Kulakovski v Hella Australia Pty Ltd
[2014] VCC 337
•28 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENASATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02153
| VALENTINA KULAKOVSKI | Plaintiff |
| v | |
| HELLA AUSTRALIA PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2013 | |
DATE OF JUDGMENT: | 28 March 2014 | |
CASE MAY BE CITED AS: | Kulakovski v Hella Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 337 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back/lumbar spine – permanent severe mental or permanent severe behavioural disturbance or disorder – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a) and (c)
Judgment: Permanent severe mental or permanent severe behavioural disturbance or disorder not established – permanent serious impairment or loss of a body function established – leave to commence proceedings for both pain and suffering and loss of earnings.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr B G Anderson | Shine Lawyers |
| For the Defendant | Mr J A O’Brien | Wisewould Mahoney |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion dated 9 May 2012.
2 In the Originating Motion the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendant. The plaintiff’s case is that she suffered an injury arising out of, or in the course of, or due to the nature of her employment with the defendant.
3 The plaintiff claims that the injury she sustained has resulted in permanent serious impairment or loss of a body function to her lower back or lumbar spine area within s134AB(37)(a) of the Act. The plaintiff also claims she suffered a permanent severe mental or permanent severe behavioural disturbance or disorder within s134AB(37)(c) of the Act.
4 The plaintiff seeks leave to commence proceedings claiming damages for pain and suffering and loss of earnings.
5 There is a statutory framework in the Act that proscribes what the plaintiff must prove.
6 To make out a “serious injury” within the meaning of s134AB(37)(a), the plaintiff must establish, on the balance of probabilities, that she suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not serious unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c).
7 To make out a “serious injury” within the meaning of s134AB(37)(c), the plaintiff must establish, on the balance of probabilities, that she suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”. Again, the determination of whether a psychiatric injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant permanent severe mental or permanent severe behavioural disturbance or disorder. A mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of the application unless the pain and suffering consequences or, the loss of earning capacity consequence is, when judged with comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe within s134AB(38)(d).
8 Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering or behavioural disturbance or disorder and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.
9 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 hearing and permanently.
10 Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections “suitable employment” is defined in s5 of the Act to mean “employment in work for which the worker is currently suited (whether or not that work is available) etc etc”.
11 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. The proper identification of pain and suffering attributable to impairment which is physical or physiological in origin requires that any psychological or psychiatric overlay be stripped aside.
12 Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
13 Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
14 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of her employment and, what consequences (if any) were suffered and, continue to be suffered by her.
15 The plaintiff filed and served two affidavits in support of her application. Those affidavits were sworn on 24 November 2011 and 1 July 2013 respectively.
16 In addition, the plaintiff was called for cross-examination and was cross-examined by the defendant’s counsel, Mr O’Brien, and re-examined by her Senior Counsel, Mr McGarvie SC. The cross-examination was limited and the plaintiff’s credit was not challenged.
17 In addition, the plaintiff filed a Court Book containing her affidavits and a number of medical reports and radiological images. I admitted into evidence as exhibit A, the Plaintiff’s Court Book (“PCB”) pages 1 to 138. I also admitted into evidence as exhibit B, a summary spreadsheet of Certificates of Capacity given by the plaintiff’s treating doctors between 15 September 2003 and 6 May 2013. I also admitted into evidence as exhibit 1, on behalf of the defendant, pages 1 to 56 inclusive from the Defendant’s Court Book (“DCB”).
18 After considering all of the evidence and the various submissions made by counsel, and for the reasons which hereafter follow, I have concluded that the plaintiff should succeed on her Originating Motion insofar as it seeks leave to commence a proceeding for a serious injury within s134AB(37)(a) of the Act. These are my reasons for that decision.
19 It is necessary to start with the affidavit material filed by the plaintiff.
20 The plaintiff is forty-one years of age and born in Croatia. She is married with three children. She was educated in Croatia. After her first child was born she fled as a refugee to Germany, where she stayed for three years and she worked as a factory cleaner. She migrated to Australia with her family in 1994. Two of her children were born in Australia. When the youngest was eight months old she returned to work in a factory for a company, DMG, which made components for Toyota vehicles. The plaintiff left this work after three months because the shift work did not suit her. She obtained further work at Ryan Industries, which was a plastics manufacturer. She worked there for about one year.
