Kocev v Victorian WorkCover Authority
[2018] VCC 438
•13 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-03785
| GORDANA KOCEV | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2018 | |
DATE OF JUDGMENT: | 13 April 2018 | |
CASE MAY BE CITED AS: | Kocev v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 438 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – bilateral shoulder injury, and cervical spine injury – development of Chronic Regional Pain Syndrome Type 1 – resultant Psychological Disorder – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, S335
Judgment:Leave granted to the plaintiff to bring common law proceedings both in respect of pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr L Allan | Zaparas Lawyers |
| For the Defendant | Mr R H Stanley | Wisewould Mahony Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff, Gordana Kocev, suffered injuries to her neck and both shoulders during the course of her employment as a food process worker at Simplot Australia Pty Ltd (“Simplot”) at its Gippsland Food Company in Pakenham. She alleges the injuries arose throughout the course of her employment and in a specific incident occurring on 21 August 2014.
2 Subsequent to and as a consequence of the physical injuries, Ms Kocev claims that she has also suffered a severe Psychological Disorder in the nature of an Adjustment Disorder or a pain-related Psychological Disorder.
3 Ms Kocev remained at work on lighter duties until she was certified as being unfit in April 2016. Her employment was formally terminated in March 2017. She has not worked since.
4 Ms Kocev undertook study and became registered as a Division 2 Nurse. She has not obtained employment in that area.
5 Until recently, she has taken a range of medication and has undergone a wide scope of treatment. She claims a range of recreational, social and domestic duties and pastimes have been lost because of ongoing pain in her shoulder and neck areas.
6 This is an application for leave to bring proceedings pursuant to section 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered in the course of employment from March 2011 and, in addition, a specific incident in August 2014.
7 The body functions said to be affected are the cervical spine, and the shoulders, although the plaintiff has been diagnosed with Chronic Regional Pain Syndrome Type 1 (“CRPS”).
8 In addition, Ms Kocev claims to have suffered a permanent severe mental disorder in the nature either of a severe Adjustment Disorder, alternatively, as diagnosed by the consultant psychiatrist, Professor Peter Doherty, a pain-related Somatic Symptom Disorder. The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s325 of the Act, and leave is sought in respect of pain and suffering and loss of earning capacity.
9 Ms Kocev was the only witness called to give evidence and be cross-examined. In addition, two affidavits sworn by her, and medical and radiological reports were tendered into evidence. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me revisit the various relevant sections and those authorities.
10 Although the plaintiff’s claim is brought under both ss(a) and ss(c), that is, both in respect of physical and psychological injury, I am satisfied that the plaintiff’s claim in respect of physical injury, that is, because of the CRPS, meets the statutory test, both in respect of pain and suffering and economic loss, and it is thus unnecessary to make a detailed examination and analysis of the psychological injury claim, save to disentangle those consequences which on the one hand relate to psychological injury, to those consequences which relate to physical injury.
11 Ms Kocev is now forty years of age. She lives with her estranged husband and two children. She was born in Australia, but went to live in Serbia when she was eleven. She undertook a hairdressing course and worked as a hairdresser for about ten years before returning to Australia in 2005.
12 Ms Kocev worked in a number of manual jobs in Australia before commencing work with Simplot in March 2011.
13 At that time, she was in good health and, in particular, had no injuries nor difficulties with her neck or shoulders.
The injury and its consequences
14 Simplot is a food manufacturer and Ms Kocev worked in various areas of its plant involved in manual duties, and machine operation. She had some problems from time to time with her lower and mid back.
15 In November 2013, she commenced work on the nightshift which involved cleaning heavy equipment. The work was arduous and demanding and required frequent manual handling.
16 After a nightshift, in the early hours of 21 August 2014, she was removing a work garment by pulling it over her head. She said she felt a “snapping sound” at the back of her neck. There was immediate pain in the neck, and movement in the area was restricted.
17 For a period she received chiropractic treatment from Mr Robbie Hunt. She was off work for a few days and then returned to work with pain in her neck and with headaches. She went to a general practitioner at the Berwick Medical Centre. Another practitioner, Dr Corolia Jigau, certified her as being unfit for work for a week. She was requested by her employer to attend a company doctor at the Casey Super Clinic. A number of investigations, including CT and MRI scans of her neck, were undertaken in September 2014. These were largely unexceptional and did not point to any structural cervical spine problem.
