Ozkul v Victorian WorkCover Authority
[2017] VCC 1193
•25 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-00806
| NURIYE OZKUL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18, 21, 22, 23 and 24 August 2017 | |
DATE OF JUDGMENT: | 25 August 2017 | |
CASE MAY BE CITED AS: | Ozkul v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1193 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to cervical spine and shoulder – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Horner with Mr S Dawson | Zaparas Lawyers |
| For the Defendant | Mr P Lamb | Lander & Rogers |
HIS HONOUR:
1 The plaintiff seeks leave under the Accident Compensation Act 1985 (“the Act”) for an impairment of the body function of the spine. This involves cervical spine injury including symptoms referred into the left shoulder and arm. A low back injury was initially relied on but after occupying a deal of time in this application it was abandoned on the fourth day of the hearing.[1] Leave was sought for pain and suffering and loss of earning capacity.
[1]Transcript (“T”) 184
2 The worker is fifty years of age. She is married but effectively separated since being injured and unable to work. She essentially has been engaged in unskilled manual work virtually all her life. It has been factory, machinist, production line duties and working in a café she and her husband ran, as well as heavy cleaning of commercial premises.[2] Her work record has been excellent for an unskilled person over a long period. I accept she has always been a financially independent woman and very proud of that fact.[3]
[2]Plaintiff’s Court Book (“PCB”) 8-9
[3]PCB 22
3 She relies on an incident in the course of her employment on 4 June 2014 when she was lifting and throwing a bag of rubbish into a compactor. She was working as a supervisor/cleaner but was still involved very much in the hands-on multiple manual tasks of day-to-day cleaning. Due to some language problems and her getting confused when asked about different periods in the past, that event was referred to as the “compactor incident”.
4 Her duties with the employer, ISS Facilities Services (“ISS”), were extremely heavy. ISS required a pre-employment medical examination before taking her on in October 2013. That assessment set out no less than fifteen quite heavy and varied duties she was found fit for.[4] Often she could not get through all her cleaning tasks and she would work on unpaid, past the knock off time, to complete her duties. She was responsible for cleaning the whole ground floor of St Vincent’s Private Hospital.[5]
[4]PCB 157
[5]PCB 9
5 The work involved scrubbing toilets, vacuuming, mopping, dusting, lifting bags of rubbish onto a trolley and pushing the loaded trolley. She had to lift and carry laundry bags. She was also required to make the beds in the day procedure unit and wash the floors in the kitchen using a high-pressure hose. It was also a fast paced job.[6]
[6]PCB 9
6 On the day in question, she felt a jarring pain in the neck and left shoulder regions in the course of lifting and throwing the bag. She described it as like a “burning sensation” or “something hot” starting in the neck and going down into the left shoulder and arm. That area of her body and the feeling were demonstrated by her repeatedly in the witness box.[7]
[7]T54, 58, 59, 62
7 The defendant raised a number of issues throughout the hearing. It is admitted that the plaintiff suffered compensable injuries to the neck with referred shoulder symptoms in the course of employment. It also admitted she has a compensable injury to the low back but it was not suffered as a result of the compactor incident but in a later event that is not before the Court. The low back was ultimately abandoned by the plaintiff. The defendant said that this application required a Petkovski v Galletti[8] analysis. Thus the defendant submitted that whatever impairment arose from the admitted neck/shoulder impairment, it was in the nature of an aggravation of pre-existing injuries. It did not pass the “serious injury” test. It was submitted disentanglement was required with respect to the low back. Similarly, a disentanglement was argued as being necessary regarding a transport accident on 20 March 2015. The defendant also argued the evidence only showed “a course of employment” injury and not one caused by the compactor incident.
[8] [1994] 1 VR 436
8 The plaintiff was the only witness called. She swore two affidavits, the first being on 7 September 2016, followed by an up-to-date affidavit on 7 August 2017. She came here from Turkey in 1989 and required the services of a professional interpreter to translate from Turkish into English. Her English speaking skills are quite limited.
9 Similarly, her reading skills in English are limited. She required the services of an interpreter in order to swear her two affidavits. It was apparent from virtually the start of the cross-examination that she needed assistance in regard to reading English. At one point the interpreter had to assist her to find even clearly typed dates in some very simple computer-driven medical records.[9]
[9]T26
10 In an application such as this where the plaintiff is the only witness called, an evaluation of her reliability and accuracy is very important. She was cross-examined over a number of days. That provided a longer opportunity than usual to not only hear her but to observe her demeanour. She impressed me as a simple woman but one who was consistent and attempting to give a truthful account at all times.