21 The plaintiff commenced work with the defendant in February 1999 as a factory operator packing on the assembly line. The defendant manufactured headlights for cars, and the plaintiff and others packed these into boxes. The plaintiff describes this work as constant and repetitive. She was on her feet all day and was required to lift the boxes. In her first few years on the job there was no lifting equipment so she would be required to lift them from the floor and place them on pallets. She had a target of 450 boxes per day. The plaintiff describes the boxes containing the larger lamps as heavy. “By the end of the day I would be exhausted with all the lifting”.[1]
[1]PCB 7, paragraph [4]
22 The plaintiff deposes that after about two years of work she started to suffer from pains in her back that would come and go. From time to time she would consult a doctor at the Victorian Medical Centre in St Kilda, as well as a physiotherapist at the defendant’s factory.[2] In 2003, her back pain flared. She attended the physiotherapist and was referred for scans and to a rheumatologist. She kept on working. Her general practitioner, Dr Barnabas, certified her as unfit for work on 15 and 18 September 2003 and as being fit for modified duties on 24 September 2003.[3]
[2]PCB 7, paragraph [5]
[3]Exhibit B
23 The plaintiff deposes her lower back pain got much worse in 2005 when she was a team leader which required her to undertake a heavier workload. The plaintiff describes this heavy workload in her affidavit and none of this evidence was contested in any way.[4] The work involved lifting heavy jigs weighing up to 50 kilograms, as well as heavy bins full of car parts.
[4]PCB 7, paragraph [6]
24 Exhibit B shows the plaintiff attended Dr Banabas on 22 September 2009 complaining of low-back pain “after lifting things at work”. Certificates were provided that the plaintiff was unfit for work. A diagnosis of a disc prolapse at L5-S1 was made and there are numerous references to this in exhibit B. Dr Banabas proscribed painkilling medication and referred the plaintiff for a CT scan. She was also referred to a neurosurgeon, Dr Drnda, who saw her in October 2005. The report of the CT scan concluded “Minor L5-S1 disc abnormality as described. Otherwise normal”.[5]
[5]PCB 20
25 The defendant advised the plaintiff to attend Dr Lange, a general practitioner. He gave the plaintiff an epidural injection and referred her for an MRI scan.[6] The plaintiff worked full time during 2006 but says she was “up and down with my work hours”.[7] She continued to suffer back pain and continued with physiotherapy and Pilates.
[6]PCB 24
[7]PCB 8, paragraph [9]
26 Between 2007 and 2009, the plaintiff deposes her back pain would flare up periodically. She would take medication and had treatment from a chiropractor, Dr Ian Rossborough. This was paid for by the defendant.
27 The plaintiff describes an incident that occurred in November 2009, following which she says “my back pain got much worse”.[8] She felt sharp back pain whilst pulling a trolley. She was treated by Dr Lange with medication and by a physiotherapist, Bridie Shiels. She was also diagnosed as suffering depression and prescribed Zoloft and she began seeing a psychologist, Angela Martin, in March 2010.[9] In March 2010, she had a CT-scan-guided injection into the lower back.[10]
[8]PCB 9, paragraph [10]
[9]PCB 9, paragraph [10]
[10]PCB 23
28 On 26 February 2010, the plaintiff had another CT scan of the lumbosacral spine. The report, inter alia, was as follows:
“L5/S1Mild disc degenerative changes are present with a minimal broad based posterior disc bulge seen. Subtle left paracentral osteophytic lipping is seen. These osteophytes are seen to displace the proximal left S1 nerve root posteriorly. The facet joints have a normal appearance.
L4/L5No posterior disc bulging is evident. The facet joints have a normal appearance.
L3/L4No abnormality is seen.
Conclusion:
Posterior disc bulging and left paracentral osteophytosis noted at L5/S1 level, the appearances suggesting irritation of the proximal left S1 nerve root.”
