Ward v Catering Industries
[2017] VCC 821
•22 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03269
| JOANNE WARD | Plaintiff |
| v | |
| CATERING INDUSTRIES | Defendant |
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JUDGE: | MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 &15 March 2017 | |
DATE OF JUDGMENT: | 22 June 2017 | |
CASE MAY BE CITED AS: | Ward v Catering Industries | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 821 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Pain and suffering and loss of earning capacity damages – injury to the spine – whether injury included cervical spine – reliability of the plaintiff’s evidence – whether consequences of unrelated condition disentangled as required.
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622;
Judgment: Plaintiff’s application for leave dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Richards QC and Ms M. Pilipasidis | Maurice Blackburn Lawyers |
| For the Defendant | Mr J. Ruskin QC and Mr M. Hooper | Lander & Rogers Lawyers |
HER HONOUR:
Introduction
1 The plaintiff, Joanne Ward, sought leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to institute common law proceedings for recovery of pain and suffering and loss of earning capacity damages.
2 The plaintiff was employed by the defendant, Catering Industries (NSW) Pty Ltd, which at the relevant time operated a nursing home. She deposed that from November 2007 she had been employed preparing and serving food part-time for 30 hours per week. The plaintiff alleged injury to her spine, in particular injury to the cervical and lumbar spine in the course of her employment on 26 February 2008 after slipping and falling heavily on a wet floor surface in the employer’s kitchen (the accident).
3 Mr Richards QC with Ms Pilipasidis, both of counsel, appeared on behalf of the plaintiff. Mr Ruskin QC with Mr Hooper, both of counsel, appeared on behalf of the defendant.
4 My reasons for dismissing the application for leave are set out in the paragraphs that follow.
The evidence called and tendered
5 The plaintiff gave some limited evidence-in-chief relating to her experience of pain and her capacity to work part-time. And, having explained the circumstances in which some 10 or 11 months earlier she ceased performing alternative employment, the plaintiff attested to the accuracy of her two affidavits, sworn on 24 March 2016 and 2 March 2017 respectively.
6 The plaintiff and the defendant tendered extracts from their respective Court Books. The copy documents tendered by the plaintiff comprised multiple reports from treating doctors and medico-legal specialists; reports of the results of radiological investigations; a Notice of Impairment Benefit Liability, Assessment and Entitlement dated 3 February 2016 together with the medical assessor’s report dated 23 December 2015; and the Employers Report of Injury dated 29 February 2008.[1]
[1]Exhibit P1, Plaintiff's Court Book (PCB).
7 The copy documents tendered by the defendant comprised extracts from clinical notes and/or records from the McRae Medical Centre, Rosebud Physiotherapy, the Anzac Square Medical Centre and the Royal Brisbane and Women’s Hospital Emergency Department, WorkCover Certificate of Capacity dated 22 August 2008; reports of treating neurologist, Dr Rollison dated 18 September 2008 and 14 October 2008 respectively; the results of MRI investigation of the brain and cervical spine obtained on 11 October 2008; an incident report for Meriton Serviced Apartments, dated 8 March 2016; and two certified extracts from the records of the Melbourne Magistrates’ Court for 5 July 2016.[2]
[2]Exhibit D1, Defendant's Court Book (DCB).
8 Copy documents, tendered separately by the defendant, comprised the Workers Injury Claim Form and the Employer Injury Claim form dated 29th February 2008 and 3 March 2008 respectively;[3] a summary of the clinical notes tendered, on which the defendant relied, for the period 29 June 2000 to 16 November 2012 inclusive;[4] and a document headed: ‘Employee Previous Earnings’, which set out the plaintiff’s earnings for three months commencing from the week ending 28 November 2007.[5]
[3]Exhibit D2.
[4]Exhibit D3.
[5]Exhibit D4.
The injury alleged
9 In the first of her two affidavits the plaintiff alleged that after falling at work, she “immediately experienced severe pain” in her head, coccyx, low back and neck.[6] However, the plaintiff’s earliest accounts of the accident and injury suffered, recorded either by the treating general practitioner, Dr Amarasinghe on 28 February 2008 or in the WorkCover Workers’ Claim Form and the Employer Injury Claim report, made no mention of pain or injury involving the cervical spine (“She told me that she had had a fall in the work kitchen and landed on the lower lumbar sacral coccyx with generalised pain”,[7] and “LOWER BACK SPINE, COXIC & DISC ALSO LEG (sic)”[8] and “Lower Back”[9]).
[6]PCB 8.
[7]PCB 33.
[8]PCB 85.
[9]PCB 89.
10 Particulars of Injury dated 13 September 2016 alleged, among other things, permanent serious impairment or loss of function of the cervical spine and/or lumbar spine and/or damage to the muscular-ligamentous structures of the lumbar spine.
11 In opening, Mr Richards described the injury to the spine as ‘mechanical spinal pain’. In this regard, the plaintiff placed particular reliance on the description of injury by her medico-legal expert, neurosurgeon, Dr Aliashkevich, who, examined her once on 8 November 2016. His report, bearing the same date, contained the following diagnoses:[10]
[10]PCB 37-38.
Ø Chronic refractory mechanical neck, bilateral arm pain since the accident.
Ø Chronic headaches since the accident.
Ø Chronic mechanical low back pain and bilateral left more than right glutalgia/leg pain.
Ø Posterior annular tear at the L5/S1 level caused by the accident.
Ø Lumbar and cervical facet arthropathy.
Ø Posterior bulging at the C5/6 level with no neural compromise, aggravated by the accident.
Ø Depression.
Ø Chronic multifactorial pain syndrome, developed subsequently.
Ø Right-sided wrist injury.
12 This doctor’s prognosis was guarded, given what he understood was the failure of a number of painful symptoms had failed to respond to multiple pain medications and treatments.
Return to work and alternative employment
13 The plaintiff deposed that some three months after the accident, she returned to modified duties and gradually increased her hours of work, but never returned to her pre-accident hours or duties. The plaintiff said she resigned in late 2008 because she had been “made to feel uncomfortable by” the employer, in the context of the condition deteriorating and her general practitioner certifying the plaintiff unfit for work.[11]
[11]PCB 8.
14 The plaintiff currently receives a disability pension.
15 The details of the plaintiff’s work history in the eight years or so since resigning from her employment in 2008, and the explanations for changing jobs, given in affidavits and evidence-in-chief were, at best, sketchy. The plaintiff said that, despite pain, she had obtained alternative employment, in the following circumstances:[12]
[12]PCB 9 and 12-13 and TN 25-26.
Ø initially, a job for approximately 12 months with a friend at Australian Fresh.
Ø The work at Australian Fresh was followed by six months working at Café Pennine. This job did not last, allegedly because of ongoing back pain and the employer’s attitude to the plaintiff requiring time off (“intermittently”) due to back pain.
Ø The plaintiff next obtained a food preparation position. When she swore her first affidavit on 24 March 2016 the plaintiff deposed she was working four hours per week performing relatively light food preparation work at another cafe, Blue Bay Café. I understood from her further affidavit and evidence-in-chief, that the plaintiff ceased this work some 10 to 11 months before the hearing date, having last worked at the cafe some 2 to 3 months before she suffered a coughing fit at home. The latter was said to have caused severe back pain, which caused the plaintiff to fall and break her right wrist. The wrist fracture required open reduction surgery and internal fixation. In the same period, some 10 months prior to the hearing, the plaintiff also underwent a right oophorectomy (removal of the ovary).
Ø Without indicating when this work was performed, in her first affidavit the plaintiff also mentioned working at a bakery cafe for six hours per week, serving customers and performing light meal preparation work. According to the plaintiff, she had previously attempted more vigorous duties, with which she had not been able to cope.
16 Whilst various accounts of the plaintiff’s post-accident work history recorded by doctors and the responses obtained in cross-examination provided more information about post-accident employment, there were some obvious gaps and inconsistencies in the evidence. For instance, in January 2017, the plaintiff’s medico-legal specialist, occupational physician, Dr Horsley reported the following matters as part of a detailed occupational history obtained by her:[13]
[13]PCB 57.
Ø After three months the plaintiff returned to work on a graduated return to work program “working two hours per day/three days per week, gradually increasing to six hours per day/three days per week, but because the interaction with her employer declined, she resigned in late 2008.” Contemporaneous clinical records, medical reports and a Certificate of Capacity dated 22 August 2008, discussed in more detail in due course, collectively support a finding that the plaintiff was certified fit to resume full-time work for 29.5 hours per week, subject to minimising heavy lifting, and a further finding that she resumed working these hours in the latter part of 2008. Having, in January 2017, apparently specified the hours worked before she resigned, I found the plaintiff’s inability to recall the hours worked at hearing, and her reluctance to accept the record, unconvincing.
Ø The plaintiff worked part-time with Australian Fresh (a greengrocer/deli) for approximately 12 months for 15 to 20 hours per week and had ceased this employment because it was “too physical”. Notably, the only other reference to work in a deli/fruit shop was confirmed in the clinical records of a treating general practitioner. This recorded that, on 15 November 2012, the plaintiff reported having suffered an earlier knee injury whilst working at “peninsular manor” and, that after leaving this position she commenced working at a deli/fruit shop. This work had reportedly increased knee pain from standing and back pain from bending, yet the reason for the plaintiff leaving, as recorded by the doctor, was food safety concerns.[14]
[14]DCB 51.
