WORKCOVER DIVISION Case No. A P. LAURITSEN MELBOURNE REASONS FOR DECISION ---

Transcription

1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE WORKCOVER DIVISION Case No. A VINCENZINA VALERI Plaintiff V DEPARTMENT OF HUMAN SERVICES Defendant --- MAGISTRATE: P. LAURITSEN WHERE HELD: MELBOURNE DATE OF DECISION: 1 AUGUST 2011 CASE MAY BE CITED AS: VALERI v DEPARTMENT OF HUMAN SERVICES REASONS FOR DECISION --- Catchwords: Workplace assault injury to the cervical spine (neck) whether relevant injury arose out of or in the course of employment compensation for pain management programme sought notice to deny liability for rehabilitation outpatient costs set aside. --- APPEARANCES: For the Plaintiff For the Defendant Solicitors Slater & Gordon Thomsons Lawyers

2 HIS HONOUR: Introduction 1 On 28 April 2006, Vincenzina Valeri (Valeri) was assaulted at work and injured her right arm and leg. These injuries healed. She says she also injured her neck, which the defendant denies. Primarily, she seeks the payment of a short-term pain management programme. Although her complaint seeks weekly payments, she is in receipt of weekly payments and has been since Circumstances 2 Valeri is now 36. She is qualified to work with intellectually disabled persons. In 2000, she started with the defendant. In 2004, she started working from three houses in Glenroy, Coburg and Preston On 28 April, at the Coburg premise, Valeri confronted an intellectually disabled, 14-year-old patient called Anthea. Anthea threw a brick at her, striking her right knee. Valeri went inside and got her supervisor to help. Each took one of Anthea s arms. Anthea bit Valeri s right arm, breaking the skin. They wrestled Anthea to the ground. Valeri sat on Anthea s back and held her arms. The supervisor held an arm. Anthea was upset. She screamed, struggled and thrashed about for 45 minutes. Ultimately, a male co-worker arrived. Then the police and an ambulance arrived. The police handcuffed Anthea. The ambulance took her to hospital. Valeri suffered cuts and bruising to her knee, and bruising and bleeding to her arm. After work, she attended her general practitioner, Bernard Crimmins. He dressed the arm wound, ordered blood tests for Hepatitis B and C and HIV, and prescribed antibiotics. She had a few days off work before returning performing modified duties. 4 On 1 May, Valeri returned and saw another general practitioner, Patricia Fricker. Under the heading muscular strain, Fricker noted: Right forearm bruised but no sign of infection, skin lesion healing well. Bruise is 95 x 65mm. [The] day after she noticed soreness [in] fingers, wrist, arms, across top of shoulder blades and lower back all bilateral and aggravated on movement. All but low back are gradually improving but still evident. Was kicked in middle of low back and this is still a little sore. (just like has been to the gym) O/E no bruising in back, sl(ight) tender over spinous process about L3. Good range of low back movement. [Certificate] for duties excluding manual handling. 1 to 7 May No specific treatment was prescribed. 6 On 2 May, Valeri completed a claim for compensation. Her answer to question 30 was explored in cross-examination: 1 Interestingly, the defendant raised the expiry of the second entitlement period in its notice of defence. Since this issue has not been the subject of a decision by the Victorian WorkCover Authority, it is not justiciable in this Court. 1 DECISION

3 30) Have you any previous pain/disability in the area of your present injury/condition? Pain in upper + lower back. 7 This is a surprising answer given her earlier answer that her injuries involved her arms and legs (Question 9). Her answer to question 30 is ambiguous. Does she assert an injury to her upper and lower back on 28 April or that prior to that date she experienced pain or disability in those areas? 8 Between 11 May and 14 July, Valeri sought treatment for unrelated complaints on four occasions. Between May and October, she did not seek treatment for her arms or shoulders. On the advice of another general practitioner, Prashima Ilango (Ilango), she rested, underwent physiotherapy and massage and took NSAIDs 2. She heeded that advice because she believed her other problems were due to muscle strain. 9 On 20 October, in the context of other complaints, Ilango noted Intermittent low back pain since accident few years ago. During cross-examination, Valeri denied any earlier accident affecting her back and could not explain Ilango s entry. However, in re-examination, she explained an entry on her doctor s records in March 2003 as an episode of lower back pain due to her work. Since I did not hear from Ilango the accuracy of this entry is doubtful. 10 On the same day, Valeri underwent a CT scan of her entire lumbosacral spine. The radiologist noted Minor broad based disc bulging is present at several levels as described. No localised disc prolapse has been demonstrated. Valeri was referred to, and underwent, physiotherapy for about 6 months Valeri ceased work again in January, returning in February. 12 On 5 February, Valeri attended Lisa Ellis, physiotherapist, complaining of ongoing neck, forearm, wrist and low back pain. Ellis felt that Valeri s main problem did not come from her lumbar spine but rather her poor scapular and pelvic stability due to weak musculature in the core area. She started a programme, which included manual therapy and ultrasound to help mobilise and clam down her cervical and lumbar spines. By 14 February, Ellis thought Valeri was making good progress and hoped her symptoms would be relieved fairly quickly. 13 On 6 March, the results of nerve conduction studies of both arms were within normal limits. There was no electrophysiological evidence of carpal tunnel syndrome. 14 On 23 March, Valeri underwent a MRI of the cervical spine, which revealed 3 : 2 Exhibit H report of Ilango dated 26 December Exhibit AC report of Austin Radiology dated 23 March DECISION

