” when he actually meant prolapse.
95        Mr Dohrmann confirmed there was no significant change between the 2006 and 2008 MRI scans in respect of C5-6. He disagreed that there was no nerve root compression occurring radiologically. He noted there was a minor right sided cord indentation shown on the 2008 MRI scan, that is, the disc protrusion was sufficient to actually indent the cord.
96        Mr Dohrmann thought it was a “harsh comment” to say that the degenerative changes shown on investigations were typical for a patient of around forty, and that such a description was “out of the question” because he thought the plaintiff had a clinical presentation and imaging consistent with a specific disc prolapse which, in his view, was not just normal degenerative change.
97        Mr Dohrmann did not accept a disc prolapse was a normal expected course of events as an age related degenerative change everyone could expect. However, he agreed a prolapse could arise from the progression of degenerative changes over a period of time.
98        Mr Dohrmann disagreed with Mr Drnda’s and Mr Dooley’s opinion that the plaintiff’s condition was one of muscular pain.
99        Mr Dohrmann disagreed with Mr Drnda’s view that the plaintiff’s psychological reaction was dominating her presentation. Mr Dohrmann did not disagree with the thrust of the proposition that the plaintiff was anxious and exhibited some features of a “sort of misery” which were not good prognostic factors from a surgical point of view.
100       Mr Dohrmann disagreed that he thought the plaintiff was not a candidate for surgery because the signs were “not hard enough”. He explained “the total picture” was one in which he would be concerned that surgery would be followed by a poor result.
101       Mr Dohrmann was reluctant to agree with Mr Dooley’s diagnosis of a chronic pain syndrome if indeed there was a physical underlying demonstrable basis for the plaintiff’s referred pain, which he believed was the case. He explained that was not to say that the plaintiff did not have symptoms over and above the textbook symptoms of nerve root compression but to “just brush it off” as a chronic pain syndrome was “again a little harsh”. Mr Dohrmann thought that a person who had a disc prolapse and had physical signs who also exhibited non organic overlay, still deserved the benefit of the proper underlying diagnosis, namely cervical disc prolapse with referred pain. In his view, it might be reasonable to add, “complicated by a superadded chronic pain syndrome”. He thought one just cannot cancel out the symptoms referrable to nerve root compression and replace it with chronic pain.
102       Having been asked about Dr Cvetkovic’s comments, Mr Dohrmann said essentially it was not a dissimilar appraisal of the plaintiff’s condition which would lead him to be reluctant to proceed with an operation. Mr Dohrmann noted the plaintiff was a delicate individual who had perhaps not coped as robustly as others might, with a common but nonetheless painful physical condition.
103       Mr Dohrmann agreed that the global reduction of cervical movements to less than ten per cent of normal as shown by the plaintiff to Professor Teddy was an “extraordinary restriction” and it suggested there was a conscious or subconscious active desire by the plaintiff to minimise neck movements.
104       Mr Dohrmann thought that the plaintiff’s headaches could be caused by her neck condition.
105       From his own assessment, Mr Dohrmann confirmed the plaintiff certainly exhibited clinical features which included those consistent with cervical disc prolapse but with other additional features as well. He thought that was extremely common and a matter of degree.
106       Mr Dohrmann agreed, taking into account Professor Teddy’s opinion and examination, that there was a mismatch between the demonstrable objective pathology and the plaintiff’s presentation but, in his view, it did not alter the fact that underneath it all there was a prolapse and that the mismatch was one of the reasons no one had operated. Mr Dohrmann suspected there was a significant psychological contribution to the plaintiff’s perceived symptoms but underneath it was all an organic injury.
107       Mr Dohrmann agreed that someone could have a prolapse at C5-6 without production of symptoms. He explained it was very common for a patient with a cervical disc prolapse to develop muscle spasm lower in the back.
108       In terms of the plaintiff’s work capacity, from a medical point of view Mr Dohrmann could possibly conceive there might be some part time, non physical occupation the plaintiff may be able to attempt but he thought she would be unreliable because of fluctuating symptoms and pain. He thought perhaps she could sit at a production line doing quality work but not if it involved having to repeatedly attend to items coming past.
109       When re examined, Mr Dohrmann explained Professor Cook’s findings were similar to his as to the right biceps jerk found by him on the second examination. Professor Cook had also commented there was clear wasting of the abductor pollicis brevis on the right which Mr Dohrmann explained was a muscle in the base of the thumb. Mr Dohrmann said it was an objective physical finding and he would need to look up whether or not that particular muscle related to C6 nerve root and noted it would not be a common physical finding for that particular diagnosis.