11 She was a candid witness who made a number of admissions against interest. A clear example was after her counsel opened a case as one where low back symptoms were caused by the compactor incident, she was adamant the symptoms only arose after a much later toilet cleaning incident.
12 The plaintiff lives in the outer northern suburbs. There were three GP clinics that she attended in the years prior to 4 June 2014.[10] Mostly these clinics involved her seeing doctors who did not speak her native language. Their names indicate a variety of ethnic backgrounds.
[10]Exhibit 2
13 She was taken to some early medical records in 2009 and 2010 at a clinic in Greenvale where there were complaints of neck and shoulder problems. Her memory of these was very limited but she did recall a CT scan taken in March 2009.[11] There were two visits in February 2009 to her general practitioner and then a further visit in April 2010.
[11]PCB 47
14 She was then asked about a few entries from a clinic in Broadmeadows. In particular, she was asked about attendances in May 2011 and in April 2013. These attendances related to problems of numbness with some pain in the region of the hands and wrists. A possible diagnosis of carpal tunnel injury was recorded and she was referred to a Dr Crump for that but she did not attend.
15 She was asked about the period from 2009 to the compactor incident in June 2014. I accept her evidence that she occasionally had symptoms in her arms and neck. I accept she took some medication for a short while in 2009 but she stopped taking it when symptoms largely went away. She used the expression “quite rarely”, “very rarely”, “occasionally” when describing when symptoms occurred.[12] I accept her evidence that she had no significant neck pain after a relatively short period in 2009 when some medication and a couple of physiotherapy sessions gave her relief.[13]
[12]T27, 34, 36, 37, 38, 39
[13]PCB 12
16 The third clinic she was asked about was a local practice in Craigieburn. Again, there are only a small number of visits prior to June 2014 that she was asked about and the notes are brief. Her complaints in April, September and October 2013 and February 2014 are essentially related to menopausal depression. She stated at one stage that “I had menopause depression and I had no job” when asked about an attendance in late 2013.[14]
[14]Exhibit 2
17 She was off work at that time before commencing her job with ISS as her previous cleaning employer had apparently lost its contract. She was referred to a Ms Bah, psychologist, for these problems of stress and depression but she only saw her once. Across all of those notes there is only one day off mentioned and it was because of stress. Again, there is nothing of note in relation to any spinal or shoulder symptoms or impairments.
18 After considering the medical records prior to the compactor incident from each of these three clinics, there are only a very a small number of visits in any way relevant. They are years before the subject accident. A number of comments need to be made apart from the obvious language limitations that need to be kept in mind having heard this plaintiff’s language skills.
19 Firstly caution has to be exercised when considering the weight to be given to such brief computer-driven clinical notes. The notes could not possibly accurately record anything like the full discussion between doctor and patient.
20 To take one example, barely one line of only nine words is the relevant note on 6 April 2009. The whole entry for that date takes about 10 seconds to read. Pressing keyboard buttons it would barely take 30 seconds for the doctor to record. I just do not accept on the probabilities that the most cursory general practitioner consultation would not contain much more discussion than the note the defendant relies on.
21 Secondly, it is uncontested that basically from 2009 to 4 June 2014, the plaintiff worked on full time in heavy work and leading a normal family and personal lifestyle without restriction. Her manual work had not been interrupted by any time off for the so-called pre-existing spinal or shoulder impairment the defendant seeks to rely on.
22 Thirdly, there is no note in the general practitioner’s records of any certificates for time off work or for light duties on account of spinal symptoms.
23 Fourthly, there is no evidence supplied by the defendant of her needing any time off work or restricted duties in the eight months she performed this heavy work at the hospital up to the compactor incident.
24 Fifthly, the medical records from all of these clinics showed no medical attendances for neck or shoulder symptoms for over four years between early 2010 and the compactor incident in June 2014.
