Ozcan v Coles Supermarkets Australia Pty Ltd
[2023] VCC 1963
•3 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-03265
| ANNE OZCAN | Plaintiff |
| v | |
| COLES SUPERMARKETS AUSTRALIA PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CLARK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 June 2023 | |
DATE OF JUDGMENT: | 3 November 2023 | |
CASE MAY BE CITED AS: | Ozcan v Coles Supermarkets Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1963 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – spinal injury – left shoulder injury – credit – work relationship
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon & Co Pty Ltd v Filipowicz [2012] 34 VR; Dressing v Porter& Anor [2006] VSCA 2015; Acir v Frosster Pty Ltd [2009] VSC 454; Petkovski v Galletti [1994] 1 VR 436; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Plaintiff granted leave to commence common law proceedings for (a) pain and suffering for her back injury, (b) economic loss for her back injury, (c) pain and suffering for her left shoulder injury and (d) economic loss for her left shoulder injury, suffered over the course of her employment from 2000 to 2017 with Coles Supermarkets Australia Pty Ltd.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr L Howe | Zaparas Lawyers |
| For the Defendant | Mr A Moulds KC with Ms L Burke | Lander & Rogers |
HIS HONOUR:
Introduction
1The plaintiff, Ms Anne Ozcan, is aged sixty-nine years. She divorced in 2007. She lives by herself. Ms Ozcan has two adult daughters and three grandchildren.
2Ms Ozcan commenced work with the defendant, Coles Supermarkets Australia Pty Ltd (“Coles Supermarkets”) on 15 March 1990. She initially worked at their Rowville supermarket. In 2000, she was transferred to their supermarket at The Glen Shopping Centre (“The Glen”). While her work at The Glen varied over the years, the majority of the time was spent working in the fruit and vegetable department. Ms Ozcan said this was heavy and repetitive work. She said the other work she undertook, while it was not as heavy, also had physical demands and was very repetitive.
3Over the years, prior to June 2017, Ms Ozcan suffered numerous injuries and health problems. She said that she suffered pain due to the demands of her job. However, she said that she “battled on” because she enjoyed her job and, financially, she had to work.
4In June 2017, her manager requested that she complete a work capacity checklist. Ms Ozcan had her general practitioner fill that form out. Ms Ozcan gave the form back to her manager on 7 June 2017. Ms Ozcan said the next day, her manager called her in and told her she was no longer required. There was no work for her. She was sent home.
5Ms Ozcan said she was devastated.
6Ms Ozcan has not worked since.
7Of the numerous injuries which Ms Ozcan says she has suffered as a result of her work, it is her back and her left shoulder which she says are the worst. Indeed, Ms Ozcan says that both her back injury and her left shoulder injury are serious injuries for the purposes of both pain and suffering and economic loss.
8Coles Supermarkets:
(a) deny that Ms Ozcan has suffered injury to either her back or left shoulder as a result of her work;
(b) deny that Ms Ozcan has suffered a serious injury for either pain or suffering or economic loss purposes by reason of either her back or left shoulder injuries.
What is the nature of these proceedings?
9This is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Ms Ozcan relies upon paragraph (a) of the definition of “serious injury” in s325(1) of the Act. That is:
(a) her spinal injury is a “permanent serious impairment or loss of a body function”;
(b) her left shoulder injury is a “permanent serious impairment or loss of a body function”.
10For Ms Ozcan to be successful, she must establish that the consequences from her spinal injury and/or shoulder injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, are “more than significant or marked” and “at least very considerable”, as per the narrative test set out in s325(2)(b) and s325(2)(c) of the Act.
11For Ms Ozcan to satisfy the “very considerable” loss of earning capacity consequences, she must satisfy the statutory formula contained in ss325(2)(e), (f) and (g). That is:
(a) she has a loss of earning capacity of 40 per cent of her gross earnings;
(b) that loss will be permanent.
12It is Ms Ozcan who has the onus of proof.
What are the issues for the Court to determine?
13Coles Supermarkets said all issues are in dispute. In particular, they said:
(a) Ms Ozcan’s allegation of left shoulder injury was a recent invention and her left shoulder injury had no relationship to her employment;
(b) that while Ms Ozcan has a “crook back”, that injury has nothing to do with her work and is due to age-related degenerative change;
(c) Ms Ozcan’s credibility and reliability were impeached;
(d) There was a need to disentangle Ms Ozcan’s many comorbidities and her back condition predating October 1999.
14That being so, the Court needs to determine:
(a) as to Ms Ozcan’s credit, and whether I can accept her evidence;
(b) has Ms Ozcan’s back injury been materially contributed to by her work subsequent to October 1999;
(c) if so, are the consequences of Ms Ozcan’s back injury serious;
(d) has Ms Ozcan’s left shoulder injury been materially contributed to by her work;
(e) if so, are the consequences of Ms Ozcan’s left shoulder injury serious.
15In the course of undertaking this analysis, I will have to review:
(a) the nature of the work which Ms Ozcan undertook with Coles supermarket;
(b) which of the medical opinions should be accepted and the assistance they provide;
(c) the disentanglement of Ms Ozcan’s various comorbidities and the state of her back prior to October 1999.
Has Ms Ozcan’s credibility been impeached and is her evidence so unreliable that it cannot be accepted?
16I make some preliminary observations. As a starting point:
(a) I accept that Ms Ozcan was a loyal and hardworking employee of Coles Supermarkets. She had worked with them for twenty-eight years; eighteen years at The Glen.
