Stojkoska v Toyota Motor Corporation Australia Ltd
[2021] VCC 712
•21 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE VIA ZOOM COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-00057
| ELIZABETA STOJKOSKA | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via Zoom Technology) | |
DATE OF HEARING: | 2 June 2021 | |
DATE OF JUDGMENT: | 21 June 2021 | |
CASE MAY BE CITED AS: | Stojkoska v Toyota Motor Corporation Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 712 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – Test of “serious injury” – Loss of earning capacity consequences – Injury to cervical spine
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Richter v Driscoll (2016) 51 VR 95
Judgment: Leave granted to the plaintiff to commence a proceeding for both pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr R H Stanley | Patrick Robinson & Co |
| For the Defendant | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) by the plaintiff, Mrs Elizabeta Stojkoska, in which she seeks the leave of the Court to commence a common law proceeding for both pain and suffering and loss of earning capacity damages.
2The plaintiff relies upon injury to the cervical spine and/or to the right shoulder as the “serious injury”. Having said that, there was no real emphasis on the right shoulder during the hearing of the application and the medical evidence would not support a finding of “serious injury” based on the claimed injury to the right shoulder. In light of the manner in which the application was presented, these reasons deal only with the claimed “serious injury” to the cervical spine.
3The relevant legal principles are well known and are not in dispute. There is nothing particularly novel about this application. Indeed, it is really an application that turns on an assessment of the medical evidence and an assessment of the plaintiff’s “with injury” earning capacity. At the outset the defendant, through its counsel Mr Miles, indicated that pain and suffering serious injury was not in dispute.
4Accordingly, in order to establish an entitlement to leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and at least very considerable, as per the narrative test set out in s325(2)(b) and (c) of the WIRC Act.
5Next, upon establishing “very considerable” loss of earning capacity consequences, the plaintiff must then satisfy the statutory formula as contained in s325(2)(e) and (f) and (g) of the WIRC Act; namely, whether or not she has a loss of earning capacity of 40 per cent of gross earnings measured as set out in s325(2)(f) and will permanently have a loss of earning capacity which will be productive of financial loss of 40 per cent or more of her gross earnings as required by s325(2)(e)(ii).
6So as to satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the gross income that the plaintiff was earning or was capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).[1]
[1]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at [70]
7Finally, by way of preliminary matters, the plaintiff put her case on the basis that “after injury” she now has no capacity at all for suitable employment. In response, the defendant submitted there are a range of jobs the plaintiff is capable of performing “after injury”. The plaintiff does not suggest a residual capacity for part-time employment. She accepts that if the Court was to find she had an “after injury” capacity for employment then she would fail to satisfy the statutory formula.
Background of the plaintiff
8The plaintiff’s background and employment history is set out in her first affidavit[2] and is not in dispute. She is a now 45‑year-old married lady with three daughters. She was born in Australia, moved to Macedonia with her parents when she was two years old, then completed her schooling and lived there until her early twenties. In Macedonia she married her husband, and her eldest daughter was born.
[2] Affidavit of plaintiff affirmed 23 September 2019, Plaintiff’s Court Book (“PCB”) page 13
9In 1999, when she was approximately 22 years of age, she and her family moved to Australia where she has lived ever since. She had some formal English education upon returning to Australia. In late 2002, after her second daughter was born, she obtained casual employment at Don Smallgoods in Altona. Then in March 2003, when she was about 27 years of age, she commenced employment for the defendant, Toyota Motor Corporation Australia Ltd, at its vehicle assembly plant in Altona (“the plant”). It was full-time employment on the production line associated with the assembly of Toyota motor cars. She worked there on a permanent full-time basis until the plant closed down in October 2017, when Toyota ceased production of cars in Melbourne.
10The plaintiff was aware from approximately 2015 that the plant was to cease operation and in anticipation of being made redundant, she completed a course as a Driving Instructor and commenced a business known as MKD Driving School. She purchased a Toyota sedan for the business and worked in that business[3] in addition to working full time hours with the defendant. She ceased work as a driving instructor some time shortly before she was made redundant.
[3] There is no direct evidence of hours worked or income from the business
Injury with the defendant
11The plaintiff developed symptoms (pain) in the course of her work in her right elbow/arm in approximately 2007. She had onsite physiotherapy at a clinic at the plant, but otherwise continued working full-time.
12Then in January 2014, the plaintiff developed symptoms in her right side of neck, right shoulder, and right arm/hand while performing repetitive work on the production line at the plant (“the incident”).
13There is no dispute that the plaintiff developed symptoms in her neck, right shoulder, and arm due to the incident or more broadly in the course of her duties with the defendant in early 2014. There is no dispute that she had conservative treatment, including (again) at the defendant’s onsite physiotherapy clinic, and there is no dispute that she was moved onto light duties, and remained on light duties until she was made redundant when the plant closed in October 2017.
14Relevant to the determination as to whether the plaintiff satisfies the test of pecuniary loss serious injury, the issues in the case, as identified by the defendant, are:
(i) the credit of the plaintiff;
(ii) permanency (the pain management issue); and
(iii) her residual or “with injury” earning capacity.