25 Sixthly, ISS had her medically examined by a doctor of its choosing before employing her. She was found to be fit for the numerous heavy duties involved in the job.[15]
[15]PCB 157
26 One other note from a treater relied on by the defendant with respect to this issue came after the compactor incident. It was from Dr Baglar in Lalor. She saw him in January 2015 and the brief computer note says “neck and shoulder pain since 5-6 years ago during her previous employment”. The plaintiff said in evidence she had had it five to six years ago but it was not as bad. The doctor’s very brief note ends with “continued to work in her recent employment she started to have neck shoulder pain”.[16]
[16]Exhibit 2
27 I accept the word “started” is consistent with the evidence she gave that while there had been the history of neck and shoulder problems five or so years earlier, they had effectively ceased. They were causing no ongoing problems with her work or daily life until the compactor incident “started” up symptoms and impairment in the neck/shoulder areas that are ongoing to the present day. Without hearing from him, I take this later note as consistent with her evidence that she did have some neck/shoulder symptoms in 2009-2010 but they caused no ongoing problems until the compactor incident.
28 She was taken to the Emergency Department at St Vincent’s Public Hospital by her manager an hour or so after starting her nightshift on 5 June 2014 when she experienced more symptoms.[17] At the hospital she saw a triage nurse and a doctor. Neither spoke Turkish. The defendant relies on the hospital notes and records with respect to the absence of specific mention about the compactor incident.
[17]PCB 10, Exhibit 2
29 An obvious example of how caution must be exercised in reading such notes is the reference to “Nil h/o trauma”. When it was put to the plaintiff in the witness box she had no idea what was meant by “trauma”. Even when the interpreter explained this to her in Turkish and counsel put it in different terms not using that word, the plaintiff said she did not understand what he meant by that.
30 These are very short hand notes. I do not read much into them nor into any absence by way of specific mention of the incident. Reading all of these hospital records it is obvious the staff’s attention was clearly directed towards an understandable focus on possible cardiac problems. Given her complaints about symptoms in the shoulder and into the chest area, this is no surprise. The worker was sent for an ECG, full blood count tests and other investigations that on the probabilities were directed towards a possible heart condition. In spite of that focus, the notes still record the “neck & back” as being a site of symptoms.[18] Importantly, in spite of all the attention seemingly directed to checking for possible cardiac pathology, in the end, the notes record a musculo-skeletal diagnosis. This is consistent with what occurred in the compactor incident.
[18]Exhibit 2
31 It needs to be remembered that a worker who wants to keep working, as opposed to looking for a way to avoid work, tells treating doctors what the problems are in lay terms. In this case, not even in the worker’s first language. A doctor charged with treating a patient is often more interested in a proper diagnosis and a treatment plan than pursuing precise details about some incident.
32 Sitting in this jurisdiction daily it is common to find treaters often take no history to speak of at all regarding precise information about what happened at work. No better example of this is the initial letter from the treating neurosurgeon, Mr A Gonzalvo.[19] Even when asked to give a report to her solicitors obviously because litigation was on foot, he provided no more detail than “The heavy lifting, repetitive bending and twisting required in Mrs Ozkul’s duties at work ...”.[20] The attention of treaters lies much more in the history of the symptomology, followed by clinical examination, appropriate radiological investigations and then treatment advice.
[19]PCB 41
[20]PCB 42
33 In this particular case, in view of my having no doubt about the accuracy and reliability of the plaintiff, I gain little assistance from what appears and what does not appear in skimpy clinical notes and records, some of which are illegible.
34 The cross-examination about the hospital visit in fact demonstrated a couple of examples of an honest witness. The plaintiff was asked about notes referring to two painkillers being given to her. She could have easily adopted this as being consistent with pain and as advancing her case but she said she just did not recall them. She also volunteered for example that she was feeling a bit better and was sent home. It was put to her that she had been given time off work by the hospital in a certificate for two days but again, in a very frank and honest manner, she said she did not remember that. These were examples of a person who could easily have lent some support to the seriousness of the impairment causing to go to hospital but she did not take up those opportunities.
35 Dealing with the suggestion of pre-existing neck and shoulder problems, there was clearly radiological evidence in 2009 of disc degeneration in her cervical spine.[21] For a manual worker in her forties that is no surprise. Radiological change does not automatically mean symptomology. Looking at all the evidence, I am satisfied she suffered no impairment of body function at all in the four or more years immediately prior to 4 June 2014. In other words, this is not an aggravation case calling for a Petkovski analysis.
[21]PCB 47
36 I accept the 2009-2010 complaints did not stop her from working full time in very heavy work. I am satisfied that prior to 4 June 2014, she had no real ongoing difficulties with respect to these problems.[22] Perhaps more to the point, I am satisfied on the probabilities that there was no impairment to the body function of her spine or left shoulder before that date with respect to her daily personal and working life.