(b) Whatever the merits of what happened between Ms Ozcan and her manager in June 2017, Ms Ozcan was clearly upset, disappointed and indeed bitter about the circumstances of being sent home from work on 8 June 2017. She took the view that after twenty-eight years she had been treated very unfairly. That came through in her oral evidence;
(c) Ms Ozcan has a complex personal and medical history. The relevant period of Ms Ozcan’s employment goes back to 2000 and runs through to 2017. A lot happened in this time.
17Ms Ozcan had two affidavits in evidence. The first, a very long and detailed affidavit, sworn 28 February 2022. The second, a much briefer affidavit, prepared 22 June 2023, which was adopted by Ms Ozcan in the witness box.
18As I said, there was a great deal of detail in Ms Ozcan’s first affidavit. It set out:
(a) her work history;
(b) her history of injury;
(c) the difficulties she alleges she encountered due to the nature of her work;
(d) the complaints she alleges she made to her various supervisors.
19Of particular note, Ms Ozcan identified various employees of Coles Supermarkets, to whom she said she complained and of whom she said were aware of the pain and difficulties which she was encountering.
20I found the detail in Ms Ozcan’s first affidavit in respect to her work with Coles Supermarkets, the difficulties she encountered, her pain, and the injuries for which she complains, to be generally helpful.
21When in the witness box, Ms Ozcan’s evidence was well tested by Coles Supermarkets.
22Coles Supermarkets said Ms Ozcan’s evidence was, at times:
(a) inconsistent;
(b) nonsensical;
(c) wrong.
23I accept there were:
(a) some aspects of Ms Ozcan’s evidence where she was inconsistent and wrong in her assertions;
(b) aspects of the history which she struggled with;
(c) times when she wanted to be her own advocate.
24When analysing Ms Ozcan’s evidence, I take into account the totality of the evidence and the level of detail and complexity in this case.
25Overall, I consider Ms Ozcan did a reasonable job when giving her oral evidence. Ms Ozcan:
(a) when it became clear she was wrong in respect to an aspect of her evidence, conceded she was mistaken;
(b) sought to explain the basis for what Coles Supermarkets said to be inconsistencies in her evidence;
(c) while, at times, could not resist being her own advocate, generally answered questions, in what I thought to be, a reasonable and credible manner;
(d) made appropriate concessions against interest.
26I did not consider Ms Ozcan, in her oral evidence, sought to embellish or exaggerate.
27When undertaking my analysis of Ms Ozcan’s evidence, I was assisted by the evidence of her daughters, Ms Talin Ozcan and Ms Tanya Asadur. Their evidence painted a picture of Ms Ozcan which is consistent with my observations. That is, she is a person who has a strong work ethic and who was committed to continue at work, albeit, suffering pain.
28I do not accept the attack on Ms Ozcan’s credit. I consider she is a hardworking, stoic and decent woman. I do not accept that she has deliberately lied to establish an entitlement to compensation. I consider her evidence to be generally reliable.
What is the Court’s obligation to disentangle?
29It is clear that Ms Ozcan has suffered, and continues to be impacted by, numerous medical conditions including:
(a) her back injury;
(b) her left shoulder injury;
(c) a right shoulder injury;
(d) a hernia;
(e) problems with her hips;
(f) knee problems;
(g) coronary issues;
(h) psychological distress.
30That the consequences of these conditions must be disentangled from the analysis of the subject injury is clear.[1] Likewise, the process to be followed in disentanglement is well established.[2]
[1]Peak Engineering & Anor v McKenzie [2014] VSCA 67
[2]AG Staff Pty Ltd v Filipowicz; Arnold Ribbon & Co Pty Ltd v Filipowicz [2012] 34 VSCA 60 – the analysis in paragraphs [25]-[35].
31While I will make specific comments in respect to disentanglement later in this judgment when assessing the specific subject injuries, lest there be any doubt, when assessing those injuries, I disregard the consequences attributable to the comorbidities.
32For completeness, it is appropriate to recognise that Ms Ozcan is not precluded from a finding of serious injury for a specific subject injury by reason of the existence of such comorbidities that may also impact upon her.[3] Further, I am assisted by the analysis of J Forrest J in Acir v Frosster Pty Ltd.[4]
[3]See in particular Ashley JA in Dressing v Porter& Anor [2006] VSCA 2015 at paragraph [47].
[4][2009] VSC 454
What was the nature of the work undertaken by Ms Ozcan and, in particular, the physical demands?
33Before moving to my analysis of Ms Ozcan’s applications for her back and left shoulder injuries, it is appropriate that I review and make determinations in respect to the nature, and physical demands, of her work. This will provide context.
34Ms Ozcan does not rely upon a specific event as the cause of her injuries. Rather, she says that her injuries are due to the heavy and repetitive nature of her work over time.
35I will start with Ms Ozcan’s work in the fruit-and-vegetable department. She said this included:
(a) lifting heavy boxes and crates of fruit and vegetables;
(b) unpacking deliveries in the coolroom;
(c) pushing trolleys to transfer stock around the store;
(d) packing stock into the shelves in the store itself;
(e) preparing stock for sale.
36Coles Supermarkets did not seriously challenge the nature of this work or produce any evidence to contradict Ms Ozcan’s descriptions.
37I accept that Ms Ozcan, in the course of her work in the fruit-and-vegetable department, undertook:
(a) a great deal of lifting, which included heavy boxes and crates of fruit and vegetables;
(b) a lot of bending, reaching, twisting and moving associated with the handling of stock and other tasks;
(c) generally physically-demanding work.
38I accept that this work placed stress on Ms Ozcan’s body, including her back and left shoulder.
