Topkaya v Victorian WorkCover Authority
[2020] VCC 605
•20 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03038
| BELGIN TOPKAYA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2020 | |
DATE OF JUDGMENT: | 20 May 2020 | |
CASE MAY BE CITED AS: | Topkaya v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 605 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Loss of earnings – right shoulder injury – consequent left shoulder injury - whether total incapacity for work – psychiatric injury – whether psychiatric injury permanent and severe
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325(g)
Cases Cited:Lexa v Transport Accident Commission [2019] VSCA 123; Tavendale v VCC [2009] VCC 642; Elmas v VWA [2018] VCC 735; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ristevski v Demos Property Services (Australia) Pty Ltd & Anor [2010] VCC 169; Elias-Mikrey v The Royal Melbourne Hospital [2013] VCC 1860
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M S Cameron | Zaparas Lawyers |
| For the Defendant | B V Bourke | Hall & Wilcox |
HIS HONOUR:
1 Belgin Topkaya was born in 1967 in Turkey. She came to Australia at the age of ten. She left school in Year 8. Since that time Ms Topkaya has worked mainly in manual jobs. She was employed by Costco as a cake decorator in a commercial kitchen from about 2011. She suffered injury while employed at Costco. Her injuries occurred throughout the course of her employment, in the period 2011 to 2014.[1] They specifically arose as a result of pulling a heavy trolley in or about September 2013.
[1]Plaintiff’s Court Book (“PCB”) 1, affidavit of the plaintiff, at paragraph [3]
2 The injuries she sustained are alleged to be primarily to the right shoulder, consequently to her left shoulder, and also a psychiatric injury.
3 Her claim before this Court is that the injury to her right shoulder comprises a serious injury for the purposes of paragraph (a) of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“WIRCA”). It is submitted the right shoulder injury has both pain and suffering consequences and loss of earning consequences which should be considered serious.
4 It is further submitted that the psychiatric injury satisfies the test of causing consequences which could be considered severe and that the loss of earnings capacity consequences meet the relevant statutory test of having caused a loss of earning capacity of more than 40 per cent.
5 At the commencement of the matter, a number of issues were agreed. The defendant conceded that the right shoulder injury pain and suffering consequences met the definition of being a serious injury. This left the issue of whether the right shoulder injury has loss of earnings capacity consequences which have resulted in a loss of 40 per cent or more. As part of that analysis, the parties were at odds as to whether Ms Topkaya had a capacity to work as a despatch worker, menu monitor, receptionist, or an ability to retrain to work as an interpreter.
6 Ms Topkaya’s counsel, Ms Cameron, put her case as “all or nothing”. She argued Ms Topkaya had no capacity for these identified jobs and no ability to retrain as an interpreter.
7 The next area of dispute arose over Ms Topkaya’s claim in respect of her psychiatric injury. Almost uniformly, this was diagnosed as an organically-based compensable adjustment disorder with depression.[2] The question for decision is, do the consequences of that condition rise to the level required to be considered severe? Associated with that was the issue of whether that identified psychiatric injury has caused a loss of earning capacity of 40 per cent or more.[3]
[2]DCB 74. See also, PCB 101
[3]Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323 at paragraph [5]
The Right Shoulder Injury
8 Even though the parties agree that the right shoulder injury gave rise to pain and suffering consequences which could be considered serious, something must be said about the injury to illuminate the real ground of dispute, being the loss of earning capacity.
9 The right shoulder injury was sustained throughout the course of employment and particularly in an incident in September 2013. At the time, Ms Topkaya was pulling a heavily-laden trolley.[4] She continued working for several weeks after the incident. She saw her long-term treating doctor, Dr Hakan Baglar, on 3 October 2013.[5] He referred her for ultrasound.[6] This showed a right-sided partial thickness tear of the supraspinatus tendon of the rotator cuff and a bursal effusion. She kept working her normal duties.[7]
[4]PCB 4
[5]PCB 28
[6]PCB 5 at paragraph [17]
[7]PCB 5 at paragraph [18]
10 In about February 2014, Dr Baglar referred her for ultrasound again. It was consistent with the earlier finding. She had an ultrasound-guided steroid injection into the right shoulder.[8] It is to be noted that at this stage there was no complaint of left shoulder problems, or investigation for them. This is important, because an injured worker may not aggregate bilateral shoulder injuries to allege impairment of a body function.[9] Each separate shoulder injury gives rise to an impairment to a different body function. This, however, is to be contrasted with the position where, as a result of a symptomatic right shoulder injury, in consequence, the left shoulder itself becomes symptomatic.[10] Here, Ms Topkaya claimed that her right shoulder injury and subsequent treatment meant that she came to overuse or rely too heavily on the left shoulder, such that it became injured. This appears borne out by the evidence I shall now come to.