4 At C5/6, there is a degenerative disc with loss of disc height and disc dehydration. This is associated with a broad based disc bulge at C5/6 which narrows the sagittal calibre of the canal, but does not cause cord compression. No abnormal signal in the cord at this level nerve root. No other significant abnormality demonstrated. The craniocervical junction is normal. 15 In early April, she stopped work. Her pain continued unabated. She was depressed. 16 On 10 May, Clive Jones (Jones), orthopaedic surgeon, examined Valeri at the request of an authorised agent 4. She complained mainly of her neck, which was painful and stiff. Her left arm felt chronically heavy. Her wrists and hands were sore, worse on the right. Activities, like housework, worsened her arm symptoms. 17 On examination, Jones noted a full range of movement in the cervical and lumbar spines. Elevation of the left shoulder caused some pain but there were no signs of shoulder dysfunction. 18 Jones was baffled by her reported symptoms. There were early degenerative changes at C5-6 but no compression of the spinal cord or adjacent nerve roots. Given the nature of her original injuries (i.e. to forearm and knee), he concluded that the 28 April incident did not appear to have caused her current symptoms of cervical and arm pain. 19 On 5 June, Valeri saw a neurosurgeon, Richard Bittar (Bittar). He took a history of the emergence of pain in the neck, back, shoulders, arms, wrists and hands on the morning after the incident. That day, her main complaints were pain in the neck and arms. Having read the MRI report, Bittar opined 5 : it is most likely that Enza [Valeri] does have neck and arm pain as a consequence of cervical radiculopathy. It is highly likely that this is related to the injury at work on April She certainly does not give a past history of any neck or back problems. 20 At Bittar s suggestion, Valeri undertook hydrotherapy for three or four weeks without any lasting relief. 21 On about 22 June, Valeri received a notice terminating her entitlements to weekly payments and medical and like expenses 6. She referred the dispute to conciliation. The conciliator referred medical questions to a Medical Panel for an opinion. 22 On 28 June, Bittar re-examined her. At the initial examination, Valeri brought the report, but not the films, of the MRI. On this occasion, she brought the films, which Bittar viewed and then opined 7 : 4 Exhibit 2. 5 Exhibit O report dated 5 June Exhibit B. 7 Exhibit P. I agree that there is significant disc degeneration and a prolapse at C5-6. My impression is that she does have foraminal stenosis bi-laterally 3 DECISION

5 more so on the right hand side. This would fit very well with her symptoms of cervical radiculopathy. 23 Focussing on the neck, Bittar diagnosed bilateral C6 radiculopathy secondary to foraminal stenosis at C In July, Valeri attended Robert Gassin (Gassin), who specialised in spinal pain management. After examining her, Gassin sought approval to perform bilateral C4 to C6 medial branch blocks to determine whether her symptoms arose from the mid-cervical facet joints. Approval was not given. The branch blocks have not been performed because Valeri maintains she cannot afford them On 22 February, the Medical Panel answered three questions: 1. What is the nature of the worker s medical condition (including any sequelae) relevant to the claimed injuries to her right arm and right knee? In the Panel s opinion the worker is suffering from a Major Depressive Disorder with somatoform features, relevant to the claimed injuries. In the Panel s opinion there is now no medical condition or loss of function of the right arm or right knee, relevant to any claimed injury. 2. What is the extent to which any medical condition resulted from or was materially contributed to by the injuries to her right and knee? In the Panel s opinion the worker s current psychiatric condition is still materially contributed to by the claimed injury. 3. Does the worker s incapacity for work result from, or is materially contributed to by, the (claimed) injuries to her right arm and knee? In the Panel s opinion any incapacity for work is still materially contributed to by the psychiatric sequelae of the claimed right arm and right knee injuries. 26 The Medical Panel gave reasons for its opinion 8. Despite the narrowness of the questions, the Panel recorded Valeri s complaints, even those unrelated to her knee and arm. It also examined her more broadly. Nevertheless, the Panel confined its reasons to the arm and knee: The Panel noted the worker s history of the episode that occurred at work in April 2006, its findings on examination and concluded that the worker may have suffered from a soft tissue injury of the right knee and right arm, but these conditions have since resolved. In the Panel s opinion there is now no medical condition or loss of function of the right arm or right knee, relevant to any claimed injury. 8 Exhibit 7. 4 DECISION

