Brumby v WorkCover/Allianz Australia

1. At trial I had placed before me a trial book which included medical reports from various medical practitioners. These included reports from Dr Ian Pope, the "work's doctor", to whom the worker was referred immediately following the accident, reports from the Floreat Surgery containing notes and opinions of various general practitioners that the worker consulted at that clinic, Mr Garth Fraser, an orthopaedic surgeon, to whom the worker had been referred for medico-legal purposes, Dr John Bastian, a consultant in rehabilitation medicine, to whom the worker had been referred by her general practitioner, Mr Michael Hone, an orthopaedic surgeon to whom the worker had been referred by the Corporation for medico-legal purposes, Dr Charles Schembri, a psychiatrist, to whom the worker had been referred by her solicitors for medico-legal purposes, Dr John Burvill, a psychiatrist to whom the Corporation had referred the worker for medico-legal purposes, Mr Brian North, the neurosurgeon to whom Dr Bastian had referred the worker following an MRI Scan which produced some evidence of the AC1 anomaly, Mr Brian Brophy, the neurosurgeon to whom Mr North had referred the worker to undertake a cranio-cervical decompression to treat the symptoms of syringomyelia secondary to the AC1 anomaly, Mr Glenn McCulloch, neurosurgeon, to whom the worker was referred by the Corporation for medico-legal purposes, Dr David Cherry the Director of the Pain Management Unit at the Flinders Medical Centre, and Dr Rene Pols Senior Consultant Psychiatrist at the Pain Management Unit of the Flinders Medical Centre who had treated the worker for acute depression.
2. During the course of the hearing I heard oral evidence from some of these medical practitioners supplementing the evidence and opinions expressed in their medical reports. Some of the medical evidence primarily concerned matters of history that had been provided by the worker at various times. Other medical evidence comprised of opinions about a variety of issues, and in particular the relationship between trauma, AC1 anomaly and syringomyelia.
3. The trial book also included statements from the worker and from some of those with whom she worked. The worker gave some supplementary oral evidence and was extensively cross-examined. She was also shown some video film that showed her handling and kicking a football and acting as a runner at a woman's Australian Rules football match shortly after the accident. The film was apparently introduced to show that the accident had not caused serious injuries and to undermine the worker's credit. In my view it did neither. The video film did not depict a range of activities that was inconsistent with the worker's complaints. She candidly admitted to the activity and volunteered that she later played a game of football. She also said that prior to the accident she played regularly and after it, but for these isolated incidents she did not. Nothing that was put to me by the Corporation would suggest otherwise.

1. The evidence clearly establishes the following background facts.
2. The worker is a woman aged 31 years. She commenced employment with the employer in 1992 initially as a bottle handler, then as a labourer/filler, and more lately as a forklift driver.
3. On 28 May 1997 the worker and another employee of the employer, Mr Scott Yates, were operating forklifts to unload pallets of wine. In undertaking that work, Mr Yates' forklift became stuck. The worker gave directions to Mr Yates to assist him in releasing his forklift. In that process she stood behind Mr Yates' forklift thinking that he would proceed forward. In fact he reversed and in that manoeuvre her head became squashed between a pallet of wine and Mr Yates' forklift. In her statement, the worker described the sensations that followed this, thus:-

"My whole head seemed to be seemed to have been twisted around. I just said 'my fucking head', and I ripped my head out. I became aware of a splitting sensation, my eyes were going haywire. I couldn't focus on anything. I remember going down to the office and slumping in the chair." (TB 456)

1. The worker did not lose consciousness as a result of the accident. She did not suffer from any cuts, abrasions or fractures. She was however sufficiently concerned about her health that she arranged for her sister to drive her to Dr Pope. Dr Pope records in a report dated 26 June 1997 that the worker was then complaining of "headaches and neck soreness and stiffness attributed to the subject accident".
2. Following the worker's initial consultation with Dr Pope the worker consulted with various general practitioners from the Floreat Surgery at Morphett Vale. A medical report dated 10 August 1998 identifies various attendances by the worker between September 1997 and June 1998 wherein she complained of headaches and it contains the following statement by Dr Helen Paech:

"Having reviewed these medical attendances it is my opinion that they are all related to the original work injuries sustained in May 1997. At no time since then has Ms Brumby been completely free of headaches or pain."

1. On 11 February 1998 the worker was interviewed by assessors appointed by the Corporation in connection with a motor vehicle accident which occurred on 12 December 1997. Ms Kelly, for the Corporation, suggested that this might be the event that caused the worker's AC1 anomaly to become symptomatic. In the course of that interview the worker spoke of the regular headaches that she experienced following the original accident. She described these symptoms at TB 473: "Headaches, things like muscles in your head and your nerve joints and spinal things got squashed." When she was asked what symptoms she was currently suffering from she spoke of experiencing ongoing headaches (TB 479). The general tenor of the worker's statements in the record of interview was that the motor vehicle accident resulted in no more than a transitory elevation in symptoms and that her problems quite quickly returned to the level that they were following the original accident.