[8]PCB 97
[9]Lexa v Transport Accident Commission [2019] VSCA 123 at paragraph [48]
[10]See Tavendale v VCC [2009] VCC 642 at paragraph [19] as approved in Lexa at [paragraph [49].
11 After the ultrasound-guided injection failed to provide much relief, Ms Topkaya informed her employer and was placed on modified duties work but remained on full-time hours.[11] By June 2014, she began complaining of left shoulder pain. The emergence of left shoulder symptoms at this point in the chronological unfolding of her injuries strongly suggests problems arose because of over reliance on the left side, a consequence of the problems derived from the right side. She continued working, however her situation was not improving and she was referred to orthopaedic specialist, Mr Richard Dallalana, who she saw on 23 February 2015.[12] He considered an MRI scan[13] to show “chronic bursitis, bicep inflammation and tendinosis of the rotator cuff”. He recommended surgery. While contemplating this option, Ms Topkaya had a further cortisone injection to her right shoulder on 7 May 2015.[14] It provided short-term relief only. She continued working. As a result of her ongoing condition, she underwent surgery on 12 November 2015 to her right shoulder.[15] That surgery involved decompression and acromioplasty, resection of ligament and bursectomy. An AC joint resection was also performed.
[11]Defendant’s Court Book (“DCB”) 7; PCB 6
[12]PCB 46
[13]PCB 110
[14]PCB 113
[15]PCB 114
12 She then began rehabilitation and within three months, Ms Topkaya returned to work, starting part time on modified duties.[16] It then became apparent her left shoulder pain was worsening and she had an ultrasound on 21 January 2016.[17] The timing of this is significant. It occurs after surgery and a period of immobility of the right shoulder. Her modified duties were also light and unlikely to be a strain to the left shoulder. The surgery and immobility necessitated greater reliance on the left shoulder for a considerable period. It supports a finding that the left shoulder injury was consequent on an over reliance on it during the time Ms Topkaya was troubled by the right shoulder problems and embarked on surgery, then rehabilitation for her left shoulder.
[16]PCB 6 at paragraph [26]
[17]PCB 115
13 While the right shoulder surgery did provide some relief, it did not allow a return to work on full duties.[18] Rather, what developed was an adhesive capsulitis.[19] To deal with this, Dr Baglar referred Ms Topkaya to Mr Christopher Pullen, orthopaedic surgeon, who arranged a hydrodilatation[20] on 6 April 2016. This procedure seemed to provide some relief, though of a passing nature, and her pain persisted. She commenced to see a pain specialist, Dr Clayton Thomas, on 24 August 2016.[21] He referred her for a pain-management course with Dorset Rehabilitation, which she completed. She continued to work fifteen hours per week on modified duties, but ultimately ceased work in February 2017 by reason of the pain and limitation of movement of both shoulders.[22] She has not worked since that time.
[18]PCB 32
[19]PCB 32, Dr Baglar; PCB 52, Mr Pullen
[20]PCB 16 at paragraph [5]. See also, PCB 121
[21]PCB 59
[22]PCB 8 at paragraph [33]
14 She continued to see Dr Thomas repeatedly over the course of the next year and finally stopped on 25 October 2017.[23] At the time that he completed treating her he diagnosed chronic bilateral shoulder pain, the right worse than the left, and opined[24] that while she could not perform pre-injury duties, “she has capacity for suitable employment.”[25]
[23]PCB 62, Dr Thomas
[24]PCB 63
[25]PCB 63 in answer to question 9
15 The only other significant physical treatment that she has had since that time is a further cortisone injection to the right shoulder on 18 July 2019.[26]
[26]PCB 129
16 With that history set out, it can be seen that the right shoulder is clearly the initiating compensable injury. I accept that as a result of over-reliance on the left shoulder thereafter, to compensate for the right shoulder injury, the left shoulder itself was rendered symptomatic. I accept Ms Topkaya’s evidence on this matter.[27] It was not challenged in cross-examination. Further, the chronological unfolding of the injuries clearly supports the finding I have made. Her doctor’s factual recording similarly supports that finding.[28]
[27]At PCB 16 at paragraph [4]
[28]PCB 40, Dr Baglar
17 While it could be said that Associate Professor Bruce Love’s opinion[29] does not make that distinction, I would not prefer it, as it does not align with Ms Topkaya’s evidence as to the onset of her left shoulder symptoms, which occurs well after the right shoulder symptoms, and specifically the September 2013 event. I find that this shows the left shoulder symptoms arose as a result of over-reliance on that side, consistently with the history given to Dr Joseph Slesenger[30] and his findings.[31]
[29]PCB 74 in answer to question 1
[30]DCB 84
[31]DCB 89
The loss of earning capacity consequences
18 Having made that finding, consideration must now be given to whether the right shoulder injury has resulted in a loss of earning capacity of 40 per cent or more. The parties agreed that the without injury earnings were $1,192 gross per week and the 60 per cent threshold figure was $715 gross per week. However, as noted previously, Ms Cameron submitted Ms Topkaya had no work capacity.