6 27 The balance of the reasons concerned Valeri s mental state. After reciting a number of positive aspects of Valeri s mental state, The Panel continued: However, she did describe ruminating over her altered work capacity and her financial constraints. Negative themes were expressed. She was strongly symptom focussed. She described feelings of guilt 28 After a further five positive observations, the Panel continued: The Panel concluded that the worker is suffering from a Major Depressive Disorder with somatoform features, which has arisen as a consequence of the initial physical injuries. 29 What the Panel meant by the expression initial physical injuries is unclear. 30 On 17 April, Valeri lodged another claim for compensation, which was rejected. Why she made this claim is unclear, for weekly payments were reinstated following the Medical Panel opinion. However, the claim referred to injuries to the neck and both arms while her original claim referred to her right arm and leg only. 31 On 22 May, Ian McInnes (McInnes), general surgeon, examined Valeri at the request of an authorised agent 9. His examination revealed nothing abnormal except for a slight lateral stiffness in the cervical spine. Apart from slight weakness in both arms, they were normal. He concluded that she suffered from mild cervical spondylitis, unrelated to the April 2006 incident. 32 Between May and August, Hema Sivakumaran, clinical psychologist, counselled Valeri. By August, he saw no improvement in her depressive symptoms and worsening in her socialising. He referred her to a psychiatrist, David Tofler (Tofler), who saw her twice. He prescribed an antidepressant, Cymbalta. By 1 December, her psychological condition had not improved. Tofler recommended to the authorised agent an in-patient assessment at Delmont Hospital but nothing came of the recommendation On 30 January, Bittar re-examined Valeri. She complained of ongoing neck and arm pain. On 18 February, a cervical MRI was performed, revealing the prolapse at C5-6 and bilateral foraminal stenosis 10. Bittar maintained his opinion that her symptoms came from the C5-6 area or segment. His prognosis was decidedly negative 11 : Considering that she has experienced significant symptoms for several years and has not responded to a significant degree to all treatment measures to date, it is likely that she will continue to suffer from significant pain and disability into the foreseeable future. 34 He made three staged recommendations first, Valeri starts taking Epilim; if that 9 Exhibit 6 report dated 22 May The report of this MRI was not tendered. 11 Exhibit R. 5 DECISION

7 failed, then undergo a right C6 nerve sheath injection with local anaesthetic and steroids; and if that failed, a C5/6 anterior cervical discetomy and fusion. 35 On 13 February, Valeri saw another psychiatrist, Alan Blandthorn (Blandthorn), whom she continued seeing until about five months ago. Between 13 February and 16 September, Blandthorn saw her on, at least, ten occasions. He diagnosed a major depressive disorder complicating a chronic pain syndrome. Despite the apparent failure of medications to affect the former, Blandthorn felt it would be premature to conclude that improvement would not occur. By July 2010, it is unclear what was Blandthorn s prognosis except that he continued to treat her until he was incapacitated in an accident. 36 Various medications have been prescribed for her depression. Currently, she takes Endep. 37 On 25 March, Jones re-examined Valeri. Again, on examination, Jones could find little by way of objective abnormalities. There was minor neck soreness but virtually a full range of neck movement. Other signs were normal. Conceding an initial aggravation of her cervical degenerative change, he considered her current condition was unrelated to her employment. 38 In August, Valeri sold her home in Templestowe and bought a home in Rosebud. She lives in a de facto relationship with Tony Petrevski. Owing to injury, he has been unable to work for about 5 years and, in 2009, received a sizeable damages settlement During August, Nathan Johns (Johns), rehabilitation medicine physician, examined Valeri. He recommended a Chronic Pain management Program consisting of physiotherapy, hydrotherapy, occupational therapy and clinical psychology, adding 12 : She will need quite an intensive program to help her manage the pain by coming to terms and accepting it whilst improving her physical functioning and learning techniques to help manage chronic pain.i would not favour any surgical intervention at this stage as this is probably unlikely to help her pain but likely to cause more distress and leave her with a reduced level of function and lowered mood. 40 Johns explained his recommendation in the preceding paragraph: I do not believe that there is a unimodal way of curing the pain and in fact she is likely to have chronic pain for a long period of time. There is no quick fix to the problems. It is difficult to know what the trigger for the pain is at this stage, although there is a broad based disc bulge at C5/6, not contacting the spinal cord, which has probably not changed over two years. She is unlikely to come to any harm from this disc unless she suffers further injury to her neck. The main issues relate to her depression, reduced function and reduced roles. She has been in a sick role for three years and has lost her role in her relationship and in the 12 Exhibit Z. 6 DECISION