39Ms Ozcan worked full time between 2000 and June 2016. There were periods when she was off work or on alternative duties by reason of injury.
40In June 2016, Ms Ozcan reduced her hours. She said this was due to both:
(a) the wear and tear on her body and the pain she was in;
(b) her need to provide care to her elderly mother.
41I accept that the reasons for the reduction of Ms Ozcan’s work hours were multifactorial.
42Ms Ozcan, having reduced her hours, continued to work in the fruit-and-vegetable department. However, at some stage in 2016, her duties were changed to:
(a) working in the fruit-and-vegetable department between 5.00am and 8.00am;
(b) undertaking work in the job described as “point of sale”;
(c) and undertaking work on the cash registers.
43I accept that the point-of-sale and cash-register work was not as heavy as the work in the fruit-and-vegetable department. However, as Ms Ozcan explained, and I accept, there were different physical demands associated with these roles. This work was very repetitive in nature and placed stress on Ms Ozcan’s arms and, in particular, her dominant left arm and shoulder.
44Ms Ozcan said, over the years, she advised her various supervisors that she was suffering pain, and, in particular, back and shoulder pain. No evidence was adduced from Coles Supermarkets to the contrary. I accept that Ms Ozcan made such complaints.
45In conclusion, I accept for the majority of the period between 2000 and June 2017, Ms Ozcan undertook work in the fruit-and-vegetable department, which placed stress on her body generally, and, in particular, her back and left shoulder. I also accept that, while not as physically demanding, the point-of-sale and cash-register work was repetitive in nature and placed stress on her left arm and shoulder.
What is the nature of Ms Ozcan’s back injury and did her work materially contribute to it?
46As I have noted earlier in this judgment, Coles Supermarkets accept Ms Ozcan has a “crook back”.
47Before moving to the analysis of the medical evidence relied upon by both sides of this application, it is appropriate that I acknowledge Ms Ozcan clearly had a level of degenerative change to her spine prior to 2000. That is evident from an x-ray taken on 8 May 1999 and a CT of the lumbar spine taken on 19 April 2000. Having acknowledged this, I also accept:
(a) that, as at the time Ms Ozcan transferred to The Glen, she was undertaking work in the fruit-and-vegetable department without restriction;
(b) that Ms Ozcan said, and this was not seriously challenged, that for the first ten years of so while working at The Glen, her back pain did not bother her too much.[5]
[5]Plaintiff’s first affidavit, sworn 22 February 2022, paragraph [9] at Further Amended Plaintiff’s Court Book (“PACB”) 19
48In respect to the Petkovski v Galletti[6] issue raised by Coles Supermarkets:
(a) I accept there was a level of degenerative change present in Ms Ozcan’s spine at the time she transferred to The Glen;
(b) I accept Ms Ozcan’s evidence that:
(i)for the first ten years at The Glen, she had minimal back issues;
(ii)she undertook her normal work in the fruit-and-vegetable department over that ten-year period;
[6][1994] 1 VR 436
(c) Ms Ozcan did not suffer any significant pain or pain-related restriction at the time she commenced at The Glen.
49Moving back to the question of causation post 2000. I consider this to be the real battlefield for Ms Ozcan’s back-injury application.
50As Mr Moulds agreed in our discussions in the course of his final address, this is effectively a “philosophical debate”.[7]
[7]Transcript (“T”) 119, Lines (“L”) 20-22
51Coles Supermarkets said that Ms Ozcan did not suffer a work-related back injury in the course of her employment subsequent to October 1999/after commencing at The Glen. Rather, it said Ms Ozcan suffers age-related degenerative change which has no material relationship to her employment.
52To put it in another way, Ms Ozcan would have this age-related degenerative change regardless of whether or not she had been employed by Coles Supermarkets and had undertaken the work she did over the years.
53Not unsurprisingly, Ms Ozcan said that her work did materially contribute to development and/or progression of the degenerative change in her spine and, importantly, injury to her lumbar spine, which is a material cause of her pain and pain-related restriction which she now suffers.
54Before undertaking my analysis of the competing medical evidence on causation, I will refer to some relevant history. This will add context. As I have previously noted, the history is complex.
55Ms Ozcan said that, for the first ten years at The Glen, she had minimal problems with her lower back. She may have occasionally taken over-the-counter painkilling medication. Ms Ozcan said that it was sometime after she had been at The Glen for about ten years her problems escalated.
56Without re-visiting the full medical history, I note Ms Ozcan:
(a) saw her general practitioner in late 2013 and was referred for an x-ray of her lumbar spine at that time;
(b) was referred for CT scanning on 15 August 2014;
(c) was referred to Mr Gary Speck, orthopaedic surgeon, who she saw on 23 March 2015. Mr Speck at that time:
(i)recorded Ms Ozcan complaining she had lower back and buttock pain;
(ii)accepted there was a lower back problem;
(iii)suggested that Ms Ozcan should endeavour to reduce the irritation and inflammation in her lower back;
(d) in 2015 consulted Dr Angela Catanzariti, general practitioner, intermittently for, what was described as, “lower back pain, chronic”;[8]
(e) had further consultations with Dr Catanzariti in 2016 and was referred for physiotherapy.
[8]See notes of consultation with Dr Catanzariti, dated 2 December 2015, in the Waverly Medical Centre notes at Defendant’s Court Book (“DCB”) 48.
57I accept:
(a) sometime after Ms Ozcan had been at The Glen for ten years, she developed increasing and chronic back pain.
(b) that, over the years prior to June 2017, Ms Ozcan did suffer the lower back pain described by her.