14 Shortly after this, on 20 February 1998, about nine months after the accident, Mr Fraser examined the worker. Mr Fraser recorded a history that the worker immediately upon the occurrence of the accident was complaining of headaches, neck discomfort and pain in her jaw joints. He also recorded at the time of his examination that she complained of discomfort in the sub-occipital region and headaches on most days. Mr Fraser thought that the worker had suffered a general contusion and mild musculo-ligamentous injury to her neck from which she had largely recovered.

15 Mr Fraser next saw the worker on 16 June 1998. He noted that the worker was describing: "ongoing discomfort in the posterior aspect of her neck, mainly in the sub-occipital region together with generalised headache" (TB 316). He concluded that the worker was suffering from tension myalgia and tension headache. He also stated that he thought that her problems were essentially non-organic.

16 Mr Fraser in his oral evidence said that at the time of his first examination he had a listed a history that the worker had suffered from some intermittent pins and needles in the fingers of both of her hands and that in hindsight this might have been an indication of symptoms of syringomyelia.

17 Some time after this the worker was referred to Dr Bastian. He records an initial history following the accident of "neck pain, headaches and right superior shoulder pain". He records in his report of 2 October 1998:-

"At present, Ms Brumby is experiencing almost constant, aching pain in the central lower neck region. She also reports sharp pain over the lateral aspects of her neck radiating to her ears, superior shoulder regions and into the medial scapular regions. She reports experiencing the sensation of pins and needles in the fingertips of both hands three times a day lasting for two minutes at a time. She denied any arm pain or nocturnal paraesthesia. The pain is aggravated by 'anything physical', tasks requiring prolong static neck forward flexion postures, (i.e. washing dishes), cervical rotation (i.e. reversing her car), and above shoulder height tasks (i.e. hanging out the washing). The pain is not aggravated by coughing or sneezing. The pain is relieved by hot showers, massage, and simple analgesic agents.

Ms Brumby is experiencing headaches four times a week. She states the headaches are mainly in the occipital region, but when more severe, radiate over the scalp to behind the eyes. She described her headaches as being thick and aching. Ms Brumby has vomited or one or two occasions in the past. She described her eyes as feeling heavy. The headaches are not worst first thing in the morning, tending to increase in severity towards the end of the working day...."

1. Dr Bastian thought that the worker was suffering from a post traumatic stress disorder and he referred the worker to a psychologist, Mr Joseph Magliaro, for further clarification. As to the motor vehicle accident, he thought that this had only temporarily aggravated the worker's neck symptoms.
2. In a further report dated 16 February 1999 Dr Bastian spoke of his increasing concerns about the worker's presentation and of his decision to refer her for a MRI Scan of her cervical spine. This investigation revealed an expansion of the worker's spinal cord from the C4 level to the upper border of T1. It was this investigation that revealed the possibility of an AC1 anomaly and as a result Dr Bastian referred the worker for the opinion of Mr North. Mr North thought that the MRI showed an associated AC1 anomaly affecting the cervicomedullary junction. As a result Mr North referred the worker to Mr Brophy for surgery.

1. I have no doubt that all medical experts who provided reports and/or gave oral evidence were doing their best to assist me in this case and that the views that they expressed were open to them. Whilst I have carefully considered all of these opinions, I do not propose to set all of them out and discuss them. The law is clear. Cases such as this do not involve a mere evaluation of competing medical opinions and a preference for one over another. Expert medical evidence is just a part of the matrix that must be considered along with all of the other evidence. In my view, of all of the expert evidence that was presented, matters of history aside, the evidence of the neurosurgeons and the opinions they expressed were the most important and I confine my discussion of the medical opinions to them.
2. Mr North stated that in his opinion the injury did not have any causative or aggravating influence on the development of symptoms following the AC1 anomaly. He clearly and unequivocally was of this view and would not countenance any contrary suggestion.
3. Mr McCulloch essentially agreed with Mr North although his oral evidence left me with the impression that he was at least prepared to accept the possibility of a connection between trauma of the type experienced here and the progression of symptoms of AC1 anomaly, although it was plain that he did not accept that such a connection was, on the present understanding of the condition, scientifically established in this case.
4. Mr Brophy first saw the worker on 12 January 1999. He recorded a history of symptoms in the worker's neck and shoulders, shooting pains to the back of her head, paraesthesia and soreness in her right arm. He also noted that the worker had experienced some "pins and needles" a little bit prior to the accident.
5. Initially Mr Brophy was guarded about the possibility of a connection between the accident and the progression of symptoms now known to be related to the AC1 anomaly. However, in giving oral evidence before me he seemed far more supportive of a connection. This change in his position seemed to be due firstly to his reflection upon an article titled "Chiari 1 Malformation Redefined: Clinical and Radiographic Findings for 364 Symptomatic Patients" ("the Milhorat article"). The head author of that clinical study is a Mr Thomas Milhorat who on all accounts is a pre-eminent specialist in this field. Secondly, upon his consideration of some further information as to the nature of complaints that the worker made immediately following the accident and in the months that followed.