Credit of the plaintiff
15As is often commented in serious injury applications, the credit of the plaintiff will frequently be relevant to a determination of the application, particularly when it comes to making a value judgment as to the “seriousness” of impairment consequences to a plaintiff.
16In this application, the defendant tendered[4] video surveillance of the plaintiff obtained at different times in December 2018 and then in May, June and July 2019. The video surveillance demonstrated the plaintiff on those dates driving a car and attending at supermarkets, where she was able to shop for ordinary grocery items. On those occasions she was accompanied by one or more of her daughters. There was nothing particularly remarkable about the video surveillance, and I agree with the submission put by her counsel that in isolation the video surveillance does not “establish either case”[5] in that it neither proves or disproves that the plaintiff has a “serious injury”. It does not show her undertaking anything that she says she cannot do. She candidly conceded that at no stage in the video was she shown to have any restriction of movement of the neck or right arm.[6]
[4]Exhibit D1
[5] Transcript (“T”) 76
[6] T51, Line (“L”) 32
17In her first affidavit, the plaintiff said that she does try and do what she can around the house. She said “I now only do light housework in short bursts and I only carry light shopping”.[7] In her most recent affidavit[8] she confirmed the contents of her earlier affidavit and said that her neck injury “continues to restrict my ability to perform my housework”.
[7] PCB 16 at paragraph 17
[8] Affirmed 27 May 2021, PCB 19
18The plaintiff’s daughter, Ms Katerina Stojkoska, affirmed an affidavit on 27 May 2021.[9] She had read her mother’s affidavits and confirms the contents of those affidavits as consistent with her own observations of her mother.
[9] PCB 25
19During cross examination the plaintiff gave candid answers to questions asked of her and made appropriate admissions that could be said to be against her interest, such as readily acknowledging she had good computer skills.[10] Against that background and relevantly to the issue in respect to the activities she was seen to undertake in the video surveillance, her oral evidence was that “I never say never – not able to go shopping. I said I’m able to go shopping with my daughters, they always coming with me, they always helping me” and that “yes, I avoid heavy shopping, yes correct”.[11]
[10] T26, L14
[11] T45
20In my opinion the video surveillance does not impact upon the plaintiff’s credit and in fact, if anything, it confirms her evidence that she is still able to engage in light shopping, with her daughters accompanying her to provide assistance as needed.
21The other credit issues that arose during the oral evidence were the receipt by the plaintiff of a Total and Permanent Disability payment (“TPD”) and the timing of her return to her treating neurosurgeon, Mr Patrick Lo, at around the time she was due to be made redundant.
22Dealing first with the TPD payment, during cross examination it emerged that the plaintiff had received a redundancy package of about $90,000 and a TPD payout of about $310,000.[12] It was put to her that:
Q:“Yes. And to get that super payout you had to persuade them that you, that is, you had to persuade the insurer that you – there was no job you could do, correct?---
A:Correct.
Q:So, it would’ve been contrary to your interest to continue working as a driving instructor where you only earnt small money compared to the $310,000 you got by persuading the insurer you were totally and permanently disabled, correct?---
A:Correct.”[13]
[12] T25
[13]T26, L1-8
23There is no evidence as to when the plaintiff received the TPD payment. There is no evidence of how that claim was accepted, or what the evidence was, if any, provided by the plaintiff in support of such a claim.
24In closing submissions, counsel for the defendant said as follows:
“MR MILES:
Credit and/or motivation. Because she gave up her driving school job at about the same time, she changed solicitors at about the same time. Shortly afterwards she got a redundancy package of $90,000; now, admittedly that would not have interfered with her work capabilities, but she also got a TPD, Total and Permanent Disablement, of 310,000, and you just can’t get one of those by saying, ‘I’m working but I feel quite unwell.’ You’ve got to cease work and present yourself as incapable of work.
HIS HONOUR:
I understand all that, but it’s a fairly significant finding for me to make based on a submission. I’ll need you to take me to the evidence that you say supports a credit or a motivation, adverse motivation finding.
MR MILES:
The only credit material would be the fact of the video surveillance and Your Honour will make your own mind up about that. And the chronological fact of the plaintiff being discharged from Dr Lo’s treatment to only re-present just before the plant closed.”[14]
[14]T61, L15-T62, L3
25The submission on behalf of the defendant is effectively that the video surveillance demonstrates the plaintiff to be fit for work, but that she has portrayed herself as unfit for work in order to receive a TPD payment. That is almost inviting a finding that the plaintiff has received a TPD payment that she is not entitled to, or has (effectively fraudulently) portrayed herself as unable to work so as to receive the TPD payment. That is not a conclusion I am prepared to make. Firstly, there is no evidence in support of such a conclusion, bearing in mind the conclusion I have formed about the video surveillance and generally about the credit of the plaintiff. Secondly, it would involve what I would consider to be a quantum leap based on such limited cross-examination and in the absence of any other evidence, to draw any conclusion other than that the plaintiff applied for a TPD payment and was successful in achieving it. In short, I consider the fact a TPD payment was made to the plaintiff to be irrelevant and does not impact on her credit. I agree with the submission made by her counsel that the fact the plaintiff has received a TPD payment is part of the evidence and capable of an inference that the defendant, or an insurer acting on its behalf, considered her to meet a TPD test, but again, in the absence of any real meaningful evidence about it, I do not take that matter further.