58Moving back to causation and injury.
59I now review the further medical evidence.
60Referring firstly to the evidence of Mr Ian Dickinson, orthopaedic surgeon. Coles Supermarkets relied on his evidence on the issue of causation and injury. Mr Dickinson assessed Ms Ozcan for Coles Supermarkets on 27 April 2023.[9]
[9]DCB 6-21
61Mr Dickinson said:
(a) Ms Ozcan was suffering degenerative disease of the lumbar spine;
(b) she had evidence of lateral root canal stenosis;
(c) Ms Ozcan displayed no non-organic signs or inconsistencies;
(d) her symptoms were consistent with her spinal stenosis;
(e) in respect to her work capacity:
(i)her symptoms would cause her difficulties, particularly lifting;
(ii)she would have difficulty standing for any long periods;
(iii)she was not able to walk long distances.
62Such was Mr Dickinson’s assessment of the extent of Ms Ozcan’s back and referred leg symptoms, that he considers she will require spinal surgery in due course.
63Coles Supermarkets also sought to rely on the report of Mr Guay Tay, Orthopaedic Surgeon, dated 3 December 2020.
64Mr Tay said that Ms Ozcan presented to him with left hip symptoms. Mr Tay recorded that these symptoms had gradually developed over the last two to three years. Mr Tay also recorded that Ms Ozcan was experiencing left groin pain and chronic back pain. On review of the x-ray, Mr Tay noted mild osteoarthritis and degeneration in the spine. It was Mr Tay's opinion that Ms Ozcan's presentation was more symptomatic with left trochanteric bursitis and gluteal tendinopathy. He also said that her symptoms were worse than what was to be expected. He referred her for a further x-ray of her hip and lumbar spine to investigate this.
65Coles Supermarkets said that it was significant that the onset of Ms Ozcan's hip pain coincides with when she left work. Coles Supermarkets said that the injury to the left hip was an independent injury to the back, and clearly interfered with Ms Ozcan's work capacity.
66Moving now to the medical evidence relied upon by Ms Ozcan. She relied upon the evidence of numerous medical practitioners, both treating and medico-legal.
67I will undertake my review of this evidence in no particular order.
68Mr Ash Moaveni, orthopaedic surgeon, assessed Ms Ozcan for her solicitors on 5 April 2023.[10]
[10]PACB 114-125
69Mr Moaveni said that Ms Ozcan suffered an aggravation of lumbar spondylosis (degenerative disease of the lumbar spine). He said this was consistent with her work at Coles Supermarkets which included:
(a) unpacking deliveries;
(b) lifting pellets;
(c) putting fresh produce on the shelf;
(d) chopping produce;
(e) bending;
(f) overhead reaching;
(g) heavy lifting;
(h) a number of smaller incidents.
70Dr Hazem Akil, neurosurgeon, assessed Ms Ozcan for her solicitors on 24 April 2023.[11]
[11]PACB 171-175
71Dr Akil said that the nature of Ms Ozcan’s work involved;
(a) repetitive lifting;
(b) packing and unpacking;
(c) loading and unloading;
(d) stacking of boxes of produce.
72Dr Akil said this was a significant contributing factor for the presence of degeneration in the lower discs at the lumbar region, as well as the facet joints.
73Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, assessed Ms Ozcan for her solicitors on 20 February 2023.[12]
[12]PACB 129-135
74Dr Sullivan said that the nature of Ms Ozcan’s work, including the heavy and repetitive work involving the manual handling of stock with repetitive bending, lifting and reaching, was a significant contributing factor to her spinal injury.
75Dr Joseph Slesenger, specialist occupational physician, assessed Ms Ozcan for her solicitors on 13 February 2023.[13]
[13]PACB 149-163
76Dr Slesenger said that the aggravation of Ms Ozcan’s lumbar spine degenerative disease, chronic lower back pain and right leg radiating features, were consistent with the manual handling and postural demands of her work.
77Dr Meena Mittal, pain physician, has treated Ms Ozcan in respect to her lumbar spine pain. Dr Mittal said that Ms Ozcan’s heavy and repetitive work involving the manual handling of stock, which included repetitive bending, lifting, reaching and frequent heaving lifting, was a significant contributing factor to her spinal injury.
78Dr Mojtaba Sebti was Ms Ozcan’s treating general practitioner back in 2021. At that time, Dr Sebti said Ms Ozcan was suffering from chronic lower back pain and aggravation of degenerative disease of the lumbar spine, which had been sustained in the course of her employment.[14]
[14]PACB 68
79Associate Professor Bruce Love, orthopaedic surgeon, assessed Ms Ozcan on behalf of Coles Supermarkets on 9 July 2020.[15]
[15]PACB 198-205
80Associate Professor Love, in a report which was, at times, difficult to follow, said that he was of the opinion employment had been a significant contributing factor to Ms Ozcan’s lower back degenerative change. Indeed, Associate Professor Love said there was a major contribution of Ms Ozcan’s work to the back condition.[16]
[16]PACB 205
81Dr Richard Yang, Ms Ozcan’s current treating general practitioner, said that he considered the heavy and repetitive work involving bending, lifting and reaching, was a significant contributing factor to Ms Ozcan’s lower back injury and pain, and had contributed to the degenerative change.[17]
[17]PACB 194
82There is direct conflict between Mr Dickinson on one hand and Ms Ozcan’s medical evidence on the other hand.
83Given this conflicting medical evidence on causation, which do I accept?