110       Whilst it was not raised with Mr Dohrmann, Table 10 of Chapter 3 of the ‘American Medical Association Guides to Permanent Impairment’ was later tendered. This Table deals with the origins and functions of the peripheral nerves of the upper extremity emanating from the brachial plexus. It sets out that the median nerve relating to C5-C6, C7-C8 and T1 related to the function of motor to abductor pollicis brevis, flexor pollicis brevis and opponens pollicis.
111       Mr Dohrmann thought it was conceivable the plaintiff might have some work capacity if the only issues were physical but then it would depend on the degree of motivation which obviously came from other factors. However, he predicted a return to the workforce would be likely to fail because of the plaintiff’s current or increasing symptoms. He considered that if she worked on a production line and had to turn her head and neck many times a day, it was likely that would stir up the original problem or hasten the worsening of disc disease. Standing in a static position would make the plaintiff ache. He concluded, by the time you took into account all those physical realities, “it did not leave a whole lot that you could imagine a person with limited language and educational skills could actually do”.
112       In further cross examination, Mr Dohrmann explained it was common for symptoms to persist even if the initiating factors were withdrawn. The fact that the plaintiff’s symptoms had worsened since she stopped work, in his view, did not necessarily mean that the disc prolapse had got bigger but probably more likely related to the proliferation of the non organic factors, particularly by the sound of Professor Teddy’s findings a few months after his. Mr Dohrmann agreed that the presence of non organic factors would be consistent with a complaint of widespread symptomology through the neck, both upper limbs, down into the buttocks and into the legs.
113       On 8 August 2007, the Medical Panel found the plaintiff was suffering from an aggravation of cervical spondylosis, with C5-6 disc prolapse and a right radiculopathy, an aggravation of lumbar spondylosis without radiculopathy and from an adjustment disorder with mixed anxiety and depression relevant to the claimed injuries.
114       The Medical Panel considered that the plaintiff was not capable of performing her pre injury duties and found that her current incapacity for work was still materially contributed to by the claimed injuries.
115       Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on behalf of Allianz Insurance on 4 July 2006.
116       Mr Shannon saw the 2006 cervical MRI scan, which he considered showed disc degeneration in the upper four levels with bulging at C5-6. He also saw the 2006 CT scan which he thought showed significant narrowing at C5-6.
117       On examination, he noted the plaintiff had severe restriction of all cervical spine movements. Although those improved somewhat in conversation, he thought they were by no means normal. He noted she was apparently unable to elevate her arm beyond ninety degrees but this produced trapezius rather than shoulder joint pain. Thoracolumbar movements were grossly restricted and Waddell’s signs were positive. Straight leg raising was to thirty degrees, improving to ninety degrees in a sitting position, and there was no neurological abnormality.
118       In Mr Shannon’s view, the plaintiff had clearly pre existing and widespread degenerative change in the cervical, thoracic and upper lumbar spine, as noted by Mr Barrett. Mr Shannon agreed with Mr Barrett, that those degenerative or “wear and tear changes” were aggravated and made symptomatic by repeated bending and lifting in the course of the plaintiff’s employment. He thought that the plaintiff would be theoretically capable of light part time work.
119       Mr Shannon noted, if anything, the plaintiff’s situation seemed to have deteriorated since Mr Barrett saw her in 2006 and there had probably been some development of a chronic pain syndrome.
120       Mr Shannon concluded the contributing factors to the plaintiff’s condition were underlying degenerative change with aggravation by the apparently strenuous and repetitive nature of her work. He did not think that aggravation had resolved. In his view, although the plaintiff may have a theoretical capacity for very light office work, she did not have a work capacity taking into account her skills and qualifications and she would require considerable retraining to contemplate a return to work.
121       He thought, noting the plaintiff’s limited language skills and her limited alternate skills and qualifications, there was very little chance of her being able to get back to work in the foreseeable future.
122       The plaintiff was examined by Professor Cook, neurologist, on 20 December 2008. She told Professor Cook of persisting neck pain with discomfort radiating from her right neck predominantly into her right arm where there was tingling and numbness involving the ulnar two digits. There was some mild weakness of the limb associated with that, and shoulder pain was noted, particularly with movement. There were similar symptoms involving the left arm but not involving sensory disturbance or weakness.
123       Professor Cook thought the plaintiff was clearly uncomfortable and quite depressed. He was impressed the plaintiff provided a clear and honest account of her circumstances.
124       On examination, he noted the plaintiff’s neck movements were restricted and there was marked tenderness and spasm of the paraspinal cervical muscles. Tone was normal in the upper limbs and there was a mild weakness of finger extension on the right and of abduction of the thumb. There was clear wasting of abductor pollicis brevis on the right. The right biceps and brachioradialis reflexes, while present, were clearly relatively depressed. There was diminished pinprick sensation in approximately a C8 distribution on the right. There was painful arc syndrome of the right shoulder with pain.
125       Professor Cook saw the 2006 CT and MRI scans which he concluded clearly showed a C5-6 prolapse with no impingement.
126       In Professor Cook’s opinion, the plaintiff had some distinct problems, chief of which was cervical radiculopathy. He noted a disc prolapse at C5-6 had been demonstrated and although not impinging on the nerve root currently, in his view, clearly it did at some time as her symptoms and signs were quite typical and explained the plaintiff’s neck discomfort as well as the arm pain and sensory change.
127       In his view, the plaintiff also had rotator cuff type injury on the right with painful arc of movement.
128       Professor Cook considered the plaintiff’s lumbar pain was most likely related to degenerative lumbar disc disease as well, though no definite disc prolapse was seen but, in his view, the symptoms were very suggestive of a radiculopathy. He thought there was suggestion, on examination, that the plaintiff might also have some degree of carpal tunnel syndrome on the right.
129       In Professor Cook’s view, the plaintiff’s condition was quite consistent with the stated cause of a small woman engaged in heavy work. He noted, although it might be argued there was a background of degenerative spinal disease, that would be at a very much earlier age than would be expected and, in his view, the plaintiff’s work had clearly been a contributing factor to the acceleration and exacerbation of this process.
130       Professor Cook considered the plaintiff was currently not fit to work and certainly not in her pre injury employment and it was difficult to envisage, given the combination of her disability, language problems and educational status, that she would be suitable for any alternate duties. He considered her disability was entirely related to work related injury.
131       Professor Cook noted he was quite affected by the plaintiff’s situation and struck that she was a genuine and honest person who was clearly significantly disabled by a number of problems that were undoubtedly work related. He hoped that the plaintiff received adequate support through pain management at the earliest opportunity and perhaps more direct psychiatric intervention.
132       Mr Charles Flanc, vascular and general surgeon, examined the plaintiff on 24 November 2008. The plaintiff complained to him of neck pain radiating towards the top of her right shoulder and up to the back of her head.
133       On examination, Mr Flanc noted the plaintiff was tender over the back of the neck. There was slight limit of forward flexion and severe restriction of extension and rotation. Lateral flexion was slightly limited. Elevation of her right upper arm was limited to about ninety degrees by severe pain. There was no wasting of the upper limb muscles. Mr Flanc was able to elicit all upper limb reflexes were equal and brisk, and sensation to touch was diminished over the right ring and little fingers. There was some restriction of lumbar movement but no deformity and no tenderness.
134       In Mr Flanc’s view, the plaintiff’s type of work was consistent with an aggravation of pre existing disc degeneration of the cervical spine, in the sense that it became symptomatic. He thought the plaintiff’s work with the defendant had been a significant contributing factor to her neck pain.
135       Mr Flanc, who seemed to have only the reports of the investigations, noted the 2006 CT scan reported narrowing of C5-6 disc space, the 2006 MRI scan reported broad based disc bulge at C5-6, and the 2008 MRI scan reported broad based disc bulge at C5-6.
136       In his view, these investigations revealed the presence of disc degeneration at C5-6 with some arthritic changes at C4-5, and it was his understanding the plaintiff’s work had a lot of repetitive lifting and bending.
137       He noted that the radiation of pain into the right upper limb raised a question of possible nerve root impingement but he thought there was no objective neurological abnormality and that the plaintiff’s reflexes were present and brisk.
138       On balance, Mr Flanc thought there was some degree of right radiculopathy related to cord compression but noted that was a specialised area and suggested an updated report from Mr Dohrmann.
139       As far as her physical capacity for work was concerned, Mr Flanc thought the plaintiff was not fit for any work involving repeated lifting or bending. In his view, she would definitely be unable to cope with her pre injury duties or any work involving keeping her head flexed for long periods or sitting for long periods.
140       Mr Flanc thought the plaintiff might be considered as capable for very light part time sedentary duties allowing her to get up and move around. He agreed with Mr Dohrmann’s views as to the 2008 MRI scan and also that the plaintiff had no realistic work capacity.
141       Professor Teddy, neurosurgeon, examined the plaintiff on 2 December 2008. He appears to have seen the 2006 MRI scan, noting it showed a mild disc bulge at C5-6 without compromise.
142       On examination, he found all passive active movements of the plaintiff’s neck were resisted. Active neck movements were globally reduced to less than ten per cent of normal in all directions. The plaintiff held her right arm loosely and generally placed it across her lap and there was no muscle wasting.
143       Professor Teddy noted the plaintiff was reluctant to use her right arm or hand at all and would not shrug her shoulders. He found there was a very slight sensory blunting subjectively in the medial two fingers of the right hand. He noted all back movements were reduced to less than ten per cent of normal and straight leg raising was to about forty five degrees on the right and was near full on the left. The plaintiff could not, or would not, sit upright with her legs flexed and knees extended. He noted overreaction to passive movement of the arms and that palpation of her joints made assessment difficult.
144       It was Professor Teddy’s overall impression that there was a situation of mechanical neck and back pain with little evidence of any convincing neurological deficit. He thought the plaintiff’s headaches were probably of a cervicogenic nature and there was some evidence of a right frozen shoulder, but he thought the plaintiff exhibited a distinct functional overlay in relation to her neck, back and right arm movements.
145       Having taken a history from the plaintiff of her repetitive work, he thought her current symptoms seemed to appear to be work related and to represent an aggravation related to degenerative changes within the cervical spine.
146       Professor Teddy noted the plaintiff had symptoms of headaches, arm pain, some dysaesthesia in the right upper limb and weakness there. He could, however, detect no convincing neurological deficit. Whilst the plaintiff complained of back pain, there was no evidence of neurological compromise affecting the lower limbs and in his view, the plaintiff exhibited marked pain related behaviour.
147       Professor Teddy thought, given it was three years since the onset of symptoms, there was little realistic chance of the plaintiff returning to her pre injury employment and very little likelihood she would be able to do alternate duties for the foreseeable future. He thought pain management treatment should certainly be pursued.
148       In his view, it was impossible to make any meaningful statement about the plaintiff’s level of pain as it was such an individual phenomenon and generally unquantifiable. He concluded it appeared there was some degree of inconsistency between the plaintiff’s objective, clinical and radiological findings and the degree of disability claimed.
149       Mr Clive Jones, orthopaedic surgeon, examined the plaintiff at the request of Allianz Australia on 25 March 2009. He had available to him the 2008 MRI scan which in his view, showed degenerative change at C5-6 spaces which was of moderate degree.
150       On examination, the plaintiff indicated all the left side of her neck as the major source of pain and said pain was also felt in the right upper limb. Mr Jones noted the plaintiff had obvious difficulty in extending her neck and rotating her head to the right side, and elevating her right arm caused her neck pain.
151       Mr Jones found there was a generalised collapsing weakness but the right biceps reflex was definitely reduced when compared to the opposite left side. There was generalised mild reduction of sensation in the right hand and in the lower right forearm, which, in his view, clearly did not have an anatomical basis.
152       In Mr Jones’ opinion, the plaintiff had chronic neck pain with right sided brachialgia present since March 2006. The symptoms were associated with headache and with pain involving the lower thoracic and lumbar spine as well. He noted investigations had shown degenerative change at C5-6 disc which did not appear to be causing significant nerve root compression. He noted the changes were minimal and age related in the lumbar area.
153       Mr Jones considered degenerative change had been demonstrated in the cervical spine to account for the plaintiff’s persistent neck pain and right sided brachialgia. He thought that initially employment was a contributing factor by way of aggravation, but, given the injury was suffered over three years ago, in his view, it was unlikely there was any current work relationship in the plaintiff’s presentation and he believed the work related aggravation had now disappeared and the symptoms were those of disc degeneration and protrusion alone.
154       Mr Jones considered the plaintiff was clearly incapable of returning to factory work, supposing her condition still existed. If she were to work, he thought some sort of clerical or light assembly work would be necessary, possibly requiring retraining. He considered there would need to be lifting limits to five kilograms and non repetitive work with the requirement of rest breaks when necessary. In his view, the plaintiff could work as a container filler, packing or supervising a school crossing.
155       Mr Jones did not believe the plaintiff had an ongoing and long term incapacity.
156       Dr Nigel Strauss, psychiatrist, examined the plaintiff on 27 May 2008 at the request of Allianz Insurance.
157       In his view, the plaintiff was suffering from ongoing pain which appeared to be organically based. He thought her emotional response was understandable considering she had always been a motivated, healthy person and she had found chronic pain difficult to manage.
158       Dr Strauss was not prepared to state the plaintiff had a psychologically based pain disorder but he considered she had developed anxiety and depression secondary to her physical problems. In his view, the plaintiff therefore had a work related psychiatric condition which he labelled as an adjustment disorder with mixed anxiety and depressed mood secondary to a physical condition. He thought there was no evidence of any over exaggeration by the plaintiff at interview.
159       In Dr Strauss’ view, the plaintiff had no incapacity from a psychiatric point of view and she was fit for normal work. He noted that his opinion did not take into account any physical incapacity. He thought the plaintiff did not require any psychiatric treatment or antidepressants and treatment needed to be physically based.