26Dealing next with the re-referal back to Mr Lo in September 2017, again, I do not consider that to be a credit issue. I reject the defendant’s submission that there was something improper about the fact that the plaintiff was discharged from the care of Mr Lo in June 2015, only to return to see him in September 2017, shortly before the plant was due to close. For convenience, I will explain why I do not consider this to be a credit issue when dealing with the evidence from Mr Lo.
Pain management – is the condition permanent?
27Before dealing with the medical evidence, it is convenient to deal with the issue of permanency. This issue arises because the plaintiff has now been referred to Dr Clayton Thomas, pain management expert at Dorset Rehabilitation, and is to undertake a pain management program. In cross-examination, the plaintiff confirmed that she is going to undertake a pain management program with Dr Thomas. It was put to her that she hopes to improve her physical problems by attending a course and she agreed.[15] It was further put to her that by undertaking the pain management course she hopes to improve her physical capabilities and again she agreed.[16]
[15]T43, L6
[16]T43, L23
28There is no evidence from Dr Thomas. There is no direct evidence as to the nature of the pain management program that he is going to provide to the plaintiff.
29The plaintiff’s long-term treating general practitioner is Dr Mebratu Hagos at the Deer Park Central Medical Clinic. He does not specifically discuss the referral to Dr Thomas, but in a report dated 17 March 2021, he says that the plaintiff:
“…is undergoing physiotherapy and she will need hydrotherapy along with physiotherapy. This treatment is long term so as to avoid multi-medication and to avoid stiffness and to ease her pain and suffering.
The prognosis is not good for Mrs Stojkoska … .”[17]
[17]PCB 48
30Mr Lo deals with the issue of pain management in his reports. He records that she was: “eventually sent to Dorset rehabilitation centre on 17 December 2019”.[18] Then in his recent report of 11 May 2021, he confirms referral to Dr Thomas and when he (Mr Lo) last reviewed the plaintiff on 19 March 2021, she was about to commence on a course of pain management. In the course answering questions about treatment, prognosis and the long-term effect of injury, Mr Lo said as follows:
“Treatment;
She has undergone pain management and physical therapy and we will now formally undergo a multi-disciplinary pain management approach. If this fails, then surgical intervention by way of a multi-level anterior discectomy and fusion may be necessary to restore the lost disc height as well as alleviate the compression upon the exiting nerve roots.
[18]PCB 52
Prognosis;
The prognosis remains poor. It has been approximately 6 years since her injury, and she has had no improvement. She is likely to suffer from ongoing pain. The aim of any treatment, however, is to prevent worsening especially in terms of her neurological functions. The prognosis for her neurological function at present, remains good but failure to undergo appropriate therapies may result in further deterioration, in my opinion.
The long-term effect (which means for the foreseeable future) of each physical injury separately, as a result of employment, upon our client’s everyday activities, enjoyment of life, capacity to perform and if so what type of work (fulltime-part-time), leaving aside any other physical condition and stripped of any psychological condition;
Irrespective of whether Elizabeta Stojkoska undergoes successful pain management or even surgical intervention, it is likely that, with such cervical injuries, her condition will deteriorate and degenerate in time. As such, this may pose a barrier to fulfilling her capacity to perform everyday activities, enjoyment of life, capacity to perform any work, in my opinion and on balance. That is, in my opinion, she has suffered a permanent neck injury.”[19]
[19]PCB 56
31Mr Lo then said, by way of conclusion that:
“Generally, Elizabeta Stojkoska will likely need ongoing pain management irrespective of how successful her therapies are. With her educational background, her age and experience, it is unlikely that she will ever return to the workforce in any meaningful manner, in my opinion.”[20]
[20]PCB 56
32As can be seen, Mr Lo’s opinion is that the plaintiff needs pain management, but irrespective of how successful that is, or irrespective of how successful future surgery might be, she will never return to the workforce in a meaningful manner. His opinion, therefore, indicates that the plaintiff’s condition is stable, regardless of pain management, and in that sense, it is permanent and not likely to improve in the foreseeable future.
33The other treating medical practitioner to deal with pain management is Dr Symon McCallum, a practising anaesthetist and pain specialist. In a report dated 8 June 2020,[21] he indicated his opinion that she was a candidate to be assessed for a multidisciplinary pain rehabilitation program. He discussed the nature of a multidisciplinary pain rehabilitation program and that it does not involve “hands-on treatment”.[22] In that report he describes the prognosis as guarded. His opinion, taken in context, is clearly that a pain management program is designed to do what it says, that is, assist the plaintiff to manage her pain, but is not a hands-on program intended to treat the underlying condition. In that sense, his opinion supports a conclusion that the plaintiff’s condition is permanent and not likely to change in the foreseeable future.