19 This issue was hotly in contest between the parties. The defendant argued that Ms Topkaya had been certified by her specialist, Dr Thomas, who saw her last in October 2017, and had formed the view that “she had capacity for suitable employment”. Further her treating doctor certified her as having a capacity for work up to early July 2018. It must be noted that her treating doctor’s view had changed by late July 2018 and he began certifying her as totally incapacitated. He confirmed that opinion in his later report dated 6 January 2020 and stated that such was the situation for the foreseeable future.
20 The defendant argued that given Ms Topkaya had ceased work in February 2017 and at that time had a capacity for work there was no reason why such capacity did not remain extant. Mr Bourke argued there was no evidence of any deterioration of Ms Topkaya’s condition which could justify the change in her treating doctor’s opinion from late July-2018 and onward.
21 Ms Topkaya submits that her condition did worsen.[32] In Ms Topkaya’s further affidavit, at paragraph 6, she deposed to having a further cortisone injection on 18 July 2019.[33] Other than that, Ms Topkaya’s treating doctor provides very little supporting evidence for such deterioration. Neither do Associate Professor Love’s reports.[34]
[32]T51, L27 to T52, L6
[33]PCB 16 at paragraph [6]
[34]PCB 69 – 76. See also Mr Akil on 8 April 2019, PCB 77, or Mr Rowe, 8 August 2019, PCB 82, who all reported in 2019.
22 Given the lack of material evidence to support the argument there was a deterioration in Ms Topkaya’s condition, it is difficult to understand the change in Dr Baglar’s opinion as to capacity for work. There are no reasons set out for this changed opinion.
23 However, Ms Topkaya gave evidence about this.[35] She said that her pain had worsened around the start of 2019. I accept that evidence even though the recollection of the timing is inconsistent with the change in certification that Dr Baglar records. I consider that it is consistent with a report of worsening pain which likely led to the referral for the further right shoulder ultrasound, and then cortisone injection in mid 2019.[36] I note that this is consistent with the treating doctor querying whether there was a tear of the right shoulder in the referral to the radiologist, indicating a belief that further pathology might have arisen to explain the symptoms. As a result, I find that by early 2019, consistent with the certification from Dr Baglar as to capacity, Ms Topkaya’s evidence and the fact of the further radiology and cortisone injection, there was a deterioration in her condition such as to render her totally incapacitated for work.
[35]T28, L3
[36]PCB 128 and 129
Is Ms Topkaya able to return to work in suitable employment?
24 The relevant section of WIRCA reads in the following manner;
(g) a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;[37]
[37]Workplace Injury Rehabilitation and Compensation Act 2013 s 325(g)
25 The jobs identified by the defendant, as alternative suitable employment, were those set out in Dr Slesenger’s report,[38] being:
[38]DCB 147
“● Despatch Packer.
● Process Worker.
● Menu Monitor.
● Receptionist.
● Interpreter.”
26 Mr Bourke conceded in closing that he did not press the argument regarding the process worker position.[39]
[39]T96, L13
27 Before turning to consider each of those occupations, something must be said about the physical capacities of Ms Topkaya as of today. At the outset, I note my finding that she was an honest, credible witness who gave her evidence in a verbose, but undoubtedly truthful way. No credit attack was mounted upon her. I accept her evidence.
28 The evidence seems to speak with some uniformity of her capabilities. These seem to be from Dr Slesenger:[40]
[40]DCB 147
·No push, pull, carry or lift over 5 kilograms on a repetitive basis.
·No sustained forward reaching.
·No over-shoulder reaching.
·No repetitive shoulder work.
·Dr Slesenger considered she could, on occasion, lift up to 10 kilograms.
29 This is contrasted with the plaintiff’s occupational physician, Dr James Rowe. He had significantly greater restrictions imposed, being:
·No pushing, pulling or lifting any heavy weights.
