Bruckner v Victorian WorkCover Authority
[2023] VCC 1729
•2 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00250
| MAYA BRUCKNER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August & 29 August 2023 | |
DATE OF JUDGMENT: | 2 October 2023 | |
CASE MAY BE CITED AS: | Bruckner v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1729 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – Workplace injury – Cervical spine injury - Independent supervening event – Whether first injury resulting in loss of earning capacity – Disentangling from right hand injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; De Bono v Victorian WorkCover Authority [2019] VSCA 85; Dressing v Porter [2006[ VSCA 215; Guppy v Victorian WorkCover Authority [2010] VSCA 164
Judgment: Appliation granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasides SC with Mr B Johnson | Arnold Thomas & Becker |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
1The plaintiff’s medical history is long and complex. Her claim before the Court is that she suffered injury at the Yarra City Council (“YCC”) as a cleaner in about March 2011 that has led to impairment consequences that are more than significant or marked. She claims a determination for both pain and suffering and loss of earning capacity in accordance with s325 of the Workplace Injury and Rehbiliation Act 2013. However by reason of her pre-existing health her case raises many issues for decision. These break into the following categories:
(a) What injury did she suffer during the course of her previous employment with Cummins Diesel Pty Ltd (“Cummins”) in the 1990s and what impairment consequences has it resulted in, if any;
(b) what is the workplace injury allegedly sustained at YCC in 2011;
(c) what are the impairment consequences of the injuries sustained at YCC in 2011? And if there are such consequences;
(i)Can they be separated from:
(a)those impairment consequences flowing from her injury at Cummins in the 1990s;
(b) her other injuries to the left hip, lower back and right hand;
(d) do the impairment consequences flowing from her employment at YCC satisfy the test for loss of earnings and/or pain and suffering consequences set out in the Act.
For the reasons which follow, I find for the plaintiff.
Relevant history
2I begin with an overview of the plaintiff’s history. I will deal with this in more detail as each of the above issues arise during this judgment.
3The plaintiff was born in Fiji in 1961 and left school in Year 8. She married in 1984 and came to Australia in 1985. She worked in Aged Care for about five years as a personal care attendant and kitchenhand.[1] In about 1990, she joined Cummins as a production-line worker and worked there until about 1997.
[1]Defendant’s Amended Court Book (“DACB”) 252
4During this period, she suffered injury to her right arm and neck.[2] This was variously alleged to be from the repetitive work and, on occasion, frank injuries. In 1993, her neck and right arm problems were so bad she was placed onto light duties’ work in the office.[3] Her problems continued and she ceased work in 1997, and was placed on weekly payments at the rate of 70 per cent.[4]
[2]DACB 252
[3]DACB 254
[4]DACB 254
5She swore an affidavit in 1998 in support of an application for a serious injury determination in which she stated:
“… because of my injuries and disabilities combined with lack of education, training and skills I believe I have been rendered permanently unemployable.”[5]
[5]DACB 256
6Those injuries she deposed to in the following terms:
“I still have severe and chronic right elbow pain, swelling in the elbow and arm and neck pain.”[6]
[6]DACB 256
7She then spent several years out of the workforce. She gave birth to her daughter in 1998. She began seeing her treating doctor, Dr Hai Vy Ha, in about 2000.[7] She deposed to returning to work as a food services assistant in 2001.[8] In about 2007, her employment with that organisation was transferred to the relevant employer, in this case being YCC. In September 2007, she experienced cervical neck pain for three weeks and had a CT scan. No disc protrusion or neurocompressive lesion were found.[9] She had no time off work and continued working normal full-duties. This work was 20 hours per week, four hours per day, five days per week. She worked decanting meals from regional kitchens into larger trays, scrubbing and cleaning trays, wheeling trolleys into a freezer, mopping and general cleaning-up. Her treating doctor notes record no periods of neck or right arm pain, prescription of medication for the same, or time off for any flare ups.