84My assessment of the competing medical evidence in respect to the work relationship of Ms Ozcan’s degenerative lumbar condition cannot be a mere accounting exercise. That is, the party with the greater number of supporting experts, wins. My conclusion must follow the analysis of the particular facts and circumstances of Ms Ozcan’s case.
85Having considered all of the evidence, I accept that Ms Ozcan’s lower back condition has been materially contributed to by her employment in the period between 2000 and June 2017.
86In coming to this conclusion:
(a) I accept that between 2000 and June 2017, Ms Ozcan did undertake physically-demanding, heavy and repetitive work. That is, work which placed considerable stress on her lower back.
(b) I accept that, by 2015, the pain consequences flowing from Ms Ozcan’s lumbar spine condition had escalated such that she was referred to Mr Speck. At that time, Mr Speck was concerned about levels of inflammation and irritation to her lumbar spine.
(c) I accept that Ms Ozcan continued undertaking the physically-demanding work after she had been assessed by Mr Speck.
(d) I prefer the evidence of the numerous experts relied upon by Ms Ozcan who support the relationship between Ms Ozcan’s work and the development and/or aggravation of her degenerative spinal disease. This evidence ranges from her treating general practitioners, pain physicians, an occupational physician, a neurosurgeon, and an orthopaedic surgeon. Importantly, each of these experts expressed their opinion, having made specific reference to the nature and type of work which Ms Ozcan was undertaking. Each of these experts clearly took heed of, and analysed, the nature of Ms Ozcan’s work when expressing their opinion on causation. They also expressed a clear understanding that injury can occur over time, not just as a result of a single event.
(e) This can be contrasted to Mr Dickinson, who, in his evidence, simply said:
(i)Ms Ozcan suffers degenerative change;
(ii)Ms Ozcan did not suffer any injury to her back during her employment following October 1999. It was not apparent from Mr Dickinson’s report that he undertook any detailed analysis of the nature of the work undertaken by Ms Ozcan and the stressors associated with it. I do not find Mr Dickinson’s evidence persuasive. His was a bland finding;
(iii)It was not clearly apparent that Mr Dickinson considered that injury may be injury over time due to the nature of employment rather than a specific event.
87To summarise, I accept that:
(a) Prior to 2000, Ms Ozcan did suffer some degenerative changes to her lumbar spine.
(b) By reason of the heavy and repetitive nature of her work between 2000 and June 2017, there was a material contribution to the further development and aggravation of degenerative change to the structures of her lumbar spine. I accept this is an injury in its own right.
(c) This further development and aggravation of the degenerative change/injury materially contributes to Ms Ozcan’s back pain and pain-related impairments.
Is Ms Ozcan’s back injury a serious injury for pain and suffering purposes?
88In the circumstances of this application, once causation has been found in Ms Ozcan’s favour, I do not consider there is a great deal of dispute in respect to the pain and suffering consequences. Coles Supermarkets accept that Ms Ozcan has a “crook back”.
89Having said that, in undertaking my analysis of the pain and suffering consequences to Ms Ozcan, I have been assisted by the observations and processes set out by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[18]
[18](2010) 31 VR 1
90Moving, firstly, to the pain consequences.
91In undertaking my analysis of Ms Ozcan’s pain and pain-related consequences which she suffers, I was assisted by the evidence of Dr Slesenger, Dr Sullivan, Mr Moaveni and Dr Akil. Each of these experts were asked by Ms Ozcan’s solicitors to assess her lumbar spine injury and its consequences on “an independent and separate basis”. I also note Dr Mittal’s evidence was specific to Ms Ozcan’s back injury, for which she treated her.
92I accept that:
(a) Ms Ozcan suffers lower back pain;
(b) this is chronic in nature;
(c) her back pain is, at times, severe;
(d) that she will suffer this pain for the rest of her life.
93This, in itself, is a serious consequence.
94Moving to the pain-related consequences.
95I accept that Ms Ozcan’s lower back injury impacts her in many ways. For example, she:
(a) is limited to lifting items less than a couple of kilograms;
(b) is limited in her capacity to stand or walk for longer periods of time;
(c) has difficulty wiping herself on the toilet;
(d) has difficulty undertaking the heavier domestic activities, such as vacuuming and mopping;
(e) can no longer undertake gardening activities as she had (noting that she has moved into a townhouse which has no garden of significance);
(f) cannot drive any distance due to back pain alone;
(g) suffers impairment of her sleep because of back pain alone.
This list is not exhaustive.
96I accept that Ms Ozcan’s lumbar spinal injury is, for pain and suffering purposes, a serious injury.
Is Ms Ozcan’s lower back injury a serious injury for economic loss purposes?
97As a starting point, I again note the concession made by Coles Supermarkets that Ms Ozcan has a “crook back”.
98I accept that Ms Ozcan, by reason of her lower back injury, when assessed independently, is not fit for her pre-injury duties. There is not any real dispute. Even the limited restrictions outlined by Mr Dickinson would preclude her.
99Moving now to the issue of suitable employment. I accept that Ms Ozcan, by reason of her lower back injury, when assessed independently, does not have the capacity to undertaken any suitable or modified duties on a consistent and reliable basis.
100I am assisted in my determination of work capacity by the evidence of Dr Slesenger. Dr Slesenger said that, based on Ms Ozcan’s lumbar spinal impairment alone, when taking into account the relevant factors, she could not return to her pre-injury duties or suitable employment on a consistent, reliable basis. That accords with my assessment. It is also, in general terms, consistent with the evidence of Dr Akil, Mr Moaveni, Dr Mittal and Dr Sullivan.