[21]PCB 59
[22]PCB 61
34The evidence from the treating practitioners supports the conclusion which I have come to, namely that the plaintiff’s condition is permanent and unlikely to change in the foreseeable future – bearing in mind the issue for determination is “after injury earnings” - regardless of the outcome from pain management.
Work capacity – the evidence in medical reports
35As mentioned, Dr Hagos is the plaintiff’s longstanding general practitioner. By letter dated 15 October 2014, he reported that the plaintiff had been complaining of right shoulder, arm and forearm pain for the last nine to ten months. He said that she had been sent for an MRI scan and:
“NOW WE KNOW THE PAIN IS COMING FROM THE NECK; LIKE C6 NERVE ROOT COMPRESSION .”[23]
[23]PCB 41
36He repeats that opinion in a letter dated 10 July 2017.[24] Then, in a more comprehensive report dated 24 February 2020, he discusses the treatment provided to that date. Relevantly, in respect to work capacity, Dr Hagos then said:
“This is a chronic type of medical condition and will not get better. Based on this, the prognosis is not good. Mrs. Stojkoska is completely not working as a result of her conditions.
Mrs. Stojkoska is undergoing physiotherapy and she will need hydrotherapy along with physiotherapy. This treatment is long term so as to avoid multi-medication and to avoid stiffness and to ease her pain and suffering.
…
The prognosis is not good for Mrs Stojkoska. She is suffering from physical, mental and social issues. Based on these conditions her prognosis is not favourable.”[25]
[24]PCB 43
[25]PCB 46
37Next, Dr Hagos provided a further comprehensive report dated 17 March 2021.[26] That report essentially confirms his earlier opinion. Again, relevant to capacity for work he said:
“Capacity for Work employment / Disability
This is a chronic type of medical condition and will not get better. Based on this, the prognosis is not good. Mrs. Stojkoska is not working as a result of her medical conditions.
Mrs. Stojkoska is undergoing physiotherapy and she will need hydrotherapy along with physiotherapy. This treatment is long term so as to avoid multi-medication and to avoid stiffness and to ease her pain and suffering.
[26]PCB 47
Prognosis
The prognosis is not good for Mrs Stojkoska. She is suffering from physical, mental and social issues. Based on these conditions her prognosis is not favourable.”[27]
[27]PCB 48
38Next are the opinions in the reports from Mr Lo. In a report dated 5 March 2020,[28] he records his first attendance on the plaintiff on 7 November 2014. He discusses that the initial MRI scan revealed a focal C5-6 disc prolapse towards the right side causing nerve compression. He said that “by 23 June 2015, she had reached some semblance of stability and was discharged from further regular follow-up”.[29]
[28]PCB 51
[29]PCB 51
39Dr Lo then records that:
“Unfortunately, on or around 20 September 2017, Elizabeta Stojkoska came back for another assessment as a re-referral. She had persistent neck and right arm pain and underwent a repeat MRI scan that showed persistent prominence of the C5/6 disc prolapse towards the right side.”[30]
[30]PCB 52
40Interrupting the discussion of Mr Lo’s reporting, it is convenient to set out the plaintiff’s oral evidence regarding the re-referral to Mr Lo, particularly given that it was raised as a credit issue. The plaintiff was asked about her decision to see Mr Lo just before the Toyota plant closed. She said: “Because the pain was increasing a lot, and I went to see my GP, Dr Mebratu Hagos, and he advised me to go and see Dr Patrick Lo”.[31]
[31]T22, L29-T23, L1
41It was then put to her that:
Q:“I suggest to you that you went back to Mr Lo because you’d made a conscious decision to pursue litigation, court proceedings, because the Toyota plant was closing. Do you agree with that or not?---
A:No.”[32]
[32]T23, L2-5
42I accept the plaintiff’s evidence that she returned firstly to her general practitioner because of increasing symptoms and that Dr Hagos then arranged the referral back to Mr Lo. I do not accept the submission that the plaintiff arranged the re-referral to Mr Lo because she was contemplating litigation. There is no direct evidence in support of that submission. It also ignores the fact that it was Dr Hagos who arranged the referral back to Mr Lo, not the plaintiff. In addition, I accept the plaintiff’s evidence in re-examination as follows:
Q:“And by the November 2017, sorry, by the time you went back to see Mr Lo the second occasion in September of 2017, what was the situation then as far as your neck and arm pain?---
A:After finish that hydrotherapy, physiotherapy slowly was going back on normal duty, I was working four hours per day for a couple of weeks and then again, and after I went – I was doing again physiotherapy, hydrotherapy, and then when Toyota stop the physiotherapy until 2017 October, I was doing physiotherapy in Toyota, so I can pay for my – my – my jobs, I can walk, I was doing physiotherapy in Toyota.
Q:Right, and were you doing that physiotherapy during your work hours?---
A:Yes, I did.
Q: Right, was your neck and/or arm getting better during - - -?---
A: No.
