Koyluoglu v Victorian WorkCover Authority
[2018] VCC 1684
•22 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01169
| NERMIN KOYLUOGLU | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 October 2018 | |
DATE OF JUDGMENT: | 22 October 2018 | |
CASE MAY BE CITED AS: | Koyluoglu v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1684 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower back – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity – nature and extent of plaintiff’s work capacity – whether the plaintiff had made reasonable attempts to rehabilitate and to obtain employment
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s325(2)(g)
Cases Cited:Elmas v Victorian WorkCover Authority [2018] VCC 735; Ristevski v Demos Property Services (Australia) Pty Ltd & Anor [2010] VCC 0169; Elias-Mikre v Royal Melbourne Hospital (Melbourne Health) [2013] VCC 1860
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr S Dawson | Zaparas Lawyers |
| For the Defendant/s | Mr D R Myers | Russell Kennedy |
HIS HONOUR:
Preliminary
1 Ms Koyluoglu is fifty-one years old. She was born in Turkey and completed Year 10 schooling there. In 1984, when she was seventeen years old, she moved to Australia. She has some spoken English but has very limited reading and writing skills. A Turkish translator was used to assist her throughout the proceeding.
2 The plaintiff has modest work experience. She worked for about three years from 1987, sewing at a hosiery factory. She stayed at home to raise her children and did not work again until she began working for Labelmakers Group Pty Ltd (“Labelmakers”) in 2007.
3 Ms Koyluoglu worked as a machine operator at Labelmakers. This work was heavy and repetitive and involved her re-filling machines with large label rolls, the size of car wheels. Although the application is brought on the basis the injury occurred “throughout the course of the plaintiff’s employment”, the focus was upon injury which occurred on 24 August 2015 when one of these rolls became caught in a machine. She lifted the roll to try and put it in place and felt a “snap” to the right side of her lower back. She had pain going down her right leg. There is little doubt, from the bulk of the medical evidence, that she suffered a prolapse at the L5-S1 disc in the incident. There was also compression of the right S1 nerve root on MR imaging.
4 Ms Koyluoglu returned to work with Labelmakers on reduced hours and duties for a period from about November 2015 to April 2016. She underwent surgery (a micro discectomy at L5-S1) in July 2016. She returned again to Labelmakers in late 2016, working for two hours per day, three days per week on very light duties, but says she was unable to continue. She has not worked since April 2017.
5 This is a “serious injury” application. Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity.
6 The body function said to be lost or impaired is the lower spine.
7 Ms Koyluoglu also claims to have suffered a severe mental disorder in the nature of an Adjustment Disorder with Anxiety and Depression,[1] although this aspect of the application was not pursued.
[1]Described by some consultant psychiatrists as a Major Depressive Disorder
8 Mr Myers, for the defendant, identified the issues in the application as:
· He conceded, sensibly, that the consequences of the injury to Ms Koyluoglu met the statutory test in respect of “pain and suffering”. The real issue, he said, was as to her work capacity.
· In relation to work capacity, he said she had not suffered a loss of 40 per cent or more in accordance with the statutory formula (“loss of earning capacity”).
· The onus, Mr Myers said, lay with the plaintiff pursuant to s325(2)(g) of the Workplace Injury Rehabilitation and Compensation Act 2013, (“the Act”) to prove she had made reasonable attempts at rehabilitation and retraining. In this application, he contended she had not (“rehabilitation and retraining”).
Loss of earning capacity
9 I found Ms Koyluoglu an impressive witness. Video surveillance was shown of her on a number of occasions in 2018. I did not find the activities depicted stood in contrast with her description of pain and restriction in her affidavit, in cross-examination or in the histories to the various doctors. There were no other major credit issues put to her. I have little difficulty in accepting her complaints of pain in the lower back, and the restriction in her domestic, recreational and leisure activities.
10 Since her injury, Ms Koyluoglu has been treated by a general practitioner, Dr Baglar. In November 2015, he certified her as being fit to return to work on reduced hours and duties. She worked from November 2015 until April 2016 with Labelmakers. While she was certified for four hours per day, five days per week, she said in cross-examination that she did not think she got to five days per week. She stopped work because of the ongoing pain, and was referred to Mr Gonzalvo, neurosurgeon, in April 2016. He performed a microdiscectomy at L5-S1 in July 2016, having found a prolapsed disc at that level, compressing the exiting nerve roots.