29 Dr Lange referred the plaintiff for a further MRI scan on 11 May 2010. That scan confirmed two-level disc degeneration at L4-5 and L5-S1 –
“… with asymmetric generalised disc bulge at L4/5, worse on the right than the left with questionable posterior displacement of the right L5 nerve. Generalised disc bulge with an annular fissure is demonstrated at L5-S1 without definite focal disc protrusion or neural displacement. There is minor bilateral bony foraminal stenosis without neural displacement, confined to L5-S1. No definite compromise to the left sided nerve roots is seen. These appearances are unchanged in comparison to previous MRI dated 22/11/05.”[11]
[11]PCB 25
30 In June 2010, the plaintiff consulted neurosurgeon, Mr Myron Rogers, who recommended medication and physiotherapy.
31 In August 2010, the plaintiff consulted psychiatrist, Dr Cooray, who prescribed Endep, 100 milligrams per day, and she underwent hydrotherapy.
32 In 2010, the plaintiff deposes she worked reduced hours and in January 2011, she began working 6 hours per day on modified duties. She says she struggled and had one day off work each week. In February 2011, she ceased work completely and her employment was terminated in July 2011. She has not worked since.
33 The plaintiff describes her pain as constant and variable but increasing with activities such as walking and driving a car.[12] She deposes she now has reduced strength in her back and finds it difficult to hold certain postures. She has difficulty performing basic household tasks and says she can no longer lift anything heavy.[13] She says her back pain gets worse if she sits or stands in one position for too long. She can still drive a car but only for short distances.
[12]PCB 10, paragraph [13]
[13]PCB 10, paragraph [14]
34 When she swore her first affidavit in November 2011, the plaintiff was medicated with 150 milligrams of Endep each night and Lyrica, 300 milligrams, for pain daily. She was continuing to see Dr Cooray monthly, as well as the psychologist, Angela Martin, as well as receiving hydrotherapy.
35 Because of inactivity, the plaintiff has gained in weight and no longer enjoys gardening or a fitness group of dancing. She deposes she is “very depressed. I have lost my job.”[14]
[14]PCB 11, paragraph [19]
36 In her second affidavit sworn 1 July 2013, the plaintiff described her condition as much the same as when she had sworn her first affidavit. She describes back pain radiating “into my left leg”.[15] She says she can no longer perform any household tasks.
[15]PCB 13, paragraph [3]
37 The plaintiff describes her medication in paragraph 5 of her second affidavit. She continues on the prescriptions of Endep and Lyrica, as well as Seronia, 25 milligrams each night for sleeping and the antidepressant, Cymbalta. She continues to consult Dr Cooray. Her medications are prescribed by Doctors Lange and Cooray and she began seeing a rehabilitation specialist, Dr Ooi.
38 In November 2012, the plaintiff had a further steroid injection into her spine arranged by Dr Ooi and in 2013, further physiotherapy. Notwithstanding all of this treatment over a long period, the plaintiff deposes that she has not been able to return to work. She has completed a receptionist course and a computer course but found this very difficult, because she could not sit for long periods.[16] The plaintiff applied for forty jobs as a part-time receptionist. She has been unsuccessful obtaining work and some respondents have said she is not qualified for such work. English is her second language. She says and, I accept, her spelling is poor. She speaks with a heavy accent, as was apparent when she gave evidence. The plaintiff continues to suffer from depression and anxiety.[17]
[16]PCB 14, paragraph [9]
[17]PCB 15, paragraphs [11] to [13]
39 The plaintiff’s husband also swore an affidavit on 1 July 2013. He corroborates the plaintiff’s two affidavits.[18] This evidence also was not challenged.
[18]PCB 17 to 19
40 The plaintiff was cross examined by Mr O’Brien but was not challenged about any aspect of the evidence she deposed to in her affidavits. I found the plaintiff to be a very credible witness. She tried hard to answer all questions put to her directly and did not try to overstate her problems. If anything, the contrary was so. She struck me as a person who is naturally a hard worker who has a good work history and a person who misses her work. She attempted to continue with her work for a long period despite the ongoing symptoms from low-back pain until she finally succumbed in February 2011. The fact she was not challenged in any major aspect of her evidence gives me greater comfort in making this finding.
