Guskic v Ritchies Stores Pty Ltd
[2021] VCC 738
•18 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05859
| Vidanka Guskic | Plaintiff |
| v | |
| Ritchies Stores Pty Ltd | Defendant |
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JUDGE: | Her Honour Judge Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2021 | |
DATE OF JUDGMENT: | 18 June 2021 | |
CASE MAY BE CITED AS: | Guskic v Ritchies Stores Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 738 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE ACCIDENT COMPENSATION
Catchwords: Serious injury - cervical spine injury – pain and suffering – loss of earning capacity – work-related injury or constitutional degenerative changes
Legislation Cited: Workplace Injury and Rehabilitation Act 2013 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC Mr A Fraatz | Patrick Robinson & Co Lawyers |
| For the Defendant | Ms K Galpin | Wisewould Mahony |
HER HONOUR:
1Ms Vidanka Guskic applies under s 335 of the Workplace Injury and Rehabilitation Act 2013 (Vic) for leave to issue proceedings for the recovery of damages in respect of an injury to the cervical spine (“CS”) which she suffered during the course of her employment with the defendant; alternatively, as a result of workplace injuries to the CS which occurred on 24 October 2008 and either 6 or 13 September 2016.
2The defendant concedes that the plaintiff is permanently incapable of working due to the impairment of the function of her CS. However, it says that her application should be dismissed for a number of reasons. First, that there is no evidence to support a “course of employment” submission. Second, that the plaintiff failed to mention the work-relatedness of her 2008 injury to colleagues, or the defendant, or treating doctors until 2016, when she sought legal advice concerning her alleged 2016 injury, and so the Court cannot be satisfied that the 2008 workplace incident occurred as the plaintiff contends. Third, that the medico-legal opinion of Mr Rodney Simm, orthopaedic surgeon, which contains a full history of the plaintiff’s CS issues, and which accords with that of Mr Kevin Siu, neurosurgeon, is to be preferred to the medico-legal opinion of Professor Richard Bittar, consultant neurosurgeon. Mr Simm diagnosed the plaintiff’s condition as one of constitutional/genetic age-related degenerative changes in the cervical spine affecting the C5/6 and C6/7 intervertebral discs with some associated osteophyte formation.
3The plaintiff swore two affidavits in support of her application. She gave evidence and was cross-examined at the hearing. No other witnesses were called to give evidence. The parties tendered court books. I have considered all of the evidence.
The plaintiff
4The plaintiff’s evidence can be briefly summarised as follows.
5She is 60 years old and arrived in Australia from Bosnia in 1991 at the age of 31. She had limited English skills. She stayed at home to raise her four children. She suffered from fibromyalgia in 2002 but recovered. She is right-handed.
6Her first job in Australia was with the defendant, for whom she commenced working in July 2006, initially as a cashier. She then worked as a cash office controller, which she performed at various supermarkets in and around Melbourne, although she worked predominantly at the West Bentleigh store. She was good at her job and when she finished her cash control duties at West Bentleigh she would stack supermarket shelves.
7The first incident occurred on 24 October 2008 while she was stacking bottles of soft drink on the top shelf. She stood on the bottom shelf, held onto the shelves with her left arm, and used her right arm to lift a package of 24 bottles from the top shelf of the fridge,[1] when she felt a click followed immediately by severe pain and restrictions in her neck. She was reluctant to report this incident and injury to her employer at the time because she feared she might lose her job.[2]
[1] Transcript of Proceedings, Guskic v Ritchies Stores Pty Ltd (County Court of Victoria,
CI-19-05859, Judge Davis, 8 June 2021) (‘T’) 15.10-17.
[2] Plaintiff Court Book (“PCB”) 13 [9].
8She sought medical treatment for her neck condition and kept working. Radiological investigations in late 2008 confirmed a disc herniation at C5/6 with “mild ventral indentation without frank cord compression or central canal stenosis”,[3] as well as “shallow relatively broad based left paracentral disc herniation which does not contact or compromise neural structures” at C6/7.[4] On 7 January 2009, she awoke and could not walk,[5] and on 9 January 2009 she underwent emergency surgery in the form of a C5/6 anterior cervical decompression and fusion.[6] The defendant’s assistant manager, Samuel Butler, visited her after surgery and she told him about how she was injured,[7] but she could not recall whether she mentioned the employment-related circumstances of the 2008 injury to her treating doctors at the time.