11 According to her affidavit and evidence, Ms Koyluoglu now complains of constant pain across her lower back, with occasional stabbing or sharp pain. The pain radiates down her right leg to her heel. She suffers flare-ups, depending upon the activities in which she is involved. She finds it difficult to undertake heavier household duties and has to lie down regularly to ease the pain. Her sleep is disrupted, and she has become depressed because of her injuries. She says that her concentration is affected and this, along with back and leg pain, makes it difficult for her to consider applying for jobs, or to undertake an English-language course, which may broaden her employment prospects.
12 There was some improvement in her back pain after surgery with Mr Gonzalvo, but that surgery has not provided any ongoing relief. She said her situation has been gradually worsening.
13 In late October 2017, she saw Dr Clayton Thomas, a pain specialist, who recommended assessment for a pain management course. The insurer refused to fund the course. Physiotherapy treatment was also refused. As a result of her physical injuries, her Depression has been treated by several psychologists.
14 At the present time, she takes Mersyndol Forte each day, Panadeine Forte, as needed, and Voltaren, an anti-inflammatory, as needed. She also takes Palexia, an opioid pain medication, twice per day.
15 In early 2017, Ms Koyluoglu again returned to Labelmakers on restricted hours and duties. She was certified by Dr Baglar to work two hours per day, three days per week. She said her employer was very accommodating and even provided her with a bed so that she could lie down when necessary. She was able to sit or stand at will, and the duties were light. She said that by April 2017, she was simply unable to cope, and left employment. Since then, she has been certified by Dr Baglar as unfit for any duties. She said she was unable to continue because of back and leg pain, and her concentration was “zilch”.
16 She has returned to Turkey with her husband regularly over recent years to see her family there. She says she rests at the home of relatives and is able to get through the long flights only with medication. A range of domestic, recreational and leisure activities, she says, have been significantly affected.
17 Ms Koyluoglu was last reviewed by her surgeon, Mr Gonzalvo, in September 2016, about six weeks after her surgery. He noted she was progressing well, although complained of a pulling sensation in the right leg, which he thought would improve. An MRI scan taken after surgery showed the exiting nerve root had been decompressed. He was optimistic her condition would continue to improve and that she would be able to return to work. He said:
“Mrs Koyluoglu should be capable of returning to work in a progressive manner to an occupation which does not involve heavy lifting, bending or twisting.
…
As a general rule following discectomy surgery 80-90% of patients are pain free or significantly improved in relation to radicular symptoms. Approximately 50% of patients continue to experience back pain. In the long term 10-20% of patients develop recurrent symptoms and approximately half of these patients require further surgery however these figures are only an estimate.”[2]
[2]Plaintiff’s Court Book (“PCB”) 30
18 In his most recent report of 4 October 2018, treating general practitioner, Dr Baglar, reflected upon the negative impact the injury to her lower spine had upon the plaintiff’s life. He said it affected her life in every respect. He said that she had no capacity for her pre-injury employment, or any alternative employment, and described the injury as rendering her:
“… totally dysfunctional in other aspects of her life, as a mother, as a partner and as a housewife.”[3]
[3]PCB 40
19 Dr Baglar concluded:
“As stated above, my lengthy involvement with Nermin naturally entailed me to familiarize with her. I am well aware of her professional background, transferable skills and strengths as well as her level of English and her educational background. With such knowledge, I can confidently state that Nermin is not fit for any employment for which she could qualify because of her education, experience and training. Her English is highly limited and her current mental state precludes her from any vocational rehabilitation.
Nermin's disability is total and irreversible.”[4]
[4]PCB 40
20 Dr David Middleton, an occupational and rehabilitation consultant, provided an extensive report of 22 June 2018. He described the lower back injury as resulting in a large disc extrusion at the L5-S1 level, with compression of the right S1 nerve root with clinical and objective evidence of right S1 sciatica. He said Ms Koyluoglu was restricted significantly in a range of postural tolerances, with limited sitting, standing, walking and lifting. He said she no longer had the safe and reliable physical capacity to perform her pre-injury duties and was now restricted to sedentary non-manual duties which could only be performed at a self-paced manner, with extensive breaks. Given that she had been out of the workforce for some period, he said she could only be considered to return on a graduated basis, two to three hours per day on two to three non-consecutive days. He said the hours would need to be carefully monitored. He noted that her English language skills were very limited and her education and work experience likewise. He said, in the absence of any vocational re-education, including an English-language course, she had no realistic likelihood of being able to obtain any suitable employment. On that basis, he said she had no current work capacity. He was unable to identify any area of employment for which she might be suited. He said she would need ongoing treatment and a pain management program.