Investigations
160       The reports of various investigations carried out set out as follows.
161       An ultrasound of the right shoulder taken on 23 March 2006 was considered to be within normal limits.
162       A CT scan of the cervical spine taken on 24 March 2006 showed narrowing of the disc space between C5 and C6. There was widening of the right lateral exit nerve root foramen at the level of C6-7 with the possibility of a soft tissue opacity being present in the region associated with some bony erosion in relation to the posterolateral aspect of the body of C6. An MRI scan was recommended.
163       An MRI scan of the cervical spine was undertaken on 17 May 2006. At C4-5 there was a small central disc extrusion. This had no significant effect upon the central canal or cord. Exit foramen were adequate bilaterally. At C5-6 there was a slightly asymmetric broad based disc bulge with a probable central extruded fragment. This was associated with mild cord flattening but without significant cord compression. Cord signal and central canal volume remained normal. There were degenerative disc changes with early uncovertebral degenerative changes at C5-6. There was no appreciable nerve root compression.
164       A CT scan of the lumbar spine taken on 27 June 2006 showed very minimal disc disease, greatest at L1-2 level and L5-S1 level. There was neither foraminal nor central canal stenosis.
165       An MRI scan of the lumbar spine taken on 10 October 2006 showed no evidence of neural compromise. In particular, no abnormality was seen along the course of the right L5 nerve root.
166       An MRI scan of the lumbar spine taken on 4 March 2008 indicated mild lower thoracic and upper lumbar disc degenerative changes. There were no mid and lower lumbar disc degenerative changes and there was no convincing evidence of a compression or other cause for right sided sciatica in the L5 distribution.
167       An MRI scan of the cervical spine taken on 30 October 2008 showed two level spondylosis (C4-5 and C 5-6) with mild left sided neural foraminal stenosis at C4-5 and minor right sided cord indentation at C5-6. At T1-2 there was non compressive shallow right paracentral disc protrusion. At T2-3 there was shallow left paracentral disc protrusion minimally indenting the left side of the ventral cord.

