IN THE MAGISTRATES COURT OF VICTORIA AT LATROBE VALLEY WORKCOVER DIVISION

Case No.D10577824 SHARON MESCH Plaintiff v WOOLWORTHS LIMITED Defendant

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MAGISTRATE: S GARNETT

WHERE HELD: LATROBE VALLEY

DATE OF HEARING: 23 & 24 OCTOBER 2013

DATE OF DECISION: 14 NOVEMBER 2013

CASE MAY BE CITED AS: MESCH v WOOLWORTHS

REASONS FOR DECISION

--- 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

!Undefined Bookmark, I

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 2012. Ms Mesch lodged four

workcover claims relating to these alleged injuries dated 1 September 2011,

13 December 2011, 29 February 2012 and 15 August 2012. 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 2012.

4 Ms Mesch gave evidence as did Dr Edwards, her treating general practitioner.

The parties tendered numerous documents and medical reports and made

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DECISION

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

Warfe1; “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

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1 [2013] VSCA 22 at para 112.

DECISION

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 2011. 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

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condition had progressively got worse. She confirmed that the defendant

rejected this claim on 10 January 2012. 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 2012. 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.

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DECISION

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 2011. 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”.

- 13 September 2011: Dr Edwards requested a CT Scan of the lumbar spine.

Notation: back strain 2 weeks ago – with continuing pain.

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DECISION

- 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.

- 19 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.

- 10 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

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DECISION

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.

- 12 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.

- 17 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.

- 21 December 2011: Dr Edwards – now clearly recalls an incident pulling

large boxes down from a high shelf at work. 16-20kg. 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.

- 23 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.

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- 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.

- 28 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.

- 16 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 2011. She agreed that

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DECISION

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

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2011 that; “now clearly recalls an incident pulling large boxes down from a

high shelf at work. 16-20kg. 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 2011. She agreed her employer denied liability by way of

correspondence dated 27 March 2012. 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

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DECISION

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 16-20 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).

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DECISION

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

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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 2011. 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

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DECISION

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 2011. 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 2011. 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 2011. The document indicates that Ms Mesch was working in

the Men’s Shoe Section at 13.00 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 2nd

workcover claim form) and included a finding that; “We believe that this injury

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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 2011. 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 21011 was tendered. She reported that Ms Mesch provided a

history of an injury to her back at work on 23 August 2011. 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 2013. He reported that Ms Mesch was

first seen on 6 January 2012 complaining of neck, thoracic and lumbar pain.

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DECISION

He noted that the referral was for treatment of her low back pain as the

defendant had not accepted liability for her neck condition. He recommended

exercises for her neck condition as she was complaining of significant neck

pain and noted the scan indicated disc herniation at C4 on the left and a bulge

at C7. In his report dated 11 July 2012 he noted that Ms Mesch was

complaining of increasing upper body and neck pain whilst sitting answering

phones and dealing with customer needs following the March 2012 incident.

He expressed the opinion that these duties were aggravating her condition. In

October 2013, he reported that her initial complaints of pain was

predominantly in the thoracic and lumbar region and when she returned to

work in October through to December 2011 she reported neck and referred

left arm pain. He noted that the initial treatment focussed on her neck as it

was the most irritable and that recently her condition regarding her neck

symptoms and headaches has improved whilst she has made an excellent

recovery with her thoracic and lumbar symptoms.

31 Ms Mesch tendered a medico legal report from Mr Kossmann, Orthopaedic

Surgeon, who assessed her on behalf of her lawyers on 29 May 2013. Mr

Kossmann obtained a history from Ms Mesch that on 23 August 2011 when

putting fixtures away in a confined space she jarred her thoracic and lumbar

spine. She told him that she experienced pain from her neck to the lumbar

spine. Ms Mesch also told Mr Kossmann that in December 2011 she

experienced increasing pain in her cervical spine and left arm while working.

