Lead Article – May 2021

How Unlucky Can You Be?

I recently performed a medicolegal examination at the request of a solicitor acting on behalf of WorkCover.

The plaintiff, a gentleman who had been involved in a motor vehicle accident whilst working, had allegedly sustained an injury to his lumbar spine. It transpired that plane radiographic imaging confirmed that he had had a previous problem with his lumbar spine. That problem was in the form of a forward slippage of one vertebral body on another. Such findings are not overly common in the lumbar spine (probably 4-5% of people) and not all of them are necessarily symptomatic.

This particular plaintiff however had spent the preceding three decades or so working in heavy laborious environments and it struck me as being uncommon for such an individual to be truly asymptomatic. I questioned him closely about previous back pain, stiffness, medical officer visits, radiographic examinations, WorkCover claims, visits to a chiropractor or a physiotherapist, and all other sorts of possible indications that his back had previously been symptomatic. He was absolutely categoric in his denials.

Following this subject road traffic accident, he had been subjected to three separate operations and was allegedly now completely unable to work. He still had a couple of decades of working life ahead of him and you can imagine the size of the quantum claimed.

In preparing my report, and whilst not doubting the accuracy of his denials, I did refer to the possibility that if the Court did not accept that he had been completely asymptomatic, some apportionment of blame might be appropriate and that any measurable functional impairment would be accordingly reduced. In fact, his entire claim could be subject to some form of apportionment and his payout could be diminished.

As fate would have it, my secretary (who is renown for the excellence of her memory), recognised this fellow’s name. After a trawl through our records, she found that he had actually consulted with me in 1995 for this identical problem. He had been sent to me by a general surgical colleague who was concerned about the patient’s ongoing leg discomfort following an apparently successful hernia repair.

Lo and behold, he did present with a history of back pain and leg pain, I did make arrangements for radiographic examinations and his precise diagnosis was confirmed 26 years ago.

In all probability, his presentation following the road traffic accident was related to his long-standing antecedent disease and not linked in any material way with the accident itself. Whilst there is no doubt that he may have needed surgery and that he may still be suffering with discomfort, considerable doubt has been cast upon the issue of causation.

How unlucky could he be? He could have consulted any number of thousands of medical practitioners in the past and I may never had known. It just so happened that he consulted with me!