Kirsavoglu, Filiz v Ericsson Aust. Pty Ltd
[2009] VCC 1260
•29 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. 4689 of 2008
966 of 2008
| FILIZ KIRSAVOGLU | Plaintiff |
| V | |
| ERICSSON AUSTRALIA PTY LTD and | Defendants |
| ANOR | |
| FILIZ KIRSAVOGLU | Plaintiff |
| V | |
| AUTOLIV AUSTRALIA PTY LTD | Defendant |
---
| JUDGE: | Coish |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12, 13, 17 August and 23 September 2009 |
| DATE OF JUDGMENT: | 29 September 2009 |
| CASE MAY BE CITED AS: | Kirsavoglu, Filiz v Ericsson Aust. Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1260 |
REASONS FOR JUDGMENT
---
Catchwords:
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B.W. Collis QC, with | Melbourne Injury Lawyers |
| Mr A.D.B. Ingram | ||
| For the Defendant Ericsson | Mr R.P. Gorton QC, with | Lander and Rogers |
| Australia Pty Ltd and Anor | Ms K.A. Galpin | |
| For the Defendant Autoliv | Mr J.L. Parrish SC, with | Herbert Geer |
| Australia Pty Ltd | Ms M.B. Bylhouwer | |
| HIS HONOUR: |
1 When these proceedings commenced the plaintiff was seeking leave to bring proceedings for the recovery of damages in repect of three separate compensable injuries. The first was pursuant to s.135A of the Accident Compensation Act 1985 ("the Act") in respect of injury arising out of the plaintiff's employment with Ericssons Pty Ltd from 31 August 1985 to mid-1989. The second was pursuant to s.135A of the Act in respect of injury arising out of the plaintiff's employment with Autoliv Pty Ltd from mid-1995 until 12 November 1997 and the third was pursuant to s.134AB in respect of injury arising out of the plaintiff's employment with Autoliv Pty Ltd from 28 June 2000 until 23 December 2004.
2 It was alleged on behalf of the plaintiff that she initially suffered a low back injury in or about 1988 whilst employed with Ericssons Pty Ltd and this condition was subsequently aggravated in the plaintiff's two periods of employment with Autoliv Pty Ltd.
3 On the final day of the hearing the plaintiff abandoned her claims in respect of the first and second injuries therefore the only matter to be determined is the serious injury claim pursuant to s.134AB in respect of the third injury, an alleged aggravation injury arising out of the plaintiff's employment with Autoliv Pty Ltd (herein after referred to as the defendant) from 28 June 2000 to 23 December 2004 ("the relevant period").
4 The plaintiff alleges that this low back injury involving the aggravation and deterioration of a pre-existing condition is a serious injury within the meaning of paragraph (a) of the definition of serious injury. The application is in respect of both pain and suffering and loss of earning capacity. The relevant body function in which there has been impairment or loss is the lumbar spine.
5 The defendant denied that the plaintiff suffered compensable injury during the relevant period. Further, it was submitted on behalf of the defendant that if the plaintiff did suffer compensable injury during this period, such an aggravation injury was not itself a serious injury as defined. The onus of proof is on the plaintiff.
6 I have had regard to s.134AB(38)(h), which provides:
"The psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise."
7 I am familiar with and have had regard to the series of recent Court of Appeal decisions on s.134AB, commencing with Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622.
8 The plaintiff is 41 years of age, having been born on 31 March 1968 in Turkey. She is married with two children. She emigrated to Australia when she was two years of age. The plaintiff was educated to year 8 level. The plaintiff was employed by Ericssons as a process worker from 26 June 1985 to November 1989. She first experienced low back pain and pain radiating into the right leg in about July 1988. She saw her GP, Dr Erciyas, in July, August and September 1988. The plaintiff left her employment with Ericssons in mid-1989. She returned to Turkey and was married there on 15 October 1989.