Ø The plaintiff next worked with Café Pennine in Rosebud working up to 12 hours per week for six months. It was seasonal work and there had been a mutual parting of ways because the plaintiff was taking too much time off due to migraines and other headaches.
Ø The plaintiff commenced working six hour per week at the Bakery Café, serving customers and doing light meal preparation. At times she worked up to 12 hours per week but had not been able to continue this employment after fracturing her right wrist “about eight months ago. Two months before the fracture of the right wrist, she worked at the Blue Bay Café in McCrae for four hours per week. She has been unable to work secondary to her right wrist fracture”. However, we know from the report submitted by treating rheumatologist, Dr Thevathasan, that the plaintiff was performing “hard and prolonged work” and “doing everything in the firm” at a bakery café when seen by this specialist on 22 September 2014. At hearing the plaintiff recalled that this café and bakery was Dahlia’s Bakery Cafe in Rosebud, and that she had served customers and made sandwiches, with her shifts varying between perhaps two hours or four hours per day.[15]
[15]PCB 22A and TN 66.
17 I will revisit the evidence relating to employment in more detail as part of my discussion of the documentary evidence and the histories on which doctors have based their opinions.
The plaintiff’s circumstances, as at the date of hearing
18 The plaintiff is 42 years of age. She has three children, the youngest of whom, a 17-year-old daughter, resides with the plaintiff.
19 In her most recent affidavit, on 2 March 2017 the plaintiff swore that:
Ø constant pain in her back and neck was aggravated by activities that placed strain on her spine.
Ø Lower back pain radiated into her buttocks and legs, the left leg more than the right, with pain into her thighs. For reasons that were never explained at hearing, the plaintiff also attributed her current problems to the right buttock and the right leg, but not the left leg when, in the same affidavit, she also attested to ongoing symptoms from her back into her right buttock, adding that back pain affected her ability to undertake house work and to work in an unrestricted manner.[16]
[16]Compare paragraphs 4 and 16 at PCB 12 and 14.
Ø Neck pain radiated into both arms, down her left into her fingers and in particular her middle and ring fingers. The plaintiff also described experiencing bad migraines/headaches once or twice each week and sometimes more frequently since the accident, which were worse when experienced in conjunction with bad neck pain.
Ø Back pain that varied in intensity from day to day with bad days, at least twice per week when she could barely get out of bed, and good days. In evidence-in-chief the plaintiff said that neck and back pain was present all the time and that the severity of pain fluctuated. At its worst, the plaintiff rated low back pain at 9/10 (2 to 3 days per week), in the treatment of which the plaintiff said she took stronger pain relief medication and she used a TENS machine, heat packs, Voltaren Gel and, if this was affordable, she attended for physiotherapy. The severity of neck pain also fluctuated. At its worst neck pain was “Really bad,” on average, about four days per week.[17]
[17]Transcript (TN) 27.
Ø A range of restrictions impacted her day-to-day, recreational and social activities. I propose to deal with the consequences of work-related injury to the spine in more detail in due course. For present purposes, it is appropriate to note that the plaintiff said that she required assistance from her 17-year-old daughter and a friend with heavier cleaning tasks and with cooking at home.
Ø Back pain was aggravated by prolonged sitting or standing and by walking. The plaintiff said that she avoided activities such as overreaching, pushing and pulling over shoulder height for prolonged periods and only did a minimal amount of cooking due to her neck and back pain.
Ø She followed a medication regime consisting of pain killing and antidepressant/antipsychotic medications prescribed by her general practitioner, Dr Manish Bhasin whom she consulted weekly: Lyrica, Cymbalta, Targin, Panadeine Forte, Seroquel, Senquine and medication for sleep, Temazepam. Evidently some of this medication also assisted in the relief of ongoing right wrist pain.
Ø She consulted her rheumatologist, Dr Thevanthasan “when I would like to”.[18] As my discussion of the medical evidence shows in due course, the plaintiff was referred to the rheumatologist by Dr Bhasin. According to a report dated 8 March 2017, Dr Thevanthasan saw the plaintiff once only on 22 September 2014, at which time he diagnosed fibromyalgia and a sleep disorder, sleep apnoea.
[18]PCB 13.
Ø She was recently referred to pain specialist, Dr Nayagam. As his report dated 1 July 2014 shows, Dr Nayagam is a consultant physician to whom the plaintiff was referred with complaint of shortness of breath on exertion. The doctor attributed this to the plaintiff’s history of smoking.[19] I could not find any connection between treatment by this doctor and the pain management program the plaintiff said was commenced in about September/October 2016 at the Barbara Walker Pain Management Centre and had not been completed on the date of hearing.
[19]PCB 25-25A.
Ø She consulted gastroenterologist, Dr Hodge when needed in the treatment of “ongoing problems” with her stomach.[20] Dr Hodge’s report dated 6 March 2017 tells us that the plaintiff has been under his care since October 2013 for treatment of episodic abominable pain. Whilst it was apparent from this report that nerve root impingement or another neuropathic aetiology was also investigated, at the date of making his report Dr Hodge said that, no cause had been found for abdominal pain, the severity of which had, at times, prompted presentations to the Emergency Department .[21]
Ø Loss of “considerable income” due to her inability to work. In evidence-in-chief the plaintiff told the Court that the severity of her pain experience as it related to her neck and back was such that she believed she could not reliably perform even part-time, light employment.[22]
[20]PCB 13.
[21]PCB 35-35B.
[22]TN 27.
The application under section 134AB
20 The application was made under paragraph (a) of the definition of “serious injury”.[23] A further application made under paragraph (c) of the definition was withdrawn prior to the commencement of final submissions.
[23]Section 134AB(37).
21 Under paragraph (a) of the definition, the plaintiff was required to prove a “permanent serious impairment or loss of a body function”, on the balance of probabilities.
22 “Permanent” in the context of the provision refers to impairment that is “likely to last for the foreseeable future”.[24]
[24]BarwonSpinnersPty Ltd & Ors v Podolak [2005] 14 VR 622, [33].
23 Section 134AB(38)(c) of the Act provides that the pain and suffering and loss of earning capacity consequences of the injury to her spine, when judged by comparison with other cases in the range of possible impairments or loss of a body function, must be fairly described as being more than “significant” or “marked”, and as being at least “very considerable”.
24 The plaintiff was also required to discharge the burden imposed by section 134AB(38)(e)(i) and (ii) by establishing a permanent loss of earning capacity productive of financial loss of 40% or more. The Act further required the plaintiff to establish any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[25]
[25]Sections 134AB(38)(19(b) and (38)(g).
25 Essentially, the plaintiff was required to show that, by reason of work-related injury and taking into account her physical capacity for suitable employment post-injury and her attempts to participate in rehabilitation and training, that she no longer had the capacity for employment which, if exercised, would result in her earning more than 60% of her pre-injury earnings as determined in accordance with section 134AB(38)(f).
The issues for determination
26 The defendant:
· Conceded a minor soft tissue injury to the lower back, which counsel submitted had substantially resolved by about the time the plaintiff was certified fit to return to her normal, full-time duties on 22 August 2008, albeit working at her own pace and slower than her pre-injury pace and minimising heavy lifting and bending.[26] The defendant further relied on the evidence of treating neurologist, Dr Rollison who, by letter dated 18 September 2008 and addressed to the plaintiff’s treating general practitioner, Dr Amarasinghe, recorded that the accident-related injury to the sacrum and coccyx had “slowly resolved”.[27]
[26]DCB 56-57.
[27]DCB 58-59.
· Contested that the consequences of injury to the lower back met the test for serious injury, as at the date of hearing.
· Contested causation in respect to work-related injury to the cervical spine and the current complaints of neck pain and dysfunction. In September 2008, Dr Rollison obtained a history involving poor sleep in the preceding 12 months and “pressure where the skull joins onto the neck” and of the onset, some three or four weeks before the examination, of pain in the shoulder, radiating into the shoulder and down the arm in a C5/6 distribution, with a feeling of weakness in the arm.[28] The defendant further relied on the absence of documentary evidence recording complaint involving the cervical spine between the date of the accident and referral to Dr Rollison.
[28]DCB 58.
· Noted a relevant pre-accident medical history involving the cervical spine and lower back and psychiatric issues.
· Noted the presence of significant non-work related disabling symptoms affecting the plaintiff both as to pain and suffering and disability and her inability to work. These unrelated conditions, which included: fibromyalgia; bilateral leg/ankle symptoms; epigastric symptoms; neck pain and dysfunction (the latter should the plaintiff fail to establish causation for the neck); and psychiatric problems (to which these unrelated medical conditions and issue within the plaintiff’s family all contributed) indicated, so the submission went, that the reasons for the plaintiff’s incapacity or reduced capacity for work were likely multi-factorial. The plaintiff had not, the defendant submitted, disentangled the consequences of other unrelated conditions from the consequences she alleged were caused by accident-related injury.