[22]PCB 12-13
37 An attack was made on her credit with respect to a motorcar accident that occurred on 20 March 2015. It is referred to as a “jolt” in the general practitioner, Dr Baglar’s notes on 23 June 2015.[23] It is the same expression about this accident used in the plaintiff’s affidavit where she referred to a “jolt” and not working for a few days.[24] In that affidavit, she swore that this accident is not relevant in this case, and she repeated this a number of times in the witness box. Her evidence was consistent.
[23]Exhibit 2
[24]PCB 19
38 She said time and again throughout this lengthy cross-examination that “nothing happened” to her neck in this accident. She said more than once she did not suffer any damage or injury arising from the accident. While she had some difficulty in the translation of the word “jolt” in Turkish, she demonstrated very clearly in the witness box a general movement of the body from her waist up when the low-speed collision occurred.
39 The word “exacerbated” appears in the extremely brief doctor’s note on 27 March but again, I do not read any significance into that without hearing from the doctor. It may well be his interpretation of “jolt”. It does not lead me to any conclusion that her credit was impugned.
40 She was taken to doctor after doctor who saw her in a medico-legal context and challenged about not mentioning the transport accident. I draw no adverse inference as to her credit in not mentioning these things to the doctors for a number of reasons. She said when she saw these doctors, “I answer questions”. At times she had an interpreter; at other times not. English is not her first language. More importantly, in the end, she is the best judge of her symptoms and I accept she suffered no injury or damage to her body as a result of this accident.
41 After repeatedly being asked why she did not mention the car accident to a number of doctors, she replied very succinctly:[25] “I didn’t suffer any obvious injury in the accident to go and tell anybody about it.”[26]
[25]T162,163,166
[26]T163
42 Accordingly, I am satisfied the transport accident had no real relevance to the task of assessing the consequences of the admitted impairment to the neck with referred symptoms into the left shoulder. I reject the suggestion that a “jolt” to the upper body is synonymous with an injury. No claim was made on the TAC, even for payment for the visit to Dr Baglar on 23 March 2015 or for anything else following the transport accident.
43 Another topic she was taken to in cross-examination was her residual work capacity. She has a very optimistic and stoical attitude to her impairment. She said she could do a cleaning supervisor’s job or manage a café and some other suggested jobs that were put to her. But even she placed a qualification on that of only about three hours a day.
44 These suggestions have to be looked realistically and in particular, with the provisions of s5 of the Act in mind. The realities of the open employment market has been referred to more than once as being relevant to an assessment of earning capacity. She is highly motivated to work. Her motivation and optimism do not equate to an earning capacity for a fifty-year-old lady with limited English when looked at in the real employment world. It needs to be kept in mind in the months after the compactor incident her duties had to be cut and lightened.
45 The plaintiff had to consistently use the professional interpreter over the course of her evidence, at times even with some very straightforward questions. Having had the opportunity to assess her, in my opinion, the suggestions that she could work as a customer service officer, salesperson, receptionist or in a telephone job are unrealistic. It ignores the fact in such jobs, an employee has to have the capacity to communicate in a proper and wide-ranging way on all sorts of enquiries. She needed an interpreter to swear affidavits. These affidavits do not contain any difficult technical terms that a customer service officer, sales person, manager or receptionist would face from the public.
46 I reject the defendant’s suggestion that the plaintiff has exaggerated the compactor incident and its effects. Her version of what happened on that day is confirmed in detail in the defendant’s own contemporaneous Incident Investigation Report.[27] It confirms the compactor incident on the night of 4 June 2014 and a “click” in the neck/shoulder area but that the plaintiff worked on. Shortly after attending on 5 June 2014 for the next nightshift, her condition was such that her manager took her to St Vincent’s where she was examined and then cleared of a heart attack.
[27]PCB 168
47 The café she worked with her husband and other employees was no management position in the sense of an office-bound manager. As with her supervisory/cleaning role at the hospital with ISS, she was carrying out hands-on duties. Again, seeing and hearing her over the last four days it is my opinion that this plaintiff has no real management skills in the sense of qualifying for a non-manual employment position.