Vocational Evidence
168       Ms Leonie Schneider of Australian Vocational Link Pty Ltd prepared a vocational assessment of the plaintiff on 5 March and 1 April 2009.
169       In Ms Schneider’s view, based on the medical evidence, the plaintiff’s education, her lack of English plus her lack of suitability for vocational training, the plaintiff had no current work capacity for casual, part time, full time or self employment. Ms Schneider suspected that the plaintiff would most likely remain very considerably disadvantaged and unemployable for the indefinite future.
170       Leaving aside the psychiatric and psychological components of her injury, Ms Schneider maintained the plaintiff currently presented with no capacity for her pre injury employment. She did not believe the plaintiff had a theoretical capacity to work nor even potential to perform suitable alternative forms of sedentary employment, noting that the plaintiff’s pain condition (neck and back) was unpredictable and unrelenting.

The Defendant’s Medical Evidence
171       The defendant relied upon a number of reports from the plaintiff’s treating orthopaedic surgeon, Mr Barrett, who first saw the plaintiff on referral from Dr Pjesivac in October 2006.
172       The plaintiff told Mr Barrett that in February/March of 2006 she first complained of pain in her neck, radiating into her right arm, and also down from her neck to her lumbar region. Since then she had experienced increasing lower back pain radiating into her right buttock, her posterior thigh down the right leg to the right sole associated with numbness of the right hallux and adjacent toe.
173       Mr Barrett noted that on examination, the plaintiff moved freely. Her cervical contours were normal and her cervical movements were moderately limited, particularly forward flexion, and all produced some mild posterior cervical discomfort at various levels.
174       Mr Barrett could not detect any neurological defects in the plaintiff’s upper limbs. Power reflexes and sensation were all normal and there appeared to be no neurological deficiencies in her cervical nerve roots. He noted her lumbar movements were moderately limited and produced some lower back pain and mild tenderness. There was slight restriction of straight leg raising.
175       Mr Barrett saw the 2006 CT scan which in his view, showed normal general alignment with some moderate C5-6 disc narrowing and a mild central disc bulge at that level. He noted the 2006 MRI scan showed some degenerative changes at C4-5 and C5-6 disc level with some modest posterior disc bulging, maximal at the C5-6 level, well clear of the plaintiff’s spinal cord.
176       He noted a CT scan of the lumbar spine showed normal general alignment, normal disc spaces and no evidence of any disc bulges.
177       Mr Barrett stated it was clear the plaintiff was not coping with her work and he suggested she went off work at least until the further MRI scan of her lumbar spine had been done. He thought at that stage it looked as though the plaintiff would not be able to go back to heavier types of work.
178       Mr Barrett reported to Dr Pjesivac following receipt of the lumbar MRI scan. Mr Barrett noted the films showed the lower four lumbar discs in the plaintiff’s spine were all perfectly normal in all respects. In his view, there certainly did not appear to be any nerve root irritation. He noted the plaintiff had some reasonably longstanding degenerative changes present in the T11-T12, T12- L1 and L1-L2 discs with some modest posterior bulging at the upper and lower of those three discs without any evidence of nerve root or spinal cord irritation.
179       Whilst it was clear the plaintiff had some changes at the thoracolumbar junction, Mr Barrett did not consider they would be serious enough to put her off work on a long term basis but he thought certainly she would be unwise to continue with her current heavy physical work. He had no objection to the plaintiff returning to lighter work in the future but thought it would be foolish to go back to repetitive bending and lifting that could cause some more deterioration in the future.
180       On 25 October 2006, Mr Barrett certified the plaintiff fit to do work in these terms. He advised Dr Pjesivac that he had made no specific arrangements to check the plaintiff again.
181       In a report to the plaintiff’s former solicitors, Mr Barrett gave details of his examination of the plaintiff’s cervical and lumbar spine on 4 October 2006.
182       Mr Barrett confirmed he had studied films, including the 2006 CT and MRI scans of the cervical spine and the 2006 CT and MRI scans of the lumbar spine.
183       Mr Barrett confirmed he considered that lighter forms of work should be within the plaintiff’s capacity as long as she avoided prolonged stooping and heavy lifting activities.
184       In his opinion, at that stage the plaintiff had degenerative or wear and tear changes present in her lower cervical spine and also in her thoracolumbar spinal junction region for some time, aggravated and made symptomatic by repeated bending and lifting activities in the course of her employment.