· Questioned the reliability of the plaintiff’s evidence, particularly her account of the pre-accident history, as well as her recall of events in the years since the accident. The defendant submitted that, where the plaintiff’s evidence conflicted with the medical records, the latter should be preferred.
· Submitted the plaintiff had not demonstrated that she could not perform up to 20 hours of work per week, as a result of work-related injury to her spine.
Reliability of the plaintiff’s evidence
27 The concern with the plaintiff’s evidence was explored in some detail under cross-examination. I was satisfied from the responses given that, when swearing her affidavit material and attending for medical examination, the plaintiff had understood the need to give an accurate account of her pre-accident medical history.
28 The affidavit material did not, however, identify the neck or back or, for that matter record any history of treatment for symptoms of anxiety or depression, in the brief account given of the plaintiff’s past medical history. In paragraph 6 of the first affidavit the plaintiff relevantly swore:[29]
My past medical history includes an appendectomy, tonsillectomy, three cesarean sections as well as surgery for haemorrhoids. I was otherwise in good general health.
[29]PCB 8.
29 Moreover, a number of the doctors’ reports were silent in this regard or indicated that the doctor had obtained and based his or her opinion on a pre-accident history that did not include any complaint of or treatment for neck, back or psychological symptoms.
30 To illustrate the last mentioned point, the plaintiff was taken to Dr Horsley’s report dated 30 January 2017. This report was tendered by the plaintiff in support of, particularly, the economic loss claim allegedly arising from work-related injury to the cervical and lumbar spine. The report recorded a past medical history of endometriosis and hysterectomy (about 12 years earlier), tonsillectomy at the age of 13 years and an appendectomy about 12 months later, pancreatitis as a child and, without stating from when this had developed, a history of long-term anxiety and depression.[30]
[30]PCB 55.
31 My summary of the clinical record to which the plaintiff was taken and the evidence as it emerged in cross-examination, is set out in the paragraphs that follow.
32 Clinical records kept by the McCrae Medical Centre over the period between 29 June 2000 and 1 July 2013, 3 June 2005 and by the Rosebud Physiotherapy Clinic between 10 October 2001 and 12 October 2001 inclusive and 21 August 2002 and 14 January 2003 helped establish a number of matters. I was assisted in my interpretation of these entries by the summary of clinical notes tendered by the defendant. I identified the following matters:[31]
[31]Exhibit D3 (DCB 2-52) and DCB 53-54 respectively.
Ø multiple prescriptions from the plaintiff’s treating general practitioner, Dr Armarasinghe in the main, of anxiolytic medications, such as Ducene and Murelax; pain killing medications, such as Tramal, Panadeine Forte and Panamax; and medications to aid sleep, such as Temaze and Stilnox.
Ø Twenty-two attendances at the McCrae Medical Centre between 19 January 2001 and 8 October 2002, when Ducene, Temaze, Stilnox Panadeine Forte or Tramal were variously prescribed.
Ø Attendances on physiotherapist, Andrew Fischer on 10, 11 and 12 October 2001. The notes made were not decipherable as a whole. The attendances on the physiotherapist did, however, occur in the period the plaintiff was being prescribed anxiolytic, sleeping and pain killing medications.
Ø Fourteen further attendances between 16 October 2001 and 27 February 2002 at the McCrae Medical Centre when the plaintiff was variously prescribed Stilnox, Ducene, Panamax and Tramal.
Ø An attendance at the McCrae Medical Centre on 6 March 2002 at which time the doctor recorded – “ tramal low-dose pain generally o.k. But back pain is promin[e]nt seeing chiropractor… insomnia”. The prescriptions printed on that occasion included Ducene, Stilnox and Tramal.
Ø A further attendance two weeks later at which time the doctor recorded – “sever[e] hypersensitive pain, pain out of proportion to the rom [range of movement] pain” and “[cervical] spine, pain all range of movement of cx spine, trigger pt [point] pain as well, cx neck skin even tender ++” and “Bilateral, cervical tender restricted ROM” and “test to be done cx spine ct [CT scan]”. On this occasion Tramal SR 100 mg was prescribed.
Ø Tramal SR 100 mg was again prescribed on 29 March 2002 and on 11 April 2002 and Stilnox on 17 April 2002.
Ø A further attendance on 6 May 2002, at which time the doctor recorded – “back from holiday, planned to cut d[u]cene to 1/2 daily, scalp itching due to cx neck muscle spasm, cold & hot compress not analgesic” and “Joint stiffness. Restricted movement. Affected joint details: neck pain”. On this occasion, the prescription for Ducene was reduced, although the prescription for Tramal SR was unchanged.
Ø A further attendance on 6 August 2002, at which the general practitioner recorded – “3/hx out stretch bending cleaning long table that nocte pain in the lower back & radiation upper calf, R, back from mildura unwell on rulide no better” and “R buttock pain & slump test +ve for muscle spasm” and “Diagnosis: Right Sciatic pain”.
Ø Attendances on Mr Fischer at the Rosebud Physiotherapy Clinic on 21 and 23 August 2002. Again the handwritten clinical notes were difficult to decipher, although I accept that the shorthand notes made on 21 August 2002 were consistent with complaint having been made of at least lower back pain (“LBP with [illegible] etc”).
Ø An attendance on Mr Fischer on 14 January 2003, with shorthand notes that at the very least suggest complaint of right lower back pain with referral to the right lower limb and a reference to the right thigh.
Ø A further attendance on 8 April 2004, at which time the general practitioner recorded – “shifting house, again, now getting sore back pain, R chest pain, pectorolaise (sic) R pain abduction pain” and on examination “lumbar back pain, R pectoralis pain” and, the reason for the visit “Soft tissue injury”. On this occasion, Tramal was prescribed in a low dosage along with the anti-inflammatory, Voltaren Rapid.
Ø A further attendance on 26 May 2004, at which time the general practitioner recorded – “ba[c]k ache on the L [eft] (loin) area, bilateral pelvic pain” and “Examination: back pain”. On this occasion, Voltaren Rapid was prescribed.
Ø A further attendance on 5 October 2004, at which time the general practitioner recorded – “ex partner having difficulty, let go off pt, cause stress from spouse, also stress from partner, stress sort, headaches” and “neck pain causes headaches”.
Ø A further attendance on 23 June 2005, at which time the general practitioner recorded – “cx pain flareup, reluctant to wear neck brace, as neck pain flare up lately, past cx is not any significance” and “Right Neck Pain with referred arm pain” and “Management: treatment cx collar” and “Actions: Diagnostic Imaging requested: X-ray – Spine – Cervical functional view, – explain, & shoulder pain”.
33 Based on both the documentary evidence and the totality of the plaintiff’s oral evidence, I formed the view that the plaintiff’s initial reluctance to acknowledge any pre-accident history of back or neck pain or, for that matter, to acknowledge any pre-accident history of psychological issues and the explanation offered by her, reflected an unwillingness to concede matters that she believed would not advance her case.
34 As to the explanation of the recorded history of neck and back pain and symptoms, when pressed by counsel, the plaintiff attributed these to endometriosis, a medical condition diagnosed some time later, or to fibromyalgia, a condition diagnosed after the accident, and she attributed the treatment of back and neck pain by the physiotherapist to muscle spasms caused by these conditions.
35 As to the plaintiff’s inability to recall the names and types of medications prescribed, or the conditions for which they were prescribed, in the years before the accident in 2008, I formed the view that, even with allowance for the effect of the passage of time, as well as any lack of familiarity with the names and uses of various drugs, the plaintiff’s evidence in this regard again reflected a reluctance to concede matters that would not advance her case. For instance, the plaintiff may not have recalled the name of a particular drug, yet her failure to appreciate that she had been prescribed medication typically used in the treatment of symptoms of depression, was unconvincing.
36 That said, the clinical records tendered and summarised above did not disclose ongoing complaint of or treatment of neck or back pain in the 2 ½ years preceding the accident. In re-examination, the plaintiff, nonetheless, appeared to concede some neck and back problems in the two years preceding the accident, albeit problems that she attributed to “muscle tension”.[32] Unsurprisingly, Mr Richards made the salient observation that, as such, the records were consistent with a finding that in the period between 2000 and mid 2005 episodes of neck and/or back pain were likely transient.
[32]TN 67.
37 I will discuss the impact, if any, of deficiencies in the history obtained by doctors as they relate to investigation and treatment of neck or back pain before or since the accident, in my discussion of the medical reports.
38 Apart from the plausibility of various aspects of the evidence given by the plaintiff at hearing, as noted in my discussion of the post-accident evidence in due course, when assessing the reliability of her evidence, I also considered the evidence relating to convictions in the Melbourne Magistrates’ Court on 5 July 2016, for prescription offences.
39 The Certified Extracts tendered by the defendant record ex parte convictions and aggregate fines imposed for one count of forging a prescription for a drug of dependence and one count of uttering an altered prescription for a drug on 26 April 2000. The medical records suggest drug dependency issues pre-dating[33] and post-dating the accident, the latter involving dependency on benzodiazepines.[34] At hearing, the plaintiff acknowledged an earlier addiction to codeine based medications.
