WORKCOVER DIVISION Case No.D S GARNETT LATROBE VALLEY REASONS FOR DECISION ---

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1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT LATROBE VALLEY WORKCOVER DIVISION Case No.D SHARON MESCH Plaintiff v WOOLWORTHS LIMITED Defendant --- MAGISTRATE: S GARNETT WHERE HELD: LATROBE VALLEY DATE OF HEARING: 23 & 24 OCTOBER 2013 DATE OF : 14 NOVEMBER 2013 CASE MAY BE CITED AS: MESCH v WOOLWORTHS REASONS FOR --- Catchwords: S 109 Rejection of Claims alleged cervical spine injury arising out of or in course of employment on 23 August 2011, 1 December 2011 and 28 March 2012; lack of initial complaint of cervical spine pain to treating doctor or failure of doctor to accurately record complaints credibility of worker an important & decisive factor ss 102, 103 & 107 relied on by the defendant. --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr N Horner Maurice Blackburn For the Defendant Mr I McDonald Sparke Helmore

2 HIS HONOUR: 1 Ms Mesch is aged 46 years and commenced employment with Big W in 2002 as a footwear assistant. She was engaged in merchandising which involved; serving customers, loading and retrieving stock from the warehouse; lifting boxes; and, loading and unloading pallets and mobile cages with stock. She alleges that she sustained injuries to her back, neck, left and right arms and shoulders as a result of three incidents in the course of her employment on 23 August 2011,1 December 2011 and 28 March Ms Mesch lodged four workcover claims relating to these alleged injuries dated 1 September 2011, 13 December 2011, 29 February 2012 and 15 August The defendant accepted liability in relation to her first claim which recorded that she sustained a lower back muscle strain on 23 August 2011 but rejected liability for the subsequent claims which alleged upper back, neck, left upper arm and lower back injuries on 1 December 2011 and 28 March 2012 and which sought to expand the injuries alleged to have been sustained on 23 August 2011 to her neck, upper back and left and right arms. 2 Ms Mesch claims weekly payments of compensation for the period 1 December 2011 to March 2012 at the applicable rate for no current work capacity and thereafter at the appropriate partial incapacity rate to 25 June 2012 together with reasonable medical and like expenses associated with her cervical spine condition. It was agreed by the parties that the defendant has paid for all treatment relating to her back injury and that liability for the initial claim remains open. 3 The defendant disputes that Ms Mesch sustained injuries to her neck, shoulders or arms on 23 August,1 December 2011 and 28 March Ms Mesch gave evidence as did Dr Edwards, her treating general practitioner. The parties tendered numerous documents and medical reports and made 1

3 extensive oral submissions. Ultimately, the issue for the court to determine is whether Ms Mesch sustained injuries to her neck, shoulders and arms as she alleges notwithstanding the lack of contemporaneous records of complaint to her treating doctors and the incorrect history she alleges was recorded by them. The evidence in this case revealed the importance of injured workers giving a complete and accurate history to treating medical practitioners as to the precise cause of their injury and totality of symptoms and the importance of treating practitioners in taking care in recording those complaints accurately. When considering the evidence in this matter I have taken into account the recent comments made by Kaye AJA in Woolworths Limited v Warfe 1 ; it is important to bear in mind the limitations which attend the reliance, by a court, on the records by medical practitioners, in their reports, of the histories and symptomatology described by plaintiffs to medical practitioners. Those histories are an important part of the information, upon which the medical practitioner forms a view as to matters such as the diagnosis and prognosis in relation to the plaintiff s injuries. However, rarely, do the histories, contained in medical reports, purport to be a verbatim record of what the plaintiff has said to the medical practitioner on examination. They are often, at best, an approximate paraphrase or précis of the account given by the plaintiff to the medical practitioner. Sometimes, the discrepancy, between the account recorded by the medical practitioner, and the evidence of the plaintiff, cannot be adequately explained, even taking into account the limitations which attend the recording by a medical practitioner of the history given to the practitioner by the plaintiff. Nevertheless, it is important to bear in mind the nature and purpose of the history, recorded by medical practitioners in their reports, and of the limitations on their accuracy which I have just described. 5 Ms Mesch gave evidence that at approximately 4 p.m. on 23 August 2011, she was packing fixture arms and stacking them in a confined area in the fixture room. She told the court that she had to squeeze through an area between base boards and a large merchandising fixture and in order to do so arched her back causing pain from the top of her neck down her back. She 1 [2013] VSCA 22 at para

