Kocdemir v Toll Holdings Limited
[2010] VCC 1315
•17 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05502
| ZELIHA KOCDEMIR | Plaintiff |
| v | |
| TOLL HOLDINGS LIMITED | Defendant |
| (ACN 006 592 089) |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 3 and 6 September 2010 |
| DATE OF JUDGMENT: | 17 September 2010 |
| CASE MAY BE CITED AS: | Kocdemir v Toll Holdings Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1315 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – s.134AB serious injury – aggravation of pre- existing cervical disc degeneration by repetitive work.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley QC with | Zaparis Lawyers |
| Mr B C Chessell | ||
| For the Defendant | Mr J Carmody | Monahan & Rowell |
| HIS HONOUR: |
1 This is an application which relies on part (a) of the definition of “serious injury” in subsection (37) of s.134AB of the Accident Compensation Act 1985 (“the Act”), that is “permanent serious impairment or loss of a body function”.
2 The body function relied upon is the cervical spine.
3 The claim by the plaintiff instituted by Originating Motion dated 19 November 2009 seeks leave from the Court pursuant to subsection (16)(b) of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
4 Mr R Stanley QC, with Mr B C Chessell of Counsel appeared on behalf of the plaintiff. Mr J Carmody of Counsel appeared on behalf of the defendant.
5 The following evidence was adduced during the hearing:
•
The plaintiff swore two affidavits and gave sworn evidence and was cross-examined. The plaintiff’s first affidavit was sworn on 30 June 2009.[1] The second affidavit was sworn on 17 July 2010.[2]
•
The plaintiff also relied upon an affidavit by her husband, Abdullah Kocdemir, sworn 17 July 2010.[3]
• The plaintiff tendered the following evidence: [1] PCB 6-17 inclusive
[2] PCB 18-22 inclusive
[3] PCB 21-22
ƒ the plaintiff’s Court Book (“PCB”) pages 6 to 22 inclusive and pages
40 to 157 inclusive;ƒ the medical report of Mr J Kendall Francis found at Defendant’s
Court Book page 6.
• The defendant tendered the following evidence:
ƒ the defendant’s Court Book (“DCB”) pages 1 to 100 inclusive and
pages 162 to 163 inclusive.
6 The particulars of injury pleaded by the plaintiff as at 30 June 2009 are set out in a Draft Statement of Claim found at PCB 24. The injuries are said to be as follows:
ƒ “Injury to the neck; ƒ cervical discal injury; ƒ C6-7 disc protrusion causing left C7 radiculopathy; ƒ pain and alteration of sensation in the left arm and hand; ƒ headaches; ƒ pain and limitation of movement of the neck; ƒ pain and limitation of movement of the left shoulder and arm; ƒ nervous upset;
ƒ anxiety; ƒ depression; ƒ pain and shock.”
7 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
8 The plaintiff is forty-nine years of age. She was born in Turkey on 3 January 1961. She lives with her husband and children at Cairnlea in the western suburbs of Melbourne. She had three years of primary schooling in Turkey and completed only her primary schooling in Australia. She has no secondary education.[4]
[4] PCB 6, paragraphs 1 and 2
9 After leaving primary school, between 1974 and 1979, the plaintiff worked in various capacities as a sewing machinist.[5] She was married in 1979 and that marriage ended in divorce and there was one child of the marriage. Between 1985 and 1990, after completing training as a hairdresser, the plaintiff performed work as a hairdresser.[6]
[5] PCB 6, paragraph 2
[6] PCB 7, at paragraph 4
10 In 1988, the plaintiff remarried.[7] Between 1991 and 1994, the plaintiff worked performing various duties in food businesses in the Sunshine area of Melbourne.[8]
[7] PCB 7, at paragraph 4
[8] PCB 7, at paragraph 4
11 The plaintiff commenced employment with the defendant in 2001. Her work for the defendant involved sorting, picking, packing and invoicing. She worked at the Altona premises of the defendant. Her work in the “VAS” area involved pricing, picking, setting and sorting goods. In the module area her work involved picking goods for orders, and also invoicing and weighing.[9]
[9] PCB 8, at paragraph 6
12 The plaintiff deposed to, and I accept, that her work in the VAS area of the defendant’s premises involved her making up boxes of products that could weigh between 1 kilogram and 20 to 50 kilograms. The boxes had to be lifted onto pallets, requiring, at times, two women to achieve this task. The pallets themselves would be manoeuvred into position by stacks of the pallets being brought in on a pallet jack and each individual pallet had to be lifted off the pack or off the stack and into position. The plaintiff deposes, and I accept, that during a shift whilst working for the defendant, she may have to lift up to thirty such pallets and then stack boxes on each pallet to a height of about 1.8 metres.[10]
[10] PCB 8, at paragraph 7
13 The plaintiff, in her first affidavit, generally describes the work she was required to carry out, in paragraphs 7 to 10 inclusive. That evidence was unchallenged and I accept it.