[33]Dr Amarasinghe's report at PCB 35 – "I would recommend that any treatment NOT be in the form of analgesia that can be addictive or misused based on Ms Wards past history (sic)."
[34]Dr Bhasin’s report at PCB 30.
40 The plaintiff, however, denied knowledge of the convictions recorded until recently. She blamed the offending on the person with whom she was living at the time, whom the plaintiff said took the script to the chemist. The plaintiff said that, a recent attempt to correct the record had been unsuccessful because “the people are deceased”.[35] Despite my reservations about the explanation given, where, as in this case, the convictions were recorded in the plaintiff’s absence, I did not treat this evidence as probative of any fact in issue in this application.
[35]TN60-61.
41 For the time being, it is appropriate to note that, I assessed the evidence on the basis that, where the plaintiff’s account was in conflict with the record, in the absence of independent corroboration, as a general rule, I preferred the record.
Admissions made at hearing
42 The defendant formally admitted the following matters:
Ø payment of medical expenses totalling $2911 and incurred by the plaintiff, firstly, at the Mornington Peninsula Hospital on 26 February 2008; secondly, with her general practitioner, Dr Amarasinghe between 28 February 2008 and 22 August 2008: and, lastly, with a physiotherapist, Mr Andrew Fischer between 6 March 2008 and 28 June 2008.
Ø That on 3 February 2016 liability was accepted pursuant to section 104B(2)(a) of the Act for injury to the lower back occurring on 26 February 2008, but rejected for injury to the neck.
Ø Payment of WorkCover payments between 26 February 2008 and 13 June 2010.
43 The defendant conceded that, at face value, payment in 2016 of an impairment benefit of $10,923 for a 5% whole person impairment under section 98C of the Act, constituted an admission of a permanent lower back injury.
44 I was, nonetheless, satisfied that, in this case, the payment should not be construed as an acceptance by the defendant of the full nature or effect of the injury to the lower back. Firstly, the impairment assessment did not deal with the issue of the seriousness of or the causal contribution of consequences under section 134AB(38) of the Act. Secondly, where as with this case, the history on which the impairment assessment was based, was incorrect. Professor Goldwasser appeared to believe that there had been no previous problems with the plaintiff’s back. Lastly, and perhaps more importantly, I could not be satisfied that when formulating his opinion, Professor Goldwasser had been cognisant of evidence that established an almost three year hiatus in attendance for treatment of lower back symptoms, between 22 August 2008 and 5 August 2011.
Calculation of the without injury earnings figure and loss of earning capacity
45 The method by which the without injury earnings figure was to be assessed was contested. Among other things, cross examination revealed that:[36]
[36]Transcript (TN) 45-46.
Ø in the financial years ending 30 June 2005, 2006 and 2007 Centrelink parenting payments comprised a significant proportion of the plaintiff’s gross taxable income.
Ø In the financial year ending 30 June 2008 the plaintiff’s gross taxable income comprised Centrelink payments and income earned with the defendant, in the 6 to 7 months pre-accident and some payments of compensation post-accident.
46 The document tendered by the defendant, recording as it did the plaintiff’s previous gross weekly earnings for the period 1 November 2007 to 31 January 2008, revealed that, depending on the number of hours worked and the rate at which the plaintiff was remunerated as a casual, her weekly earnings in this period varied between $471.75 gross per week and, for the week ending 19 December 2007, $881.20.[37]
[37]Exhibit D4.
47 The plaintiff submitted that the sum of $881.20 gross per week represented her earning capacity and should be accepted as the without injury earnings figure, whereas the defendant submitted that the without injury earnings figure should be assessed by averaging the plaintiff’s gross earnings.
48 It was not necessary to resolve this contest in this case. The plaintiff failed to disentangle loss of earning consequences attributable to the many conditions that likely reduced her capacity for employment as at the date of hearing and, as a result, she did not establish accident-related permanent loss of earning capacity productive of financial loss of 40% or more.
Work-related injury and the treatment received – February to September 2008
49 As mentioned, minor soft tissue injury to the lower back was conceded. On the evidence, however, I could not be satisfied that the accident had also caused injury to the cervical spine.
50 At hearing, the plaintiff was adamant that she had injured both her back and neck in the accident and that, initially, treating health professionals had attributed complaint of neck pain and symptoms to the lower back injury. Apart from the affidavit and oral evidence, the documentary evidence comprised: the earliest of the medical records; the WorkCover Worker’s Claim Form, which the plaintiff agreed she had signed on 29 February 2008;[38] the Employee’s Report of Injury, dated 29 February 2008;[39] and the Certificate of Capacity, dated 22 August 2008.[40]
The medical records – the earliest record of complaint and treatment
[38]Exhibit D2.
[39]PCB 101-2.
[40]DCB 56-57.
51 In a report dated 24 February 2017 and addressed to the plaintiff’s solicitors, the plaintiff’s former treating general practitioner, Dr Amarsinghe, among other things, reported the following attendances between 28 February 2008 and 10 November 2008 inclusive:[41]
[41]PCB 33-35.
Ø 28 February 2008 – “… She told me she had had a fall in the work kitchen and landed on the lower lumbar sacral coccyx with generalised pain. She was prescribed salt baths, physio, crutches use and time off work. No analgesia prescribed due to past codeine/analgesia addiction. CT to be considered at review and one month off work.”
Ø 3 March 2008 – “… still had pain in the lower back coccyx and minimal pain in the lumbar sacral area. Left buttock pain was less. She was to continue with physio and hydro.”
Ø 27 March 2008 – “… doing aggressive physio and home exercises as well. Right leg dragging with fatigue. Discussed trial of work for return to work.”
Ø 8 April 2008 – “discussion around RTW and slippery floor.”
Ø 16 April 2008 – “trial of increase work one hour, Coped well and wishes to go to work more. and on 30/04/2008 hours were further increased.”
Ø 27 May 2008 – “the limp was better along with walking. Squatting was poor.”
Ø 13 June 2008 – “gradually increasing work walking with minimal limp and gradually recovering.”
Ø 27 June 2008 – “the work load was able to be increased.”
Ø 22 August 2008 – “… Was seen by my locum who noted the mode of injury and that the pain had improved and walking had improved and had graduated to full-time 29.5 hours per week and minimising heavy lifting and bending. He also noted that she should avoid aggravating activities of heavy lifting and bending. To continue with back exercises (gym) physio, massage and graduated RTW.”
Ø 3 September 2008 – the plaintiff again saw the locum who recorded “left lateral chest pain, left shoulder radiating down left arm into the index and middle fingers only. Also noted was migraine 2 weeks ago and 6 months of occipital pressure headaches.? Brachial neuritis.”
Ø 8 September (2008) – “I saw her with the neck pain and queried if old work cover but good range of movement in C spine. She still had arm symptoms and I diagnosed left-sided neuralgia and prescribed prednisone to reduce inflammation and physiotherapy.”
Ø 16 September 2008 – “… As no significant improvement I referred her to Neurologist Dr Rollison.”
Ø 10 November 2008 – “She had a new job in a Deli, had not gone to her old job.”
52 The plaintiff first consulted, physiotherapist, Mr Fischer on 6 March 2008 for treatment of injury suffered in a fall at work on 28 February 2008. Allowing for those of the notes made that were legible, and the content of the report to the general practitioner, I could not be satisfied that, Mr Richards’ submission, to the effect that the loss of lordosis recorded for the lumbar and thoracic spine had also included the cervical spine, was correct.
53 In a short report dated 27 March 2008, Mr Fischer advised Dr Amarsinghe that there had been slow improvement in his patient’s “lumbar/sacral pain post fall. She is regaining her lumbar lordosis and walking much straighter….”[42] Where decipherable, the physiotherapist’s clinical notes for the attendance on 6 March 2008 recorded a history involving a fall, with the plaintiff landing on her “sacrum” and with her “legs stuck under dishwasher”.[43]
[42]DCB 55.
[43]DCB 54.
54 The clinical notes also referenced a loss of lordosis and contained a diagram with markings, which appeared to highlight the spine between the thoracic and lumbar spine. Essentially, when taken to the clinical records of the general practitioner and the locum, the plaintiff did not dispute the accuracy of the various matters recorded, although she appeared reluctant to accept that, having made a gradual return to work from April 2008, by the date of the consultation on 22 August 2008 she had, as recorded by the locum, Dr McKenzie, reported working 29.5 hours per week, subject to minimising heavy lifting.
55 The plaintiff’s responses otherwise were to the effect that, despite complaint of neck pain during these consultations, “they” and the physiotherapist had identified this as referred pain from the lower back injury, due to having fallen and landed on her lower back. And as a consequence, so the plaintiff claimed, the physiotherapist had only worked “on the areas he was told to work on so that’s what he did.”[44]
[44]TN 48-51.