48 Dealing with the consequences of the neck/left shoulder problems absent the low back condition, I am satisfied that she is taking two to three different types of medication each day for them, as well as for the low back condition.[28]
[28]PCB 13, 21
49 I accept the evidence that she still has constant neck pain with referral into the shoulder, and it intensifies with activity. Even pushing something with her left hand will increase symptoms. If she sits for too long she has a stiff neck and often gets headaches. She has difficulty looking up and down and if she does so, that increases her pain, as does looking to her left side. If she lifts her left arm for too long she gets pain. Even attending to personal activities taken for granted such as brushing and washing her hair increases her neck pain after only 30 or 40 seconds. She needs to get assistance from someone to help with something as basic as washing her hair. Someone else at home has to hang out her washing due to pain.[29] Sleeping is difficult if she lies on the left side.[30]
[29]PCB 14-15
[30]PCB 16, 24
50 This evidence was not challenged in any way. Clearly, she has a low back condition that impacts on a number of her activities but those I have referred to are consequences of the neck/shoulder impairment alone. They are particular to the neck and shoulder and arm regions and have nothing to do with problems in her low back. I accept that any activity requiring constant use or demand on her neck and left shoulder will cause an increase in the pain.
51 Just a cursory glance at the fifteen activities required of her in the job she had as a supervisor/cleaner indicates the demands on the neck and arms. I am satisfied her neck/shoulder impairment has put her out of this job with ISS. Given the continuation of her symptoms over the last three years or more, I am satisfied that these restrictions will remain for the foreseeable future. All of the work she has done over the years has required constant repetitive usage and demands on her neck and left shoulder and sometimes very heavy demands. She had that capacity but it is now lost due to the neck/shoulder impairment.
52 Turning to the medical evidence, this application raises all the usual problems of attempting to understand written opinions without hearing from any of the doctors when more than one injury was discussed. Being required to judge the impairment now, the more recent reports are of greater assistance.
53 Dealing with the treaters, the general practitioner, Dr Baglar, wrote a number of brief reports. His opinions mostly encompass both the cervical spine impairment and the lumbar spine impairment. Of course I must do my best to understand what he says about the neck and shoulder absent the low back.
54 Firstly, he had no doubt about the genuineness of this patient. He said she had a very impressive vocational history. She considered herself a high achiever with high expectations of herself and he genuinely agreed with that.[31] That is how I found the plaintiff.
[31]PCB 38
55 As to work, he said in his September 2016 report that she did not have the capacity for her pre-injury work and for any employment with similar physical demands. Considering her education, experience and training, he did not find her suitable for any form of employment.[32] This comment seems to aggregate the cervical and lumbar spine impairments. However, to put it in further context, he accepted her history that she had been assigned to really lighter tasks of folding napkins and she had complained that her neck was getting sore when maintaining it in a fixed position. When further modifications were requested from the employer, it did not accommodate them. In effect that was the end of her work.[33]
[32]PCB 35
[33]PCB 34
56 Not having heard from the doctor, I cannot be certain but on the probabilities it would appear that it is the neck principally that has seen her get into trouble with symptoms from even work as light as folding nappies and doing very light other cleaning. These are not low back tasks. He followed this history immediately by indicating a specialist referral to a neurosurgeon, Mr Gonzalvo, was required.
57 He then went on to speak in the next paragraph of a number of signs at examination of tenderness in the neck, restrictions of flexion and extension of the neck, increasing pain with further flexion and restricted neck rotation. He found tenderness in the left shoulder and an inability to abduct and adduct her upper limbs. His examination of the low back appeared to find less in the way of relevant clinical signs.
58 Care must be taken in trying to read too much into these brief medical documents. It appears on my reading that the neck was playing a substantial role in his coming to the conclusions he did about limited work capacity. The low back is certainly also relevant but that does not alter the fact that a cause of the limited earning capacity is the cervical spine impairment. Low back is another cause as I read his opinions coming on top of, and additional to, the cervical impairment.
59 Finally, in his 2017 reports, he had the opportunity of discussing suggested alternative employment options and he thought that customer service officer, salesperson or receptionist were within her capacity but he did put a qualification on this, in that she required training and qualifications.[34] This opinion was not given with the requirements of s5 of the Act in mind which of course is the task before the Court.