Some evidence of relevant symptoms not previously known to the neurosurgeons

1. In one of the statements that she filed in connection with these proceedings and in her oral evidence before me the worker spoke of a sensation of her eyes going haywire immediately following the accident. She described it as them going back and forth and making it hard to focus. She said that this lasted for about an hour and a half.
2. In a letter dated 13 August 1997 Ms Boundy, a neurologist to whom Dr Lynch (one of the general practitioners from the Floreat Surgery) had referred the worker, records a history based on an examination that took place the day earlier. As I understand it, this letter did not come to light until well after the neurosurgeons had last examined the worker. The relevant history is as follows:-

"She has recently suffered from headaches since being squashed between a pillar and a forklift. This accident occurred at work when someone else was driving the forklift. Since this time and subsequent to extensive bruising around the head and neck she has suffered from pain in her forehead, both temples and in the back of her neck. In particular she is tender over the occipital region with pain radiating over the vertex.

At times these headaches build up to a more severe headache associated with vomiting and are "migraine like". Over the recent weekend she recently had one of these headaches associated with a blood nose and some vomiting.

She has also been aware of recurrent flickering of the right eye and of a few instances of impaired vision in the right eye particularly after exposure to bright light. She has pain in both of her temples which may be related to subluxation she is experiencing of her temporomandibular joint on jaw opening.

She is having extreme difficulty turning her neck due to soreness of her neck despite ongoing physiotherapy."

1. I regard the worker's credit as a critical issue in the resolution of this case. In determining the quality of her evidence it is I think important to reflect upon the views of Dr Pols. In September 2000 the worker was so chronically depressed that she was found to be actively suicidal and as a result was hospitalised. As at 18 April 2001, being the date of a medical report prepared by Dr Pols, he thought that she was suffering from major depression. Although Dr Pols had understood that the worker's condition had improved, it was quite apparent to me when the worker was giving her evidence before me in October last year that she was still depressed. At times when giving her evidence she seemed listless and unresponsive. On other occasions she seemed quite emotionally distraught. On one occasion I adjourned the proceedings. On another, towards the end of the worker's cross-examination, I was sufficiently concerned about her ability to continue that I offered her a break, which she declined.
2. I was left with a very firm impression of the worker that she was doing her best to answer the questions that were put to her truthfully. I would not regard any inconsistencies in her answers or her lack of responsiveness to particular questions as indicating that she was not being truthful. I think it more likely that these were the consequences of her mental state and the time delay between relevant events and her giving of evidence.
3. Whilst I approach the worker's evidence with some caution because of these inconsistencies and because of some defects in her recollection of events, there is a persistent and recurring message that comes through the various statements that she has given at various times to various persons and in the histories she has given to various medical practitioners at various times.
4. It is not, in my view, significant that the problem with the worker's eyes upon the occurrence of the accident that she spoke about in her statement and in her oral evidence was not mentioned to the doctors who examined her at about that time. The worker says that these symptoms did not persist and other symptoms were more prominent at the time she sought treatment. Moreover, I think in all the circumstances that this would be a strange symptom for the worker to invent. It was not suggested that the worker had studied the Milhorat article before she gave her statement. All of this persuades me that these symptoms genuinely occurred.
5. I also find that immediately following the incident and thereafter she was persistently plagued with headaches. Not generalised headaches, but a headache in the suboccipital region of her head as described by Ms Boundy.

1. The study discussed in the Milhorat article involved an assessment of 364 patients known to have suffered from AC1 anomaly. In respect of each patient a history was taken of pregnancy and delivery, maternal exposure to toxic substances, potential environmental exposure, medical history, family history, and a detailed checklist of symptoms.
2. Of significance for present purposes, the Milhorat article records that in the case of 193 patients, no precipitating factor was identified and for 89, trauma was identified. Trauma was stipulated to include whiplash injuries and direct blows to the head or neck.
3. In respect of symptoms, the common symptom of the condition was described as a:-

"... suboccipital headache. This was apparently experienced by 296 or 81 per cent of the patients and was described as "a heavy crushing, or pressure like sensation of the back of the head that radiated to the vertex and behind the eyes and inferiorly to the neck and shoulders. The headaches had a pounding quality when severe but were otherwise non-throbbing. A distinctive feature of the headaches was their tendency to be extenuated by physical exertion."