[3] Defendant Court Book (“DCB”) 98.
[4] Ibid.
[5] PCB 14 [10], 138.
[6] PCB 14 [11], 34.
[7] T17.8-11.
9She had a good result from the surgery with only mild persisting symptoms of pain and restriction. She returned to work after three months on limited hours but resumed full time hours about one month later. Her position changed to that of relief worker, replacing staff at various supermarkets. She was expected to complete the cash controller work and also to stack shelves, work on the register, clean and close the stores.
10There were complaints of neck pain to her doctor on a few occasions in 2013. During 2014 she experienced increasing neck pain and right shoulder and right arm pain. She could not manage full-time work as a cashier, and requested a reduction of hours to 23 hours per week. In early 2016, she developed increasing neck pain and recurrent right shoulder and arm pain, with some numbness in the digits of the right hand. She was to be seen as an outpatient by a neurosurgeon but her appointment was delayed.
11The second incident occurred on Tuesday, either 6 or 13 September 2016, while she was closing a supermarket in Wantirna. Part of the closing up tasks included picking up and hanging up rubber floor mats near the register, to enable the cleaners to clean the store overnight. Each mat weighed about 6 kg. This was the first occasion that the plaintiff was to pick up the mats. She picked up one mat from the floor. When picking up the second or third mat, she experienced a sudden onset of severe neck pain. She told her colleague, Elwyn Heald, that she had severe neck pain and arm pain. The plaintiff conceded that this conversation could have occurred either on the day of the incident or on the following Tuesday. Elwyn Heald knew that the plaintiff was to pick up the mats on the day she was injured, but did not see her do it. There were no supervisors at the store at the time, and two days later the plaintiff told her manager, Bruce Enmore, and her assistant manager, Moeez Ejaz, that she had severe pain in the neck and arm.[8] She asked Mr Ejaz whether she needed to fill in any forms concerning her work injury, but he told her not to worry. She was told to have a massage. This was the first time in her life she had been for a massage.
[8] T27.20-25.
12Her neck pain became progressively worse, and although she returned to work after two weeks in October 2016, she found that she could not cope. She was referred to Mr Patrick Lo, neurosurgeon, in October 2016, who diagnosed a left C6/7 disc prolapse and adjacent segment disease. Mr Lo performed two left C7 nerve sheath injections which gave her only short-term relief.
13Her treatment was then taken over by another neurosurgeon, Mr Alex Adamides, who performed surgery on 6 May 2017 in the form of a left C6/7 posterior foraminotomy. The plaintiff woke from that surgery with right-sided arm pain, which persisted. The surgery did relieve her left arm pain and neck pain for a while.
14In 2018 and 2019, she underwent pain management treatment in the form of a combination of physiotherapy, hydrotherapy and psychological treatment, and found this helpful. However, she continued to have significant neck pain with referred pain into the right arm. She had further investigations which did not reveal any ongoing nerve compression in the CS,[9] but her treating general practitioner, Dr Macaulay, considered that some of her right shoulder pain could be related to the neck injury. She has had 6 cortisone injections for her neck, right shoulder and arm symptoms and has seen her treating neurosurgeon 3 times this year. Mr Adamides has flagged the possibility of a further cortisone injection and then possibly further surgery to the CS.
[9] PCB 76.
15She continues to suffer constant neck pain with referred pain into the right arm. She has restrictions in movement which cause her difficulty showering, washing her hair and dressing. She takes medication daily (Lyrica, Mobic, Panadol Osteo and Nurofen) for her symptoms, which interfere with her sleep, and which have caused her to suffer depressive symptoms. She has become socially isolated. She cannot sit, stand or walk for long periods, and is unable to do domestic cleaning or to drive more than short distances. She used to love long walks, swimming, cooking, gardening, sewing and reading, but can no longer undertake these activities. She is unable to care for her younger grandchildren and is very disappointed about this. She is no longer able to travel to Serbia to visit her children and grandchildren there.