4 said that she yelled out for help and went to the manager s office where the incident was recorded by others in the incident report book. She told the court that during the night she experienced pain from the top of her neck to her low back although was able to work performing normal duties the following day despite continuing to experience pain. Ms Mesch gave evidence that she continued working and then on 29 August her neck and back pain increased and she began to suffer left and right arm pain and restriction of movement as a result of pulling a cage containing stock. She told the court that she went to the manager s office and laid on his floor until arrangements were made for her to see the defendant s doctor, Dr Edwards. 6 Ms Mesch gave evidence that Dr Edwards provided her with a workcover certificate for restricted duties and prescribed anti inflammatory medication. She said that she continued working on restricted duties which involved answering phones in the fitting room, attending customers and security tagging and was also referred for physiotherapy treatment for her low back condition. She told the court that she lodged a workcover claim form dated 1 September for which liability was accepted by her employer. She told the court that she was given a full clearance certificate by Dr Edwards on 17 October 2011, although she was continuing to experience back pain. 7 Ms Mesch gave evidence that she sustained further injury to her neck and low back on Thursday, 1 December She told the court that she was taking a mobile cage from the storeroom to the floor and as she was trying to manoeuvre a box that had become jammed above head height she felt a sharp pain at the top of her neck down to her low back. She told the court that she reported the incident to Daniel Howell, the Assistant Store Manager, who made inquiries with others as to whether she was required to complete a new workcover claim form. She subsequently lodged a further claim form dated 13 December, alleging that she had sustained injuries to her upper back, neck, left upper arm and lower back and referring to her earlier claim noting that her 3

5 condition had progressively got worse. She confirmed that the defendant rejected this claim on 10 January Ms Mesch told the court she attended Dr Saha at Dr Edward s clinic on Tuesday, 6 December and she prescribed anti inflammatory medication and provided a workcover certificate of incapacity. Ms Mesch gave evidence that as a result of severe neck pain she attended the Latrobe Valley Regional Hospital on 10 December. She told the court that as a consequence of her symptoms she remained incapacitated for work until March 2012 whereby she re-commenced employment on modified duties in the fitting room 10 hours per week gradually increasing until she returned to pre injury hours on 25 June 2012 with ongoing restrictions. 8 Ms Mesch gave evidence that she lodged a further workcover claim dated 29 February 2012, referring to the incident on 23 August 2011 including her neck as a body part effected on the advice of representatives of the defendant. She confirmed that the defendant rejected this claim on 27 March on the basis that she did not sustain an injury to her neck on 23 August 2011 and relying on s 102 and s 103 of the Act. 9 Ms Mesch told the court that she lodged a further workcover claim form dated 15 August 2012, alleging injuries to her neck, shoulders and upper back occurring on 28 March She told the court that on this date she was crouching down putting socks on a gondola when the panel attached to it fell towards her and as an instinctive reaction she reached out to prevent it from hitting her. She told the court that she reported the incident to Daniel Howell and Brayden O Hearn and attended Dr Edwards who prescribed pain killing medication. Ms Mesch said she had one day off work for which she was paid and completed the claim form in August on the advice of her lawyer. She confirmed that her claim was rejected by the defendant on 16 October 2012 who refused to accept that she had a special excuse for not lodging the claim as soon as practicable after her incapacity became known pursuant to s 103 (7) & (8) of the Act. 4

6 10 Ms Mesch told the court that during 2012 she only received treatment for her back condition because her employer had not accepted liability for her neck injury. She said that she continues to receive treatment in the form of physiotherapy for her back condition which is paid by her employer under the first claim she lodged. She told the court she takes pain killing medication when required and continues to work 26.5 hours per week on modified duties. She said her neck is quite sore and everyday activities increase her pain level and she also experiences occasional left arm pain and pain including numbness and a tingling sensation in the middle fingers of her left hand which she has experienced since 23 August 2011 and which have got worse since 1 December She told the court that her back pain has improved but it depends on her level of activity as she finds that bending and squatting aggravates her pain. Ms Mesch said that Dr Edwards has recently referred her to a neurologist to investigate her neck symptoms. 11 Ms Mesch was subject to a detailed and thorough cross examination particularly in relation to the histories she gave to doctors on presentation. Prior to discussing her evidence in cross examination, it is opportune to provide details of those attendances and the histories recorded in the clinical notes. The clinical records from the Hazelwood Health Centre, Mid Valley Family Medicine Centre and Latrobe Valley Regional Hospital record the following relevant attendances: - 29 August 2011: Dr Edwards back injury at Big W last Tuesday, carrying some brackets. Took voltaren rapid. Had some assistance lighter duties. ceased now has WHOLE BACK pain took analgesics today as pain overwhelming. Prescriptions Tramal Capsule, Arthrexin Capsule Certificate Workcover. The workcover certificate provided by Dr Edwards cited; lower back injury muscle strain September 2011: Dr Edwards requested a CT Scan of the lumbar spine. Notation: back strain 2 weeks ago with continuing pain. 5