She told him that she currently experiences migraines and pain in her cervical

and lumbar spine. After examination and viewing of the radiological reports he

diagnosed that Ms Mesch suffers from discogenic cervical pain due to a left

sided posterolateral disc herniation at C4/5 compressing the thecal sac and

cord with mild myelomalacic changes, mild posterolateral disc bulge at C6/7

and discogenic back pain due to bulges at the L4/5 and L5/S1 levels. He

opined that if she suffers from a catastrophic disc prolapse with increasing

neurology she may have to undergo surgery. Mr Kossmann is of the opinion

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DECISION

that her condition is consistent with the stated cause as given by her and is fit

to continue working on modified duties 26.5 hours per week.

32 The defendant tendered workcover claims forms completed by Ms Mesch,

rejection notices and medical reports from Associate Professor Buzzard,

dated 4 January 2012, 24 January 2012, 28 June 2013 and 27 August 2013.

Prior to his first assessment, Mr Buzzard was provided with the workcover

claim forms dated 1 September 2011 and 14 December 2011, the defendant’s

claim reports, certificates, CT and MRI Scan reports, a report from Dr Tan and

a Fax from the defendant’s workcover officer, Ellen D’Silva dated 3 January

2012 (although the fax attached to that report and tendered to the court is

dated 20 January which followed his examination and prompted him writing

his second report dated 24 January). Mr Buzzard recorded a history from Ms

Mesch that she sustained a “sore back (the whole back) and sore both arms –

the whole of them)” in August 2011 when she was walking through an

obstructed area and a protuberance caught her in the back and pulled her

backwards. Ms Mesch told Mr Buzzard that at the date of the examination she

was experiencing pain in the back of her neck which extends to both

shoulders and down the left arm to the upper forearm region but doesn’t

involve the right arm. She told him the pain had been present since August

2011. She also told him that she experiences mid back pain which extends to

her low back region and to the posterolateral aspect of the thighs to just below

the knees, more so on the left than right side.

33 Mr Buzzard stated that he would not have expected her problems to occur as

a result of the incident in August 2011. Although being provided with a copy

of the workcover claim form dated 14 December 2011 relating to the incident

on 1 December 2011 and the introductory letter from the defendant referring

to the incident on 1 December, he noted that Ms Mesch did not provide him

with any history relating to that incident. Nevertheless, Mr Buzzard opined

that, accepting the history as given to him by Ms Mesch, she sustained a

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DECISION

significant injury to her cervical spine and lumbosacral nerve root involvement

as a consequence of the work incident in August 2011.

34 Following receipt of Mr Buzzard’s report dated 4 January 2012, Ms D’Silva

wrote to him on 20 January 2012 providing him with a copy of a report from Dr

Edwards dated 4 January 2012 and clinical notes requesting a supplementary

report concerning causation, ongoing contribution of injury and capacity. In his

supplementary report dated 24 January 2012, Mr Buzzard noted that; “There

is considerable discrepancy between the material which you have sent me

today and the history that I obtained directly from Sharon Mesch when I saw

her for you on 4/1/2012. You will note that I elicited a history of her back and

arm problems commencing when pulled backwards when walking through an

obstructed area. That is not consistent with the history that you have sent me

today. When making a medical diagnosis – particularly in relation to causation

– it is important to have reliable history. If the history is not reliable then

obviously any opinion that I base on the history is itself not reliable. You have

asked me whether or not Sharon Mesch’s back problem is consistent with the

injury of 23/8/2011 or something else. It would appear to me more likely than

not that her neck problem has been spontaneous in the light of the progress

notes from Fred Edwards”.

35 Mr Buzzard re-examined Ms Mesch on 26 June 2013. He was provided with

medical records from the Hazelwood Health Centre and documents from

Latrobe Valley Physiotherapy and Sports Medicine Clinic. Mr Buzzard

reported that he read to her the narrative section of his report dated 4 January

2012 and confirmed the history recorded was correct. She informed Mr

Buzzard that Dr Edward’s had not recorded her neck injury when she initially

saw him but had recorded her back problem. She told him on this occasion

that she has continuous pain in the neck extending to her shoulders and to the

back of her head and that it is worsening. Mr Buzzard reported that he

questioned Ms Mesch as to whether an incident or accident occurred in

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DECISION

December 2011 to which she told him that there wasn’t but there was “an

aggravation through my work” when she was trying to remove boxes, which

had been tightly packed into a mobile work cage and her pain came on

suddenly and her neck pain progressively worsened. Mr Buzzard also

obtained a history that in March 2012 whilst working in the Men’s Wear

department there was an incident when she was putting clothes into a

gondola which wasn’t attached and it fell onto her. She told him that it caused

further pain in both shoulders which required 2 days off work.