21 Professor Richard Bittar, neurosurgeon, provided an opinion of July 2018. As to her treatment, he recommended a trial of a spinal cord stimulator. He said she was totally incapacitated for her pre-injury work. He said, given her modest English, together with the nature and severity of her lumbar spinal condition, as well as her age, education and employment, she had a total incapacity for any area of employment, which was likely to be permanent. He said she had a limited capacity for prolonged sitting or standing and could only lift the lightest objects. She could not engage in repetitive bending, twisting or carrying. He said that her disability was as a result of physical symptoms.
22 On behalf of the defendant, Ms Koyluoglu was examined by Dr Joseph Slesenger, occupational physician, in 2016, and again in September 2017.
23 In his first report, although noting the injury to her lower spine and the surgery, he said he would expect a gradual improvement in her condition.
24 In his second report, he received a history that her condition had gradually deteriorated and the symptoms in her lower spine worsened. On examination, he said Ms Koyluoglu demonstrated a range of non-organic features.[5] He concluded that she had the capacity to return to pre-injury duties and hours.
[5]Defendant’s Court Book (“DCB”) 32
25 He was provided with a Vocational Assessment Report of Nabenet and in relation to the various areas of employment suggested, said that she had the capacity to return to work as a process/production worker, packer (light items), product assembler (light duties), school crossing supervisor and cashier/console operator. He said whatever Ms Koyluoglu’s incapacity was, it was no longer contributed to by her workplace injury. He said there may be non-organic factors at work, possibly related to an earlier motor vehicle accident or symptom magnification.
26 Ms Koyluoglu was examined by Dr Ian Dickinson, orthopaedic surgeon, in September 2018. Having performed an examination and assessed the radiology, Dr Dickinson said that despite her ongoing complaints of lower back pain, and referred pain into the left leg, there was no evidence of any significant degree of permanent residual disability as a result of her injury. He suggested that her medication should be stopped, as particularly the narcotic medication might lead to dependency.
27 He said his clinical findings indicated that her spine was mobile and there was no cause for her complaint from a physical perspective. He said her work was not materially contributing to whatever her current condition was. He said there was evidence of functional overlay with some inconsistent signs. There was no overt evidence of exaggeration. He said she would be able to return to her pre-injury duties, or to other suitable employment, on a full-time basis. He said she could undertake any of the areas of employment identified by Nabenet. He suggested some form of rehabilitation would be appropriate. He was provided with a surveillance video which, in contrast to my finding, he said showed her involved in activities which were not consistent with her complaints.
28 Mr Myers submitted I ought prefer the opinions of the defendant’s practitioners, Doctors Slesenger and Dickinson. He said there was a significant functional component to her complaints. In particular, he referred to the optimistic outlook, as set out in the opinion of the treating surgeon, Mr Gonzalvo.
29 Having considered all of the evidence, I am of the view that the practitioner in the best position to make an assessment of Ms Koyluoglu’s work capacity is her general practitioner, Dr Baglar. On the plaintiff’s side, Dr Middleton and Professor Bittar paint a gloomy picture, and each say, taking all matters into account, Ms Koyluoglu has little, if any, work capacity. In stark contrast, the defendant’s practitioners, Doctors Slesenger and Dickinson, say the complete opposite. They speak of non-organic factors and say she has a complete capacity to return to all work, including her pre-injury work, on a full-time basis. I was not much assisted by any of these consultant practitioners. As Mr Mighell pointed out in submissions, if, indeed, the defendant relied upon the opinions of these practitioners, it is difficult to understand how it concedes the symptoms and restrictions suffered by Ms Koyluoglu are sufficient to demonstrate that she achieves the statutory criteria for pain and suffering.
30 Dr Thomas noted that she suffered from lower back pain without evidence of radiculopathy and thought her injury sufficient to refer her to a rehabilitation program at the Dorset Rehabilitation Centre for assessment. It is a pity funding was not provided for that assessment and a possible program to be undertaken.
31 Mr Myers is correct that the treating surgeon was optimistic about her progress; however, the last time he saw her was only six weeks post-surgery and he did not have the opportunity of her history of ongoing lower back and leg complaints through to the present time. While saying that most patients made a good recovery from the surgery he undertook, he acknowledged there was a small proportion who had ongoing significant lower back pain, of which some faced further surgery. His opinion, at best, was a projection based upon the situation at the time.