185 Mr Barrett noted that following clinical, orthopaedic and radiological investigation of the plaintiff’s spinal systems, he thought she would be unwise to return to her former heavy work but he considered she would be able to do lighter work.
186       In his view, there was no specific medical or surgical treatment likely to improve the plaintiff’s lower cervical and thoracolumbar junction disc diseases.
187       Mr Barrett concluded the nature of the plaintiff’s medical condition was, firstly, some degenerative changes in the lower cervical discs and also in the lower thoracic and upper lumbar discs clearly present prior to the onset of symptoms. They were not caused by the plaintiff’s employment but the onset in March 2006 was clearly related to repetitive bending and lifting situations.
188       He considered the plaintiff was partially incapacitated for employment, in the sense that continuing in full time and repetitive lifting activities would have markedly increased her symptoms; however he thought she could return to lighter work.
189       Dr Pjesivac requested Mr Barrett see the plaintiff again in February 2008.
190       The plaintiff then told Mr Barrett she had been off work, however he noted she complained of increasing pain from the lower lumbar region into her right buttock to the right thigh, down the calf to the ankle, into the heel and sole of the foot as far as her toe, with intermittent pins and needles and weakness of the right lower limb. The plaintiff also said she also had some neck stiffness and some right hand intermittent numbness.
191       On examination, Mr Barrett noted the plaintiff moved rather slowly but otherwise freely. Cervical movements were very limited, particularly forward and lateral flexions, and all appeared to produce some posterior cervical spine pain at those limits. There was some moderate posterior cervical tenderness of a generalised nature, not localised to any anatomical structure. Neurological examination of the upper limbs revealed normal power and reflexes in a symmetrical distribution, however sensory testing appeared to show some depressed sensation of the right hand and right distal forearm in a glove rather than dermatome distribution.
192       Mr Barrett noted lumbar movements were very limited and appeared to cause low back pain. There was some moderate low lumbar tenderness and straight leg raising on the left was to ninety degrees and on the right to eighty degrees. He noted all lower limb reflexes were brisk and symmetrical, while sensory testing appeared to show some mild depression of sensation involving the right L5 dermatome region down to the lateral right calf to the right foot dorsum and into the right hallux.
193       Mr Barrett noted that while he was rather surprised the plaintiff was complaining of increasing symptoms following ceasing work, he felt it necessary to organise a further lumbar MRI scan to compare it to the 2006 MRI scan which in his opinion showed only some degenerative change at the thoracolumbar junction and from L2 downwards the discs appeared to be normal.
194       Following receipt of the 2008 MRI scan of the lumbar spine, Mr Barrett commented that the films really showed no changes since the earlier MRI scan. The plaintiff’s four lower lumbar discs all looked quite normal and there was no radiological evidence of nerve root irritation.
195       Mr Barrett saw the plaintiff again in March 2008 to explain to her the results of the recent lumbar MRI scan. He told her that he could not find any radiological evidence of any troubles in her lumbar spine excepting those already seen at the thoracolumbar junction and there was certainly nothing he could offer her in the way of treatment to help her symptoms.

196 The defendant also relied upon reports from the plaintiff’s treating physiotherapist Dr Cvetkovic who has treated her twice weekly since December 2007 for her neck and back. He completed Physiotherapy management plans on 1 December 2007 and 14 December 2007.
197       Dr Cvetkovic thought the plaintiff was suffering from chronic pain syndrome which was compounded by post traumatic adjustment disorder with mood swings. He proposed twenty four further treatments until I March 2008 noting that the discharge date depended very much on the plaintiff’s response to treatment.
198       In June 2008 he reported that he was very disappointed and frustrated by the plaintiff’s very slow rate of progress and noted it was fast becoming obvious she was well entrenched in the so called sick role and without doubt overprotecting herself.
199       He reported that everything that had been tried in forms of treatment appeared to have each time aggravated the plaintiff’s condition and he also noted that he was not entirely sure or certain that she was compliant with his instructions.
200       In view of her current situation which showed the plaintiff was sadly entrenched in a chronic pain syndrome, Dr Cvetkovic felt it quite reasonable to begin winding down her treatment program and to further attempt to increase her capacity for daily activities and see if he could actually convince her to believe that she was capable of helping herself and “having a much greater functional capacity than she would like us to believe.” He proposed a treatment program with physiotherapy sessions on a reduced basis.

Medico Legal Evidence
201       Mr Robert Marshall, general surgeon, examined the plaintiff on 3 October 2006. The plaintiff told him there was not an actual incident and she had merely developed pain in her shoulders, neck and low back at work during March 2006. She told him that at first she developed cramping sensations in her shoulders and neck and they spread to involve her upper thoracic spine and spread further laterally to both shoulder blades and arms, rather more on the right.
202       The plaintiff told Mr Marshall that her general practitioner, Dr Bogetic, had said her symptoms were “all in her head,” and therefore she changed doctors and saw Dr Pjesivac. The plaintiff told Mr Marshall that at that time she began to get lumbar spine pain, as well neck pain, and a CT scan of her lumbar spine was organised.
203       The plaintiff complained to Mr Marshall of pain in both the cervical and lumbar spines, as well as more generalised pain spreading out into her shoulders and arms. She also reported constant headaches.
204       On examination, Mr Marshall could find no objective abnormality in the plaintiff’s spine or arms. However, he noted she complained of persistent pain on all movements of her neck, shoulders, wrists, elbows and back.
205       Mr Marshall noted the 2006 CT scan showed some minor narrowing of the C5-6 disc space and that the 2006 MRI scan confirmed the minor degenerative changes at C5-6 but that there was no other abnormality.
206       Mr Marshall did not believe the plaintiff was suffering from an injury, work related or otherwise. He considered she was suffering from age related degenerative change in her spine but she had very diffuse symptoms suggestive of a constitutional connective tissue disorder. In his opinion, there was a significant psychosomatic element in the plaintiff’s presentation.
207       Mr Marshall did not believe the plaintiff’s employment had been a significant contributing factor to any injury. He noted she believed she was substantially incapacitated but there was no objective evidence of this. He could see no evidence of any known or foreseen impediment to recovery and return to work apart from the plaintiff’s psychological problem and the possibility she may fall into an injured role. He considered the plaintiff had a current work capacity and her hours could be gradually increased. He thought the only rational management strategy was a regular, graduated exercise program.
208       Dr Barton, consultant occupational physician, examined the plaintiff on 18 January 2007. He later conducted a worksite assessment on 23 January 2007, at which time the plaintiff was working four hours a day, five days a week on light duties.
209       On examination, Dr Barton noted the plaintiff generally moved in a free and easy manner. Specific examination of her neck showed some mild tenderness along the cervical spine. There was some limitation of neck movements with complaints of pain and grimacing. There was some limitation of lumbar movement with no particular areas of tenderness. Straight leg raising was limited to thirty degrees on the right and sixty degrees on the left, but he noted the plaintiff was later able to sit upright on the examination couch. Reflexes were normal in the upper and lower limbs. Sensation to light touch was also reduced in the right arm and muscle power and sensation were normal in the legs.
210       Dr Barton noted, on attending the defendant’s premises, that the plaintiff was undertaking a variety of quality control checks and testing various tablets and capsules. She did some light packing and labouring work. Having reviewed her normal duties, he believed the plaintiff should be able to increase the hours of work to six hours a day undertaking light duties for two weeks and then increasing to full time hours.
211       Dr Barton noted, on clinical examination, there were a number of features identified pointing towards a significant functional component. In particular- the long history of dramatically described symptoms which was typical of abnormal illness behaviour, the lack of any clear objective evidence of any underlying physical problem that would account for the plaintiff’s widespread symptoms and claimed level of incapacity, the discrepancy between the limited straight leg raising and postures noted at other times, the non anatomical sensory changes in the right arm and the generalised weakness in the right arm which did not fit with any muscular or neurological problems.
212       Dr Barton considered it possible the plaintiff may have sustained a mild soft tissue injury in the neck and back as a result of increased workload, however he did not believe her employment would be considered a contributing factor to the plaintiff’s current presentation. He thought that presentation seemed more to do with a functional problem based on the plaintiff’s illness belief.
213       From a physical position, Dr Barton believed the plaintiff’s condition would be expected to have resolved and he thought it difficult to see, while working a bit harder over a period of time prior to March 2006, that would produce such widespread symptoms some eight months later. He thought the plaintiff needed encouragement to return to work and increase her hours and duties.
214       Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 4 May 2009. At that time the plaintiff complained of ongoing low back pain, buttock pain and thigh pain radiating down both lower limbs into her toes. She also complained of neck and right shoulder girdle pain, and she noted headaches.
215       On examination, there was tenderness along the dorsum of the cervical spine and over the occiput and vortex of the skull. Flexion was to thirty degrees and extension to twenty. Lateral flexion to the left and right was to fifteen degrees and rotation to both sides was sixty degrees. There was tenderness of the low lumbar spine with restriction of movement and straight leg raising to twenty degrees on both sides. Mr Dooley noted that power, tone, reflexes and sensation were intact in the lower limbs.
216       Mr Dooley found there was evidence of collapsing weakness of the right upper limb and he noted reflexes were difficult to assess in both upper limbs and that sensation was intact.
217       Mr Dooley mentioned that MRI scanning of the cervical and lumbar spines had been carried out. He thought there was evidence of degenerative change affecting the C4-5 and C5-6 levels. In his view, there was no evidence of nerve root entrapment. In the lumbar spine he found evidence of mild degenerative change without any evidence of disc prolapse or of nerve root compression.