18 Ms Kocev was seen from September 2014 by Dr James Crompton, an “occupational physician registrar”. He noted she was receiving physiotherapy. He noted her work with Simplot had been demanding and physical. She presented with diffuse pain throughout her neck and arms. He certified her as being fit for lighter duties and thought that the pain was related to her employment. He did not believe she was malingering nor gratuitous. He trialed various analgesics without significant relief. He could find no abnormality of significance in her cervical spine. He was in somewhat of a diagnostic dilemma in trying to determine the cause of the problem, although concluded a working diagnosis of Complex Pain Syndrome, secondary to her manual work.
19 Various investigations were undertaken of the shoulders, and the cervical spine. None revealed any significant abnormality.
20 Dr Compton referred Ms Kocev to Dr Barry Slon, an anesthetist specialising in pain management. He noted an ultrasound showed some bursitis in the shoulders. He treated Ms Kocev through 2015, and in August 2015, noted that she had remained employed continuously, albeit on lighter duties, to that time. He undertook cervical nerve blocks without significant relief, and medial branch block in August 2015, with some improvement. He said that the pain, although initially confined to the shoulder, radiated to the neck and to the upper limbs. He thought the clinical presentation was unclear but thought she may be suffering from arthritis of the glenohumeral joint with tendonitis.
21 Ms Kocev separated from her husband in 2015 when he went to live in Serbia for a period. He returned, and they resumed their relationship, although are now separated.
22 Ms Kocev had a further diagnosis branch block from Dr Slon in December 2015, and in January 2016, an injection into her left shoulder.
23 From November 2015, she was treated by a general practitioner, Dr Peter Pjesivac, who has continued to treat her through to the present time. He referred her to Mr Armin Drnda, neurosurgeon, who suggested conservative treatment.
24 Ms Kocev became depressed, and Dr Pjesivac referred her to a psychologist, Ms Stojanka Stefanovic.
25 The next referral was to Dr Robert Gassin, a pain management specialist, who Ms Kocev saw in April 2016. He noted her work had been physically demanding and that investigation by CT and MRI scans of her brain and neck showed no particular cause for her ongoing symptoms of pain. In his report of July 2016, he said:
“Ms Kocev’s symptoms were consistent with neuropathic pain and the possibility of developing a complex regional pain syndrome type 1 was raised. … .”[1]
[1]PCB 79
26 Dr Gassin commenced her on the medication Gabapentin. He thought her condition was work related.
27 Ms Kocev remained under Dr Gassin’s care until mid 2017. He said that as time progressed, her pain became more widespread, affecting the left side of her body from the head down to the lower back, as well as the left arm. He confirmed his opinion that she was suffering CRPS. He trialed various medication, including Norspan patches, Panadeine Forte and Diazepam to help with sleep. He noted that she was significantly distressed by pain and disability. He trialed Oxazepam and Tramadol, with Lexapro. He suggested she obtain a further opinion, and referred her eventually to Dr Ali Mehr, another pain management specialist. Dr Gassin was of the view that Ms Kocev’s pain was related to her employment duties working as a process worker. He said that the injury to her neck in August 2014 had brought on the CRPS:
“Ms Kocev has become highly disabled as the result of developing a complex regional pain syndrome. This interferes with all her activities as well as her ability to sleep and also has a significant impact on her mood and quality of life. As a result of the condition, she has difficulty with walking, lifting, carrying, driving, stooping, bending and twisting and has a limited range of movement especially of her left upper limb and neck. As a result of the intake of strong analgesic and of adjuvant pain medications, she experiences a number of adverse effects including drowsiness, nausea and itchiness, which further interfere with her quality of life.”[2]
[2]PCB 87
28 Dr Gassin thought she had no capacity for any work and would require ongoing psychological support. He suggested a structured multi-disciplinary pain management program. He thought her restrictions were permanent.
29 In March 2017, Ms Kocev was assessed by Dr Ali Kian Mehr, a rehabilitation and pain specialist. He noted significant left-sided pain in the upper part of the body, left arm, shoulder and left side of the cervical spine, including to the face. He said that the pain was neuropathic and included aching, pins and needles and stabbing pain. He said that the impact of this pain condition on Ms Kocev’s functioning was significant. He thought she was suffering CRPS, and noted various sensory changes, including allodynia, change in color and some bluish appearance, with mild swelling on the left hand. He said:
“I thought the condition at the time of my assessment met the Budapest criteria for complex regional pain syndrome type 1. She had allodynia and some vasogenic and sensory and motor/range of motion symptoms and signs. This CRPS had minimal autonomic symptoms. This condition has been perpetuated by psychosocial stress including work place bullying, depression, anxiety and anger. It also has been perpetuated by insomnia, deconditioning and postural issues (left shoulder is located at a higher level compared to the right shoulder).”[3]
[3]PCB 134
30 Dr Mehr administered a ketamine infusion, which provided no significant long-term relief. He said the prognosis was poor, her condition stable and thought that she had no capacity for any physical work. He thought that the condition was related to her employment.