Q: - - - 2016, 2017?---
A:No, there wasn’t any better, but to have (indistinct) just some relief was physiotherapy.”[33]
[33]T53, L6-22
43The evidence is that the plaintiff was performing modified duties with the defendant, which was being managed by physiotherapy provided onsite at the plant. At a time when that treatment was to cease because of the closure of the plant and her pending redundancy, she returned to her treating general practitioner and was re‑referred to Mr Lo. I fail to see how there is anything inappropriate about that.
44Returning to the treatment with Mr Lo, he reviewed the plaintiff several times through 2018, 2019 and in his report dated 5 March 2020 he sets out that at each review, she exhibited severe pain in her neck, right arm and features of a cervical radiculopathy. Treatment options discussed by him were a nerve sheath injection and a referral to Professor Peter Teddy for pain management.[34]
[34] PCB 52
45Mr Lo has continued to treat the plaintiff. In his most recent report dated 11 May 2021 he summarises his earlier opinions and conclusions and notes he last attended the plaintiff on 19 March 2021.[35] He says in that report – in addition to his comments set out at paragraphs 30 and 31 of these reasons – that:
“1. Nature and extent of any injuries from which our client suffers as a result of her employment;
In the course of employment, as stated previously, | am of the opinion that Elizabeta Stojkoska suffered a neck injury resulting in disc prolapse and osteophyte formation affecting the left more than the right side and maximally at the C5/6 and C6/7 levels. She has features suggestive of left C6 and left C7 radiculopathy. She has undergone basic pain management and will now be undergoing a multi-disciplinary pain management program.
[35] PCB 55
2. Whether the injuries are consistent with the stated cause;
In my opinion and on balance, the repetitive nature of assembly line work and having to be in a cramped position performing strenuous tasks, is likely to have resulted in the neck injury as outlined. Although there may be some minor degenerative underlying changes, the activities, in and of itself, is likely to have either caused or exacerbated/accelerated/aggravated such underlying degenerative spinal conditions.”[36]
[36] PCB 57 and 58
46Pausing, relevant to the issue in dispute in this application, both Dr Hagos and Mr Lo conclude in their reports that the plaintiff has a permanent, work related neck injury, and is now unfit for work.
47Next, and as already mentioned, Dr McCallum, anaesthetist and pain specialist, has treated the plaintiff. He first saw her on 3 February 2020 at the referral of Mr Lo.[37] In his report of 8 June 2020 he discusses an MRI from January 2019 as demonstrating facet joint arthropathy “worse in the left upper neck than the right”. He says further that the scan from July 2019 “shows facet joint arthropathy again worse in the upper left area and giving no cause for the right arm pain”. When he examined the plaintiff at that time she was tender to palpation in the right mid to upper neck. He said that she “has got right-sided neck pain. She has headaches, which will be cervicogenic. She has right-sided arm pain. It may be neuropathic.”[38]
[37]PCB 59
[38]PCB 61
48Dr McCallum last saw the plaintiff on 20 March 2020. In his report he describes that “I believe her disability is going to be quite great.”[39]
[39]PCB 62
49The plaintiff was seen for medico-legal purposes by Mr Ash Chehata, orthopaedic surgeon. He examined the plaintiff on 28 April 2020 and provided a report dated 1 May 2020.[40] In that report he states that “My impression is that she has had an aggravation whilst working in a repetitive fashion of underlying arthritic change in her cervical spine”, and that “The ongoing degenerative change in her neck has meant that she is unable to perform her normal independent activities of daily living”, and that “Clearly her ability to regularly lift, bend or repetitively use her arms has been impaired as a result of the degenerative changes in her cervical spine. ... Her prognosis, at best, is guarded.”[41]
[40]PCB 63
[41]PCB 68
50Turning next to the medico-legal reports relied upon by the defendant, the first in time is a report from Dr Roy Karna, rheumatologist. He examined the plaintiff on 29 October 2014 and provided a report dated 5 November 2014. That is obviously well out of date. In that report he describes the MRI scan finding as showing a discrete disc lesion to the right and that “quite clearly she has cervical discogenic pain with referred pain to the right upper limb and early signs of radiculopathy.”[42] At that time he opined the plaintiff needed to remain on her modified duties pending further treatment with her neurosurgeon.[43]
[42]Defendant’s Court Book (“DCB”) 7
[43]DCB 8
51Notwithstanding that Dr Karna had not seen the plaintiff since 29 October 2014, by letter dated 24 December 2019 the solicitors for the defendant requested a supplementary report from him. In a supplementary report dated 15 January 2020, he comments on a report from Dr Graeme Brazenor dated December 2019 (which report I shall come to in due course). Having reviewed Dr Brazenor’s report, Dr Karna states the obvious: namely, that he had not reviewed the plaintiff recently and did not know what her present complaints are, but that based on Dr Brazenor’s report she continued to have some element of neck and right arm pain, but without clinical features of radiculopathy, and that “her neck pain at the very least, would in my opinion still be materially contributed to by the original work injury”.[44]
[44]DCB 12
52Dr Karna was then asked to provide a further supplementary report. By further supplementary report dated 12 March 2020 he was asked questions regarding treatment and he made comments about the pain management program suggested by Dr McCallum. He then made comments as to the appropriateness of such a program based on the reports from Dr Brazenor, but obviously limited by the fact that he had not seen the plaintiff for over six years. I do not find that report to be of much assistance, in so far as it is really just a commentary by Dr Karna upon commentary from Dr Brazenor and, in any event, it is just about the reasonableness of ongoing treatment, and does not assist for the resolution of the real issue in this application.