14 Prior to August of 2007, the plaintiff had an excellent work history. She worked long hours, usually commencing at about 6.00 am and working through until 2.30 pm in the afternoon. In addition she worked overtime. The plaintiff deposed she would work on average ten hours per week of overtime, earning income of approximately $950 gross per week prior to being injured.[11] That evidence was not challenged and I accept it.
[11] PCB 11, at paragraph 12
15 In her first affidavit, the plaintiff says in August of 2007 she first became aware of pain in her neck and shoulders with some discomfort, which gradually worsened. She went to see her general practitioner, Dr Tadros, and he provided her with medication and arranged an x-ray of her neck which took place on 13 September 2007.[12] The plaintiff continued with her work whilst this was happening.
[12] PCB 11 and 12, at paragraph 13
16 The plaintiff deposes that on 1 October 2007, she was moving empty plastic pallets in the VAS area of the defendant’s business which caused her more neck and upper back pain. She saw Dr Tadros again that day and he arranged for an x-ray of her upper back. He also advised her to do lighter work. He gave her a letter suggesting restrictions on lifting not more than 5 kilograms.[13] The plaintiff gave this letter to her employer and the defendant arranged for the plaintiff to be sent to Dr Malcolm Ong in Laverton.
[13] PCB 12, at paragraph 13
17 Dr Ong arranged for physiotherapy at his clinic, which the plaintiff had twice a week for a period of “a few weeks” and “then once a week until I started to see another general practitioner, Dr Navani”.[14]
[14] PCB 12, at paragraph 13
18 The plaintiff continued to work on restricted duties. She was given work standing on a bench putting price tags on clothing and then she was put in an office performing limited office duties as required, although there was little work for her. After about a week working in the office of the defendant, the plaintiff was sent to a call centre operated by the defendant where she was required to type information about customers into a computer. She worked there for a few hours a day for a number of weeks with about one week off due to neck pain. She says, in her affidavit, there was only about 3 hours’ work for her to do each day overall.[15]
[15] PCB 12, at paragraph 14
19 The plaintiff deposes to having continued to see Dr Ong, who arranged for a CT scan of her neck on 23 October 2007. She also saw her own general practitioner, Dr Tadros, about the CT scan and he advised her to continue to have treatment from Dr Ong. Concerned about her situation, the plaintiff sought further advice from Dr Navani, also a general practitioner. The plaintiff says, and I accept, her so-called “light work” in the call centre of the defendant’s operation caused her increased neck pain.[16]
[16] PCB 12, at paragraph 15
20 The plaintiff consulted Dr Navani, a general practitioner, on 19 November 2007, and he reduced her hours of work to four hours a day, five days a week, and referred the plaintiff to Mr Patrick Lo, a neurosurgeon.
21 On 29 January 2008, Mr Lo arranged for an MRI scan, and that took place on 19 February 2008.[17]
[17] PCB 13, at paragraph 16
22 In March 2008, the plaintiff had a further week off work because of pain in her neck and was shortly thereafter advised by the manager of the defendant there was no more light work for her in the defendant’s employment. The plaintiff has not worked since.[18]
[18] PCB 13, at paragraph 16
23 The defendant had sent the plaintiff for treatment by Dr Ong. Dr Ong signed a Certificate that the plaintiff was fit for work from 4 December 2007. The Certificate refers to the plaintiff having been referred back to her general practitioner and to a neurosurgeon, and for physiotherapy. In the comments section of the certificate, Dr Ong has recorded:
“Clearance from neck strain injury.”[19]
[19] DCB 162
24 The plaintiff deposes in her affidavit to having continued to see Dr Navani during 2009. Dr Navani prescribed Norspan patches for her neck pain but the plaintiff says that notwithstanding this, she continued to have ongoing pain in her neck, and Dr Navani referred her back to Mr Lo, whom she saw again in February 2009.