[7] Plaintiff’s Amended Court Book (“PCAB”) 93
[8]PACB 7
[9]Defendant’s Supplementary Court Book (“DSCB”) 3
8She then experienced aggravation of neck and right shoulder pain on 1 March 2011. She did not see Dr Ha about this until 25 August 2011. At this time, she did not nominate any particular reason for the onset of such pain.[10] She had tingling into her right hand and was sent for CT scanning and then referral to a neurosurgeon. That neurosurgeon was Mr Paul Smith. He saw her and diagnosed a facet arthropathy on the right side at C4-5 of the cervical spine and referred her to Dr Valerie Tay, a neurologist.[11] Dr Tay found no specific peripheral nerve cause for her symptoms.[12]
[10] DSCB 138
[11]Dr Smith at PACB 53 and Mr Dr Tay at PACB 61
[12]PACB 61
9After trialling a cortisone injection at the C4-5 level, Mr Smith concluded, in May 2012, that no further investigation was warranted and conservative management was appropriate. [13] He opined that the plaintiff should return to work, but with no mopping duties, as this tended to flare up her condition. Up to that point, the plaintiff had been on and off work and on modified-duties work. Her claim in respect of the injuries, for weekly payments and medical expenses, had been accepted on a limited basis from March 2011 to 8 February 2012.[14]
[13]PACB 54
[14] PACB 159
10Then, on 9 May 2012, she aggravated her neck while operating a dishwasher at work.[15] She submitted a claim form for injury to the neck, shoulder and right arm, which was accepted. After one week off work she returned to work on modified duties. Her claim entitlements in respect of this claim were then terminated in August 2012.
[15]PACB 7
11From that time on she worked her usual hours Monday to Friday. She did her usual food services assistant duties, save for mopping. She received the same income. On occasion, she had a repeat of pain and had some periods off work from March to April 2014.[16] Then, her treating doctor issued her with a modified-duties certificate, which stated that she be limited in repetitive overhead movement, no repetitive movement and a maximum lifting restriction of 5 kilograms.[17] These specific modified-duties work restrictions ended on 5 May 2014. The plaintiff worked on from this time on her usual modified duties up until 2017. She gave evidence that she worked 20 hours per week and did her usual job tasks, save for mopping.
[16]DSCB 5-16
[17]DSCB 9
12She had an unrelated ankle injury in September 2015 and Dr Ha specifically noted, in the Certificate of Capacity for that ankle injury, that her physical function of being able to use her right hand, reach above shoulders, lift and move her neck, was not affected.[18]
[18]DSCB 81
13A review of her treating doctor notes do not show ongoing medications, physiotherapy or consultations for any neck problems in 2015.
14In November 2016, she experienced aggravation of her neck pain while lifting from an overhead shelf.[19] She saw her treating doctor and had an MRI scan. No time was taken off work, no specialist referral was made and no medication was prescribed. She started a course of physiotherapy. That treatment occurred at her general practitioner’s clinic under Mr Robert Dib for about three weeks. That treatment then ceased on 20 December 2016.[20]
[19]DSCB 89-90
[20]DSCB 89 and PACB 107
15Despite regularly seeing her treating doctor over the next few months into 2017, there is no recording of a return or persistence of neck pain. She remained at work doing normal hours and duties. However on 9 March 2017, the plaintiff attended her treating doctor with pain in her right wrist[21] and was referred for x-ray and ultrasound. Broadly, she was diagnosed with DeQuervains and a degenerative arthropathy of the carpometacarpal joint of the dominant right hand.[22] She put in a WorkCover claim for the right-wrist injury, which was accepted. She began conservative treatment under the care of the hand specialist, Mr Bennett.[23] Her care with Mr Bennett involved wrist splinting. Interspersed with treatment for the right hand she complained to a medico-legal practitioner, Dr Gary Davison, on 16 July 2017 of neck pain.[24] She was certified by her treating doctor, Dr Ha, as suitable for modified-duties work on account of her right-wrist injuries.[25] The Certificates of Capacity are focused on the right-wrist injury and its incapacitating impact. They also, however, repeatedly note under the capacity assessment for physical function that the neck function is adequate, as is the ability to reach above shoulder height. Her treating doctor put her onto Panadeine Forte and Mobic[26] during this period for the right wrist problem. She remained at work doing light duties 20 hours per week without tasks involving the right wrist which meant no peeling or lifting, no scrubbing, using a dishwasher or lifting heavy weights.[27] Her claim for the right wrist was terminated from September 2017.
[21]DSCB 147
[22]PACB 100
[23]PACB 109
[24]DACB 27
[25]These WorkCover certificates can be found at DSCB 17-80.
[26]DSCB 150-151
[27]DSCB 38
16She continued working light-duties work in an office and then took long-service leave in November 2017.[28] Her long-service leave went for six months.
[28]DSCB 158
17She then attempted to return to work in April 2018, relying on Ceriticates of Capacity from Dr Ha which sought modification of her duties due to her right-wrist and thumb DeQuervains syndrome. Her employer, however, did not accept these restrictions and she was terminated. Since that time, she has not worked.
18Skipping briefly over the following history. I record that she has had investigations for neck pain and headache in the latter part of 2019.[29] She had further similar investigations for worsening neck pain and headache in mid-2020[30] and then again in late 2021.[31] No specific abnormality was detected in those investigations. She remains at home. She suffered an unrelated aggravation of lower-back pain, which was investigated. She has been prescribed medication and is under the care of her new treating doctor, Dr Christian Wiseman, more recently.