7 - 14 September 2011: CT Scan of lumbar spine indicated a small L5/S1 posterior disc bulge, a L4/5 posterior disc bulge and a small paracentral posterior disc protrusion at T11/T12. In conclusion the radiologist reported severe L5/S1 spondylosis and bilateral L5 nerve root impingement in the exit foramina is present without significant spinal canal stenosis. An x-ray of the thoracic spine did not reveal any abnormality October 2011: Dr Masoud sore, stiff neck, headaches, after waking up from sleep, nil fever or sore throat, had work related injury last month and CT showed lumber (sic) spondylosis and disc prolapse, much improved, back to work neck: not red, not swollen, not hot, tender, no laceration, no contusion, no abrasion, no fracture, restriction present, no crepitus patient advised regarding problems. discussed cervical muscle strains. Rest, topical heat. panadol PRN. review if no improvement or developed new symptoms. -14 November 2011: Dr Edwards recurrence of back pain. needs her pilates. - 6 December 2011: Dr Saha back pain for 4/7 had some heavy lifting at home in the weekend musculo skeletal not red, not swollen, not hot, tender, no laceration, no contusion, no abrasion, no fracture, no effusion, no restriction, no crepitus, full ROM. Medication added Naprosyn tablet medical certificate created. - 7 December 2011: Dr Saha diagnostic imaging requested: CT spine cervical, CT spine thoracic referral to Mr George Owen Medical Certificate December 2011: Dr Burbano Vesga Latrobe Regional Hospital patient complaining of severe neck and shoulder pain ongoing for 1/52. Nil mechanical fall. Pt has previous work injury which she has returned to work gradually but still has neck pain. seen by GP on Tue (6 December). Pt has been taking naproxen with nil relief. Pt now unable to sleep. Awaiting MRI on Mon. pain 8/10 pt states unable to turn head at all. Pt states has tingling at 6

8 tips of fingers L side with throbbing in muscles, restricted movement. The handwritten clinical notes of the doctor state; complaining of neck pain over 7/7. The pt had a workcover injury since then unable to perform neck movements December 2011: Dr Edwards has now developed c spine pain. progressively developed. Now includes c spine. Medication added: Endone tablet 5mg 1 b.d to be used for severe pain only Oxycontin SR tablet 10 mg 1 b.d. Diazepam tablet 5 mg Vic W/Certif to Dr C Tan noting neck injury cervical disc prolapse fit for alternative duties December 2011: MRI Cervical Spine: continuous neck pain that is limiting daily activities. No history of trauma. Background spondylo-arthritis. Conclusion: A moderate sized left posterolateral disc herniation at C4-5 compresses thecal sac and cord with mild myelomalacic change. Mild left posterolateral disc bulge at C6-7. Exit foraminal stenosis in mid lower cervical spine on the left particularly at C4-5 level due to the larger disc herniation. Radiologist: Dr Huin December 2011: Dr Edwards now clearly recalls an incident pulling large boxes down from a high shelf at work kg. developed a stiff neck after that. - 5 January 2012: Dr Edwards Workcover case. Reviewed and new certificate provided. Repeat prescriptions provided. Has seen Dr Buzzard for independent assessment. Recalls she had to lie on floor after the incident in August whilst taking boxes off the shelf. Had to lie on the floor for about an hour, could not move arms. Suggestive of a cervical lesion in addition to lower back injury. W/Cert to Dr Tan January 2012: Dr Edwards discussed with De Silva (Ellen D Silva Senior claims officer with defendant) Sharon present. Advised was always lumbar and cervical. Will reconsider acceptance of combined claim. 7