218 In Mr Dooley’s view, the plaintiff suffered from naturally occurring degenerative change affecting her spine. From a radiological view, he rated that at mild to moderate. He noted clearly with regular lifting, manoeuvring et cetera, people can notice musculoligamentous pain in various parts of their body. In relation to the neck and back, he thought that pain may be musculoligamentous or may relate to some aggravation of underlying degenerative disc disease.
219       Mr Dooley noted, from a scientific point of view, one would expect this pain to improve to a varying degree once the so called aggravating activity had ceased, and he would not expect pain to increase when activity was no longer present.
220       It was Mr Dooley’s view that the plaintiff had developed a chronic pain syndrome in which the constancy and intensity of her ongoing pain were out of proportion to the injury sustained. He thought the plaintiff’s restriction of spinal movement was greater than one would expect to see both for a soft tissue injury and for the degree of underlying degenerative disc disease.
221       In Mr Dooley’s view, the collapsing weakness of the right upper limb and the resistance to passive shoulder motion were signs of abnormal illness behaviour and not related to organic pathology. Clinically, in his view, there were no objective signs of neurological deficit affecting the limbs and radiologically there was no evidence of nerve root entrapment.
222       Mr Dooley thought the appropriate treatment was for the plaintiff to continue regular exercise. He did not believe ongoing physiotherapy was necessary as that tended to reinforce abnormal illness behaviour rather than help the plaintiff’s pain.
223       Mr Dooley noted that in a chronic pain syndrome there is a significant psychological reaction to injury and or pain. In his view, in the vast majority of cases patients are not deliberately exaggerating their symptoms, noting that despondency, low self esteem and a fairly negative view on everything take over fairly quickly and the behavioural symptoms fairly rapidly become entrenched. In such circumstances, he thought it is not a situation where the plaintiff can turn off from one behaviour and adopt another, and that she would require supportive treatment from a single medical practitioner. That treatment did not need to confront the patient with the real diagnosis of their situation. Mr Dooley noted it was pointless to continue treating the plaintiff as though there were major orthopaedic organic problems.
224       Mr Dooley considered the MRI scanning showed mild degenerative disc disease typical for a patient aged around forty. In his view, there was no radiological evidence of nerve root impingement and he did not believe the plaintiff’s limb pain was consistent with nerve root compression.

225       Mr Dooley considered that the plaintiff’s employment had been a contributing factor to the initial onset of muscular pain or aggravation of underlying degenerative disc disease. However he thought the plaintiff’s ongoing symptoms related to a chronic pain syndrome and currently it was her psychological reaction to injury and or pain that dominated her presentation.
226       Given the plaintiff’s overall presentation, Mr Dooley thought she would have difficulty in all forms of work. From an orthopaedic viewpoint alone, he thought her capable of carrying out light physical work and clerical duties, and he believed in time, as her condition improved, she would be able to return to this sort of work.
227       A WorkCover Certificate completed by Dr Bogetic following an examination on 2 May 2006 was tendered. On that date he certified the plaintiff was fit for modified duties with lifting and repetitive use restrictions for one month in relation to neck and right shoulder pain. Following examination on 22 May 2006, he gave a similar certificate.
228       Dr Pjesivac examined the plaintiff on 22 June 2006. He certified her fit for modified duties with a one to two kilogram lifting restriction and no repetitive bending of the right arm for one month as a result of C3-4, C5-6 disc prolapse; neck pain; right arm pain; low back pain; right leg pain and insomnia. He provided a similar certificate following an examination on 26 June 2006. However, from July 2006, whilst imposing the same restrictions and certification for modified duties, he certified the plaintiff in relation to the L1-L2, L5-S1 discogenic injury, neck pain, low back pain and right sciatica.