Evidence of co-workers
16The defendant tendered affidavits of various employees who worked with the plaintiff. Their evidence is to the following effect.
17Jason Craig, cash office administrator, was the plaintiff’s supervisor. He found her to be a “great worker” who did a lot of extra work without complaining.[10] He knew that the plaintiff had problems with her neck, but she did not tell him it was work-related. He stated that the plaintiff came off register duties because she complained she could not stand for too long. On 12 September 2016, the plaintiff told him that she could not do a shift because she had organised a massage to help with her sore shoulder. She later told him she experienced a sudden onset of neck pain. On 18 September 2016, the plaintiff advised him that she was in the emergency department due to a pinched nerve but she did not mention that it was work-related. He did not recall the plaintiff ever mentioning the work incidents of September 2008 and September 2016 to him.
[10] DCB 24 [49].
18Haedee Kuys, payroll manager, was responsible for maintaining the injury logbook. She stated that the plaintiff was a hard worker who travelled around to a number of stores and that she never reported a work-related injury to her. She confirmed that Elwyn Heald was absent from work on Tuesday 6 September 2016 due to illness.
19Bruce Atkin was the plaintiff’s supervisor between 2010 and 2016. He found the plaintiff to be a competent worker who never complained and was always looking for more work. The plaintiff never mentioned the first incident to him. In a discussion in about 2010, the plaintiff told him that she previously had a neck operation but he did not recall her mentioning that it was work-related. The plaintiff also told him at different times over the years that her neck was playing up but she never said that she could not work because her neck was causing her problems.
20Moeez Ejaz, store manager, met the plaintiff in about 2015 when he was an assistant manager. He did not recall the plaintiff mentioning the second incident to him in September 2016. At that time, the plaintiff told him that she was experiencing pain after getting a cupping massage. While he was working with the plaintiff, she mentioned neck pain from time to time and told him it was as a result of a prior injury, but she did not say work was causing her any problems.
21Elwyn Heald worked for the defendant as a cashier from about 1996 to December 2020. She met the plaintiff in about 2010 or 2011. She found the plaintiff to be a hard worker who never complained to her about her duties. Ms Heald was present at work with the plaintiff on a Tuesday evening in September 2016.
22Ms Heald said there were six mats at the registers which needed to be moved at the end of each day, and that would be done by the person who was working, alone, on the registers at around 8 pm. The plaintiff was that person. Ms Heald told the plaintiff that she would get one of the younger staff members to do the mats, and that due to their age neither she nor the plaintiff should lift them, as were “too heavy”.[11] The plaintiff said she was very strong and was able to move them. This was the first time the plaintiff had picked up the mats. Ms Heald did not see her pick up the mats as she was busy doing her duties.
[11] DCB 47 [k].
23A few days later, the plaintiff sent Ms Heald a message to the effect that she had no feeling in her arm and had a sore neck. The plaintiff did not say that she suffered injury moving the mats. Ms Heald told the plaintiff: “I bet it was the mats that did it”,[12] but did not recall what the plaintiff said in response.
[12] DCB 47 [33].
Vocational assessment report
24In the light of the defendant’s concession that the plaintiff has no work capacity due to her CS impairment, it is unnecessary to canvass the vocational assessment reports tendered by the plaintiff apart from noting that they agree that she will permanently have no capacity for suitable employment or retraining due to her limited skills, pain, restrictions, effect of medication and poor concentration.[13]
[13] PCB 137-150.
Medical opinions
25The plaintiff’s current treating medical practitioner, Dr Macaulay, considered that the majority of the plaintiff’s neck and upper limb symptoms relate to her 2008 and 2016 workplace injuries to the CS.[14] He noted that she continues to experience severe pain in the neck and both arms due to her C6/7 injury and is incapacitated for work.
[14] PCB 77.