[29]PACB 65, PACB 113, PACB 46 and PACB 47
[30]PACB 119 and PACB 121
[31]PACB 49 and PACB 130
Did the plaintiff sustain injury at Yarra City Council?
19The first question that arises is as to whether the plaintiff sustained an injury at YCC. Plaintiff’s counsel identified this injury as arising throughout the course of employment and culminating in the onset of symptoms in March 2011. The injury was identified by plaintiff’s counsel as being an aggravation of cervical spondylosis. The defendant’s overarching argument was that the presentation in 2011 was no more than a natural progression of degenerative changes acting on the damage sustained during her employment at Cummins.
20In addition, the defendant argued that the claimed impairment consequences were almost identical as between the alleged Cummins’ caused impairment consequences and the alleged YCC consequences. Reliance was placed on Petkovski v Galletti[32] to suggest that the plaintiff could not adequately delineate between the injury and its consequences arising at Cummins to those said to arise at YCC.
[32][1994] 1 VR 436
21I reject the defendant’s arguments and I find that the plaintiff sustained an aggravation of cervical spondylosis by reason of her work with YCC. The injuries sustained at Cummins were no doubt of a similar nature, involving aggravation of degenerative change at the cervical levels. This does not, however, by itself, preclude further aggravations of that condition occurring.
22In addition, the consequences complained of as flowing from the Cummins’ employment were not static, but clearly varied. There was an acute phase and then, as I will set out, somewhat of a resolution of those impairment consequences. Reasons for this can be speculated upon, such as the fact that she had ceased a manual job with alleged repetitive physical tasks and took several years off, which might have allowed for a greater degree of recovery. That seems logical to me, however, is somewhat speculative, so I do not rely on it. What is fact, however, is that no notes were produced from Dr Ha’s clinic prior to 2007 with any record of ongoing neck problems. Remembering that she began seeing Dr Ha in 2000 and started working in 2001 as a food services assistant at that time, doing similar duties to those at the YCC, I consider this to be significant. It would have been thought that if the injury at Cummins had ongoing impairment consequences, they would have shown up in Dr Ha’s notes or time off work due to pain and limitation of movement. That they did not strongly suggests an amelioration of the Cummins impairment consequences.
23Examining the 2007 CT scan is only of limited use, because there is no indication of a particular problem said to demonstrate a reason for the presentation. The notation of only mild facet arthropathy suggests a pathological state or a progression of degeneration but does not seem related to her work at that time. There is also no record of the need for time off work, medication or physiotherapy. The entire episode seems self limited to a period of only a few weeks. I find that it was no more than a minor temporary episode of transient pain.
24Thereafter, some four years elapsed of constant work of 20 hours per week in a manual job, with no ongoing complaints recorded by the treating doctor or time off work for any injury-related neck problem. This, I consider, to be strong evidence that any injury and its impairment consequences from Cummins had well and truly subsided by March 2011. This means that I find, from 2001 to March 2011, the plaintiff worked as a food services assistant twenty hours per week doing manual tasks as set out above. She had no time off for any neck problem, no medications and no treatments.[33] She had a normal social life and her family life involved assisting in household tasks and raising her child. To the extent the principles of Petkovski v Galletti are engaged, I find there is a clear delineation in respect of any injury and its consequences after the Cummins employment and prior to March 2011. The fact that, after March 2011, the plaintiff saw a doctor regularly, beginning in August 2011, was taking prescribed pain medication, was referred for specialist consultations and had to have modified-duties work imposed for a period, stands in stark contrast to the situation between 2001 and 2011. These matters clearly support the fact of an injury occurring at YCC, as the plaintiff submits.
[33]DSCB 163
25In addition to that is the opinion of the treating specialist, Mr Smith. Though he uses the term “exacerbation” in his reporting, this is not to deny the effect the YCC work has had, as the defendant would have it. This opinion carries considerable weight, given Mr Smith was a treating practitioner “on the scene” at the relevant time. I afford his opinion great weight.
26There are also other matters I consider support this finding, such as the opinion of the Medical Panel[34] and that of Associate Professor Teddy[35] and Dr Hazem Akil.[36] The acceptance of the claim by the insurer is also a factor supporting the existence of an injury.