Findings
229       I find the plaintiff suffered a compensable injury during the period of employment.
230       The injury suffered was an aggravation of degenerative disease in the cervical spine.
231       Considerable time was spent in this case addressing the issue whether the plaintiff had a prolapse at C5-6. When one looks at the reports of various investigations of the cervical spine, there is no mention of there being a prolapse at C5-6.
232       Mr Dohrmann, Professor Cook and the Medical Panel found there was a prolapse shown on the 2006 MRI scan. This view was adopted by the plaintiff’s general practitioner but not shared by the plaintiff’s treaters Mr Barrett and Mr Drnda or medico legal examiners Professors Teddy and Cook, Mr Flanc, Mr Dooley, Mr Shannon and Mr Jones.
233       The issue in dispute is whether there is any continuing work related organic impairment that meets the statutory test of seriousness.
234       Put simply, counsel for the defendant whilst accepting there had been some aggravation of the plaintiff’s degenerative cervical condition as a result of her work, submitted that such aggravation had ceased or had been consumed by diffuse widespread pain in the form of a chronic pain syndrome.
235       It was conceded by counsel for the defendant that if I could be satisfied there was sufficient evidence to establish a particular physical organic complaint, then I might be in a position to be satisfied the impairment is serious. However, it was submitted that the evidence was not to this effect.
236       Counsel for the plaintiff submitted there is a serious injury on organic grounds with evidence of a physical condition namely the prolapse at C5-6.
237 Section 134AB(37) of the Act defines “serious injury” as a permanent serious impairment or loss of body function.
238       To satisfy the test under the Act the impairment in relation to each of pain and suffering and loss of earning capacity must have consequences that when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
239       The impairment must be permanent, in that it is likely to continue into the foreseeable future.
240       The statutory test requires a judgment based on an evaluation of all the evidence.
241       The term “serious” requires the impairment and its consequences to this particular plaintiff to be reviewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA at para 29.
242 Further, Section 134AB(38)(h) of the Act provides that
“the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise.”

243       There is no application made pursuant to sub paragraph (c) in this case.
244       Therefore psychological or psychiatric consequences of the plaintiff’s neck injury must be excluded when considering her application pursuant to sub paragraph (a).
245       As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, para 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, . . . requires that any psychological or psychiatric overlay be stripped aside. …”

246       Thus the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
247       Both counsel made submissions in relation to the current state of the law in light of the decision of the High Court granting leave in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167. However, since the present matter was heard, the leave application was withdrawn by the appellant.
248       In the present matter, counsel for the defendant relied upon the passage in Barwon Spinners referred to above and also upon the decision of Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, submitting nothing said by the High Court in Jayatilake detracted from those decisions as to the law in relation to this particular aspect of the consideration of s.134AB. It was submitted that the relevant consequences were those that derived from physical causes to the exclusion of any psychiatric cause.
249       Counsel for the defendant relied upon Maxwell P’s comments in Stamboulakis at 652-3, where his Honour said that :
“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 a physical basis…. 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. …“

250       Reliance was also placed on Maxwell P’s judgment in Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at paragraph 4.
251       Counsel for the plaintiff distinguished the facts of the present case from those in Stamboulakis where it was submitted there was no evidence of an underlying physical condition. It was submitted that this case was “not one where there was some functional overlay that had overwhelmed a minor niggle in the plaintiff’s neck”. There was evidence of a real physical condition namely a cervical prolapse, a diagnosis supported by Mr Dohrmann, the Medical Panel and Professor Cook.
252       It was therefore submitted that this case fell in line with Zivolic, particularly paragraph 19, per Redlich JA which, it was submitted, had not been disapproved in Jayatilake, and was still binding unless the High Court said otherwise.
253       Having commented that the use of the word “disentanglement” by Maxwell P and Neave JA in Stamboulakis was language capable of misunderstanding and not the language of the Act, Ashley JA, in Jayatilake, went on to say, at paragraph 19:
“If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the ‘quantum’ of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.“

254 Reliance was placed on paragraph 18 in Jayatilake, where Ashley JA said:
“Section 134AB(38)(h) says nothing to suggest that the general approach is to be abandoned in favour of trial by medical opinion. Simply, a plaintiff is required to establish, in order to satisfy the presently pertinent aspect of the definition of ‘serious injury’, that he or she suffers an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity. Like any other question for determination, it is a question to be resolved by consideration of all the evidence before the court. Stamboulakis should not be understood to mean that, upon the serious injury question, the principle that an issue is to be determined by reference to all admissible and relevant evidence is inapplicable.”

255 Counsel for the plaintiff also relied upon the judgment of Redlich JA in the case of Zivolic (supra), where His Honour expressed a not dissimilar view to Ashley JA.
256 Redlich JA, at paragraph 19, considered that where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”

257 Whilst it might be said the Court of Appeal took a different approach in Jayatilake from that taken in Stamboulakis, and the High Court did not consider the issue on appeal, I accept, as Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at para 50:
“… if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”