8 community. 41 The parameters of this program can be deduced from the other documents forming exhibit Z. It appears that the program would last ten weeks with three visits per week and an overall cost of $3, Johns wrote to the authorised agent seeking permission on behalf of Valeri. It was refused, by notice 13. One of the reasons was: We also note the rehabilitation outpatient program appears contradictory in the parts of the body they wish to treat i.e. one page addresses arm, neck and leg whilst another page they refer to neck and lower back. 42 It is unclear what material the author of the notice viewed to give that reason. The material, comprising the exhibit, refers to the back and neck Owing to Blandthorn s indisposition, Ilango prescribes Endep for Valeri s depression. She has not attempted to return to any form of work. She is not registered with Centrelink. She attempted a course in security work but left shortly after it started. She starts things but does not complete them. She can sweep and lift things but her pain level will increase. 44 On 1 April, Kenneth Brearley (Brearley), surgeon, examined Valeri at the request of her solicitors 14. Apart from slight restrictions in neck movements, Brearley found no abnormalities. He felt Valeri suffered from mechanical neck pain secondary to degeneration and acute prolapse of the C5-6 disc. The prolapse caused narrowing of the C5-6 foramen, which caused right arm pain. He noted lesser left arm without ascribing a cause. 45 As to the issue of surgery, Brearley commented: There is a real possibility that she will require surgical treatment on her cervical spine for the pathology is quite definite. This would be in the nature of surgical fusion of the C5/6 disc. [I] would suggest that if she still has symptoms in a further twelve months this should be seriously considered again. It has been proposed earlier by Mr Bittar but the consensus of opinion was that surgical treatment should be carried out only after failure of conservative treatment including pain management. 46 On 22 June, David Brownbill (Brownbill), neurosurgeon, examined Valeri at the request of her solicitors. His examination revealed a full range of cervical spine movement with reduced sensation over the right thumb as the only neurological abnormality. Brownbill viewed the 2009 MRI of the cervical spine. This demonstrated a C5-6 disc derangement with posterior protrusion and stenosis of the right intravertebral foramen. Based on her description of the events of April 2006, he considered that the incident caused the derangement and protrusion. Implicitly, the right arm pain and thumb numbness were due to the foraminal impingement. He suggested surgical decompression of the C6 nerve root. 13 Exhibit D -- dated 9 March Exhibit AA report dated 1 April DECISION

9 47 On 29 June, Jones re-examined Valeri 15. This was his third examination. He was provided with a mass of reports, three of which were not tendered to me. His examination results were much the same as previously some muscle soreness in the neck; full range of neck movement with discomfort on rotation; otherwise, normal. 48 As to the proposed pain management programme, Jones noted that exploration of pain management would always be recommended prior to embarking on any surgical treatment. His overall view was: Video I believe this lady s condition (supported by Medical Panel opinion) would be best described as a minor degree of cervical disc degeneration, overlaid by psychological and psychosomatic factors and the probable appearance of a pain disorder. The cervical MRI appears to have led her to the conviction that there is serious pathology in her cervical spine, which will be ongoing. 49 I viewed and re-viewed two videos 16. Each depicted Valeri outside her home. The first video was taken on 20 November 2010 and runs for 29 minutes and 11 seconds. The interesting part of this video involves Valeri sweeping her driveway, somewhat vigorously. 50 The second video was taken on 20 June 2011 and runs for 2 minutes and 26 seconds. This video depicts Valeri carrying plastic shopping bags from her vehicle to her house. She makes two trips and on each trip carries bags in each hand. Since one cannot gauge the weight of the bags, the significance of her efforts is uncertain. Credit 51 Some of Blandthorn s clinical notes were admitted into evidence 17. In each of the entries for 5 August, 16 September and 13 October 2009, there are references to Valeri s domestic partner and his employment. On 5 August, Blandthorn noted: Tony works in Essendon. he will change jobs 52 On 16 September, he noted: 53 And on 13 October: Tony still seeking transfer. commutes Tony still seeking transfer. 54 These entries are odd because her partner has not worked for the last 5 years. When asked, Valeri did not recall making those statements to Blandthorn. 15 Exhibit Exhibit Exhibit 8. 8 DECISION