53That brings me to the reports from Dr Graeme Brazenor, neurosurgeon. He examined the plaintiff and provided a report dated 18 December 2019.[45] Mr Tobin, on behalf of the plaintiff, submitted that the language used by Dr Brazenor in his reporting indicates that he has adopted the role of an advocate for the defendant, as opposed to an independent expert.[46] However, bearing in mind that this is a gateway provision, the doctors were not required for cross-examination, and of course there is no jury, I do not propose to deal with Mr Tobin’s commentary regarding Dr Brazenor. Instead I will confine myself to the facts of his report and opinions. The first fact is that Dr Brazenor has examined the plaintiff on one occasion only, in December 2019. In his report he notes the radiology proved a right-sided C5/6 disc protrusion “very likely sustained in January 2014”, and that he had formed the view that “this right-sided C5/6 disc protrusion was due or contributed to by the heavy manual nature of the work that Mrs Stojkoska was doing on the line at Toyota at that time.”[47]
[45]DCB 15
[46]T76, L19
[47]DCB 27
54However, Dr Brazenor goes on to state that:
“[S]ince then the radiological evidence is incontrovertibly that the disc protrusion has healed, and there is now no significant foraminal or canal stenosis on the right side at any level ... Further, her right shoulder joint is normal ...”
55He then goes on to say that:
“There is now no contribution of Mrs Stojkoska’s employment by Toyota causing any symptom whatsoever.”
56And that:
“[S]he could return to the restricted duties that she was doing on the line up until the line closed in October 2017. I would recommend that she not go back to the very vigorous duties of steering column or heater unit fitting, in case she reawakens her injury.”[48]
[48]DCB 28
57Dr Brazenor then provided a further report dated 7 February 2020, in which he was asked to comment upon a vocational assessment and labour market analysis by CoWork dated 15 January 2020.[49] In that report he stated that the plaintiff could return to work immediately and full-time in any of the occupations identified by CoWork.
[49]DCB 40
58Next, Dr Brazenor provided a further report dated 13 February 2020, commenting upon an enclosed document from Dr Richard Sullivan, anaesthetist and pain physician. I do not know what document Dr Brazenor is commenting upon. Perhaps he meant to refer to Dr McCallum? In any event, his comment about Dr Sullivan now listing himself as “Precision Ascend Program Director” is an unusual comment, and does border on a veiled insult towards Dr Sullivan. In any event, Dr Brazenor comments in this further report that the proposal of pain management “firstly flies in the face of clear evidence of no significant ongoing injury”.[50]
[50]DCB 49
59Dr Brazenor then provided a further report dated 23 November 2020, having been provided with the video surveillance. Having seen the surveillance, he states that his previous conclusions were unchanged.[51]
[51]DCB 57
60Next is another report from Dr Brazenor dated 22 December 2020, commenting upon more video surveillance. Dr Brazenor takes the opportunity in that report to record the notes made from the further video surveillance and says that:
“Considering all of these video clips, I am considerably strengthened in my conclusions as declared to you in my report of 18 December 2019.”
61And he otherwise confirmed his earlier advice that suitable employment options included mystery shopper, driving instructor, receptionist, and respite carer.[52]
[52]DCB 61
62Dr Brazenor was then provided with a report of Recovre dated 11 January 2021 and seemingly asked to comment upon suitable employment options of packer, production clerk, pharmacy sales assistant, and sales assistant in general. In a report dated 7 February 2021, he opines that the plaintiff could undertake all of those jobs full-time to retirement age.[53]
[53]DCB 62
63The defendant places considerable reliance on the opinions of Dr Brazenor to the effect that the plaintiff’s right-sided symptoms cannot be explained on the basis of the up-to-date radiology, and that his thesis is correct: namely, that the work-related disc injury has healed and no longer contributes to the plaintiff’s symptoms. I shall return to deal with this submission in due course.
64But first it is convenient to complete a summary of the medical evidence. The next medico-legal report is from Dr Joseph Slesenger, a specialist occupational physician. He examined the plaintiff on 29 November 2019 and produced a report dated 2 January 2020.[54] In that report he comments on medical reports and radiology provided to him. He says that he was satisfied that the plaintiff “sustained a cervical spine soft tissue injury, aggravating a degenerative disease of the cervical spine presenting with residual neck pain and radiating symptoms (but no confirmed evidence of radiculopathy).”[55] He described the prognosis as guarded, and that she would benefit from seeing a pain specialist. He advised against a return to pre-injury duties based on the cervical spine impairment alone. He ultimately opined that the plaintiff retained a capacity for work with restrictions, namely:
“●Avoid push, pull, carry or lift over 5 kg on a repetitive basis and 7.5 kg on an occasional basis.