[34]PCB 39
60 His final word last week was she was unable to work full time and was capable of returning to work only 15 hours a week with a view to a gradual increase.[35] This is a far cry indeed for a woman who before 4 June 2014 had a full-time earning capacity to carry out heavy duty cleaning tasks that at times went beyond her normal full-time hours.[36]
[35]PCB 40
[36]PCB 9
61 The treating neurosurgeon, Mr Gonzalvo, spoke of the cervical and lumbar spines in his comments.[37] He diagnosed “multiple pain issues” being neck pain, lower back pain, headaches, and interscapular pain in that order. He thought she was unable to return to her pre-injury duties due to “multiple pain issues”. Whether those diagnoses followed in any ascending or descending order is speculation. On the probabilities they seem to, in a combined sense, all cause her to be unable to return to her old job. He did not really disentangle the two spinal impairments.
[37]PCB 41, 42, 43
62 As to the radiology, there was a CT scan in February 2009 of the neck and an MRI scan in March 2015. Obviously these are two different scientific reports and two different machines with different scientific capabilities.
63 Not too much can thus be read into a comparison of the reports but on any view there are real differences supporting a worsened neck in 2015. There is more pathology and at more levels in 2015 than in 2009 and the language is suggestive of more serious degeneration. To take just one example, at C5-6 in 2009, the radiologist noted disc space decrease as “suggesting” disc degeneration but in March 2015, “bulging indenting the cord” was seen. Probably no more can be said than the radiology supports worsened levels of degeneration and at more levels.
64 Medico-legal reports start with Mr D Brownbill, neurosurgeon, who had the advantage of seeing the worker in 2015 and again in 2017. In 2015, he thought she was unfit for her old cleaning job and that seemed to be in a context of both the cervical and lumbar spines. But he did go on to say she should avoid activities involving forced cervical mobility or holding her neck in a fixed position. These are limitations flowing solely from the neck impairment.[38] He repeated these limitations when he saw her in 2017 and went on to say she could not work full time and would not be able to go beyond half time.[39]
[38]PCB 61
[39]PCB 67
65 He later put beyond doubt his opinion about the cervical spine alone:
“As a result of the aggravation of cervical spine degenerative changes with local pain (‘neck’) I consider the activity restrictions of avoidance of heavy lifting, forced cervical mobility or holding her neck in a fixed position will continue and should be with any employment consideration. This activity restrictions apply to social and recreational activities.”[40]
[40]PCB 67
66 I accept Mr Brownbill’s careful analysis of the injuries and his comments with respect to the neck on its own as seriously limiting her earning capacity taking into account her the background, age, experience and the other factors that are required to be considered against the background real job market. He found stabilisation. I accept he thought she would likely have these restrictions for the foreseeable future.
67 The next medico-legal opinion came from Dr G Weekes, pain specialist. He saw her in December 2016 and in May 2017. He also dealt with injuries to the neck and left shoulder, as well as her lower back. In 2016, he did disentangle and said that the neck injury alone resulted in continued effects on a capacity for employment, her ability to do activities of daily living and her social life.[41] He put real restrictions on her and commented on her lack of experience outside of a manual labour role.[42]
[41]PCB 74
[42]PCB 73
68 In May this year, he stated more explicitly that she had permanent work restrictions. These involved repetitive bending, twisting, lifting, lifting any weight greater than five kilograms, scrubbing, vacuuming or indeed any of the pre-injury duties that she had been involved in. He thought any repetitive manual labour aggravated her conditions. She had no capacity to return to work for her full pre-injury duties as a cleaner. He thought some administrative role or supervisory role would be open; however, she has never really worked in such a role as her supervision encompassed day-to-day heavy manual cleaning duties.
69 He did not explicitly disentangle the neck/shoulder impairment from her lower back but scrubbing and vacuuming would be particular functions that I do not need evidence to convince me are more related to usage of the neck and upper limbs than the low back. I am satisfied on the probabilities that this doctor supports her permanent work restrictions as being related to the neck and shoulder alone. As I read his report, he probably said that her lower back also restricts her with respect to some or all of those employment tasks.
70 In a very brief letter only last month he thought that any return to work of three hours a day for five days a week would be reasonable on a trial basis with modified duties.[43] He did not say whether this was because of the neck on its own or the low back on its own but it seems he felt both impairments lead to the very real restrictions on her working hours.