9 The plaintiff had persisting low back pain. She saw her general practitioner in October 1991 and was referred for a CT scan on 14 October 1991. The radiologist's conclusion in respect of that CT scan was:
"Focal disc herniation at L4-5 level which may impinge on the left L5 nerve root, bony narrowing of the right L5 neural foramen which probably compresses the exiting right L5 nerve root at that point."
10 Dr Erciyas referred the plaintiff to Mr Kaye, neurosurgeon at the Royal Melbourne Hospital, on 5 November 1991, in view of her persisting symptoms.
11 From late 1991 to mid-1994, the plaintiff performed light process work at Hilton Hosiery.
12 In mid-1995 the plaintiff commenced her first period of employment with the defendant as a process worker.
13 The plaintiff's symptoms persisted and worsened and accordingly she was referred to Mr Petty, neurosurgeon at the Royal Melbourne Hospital, on 10 February 1997. An MRI scan was undertaken on 24 May 1997. The radiologist's conclusion in respect of that MRI scan was:
"Significant L4-5 central and left-sided disc herniation. Unfortunately, the right
side would appear to be symptomatic."
14 The plaintiff remained at work but she continued to experience low back pain and right leg pain. A further CT scan was performed on 7 July 1999. The conclusion expressed in relation to that investigation by the radiologist was:
"L4-5 significant broad-based bulging annulus which was not present on the last
examination on 14 October 1991. L5-S1 mild to moderate spondylosis."
15 The plaintiff became depressed as a result of her back and leg pain and she took an overdose of Valium. The plaintiff stopped work in November 1999. She presented to the emergency department at the Royal Melbourne Hospital and was admitted to that hospital on 5 November 1999. Her symptoms had become so severe that it was necessary for her to undergo spinal surgery. On 10 November 1999 Mr Kavar, neurosurgeon, performed a left L4-5 discectomy and hemilaminectomy. The plaintiff stated in her first affidavit that she had a reasonable result from this surgery although she did subsequently begin to develop left leg symptoms.
16 The plaintiff returned to work on 28 June 2000 and remained at work with the defendant until 23 December 2004. This is the critical period of employment in respect of this serious injury application. For approximately two years the plaintiff performed process work on the production line and for approximately two and a half years she worked in the office area. The plaintiff initially resumed work performing duties for four hours a day three days per week. Her hours were increased, but she had difficulty coping. She worked on a full-time basis from 5 November 2001 until 23 December 2004.
17 She was consulting her general practitioner, Dr Hodgson, on a regular basis and Dr Hodgson wrote a series of letters to the defendant. On 10 August 2000 Dr Hodgson wrote to the defendant suggesting a number of quite stringent restrictions which ought be imposed upon the duties the plaintiff was required to perform. It is clear from the substance of that letter that the plaintiff was complaining to Dr Hodgson of some difficulties she was experiencing at work. On 29 March 2001 Dr Hodgson wrote to the defendant stating that the plaintiff was barely coping with five hours work per day. On 31 October 2001 Dr Hodgson wrote to the defendant, again describing limitations which ought be imposed upon the duties the plaintiff was required to perform.
18 The plaintiff received rehabilitation treatment in late 2000 over a number of months and although this was beneficial she said that her spine seemed to become more painful as she continued with her work duties. She presented to her general practitioner in July and August 2002 complaining of bad back pain.
19 The plaintiff saw Mr Kavar on 23 September 2002. At that time she had a constant burning pain in her left leg. An MRI scan was undertaken at the Royal Melbourne Hospital for Prof Kaye on 3 January 2003. The conclusion of the radiologist in respect of that investigation was:
"At the surgical level there has been gross decompression resection of the protruded disc, but epidural scar surrounds the L5 root within the lateral recess and some prominent clumping of L5-S1 root would imply some adhesions or arachnoiditis."