56 The plaintiff’s explanation for the absence of any reference to the neck in the description of injury and the diagnosis provided by the locum, Dr McKenzie, in the copy Certificate of Capacity dated 22 August 2008 was that, despite having told him about neck pain the doctor, who was not her “normal” doctor, had “…left off where Dr Amarasinghe had.” [45]
[45]TN 51-52.
57 The plaintiff was examined by neurologist, Dr Rollison in September 2008. On 13 October 2008, Dr Rollison obtained MRI studies of the brain and cervical spine, the findings of which were reported as “normal”.[46] The salient features of Dr Rollison’s reports to Dr Amarasinghe, dated 18 September 2008 and 14 October 2008 respectively, and the plaintiff’s responses under cross-examination, are summarised in point form, as follows:
[46]DCB 60-61.
Ø The plaintiff reported a fall at work at which she injured her sacrum and coccyx and “this has slowly resolved”. Under cross-examination, the plaintiff said that Dr Rollison had been the first doctor to listen to her properly.[47] However, whilst the plaintiff accepted that the reported history had not mentioned the neck, she again claimed that she had mentioned hurting her neck when she fell and appeared to suggest that the omission of this information from the report was because Dr Rollison was “going by the referral”. The plaintiff, nonetheless, accepted that, as was recorded at the time, the injury to her sacrum and coccyx had been slowly resolving (“I felt I was slowly improving, just to go back to light duties”[48]).
[47]TN 52-53.
[48]TN 53.
Ø The plaintiff agreed that she had reported a number of matters – sleeping poorly, particularly in the 12 months preceding the examination; experiencing pressure where the skull joins on to the neck; and, some 3 to 4 weeks earlier in August 2008, developing pain in the shoulder blade radiating into the shoulder and down the arm with some numbness. However, according to the plaintiff, she had experienced pain radiating into the shoulder and arm over a much longer period. The plaintiff rejected counsel’s proposition to the effect that, in keeping with his report, Dr Rollison had understood that the onset of pain had occurred three to four weeks before the examination. My interpretation of the reported history, nonetheless accorded with counsel’s.[49]
Ø initial investigation of potential radiculopathy in the left C5/6 distribution by CT scan of the neck, apparently showed some minor changes. As mentioned, Dr Rollison then ordered MRI imaging, which he reported had returned a normal result. However, as noted by Dr Rollison in a further, short report to the general practitioner, the imaging excluded more serious pathologies without necessarily excluding a cervical radiculopathy. He recommended conservative treatment.
[49]TN 54.
58 For reasons that were never explained at hearing, the reports of the treating neurologist, Dr Rollison, were not tendered by the plaintiff, as might be expected in an application alleging work-related injury to the spine.
The WorkCover Worker’s Claim Form – declared by the plaintiff on 29 February 2008 and the Employee’s Report of Injury.
59 Having read these documents and heard the responses given in cross-examination, I formed the view that, despite her initial reservations, the plaintiff probably had completed the claim form. The plaintiff could not recall the location at which the claim form had been completed and seemed to suggest that the form may have been completed at the doctor’s surgery and, possibly, in the presence of representatives of the insurer.
60 The plaintiff clearly accepted the accuracy of the description of the injury contained in the claim form (“LOWER BACK, SPINE, COXIC (sic) & DISC also LEG” and “HIT THE LOWER SPINE REALLY HARD THAT HAS PUSHED MY COXIC (sic) UP TOWARDS MY BOTTOM & PROLAPSED DISC”).[50] Yet, when challenged, the plaintiff’s responses were to the effect that Dr Amarasinghe, and others present at the time, had dissuaded her from referring to the neck (“I mentioned neck but they were more concerned about the rest of my injuries”[51] and “No, because they were trying to say it was referred pain and no-one was listening” and in response to the suggestion that the plaintiff could have added her neck to the form if it had been sore - “I had to put in what was being diagnosed at the time”[52] and the word ‘neck’ had not been included “because they were only allowing me to put in what had been picked up”[53]).
[50]A similar description was entered in the Employee's Report of Injury.
[51]TN 47.
[52]TN 48.
[53]TN 54-55.
61 In all, I did not find plausible the plaintiff’s evidence that, having informed the general practitioner, the physiotherapist and the locum, Dr McKenzie, none of these health professionals had seen fit to, at least, record complaint of neck pain before Dr Rollison recorded complaint of the onset of pain some 3 to 4 weeks before a consultation in September 2008. The content of the Certificate of Capacity and the claim and injury report forms completed within weeks of the accident, only served to reinforce my view that the plaintiff’s explanation for the omission of any reference to the neck in the records made in the months following the accident was, at best, a reconstructed version of the facts.
62 Based on the evidence summarised so far I could not be satisfied of the onset or complaint of neck pain and symptoms before referral to Dr Rollison, who investigated symptoms he likely understood were manifest from about mid-August 2008.
Attendances for treatment of low back pain – August 2008 to 1 July 2013
63 In a report dated 4 February 2015 and addressed to the plaintiff’s solicitors, Dr Bhasin confirmed that the plaintiff registered with his clinic, Advantage Medical – Rosebud, from 26 July 2013.[54] Dr Amarasinghe’s report and the clinical records for the McCrae Medical Centre showed that the plaintiff’s last attendance at this clinic was on 1 July 2013.
[54]PCB 27.
64 As mentioned earlier, the matters recorded in these documents support a finding that, by 22 August 2008, improvement in the plaintiff’s lower back condition was such that, subject to minimising heavy lifting, she had been certified fit to return to full-time work for 29.5 hours per week.
65 The next attendance for treatment for low back pain was recorded on 5 August 2011. The period until this attendance represented the three hiatus year in treatment of the lower back, on which the defendant relied.
66 I have already mentioned the plaintiff’s evidence that she resigned her employment with the defendant in late 2008, because of the employer’s poor response when the plaintiff’s condition deteriorated and certificates for total incapacity were issued. Subsequently, so the plaintiff further deposed, she had not been able to afford further physiotherapy because funding of physiotherapy ceased.
67 Notably, the extracts from the clinical records do not support the claim that the plaintiff’s condition had deteriorated in late 2008. These records show that the four attendances recorded between 3 September 2008 and November 2008 had not involved complaint of ongoing back pain or problems, and that Dr Amarasinghe had issued medical certificates on 8 September 2008 and 16 September 2008 for “neuralgia” and for “panic deopression (sic)” and “neuralgia” on 29 October 2008.
68 The inference I drew from this evidence and Dr Rollison’s account was that, the plaintiff had not attended for treatment or been certified unfit for work by reason of her lower back condition after September 2008. By then, complaint was focused on the cervical spine and investigation of the cause of neck and arm symptoms.
69 The next consultation for treatment of lower back pain was on 5 August 2011 Dr McKenzie recorded complaint of “3 days right low back pain. Doing a lot of bending and lifting at work/covering others at work.” As submitted by the defendant, the presentation recorded did not, as might be expected, reference or record this episode as a recurrence of an earlier injury or record complaint of an ongoing symptomatic back condition. The doctor diagnosed a “Low back strain” recommended that the plaintiff “Avoid aggravating bending and lifting. rest. Heat (sic)”.[55] Notably, on that date, the only medications prescribed were in the treatment of an unrelated respiratory infection.
[55]DCB 43-44 and PCB 34.
70 The plaintiff’s response to the proposition that, in keeping with the clinic’s records she had not mentioned back pain (that is neck or lower back pain), on the 16 or so occasions she attended for treatment between 22 August 2008 and 5 August 2011, was that she “would have mentioned her back.”[56]
[56]TN 56-57.
71 I found the plaintiff’s evidence in this regard implausible. The plaintiff readily agreed with counsel’s summation of her evidence; namely, that the Court should accept that she had also reported that her back was troubling her, yet the doctors at the clinic had neglected to record this information. The plaintiff, nonetheless, repeatedly rejected what was clearly a logical interpretation of the entry (if correctly recorded), that the “3 days” likely referred to back pain experienced over a three day period only.[57]
[57]TN 57.
72 The next consultation referencing the back, was on 13 June 2012. In the interim, there were 17 attendances for treatment of unrelated conditions, without doctors recording complaint of symptoms relating to the spine.
73 On 13 June 2012, as recorded, the plaintiff sought treatment of epigastric issues. According to the note made, the plaintiff also mentioned arm and back pain in the context of other complaints (“1hour hx lower epigastric, region pain the arm weak and pain arm & back pain throat reflux sensation both upper (sic)”[58]).
[58]DCB 50.
74 Under cross-examination, this time, the plaintiff’s evidence was to the effect that, it had not been necessary to mention back pain because her doctor already knew she had “constant back pain”.[59] Even if accident-related lower back pain had not fully resolved, the evidence adduced at hearing failed to satisfy me that back pain (cervical and/or lower back pain) had been constant or, such as to warrant investigation or treatment in the period up to and including 13 June 2012.
[59]TN 58.