25 I accept the plaintiff had been a good and hard worker up until around August/September/October of 2007. She deposes in her affidavit and I accept a lot of her life enjoyment related to her work activity. Understandably, she became anxious about her condition which deprived her of the opportunity to work and she complained about this to Dr Navani, who advised her to consult a psychologist, Ms Roby Gordon, in March 2009. Ms Gordon advised the plaintiff to undergo assessment at Dorset Rehabilitation in Pascoe Vale but WorkCover would not pay for that assessment.[20]
[20] PCB 13, at paragraph 17
26 In terms of ongoing treatment, the plaintiff continued to see Dr Navani at least once a month, or when required, and to have treatment from a masseuse about once a fortnight and from Ms Gordon about once a week. Dr Navani continued to prescribe Norspan patches and Panadeine Forte, four to six tablets daily, for pain relief. She has also taken Celebrex, morning and evening, and Panamax at other times, for neck pain and headache.[21]
[21] PCB 13 and 14, at paragraph 18
27 The affidavit material addresses the pain and suffering consequences the plaintiff attributes to the injury to her neck. At the time of swearing her first affidavit on 30 June 2009, the plaintiff then deposed that she continues to suffer from neck pain, mainly on the left side, all of the time:
“It is a hot, tight, heavy feeling. The pain seems to spread into my left shoulder, shoulder blade and intermittently into my left arm and I am aware of some numbness in my left ring and little finger. The pain also seems to spread down into my back and up into the back of my head and the top of my head and gives me headaches. I usually have headaches when I first wake up. I take Panadeine Forte after breakfast which relieves the neck pain and headaches to some extent. I also tend to get headaches towards the end of the day, when I will either take Panadeine Forte, Celebrex or Panamax.
The neck pain is worse if I turn my head quickly or too far, particularly to the left. Raising my arms, particularly my left arm also makes the neck pain worse. If my neck is not supported I get increasing neck discomfort after about fifteen minutes. When sitting in the lounge I will put a pillow behind my neck or slide down so I can rest the back of my head against the back of my chair or couch.”[22]
[22] PCB 13 and 14, at paragraphs 18-20 inclusive
28 The plaintiff says she tries to avoid driving a car because of ongoing pain and discomfort in her head and neck area. She experiences ongoing discomfort when walking for more than fifteen minutes and continues to suffer from ongoing discomfort whilst sleeping. She says she wakes at night, often four to five times a night, because of pain in her neck.[23]
[23] PCB 15, at paragraph 22
29 The plaintiff gives detailed evidence in her first affidavit about how her normal daily activities are affected. For example, she has difficulty washing her hair and showering and she can no longer do the cooking in the home she once did. Household chores are difficult and she gets by with help from other members of the family.[24]
[24] PCB 15-16, at paragraphs 23-24 inclusive
30 In her second affidavit, the plaintiff deposes to having continued to see her general practitioner, Dr Navani, about once per fortnight, and Dr Clayton Thomas, a rehabilitation specialist, who she has seen on two occasions.[25]
[25] DCB 18, at paragraph 2
31 Dr Navani referred the plaintiff to Dr Richard Bittar, a neurosurgeon, in late 2009 and he raised the prospect of surgical intervention. I will deal with his report later.[26]
[26] PCB 19, at paragraph 4
32 In her further affidavit, the plaintiff says, inter alia:
“Since swearing my previous affidavit, I believe my neck pain has got worse. The neck feels tighter and stiffer. Every few weeks I will have increased discomfort when virtually any movement of my neck increases the pain. During this time the hot and burning feeling which I have in my neck seems worse and there is a feeling of swelling, particularly in the left side of my neck, which spreads into my left shoulder. When I have this worse pain, nothing seems to limit the discomfort very much. Generally, I have to be careful with my movements all the time to avoid more neck pain. I continue to have [a] headache in the morning when my head feels heavy and several days a week this headache can continue all day. I can also get a further headache later in the day. There is no obvious reason for the headache but I find that it starts at the back of my neck. I seem to get it more often if I am away from home, such as going shopping. I have not been able to return to any employment since I swore my previous affidavit. I cannot think of any employment that I can do. Generally, the restrictions placed on my activities by my neck pain have remained the same since I swore my previous affidavit.”[27]
[27] PCB 20, at paragraphs 7-9 inclusive
33 The plaintiff’s husband, Abdullah Kocdemir, in an affidavit sworn 17 July this year, largely corroborates what it is that the plaintiff says.[28]
[28] PCB 22
34 I had the opportunity of assessing the plaintiff as a witness. She struck me as being a truthful witness who tended to downplay her injury and the consequences of it. I find she was an entirely genuine witness who is genuine in her complaints. She had an excellent work history up until about October of 2007.