101For completeness, I note the opinion expressed by Ms Ozcan’s current treating general practitioner, Dr Yang. Dr Yang said he did not consider Ms Ozcan had capacity for suitable employment. However, Dr Yang did not disentangle Ms Ozcan’s physical disability and psychological impairment. I therefore cannot place any weight on Dr Yang’s opinion.
102I accept that Ms Ozcan’s current level of lower back pain and pain-related impairment precludes her from her work. I accept that she is losing greater than 40 per cent of her gross income. Indeed, she is losing 100 per cent of her income.
103Leave will be granted to Ms Ozcan to pursue common law damages for economic loss for her lumbar spine injury.
Has Ms Ozcan’s left shoulder injury been materially contributed to by her work?
104Moving now to my analysis of Ms Ozcan’s left shoulder injury.
105Coles Supermarkets said Ms Ozcan’s left shoulder injury was not a consequence of her employment. Not only did they say that, they also said that Ms Ozcan’s suggestion that there was a relationship between her left shoulder injury and her employment was a “recent invention”. Put bluntly, Coles Supermarkets said Ms Ozcan had made this up after she resigned from her employment for the purposes of obtaining compensation. Serious matters indeed.
106Again, it is necessary to review some of the history to establish context. Put simply:
(a) Ms Ozcan said that, over the years, she had complained to numerous supervisors at work about her left shoulder problems and pain.
(b) Ms Ozcan said that she told her general practitioner, Dr Catanzariti, of her left shoulder problems prior to 7 June 2017.
(c) There is no record in Dr Catanzariti’s notes of left shoulder problems in the period immediately prior to 7 June 2017.
(d) There was no reference to the left shoulder in the checklist which Dr Catanzariti completed in June 2017.
(e) The first reference by Dr Catanzariti in her notes of left shoulder problems was 14 September 2017.
(f) The only clinical records which may be relevant to left shoulder problems goes back to 2013.[19]
[19]Plaintiff Exhibit “C”
(g) On 26 September 2017, Ms Ozcan consulted Dr Sherine Fernando, general practitioner, (Dr Fernando being at a different clinic to Dr Catanzariti). It was recorded by Dr Fernando in her notes:
“came for a consultation with some multiple issues
has got a regular GP, not very happy on her after she failed to manage her work related shoulder issues
worked at Coles Glen for > 20 years
was in lifting before, and developed back and knee OA
she was changed to teller area, where she was moving her shoulder a lot
recnet USS showed, impingement issues, bursitis and spuraspinatus tendon partial rupture
she was using physio but no help
ex of slholder sone, limited extension of shoulde
offered intra lesional steroid for bursitis, she will comeback to this”;[20]
[20]Plaintiff Exhibit “C”
(sic)
(h) Dr Fernando referred Ms Ozcan:
(i)for a steroid injection into her left shoulder;
(ii)to Mr Shane Barwood, orthopaedic surgeon, for assessment.
(i) Ms Ozcan consulted Mr Barwood on 30 April 2018. Mr Barwood said that he found a tear in the middle portion of the supraspinatus tendon and a large subacromial spur with bursitis.
(j) Mr Barwood operated on Ms Ozcan’s left shoulder on 4 July 2018. He repaired her left rotator cuff and performed a decompression and bursectomy.
(k) Mr Barwood said:
(i)at the time of his consultation with Ms Ozcan she complained to him of two years of shoulder pain without injury;
(ii)the spur-and-hook-shaped acromion had developed over time and he thought that aspect of her presentation may be genetic.
107The first aspect of this dispute which I need to grapple with is the timing of the left shoulder pain/injury. Do I accept Ms Ozcan had left shoulder pain/injury before 7 June 2017, or did it, indeed, develop afterwards?
108I accept that Ms Ozcan had left shoulder pain before 7 June 2017. In making this finding:
(a) I accept Ms Ozcan’s evidence she told her supervisors she was suffering left shoulder pain. I consider her evidence on this issue to be reliable.
(b) I note Coles Supermarkets had Ms Ozcan’s affidavit, sworn 28 February 2022, for a long time prior to the hearing of this application. That set out the complaints she had made. No evidence was adduced to the contrary.
(c) I do not consider that the lack of reference in Dr Catanzariti’s notes to any left shoulder issue to be conclusive that:
(i)there was no discussion at any time;
(ii)Ms Ozcan had not suffered left shoulder pain prior to 7 June 2017.
(d) I gain comfort that there was a clear level of dissatisfaction by Ms Ozcan recorded in the notes of Dr Fernando on 26 September 2017.
(e) I accept the evidence of Ms Talin Ozcan and Ms Tanya Asadur in respect to their mother’s complaints of left shoulder pain.
109While it is a rebuttable admission, I also note that Coles Supermarkets accepted Ms Ozcan’s claim for compensation for her left shoulder injury pursuant to the statutory benefit scheme.[21]
[21]Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191
110Moving to the medico-legal medical evidence.
111I will go firstly to Mr Dickinson.
112There is very little detail in Mr Dickinson’s report in respect to Ms Ozcan’s left shoulder injury.
113Mr Dickinson said that Ms Ozcan was suffering from degenerative tendinosis in her left shoulder.
114When asked whether Ms Ozcan had sustained an injury to her left shoulder during the course of her employment post 20 October 1999, Mr Dickinson said:
“In relation to her left shoulder, she had had treatment for her left shoulder in 2018 but had no further ongoing injury to her left shoulder following that time.”[22]
[22]DCB 18
115Mr Dickinson did not address the issue.
116Mr Dickinson’s evidence about Ms Ozcan’s left shoulder does not assist me one way or another.