20 The plaintiff's medical treatment included injections which were undertaken in August 2003 and April 2004.
21 In the plaintiff's affidavit, she stated that at some stage in 2004 she was transferred to full-time office duties, but by this time her back was painful "on an ongoing basis" and she had referred pain into the legs. Whilst engaged in office duties the plaintiff had to undertake some manual handling tasks. In late 2004 she was responsible for cleaning her workplace and she had to move furniture to perform this work. This caused an increase in symptoms and left the plaintiff bedridden for approximately one week. The plaintiff also had to unpack and distribute stationery supplies on occasions.
22 The plaintiff ceased work on 23 December 2004. She has not worked since this date. She said she was bedridden after leaving work. She saw her general practitioner, Dr Hodgson, on 6 January 2005. She had severe low back pain and a recurrence of severe left leg pain. In view of her severe persisting symptoms the plaintiff was referred to Mr O'Brien, neurosurgeon, at the Royal Melbourne Hospital. A further MRI scan was undertaken and Mr O'Brien was of the opinion that this demonstrated evidence of a recurrent disc prolapse at L4-5 with potential compression of the left L5 nerve root.
23 On 15 August 2005 the plaintiff underwent a second operation on her back. Mr O'Brien performed an L4-5 microdiscectomy. This surgery was not successful in relieving the plaintiff's symptoms.
24 A further MRI scan was undertaken on 19 January 2006. The findings noted on that MRI scan were:
"Previous left L4-5 discectomy noted. There is desiccation and narrowing of the L4-5 and L5 intervertebral discs. There is a broad-based left paracentral and posterolateral L4-5 disc protrusion which minimally effaces the left lateral recess without impinging on the thecal sac or the emerging nerve roots at this level. Enhancing epidural scar with encasement of the left L5 nerve as it emerges from the thecal sac is demonstrated at this level. There is no impingement on the emerging L4 nerves on either side. The lumbosacral disc demonstrates a broad-based non-compressive disc protrusion. The L5 nerves emerge bilaterally without further impingement. There is mild facet joint degenerative change bilaterally at this level."
25 The plaintiff was reviewed on occasions in 2005 and 2006 in the Royal Melbourne Hospital neurosurgical outpatients clinic complaining of back pain and left-sided sciatica. She was prescribed oral prednisolone and MS Contin for pain relief. It was the opinion of the neurosurgeons at the Royal Melbourne Hospital that there was no surgically remedial lesion in the lower lumbar spine.
26 The plaintiff experiences severe pain and discomfort. She considers herself to be effectively unemployable and her general practitioner is of the opinion that she has no capacity for work. Her social, recreational and domestic activities are grossly reduced because of back and leg pain. She has experienced years of chronic pain. She has also had psychiatric and psychological treatment for depression and chronic pain.
27 The plaintiff was cross-examined by both senior counsel for Ericssons Pty Ltd and Autoliv Pty Ltd. I have taken into account all of her evidence-in-chief and cross-examination however I shall only summarise some of the parts of the evidence she gave in respect of her work during the relevant period and her symptoms before and after that period.
28 In cross-examination by Mr Parrish the plaintiff agreed that she had been working full-time in the office for a couple of years before she stopped work. She explained that she was not like others performing office work at a desk, rather she was a "gofer" running around and picking things up for other staff.
29 In cross-examination, the plaintiff described in some detail the nature of her duties in late 2004. She said her employer was undergoing major changes and the plaintiff was required to do a lot of packing. This caused her increased symptoms but at her employer's request she persevered until the Christmas break in 2004. The plaintiff said that for the last couple of weeks of her employment she was doing work that placed a great strain upon her back. The plaintiff agreed that she had not provided these details of her work activities to her general practitioner, Dr Hodgson. She said at the time she saw Dr Hodgson on 6 January 2005 she was not "mentally right". She stated that her state of mind when seeing Dr Hodgson from the time of the first operation was to get her medication, get better and get back to work. She was desperate to retain her job with the defendant.
30 The plaintiff submitted a claim for income protection in January 2005 (Exhibit 1). This claim referred to an L4-5 disc prolapse injury. In response to the question, "If injury, how exactly did it occur?" the answer provided was, "Normal daily activity while on Christmas break." The date upon which the injury occurred was noted as 3 January 2005.