35 Further, she attempted to return to work and performed light duties for several months after October 2007, but found that even on the light duties prescribed for her by the defendant, she had ongoing pain and discomfort in her neck.
36 Further, it is admitted by the defendant that it has taken the opportunity to secure some video surveillance of the plaintiff which was not produced and I conclude that this evidence, if produced, would not have advanced the defendant’s case.
37 I accept and act upon the evidence of the plaintiff.
The Statutory Scheme
38 The application is brought pursuant to s.134AB(16)(b) of the Act and relies upon the definition of “serious injury” contained in sub-paragraph (37)(a) of s.134AB of the Act, which requires the plaintiff to prove she has suffered a “permanent serious impairment or loss of a body function”.
39 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[29]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[30]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a) and subsection (19)(b), subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity. To arrive at a loss of earning capacity of 40 per cent or more, the plaintiff must compare her income from personal exertion prior to suffering injury with the gross income which she is now able to earn from suitable employment or capable of earning from suitable employment. “Suitable employment” is defined in s.5 of the Act and was amended to operate from 1 July 2010 regardless of when the injury occurred.
(d)
Subsection (38)(c) provides the impairment must have consequences in relation to “pain and suffering” and “loss of earning capacity” which, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of the hearing and permanently.
(g)
Subsection (38)(j) provides the assessment of “serious injury” is to be made at the time of the hearing of the application.
(h)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately.
(i)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(j)
In an application where it is alleged the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti;[31]
(k)
I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
[29] S.134AB(1) and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[30] Barwon Spinners at paragraph 33
[31] [1994] 1 VR 436
Issues Raised
40 The plaintiff’s case is relatively straightforward. Her case is she had worked long hours for the defendant for a number of years prior to around late August 2007. At that time she began to experience pain in her neck and shoulders which gradually worsened, culminating in an event which occurred on 1 October 2007, when she experienced further neck and upper back pain whilst moving pallets.
41 Investigation in the form of a CT scan later showed the presence of a large left paracentral disc protrusion which indents the thecal sac at C6-C7 level, as well as cervical disc degeneration. The plaintiff’s case is the paracentral disc protrusion was caused by or aggravated by the repetitive nature of her work. The plaintiff’s case is the aggravation and the consequences caused by it to her are a “serious injury” within the meaning of the Act.
42 The defendant’s case whilst also straightforward has a number of limbs to it. The defendant contends that if the plaintiff suffers an impairment or loss of body function, such impairment or loss of body function is not “serious” within s.134AB(38)(b) and (c).
43 Alternatively, the defendant argues such injury is not permanent.
44 Further, the defendant argues that the impairment or loss of body function was not caused by the plaintiff’s employment with the defendant.
45 Further, the defendant argues that if the plaintiff did aggravate a pre-existing cervical disc degeneration during the course of her employment, such aggravation was not “serious” within the Act.
46 Further, the defendant argues the ongoing consequences experienced by the plaintiff, and now put forward as pain and suffering consequences, are functional in nature and the plaintiff must disentangle the pain and suffering consequences from those that are not organically or physically-based. The defendant contends the plaintiff has not done so.