9 - 29 February 2012: Dr Edwards pain has reduced in neck and lower back after physio/pilates. Feels fit enough to return to work on modified duties March 2012: Dr Edwards - was putting socks on a side panel today at Big week which toppled. Sharon tried to stop it. Hurt her neck and shoulders. Mid thoracic pain. feels tight everywhere. right side trapezius muscle pain. - 2 April 2012: Dr Edwards pain arising from the sock accident. Has settled but is developing muscular neck ache leading to headache October 2012: Dr Edwards Sharon attended to request a repeat workcover certificate. She is also asking me if I wouldn t mind doing a statutory declaration pointing out that in fact she did mention her neck injury in her initial consultation although I did not make a note of it in writing. I am happy to do this to assist in further. Sharon will bring in statutory declaration next time. 12 As a consequence of her attendance with Dr Edwards on 16 October 2012, Dr Edwards provided a Statutory Declaration on 22 January 2013 to the effect that on 29 August 2011 she attended and complained of pain down her lower back and did raise concerns over feeling pain in her upper back, neck and shoulder. He went on to declare that; On subsequent reflection, I believe that I should have issued a certificate relating to her neck, upper and lower back, and, Regrettably, my interpretation of the injury in writing was related only to the lower back whereas, in fact, the discussion related to the other areas mentioned above. 13 In cross examination, Ms Mesch agreed that the incident report and workcover claim form relating to 23 August 2011, all workcover certificates to 17 October 2011, the physiotherapy treatment she received and the initial radiological investigations all concerned her low back condition without reference to any neck complaint. She also agreed that Dr Edwards cleared her as fit to return to normal duties as from 17 October She agreed that 8

10 the mechanics of the injury sustained on that date was as a result of squeezing through a congested area whereby she had to arch her back. Ms Mesch estimated that she performed this manoeuvre on approximately 10 occasions over a 5 minute period before experiencing pain. She disputed telling Dr Edwards on 29 August that her injury arose as a result of carrying brackets and was adamant that she told him she was experiencing whole back pain from the top of her neck to her low back. She told the court that she only recorded lower back, muscle strain on her workcover claim form dated 1 September 2011 because Dr Edwards told her she had most likely sustained a muscle strain in her low back. 14 Ms Mesch gave evidence that despite being cleared fit for normal duties by Dr Edwards on 17 October, she continued to experience pain in her neck and low back. She agreed that 2 days after being cleared she attended Dr Massoud complaining of a sore and stiff neck and headaches after waking up from sleep. She disputed the suggestion that this was the first episode of neck symptoms. 15 Ms Mesch agreed that following the incident on Thursday 1 December 2011, she did not attend a doctor until 6 December. She gave evidence that after the incident Daniel Howell tried to arrange an appointment with Dr Edwards but he was unavailable and the first available appointment was with Dr Saha at the clinic in the afternoon of Tuesday 6 December. Ms Mesch gave evidence that she provided Dr Saha with a history of the incident at work on 1 December and said that Dr Saha got it wrong when she failed to record it in her notes and when she recorded that had back pain for 4/7 and had some heavy lifting at home on the weekend. Ms Mesch denied that she had engaged in heavy lifting at home over the preceding weekend. Ms Mesch disputed that she was attempting to implicate her neck condition in a work related claim for back injuries. 16 Ms Mesch was referred to the entry made by Dr Edwards on 21 December 9

11 2011 that; now clearly recalls an incident pulling large boxes down from a high shelf at work kg. developed a stiff neck after that. She told the court that she believes that she gave him a history when she first saw him on 29 August 2011 that she was pulling a cage and had pain in her neck and could not move her arms. She was also referred to an entry by Dr Edwards on 5 January 2012 where he recorded; recalls she had to lie on the floor after the incident in August whilst taking boxes off the shelf. Had to lie on the floor for about an hour. Could not move arms. Ms Mesch gave evidence that she did not tell Dr Edwards that on 5 January but on some other date which she believes was 29 August. When questioned why she did not give this evidence during examination in chief, she responded by saying that she had a witness to the event, being Daniel Howell. 17 Ms Mesch agreed that she was assessed by Mr Buzzard on behalf of the defendant on 4 January 2012 and could not recall providing him with a history of pulling large boxes down or that she had to lie on the floor for about an hour after the incident in August and could not move her arms. 18 Ms Mesch agreed that she lodged her third workcover claim form dated 29 February 2012 for the purpose of including the alleged neck injury occurring on 23 August She agreed her employer denied liability by way of correspondence dated 27 March She disputed that she lodged her fourth claim form dated 15 August 2012 alleging a further injury sustained on 28 March 2012 on the basis that she was angry that her third claim had been rejected. Ms Mesch also agreed that she is not receiving any active treatment for her neck condition but was recently seen by Dr Subramanja, Neurologist, on referral from Dr Edwards. 19 In re-examination, Ms Mesch informed the court that she did not lodge her fourth claim form relating to the incident on 28 March 2012 until August 2012 on the advice of the Acting Store Manager, Shaun Nester who had told her that if she did lodge it she may not be able to return to work with the 10