31 This claim form was signed by the plaintiff on 7 February 2005. Dr Hodgson had completed a medical practitioner's statement to company on 8 February 2005. In that document he noted the date of onset/first symptoms as 3 January 2005 and the date upon which the patient first consulted him for this condition was noted as 6 January 2005.
32 The plaintiff said she signed this claim form without looking at the information provided in the document. She said she trusted her employer. Kay Whittaker had completed the form. The plaintiff was under heavy medication at the time.
33 The plaintiff had always received treatment as a public patient. She said she had not wanted to make a WorkCover claim, she just wanted to get better and return to work.
34 The plaintiff stated that in the last couple of weeks of her employment the offices at work were being renovated. During that time there were incidents involving her back and one major incident she recalled was when moving a large cupboard. She experienced back and leg pain and was treated at the medical centre at work. She did not report this incident or tell her doctor about it. She said she always had symptoms but her symptoms got worse after this incident. The plaintiff said she often had to perform work involving carrying, lifting and bending, even though her GP, Dr Hodgson, had told her employer that she could not perform these type of duties.
35 The plaintiff agreed that the symptoms she was experiencing when she ceased work on 23 December 2004 were essentially the same sort of symptoms as she experienced in 1999. However she said that her symptoms had worsened after 2001. After 2001 the plaintiff said she was taking "more heavy drugs then". She described how things had worsened in these terms, "because when you build up, you stay longer and you do more heavy work."
36 The plaintiff was cross-examined about the history recorded by Dr Hodgson that when she presented to him on 6 January 2005 she had back pain for three days. She did not recall the history she had provided to Dr Hodgson on 6 January 2005. Her explanation for not providing a history of work events was that she did not complain about her work. She said:
"I would just say I'm in terrible pain, can I have some medication, because at that time you just want to get better, you don't think about - because all you think of is getting better and going back to your normal life again."
37 The plaintiff's general practitioner, Dr Hodgson, gave evidence. In his reports he expressed the general opinion that the plaintiff's employment with Autoliv Pty Ltd was a significant contributing factor to her back condition. Dr Hodgson was of the opinion that the plaintiff had a permanent impairment and she was unable to work in any capacity.
38 Dr Hodgson had noted that in January 2005 while on holiday the plaintiff's symptoms had recurred. In cross-examination by Mr Parrish Dr Hodgson stated that the history he recorded on 6 January 2005 was:
"Three days of back pain radiating down the posterolateral thigh and posterior
calf into the heel and sole."
When questioned further about this history, he stated:
"From memory, she was on holiday on a camping trip and she just bent over."
39 Dr Hodgson was of the opinion that, even accepting that holiday event occurred and caused graphic symptoms, the plaintiff's employment with the defendant might be a contributing factor to her symptoms. He justified this opinion by stating:
"The fact that she went back to work and was unable to stand at work and Autoliv changed the duties and stuff, I felt that there was some contributing factor from work."
Dr Hodgson based his opinion that the plaintiff's employment with the defendant during the relevant period played a role in her recurrent disc prolapse at the L4-5 level on, "His experience with back pain and people who work." His opinion was therefore based upon his general experience. Dr Hodgson was not, however, able to state specifically what the plaintiff's employment had done to her back during the relevant period.
40 In re-examination when information concerning the plaintiff's duties was put to him Dr Hodgson maintained that her work with the defendant had contributed to some degree to her present condition.
41 Mr Khan and Mr Klug were both called to give evidence. They had each seen the plaintiff for medico-legal purposes at the request of her solicitors. They each expressed the opinion that the plaintiff's employment with the defendant during the relevant period aggravated her back condition.