47 So far as loss of earning capacity is concerned, the defendant contends there is “suitable employment” within the meaning of the Act available to the plaintiff in the form of working as a cashier in a shop or in a call centre or the like. I shall deal with these arguments in more detail later.
History of Medical Treatment
48 Dr N Tadros had been the plaintiff’s general practitioner for many years since 1987. In a report dated 3 March 2008, Dr Tadros reported that the plaintiff presented to him on 12 September 2007 –
“… complaining of left and right shoulder pain and stiffness which she
stated had gradually started and was getting worse.”[32]
[32] PCB 41
49 Dr Tadros ordered x-rays, which he discussed with the plaintiff on the following day. The x-ray showed “moderate degree of degenerative changes” which Dr Tadros said could cause her symptoms. The plaintiff continued to attend on Dr Tadros, who also ordered a CT scan in October of 2007.
50 In his report, Dr Tadros said, inter alia:
“On 23 October 2007, she came to discuss the results of the next CT scan which was ordered by Dr Malcolm Ong of the Health for Industry Clinic (copy attached) which showed disc degeneration of C4/5 and C5/6 with lipping and encroachment on the right C6 foramina and also it showed left paracentral C6/7 disc protrusion indending [sic] the thecal sac. Also of interest it showed a large right-sided cervical rib.”[33]
[33] PCB 41 and 42
51 Dr Tadros completed his opinion by saying, inter alia:
“I cannot give you the exact nature of the pathology of her symptoms, but in my opinion it is neck related, i.e. aggravation to her pre-existing neck pathology caused by the nature of work which involves a lot of neck and upper arm movements. Her condition is not severe and I believe that she is getting the right treatment by Dr Malcolm Ong which I encouraged her to continue seeing him.”[34] [sic]
[34] PCB 43
52 The plaintiff’s case places great reliance upon the medical reports of Dr Ong. Dr Ong first reported on 27 October 2007, a report which went to the defendant’s directly.[35] In that report, Dr Ong said, inter alia:
“The CT showed a few degenerative changes but also had features of disc disease at the level of C6-C7. In particular where there is a large left paracentral disc protrusion which indents the thecal sac, hence giving her symptoms in both hands initially. This tingling has largely resolved since my treatment.
The large cervical rib on the right hand side would also account for some of her symptoms in her right hand and neck.
I consider on the basis of her findings that she has underlying degenerative disease which has been aggravated by some of the repetitive nature of her work resulting in a disc protrusion.
This condition is not surgery requiring at this stage but she would need to continue physiotherapy until her symptoms resolve and she is best suited to an occupation that does not aggravate her cervical problem in the future.”[36]
[35] PCB 58
[36] PCB 59
53 In a further report to the defendant two months later, on 1 December 2007, Dr Ong expressed an identical opinion,[37] however, he then went on to say:
“Any repetitive neck twisting, bending and turning work is probably best to be avoided in the long run and overhead lifting if possible to be limited to around 10 kg. Lifting below the level of the shoulders should not be an issue with all the usual and proper technique and precautions.
Having mentioned all of the above, in reality, Zeliha has an underlying condition of the cervical rib and some degenerative changes of the cervical spine which is not work-related.
However, she did suffer a strain injury which precipitated her problem. Therefore, I expect her strain injury to heal fully but she just needs to understand that her other underlying condition is a separate issue.
She appears to desperately insist that the condition of her cervical rib and degenerative changes are completely work-related, which I have tried to explain to her is not the case.”
[37] PCB 62-63
54 Dr Ong was asked to explain his report of 1 December 2007 and he did so by a further report of 11 December 2007.[38] In his further report, Dr Ong refers to the pre-existing degenerative changes in the cervical spine and what he refers to as a “strain injury” having resolved. He does not refer, however, to the fact that in his first two reports he opined that the repetitive nature of the plaintiff’s work had resulted in a disc protrusion at C6-C7 level.