75 There were three further attendances for unrelated conditions prior to the entry in the clinical records on 16 November 2012 (entered in the records a day after the attendance apparently because the server had crashed the day before). In his report, Dr Amarasinghe relevantly advised that “(o)n the 15/11/2012 she told me that she left the last job due to pain, had been taking analgesia and not put it in any work cover claims. Has a job cooking and making coffee, referral to physio and to check with employer/insurer re workcover eligibility and return to see me.”[60]
[60]PCB 34.
76 As previously mentioned, the entry in the clinical notes recorded an “initial work injury at peninsula manor” some time ago, when the plaintiff tripped and hurt her knee, and, further, that the plaintiff had left this position and commenced working in a deli/fruit shop. The history recorded by the doctor contained the following additional information: [61]
… increased knee pain from standing and back from bending, left that job due to food safety concerns. Went to another job, lasted temporarily quit due to pain. no claims for work cover, putting up with and taking analgesia. Got job at Café. Cooking/coffee. Loved job, but increased work load unable to cope. Finds QBE changed as insurer and no concern re injury. She got good response from andrew fisher phsysio (sic) for each acute episode of knee and ankle pain. Given referral to physio and Jo to follow up with insurer/employer as to eligibility. to return after follow-up.
[61]DCB 51.
77 The plaintiff recalled the incident at peninsular manor, yet resisted the obvious conclusions to be drawn from the matters recorded to the effect that: firstly, the attendance was likely directed to treatment of a work-related knee injury and pain, which had caused the plaintiff to quit at least one job; and, secondly, in November 2012, the knee condition had warranted referral for further physiotherapy treatment. For instance, somewhat unconvincingly, the plaintiff could not recall knee pain but was able to recall having back pain, which, despite the record made, she attributed to standing not bending. Moreover, under cross-examination, the plaintiff was very quick to attribute her departure from the deli/fruit shop to her back and neck, until being reminded by counsel that the reason recorded was “food safety concerns”. The concession from the plaintiff that food safety concerns “would be a small portion of it”,[62] did not allay my overriding concern that much of the plaintiff’s evidence was based on reconstruction and a desire to advance her case as it related to injury to the spine.
[62]TN 59.
78 In all, I could not be satisfied that in November 2012, the treating doctor, Dr Amarasinghe, had linked an isolated report of back pain in association with a unrelated knee injury to an unresolved back injury sustained in the accident.
79 As the doctor’s report also confirmed, there were three subsequent attendances at the McCrae Medical Centre on 10 April 2013, 13 May 2013 and 1 July 2013, in the treatment of unrelated conditions.
80 In his report, Dr Amarasinghe recorded a diagnosis of injury sustained in the accident as involving “Musculoskeletal soft tissue inflammation due to trauma.” He confirmed that the treatment recommended had involved taking time off work, undergoing physiotherapy and hydrotherapy, taking occasional anti-inflammatory medication and making a graduated return to work.[63]
[63]PCB 34.
81 Based on the evidence summarised, I have accepted as correct the defendant’s submission, to the effect, that the treating doctor at the time of injury, and for the five years after the accident, had not indicated a history of ongoing treatment of lower back pain. As such, his report did not assist the plaintiff in establishing causation of the alleged serious injury consequences in 2017.
82 In reaching this conclusion I also took into account the fact that the plaintiff was employed and continued to work over this period, and the absence of any radiological investigation of the lower back until treating gastroenterologist, Dr Hodge, obtained MRI studies of the lumbar spine on 6 December 2013.
83 The inference I drew from the absence of evidence of earlier investigation or ongoing treatment by doctors or the physiotherapist, or the prescription of medications in the periods between August 2008 and August 2011; between August 2011 and June 2012; and between June 2012 and July 2013, was that, quite apart from any ongoing restrictions on heavier lifting, if, during these intervals, the plaintiff experienced back pain, this had not been of sufficient severity to warrant medical investigation or treatment, including prescription of medication.
84 Importantly, I could not be satisfied of the extent to which, if any, injury-related reduction in the plaintiff’s capacity for heavy lifting contributed to the consequences alleged.
Treatment and investigation of the back from 26 July 2013 to date – the medical evidence
85 The medical opinion obtained since 26 July 2013 was problematic because the history on which doctors based their investigation of complaints relating to plaintiff’s lower back and neck conditions, and on which their opinion was formulated, was often inaccurate and/or incomplete.
86 The plaintiff attended the Advantage Medical – Rosebud clinic from 26 July 2013. The attendances and the investigations undertaken and treatment received were summarised in medical reports from a treating general practitioner, Dr Bhasin to the plaintiff’s solicitors, dated 4 February 2015 and 9 December 2016.[64]
[64]PCB 27-30.
87 Dr Bhasin made the salient point that doctors at the Rosebud clinic had been dependent on the plaintiff’s account of her medical history because they had not been able to confirm the history of earlier medical conditions (a “few” of which had been advised by the plaintiff). The latter involved:[65]
Chronic pain syndrome mainly in regards to ankle pain, back pain, hip pain and lower back pain radiating to both buttocks.
History of depression, history of insomnia, history of mild COPD (chronic obstructive pulmonary disease), history of fibromyalgia and bilateral swelling of legs unexplained and history of endometriosis.
[65]PCB 27.
88 As to the conditions for which Dr Bhasin said the plaintiff was undergoing treatment, these included:[66]
[66]PCB 27 and 30 respectively.
As at February 2015 – Currently she is been treated in regards to the above-mentioned conditions, especially her lower back pain and depression being the pre dominant ones. She has had a period of heavy use of opiate analgesics which have been gradually decreased over a period of time.
As at 9 December 2016 – I have given you the detailed reference of her ongoing issues with Physical problems including chronic pain syndrome, which includes
1. Fibromyalgia
2. Chronic mechanical low back pain
3. Visceral abdominal pain on the background of endometriosis
4. Bilateral leg oedema (unexplained)
In regards to Her psychological status I will highlight that she has been assessed by Psychiatrist Dr Graf, this report can be provided on request and permission from Dr Graf
1. Depression
2. Anxiety disorder
3. Benzodiazepine dependence
4. Fear avoidance and catastrophists thoughts
5. Traumatic childhood and long-standing serious issues.
6. Chronic Dysthemia (sic).
89 On 9 December 2016, Dr Bhasin relevantly considered his patient incapable of reliably sustaining any meaningful employment due to “so many ongoing issues and her general health”.[67]
[67]PCB 30.
90 I have accepted as accurate, the defendant’s submission, to the effect that, the evidence of this treating general practitioner did not provide a causal link between the treatment received since July 2013 and injury to the spine sustained in the accident. The evidence of this treating general practitioner, not to mention the reports from treating specialists, gastroenterologist, Dr Hodge; rheumatologist, Dr Thevanthasan; orthopaedic surgeon Mr Bourke; and the Medical Director of the St John of God, Frankston Rehabilitation Hospital, Dr Shirazi, nonetheless, underscored the disentanglement issue. In short, the plaintiff did not, as required, disentangle the consequences of unrelated and likely disabling conditions impacting the plaintiff’s ability to function in both her domestic and work environments, to allow the Court to identify and exclude these in the assessment of the seriousness of any pain and suffering and loss of earning capacity consequence resulting from injury to the lower back.
91 The plaintiff has consulted Dr Hodge on 11 occasions since October 2013 in the treatment of abdominal pain and other gastric problems.[68] It appears that Dr Hodge obtained a history of the plaintiff falling on her back many years earlier. As part of his investigation of episodic abdominal pain and, to address his concern that pain may have been related to nerve root impingement or another neuropathic aetiology, on 6 December 2013 Dr Hodge obtained MRI imaging of the lumbar spine.
[68]PCB 35A-35B.
92 The radiologist’s report relevantly indicated that the imaging had identified:[69]
Mild lower lumbar spine degenerative changes with a small dorsal annulus fissure in the L5/S1 disc. Mild to moderate facetal arthropathy on the left with some inflammation at the left L4/5 facet joint and a little inflammatory change between the adjacent L5 and S1 spinous processes.
[69]PCB 16A.
93 Dr Hodge concluded that these findings were normal and, as earlier mentioned, among other things, Dr Hodge said he had not found a cause for the plaintiff’s complaint of episodic abdominal pain, which was reportedly severe enough to wake the plaintiff from sleep and had prompted presentations to the Emergency Department.
94 I have accepted as accurate, the defendant’s submission, to the effect that, of itself, pathology revealed by imaging more than 5 years after the accident did not advance the plaintiff’s case for leave. Moreover, I infer from Dr Hodge’s report that, episodic abdominal pain likely continued to impact the plaintiff’s ability to maintain employment and her mental well-being.
95 Dr Bhasin referred the plaintiff to Dr Thevanthasan who examined her once, on 22 September 2014. The rheumatologist’s initial report to Dr Bhasin dated 22 September 2014 and his report to the plaintiff’s solicitors dated 8 March 2017 were tendered.[70]
[70]PCB 21-22B.
96 As mentioned, these reports show that, in September 2014, Dr Thevanthasan understood that the plaintiff was employed at a café and bakery where she performed hard and prolonged work. The past history, as recorded by the doctor, was brief: several accidents causing trauma to the coccyx, cellulitis of the plaintiff’s legs, as well as a hysterectomy at the age of 30 for endometriosis. As such the history recounted did not mention any pre-accident history of treatment of muscle spasms or, for that matter, neck or back pain.