●Avoid sustained forward reaching.
●Avoid over shoulder reaching.
[54]DCB 63
[55]DCB 75
I am of the opinion that she could return to work performing suitable managerial duties including administration and clerical tasks.
I recommend that she initially returns to work 4 hours a day, 4 days a week, graduating back to pre-injury hours over the course of 6 to 8 weeks.”[56]
[56]DCB 76−77
65Dr Slesenger then provided a supplementary report dated 6 January 2020, in which he was provided with the report of Dr Brazenor dated 18 December 2019.[57] Dr Slesenger, having reviewed Dr Brazenor’s report, stated that he was “satisfied that Mrs Stojkoska has a residual cervical spinal impairment related to the injury under consideration”.[58]
[57]DCB 78
[58]DCB 80
66Dr Slesenger then provided a further supplementary report of 7 February 2020[59] in which he was asked to comment upon the CoWork report. He ultimately approved a return to work as either a mystery shopper, driving instructor, or receptionist, but stated that he had reservations about the job as a personal carer/respite carer.[60]
[59]DCB 81
[60]DCB 84
67Dr Slesenger then provided another report dated 26 March 2020, also commenting on correspondence from Dr Sullivan dated 4 February 2020.[61] Dr Slesenger then joins a discussion about the type of pain management program recommended, apparently by Dr Sullivan, as opposed to the type of pain management program he considered appropriate. As such, his supplementary report does not appear particularly relevant. He then provided another report dated 19 May 2020, asking him to review a pain management assessment request from Dorset Rehabilitation Centre.[62] He again makes comments upon the type of program proposed by Dorset Rehabilitation Centre.
[61]DCB 86
[62]DCB 89
68Next, Dr Slesenger provided a further report dated 19 January 2021 asking him to comment on a report by Recovre of 11 January 2021.[63] In that report he states that the plaintiff could return to work as a packer, production clerk and pharmacy sales assistant.
[63]DCB 92
69The plaintiff was seen by Dr Dominic Yong, specialist occupational physician, at the request of the defendant. He produced a report dated 19 October 2017 after assessing the plaintiff.[64] In that report, Dr Yong concludes that the plaintiff had cervical spine dysfunction with radicular features after a discal injury of her cervical spine.[65] He then stated the plaintiff had a current capacity to perform tasks with restrictions, directed to the tasks that the plaintiff was performing with the defendant before her redundancy.
[64]DCB 99
[65]DCB 104
70Dr Yong then provided a further report dated 29 July 2019[66] after he was provided with various documents and asked to reassess the plaintiff. In that report, he repeats his early diagnosis of cervical spine dysfunction with radicular features and that his opinion regarding causation remained unchanged.[67] He then went on to opine that the plaintiff had a current capacity to perform work tasks with various restrictions. He was also asked to comment upon some of the jobs already discussed, being those in the IPAR report.
[66]DCB 109
[67]DCB 114
71Next, Dr Yong provided what was described as a second supplementary report dated 24 December 2019, after he was provided with Dr Brazenor’s report of 18 December 2019.[68] In what is becoming something of a recurring theme on behalf of the defendant, he was then effectively asked to reconsider his earlier opinions in light of the report from Dr Brazenor. He notes he was provided with Dr Brazenor’s report and the comment that the disc protrusion had healed. Notwithstanding the opinion of Dr Brazenor, he said:
“As described in my summary, I do note the initial onset of a discal injury with the persistent cervical spine dysfunction with radicular features. I note the nature of this condition and the clinical course. I note that the symptoms have not remitted despite a range of treatment.