[38] PCB 64
55 By January 2008, Dr Ong had referred the plaintiff to Mr Patrick Lo, a neurosurgeon. He requested that the plaintiff undergo MRI examination. On 16 February 2008, Mr Lo opined, inter alia, as follows:
“She had a CT scan performed of her cervical spine which showed multi- level cervical spinal changes with a suggested left-sided C6/7 disc bulge.
Based on the current clinical assessment and rudimentary radiology, this patient has suffered a left C6/7 disc prolapse secondary to an alleged work-related injury. She will undergo further investigation by way of an MRI scan of the cervical spine in the near future.
On the balance of probabilities, with the knowledge imparted to me of Zeliha Kocdemir’s employment by her, the repetitive packing and lifting as well as the packing pallet operation is likely to be directly involved in Zeliha’s current cervical condition.
Currently she has severe left hand and arm pain, as well as neck pain. On presentation she has neurological changes and these would limit her and would prevent her from returning to her pre-injury duties. At present she is still under investigation but I do not believe that she can perform any suitable duties which require repetitive arm movement, lifting of objects, rotation and bending of the neck.
Based on the clinical assessment and on the imaging findings available at present, I do not believe that this patient can return to work. The pain syndrome resulting from the disc prolapse as well as the clinical findings would preclude her from returning to work.”[39]
[39] PCB 69
56 On 14 November 2008, Dr Lo prepared a somewhat ambiguous report. In paragraph 1 of his report he opined that the plaintiff’s symptoms were not work-related, however, that is contradicted by what he said in paragraph 2, as follows:
“On the balance of probabilities, given the history of repetitive packing, lifting and the use of a packing pallet, this worker’s employment was a significant contributing factor to the aggravation of the degenerative cervical spine disease.”
57 He went on to opine that the plaintiff was fit for employment in light duties.[40]
[40] PCB 77
58 Dr Richard Bittar, neurosurgeon, saw the plaintiff for medico-legal purposes in December 2009. It was his opinion the plaintiff’s employment had been a significant contributing factor to her symptoms. He thought she required ongoing treatment and may require surgical intervention.[41] He opined as follows:
“In my opinion her condition is consistent with the stated cause. Specifically the work-related activities engaging in around October 1, 2007 have been the dominant contributing factor. While she does have radiological changes consistent with pre-existing degenerative cervical spine disease, this was asymptomatic prior to the workplace activities on October 1, 2007. In my opinion her employment has rendered her pre- existing asymptomatic cervical spondylosis symptomatic. It has resulted in a C7 radiculopathy and cervicogenic headaches.
. . .
When I reviewed Zeliha Kocdemir in December 2009, she was totally incapacitated for employment. While she would have some physical capacity for sedentary duties part-time, taking into account her age, education, training and skills it is extremely unlikely that she would be able to procure and maintain such a position. She would have a number of physical restrictions placed on her by way of her work-related cervical spine condition, including a lifting restriction of 4 to 5 kilograms, and the avoidance of repetitive upper limb activity and neck movement.”[42]
[41] PCB 80
[42] PCB 80-81
59 The plaintiff was medically examined by Mr Charles Flanc, vascular and general surgeon, for medico-legal purposes in October 2008. In his first report, Mr Flanc opined, inter alia, as follows:
“Her subsequent investigation showed disc degeneration at multiple levels with a left-sided disc protrusion at the C6/7 level. In the absence of any previous symptoms and considering the nature of her work, I consider that she sustained an aggravation of a pre-existing disc degeneration of the cervical spine in the sense that it became symptomatic. The persistence of these symptoms would, I believe, support this diagnosis as opposed to a simple muscular strain as proposed by Mr Francis.