Overview
258       The plaintiff’s early treating doctors do not assist her case in relation to this critical issue.
259       There was no report from the plaintiff’s original female general practitioner, Dr Bogetic, who spoke the plaintiff’s language. Dr Bogetic saw the plaintiff five or six times in relation to her work injury. The plaintiff agreed that Dr Bogetic told her when she sought a referral for her back condition that her problems were stress related.
260       The plaintiff’s current general practitioner, Dr Pjesivac, whilst supportive of the work related basis of the plaintiff’s condition, concluded that her present symptoms were cervical disc prolapse, depression and low back, and that her physical injuries are complicated by depression. He did specifically express a view as to the role played by the plaintiff’s neck condition in her current presentation.
261       Whilst I accept the plaintiff was referred to Mr Barrett for her back condition, he also examined her neck, and the investigations in relation thereto, both in 2006 and 2008. Mr Barrett did not find a cervical prolapse nor evidence of any neurological compromise. He attached greater significance to the plaintiff’s lumbar condition which he did not think itself was of any real severity. He found degenerative disease at multiple levels of the cervical, thoracic and lumbar spine, aggravated and made symptomatic by her work, and that the discs were otherwise normal with no evidence of nerve root compression.
262       Despite these findings, Mr Barrett concluded the plaintiff was still able to return to lighter, part time forms of work, as long as prolonged stooping/heavy lifting had been eliminated.
263       Significantly, he commented, in February 2008, that he was rather surprised that “this young woman was complaining of increasing symptoms” when she had ceased work some time ago.
264       Mr Drnda, the plaintiff’s original treating neurosurgeon, is also not particularly supportive of the plaintiff’s claim. In April 2006, he got the history from the plaintiff that her major issue was pain between her left shoulder and neck that she suffered about two weeks ago and to a much lesser extent on the right. The plaintiff’s evidence has been, however, that her predominant complaint has been on her right side.
265       Mr Drnda could not find much neurologically. There was normal range of neck and shoulder movement. He concluded the May 2006 MRI scan organised by him showed nothing dramatic and that there was muscular strain on the basis of early cervical spondylosis. Further, he considered the plaintiff’s headaches had a stress quality to them.
266       Last having seen her in June 2006, Mr Drnda suggested that the plaintiff only required stress management and regular exercise and needed physiotherapy. Further, he cautioned her against engaging in repetitive bending and considered she could work within this restriction.
267       Whilst he is not a medical practitioner, Dr Cvetkovic, has regularly seen the plaintiff for physiotherapy treatment twice weekly for the last eighteen months. He considered she has a chronic pain syndrome compounded by post- traumatic adjustment disorder with mood swings which, in his view, will perhaps be even more difficult to overcome than the physical consequences.
268       Although he diagnosed a cervical prolapse based on the 2006 MRI scan, Mr Dohrmann’s examination findings have been variable. He found non organic collapsing weakness and the objective evidence of a prolapse, namely slight bicep diminution on the second examination in 2008 but not on examination in 2006. On the third consultation in November 2008, where he did not examine the plaintiff, he noted that the October 2008 MRI scan confirmed persisting right sided broad based disc bulging at C5-6, later describing his finding as a prolapse.
269       As he considered there was a physical underlying demonstrable basis for the plaintiff’s referred pain, he thought to “brush off” a diagnosis of prolapse as a chronic pain syndrome was “a little harsh and the plaintiff still deserved the benefit of the proper underlying diagnosis, namely cervical disc prolapse with referred pain”. However, he thought it might be reasonable to add to his diagnosis “complicated by a superadded chronic pain syndrome”.
270       In Mr Dohrmann’s view, whilst underneath there was a prolapse, the mismatch between demonstrable objective pathology and the plaintiff’s presentation was one of the reasons he did not operate.
271       Further, Mr Dohrmann agreed that it was certainly true that someone could have a prolapse without production of symptoms. He “suspected there was a significant psychological contribution to the plaintiff’s perceived symptoms,” but he “thought underneath it all was an organic injury”.
272       When further cross examined, Mr Dohrmann concluded his evidence commenting that “the protracted nature of the plaintiff’s condition was probably more likely related to proliferation of non organic factors particularly by the sounds of Professor Teddy’s findings”.
273       Whilst the Medical Panel, in August 2007, found there was a C5-6 prolapse and a right radiculopathy, it also found there was an aggravation of lumbar spondylosis without radiculopathy and an adjustment disorder with mixed anxiety and depression relevant to the claimed injuries. The Panel considered the plaintiff’s incapacity for work was still materially contributed to by these injuries.
274       The high point of the plaintiff’s case is the opinion of Professor Cook who, in late 2008, found objective evidence of prolapse on examination. He considered this to be the plaintiff’s chief problem although at that time he did not believe the prolapse was impinging on the nerve root currently. In his view, also contributing to her condition was a right rotator cuff injury and lumbar disc degenerative disease.
275       Other medico legal opinion is not as supportive as Professor Cook as to any ongoing organic basis for the plaintiff’s presentation.
276       Whilst Mr Jones, in March 2009, found the generalised collapsing weakness and mild reduction of sensation in the right hand, he thought this later finding clearly did not have an anatomical basis. He found the right biceps reflex was definitely reduced but thought there was degenerative change at C5-6 and did not find a prolapse. He thought initially employment was a significant contributing factor by way of aggravation but at the present time, some years later, he thought it unlikely there was any current work relationship in the plaintiff’s presentation. In his view, that aggravation had disappeared and the symptoms are now of disc degeneration and protrusion alone. He thought it appeared the plaintiff had a functional overlay and that some of her symptoms at least were psychosomatic not physical.
277       Mr Marshall, who was given a history of persistent pain on all movements of the plaintiff’s neck, shoulders, wrists, elbows and back in 2006, thought there was a significant psychosomatic element in her presentation. He found no objective or neurological abnormality and he considered investigations revealed minor degenerative change.
278       The plaintiff also complained to Dr Barton of widespread complaints in 2007. He found no neurological disorder. He considered the plaintiff’s employment was no longer contributing to her presentation which, in his view, seemed more to do with a functional problem based on her illness belief. He also thought she had the capacity to do the work set out in the job offer at that time.
279       Mr Dooley considered that the plaintiff’s radiology was mild to moderate with natural degenerative changes in the spine expected of someone of her age. In his view, there were no objective signs of neurological deficit, finding that the collapsing weakness of the right upper limb and resistance to passive shoulder motion were signs of abnormal illness behaviour. He diagnosed a chronic pain syndrome which in his view dominated the plaintiff’s presentation.
280       Mr Flanc, in November 2008, found no neurological signs. He thought there was disc degeneration at C5-6. He thought there was no objective neurological abnormality and that the plaintiff’s reflexes were present and brisk.
281       Most recently, in February 2009, Professor Teddy, professor of neurology, thought there was little evidence of any convincing neurological deficit and thought the plaintiff exhibited a distinct functional overlay in relation to her neck, back and right arm movements after she had demonstrated less than ten per cent spinal movement. He considered there appeared there was an inconsistency between her objective clinical and radiological findings and the degree of disability claimed.
282       The plaintiff has seen a psychologist, Ms Stefanovic, since late 2007. No report has been provided by her. Dr Strauss, psychiatrist, who examined the plaintiff for medico legal purposes, thought that the plaintiff’s problems were physically based. Whilst he was not prepared to state the plaintiff had a psychologically based pain disorder, Dr Strauss considered the plaintiff had developed anxiety and depression secondary to her physical problems.

283       Although there was no supporting lay evidence relied upon by the plaintiff as to her claimed level of disability, the plaintiff’s evidence as to her inability to work and her problems with daily activities was largely unchallenged.
284       However, I accept, taking into account the preponderance of medical evidence, these restrictions, which on their face would meet the test of “serious”, do not have an ongoing organic basis and are based predominantly non organic in nature.
285       I find that the plaintiff, a relatively young woman, has accepted an invalid role following her work injury. Her evidence of the difficulties she has attending to personal hygiene tasks, and that even lifting a cup of coffee can cause discomfort, indicate the presence of abnormal illness and are not a consequence of any organically based condition.
286       I find there is an important psychological component to the plaintiff’s current presentation, ignoring which, I am not satisfied that any impairment to her neck is serious.
287       I accept that the plaintiff’s presentation is immersed in a chronic pain syndrome supported by medical opinion and also evidenced by the widespread, diffuse nature of her complaints and their continuation long after she has long ceased work or any other aggravating activity.
288       I am not satisfied that the plaintiff has suffered a “serious injury” on evidence other than the psychological and psychiatric consequences of her neck injury. This is not a case where later non organic factors intrude and there is otherwise a sound organically based case.
289       As the plaintiff has not satisfied the narrative requirements, I am not required to consider her claim in relation to loss of earning capacity.
290       Accordingly, the plaintiff’s claim in relation to pain and suffering and loss of earning capacity is dismissed.

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[2009] VCC 1468

24 August 2009