32 Dr Baglar has treated the plaintiff throughout on a regular basis. As he said in his report, he knows her well, has seen her regularly, has prescribed medication and is in a better position than any other doctor to assess the impact of the injury upon her. I find I am comfortably able to rely upon his opinion that she has no effective work capacity.
33 I note in March 2018, Ms Koyluoglu was reviewed by Evidex for a vocational assessment. Mr Dwyer, occupational therapist, concluded there was no recognised occupation for which she was suited given her transferable skills, age and functional capacity
34 In accordance with the provisions of the Act, I must take into account not only the physical injury suffered and the consequences of that injury, but also, relevantly, Ms Koyluoglu’s age, education and work experience. She is now fifty-one years of age. She has limited English, and little capacity to read and write it. Her employment has only ever been manual, and in a very restricted field.
35 Accepting her complaints of pain and restriction, the opinion of Dr Baglar, her age, work experience and education, I have little trouble concluding that Ms Koyluoglu has little, if any, work capacity for suitable employment.
Rehabilitation and retraining
36 Section 325(2)(g) of the Act provides:
“a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining –
(i) has;
(ii) after rehabilitation or retraining would have –
a capacity for employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
… .”
37 This subsection requires consideration of a number of matters:
·the attempts by the worker to undertake rehabilitation or retraining
·whether those attempts have been reasonable
·had the worker undertaken rehabilitation or retraining, whether that would have resulted in the worker’s earning capacity to be increased beyond 60 per cent.
38 The section places an onus upon the plaintiff to prove these matters.
39 Mr Myers took me to decisions of a number of judges of this Court on the issue.[6]
[6]Elmas v Victorian WorkCover Authority [2018] VCC 735 – his Honour Judge Bowman; Ristevski v Demos Property Services (Australia) Pty Ltd & Anor [2010] VCC 0169 – his Honour Judge Misso and Elias-Mikre v The Royal Melbourne Hospital (Melbourne Health) [2013] VCC 1860 – his Honour Judge Jordan.
40 Mr Myers emphasised that Ms Koyluoglu had not searched for any jobs, even on part-time light duties. She had also not undertaken any rehabilitation, in particular an English-language course, to broaden the scope of her employment capacity. He also noted that Labelmakers had, and were still, prepared to offer her employment on significantly reduced hours and duties and had provided her with every possible assistance in the workplace.
41 I accept Mr Myers’ submission the emphasis of the section is upon the reasonableness of the worker’s attempts to participate in rehabilitation or retraining.
42 Ms Koyluoglu came under the care of Nabenet, vocational service providers, in April 2017. She was assessed on a number of occasions over that year. Eventually, funding for that assistance was terminated by the insurer. Despite Nabenet’s assessment that in accordance with various medical reports Ms Koyluoglu had the capacity to undertake a range of duties, Nabenet were unable to find Ms Koyluoglu any employment. As earlier stated, her attendance at an appropriate pain management course may have provided some assistance, but, again, funding was terminated. In taking into account the reasonableness of a worker’s attempts at rehabilitation and retraining, a number of things must be considered, relevantly:
·The nature and extent of the injury, its consequences and the impact upon a worker’s capacity to undertake employment.
·The realistic capacity of the worker to explore, obtain and undertake rehabilitation and training courses and programs.
·Whether undertaking any such program or course would have any significant affect upon a worker’s employment capacity.
43 Had Ms Koyluoglu been able to undertake an English-language course, there is the prospect that it may have extended her employment capacity; however, again, I accept her evidence that both because of the pain in her back and referred pain to her leg, and the effect of that upon her capacity to concentrate and to tolerate courses and programs, that would not have made any realistic difference. Further, I accept the opinion of Dr Baglar that her condition precluded her from vocational rehabilitation.
44 In these circumstances, Ms Koyluoglu’s attempts at rehabilitation and retraining or, rather, the lack of them, has not been unreasonable. Even if she were able to undertake some form of retraining, I am not satisfied that would significantly alter her work capacity.
45 Even had she been able to complete a language course, and undertake some form of rehabilitation and re-training, I am not satisfied that would have done anything other than marginally improve her work capacity, and certainly not beyond 60 per cent of that capacity, before injury.
46 Therefore, the submissions of the defendant are rejected.
Conclusion
47 I am satisfied that, as a result of her workplace injury, Ms Koyluoglu has little, if any, work capacity, and that that situation is likely to continue into the future. Accordingly, her application, both in respect of pain and suffering and loss of earning capacity, should succeed.
48 I shall make appropriate orders.
- - -
2
0