36 Mr Buzzard opined that Ms Mesch has a diversity of symptoms inconsistent

with spinal pathology only. He stated that she has suffered aggravations of

her degenerative spinal disease at work including the recent “gondola”

incident. He suggested she be assessed by a psychiatrist. He also opined that

the effects of the work related aggravations has ceased, she can work pre-

injury hours albeit with lifting restrictions. Mr Buzzard suggests that

physiotherapy treatment cease but that she continue with her present

medications. A further supplementary report provided by Mr Buzzard dated 27

August 2013, corrected a typographical error in his report dated 28 June

2013.

Submissions

37 The defendant submitted that on the evidence Ms Mesch has not satisfied the

onus in establishing that she sustained injuries to the cervical spine arising out

of or in the course of her employment. The defendant points to the fact that

she did not record an injury to her neck occurring on 23 August 2011 in her

workcover claim form or on presentation to Dr Edwards on 29 August 2011.

The defendant also refers to the history given to Dr Masoud on 19 October

2011 that her neck pain occurred spontaneously after waking from sleep or on

the weekend prior to 6 December as reported to Dr Saha. The defendant

submitted that the court should prefer the contemporaneous records of Dr

Edwards than the evidence given by Ms Mesch who should be considered an

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DECISION

unreliable witness.

38 The defendant submitted that the evidence of Dr Edwards to the effect that

the only significant injury was that which occurred on 23 August 2011 should

be accepted by the court. Furthermore, it submitted that the court should note

that a cervical disc prolapse can and does occur in innocuous circumstances,

including sleep, which occurred in this case. The defendant also submitted

that the consistent description of the mechanism of injury given by Ms Mesch

as occurring on 23 August 2011, that is, arching of her back, is inherently

unlikely to have caused an injury to her cervical spine as opposed to causing

a soft tissue injury to her low back. The defendant submitted that it was a low

back injury that was sustained as evidenced by her complaints to Dr Edwards,

the workcover claim form, workcover certificates, initial radiological

investigations and focus of the initial physiotherapy treatment.

39 The defendant also relied on the fact that there is an absence of complaint

relating to the cervical spine until 19 October 2011 to her treating doctors, all

of whom are experienced and careful practitioners. The defendant also drew

the court’s attention to the fact that Ms Mesch did not complete a workcover

claim form in relation to the 1 December 2011 incident until 13 December,

subsequent to the attendance with Dr Saha on 6 December where she

complained of back pain following a heavy lifting incident occurring at home

the previous weekend. The defendant also highlighted the fact that at that

attendance Ms Mesch made no reference to the alleged incident at work on 1

December, no reference to neck pain and no reference to the incident on 23

August 2011.

40 The defendant also referred the court to the history given to Dr Edwards on 12

December whereby he recorded “has now developed cervical spine pain”, the

history he obtained from her on 21 December that she now “clearly recalls an

incident pulling large boxes down from a high shelf at work”, and, the history

he obtained from her on 5 January 2012 that she “recalls she had to lie on the

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DECISION

floor after the incident in August whilst taking boxes of the shelf – had to lie on

the floor for about an hour, could not move arms” as evidence that Ms Mesch

is attempting to re-write history in order to implicate her employment with her

condition. The defendant also submitted that the only reason Dr Edwards now

supports her assertion that she reported neck pain at her first consultation

with him on 29 August 2011 is that she has pressured and bullied him to do

so. The defendant also relied on s 103(7) & (8) in relation to the workcover

claim form dated 15 August 2012 relating to the alleged incident on 28 March

2012.