12 defendant. Ms Mesch also told the court that she attended Dr Edwards on 29 August 2011 because earlier that day she went to grab a cage and felt neck pain and was unable to swing her arms. She told the court that she went to the office and reported to Daniel Howe and had to lie on the floor on pillows to ease her pain. She said that she suggested to him that an appointment be made with Dr Massoud but as Dr Massoud was away Daniel suggested she see Dr Edwards and she consented to him being present during the consultation. Ms Mesch told the court that she had no involvement in the investigation by her employer into the incident occurring on 1 December 2011 including the fact that she was not requested to make a statement as to how the injury occurred. 20 Dr Edwards gave evidence and medical reports prepared by him and dated 4 January 2012, 24 September 2012 and 17 October 2013 together with the clinical notes from his practices were tendered. In his first report to Ms D Silva at Woolworths dated 4 January 2012, Dr Edwards confirmed that the first mention of neck symptoms appeared in the notes made by Dr Massoud on 19 October 2011 and an urgent MRI scan of the cervical spine was arranged. He also reported that Ms Mesch told him on 21 December 2011 that her neck symptoms were caused by pulling large boxes down from a high shelf. He reported that Ms Mesch told him they weighed between kg and were difficult to manoeuvre. Dr Edwards reported that; there is no doubt that Ms Mesch s presentation in August related solely to her lower back injury and no mention was made at the time of any significant neck pain. However, I note that on 19 October, she mentioned it specifically to Dr Masoud when she advised that she had a stiff neck and headaches. Dr Edwards also reported that Ms Mesch recalled a specific instance pulling down large boxes but was unable to name a date on which a specific injury occurred. Dr Edwards went on to state that he suspected she injured her upper and lower spine at the same time, probably in August 2011, but the neck symptoms were not apparent until December (October). 11

13 21 In his second report to Woolworths dated 24 September 2012, he noted that he had been Ms Mech s treating doctor for a period of 2 years. Dr Edwards reported that Ms Mesch attended on 28 March 2012 with a history of sustaining injury to her neck, shoulders and middle/upper back when a display back board collapsed and she attempted to stop it from falling on her. He diagnosed a soft tissue injury to her upper back and neck which aggravated her pre-existing condition. In his third report dated 17 October 2013 to Ms Mesch s lawyers he noted that she has continued to work with restrictions and has always maintained a significantly positive outlook and has been consistently impressive in her attitude towards returning to work. He reported that she has been involved in only one significant injury episode on 23 August 2011 and that she injured both her lumbar and cervical spines at that time. He stated that her cervical spine worsened between August and October 2011 and was not particularly painful during the early stages of her injury. 22 During his evidence, Dr Edwards confirmed that when he saw Ms Mesch on 29 August 2011 she was accompanied by the defendant s Assistant Store Manager, Daniel Howell. He told the court that Ms Mesch had provided him with a history that 6 days previously she had injured her back when pulling out boxes which required her to arch her back. Dr Edwards told the court that although his clinical notes on 29 August do not refer to a complaint of cervical pain, he is of the opinion that her neck symptoms developed over the following months. Dr Edwards told the court that he made a Statutory Declaration on 22 January 2013 because his failure to record her neck symptoms on 29 August had caused Ms Mesch distress as she was adamant that she had complained to him of those symptoms on that date. He told the court that on 29 August he was probably under time pressure and was running late and failed to record a history of all of the symptoms she complained of. 23 During cross examination, Dr Edwards told the court that he began practising 12