97 In summary, Dr Thevanthasan concluded that the plaintiff’s main symptoms were due to fibromyalgia, the onset of which he attributed to both psychological factors and physical deconditioning. The plaintiff had, the doctor opined, coped with these symptoms “until she developed disc disease possibly caused by her hard work at the bakery and I thought this might have triggered off worsening of her symptoms which had continued until I saw her.”[71]
[71]PCB 22B.
98 Clearly, in September 2014, the doctor considered an association existed between a reportedly recent worsening of symptoms of disc disease (the disc protrusion at the L5/S1 level of the spine, as reported by a radiologist on 7 May 2014 to, orthopaedic surgeon, Mr Cunningham[72]) and “the hard work” Dr Thevanthasan understood the plaintiff had been performing at the café and bakery. Whilst Dr Thevanthasan had been optimistic that back pain would reduce to the point where it no longer interfered with the plaintiff’s daily life, he, nonetheless, cautioned against engaging in any employment involving lifting of weights exceeding 10 to 15 kg (“and certainly not repetitively”).[73]
[72]PCB 17-17B.
[73]PCB 22B
99 Having read the reports, I could not be satisfied that Dr Thevanthasan linked the pathology reported for the lower back or the diagnosis of fibromyalgia (“Fibromyalgia… is probably unrelated to her employment, is something that could affect her ability to work and may prevent her from having energy enough to last a day in employment. This is linked to a possible mood disorder and would require ongoing treatment”[74]) to injury sustained to the plaintiff’s spine in the accident. Importantly, the consequences of this unrelated and likely disabling condition were never disentangled. For instance, whilst it was likely that at the date of the hearing, medication, such as Lyrica, was taken in the treatment of fibromyalgia, I could not be satisfied from the plaintiff’s evidence alone (or reports made by her to doctors) that this medication was also prescribed in the treatment of lower back pain attributable to injury sustained as a result of the accident.
[74]Ibid.
100 The plaintiff was examined by Mr Bourke in December 2014, on referral from Dr Bhasin. The report dated 30 December 2014, confirms that the plaintiff presented for treatment of “longstanding bilateral ankle and foot pain which is more severe on the left than the right accompanied by ankle oedema. This is on a background of fibromyalgia sponylitis, and cervical and lumbar back problems. She has been on OxyContin and Lyrica for back and neck pain.”[75]
[75]PCB 18-19.
101 At the time, the surgeon reported he had trouble working out exactly what was “going on with” the plaintiff and expressed concern that the plaintiff was suffering from chronic pain type behaviour. Mr Bourke, nonetheless, arranged further investigation of potential organic causes of symptoms. The latter included complaint of shooting pain for more than three months in the left foot, accompanied by throbbing deep within the ankle.
102 I understood from the plaintiff’s responses in cross-examination that, whilst an injection in her foot had eased pain in the foot, the symptoms involving leg pain, swelling and bilateral ankle problems continued to contribute to an inability to stand for long periods.[76]
[76]TN 64.
103 The plaintiff was examined by the Medical Director, St John of God Frankston Rehabilitation Hospital, Dr Shirazi on 7 October 2015, on referral from a general practitioner. As recorded by Dr Shirazi, the plaintiff’s medical background involved a several year history of fibromyalgia and complaint of widespread pain (“felt most in the feet and the hands, associated with swelling, some difficulty with sleep and ability to cope with heavy ADLS”[77]). This condition was managed with neuropathic pain medication, Lyrica and, more recently, Duloxetine. On this occasion, the specialist made arrangements for an inpatient Ketamine infusion and opioid wean and recommended an outpatient based therapy regime. Whilst the identity of the employer was not apparent from the report, it appears that in October 2015 the doctor understood that the outpatient based therapy regime would accommodate the plaintiff’s then full-time employment in hospitality (“full-time equivalent work in hospitality and she finds this work is fairly involved and not always sedentary”[78]).
[77]PCB 31-32.
[78]PCB 31.
104 The defendant relied on Dr Shirazi’s report, which, as submitted, supported the earlier diagnosis of widespread fibromyalgia, in the treatment of which the plaintiff was prescribed neuropathic pain killing and antidepressant medications.
105 It appears that on 23 April 2014, some months before the referral to Dr Thevanthasan, Dr Bhasin referred the plaintiff to orthopaedic surgeon, Mr Cunningham in the context of the plaintiff having “presented with acute onset of low back pain radiating down the both legs and has sensation of “compression on her bowels “no urinary or faecal incontinence reported, difficult exam as patient in pain but localised tenderness para spinal 11 to 15.”[79]
[79]PCB 26.
106 Mr Cunningham examined her on 24 April 2014, 29 May 2014 and on 19 June 2014. The salient features of Mr Cunningham’s correspondence and report dated 29 May 2014 and dated 8 March 2017 respectively, are summarised in the following points:[80]
[80]PCB 23-23B.
Ø the plaintiff had presented with a “long history of back and neck problems following a fall at work about six years prior to that”. Notably, based on the medical and documentary evidence summarised so far, this account did not adequately reflect the medical history as it related to spinal problems since the accident.
Ø The accident had caused coccygeal pain and lower back pain “and currently neck pain”, the latter involving pain radiating down the plaintiff’s left arm to her middle fingers in the C7 distribution. Notably, the medical and documentary evidence summarised so far did not establish a causal relationship between any symptomatic cervical spine condition more than six years on from the accident.
Ø The plaintiff reported episodes of back pain and another flare-up a few days before the examination on 24 April 2014. The plaintiff reported pain radiating down the lateral aspect of both thighs into the front of the thighs and apparently advised the specialist that her balance was deteriorating and she felt clumsy. Notably, the medical and documentary evidence summarised so far did not establish the relationship between “episodes” of back pain reported after July 2013 and injury sustained in the accident.
Ø On examination the plaintiff walked with a forward stooped gait with her hand held behind her back. She had been able to “easily sit up on the side of the examination bench” and she had been able to perform a straight leg raise in the seated position. Clinical examination had also revealed: Grade V power throughout the plaintiff’s upper limbs; a negative Hoffman’s test (reflecting the absence of neurological signs of compression in the cervical spine); intact and symmetrical reflexes; but no clonus (muscle spasm).
Ø The plaintiff had provided the MRI studies obtained in October 2008 and 2013. At that stage, Mr Cunningham felt that the symptoms for the left arm warranted a repeat MRI of the cervical spine.
Ø Consistent with the radiologist’s report, MRI studies of the cervical and lumbar spines obtained on 26 May 2014 had, Mr Cunningham said, revealed some normal for age degeneration with a mild disc bulge at the C5/6 level and a disc bulge at the L4/5 level, the latter compressing the traversing nerve root on the right-hand side in the lateral recess. The pathology at the C5/6 level could, Mr Cunningham said, account for some of the neck pain but not the arm symptoms reported and, the pathology at the L4/5 level might, he added, be responsible for the right leg pain.
Ø Mr Cunningham thought the plaintiff’s complaints of recent swelling and redness in her legs, raised the possibility of reflex sympathetic dystrophy.
Ø When last examined by Mr Cunningham on 19 June 2014 the plaintiff complained of left-sided hamstring pain, the cause of which Mr Cunningham was unable to explain.
Ø Essentially, Mr Cunningham could not offer a precise diagnosis (“It is difficult to reconcile her injuries with the cause since I have been unable to establish a firm diagnosis”[81]).
[81]PCB 23B.
107 I have accepted as accurate the defendant’s submission, to the effect that, this specialist’s evidence did not link the current complaints of back pain to the accident.
108 The plaintiff was referred by Mr Cunningham to another orthopaedic surgeon, Mr Choi, for a second opinion. Mr Choi examined the plaintiff and submitted a report to Mr Cunningham dated 23 June 2014.[82]
[82]PCB 24.
109 There were significant inaccuracies/deficiencies in the history on which this specialist’s findings were based. As, for instance:
Ø the absence of an informative history of complaint, investigation and treatment since the accident (“a long history of lower back pain and axial neck pain following (the plaintiff’s) injury 6 years ago at work which was a work cover injury from which she never recovered”).
Ø The recording of accident-related injury to the spine involving fracture of the plaintiff’s coccyx.
Ø The recording of a past medical history involving some anxiety disorder, without any significant medical problems.
110 It appears that the plaintiff complained of having recently developed significant lower back pain with right leg sciatica type of symptoms (“she had described a tightness and stretching pain over the posterior thigh without any sensory deficits or altered sensation or paraesthesia like features”). She reported pain on a daily basis, which affected “her work and after a long day standing or twisting about her work she gets worse which irritates sleep and affects her mood.” [83]
[83]PCB 24.
111 Complaint was also made of neck pain in the para scapular region and left arm pain, which the doctor assessed to be non-dermatomal and non-specific and appeared to him to be musculoskeletal-related axial neck pain.