31 As a result of her ongoing psychological condition, Dr Pjesivac referred Ms Kocev to Dr Albert Kaplan, a psychiatrist, in February 2017. He has continued to treat her through to the present time. He noted Ms Kocev had become depressed and teary and lost confidence. He described her symptoms as including irritability, loss of appetite, insomnia, diminished libido and difficulties with short-term memory. In contrast, he noted that before injury, she was a “cheerful, confident and gregarious woman”.[4] He said she had become preoccupied with her injury, including chronic pain and her limited physical abilities. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said the prognosis depended upon the outcome of her physical condition. He said the psychological symptoms were likely to affect her capacity for pre-injury employment.
[4]PCB 123
32 In June 2016, Dr Pjesivac referred Ms Kocev to Mr Ash Chehata, orthopaedic surgeon, for further assessment. She presented to that practitioner with widespread and diffuse pain around the neck, left shoulder and left arm. At that time, she was being prescribed Endep and Lyrica. He thought she was suffering subacromial bursitis with neuropathic style pain which had not improved despite a multitude of investigations and treatment.
33 Ms Kocev undertook a course in nursing from June 2014 to November 2015, studying as she was working. She concluded the course, and obtained a diploma as a Division 2 Nurse in May 2016. She was able to undertake eight weeks of nursing placements, including driving quite long distances to get to various hospitals. She has not worked as a nurse, and according to her affidavit, feels she would not be up to the physical demands of the job.
34 In January 2018, Dr Mehr referred Ms Kocev to a pain management course at the Barbara Walker Centre of St Vincent’s Hospital. The course was in two phases: the first required her to attend each day for three weeks, and the second was a four-week follow-up program conducted at home. According to the report,[5] Ms Kocev was said to be motivated and committed to the course. Her functional tolerances improved, and a range of pain-relieving medication, including Targin, Panadol, Nurofen and Oxazepam, were ceased. The report concluded:
“Gordana has actively engaged with the cognitive therapy and pain management skills sessions, starting to develop a greater awareness of her emotions and unhelpful thinking patterns and the resulting impact on her behaviours and pain experience. She is to be congratulated for the commitment she has made to the START program. She has been an active contributor to the group and supportive of other group members. Her improvements across a number of psychological measures are a testament to her commitment to utilizing active self-management strategies and we encourage her to continue to practice goal setting, pacing, thought management, problem solving and relaxation strategies as she adjusts to her home program.”[6]
[5]PCB 137-141
[6]PCB 141
35 According to her affidavit:
“… The program also helped me to understand my pain, and gave me some coping mechanisms to use, but it didn’t do much to alter the overall pain that I have.”[7]
[7]PCB 19
36 According to the report of the Dr Pjesivac,[8] Ms Kocev is suffering PTSD, together with subdeltoid bursitis. Further, he said she was suffering from chronic severe refractory neck pain (myofascial) and subdeltoid bursitis, along with painful arch of left shoulder. He noted, further, she was suffering from Depression due to her ongoing chronic pain and disability. He thought her work was a significant contributing factor. He said she faced various physical restrictions and did not have the capacity to return to her pre-injury duties, nor the capacity for alternative employment. He said she was incapable of any meaningful work.
[8]PCB 106-7
37 At the present time, Ms Kocev continues to see Dr Pjesivac once a month. She also sees a physiotherapist, Mr Rich, regularly. She sees a new psychologist, Mr Kyriakoulis. She sees the psychiatrist, Dr Kaplan, once a month or so. She takes Lovan for Depression.
38 Ms Kocev says most of the upper left side of her body is in pain every day. The pain becomes aggravated if she moves around too much. The pain commences in her neck and travels down her left shoulder blade, chest and into the left arm. She described it as being like “a knife burning in my left shoulder, like someone is chipping into my bones”.[9] She says there are changes of colour and temperature in her left arm, and it feels weak. She finds sitting or standing for long periods difficult. She has problems with sleep, and regularly wakes up when she turns over. She receives assistance from her mother, who regularly stays with her and helps with household duties and taking her son to school.
[9]PCB 20
39 Ms Kocev says she is depressed as a result of her current situation and frustrated at the loss of her employment with Simplot, which she enjoyed. She is currently certified by Dr Pjesivac as being unfit for all work. She suffers headaches, and has difficulty with dressing, brushing her hair and other like activities.