41 Dr Lange has provided a number of medical reports. In December 2010, he reported that the plaintiff continued to suffer with fluctuating levels of pain and discomfort for which she was exercising and performing alternative duties to the best of her ability. He did not expect surgical intervention would be required and hoped that she would slowly improve.[19]
[19]PCB 34
42 In July 2012, Dr Lange reported that due to her physical injuries, the plaintiff was not able to work more than four hours per day and could not lift more than 5 kilograms. At the time of his report on 20 July 2012, he was of the view the plaintiff was totally incapacitated for work, mainly due to her depression.[20]
[20]PCB 35 to 36
43 In his final report dated 29 July 2013, Dr Lange concluded that the plaintiff is fit for light work when she is not suffering from flare ups of her back pain, at which time she would have no capacity for work. He thought the plaintiff could work for four hours per day performing light assembly work or retail work but she would have to avoid lifting, repeated bending and have the capacity to alter her posture between sitting and standing.[21] I interpret the opinion of Dr Drnda, a neurosurgeon, as agreeing with Dr Lange’s comments.[22]
[21]PCB 39
[22]PCB 41
44 Dr Lange referred the plaintiff to Angela Martin, psychologist, because he considered her work-related injury a major cause of her depression. Ms Martin has provided three reports. In December 2010, she reported the plaintiff had symptoms of Anxiety/Depression resulting from poor adjustment to a long-standing physical injury. At that time she thought the plaintiff was progressing well and her prognosis was considered to be good.[23] In June 2012, Ms Martin thought the plaintiff’s psychological condition was “unstable at present and she oscillates between feeling positive and hopeful and active to despair and inactivity”.[24]
[23]PCB 29
[24]PCB 31
45 Mr Myron Rogers, a neurosurgeon, opined there is no role for surgery to the plaintiff. He thought her prognosis was reasonable and that over time her symptoms would settle.[25]
[25]PCB 48
46 The plaintiff’s treating psychiatrist, Dr Cooray, has provided a medical report dated 20 July 2013. He has concluded the plaintiff suffers from depression and anxiety as a result of her physical injury to her back. He opines the depression and anxiety will not improve without improvement in her back symptoms.[26] He concluded:
“Her psychological condition interferes with her ability to work. This incapacity would last as long as she suffers from the back pain, as that is a main contributing factor for her psychological condition.”
[26]PCB 57 to 58
47 Dr Kathleen Ooi is a rehabilitation physician who has treated the plaintiff since 2010. She has written ten reports[27] and concluded that the plaintiff’s inability to return to work is caused by her depression. Having said that, Dr Ooi has, on at least two occasions, injected the plaintiff’s low back with steroid-type injections. Dr Ooi believes the plaintiff would benefit from a return to Pilates, physiotherapy and hydrotherapy which she is prevented from doing because of her depression. In her report of 11 July 2013, Dr Ooi opined, inter alia:
“Her depression currently interferes with her ability to work and impinges on her confidence in her ability to attend work. If she is able to participate in return to work, ie if a suitable position with adequate physical conditions, this likely to help improve her depression however any negative experiences as a result of exacerbation of pain is likely to exacerbate her depression. … Currently Mrs Kulakovski is not fit to return to work. It is possible that once her depression is fully treated that she would be able to return to highly modified duties as outlined above. Ideally Mrs Kulakovski should retrain into alternate activities.”
[27]PCB 59 to 75
48 Mr Brownbill, a consultant neurosurgeon, saw the plaintiff on behalf of the defendant for medico-legal purposes on 1 April 2010. He thought the plaintiff suffered disc protrusion at L5-S1 level with nerve root irritation giving rise to left leg pain.[28]
[28]PCB 129
49 Dr Weissman is a psychiatrist who saw the plaintiff for medico-legal purposes on 9 April 2013. His opinion was that the plaintiff has “sustained and developed a moderate, if not moderately severe, chronic Major Depressive Disorder with anxiety”. Dr Weissman thought the plaintiff requires ongoing psychiatric treatment with only very limited capacity for work on a psychiatric basis alone.[29]
[29]PCB 90
50 Dr Robyn Horsley is a specialist in occupational health. She examined the plaintiff on 1 May 2013 and provided a detailed report. She opined, inter alia, the plaintiff’s transferrable skills were in the manual arena and her hours of work would be limited to 10 to 15 hours per week. She cautioned that any return to work would have to be stalled until the symptoms of depression resolve. She went on to say:
“There is ongoing and significant disability. Mrs Kulakovski is only 40 years of age. She has been out of the work force for nearly two years. Her prognosis for return to work on presentation today is guarded, despite her youthful age. She has been provided with some rudimentary retraining with three days of administrative office based duties and a three day computer course. However her spelling and grammar issues in English are a significant barrier, both in improving her speed of typing and increasing her attractiveness to an employer in an office based role.”[30]
[30]PCB 100
51 Dr Michael Duke is a psychiatrist who saw the plaintiff for the defendant for medico-legal purposes on 7 February 2012.[31] He thought the plaintiff’s psychiatric condition would render it very difficult for the plaintiff to work as an administrative assistant even if she was qualified for this role. In my judgment she is not.