It is not uncommon for the symptoms resulting from an aggravation to persist at that level even though the actual activity has ceased. In my opinion this is the situation affecting Mrs Kocdemir at present and I would regard her work at Toll as being a significant contributing factor to the persistence of her symptoms.”[43]
[43] PCB 90
60 Mr Flanc went on to opine the plaintiff was not capable of returning to her pre- injury duties and she would have to avoid any heavy lifting or work involving repeated elevation of her arms above her head or keeping her head still for long periods.[44]
[44] PCB 92
61 Mr Flanc reported a second time on 22 January 2009. He maintained the opinion that the plaintiff’s employment with the defendant was a significant contributing factor to the aggravation of a pre-existing disc degeneration of the cervical spine, in the sense that it became symptomatic.[45] Mr Flanc acknowledged there was what he described as a “theoretical” capacity for the plaintiff to engage in part-time light work which did not involve rapid or repetitive use of the upper limbs or the elevation above shoulder height but he went on to opine:
“Despite a theoretical physical capacity to engage in light office-type duties, I believe that realistically it is unlikely that she would find suitable or sustainable employment in the open market.”[46]
[45] PCB 99
[46] PCB 101
62 In a final report dated 19 April 2010, Mr Flanc said, inter alia:
“In my opinion these features are consistent with impingement of the C7 or C8 nerve root and are consistent with a diagnosis of a radiculopathy.”[47]
[47] PCB 106
63 Mr David Brownbill, consultant neurosurgeon, saw the plaintiff for medico- legal purposes on 17 December 2008 and prepared a report on that day. Inter alia, he said as follows[48]:
[48] PCB 112
“Radiological investigations have demonstrated multiple level longstanding cervical spine degenerative changes.
On the information provided by Mrs Kocdemir on the 17th December 2008, I consider that on probability, she had longstanding essentially asymptomatic cervical spine degenerative changes which were rendered symptomatic by the described work activities, in particular the lifting incident on or about October 2007.
An assessment of her described recent right upper arm symptoms (which are unrelated to her neck) lies outside the neurosurgical province.
Ongoing neck pain is likely to continue indefinitely.
She should in the future, avoid activities involving heavy lifting, forced cervical spinal mobility or holding her neck in a fixed position. Otherwise I consider she is capable of work from a physical point of view.
However, noting her age of forty seven, her recent work experience being limited to physical activities and her demonstrated multiple neck degenerative changes, realistically she may have difficulty obtaining suitable employment.”
64 He went on to opine that her employment as at October 2007 –
“… was a significant contributing factor to the presence of those degenerative changes but I consider on the information provided it was a significant contributing factor to aggravation of those degenerative changes rendering them symptomatic.”[49]
[49] PCB 112
65 In a follow-up report from Mr Brownbill in December 2009 and January 2010, he did not change his opinions previously given.
66 The plaintiff was examined for vocational assessment by Leonie Schneider in March 2010. Ms Schneider concluded, on the basis of all the evidence available to her, that the plaintiff has “no current work capacity”.[50]
[50] PCB 155
67 The defendant’s medical evidence relies heavily upon the opinions of Mr J Kendall Francis, who has seen the plaintiff for medico-legal purposes on a number of occasions. On 3 December 2007, Mr Kendall Francis opined, inter alia:
“The worker has constitutional degenerative cervical spine changes plus developmental bilateral cervical ribs. Her symptoms I believe however are predominantly due to muscle pain in her neck and scapular muscle group following lifting and stretching. Both these activities, it seems, involved (sic) significantly in the course of the work she was doing and have improved significantly since restricting her work and in fact even ceasing her work over the last fortnight.”[51]
[51] DCB 2
68 He went on to say:
“Her current condition I would not believe to be an aggravation, recurrence, acceleration, exacerbation or deterioration of her pre- existing cervical spine degeneration but rather it is simply a question of muscle pain and fatigue in a person of small build attempting sustained stretching and lifting activities involving both upper limbs and neck region.”[52]
[52] DCB 2
69 And in the same report, Mr Kendall Francis opined:
“The condition of the degenerate spine will remain indefinitely but as such I do not believe it was the cause of her presentation. There was no specific incident involved and the degeneration has almost certainly been present for a far longer than the onset of symptoms indicated. I believe the worker needs reassurance and a regular active exercise program involving neck mobility rather than being restricted which has been limiting her recently.”[53]
[53] DCB 3
70 I do not accept this evidence of Dr Kendall Francis and I do not act on it. Contrary to what he says I find there was a specific incident which occurred as the plaintiff says in October 2007 when she was lifting pallets.
71 The opinions of Dr Kendall Francis are, in my view, are out of step with the preponderance of medical evidence that has been assembled by the plaintiff and which I have summarised above.