10 Discussion 55 Apart from the arm and knee, Ilango treated Valeri s problems as muscular strains. He expected them to resolve. This diagnosis changed after the March 2007 MRI. Bittar saw the MRI report, then the actual scans, and found the existence of a prolapse and canal stenosis. It explained neck and arm symptoms. His remedies were, in order, another drug, Epilim, a right C6 nerve sheath injection, and discectomy and fusion if the previous two failed. 56 Brearley supported the diagnosis of prolapse and canal stenosis. He viewed the reports and scans of both MRIs. Brownbill diagnosed a disc derangement and stenosis (foramina impingement). Each of Bittar, Brearley and Brownbill attributed C5-6 disc abnormality to the 28 April incident. 57 On the other hand, Jones found minor cervical disc degeneration overlain by strong psychological factors. McInnes read the report of 2007 MRI. On examination, he found little restriction in neck movement. He concluded that C5-6 condition was due to degeneration, not the cause of the arm problems and unrelated to the 28 April incident. 58 Valeri has undergone extensive psychiatric treatment and examination. The psychiatrists perceive her as suffering from psychiatric disorders, being a chronic pain disorder and a Major Depressive Disorder. Despite their resilience to treatment, and any reservations I may have about her credibility, the evidence is overwhelming that Valeri suffers from genuine psychiatric disorders. These disorders are caused by the pain she suffers from her neck and elsewhere. Despite the opinions of Jones and McInnes, the 28 April incident caused the C5-6 prolapse, which, in turn, causes abnormal symptoms in her neck and arms. On occasions, the symptoms are minor (e.g. thumb) while the prolapse causes only limited restrictions in neck movement. 59 One can understand the positions of Jones and McInnes. Despite the prolapse, there is little neck restriction. The 2010 video does not suggest any neck problem. I do not know what the psychiatrists, especially Blandthorn, would think about that video. I do not know whether it is consistent or inconsistent with their diagnoses. Suffice to say, that three psychiatrists have examined Valeri and diagnosed psychiatric disorders. Her psychiatric problems are genuine. In the circumstances, the activities depicted on the 2010 video should be seen as consistent with both the physical state of the neck and her psychological state. 60 The 28 April incident was vigorous, involving holding down a resisting patient for about 45 minutes. The C5-6 prolapse exists in an otherwise near-normal neck. The lack of complaint is explicable due to the misdiagnosis of the neck and the expectation of resolution. 61 The defendant attacked Valeri s credit. She did not recall telling Blandthorn about her partner s work when, on her oral evidence, he was not. Since I did not hear from Blandthorn, whether his notes of those statements constitute prior inconsistent statements is unresolved. Valeri s reason for not complaining earlier about her neck is explicable for the reason she gives. Having been told that her problems would resolve, she believed that advice and waited for resolution. I have already discussed Valeri s answer to question 30 in her original compensation claim. 9 DECISION

11 62 The Medical Panel was asked questions about Valeri s arm and knee. They answered those questions. They gave reasons for their answers. There is nothing in the reasons to suppose that they examined the neck and found nothing wrong with it. 63 Bittar recommends a fusion of C5 and C6 vertebrae. However, the weight of other medical opinion, and commonsense, suggests that any form of pain management should be attempted before such surgery. I should adopt that position. Conclusion 64 I am prepared to declare that Valeri sustained an injury to her neck arising out of or in the course of her employment with the defendant. 65 In order to ensure that the defendant pays for the pain management programme, and at the suggestion of the parties, I will set aside the notice dated 9 March DECISION