117Moving now to the medical evidence relied upon by Ms Ozcan.
118On the face of it, this evidence supports the proposition that Ms Ozcan did in fact suffer a left shoulder injury by reason of her employment.
119I pause here to note that Coles Supermarkets said that Ms Ozcan’s medico-legal evidence was not reliable, as it was based on a history which was not correct. I do not accept that proposition. With the risk of being repetitive, I again record that I accept Ms Ozcan:
(a) did undertake heavy and repetitive work over the period 2000 to 2017. In particular, this work placed significant stress on her left dominant hand/arm/shoulder;
(b) had suffered left shoulder pain prior to June 2017;
(c) had advised her supervisors of that left shoulder pain;
(d) had endeavoured to battle on at work with a multitude of aches and pains of which the left shoulder was but one.
120I will now review the specific medical evidence which Ms Ozcan relies upon. Again, in no particular order.
121Dr Fernando, at the time of her referral to Mr Barwood, said:
(a) Ms Ozcan had been suffering left shoulder pain since 2016;
(b) there was a partial thickness tear involving the supraspinatus tendon and bursitis;
(c) Ms Ozcan had received physiotherapy and an intralesional steroid for bursitis, but there had been no improvement;
(d) the supraspinatus tear had stayed the same since 2016, measuring 10 x 9 millimetres.[23]
[23]PACB 196
122Mr Moaveni said that Ms Ozcan was suffering from a left shoulder rotator cuff tear. He said this was consistent with Ms Ozcan’s work at Coles Supermarkets. Mr Moaveni said that Ms Ozcan had reported suffering pain 7-8/10 in her left shoulder. [24] He said the prognosis was poor.[25]
[24]PACB 122
[25]PACB 124
123Dr Sullivan said that the heavy and repetitive work involving the manual handling of stock, including repetitive lifting and reaching, had been a significant contributing factor to Ms Ozcan’s left shoulder injury.[26]
[26]PACB 140
124Dr Slesenger said that Ms Ozcan suffered a soft-tissue injury to the structures of her left shoulder, a rotator cuff tear, which required arthroscopic repair, and chronic left shoulder pain with evidence of adhesive capsulitis.[27] Dr Slesenger, on examination, found mild wasting over the deltoid.[28] Dr Slesenger said that the left shoulder injury was consistent with the manual handling and postural demands associated with her work.[29] He said the prognosis was guarded.[30]
[27]PACB 161
[28]PADB 157
[29]PACB 161
[30]PACB 163
125Dr Sebti, back in 2021, said Ms Ozcan was suffering left-sided rotator cuff tendinopathy which had been sustained in the course of Ms Ozcan’s employment with Coles Supermarkets.[31]
[31]PACB 68
126Associate Professor Love said that he considered Ms Ozcan’s left shoulder condition was rotator cuff tendonitis, which had been surgically treated and could reasonably be accepted as a result of the nature of her physical work.
127Dr Tang said that Ms Ozcan was suffering severe left shoulder pain and that the heavy and repetitive work was the cause of the left shoulder injury.[32]
[32]PACB 194
128Having considered all of the relevant evidence, I accept:
(a) the heavy and repetitive work materially contributed to the left shoulder injury and, in particular, the tear of the rotator cuff tear;
(b) this tear necessitated the left shoulder surgery undertaken by Mr Barwood;
(c) subsequent to that surgery, Ms Ozcan has continued to suffer left shoulder pain and pain-related restriction;
(d) the prognosis is poor.
Is Ms Ozcan’s left shoulder injury a serious injury for pain and suffering purposes?
129Again, I am assisted in my analysis by the observations made by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[33]
[33](Supra)
130Turning firstly to the pain consequences suffered by Ms Ozcan by reason of her left shoulder injury.
131It was put to Ms Ozcan by Coles Supermarkets that she had told Mr Dickinson that her left shoulder was “fine”. Ms Ozcan did not accept that.
132Ms Ozcan said she suffers pain in her left shoulder. She said that pain does not go away. It is always there.
133Ms Ozcan had a steroid injection into the left shoulder on 10 October 2017. She underwent surgery on the left shoulder on 4 July 2018. While Ms Ozcan said the surgery helped, she said it did not resolve her problems.
134I accept Ms Ozcan’s evidence in respect to the left shoulder pain which she suffers. That is consistent with the weight of the medical evidence. I am particularly assisted by Dr Slesenger’s findings of wasting and his opinion that Ms Ozcan suffers ongoing adhesive capsulitis. I note also Mr Dickinson said that Ms Ozcan continues to suffer degenerative tendinosis in her left shoulder.
135I accept there is an organic basis for Ms Ozcan’s complaints of left shoulder pain and pain-related restrictions.
136Moving now to the pain-related consequences.
137Before moving to these consequences, I note Ms Ozcan is left-hand dominant. I take that into account.
138Ms Ozcan said she had restricted shoulder movement. In the witness box she demonstrated that her above-shoulder movement was limited to about 160 degrees to the vertical (vertical being 180 degrees). I accept that she made a genuine effort when this demonstration was undertaken.
139Ms Ozcan said her left shoulder pain and pain-related restriction, independently, affected her in many ways. This included:
(a) an inability to blow dry her hair;
(b) it impacted on her dressing and undressing;
(c) her capacity to lift and carry heavy items was restricted;
(d) her sleep is impacted. In particular. if she turns on her left side, that wakes her;
(e) she cannot drive her car for very long by, reason of her left shoulder alone;
(f) her capacity to undertake domestic activities such as cleaning is restricted by her left shoulder alone;
(g) a limitation of the activities she can undertake with her grandchildren. They are obviously now an important part of her life.