[43]PCB 80
71 Dr D Kennedy, sports and industrial physician, saw the plaintiff once in May 2017. He said she had permanent work restrictions but he puts these in a context of both cervical and lumbosacral spine problems. However, he noted the neck pain as 6 out of 10 and low back as 4 out of 10.[44] Some of these permanent restrictions particularly relate to the upper spine such as performing repetitive left upper limb activities at or above shoulder height and turning in conjunction with manual handling activities.[45]
[44]PCB 104
[45]PCB 107
72 He thought she was able to perform some sedentary supervisory work if she observed the physical restrictions. He then went on to make the comment that taking into account her age as well as her skills, training and work experience, she would have difficulty returning to any occupational duties on the open labour market as she has significant restrictions that not only affect her work capacity but also a number of domestic, social and recreational activities.[46]
[46]PCB 107
73 He sent a short report in July 2017 in relation to some return to work suggestions in April-May 2016.[47] He noted that when she ceased work in May 2016, she was only doing three hours per day, five days a week. She was able to do such duties but he says “of a sedentary nature” and providing the work did not involve strenuous cleaning activities. Of course the plaintiff has never had what could fairly be called a sedentary job. Even with these restrictions on her hours and on her duties, she only had a part-time capacity at best as I understand his views.
[47]PCB 109, 110
74 Again, a lot of his comments are directed towards an overall capacity combining the neck/shoulder and lower back impairments. However, there is enough that appears to be directed towards the neck and referred shoulder problems alone to lead me to conclude that on the probabilities, Dr Kennedy is saying these permanent work restrictions were as a result of the neck/shoulder impairment on its own. It seemed he was probably saying that also the lower spine impairment is another and additional reason why she has these restrictions.
75 I do not accept the defendant’s submission that the medical evidence points only to “rolled up” injuries in the sense of a general “course of employment” and that the compactor incident had not been shown as causative of the cervical impairment. Doctors may not have in as many words stated the compactor incident on its own caused the impairment but all the evidence and context have to be looked at.
76 The balance of probabilities is the standard. There is sufficient evidence from histories taken from a woman whose truthfulness has not been challenged by any doctor that the compactor incident started up neck problems that have continued to the present day. That start up is confirmed in the employer’s Incident Report.[48] When a doctor then reports the impairment occurred in the context of her “cleaning duties” or her “employment” it is artificial to literally read that as excluding the start-up incident with the compactor.
[48]PCB 168
77 A vocational assessment by Flexi Personnel dated 11 July 2017 was tendered. The author made it clear that s5 of the Act and the definition of suitable employment were taken into account.[49] A deal of the report reaches views as a consequence of the neck and back injuries taken together but she does later delineate them.
[49]PCB 135
78 In a final conclusion she reported that the injuries to both her neck and back “on an individual basis alone will impede her ability to efficiently and productively perform alternative workplace duties into the foreseeable future”.[50] I accept that by the expression “individual basis alone” there was some disentanglement being performed by the assessor. It would appear that she reaches the firm conclusion about a total lost earning capacity for suitable employment. That conclusion came after a comprehensive analysis of the plaintiff’s injuries, work experience and lack of other skills in a context of both the neck and low back impairments not only together but individually. I accept that opinion.
[50]PCB 145
79 Turning to the defendant’s medical material, it included a report obtained by the plaintiff’s solicitors from a Mr C Flanc, vascular and general surgeon. He only saw her once back in April 2015. It is now a very dated report so it is of limited weight. He does disentangle the injuries at least and said that with respect to the cervical spine, it was related to symptomatic osteoarthritis and disc degeneration at multiple levels as shown on MRI of her neck. The left shoulder pain was mainly referred from the condition of her cervical spine.[51]
[51]PCB 118
80 While it was early days when he saw her and not surprisingly he said her condition had stabilised, he still felt at that stage, she would not be able to return to any cleaning duties or any work involving heavy physical activity of her upper limbs.[52] That comment is clearly related to the problems in her cervical spine area and not the low back. He goes on to say that there are also some limitations that would appear to be directed to the low back such as repeated bending, twisting and lifting. There was, in his view, a theoretical capacity for part-time supervisory duties or part-time office-type duties.
[52]PCB 119
81 Given the considerations of s5 of the Act, they remain no more than theory for this lady. I consider this dated 2015 opinion as supportive of the neck on its own causing severe limitations on a capacity for any suitable employment.