Consultant medical opinions
40 Ms Kocev was examined by Dr Peter Blombery, consultant vascular physician, in March 2016 and February 2018. He received the same history of widespread pain from the neck, extending into the shoulders and down the left arm, as did many other practitioners. He described Ms Kocev’s presentation as very dramatic. He thought there might be a minor component of CRPS, but did not consider it particularly marked. He thought Ms Kocev was suffering from a “Pain Syndrome complicating muscle spasm in the left side of the neck and left shoulder”.[10] After the pain management program earlier this year, he maintained his diagnosis of a Pain Syndrome, although was unable to detect any changes in temperature or colour on the left limb. He said that other practitioners had noted such symptoms and thus he thought Ms Kocev met the criteria of the International Association for the Study of Pain Management for the diagnosis of CRPS, although did not satisfy the “Budapest criteria”. He thought her prognosis for recovery was poor. He said there was a component of CRPS and that the condition was related to her employment, triggered by soft tissue injuries to her neck and left shoulder. He thought she was not fit for her pre-injury employment.
[10]PCB 145
41 Dr Ales Aliashkevich, neurosurgeon, in January 2018, diagnosed Ms Kocev as suffering:
“Chronic and refractory neuropathic neck, left shoulder and arm pain
Chronic occipital headache
Suspected myofascial pain syndrome/fibromyalgia
… .”[11]
[11]PCB 206
42 Dr Aliashkevich thought Ms Kocev had no realistic work capacity and that her prognosis was poor.
43 Dr Tim Hwang, an occupational physician, examined Ms Kocev in August 2015 and May 2016. He described her presentation as unusual. He said that she complained of suffering left-sided neck pain following a relatively trivial movement at work in August 2014. He thought she was capable of returning to work and undertaking most tasks. However, in May 2016, he described her presentation as entirely different. He said it was extremely difficult to obtain a clear history and said there were psychosocial matters at work and significant behavioural factors affecting her condition. He said she had developed a complex set of symptoms. He did not find evidence of a neuropathic component to her pain, nor any objective features of CRPS. He said the localised nature of her symptoms was not consistent with fibromyalgia. He could identify no injury nor establish a link to her employment. He thought any work-related component to the incident of August 2014 would have resolved.
44 Mr Ian Jones, orthopaedic surgeon, examined Ms Kocev in March 2017. He thought her complaints initially suggested muscle spasm, although he was unable to substantiate anything on pathology. He did not think her injuries related to the incident of August 2014, and was unable to explain her complaints in relation to the pain in the cervical spine and left arm. He noted there was some evidence of subacromial bursitis with mild tendonitis in the left rotator cuff which could have been a source of the pain. He could see no restrictions in terms of her employment and did not believe she suffered any orthopaedic complaints in relation to her cervical spine.
Credibility and presentation of the Plaintiff
45 Ms Kocev was cross-examined and gave evidence in a colourful and loquacious manner. She was clearly significantly focussed upon her pain and disability. In some parts of her evidence, she was exaggerating. She was intent upon convincing the Court of the seriousness of her problems. Many of the treating and consultant practitioners gave similar descriptions of her presentation.[12]
[12]Report of Dr Hwang, DCB 27, and Professor Doherty, DCB 59, 71
46 In submissions, Mr Clements, for the plaintiff, acknowledged this, but said that was an element of Ms Kocev’s underlying condition.
47 It is to Ms Kocev’s credit that she has a good employment history and then, after her injury, she undertook a nursing course and qualified with practical placements.
48 Notwithstanding, I did not find Mr Kocev a particularly satisfactory witness. She found it difficult to answer questions directly. She was intent on describing every feature of her pain and disability. I did not find her dishonest, nor were there any major credit issues put to her, but I do have some reservations in accepting all of her complaints of pain and disability.
Submissions on behalf of the Defendant
49 Mr Stanley, for the defendant, submitted that if there was a disability, then it had a psychological rather than a physical basis. He said it was unclear as to what the body function relied upon was, in terms of physical injury.
50 Mr Stanley noted that after the incident of August 2014, and into 2015, Ms Kocev had significant gaps in her medical treatment and her claims of physical disability and pain were not as florid as in her description to the various practitioners later in 2016 and 2017. He submitted that something occurred of a psychological nature that prompted the increased symptoms. He relied upon the opinion of Dr Hwang, who saw her both in 2015 and then again in 2016, and described an entirely different presentation on the second occasion. Mr Stanley submitted that whatever was the cause of the change, it was not work related.