42 In his report, dated 10 June 2009, Mr Khan stated in answer to the question whether the plaintiff's employment with the defendant during the period 20 October 1999 to mid-2005 caused or was a significant contributing factor to any aggravation, acceleration, deterioration or exacerbation of a pre-existing condition or injury suffered by the plaintiff:
"I consider that during the course of her employment with Autoliv Australia Pty Ltd, Mrs Kirsavoglu's employment had significantly contributed to aggravation and acceleration of her pre-existing discogenic condition of her back. It probably had resulted in disc prolapse, with aggravation of pain down the left leg."
43 Mr Klug, in his report dated 2 July 2009, stated:
"In regard to her employment with Autoliv between 20 October 1999 and mid-2005, I believe that such employment led to a further aggravation of her condition. I do believe there was evidence to suggest that the condition progressed and that such progression was responsible for the development of symptoms in the left lower limb. The development of symptoms in this lower limb, in my opinion, would be consistent with some progression of the disc disorder at the L4-5 level which was responsible for back pain and now predominant involvement of the left lower limb."
Both doctors agreed that in forming their opinions they were reliant on the history provided by the plaintiff concerning both her work and its effects upon her during the relevant period.
44 The plaintiff was recalled to enable her to be asked about Dr Hodgson's comment that she had a recurrence in January 2005 while on holiday on a camping trip. The plaintiff categorically denied being on holiday on a camping trip. She said:
"I was shocked when he said that because I never went on a camping trip. It
was impossible to go on a camping trip with a bad back."
45 Medico-legal reports were obtained by the solicitors for and VWA agents of both Ericssons Pty Ltd and Autoliv Pty Ltd however I found the reports of Mr Hooper, Mr Marshall, Mr Schulz and Mr Leitl to be of no assistance as they did not address the issue of the effect of employment during the relevant period, this being the critical issue in dispute.
46 Included in the material tendered on behalf of the defendant were a number of affidavits from co-workers. There were affidavits from Carol Memery, James Cornwell, Christine Shanks, Sylvia Kopestenski, Leny Plonsker and Amanda Jones. These affidavits deposed to the fact that each co-worker had made a statement to investigators which was adopted by that person as being true and correct. None of these co-workers were called to give evidence. As I have not had an opportunity to see any of these persons give evidence, I have placed little weight upon their affidavits. The overall thrust of this material was not supportive of the plaintiff's claims however, neither party made any detailed submissions on these affidavits. Insofar as there is any conflict between the material contained in these affidavits and the plaintiff's evidence, I prefer and accept the plaintiff's evidence.
47 It was submitted on behalf of the defendant that the plaintiff was not a credible or reliable witness. It was submitted that there were significant inconsistencies in her evidence and in histories given to doctors and the information provided in the insurance claim form, particularly concerning the events of December 2004 and January 2005. Further the plaintiff exaggerated, was evasive and was disingenuous. It was submitted that the plaintiff was a reasonably intelligent person who well knew the significance of the issues in this proceeding and who tailored her evidence accordingly. It was submitted that the medical evidence of an aggravation injury during the relevant period was entirely reliant upon the plaintiff's history therefore as I ought not accept the plaintiff as a witness of truth her claim ought fail on the basis that there has been no compensable injury.
48 I do not accept these criticisms of the plaintiff. With all due respect to the plaintiff I would not describe her in this context as a reasonably intelligent person. She has only had a year 8 education. Her use of language was, at times, confusing and most unsophisticated. My overall impression of the plaintiff was that she was a reasonably straightforward witness of truth. There was an element of exaggeration in some of her evidence however I do not consider that the plaintiff was deliberately seeking to embellish her complaints or tailor her evidence to advance her case.
49 The plaintiff is only 41 years of age. She has had a significant low back condition since 1988, a period of 21 years. She has undergone two operations upon her back and has had much treatment. She has seen many doctors, particularly in the public hospital system. It is only in very recent times that her WorkCover claim for compensation against Autoliv Pty Ltd has been accepted. As this claim covered the entire period of the plaintiff's employment with the defendant I do not consider its acceptance to be relevant to my determination of the issues in dispute in this proceeding. When seeing doctors it appears the plaintiff was often in an emergency situation or in severe pain and it is, in my opinion, neither surprising nor significant that there are many and varied histories recorded by doctors, each often focusing on a final precipitating event.