72 In my judgment, the evidence shows the probability is that the plaintiff aggravated a pre-existing cervical disc degeneration on or about 1 October 2007. As Dr Ong found, the paracentral disc protrusion at C6-C7 resulted from the repetitive nature of her work.
73 In his report of 17 August 2009, Mr J Kendall Francis opined, inter alia:
“The worker’s symptoms did develop in the course of her work, but there is no injury being proven that has actually occurred due to her work. No ongoing permanent affects of any injury, whatever its nature, are evident. The condition she suffers from is the degenerative spondylosis of her cervical spine and this was pre-existent. It is again of interest that the movement of the cervical spine when first seen on 13 December 2007 was through some eighty per cent of normal compared to the more limited mobility currently exhibited. How much of this may be due to change in the underlying spine associated with her spondylosis and how much may be of a functional overlay is difficult to assess. However, there is no evidence of any permanent injury affect discernable.”[54]
[54] DCB 19, at paragraph (k)
74 Again, I do not accept the evidence put forward by the defendant from Mr J Kendall Francis. His evidence in my judgment is again out of step with the preponderance of evidence produced by the plaintiff. I prefer the medical evidence produced by the plaintiff. It consists of a number of opinions from eminent specialists. The preponderance of opinion from these experts differs with that tendered by the defendant from Dr. Kendall Francis.
75 Further, because the totality of the evidence tendered by the plaintiff demonstrates an organic basis for her injury, I find that I do not have to consider whether or not any of her impairment and consequences from her impairment are related to functional overlay. In my judgment, the plaintiff has properly demonstrated on the evidence that her injury can be demonstrated radiologically and the consequential impairment to her, in terms of pain and suffering and inability to work, results from that injury.
76 I find the plaintiff was injured during the course of her work with the defendant on or about 1 October 2007 when she began to experience pain in her neck and shoulders which gradually worsened, culminating when she experienced further neck and upper back pain whilst moving pallets. Investigation in the form of a CT scan later showed the presence of a large left paracentral disc protrusion which indents the thecal sac at C6-C7 level, as well as cervical disc degeneration. I find that it is probable that the paracentral disc protrusion suffered by the plaintiff was caused by or aggravated by the repetitive nature of her work. I find that the aggravation of the plaintiff’s pre-existing cervical disc degeneration and the consequences caused by it to her are a “serious injury” within the meaning of the Act.
77 The defendant relies upon evidence set out in its Court Book, inter alia, at pages 43 and 59, to the effect that the plaintiff is able to undergo alternative suitable employment in the form of a cashier or call centre work. As I said earlier, the plaintiff impressed me as a forthright and honest witness. She has tried office work and has been unable to continue with this work, albeit even on a part-time basis. I accept her evidence. I accept that at the present time the plaintiff’s impairment for any work is complete, and total and permanent.
78 Having considered all of the medical evidence and the arguments put forward by the plaintiff and by the defendant, I am of the view that the evidence clearly shows that the plaintiff sustained an injury on or about 1 October 2007 whilst lifting pallets at the place of employment of the defendant. The injury was in the form of an aggravation of a pre-existing cervical disc degeneration and resulted in a paracentral disc protrusion at C6-C7 level, resulting in ongoing pain and restriction of movement in the neck, shoulders and arms, with pain radiating into the hands. The plaintiff is affected by this in almost every aspect of her life and is required to take ongoing medication.
79 The plaintiff attempted to return to work, albeit on a part-time basis doing light duties in the form of office work, but was unable to continue to do so. The plaintiff is a person with limited education and the forms of suitable employment available to her are very limited. I find the plaintiff has proved she suffers from permanent and total loss of earning capacity. I find the pain and suffering consequences and the impairment consequences in terms of loss of earnings for the plaintiff are permanent and therefore she has suffered a “serious injury” within the meaning of the Act. The pain and suffering consequences for her are both “considerable” and “more than marked”.
80 Accordingly, there will be leave for the plaintiff to issue proceedings against the defendant claiming damages for both pain and suffering and loss of earning capacity.
81 I will hear the parties on costs orders.
- - -
0
1
0