41 It was submitted on behalf of Ms Mesch that she was a witness of truth. Whilst

noting that there was no reference in the clinical notes from the Hazelwood

Health Centre and Mid Valley Family Medicine Centre of neck pain until 19

October 2011, it was submitted that Ms Mesch did in fact complain of neck

pain on 7 September 2011 to Mr Yeates and also to Dr Tan on 7 October. It

was also noted that further complaints of neck pain were recorded in the

records of Mr Yeates on 7 & 9 December 2011 and in the Latrobe Valley

Hospital records on 10 December and Dr Edwards provided a workcover

certificate following his consultation with Ms Mesch on 12 December noting

“neck injury – cervical disc prolapse” without there being a reference in the

clinical notes of causation through work.

42 Ms Mesch submitted that the court should not accept as correct the history

recorded by Dr Saha on 6 December as she is adamant that there was no

heavy lifting incident at home the previous weekend and the doctor has simply

misunderstood what she was told. She also submitted that the incident report

compiled by the defendant relating to the incident at work on 1 December was

done without any input from her and was provided to Mr Buzzard for his

consideration prior to his assessment of her on 4 January which he obviously

took no notice of as he did not refer to it in his report of that date.

43 Ms Mesch submitted that on the evidence presented there is no dispute that

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DECISION

incidents occurred causing injury in the course of her employment on 23

August 2011 and 1 December 2011 as confirmed by the defendant’s own

Safety Incident report, and on 28 March 2012. In relation to the last incident

she noted that the defendant has only raised a technical defence (s 103(7) &

(8)) as a means of denying liability and has not disputed that the alleged

incident occurred. Ms Mesch contended that she had a “special excuse” for

not lodging a claim form in relation to that incident as soon as practicable after

her incapacity arising from the injury became known as; she relied on the

advice of Shaun Nester, the Acting Store Manager; reported the incident; was

paid by the defendant for her one day off work; and, then lodged the claim

form dated 15 August after receiving legal advice to do so. Ms Mesch

submitted that the court should make determinations that liability be accepted

by the defendant for each of the claims lodged by her and dated 13 December

2011, 29 February 2012 and 15 August 2012.

Conclusion

44 I found Ms Mesch to be an honest and credible witness notwithstanding some

inconsistencies in her evidence and between the evidence she gave and the

histories recorded in the clinical records of her treating health practitioners. I

accept her evidence that she did in fact injure her cervical spine at work on 23

August 2011 and that she complained on neck pain in addition to low back

and thoracic pain when she first consulted Dr Edwards on 29 August 2011.

45 Her credibility as a witness is also supported by the fact that she is a long

term employee of the defendant and for a considerable period since

sustaining her injuries she has continued working, albeit on modified duties,

despite continuing to suffer from neck, back and shoulder symptoms. I found

her to be a stoic witness despite her honesty and integrity being tested during

cross examination as to the evidence she gave and the apparent conflict

between that evidence and the histories and complaints recorded in the

clinical notes of her treating medical practitioners.

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DECISION

46 The circumstances of this case, highlights the limitations in placing too much

reliance on what is recorded, or not recorded, by health practitioners as to the

purported history and symptoms described by their patients. Whilst the history

recorded regarding causation and symptoms is important, it should not be

readily accepted as a complete and accurate record of what was allegedly

said by the patient. In this case, I accept the evidence given by Ms Mesch as

being truthful and accurate where it is in conflict or apparent conflict with what

was recorded in the health practitioners notes. It is also of significance that Dr

Edwards conceded that it was likely he did not record her initial complaint of

neck pain due to him being under time pressure and her back symptoms were

more likely to have been causing her more discomfort than her neck

symptoms and he therefore concentrated on that medical issue.