50 I do not accept that the plaintiff was on a camping trip in January 2005. Whilst there may well have been a significant recurrence shortly prior to 6 January 2005 I do not consider the inconsistencies in history taken by Dr Hodgson on 6 January 2005 or details recorded in the insurance claim form to have eroded the plaintiff's credibility on the central issue in this proceeding, namely the nature of her work during the relevant period and its effects upon her.
51 I am satisfied that the plaintiff had made a reasonable recovery from her 1999 operation. She was able to return to work in June 2000. She was able to increase her hours of work until she was working full-time by November 2001. I accept the plaintiff's evidence that throughout the relevant period she performed work on both the production line and in the office area and that work placed stresses and strains upon her low back. I accept her evidence that in the last couple of weeks of her employment she was required to perform physical duties which were difficult for her and this caused an increase in back and leg symptoms. I accept the plaintiff's evidence on the nature of her work during the relevant period and the deleterious effect it had upon her.
52 I accept the opinions of Dr Hodgson, Mr Klug and Mr Khan in respect of an aggravation injury during the relevant period. I find that the plaintiff's employment during the relevant period caused an aggravation and deterioration of a pre-existing condition and contributed to the recurrence of L4-5 disc prolapse demonstrated in 2005 which led to the need for the second spinal surgery undertaken on 15 August 2005.
53 Having found that the plaintiff suffered compensable injury during the relevant period it is necessary to consider whether that aggravation injury is a serious injury as defined. It was submitted on behalf of the defendant that the principles enunciated in Petkovski v Galletti (1994) 1 VR 436 applied and in this case the aggravation itself was not a serious injury either in respect of pain and suffering or loss of earning capacity. Mr Parrish placed great weight upon the plaintiff's evidence that the symptoms and problems she was experiencing in 1999 were the same symptoms and problems she was having in December 2004, problems with the left leg and low back.
54 I agree with the defendant's submission that the principles enunciated in Petkovski v Galletti apply. Therefore I have, in accordance with that decision, sought to identify the injury caused during the relevant period and I have analysed the extent of the impairment of the body function of the lower back before and after the relevant period.
55 In my opinion the plaintiff's evidence about the similar nature of her symptoms in 1999 and 2004 must be considered in the light of all the evidence and in context in that the plaintiff had already agreed with this proposition earlier in the cross-examination but had qualified her answers by explaining that after 2001 she had got worse and was taking stronger medication. Whilst the plaintiff had a significant impairment pre-June 2000, she was able to return to work and was working in a full-time capacity from November 2001 to 23 December 2004. Her earnings during that period were as follows: 2000-01, $26,801; 2001-02, $30,239; 2002-03, $30,370; 2003-04, $34,480; 2004-05, $33,535. These were consistent earnings.
56 There was no challenge to the plaintiff's evidence about her current circumstances or the evidence of her general practitioner that the plaintiff was not fit for work. I am satisfied the plaintiff is totally and permanently incapacitated. She is now left in chronic severe pain. This is the result of organic injury. I have excluded from consideration any psychological or psychiatric consequences of physical injury.
57 I find that there was a total and permanent destruction of the plaintiff's pre-existing earning capacity as a result of the aggravation injury during the relevant period. I am therefore satisfied that the plaintiff has established the requisite loss of earning capacity pursuant to s.134AB(38)(b), (c), (e), (f) and (g) of the Act. Whilst it is not necessary to do so, for completeness I state that I am satisfied that the pain and suffering consequence of this aggravation injury satisfies the "very considerable" test.
58 Accordingly I grant leave to the plaintiff to bring proceedings for the recovery of damages for pain and suffering and loss of economic capacity in respect of injuries sustained in the course of her employment with the defendant during the relevant period.
---
0
2
0