82 I accept the plaintiff’s evidence there has been no improvement of the neck and shoulder impairment since April 2015 and in view of that, I am assisted by Mr Flanc in reaching the finding I make that the plaintiff is all but unemployable for any suitable work for the foreseeable future. I reject the defendant’s submission that Mr Flanc did not relate the neck to the compactor injury. He took a detailed history of it that ran for more than half a typed page.[53] When he referred to her work as a cleaner significantly aggravated her cervical degeneration, I consider that any fair reading of his whole report leads to the inference he is talking about the compactor incident.[54]
[53]PCB 112, 113
[54]PCB 119
83 Mr Roth saw the worker once in February 2015. He was specifically asked by Allianz Insurance to look at an injury on 1 September 2014 which is the toilet incident.[55] Low back injury is the first injury mentioned in his instructions from Allianz. Neck symptoms do get mentioned it seems but only in a passing way and he found relevant signs of restrictions and discomfort in the neck on examination. But this report is really of no assistance. The doctor has been asked to look at something altogether different from the event and injury I have to assess. It is also very dated.[56]
[55]DCB 4
[56]T251
84 Dr D Ho, occupational health consultant, only saw her once and very early on in April 2015. Again, Allianz asked him to look at 1 September 2014 as the date of injury.[57] It is a curious report that is very hard to follow.
[57]DCB 21
85 He takes a history of the compactor incident and the worker reporting a “click” in her neck lifting the rubbish and being taken to St Vincent’s Public for neck pain. There, her heart was checked out.[58] He then makes an incomprehensible statement that there had not been any specific incident or injury involving her cervical spine.[59] In the end, the defendant places no weight on this report.[60]
[58]DCB 13
[59]DCB 18
[60]T254
86 Dr D Lewis, rheumatologist, saw the plaintiff in 2015 and March 2016. Again, Allianz asked him to give an opinion about an injury on 1 September 2014.[61] It is a very vague report as to dates and events. He recorded the compactor incident as October 2014.[62] He accepted her neck spondylosis symptoms but then stated: “I have identified no specific work related injury that occurred in the December 2014 and January 2015 period.”[63] He repeated that same failure in his 2016 report.[64]
[61]DCB 37
[62]DCB 38
[63]DCB 41
[64]DCB 49
87 The letter of instructions from Allianz was not tendered so I have no idea what he is talking about in regard to that period. In spite of the difficulty in following his report, he did go on to say in 2016 that:
“Her neck was her most significant problem and she experiences pain on left and right rotation with restriction of movement. She told me that when she is working and standing folding towels and her head is flexed forward within a short time she has increasing pain which causes headaches. She also has pain in the neck on looking upwards.”[65]
[65]DCB 46
88 These comments directed to the neck impairment on its own support my conclusion that it disables the plaintiff from working in her old heavy manual job or any other suitable employment.
89 Mr M Dooley, orthopaedic surgeon, examined the plaintiff on one occasion in April this year. He took a history of the compactor incident and the burning feeling it gave her in the neck, her working on and finishing the shift. After a gradual increase in pain, she only lasted an hour or so the next day and her supervisor took her to St Vincent’s where she was cleared of any problem with her heart.[66] His opinion was that during the course of her work in mid-2014, she sustained a soft tissue injury to her cervical spine that has involved some aggravation of underlying degenerative disc disease.[67] He thought she had a physical capacity to carry out light physical and clerical duties but he did not really say whether that was all because of the neck or the low-back or both combined.
[66]DCB 54
[67]DCB 56
90 Both parties tendered vocational assessment documents.[68] In the end, I am not assisted by them greatly. I would say that in my opinion the requirements of s5 of the Act were much more comprehensively addressed and articulated in the assessment provided to the plaintiff’s solicitors than that given to the defendant’s. The report to the defendant also speaks about a number of suggested alternative jobs that close examination shows would present problems for the plaintiff with her lack of skills. For those reasons, there is in some ways more of a theoretical and realistic approach in some of these suggestions. For all these reasons, I find the plaintiff’s vocational assessment report more persuasive.
[68]PCB 135-149, DCB 72-114
91 In conclusion I find on the probabilities this fifty-year-old plaintiff has permanently lost her capacity for suitable employment other than at best a few hours on a few days per week if the duties were very restricted and were non-manual. For her this amounts in my view to a total loss of earning capacity when looked at realistically.
92 There is no need to resort to arithmetic in view of my findings but lest there is any doubt, I accept $51,480 per annum most fairly reflects her earning capacity had the injury not occurred. She has proved a 40 per cent or more permanent loss and it follows that I give leave for both loss of earning capacity and pain and suffering.
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