14 in 1983 and he tries to be careful when making notes concerning a patient s attendance regarding history, diagnosis and treatment. However, he qualified that statement by informing the court that he is usually works under extreme time pressure. He agreed that over a period, Ms Mesch was dogged and regularly impressed upon him that she did in fact complain of neck symptoms during her consultation with him on 29 August He told the court that he cannot recall precise details of that consultation but believed the discussion centred around her back pain and that if she did mention neck symptoms he did not believe they were significant enough to warrant him recording them in his notes. Dr Edwards confirmed that he is of the opinion that Ms Mesch did sustain injury to her neck and back at the same time and believes that the mechanics of injury whereby she was required to squeeze between objects and arch her back is consistent with a musculo ligamentous sprain to the back which was his initial diagnosis. He agreed that initially, the certificates he provided, the radiological investigations he arranged and the physiotherapy treatment recommended by him all concentrated on her back condition. He also agreed that as at 17 October when he cleared her as being fit for normal duties there was no record made by him of her complaining of symptoms or signs consistent with a cervical spine injury. 24 Dr Edwards told the court that he regards Dr Masoud as a competent and careful doctor and agreed that the records indicate that the first complaint of neck pain was recorded by Dr Masoud on 19 October 2011 with Dr Masoud noting the neck pain developed spontaneously after sleep. He also agreed that at the next consultation he had with Ms Mesch was on 14 November as a result of a recurrence of back pain which he described as a relapse in her condition. Dr Edwards told the court that he also regards Dr Saha as a careful and competent doctor and confirmed that she recorded a history on 6 December that Ms Mesch complained of back pain 4 days previously due to heavy lifting at home over the weekend. He agreed that he has not discussed this history with Ms Mesch but noted that Dr Saha then organised for Ms 13

15 Mesch to undergo a CT Scan of her cervical spine on 7 December so there must have been some issue with her neck. 25 Dr Edwards agreed that according to the admission notes of the Latrobe Regional Hospital on 10 December 2011, Ms Mesch provided a history of severe neck pain over the past 7 days without mentioning the incident on 23 August and agreed that when he saw her on 12 December she did not tell him of her attendance at the hospital or the history as recorded by the Hospital. Dr Edwards also agreed that when Ms Mesch attended on 21 December 2011 she provided him with a new history of injury unrelated to the incident on 23 August for which he then decided there was a connection between her neck symptoms and her employment. He agreed that the history she gave on that date was inconsistent with the mechanics of the injury she had previously described to him as occurring on 23 August 2011 but believed that she was trying to tell him the second part of the story as to what occurred on that date. Dr Edwards also agreed that on 5 January 2012, Ms Mesch first told him of the lying down on the floor and being unable to move her arms episode occurring in August He told the court that he writes down the history as I am told. He agreed that if that history is correct it is suggestive of a cervical disc prolapse injury. 26 In re-examination, Dr Edwards gave evidence that he was not given a history by Ms Mesch of any lifting incident occurring at work on 1 December He said that it is typical for a disc prolapse to occur following a traumatic event. 27 Ms Mesch tendered a Safety Incident Report relating to the incident occurring on 1 December The document indicates that Ms Mesch was working in the Men s Shoe Section at when she injured her upper back and neck and that it appears to be related to past injury sustained on 29/08/11 while in the fixtures room. The document also indicates that the investigation into this incident commenced on 14 December (the date on which she lodged her 2 nd workcover claim form) and included a finding that; We believe that this injury 14

16 is due to Sharon over-com per sating (sic) and placing added strain on her upper back and neck in order to protect her lower back that was injured in August. It also records that the following practices contributed to the incident occurring; lifting, loading, placement. The Acting Store Manager signed off on the report. 28 Ms Mesch also tendered the handwritten clinical notes of Mr Yeates, Physiotherapist, in relation to her attendances at his clinic on 2 September 2011, 7 September 2011, 7 October 2011, 9 December 2011 and 28 December The records reveal that Ms Mesch attended on 2 September 2011 and provided a history of experiencing spasm lower back on Tuesday 23 August 2011 when putting fixtures away into tight space. On 7 September it appears Ms Mesch provided a history of having a sore neck to T4 spine tightness..agg(ravated?) work. On 7 and 9 December, it appears that Ms Mesch has complained of pain in her shoulder, neck and back. 29 A medical report from Dr Caroline Tan, Neurosurgeon, to Dr Edwards dated 7 October was tendered. She reported that Ms Mesch provided a history of an injury to her back at work on 23 August Ms Mesch told her that the injury occurred as she was carrying a merchandising arm through a cluttered room to the back door of a shop and had to arch her back to get past and then her back seized up and she experienced acute pain in the back. Dr Tan recorded that; Originally she had pain from the top of her neck down her spine. There was also pain around the sides of her chest and on swinging her arms. Dr Tan noted that the CT Scan dated 14 September 2011, indicated degenerative changes in the lumbar spine and that there was no indication for surgery. She expected that Ms Mesch would be able to return to normal duties and did not require any follow up. 30 Ms Mesch tendered reports from Mr Thomas, Physiotherapist, dated 8 May 2012, 11 July 2012 and 14 October He reported that Ms Mesch was first seen on 6 January 2012 complaining of neck, thoracic and lumbar pain. 15

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