47 I find that the notation by Dr Edwards that Ms Mesch complained of “whole

back pain” on 29 August 2011 was in fact an abbreviated record of her

complaint of pain extending from the “top of her neck down her back”. If her

complaint was limited to her low back only, it would not have been necessary

for him to record “whole back pain”. Notwithstanding the absence of a

reference to neck pain in his notes on 29 August 2011 and 13 September

2011, she did complain of neck pain to Mr Yeates on 7 September and Dr Tan

on 7 October which is consistent with the evidence she gave that she initially

experienced back and neck pain. I find that Dr Edwards concentrated on her

back condition which was causing her more pain and discomfort at that time. I

have also noted that in his report to the defendant on 4 January 2012, Dr

Edwards stated that on her presentation on 29 August 2011 “no mention was

made at the time of any significant neck pain”.

48 I also find that it is probable that Ms Mesch did in fact complain of neck pain to

Dr Saha on 6 December despite an absence of this symptom being recorded

in the clinical notes on the basis that Dr Saha arranged for Ms Mesch to

undergo a CT Scan of her cervical spine on 7 December 2011. Presumably,

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DECISION

Ms Mesch did in fact complain of neck pain otherwise there would have been

no need for Dr Saha to organise a radiological examination of her cervical

spine. I accept the evidence given by Ms Mesch that she informed Dr Saha of

the injury sustained at work on 1 December 2011 and the entry in the clinical

notes of heavy lifting at home on the weekend was incorrect. The history

recorded by Dr Vesga at the Latrobe Valley Regional hospital on 10

December is also strongly suggestive that she initially experienced neck pain

following the incident on 23 August by her notation that; “pt has previous work

injury which she has returned to work gradually but still has neck pain”.

Furthermore, the entry by Dr Edwards on 12 December; “has now developed

c spine pain. progressively developed. Now includes c spine”, is consistent

with the evidence Ms Mesch gave that her neck condition progressively

deteriorated over time.

49 I find that the mechanics of the original injury, that is, the arching of her back,

to squeeze through a congested area, is not inconsistent with an injury to the

back and cervical spine as opined by Dr Edwards and Mr Kossmann.

50 The defendant, although highly critical of Ms Mesch in relation to her failure to

provide her doctors with complete and precise particulars of all incidents at

work, failed to call any evidence to rebut her allegation that; she laid on the

floor of her Manager’s office on 29 August 2011 because of the pain she was

experiencing; that she aggravated her “upper back and neck” on 1 December

2011 when working in the Mens Shoe Section as a consequence of

manoeuvring a box that became jammed; or, that on the 28 March 2012, she

further aggravated her “neck, shoulders and upper back” when she prevented

a panel attached to a gondola falling on her. I accept her evidence that these

events occurred.

51 The medical evidence indicates that Ms Mesch aggravated her back and neck

injuries as a consequence of the incidents arising out of or in the course of her

employment on 1 December 2011 and 28 March 2012.

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DECISION

DECISION

25

52 I find that the failure by Ms Mesch to give notice of her neck injury to the

employer within 30 days of 23 August 2011 has not caused any unfair

prejudice to them and, in any event, in the circumstances, it would cause

serious injustice to her if she was prevented from being entitled to

compensation for the injury sustained on that date, because of her failure to

give notice of that injury pursuant to s 102(1). I also accept that Ms Mesch had

a special excuse for not lodging her claim form until 15 August 2012 in relation

to the incident on 28 March 2012, in that she relied on the advice of the Acting

Store Manager of the defendant and was concerned that if she did she may

not be permitted to return to work.

53 On the basis that I accept Ms Mesch as a witness of truth, I find that she did

sustain injury to her cervical spine and back as alleged on 23 August 2011. I

also find that her cervical spine condition progressively worsened over the

ensuing months leading to disc herniation at C4-5 and disc bulging at C6-7 as

revealed by the MRI Scan on 17 December. I find that the incidents at work on

1 December 2011 and 28 March 2012 aggravated her pre-existing injuries.

54 Accordingly, Ms Mesch is entitled to weekly payments of compensation from 1

December 2011 in accordance with the provisions of the Act together with

reasonable medical and the like expenses as a result of the compensable

injuries she has sustained which arose out of or in the course of her

employment.