[31]PCB 122
52 The defendant relied, inter alia, on reports from Dr James Rowe, an occupational physician. He thought the plaintiff’s physical injury was resolving and the psychological problems were “much more important”.[32] As at 30 August 2011, Dr Rowe thought the plaintiff had “a capacity for some form of work provided she can change her position and posture and provided she is not performing heavy lifting, say not more than 15kg”.[33] When he reported a second time in May 2012, he had not changed his opinion.[34]
[32]DCB 5
[33]DCB 5
[34]DCB 8
53 Occupational physician, Dr Gary Davison, saw the plaintiff at the defendant’s request in April 2013. He thought the plaintiff has limited physical capacity for work and could not return to her previous occupation. But he thought the plaintiff could perform administrative duties part time with physical restrictions and would need a graduated return to work.[35]
[35]DCB 23 to 24
54 The defendant concedes the plaintiff suffers from an injury to her back and a psychiatric/psychological injury. However, it submits the evidence shows that neither injury passes the statutory threshold. That is, so far as the lower back injury is concerned, the defendant submits the consequences of that injury are not very considerable or more than marked. So far as the psychiatric/ psychological injury is concerned, the defendant argues the consequences are not at a level that would justify a finding or description of them as being “severe”.
55 Dealing firstly with the psychiatric and psychological evidence, I accept and act upon the evidence of Dr Weissman that the plaintiff suffers from a moderately severe, chronic Major Depressive Disorder with Anxiety. This in part accounts for her ongoing symptoms and inability to work. However, the psychiatric injury and the consequences for the plaintiff cannot, in my judgment, be said to be severe. As I said earlier, a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of the application unless the pain and suffering consequences or, the loss of earning capacity consequence is, when judged by a comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe within s134AB(38)(d). Here, the plaintiff does not get over the threshold insofar as she suffers from a psychiatric or psychological injury. That part of her application that relies upon the definition of serious injury in s137AB(37)(c) must fail.
56 However, I take the view the situation with that part of the claim based upon s137AB(37)(a) is different and the plaintiff has discharged the onus of demonstrating on the evidence that her low-back injury, being a disc protrusion at L5-S1, is a “serious injury” within the meaning of the Act. There is evidence, which I accept, of some nerve root irritation accounting for the plaintiff’s complaint of pain in the right leg. On all of the evidence, she cannot return to her former employment and because of her poor English and lack of qualifications and training, she is unsuitable for work as an administrative assistant or as a receptionist. In my view, it is doubtful the plaintiff could perform such work even if trained and qualified. She would need to be able to get up and move around, not sit all day.
57 Importantly, the plaintiff was not challenged in any of her evidence, especially her sworn evidence as to the consequences to her of her physical injuries. Mr O’Brien argued the plaintiff’s evidence had to be viewed in the light of the medical reports which he submitted show the major problem for the plaintiff is her depression at not being able to work. I accept and act on the plaintiff’s evidence. She struck me as truthful and genuine and given to understating, not overstating, her physical symptoms and pain levels.
58 I find the plaintiff suffered a prolapsed disc with protrusion at L5-S1 level and resultant pain as a result of her work with the defendant. I accept that as a result, she has suffered the consequences deposed to in her affidavit material which I regard as being more than significant or marked and as being at least very considerable after putting to one side the consequences caused by her depression. In consequence the plaintiff cannot return to her former employment and she is presently unable to work, and this is likely to last into the foreseeable future.
59 The plaintiff will have leave to commence proceedings for damages suffered in consequence for both pain and suffering and loss of earnings.
60 I will hear the parties on costs.
- - -
0
0
0