Medico-legal opinions
26Mr Siu provided four reports to the defendant’s solicitors. He received a history from the plaintiff of significant neck pain after lifting mats in 2016. Her condition had not yet stabilised and she was due to be reviewed by her treating neurosurgeon. In his second report dated 6 March 2020,[15] Mr Siu noted the history of a prior work injury followed by surgery to the CS in 2009. He opined that lifting mats in 2016 could have caused her CS injury. His third report was not relevant to the claimed incidents. In his fourth report, dated 21 December 2020,[16] Mr Siu opined that the plaintiff most likely sustained an injury when she twisted the right upper limb in 2008 while lifting a stack of bottles. He noted that in 2016 she had symptoms of cervical spondylosis, and then in September 2016 had an onset of severe right arm pain while rolling some mats. He saw the work-related incident in 2016 as causing an exacerbation of her pre-existing condition.[17] He considered that the MRI scan of September 2016 showed a very small focal spur disc protrusion at the central aspect of the left C6/7 exit foramen, with a possible compression of the exiting C6 nerve root.[18]
[15] DCB 61-64.
[16] DCB 68-74.
[17] DCB 73.
[18] DCB 71.
27Mr Simm reported to the defendant’s solicitors on 16 December 2020[19] that he received a history of injuries to the neck at work in 2008 and 2016.
[19] DCB 75-89.
28He diagnosed “constitutional/genetic age-related degenerative changes in the cervical spine affecting the C5/6 and C6/7 intervertebral discs with some associated osteophyte formation”.[20] He noted that there was no report of a work-related injury to the general practitioner in October 2008 but he concluded that she suffered “a spontaneous right-sided protrusion of the C5/6 intervertebral disc in October 2008”,[21] after which she experienced neurological symptoms consistent with right C6 nerve root involvement and underwent appropriate surgery with a good outcome. She had some further symptoms in 2016 and was due for neurosurgical review. She did not mention the work-related injury in September 2016 to her doctor. Mr Simm opined that the lifting strain in September 2016 may have caused some increase in neck pain.[22] He noted that the 2017 surgery was unsuccessful and that the plaintiff was left with “sensory changes, suggestive of C6 dermatomal involvement, in both upper limbs, particularly the right”.[23] He concluded that “the clinical course has features of a chronic adverse pain response”,[24] but he did not state the basis of this opinion.
[20] DCB 84.
[21] Ibid.
[22] DCB 85, it is unclear what Mr Simm meant by the rest of the paragraph.
[23] DCB 85.
[24] Ibid.
29He opined that most patients with pathology at one level of the CS would have multilevel pathology, which meant that there was an increased risk that surgery at one level would lead to the development of symptoms from adjacent disc pathologies.[25]
[25] DCB 87.
30Mr Ash Chehata, orthopaedic surgeon, reported to the plaintiff’s solicitors on 17 June 2020 receiving a history from the plaintiff of work related injuries to the neck in 2008 and 2016.[26] He found that she had marked restriction in range of movement in the CS consistent with a fusion at the level of C5/6, as well as a C7 radiculopathy. He considered that the discogenic injury at the level of C6/7 was suffered as a result of the prior fusion. She had ongoing severe symptoms and discogenic pins and needles and numbness with weakness in the distribution of the right hand and loss of strength. He felt that her prognosis was very poor.
[26] PCB 57-64.
31Professor Bittar provided two reports to the plaintiff’s solicitors. In his first report dated 7 August 2020,[27] he noted the history of workplace injury in 2008 and 2016, and the surgeries in 2009 (C5/6 anterior cervical discectomy and fusion) and 2017 (left C6/7 foraminotomy). He diagnosed aggravation of cervical spondylosis, together with C5/6 and C6/7 intervertebral disc prolapse.[28] He considered that the employment (that is, her repetitive work duties and each of the workplace incidents in 2008 and 2016) was a significant contributing factor to her ongoing neck pain, arm pain and headaches, and to her ongoing need for treatment.[29] He considered that the fusion undertaken in 2009 “has almost certainly contributed to the development of adjacent segment disease at C6/7, which became symptomatic in 2016”.[30] He felt that she had sustained a “very serious injury to her cervical spine with ongoing pain and associated disability” and that she had a poor prognosis.[31] He felt that she had no capacity for suitable employment.