1. The study also described ocular disturbances as a common symptom, reported by 283 patients or 78 per cent. This was described thus:-

"Affected individuals were defined as those with two or more of the following intermittent symptoms: retro-orbital pressure or pain, visual phenomena such as floaters or flashing lights, blurred vision, photophobia, dipolar, and visual field cuts. Most of these symptoms were extenuated by the same factors that effected suboccipital headaches."

1. The study also recorded that a total of 269 patients or 74 per cent of the sample experienced otoneurological disturbances including dizziness.

Consideration of the medical opinions in light of the worker's evidence

1. The Milhorat article was put to Mr North and Mr McCulloch. So too was the further history that was not previously known to them. Neither was persuaded in light of this that a causal connection between the accident and the progression of symptoms now known to be associated with AC1 anomaly had been established. Neither thought that the Milhorat article proved anything. Both noted that it relied upon "self-reporting". Both thought that the complaint of a headache was so vague as to be meaningless.
2. In contrast to this, as I said a little earlier, Mr Brophy was impressed by this further information as his following evidence at tr 161 and 162 illustrates:-

"Q I want to make sure that we are talking substantially of the same history. It seems that Ms Brumby was complaining of a suboccipital headache, at times going over the vertex of the skull, from very shortly after the incident. Firstly, is that your understanding, that she's complained of that headache throughout.

1. A My clinical notes are rather brief, I must say, but yes, I did record shooting pains up the back of the head from the time of the incident.
2. Q Is that of significance in drawing a connection between the incident and the condition that you found at operation.
3. A Well, I think it's consistent with a diagnosis of symptomatic Chiari 1 malformation.

1. A Well, that's implied by the temporal relation between onset of the symptoms and the incident.
2. Q She's also complained at various - or at times, before seeing you, of dizziness. Again, is that something that is consistent with precipitation of symptoms by this incident.
3. A It is again a relatively common symptom and a symptomatic Chiari 1.
4. Q It also now appears that she saw a neurologist, Karyn Boundy, on 12 August 1997 and you will remember that she had her accident on 28 May, so this is three months later, but she complained then of being tender over the occipital region with pain radiating over the vertex, which is consistent with what you have seen - which you understand. But she also referred to recurrent of the flickering of the right eye and a few instances of impaired vision in the right eye, particularly after exposure to bright light. Are those complaints of significance against the background of the condition you found at operation.
5. A Well, in retrospect they are, yes. They are quite consistent with the diagnosis also.
6. Q She also had complained at a fairly early stage that immediately after the incident - that is, while she was still at the factory - she experienced an ocular sensation: that her eyes were going haywire, backwards and forwards, and that that went on for a period of perhaps an hour and a half immediately after the incident. Is that of interest or significance in the background of her condition.
7. A Well, again with hindsight it's quite consistent with the onset of symptoms of Chiari 1."

1. This case provides a good illustration of the different roles that doctors and judges have in respect of issues of causation. Doctors, in their roles as scientists, demand scientific proof of a fact, being a degree of proof that is objectively established and which can be tested, evaluated and corroborated. In civil jurisdictions triers of fact like juries in such cases, do not require a degree of persuasion that would satisfy the demanding scrutiny of a scientist. They require no more than a persuasion on the balance of probabilities, arrived at from a common sense evaluation of the evidence. See, for example: State of New South Wales trading as New South Wales Department of Agricultural v Allen [2000] NSWCA 141 at par 2 and 3 per Priestly JA.; WorkCover Corporation v. Sherriff (Supreme Court unreported S.5831 delivered 1 October 1996) per Lander J.
2. I suspect that the differences between the neurosurgeons reflect this. My impression was that Mr Brophy was more willing to remove the shackles of his scientific training in expressing his opinion. But, as I said earlier, in the end this case is not an exercise in rating the various medical opinions and preferring one medical opinion to others, nor is it a case of determining whether causation has been established as a scientific fact. The issue before me is whether I am satisfied on all of the evidence presented, for legal purposes, whether the manifestation of symptoms relating to the worker's AC1 anomaly can be said to have resulted from the subject accident.
3. In my opinion, a common sense evaluation of all of the evidence strongly suggests that they are linked, and I so find. I would now like to hear the parties as to what consequential orders should now be made.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.