[34]DACB 95
[35]DACB 199-120
[36] PACB 148
27I also note the opinion of the medico-legal practitioner, Mr Richard McArthur, in 2012, which supports the proposition of an injury and led to the insurer’s acceptance of the claim. This is also an important piece of evidence as it is a contemporaneous finding.[37]
[37]DACB 12
28The next point the defendant raised as to why the plaintiff sustained no injury at YCC was related to the late notice of the March 2011 injury. The defendant suggested the notes of the treating doctor revealed that, despite the allegation of injury presenting in March 2011, no complaint nominating work as a cause was made at the initial consultation with Dr Ha in August 2011. I do not consider this of much weight given the plaintiff shortly thereafter saw Mr Smith in November 2011 and he took a thorough history from her. Based on that, he informed her that work was likely a contributing factor.
29I also reject the opinion of Dr Anthony Menz, who the defendant called in aid, because I prefer the contemporaneous recordings of Mr Smith. He saw her numerous times in a therapeutic setting. This is in contrast to Dr Menz’s opinion formed after one consultation some ten years after the initial complaint. The fact he has seen her for only one consultation, temporally disconnected from the onset of symptoms, substantially weakens his opinion.
30To sum up on this issue, I accept the plaintiff suffered injury throughout the course of employment with YCC. I find that injury is an injury to the cervical spine, being an aggravation of degenerative changes. The parties accepted that, if that finding was made, the relevant date of injury would be March 2011.
Which impairment consequences are caused by the accepted injury?
31The plaintiff focused primary attention on her application for loss of earning capacity certification. It is useful to set out some principles which operate to guide the assessment of this case. In order to succeed in such an application, the Court of Appeal in De Bono v Victorian WorkCover Authority (“De Bono”) identified the criteria the plaintiff must satisfy:
“As the respondent correctly submitted, in order to succeed in his application for leave to commence a proceeding claiming pecuniary loss damages, the applicant had to establish that:
(d)his loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being at least very considerable; and
(e)he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 134AB(38)(f); and
(f) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.”[38]
[38]De Bono v Victorian WorkCover Authority [2019] VSCA 85 (“De Bono”) at paragraph [47]
32In this case, the Plaintiff’s case in respect of the cervical spine injury is complicated by the right arm injury which altered her occupational capacity in 2017. The issue of how supervening events such as this are to be dealt with have been considered by superior courts.
33In the matter of Acir v Frosster [2009] VSC 454 at [175], Mr. Frosster suffered a back injury in 2005. In late 2006 he was found to have an unrelated potentially terminal cirrhosis of the liver. In considering whether the 2005 back injury was a serious injury for loss of earnings purposes, His Honour Forrest J stated “on this analysis a court would be entitled to look at a worsening of a pre-injury condition affecting a worker’s capacity before the injury but not to an independent supervening medical condition which would be a consideration solely at the damages trial.”
34This comment was made by his Honour in the context of considering the period of three years before and three years after the injury in order to set the without injuries earnings figure that most fairly represented earning capacity. However I consider the reasoning expressed by his Honour to be apposite to the situation confronting the plaintiff in this case.
35In the matter of Dean v Crossway [2011] VSCA 198 the Court of Appeal was dealing with a worker who had suffered injury in 2001 (“the first incident) and again in 2002 (“the second incident”). The Victorian WorkCover Authority had granted a serious injury certificate in respect of the second incident for both pain and suffering and loss of earning capacity. That claim had resolved. The worker then sought serious injury determinations in respect of the first incident in 2001. In considering the effect of the 2002 second incident the Court of Appeal stated at paragraph 98 that “…it was the second incident which destroyed the appellants earning capacity altogether. This was an independent supervening event which cannot be taken into account in determining the extent of the appellants loss of earning capacity arising out of the first incident”.
36The result is that the plaintiff in this case has to demonstrate that as at the date of trial her neck injury is incapacitating her for work. It is sufficient to satisfy the criteria set out in De Bono above. The fact that her right arm injury prevented the exercise of that capacity in 2018 does not prevent her claim in this respect. Turning to assess the medical evidence first.
37Starting with Dr Ha. She has not seen the plaintiff since about June 2017. She noted that any work involving manual duties in the kitchen would be likely to aggravate the injuries.[39] This was not a comment specifically directed to the neck injury so it must be treated with some caution. The Certificates of Capacity issued from March to October 2017 by Dr Ha in relation to the plaintiff’s claim of her right arm injury reveals that her neck movement was not affected during this time.[40] However, there are two progress notes in the Certificates of the plaintiff developing pain in her neck and a month later, aggravating her neck from working administrative duties.[41] Further, the plaintiff saw Dr Ha in July 2017 and stated she had been overcompensating with her left hand and therefore aggravating the left side of her neck.[42] I do not consider the effect of the Certificates on the assessment of neck pain of much weight given the substantive claim was in relation to her right arm injury and that was the focus of treatment at that time.