Thus, this explains why the employment continues to contribute to her condition.”[69]
[68]DCB 121
[69]DCB 123
72Dr Yong then produced a third supplementary medical report dated 13 January 2021, after he was provided with the Recovre report.[70] He expresses an opinion regarding jobs as a packer, production clerk and pharmacy assistant. He rules out the job as a packer because it would not comply with recommended restrictions. He approved the role of production clerk, provided there was an initial graduated return to work. He approved the role as a pharmacy assistant.[71]
[70]DCB 125
[71]DCB 132
73Mr Michael Dooley, orthopaedic surgeon, provided a report dated 16 August 2016. That report is obviously out of date. For what it is worth, he noted that the plaintiff’s neck and right shoulder symptoms more likely related to “aggravation of underlying degenerative disc disease of the cervical spine and a likely right sided C5/6 disc prolapse”.[72]
[72]DCB 136
74Mr Dooley was then provided with Dr Brazenor’s report of 18 December 2019 and asked for comment. In a report dated 10 January 2020 he stated the obvious, namely that he had not seen the plaintiff for nearly three and a half years. He stated that following a cervical disc prolapse/aggravation of underlying cervical degeneration, he would expect a patient to note some intermittent pain. He noted Dr Brazenor’s reference to an inconsistency between radiological investigations and clinical symptoms. He concludes by saying that he would expect the plaintiff to still note some intermittent pain and this pain would be consequent upon the injury of 2014.[73]
[73]DCB 138
Analysis of medical evidence
75I have set out in detail the medical reports relied on given the manner in which this application proceeded. The “battleground” is really between the opinions of Dr Brazenor, namely that the plaintiff had a C5-6 work-related disc prolapse that has subsequently healed and is not a contributor to the plaintiff’s current symptoms, versus the many other doctors referred to who accept that the plaintiff has aggravated cervical degeneration – which of itself might explain ongoing pain – as well as suffering a C5-6 disc prolapse with the development of radicular (as opposed to radiculopathy) symptoms. On any view, Dr Brazenor is on his own as to the opinion he expresses and despite drip feeding his opinions to various doctors, such as Dr Slesenger and Dr Yong, they remain supportive of the plaintiff on the question of “causation”. Further, Dr Brazenor has not seen the plaintiff since December 2019. Obviously he is unaware of the up-to-date opinions of Dr Hagos and Mr Lo. Dr Hagos and Mr Lo have some advantage in that they have treated the plaintiff over many years, and their assessments are not limited to a one-time medico-legal assessment. The whole of the medical evidence supports a conclusion that in the course of her employment with the defendant in January 2014, the plaintiff aggravated degenerative change in the cervical spine, with a C5-6 disc prolapse and radicular symptoms into the right arm. The whole of the evidence implicates that work-related injury as the continuing cause for the plaintiff’s symptoms, whether or not the C5-6 disc has “healed”, noting that Dr Brazenor is the only practitioner to independently express such a view.
Does the Plaintiff have a capacity for work?
76For the lengthy reasons set out, I prefer the medical opinions that ascribe an ongoing work-related cause for the plaintiff’s ongoing complaints of pain both in her neck and right arm.
77As already mentioned, her treating general practitioner and treating neurosurgeon both opine that she has no residual capacity for work. They are compelling opinions from treating doctors.
78The medico-legal opinions from Dr Yong and Dr Slesenger, as commissioned on behalf of the defendant, place ongoing restrictions on any employment that the plaintiff could undertake. There is no serious suggestion that she could return to full and unrestricted manual duties such as she was performing with the defendant and as such that is a “very considerable” consequence.
79The next issue is whether or not she has made out the requisite loss of 40 per cent or more as per the statutory formula.
80Obviously If I accept the opinions from Dr Hagos and Mr Lo, consistent with how her case was put, namely that she has no residual work capacity, then she has satisfied the statutory formula.
81I do accept the opinions from Dr Hagos and Mr Lo. They are thorough, based on a long-term therapeutic relationship with the plaintiff and are compelling, particularly in the context of the other medical opinions I have referred to, with the exception of Dr Brazenor. I conclude that the plaintiff has no residual capacity for employment. I am fortified in that conclusion by the opinions of Dr Yong and Dr Slesenger that place considerable restriction on any return to work. Dr Yong considers some jobs as identified by the defendant to be appropriate and some not to be. Dr Slesenger also considers some jobs to be appropriate and some not to be. That demonstrates the variable nature of medical opinions in respect to residual work capacity, but highlights that, in a gateway provision, a common sense approach needs to be taken. I also note the opinions of Dr McCallum and Mr Chehata, to the effect that the plaintiff’s prognosis is guarded and she has no current work capacity.
82I also accept the plaintiff’s oral evidence about work capacity. She candidly agreed that the various jobs identified in the vocational assessments – that is the reporting from CoWork dated 15 January 2020[74] and from Recovre dated 11 January 2021[75] ꟷ as jobs that were intellectually within her capacity, or that she had the intellectual ability to be trained in those jobs as identified. The real issue in the case is whether the plaintiff has the “after injury earning capacity” for suitable employment, including any of the jobs identified by the defendant. I accept her evidence that working as a driving instructor aggravated her symptoms and would be no longer suitable for her.[76] I accept her evidence that while she might in isolation be able to perform aspects, or even all aspects, of the jobs identified, the difficulty for her is that she would get increasing pain, such that effectively those jobs are not suitable for her.[77]
[74]DCB 152
[75]DCB 195
[76]T53, L31
[77]Plaintiff’s evidence in re-examination, in particular T54-56.
83The plaintiff may have the physical capacity to perform an aspect of suitable employment at a given time on a particular day, but of course that does not equate to a reliable capacity to undertake “suitable employment”.[78] Bearing in mind that the defendant accepts that the plaintiff has “very considerable” pain and suffering consequences with commensurate restrictions for day-to-day activity, which translate into similar restrictions for employment activities, the whole of the evidence leads me to conclude that the plaintiff has no “after injury” work capacity. As such, she satisfies the statutory formula.
[78]Richter v Driscoll (2016) 51 VR 95
84Accordingly, leave shall be granted to the plaintiff to commence a proceeding for both pain and suffering and loss of earning capacity damages.
85I shall hear from the parties as to the question of costs.
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