112 Mr Choi described the changes revealed by the MRI imaging as “mild and age related” and “normal for the population group” to which the plaintiff belonged. He diagnosed an “overall chronic pain type of musculoskeletal disorder”, which had “set in since the injury 6 years ago,” and, in the treatment of which, he recommended “significant therapy and rehabilitation rather than any form of surgery or medications”.[84]
[84]PCB 24-25.
113 Whilst I have accepted counsel’s submission that a musculoskeletal disorder may be due to organic factors, in view of the known medical and recorded history, Mr Choi’s report did not provide a sufficient basis for finding a nexus between any general musculoskeletal disorder and the accident some six years earlier. In my view the findings made were, as the defendant submitted, consistent with Dr Thevanasan’s diagnosis of fibromyalgia in September 2014.
114 I have already mentioned the report of consultant physician, Dr Nayagam who saw the plaintiff in mid-2014, ostensibly for lung problems, which he attributed to her history as a smoker. His report to a general practitioner at the Rosebud clinic and dated 1 July 2014 did, nonetheless, mention complaint of “significant back problems due to an old injury which was reportedly recently exacerbated when the plaintiff adjusted a pillow at home.” Since then, so the account went, the plaintiff had “been admitted the Rosebud Hospital with back pain and placed on Endone and Endep etc.”[85] Other than the emergency admissions for abdominal pain, to which Dr Hodge drew our attention, the evidence did not indicate hospital admissions specifically in the treatment of back or neck pain. In the circumstances, I could not be satisfied of any link between these events or the medication prescribed on these occasions.
[85]PCB 25-26.
115 Dr Nayagam’s report did not advance the plaintiff’s application for leave.
116 It appears that further radiological investigation of the plaintiff’s cervical and lumbar spine and pelvis was obtained on 11 February 2016, at the request of a Dr Marakkalage from the Rosebud Clinic.[86] There was no report or explanation forthcoming about the background to this, the most recent of the investigations of the spine. The history recounted in the radiologist’s report, nonetheless, indicated that investigation of the spine and x-ray of the pelvis were likely prompted by a fall the night before (“Disc bulging, Left hip pain, fall last night”).
[86]PCB 17C.
117 As submitted by the defendant, the reported results of the CT scan, which were not analysed by the plaintiff’s medico-legal experts in 2016 or 2017, indicated mild degenerative changes in the lumbar spine:[87]
[87]PCB 17C.
Conclusion:
1. Mild central canal stenosis at L4/5 secondary to disc and facet degenerative changes.
2. Mild disc and facet degenerative changes L5/S1 without canal narrowing.
3. No substantial arthropathy nor suggestion of foraminal or central compromise over the cervical spine.
118 Under cross-examination, the plaintiff acknowledged that she had suffered a number of falls when visiting to Queensland in March 2016. Having heard the plaintiff’s evidence in this regard and read the documentary evidence summarised below, I concluded that, as submitted by the defendant, the records kept helped establish that prescription of Lyrica was likely in the treatment of fibromyalgia. The documentary evidence comprised the following:
Ø an entry in the clinical records of the Anzac Square Medical Centre in Brisbane, dated 3 March 2016.[88] This entry recorded an incident the day before, when the plaintiff slipped and fell backwards and “hit flat of back coccyx R shloulder (sic)”. The plaintiff reported she was taking Panadeine Forte and Lyrica, the latter for fibromyalgia. Examination of the right shoulder apparently revealed difficulties in the movement of the shoulder. The treatments recommended had involved prescription of Panadeine Forte, taking extra Lyrica and, if possible, massage. Without specifying what part or parts of this were inaccurate, under cross-examination the plaintiff indicated that the description of the circumstances of the fall was incorrect.
[88]DCB 64.
Ø An Incident Report recording an incident at 2 AM on 8 March 2016 when the plaintiff slipped and fell in the lobby of an apartment building.[89] The record made suggests that the plaintiff injured her back and, whilst she had accepted the offer of an ice pack, it was also recorded that the plaintiff had declined medical treatment. Under cross-examination, the plaintiff said that she had been sent to the doctor after she slipped on water as she exited the elevator and jarred her back.
Ø An extract from the Royal Brisbane and Women’s Hospital Emergency Department records, recording an attendance at this hospital in the early hours of 10 March 2016, after the plaintiff slipped and fell “at 2 AM within impact to posterior head, laceration, headache and drowsiness.”[90] In addition to describing a fall in a hotel two days earlier, the notes made further confirmed that the laceration was stitched and that the plaintiff had suffered a closed head injury and likely concussion, without losing consciousness.
[89]DCB 68-69.
[90]DCB 65.
The plaintiff’s recent medico-legal evidence
119 The plaintiff placed particular reliance on the evidence of her medico-legal specialists, neurosurgeon, Dr Aliashkevich, who examined her in November 2016, and occupational physician, Dr Horsley, who examined her in January this year.[91] I have already mentioned Dr Aliashkevich’s diagnoses. He concluded the plaintiff had accident-related chronic mechanical neck and low back pain in the context of the plaintiff having suffered a posterior annular tear at the L5/S1 level and an aggravation injury of a posterior bulging disc at the C5/6 level, the latter without neural compromise. Dr Horsley concluded the accident had resulted in significant injury to the cervical and lumbar spine.
[91]PCB 36-38 and PCB 54-64.
120 The defendant submitted, in my view correctly, that the opinions expressed in these reports, were predicated on an unreliable history. The matters the defendant submitted weighed against reliance on the opinions each expert expressed included the following:
Ø an incomplete and inaccurate history, as it related to the onset of neck symptoms and, as it related to pre-existing back and neck symptoms;
Ø the absence of reference to the three-year gap in treatment of back symptoms between 3 September 2008 and 5 August 2011 and the incorrect assumption of an actual or assumed history of significant, continuous, long-term pain (neck or back pain or both) since the accident;
Ø the fact that there was reliance on the results of radiology obtained in September 2008, December 2013 and May 2014, none of which was contemporaneous with the accident. And the fact that Dr Aliashkevich had concluded, after viewing the MRI studies obtained in 2014, that the previously described small dorsal annular fissure at the L5/S1 level had healed. I would add here, that Dr Horsley did not have the September 2008 radiology of the cervical spine. Moreover, she appeared to act on the assumption that the annular fissure identified in December 2013 at the L5/S1 level, which Dr Aliashkevich reported had resolved by May 2014, was “likely an ongoing pain generator”.[92] No explanation for the failure to provide either specialist with the CT scans obtained on 11 February 2016, was forthcoming;
[92]PCB 62.
Ø the failure of Dr Aliashkevich’s report to mention the fibromyalgia diagnosis. Whilst he also spoke of the subsequent development of a “chronic multifactorial pain syndrome”, this omission suggested that the neurosurgeon had not also considered the role of a significant and unrelated condition in producing the consequences of which the plaintiff complained. Notably, Dr Horsley understood that the initial referral to the Barbara Walker Centre was on the basis of the right wrist condition (the result of a recent fall); the fibromyalgia condition and the concern that the plaintiff was developing a complex regional pain syndrome, with the primary focus of the pain management programs being on the wrist and fibromyalgia conditions;
Ø the fact that the reports were prepared after only one examination by each specialist more than eight and half years after the accident.
121 In this case, the absence of a proper history was of particular significance where, for example:
Ø Dr Aliashkevich relevantly opined that, based on the injury to the spine only, the plaintiff was permanently unfit to return to her pre-injury work in the catering industry, although she may be suitable for alternative employment (potentially for two hours per day, three days per week) that did not involve: running, bending to below knee level, stooping, lifting weights exceeding 5kg or 2.5kg depending on whether the load is more than 30cm from the body, pushing and pulling of more than 10kg horizontal moving force and exposure to significant whole body axial vibration.
Ø Dr Horsley assessed numerous and significant restrictions on the plaintiff’s ability to perform particular tasks in a working environment (and it follows in the plaintiff’s day-to-day environment) by reason of either her back or neck conditions and opined that, whilst the lack of capacity was multifactorial, had there only been back and neck injury, there may have been some potential for part-time work in the vicinity of 15-20 hours per week. Importantly, based on the plaintiff’s overall presentation, Dr Horsley did not believe the plaintiff had any realistic current capacity for work. Her preference was for re-assessment of this after completion of the pain management program firstly, to determine whether further pain management had increased the capacity for work and, secondly to assess the impact of the wrist injury on the plaintiff’s capacity for work.
122 In all, I concluded that, on balance, the earlier records and reports of treating health professionals provided a more reliable basis from which to assess causation and the nature of any accident-related injury to the spine.
Findings
123 Based on my analysis of the evidence, the plaintiff failed to establish on the balance of probabilities:
Ø that the accident had also involved injury at the level of the cervical spine;
Ø that injury to the lower back, as a consequence of the accident, involved more than a likely soft tissue injury from which the plaintiff had substantially recovered by 22 August 2008, subject to the requirement that she avoid heavy lifting;
Ø the extent to which, if any, the pain and suffering and loss of earning capacity consequences of which she complained (as earlier summarised in this judgment) were attributable to injury to the spine in the accident.
124 I propose to dismiss the application for leave.
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