This list is not exhaustive.
140In accepting that such consequences flow from Ms Ozcan’s left shoulder independently, I am assisted by the evidence of Mr Moaveni, Dr Sullivan and Dr Slesenger. Each of these experts expressed their opinions, conscious of the need for disentanglement.
141I am also conscious I must take into account that capacity which Ms Ozcan has retained.[34] For example:
(a) she can undertake lighter housework;
(b) subject to her pain and some restrictions, she lives independently;
(c) she still shops independently for lighter items;
(d) she can drive limited distances;
(e) she can assist her elderly mother;
(f) subject to pain and some restriction, she interacts with her grandchildren.
[34]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
142As the Court of Appeal said in Ellis Management Services Pty Ltd v Taylor,[35] in range cases such as this:
“The judgment in issue is an evaluative one involving a synthesis of matters of fact and degree. Such a judgment necessarily involves a consideration of detailed facts and a weighting of cumulative factors. Different minds might reasonably reach different conclusions as to where the overall seriousness of the consequences fell within a range. … .”
(Footnote omitted.)
[35][2013] VSCA 326 at paragraph [59]
143To summarise, I accept, in respect to Ms Ozcan’s left shoulder injury, that:
(a) the injury was materially contributed to by her employment;
(b) the 17 October 2017 steroid injection was required by reason of the work-related injury;
(c) the 4 July 2018 surgery was a consequence to her work-related injury;
(d) while the surgery led to some improvement, she has continued to suffer left shoulder pain and pain-related restriction;
(e) there is an organic basis for her complaints of pain and pain-related restriction;
(f) a little over five years from the time of the surgery, Ms Ozcan has continued to suffer pain and pain-related restriction throughout that period;
(g) the prognosis is poor;
(h) Ms Ozcan will continue to suffer pain and pain-related restriction lifelong;
(i) the left shoulder injury impacts Ms Ozcan in many ways.
144I accept that, for pain and suffering purposes, Ms Ozcan’s left shoulder injury is a serious injury.
Is Ms Ozcan’s left shoulder injury a serious injury for economic loss purposes?
145I am again conscious of the need to disentangle and assess the work consequences of the left shoulder injury independently.
146Referring firstly to Mr Dickinson’s evidence.
147Mr Dickinson said:
(a) Ms Ozcan would have difficulty with prolonged periods of overhead activities such as stacking shelves or removing material from shelves;
(b) Ms Ozcan would not be restricted from doing this occasionally.[36]
That is as far as Mr Dickinson took the impact on Ms Ozcan’s vocational capacity. There was no greater analysis. Mr Dickinson’s evidence provides limited assistance to me one way or the other.
[36]DCB 19
148Moving now to the medical evidence which Ms Ozcan relied upon.
149Again, in respect to this medical evidence, I note that each of the medico-legal experts were specifically asked to disentangle and provide an opinion of the work consequences resulting from the left shoulder injury independently.
150Firstly, Mr Moaveni said that, considering Ms Ozcan’s left shoulder injury alone:
(a) she was not fit for unrestricted pre-injury duties;[37]
(b) she does not have capacity for suitable employment on a consistent and reliable basis, taking into account her age and past work experience, as well as education.[38]
[37]PACB 123
[38]PACB 123
151Dr Sullivan said that, considering the left shoulder injury alone, Ms Ozcan:
(a) can longer engage in her pre-injury employment, now, or into the foreseeable future;[39]
(b) cannot engage in suitable alternative employment, now, or into the foreseeable future.[40]
[39]PACB 140
[40]PACB 141
152Finally, Dr Slesenger, the only occupational physician involved in this application, said, by reason of the left shoulder injury alone:
(a) Ms Ozcan could not return to her pre-injury tasks, as the job demands lie outside her capacity limits;
(b) he did not anticipate Ms Ozcan being able to return to work performing pre-injury duties or suitable alternative duties on a consistent and reliable basis.
153I do not accept Ms Ozcan, by reason of her left shoulder injury alone, has the capacity to return to her pre-injury work. The physical demands are far and away in excess of Ms Ozcan’s residual capacity by reason of her left shoulder injury alone.
154The real question then becomes, does Ms Ozcan’s residual capacity, given her left shoulder injury alone, allow her to undertake suitable employment?
155I have been assisted in my determination by the evidence of Dr Slesenger. As previously noted, he is the only occupational physician to provide evidence in this application.
156Having considered all of the evidence, I accept Ms Ozcan, by reason of her left shoulder injury independently, has no residual capacity that she could sell in the market on a consistent and reliable manner.
157In coming to this conclusion, I take into account:
(a) Ms Ozan is left-hand dominant;
(b) Ms Ozcan suffers chronic left shoulder pain;
(c) she has impaired movement and function of the left arm/shoulder;
(d) that she has reduced tolerances for her left arm/shoulder;
(e) that her capacity to undertake any manual-type work is significantly impaired;
(f) that her capacity to use her left and dominant hand/arm is impaired;
(g) her age, limited education, limited vocational experience and transferable skills.
158I accept Ms Ozcan by reason of her left shoulder injury alone, has, in the past, and is currently, losing 40 per cent or greater of her gross income. I accept this is permanent.
159I accept, by reason of Ms Ozcan’s left shoulder injury alone, she satisfies the threshold test for economic loss. Leave will be granted.
Orders:
160I shall hear the parties in respect to the consequential orders to be made in this matter.
---
0
6
0