[27] PCB 33-39.
[28] PCB 38.
[29] PCB 37.
[30] Ibid.
[31] Ibid.
32In his second report dated 24 May 2021,[32] Professor Bittar noted that he had re-examined the plaintiff and found severe restriction of CS flexion with moderate restriction of extension and rotation to each side, and right sided tenderness without muscle spasm. He found no abnormal illness behaviour. He repeated the conclusions stated in his previous report. He recommended further investigations to establish the source of her right arm pain and to rule out any instability in the CS.
[32] PCB 41-48.
33He commented on the reports of Mr Siu and Mr Simm. He felt that the plaintiff had developed a chronic pain syndrome as a result of the work-related CS injury. He felt that further investigations were warranted because the onset of her right upper limb symptoms immediately after her 2017 surgery on the left side strongly suggested a relationship between that surgery and her right arm symptoms. This could have been caused by positioning during surgery.
34Professor Bittar disagreed with the opinion of Mr Simm that the claimed injuries did not alter the pathological course of her degenerative cervical disc pathology. Rather, he concluded:
…When one takes in to account the original workplace injury which led her to undergoing a C5/6 fusion and the subsequent development of adjacent segment disease at C6/7, together with the symptoms arising following the mat lifting incident in September 2016, it is clear that her cervical spine symptoms are predominantly due to work related factors and resulting surgeries, rather than to any constitutional disease.[33]
[33] PCB 46.
35Professor Bittar concluded that the injury at work in October 2008 contributed at least 80% to the requirement for the plaintiff to undergo cervical spine surgery in the form of a C5/6 fusion. In turn, he felt that this surgery played a very significant role in the development of adjacent segment disease at C6/7. The work injury in September 2016 “rendered this adjacent segment disease significantly symptomatic”,[34] thus leading to the need for further CS surgery in the form of the left C6/7 foraminotomy. He felt that the 2009 CS fusion and the workplace injury in 2016 played a roughly equal role in the need for further CS surgery in 2017, and that the surgery in 2017 has been the dominant cause of her ongoing right-sided neck pain and arm pain.
[34] PCB 47.
Findings and reasons
36I found the plaintiff to be a very straightforward witness, who gave clear and cogent evidence of the workplace incidents in 2008 and 2016 and their consequences. She made concessions where appropriate, for example, in relation to not being certain whether the 2016 incident occurred on Tuesday 6 or Tuesday 13 September. I accept her explanation for not formally reporting the workplace incidents to her employer: she loved the only job she had had since arriving in Australia, and did not want to lose it. She was clearly a valued and hard-working employee, who took on extra work when required, and who displayed great stoicism in returning to work 3 months after surgery in 2009, and then again in persisting with attempts to work in October 2017 after the severe exacerbation in her CS symptoms.
37The defendant relies on the opinion of Mr Simm referred to above to the effect that her condition is constitutional and was not contributed to by her workplace activities or either of the alleged injuries in 2008 and 2016.
38I prefer the opinion of Professor Bittar. As a neurosurgeon, he is better placed to assess the impact of the workplace incidents on the plaintiff’s pre-existing cervical spondylosis, and, unlike Mr Simm, he was not distracted by the plaintiff’s failure to mention the connection between her work and her injuries to her various treating doctors, a failure which has been satisfactorily explained by the plaintiff.
39I am satisfied that, against a background of pre-existing cervical spondylosis, the plaintiff suffered work-related exacerbations of her condition as a result of the injuries sustained in 2008 and 2016, which have resulted in a permanent loss of work capacity as well as permanent pain and restrictions which interfere with her sleep, daily activities and recreation and which require substantial daily prescription medication. I am satisfied that, in terms of loss of earning capacity as well as pain and suffering, the consequences of the plaintiff’s work-related CS impairment are at least very considerable when compared with other cases in the range of permanent impairments of the CS.
Conclusion
40Leave is granted to the plaintiff to issue common law proceedings.
41I reserve the question of costs.
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