[39]PACB 106
[40] DACB 350 - 413
[41] DACB 364
[42] PACB 105
38Her next treating doctor, Dr Read, considered she could return to work in Aged Care but could not lift above 5 kgs and with no repetitive movements above her shoulder height.[43] Dr Flint, a pain specialist recorded similar findings.[44] Her current treating doctor provided no comment as to her capacity.[45]
[43]PACB 108
[44]PACB 132
[45] PACB 59
39As to medico-legal reports, the plaintiff relies on Dr Akhil’s opinion which is that the plaintiff has no current work capacity and such is likely to be her condition into the foreseeable future.[46] The opinion of Mr Chehahta can be put to one side due to its factual inaccuracy.
[46]PACB 151
40The defendant’s material is not specific as to work capacity as a result of the neck injury. Neither Professor Teddy[47] or Dr Menz provides a definite contrary view. Professor Teddy however accepts that she will continue to experience ongoing neck and right shoulder pains, varying in severity and frequency.[48] Dr Menz’s opinion was that there was a poor prognosis with ongoing pain in the neck and right shoulder. However, as noted above, his opinion carries little weight.
[47]DACB 120
[48]DACB 120
41The plaintiff’s background has some bearing on this finding. She is a 62 year old woman. She has only ever worked in manual occupations. She has limited training and education to work in alternative employment.
42As part of the assessment of her capacity it is also necessary to say something about the plaintiff’s credit and demeanour. I formed the impression that she was a witness who tried openly and honestly to answer questions. To the extent she was said to have downplayed her injuries and impairment consequences from her time with Cummins, I consider she answered openly and did not try to conceal any matters. For example, she conceded that in 1999 her problems had worsened and this was after leaving Cummins. It was an admission against interest because it could be expected she would give evidence that her symptoms abated after leaving Cummins. This supports her argument that it has been the work at YCC that was the problem. This admission stands to her credit. Overall, I consider she is a witness of truth and I accept her evidence.
43That leads me to accept that she has ongoing significant problems with her neck. Those problems cause persistent pain,[49] limitation in repetitive movements and in the weight that she can lift.[50] Those matters are significant enough that she has Pregabalin 75 mg per day, Nurofen two tablets at night, ibuprofen daily and Panadol up to four per day. This is an indication of the strong pain that she is in. If she is said to have capacity she would have to work through this pain and with that level of medication. I consider it important that she was not on this level of pain relief in 2017 when she took her long service leave. It was only in August 2019 when her pain worsened that she began on the stronger pain medication.[51] It was submitted that this was an aggravation of the condition caused by the tripping on a step.[52] The plaintiff conceded this when confronted with the treating doctors notes. However, when regard is had to the full note it is clear that the doctor was dealing with a long standing neck problem. As I have accepted that she currently has a work related injury, I similarly find that its consequences began worsening in 2019 and have progressed to the point where she is significantly, functionally limited.
[49]T51, T80, PCB 8
[50]See Dr Read above.
[51]DCB 440
[52]T51.14
44Given the background circumstances of the plaintiff in combination with her ongoing symptoms and limitations caused by her neck injury I consider that the plaintiff has no capacity for work.[53] To the extent that it was suggested that this was caused (or entangled) with conditions related to her right hand, left hip and back I do not accept that submission.
[53]Aluthgamage v Select Car Personnel Pty Ltd [2012] VSCA 111 at [47]
45As to the right hand it is undoubtedly causing ongoing problems. The plaintiff’s affidavit of 3 August 2023 states:
“… Separately, I have also continued to have pain and restrictions from my right shoulder, right elbow, right wrist and right thumb injury.”[54]
[54]PACB 17
46She went on, at paragraph 13 of the affidavit to say:
“… I do still experience pain and restriction from my right shoulder, right elbow, wrist and thumb, but can manage this in my day-to-day activities by using my left hand more so.”[55]
[55]PACB 18
47However there can be two incapacitating injuries, here the neck and the right hand, but this does not deprive the neck injury of its quality and effect on her capacity.[56] That is the situation here.
[56]Dressing v Porter [2006] VSCA 215 [47]
48As to the left hip and back injury, I accept the plaintiff’s evidence that these no longer affect her.[57] As a result there is nothing to disentangle from the effect of the neck injury.
[57]T82 L16 - 27
49Having set those matters out, I find the plaintiff has no capacity for work and such is likely to continue indefinitely.
50That finding is sufficient to dispose of the proceeding as the plaintiff is entitled to determinations for both loss of earning capacity and pain and suffering.
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