51 He emphasised that from 2015 into 2016, Ms Kocev was not only able to work on the same hours as before injury, albeit on lighter duties, but also had undertaken study and practical placements in relation to her nursing qualification. He said her presentation was significantly different of more recent times.
52 Mr Stanley further emphasised the improvement in the plaintiff’s condition following the rehabilitation program at the Barbara Walker Centre. He said there had not only been a reduction, even elimination, of her pain medication, but a significant improvement in her capacity to walk, stand, sit, and in respect of lifting tolerances. Thus, he said, there was scope for further improvement, and hope for the plaintiff in the future particularly, to attempt to undertake employment in the nursing area.
53 Mr Stanley emphasised there was a disentangling issue between, on the one hand, those consequences related to the psychological disorder, and those to the physical disorder. When that exercise was undertaken, and consideration given to the relatively modest findings on radiology, the physical injuries did not meet the statutory criteria.
Analysis
54 I accept the work undertaken by Ms Kocev at Simplot, in particular from November 2013, was repetitive and demanding physical work requiring the use, in particular, of her upper limbs to clean the food manufacturing equipment.
55 The incident, itself, of August 2014 when she was removing work clothing in respect of which she claims to have suffered sudden pain, was relatively innocuous. Combining that with the radiological investigations of her shoulders and neck subsequently, it is difficult to understand how she could suffer the pain which she claims, and disability.
56 The answer, in my view, lies in the assessment and opinions of the treating pain specialists, Dr Gassin and Dr Mehr, who, between them, treated Ms Kocev over a considerable period in 2016 and 2017. Each diagnosed CRPS.
57 CRPS is an unusual organically-based pain condition triggered by relatively minor trauma and without evidence of a major structural disorder on radiology. It can result in disabling pain and restriction when pain pathways become sensitised. Dr Blombery, an acknowledged expert in the area, provides some support to the opinions of Dr Gassin and Dr Mehr, although he did not detect some of the more florid symptoms of CRPS.
58 Mr Stanley argues that even if one accepted Ms Kocev suffers pain, it is psychologically based and related to something which occurred well after the August 2014 incident. There is some merit to this argument given Ms Kocev was able to continue work and, indeed, complete a nursing degree. However, I am satisfied, in accordance with the views of Dr Gassin and Dr Mehr, that the CRPS was a developing condition, initially not as debilitating as subsequently came to be the case. Both those doctors, and some other practitioners, are of the view that the disability arose as a result of heavy manual work over a number of years, and triggered by the incident of August 2014. I accept that assessment.
59 As stated, CRPS is an organically-based disorder. Of the various psychiatric opinions, I prefer that of Dr Kaplan, the treating psychiatrist, who has treated Ms Kocev now for more than twelve months. He considers she has suffered an Adjustment Disorder with Mixed Anxiety and Depressed Mood, the principle symptoms of which are Anxiety, Depression, irritability, loss of libido, short-term memory and concentration. These symptoms, while related to the pain she suffers from the physical disorder, are separate and distinct psychological symptoms. I prefer the opinion of Dr Kaplan to that of Professor Doherty.
60 There is further support from the long-term treating general practitioner, Dr Pjesivac, who, while acknowledging there is some bursitis to the shoulder and physical problems with the neck, agrees with the diagnosis of CRPS.
61 The capacity of Ms Kocev to remain in employment and undertake a nursing degree is really a reflection of the development of the disorder, rather than some subsequent intervening event. I am satisfied that the disorder developed as a result of Ms Kocev’s work duties with Simplot.
62 As Mr Stanley argues, there has been some improvement as a result of Ms Kocev’s treatment at the Barbara Walker Centre. She has come to understand her pain better, and there has been significant reduction or elimination of pain-relieving medication. However, I accept that she still suffers significant pain as a result of the disorder and that while she may deal with it better, it, nonetheless, is severe and disabling. I accept that a significant range of recreational, social and domestic pastimes are lost or reduced. I accept the opinion of the general practitioner, Dr Gassin and Dr Mehr, that she has little, if any, work capacity, and that while there has been some improvement after her time at the Barbara Walker Centre, that situation is likely to remain for the foreseeable future.
63 The disorder has required an extensive array of treatment, both by interventions of one sort or another, and medication. There has been no lasting relief. I am satisfied that position is likely to continue for the foreseeable future.
64 I am satisfied that the consequences to Ms Kocev of the physical disorder are at least “very considerable”. I am satisfied that as a result of the physical disorder, she has suffered a very significant loss of earning capacity beyond that which meets the statutory test. In these circumstances, leave to bring common law proceedings both in respect of pain and suffering and loss of earning capacity will be granted.
65 I shall make consequent orders.
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