·No use of her arm overhead.
·No gripping.
·No typing or use of tools or instruments.[41]
[41]PCB 87 in answer to question 6
30 Her evidence is of constant pain in the right shoulder at 4-5/10 (with 10 being the worst) and sporadic pain in the left shoulder also.[42] She takes medication, Palexia, daily,[43] at one to two per day. Dr Rowe opines this affects her work capacity.[44] She struggles with activities such as personal care, including doing her hair or putting tops on.[45] Her home duties are limited, such that she struggles to strip sheets off beds or vacuum.[46] These matters confirm the occupational physician’s restrictions on the use of her arms, particularly with reaching and overhead tasks.
[42]PCB 11 at paragraph [43]
[43]PCB 10
[44]PCB 86 in answer to question 5
[45]PCB 11 at paragraph [45]
[46]PCB 12 at paragraph [46]
31 The affidavit evidence also speaks of any inability to carry anything too weighty.[47] Marrying that with the expert material, I find that the lifting weight limit is of 5 kilograms. All agree that such weight should not be moved repetitively. I find that Dr Slesenger’s opinion that weight of 10 kilograms can be lifted occasionally is inconsistent with Ms Topkaya’s evidence, and that of Dr Rowe, and I decline to accept it. I do not accept Dr Rowe’s opinion that Ms Topkaya cannot grip, type or use tools or instruments. This opinion[48] was formed after examination by Dr Rowe. All that he noted was wasting in the right arm.[49] No testing of grip strength was performed, for example. The wasting finding was not replicated in Dr Slesenger’s assessment some short months later. Further, neither Dr Baglar nor Ms Topkaya referred to an inability to grip or use instruments. Rather to the contrary, her evidence was that, for example, she could crochet, save for shoulder pain.[50] This leads me to find, contrary to Dr Rowe’s opinion, that Ms Topkaya does maintain her ability to grip and use instruments. However, her ability to type is influenced by her inability to hold the right shoulder in a static position over a long period.
[47]PCB 12 at paragraph [49]
[48]PCB 87 in answer to question 6
[49]PCB 85
[50]PCB 12 at paragraph [47]
32 To summarise my findings as to Ms Topkaya’s physical capacity, I find that she is not able to:
(a) push, pull, carry or lift over 5 kilograms;
(b) perform repetitive pushing, pulling, carrying or lifting tasks;
(c) perform over-shoulder reaching.
33 Having set those matters out, I turn to consider each of the proposed jobs.
A. Despatch worker[51]
[51]DCB 209
34 The possibility of this job being considered suitable employment can be dismissed immediately when regard is had to the Recovre vocational assessment report and the photographs depicting the job task.[52] It can clearly be seen that repetitive shoulder and arm use is required to move items from tubs to envelopes. The hours are full time and it seems that some two hundred orders per day are packed (most likely between four to five workers). As I have found Ms Topkaya cannot perform such repetitive tasks with her shoulders and arms, I find that this job does not constitute suitable employment.
B. Menu monitor[53]
[52]DCB 209 - 213
[53]DCB 218
35 This task requires the worker to constantly push a trolley around a worksite. The trolley requires less than 5 kilograms push force. That constant and repeated task is contrary to my findings as to Ms Topkaya’s capacity. As such, I cannot accept Dr Slesenger’s opinion as to this position being considered suitable employment. For that reason, I prefer the opinion of Dr Rowe.
C. Receptionist
36 This job task is detailed within the vocational assessment report.[54] It involves use of computer programs Microsoft Word, Publisher and Excel. Data entry is required on a regular basis. The work is performed in a seated position with arms held in a static position over the keyboard. It is to be remembered Ms Topkaya came to Australia at age ten from Turkey. She was at school here until about the age of thirteen and a half, and then left. She has worked essentially manual jobs all her life. She has extremely limited computer skills. Her daughter’s evidence is that she needs assistance to send emails.[55] I accept that this task is well beyond her capabilities and could not be considered suitable employment. This is consistent with the opinions of Dr Rowe and Dr Baglar, as well as Ms Topkaya’s own evidence. I prefer that to Dr Slesenger’s opinion.
[54]DCB 222
[55]PCB 139 at paragraph [12]
D. Interpreter
37 At this point, consideration must be given to s325(g) of the Act. This makes clear that in assessing Ms Topkaya’s loss of earning capacity for suitable employment regard must be had to the worker’s reasonable participation in rehabilitation and retraining. This is to ensure the Court considers the loss of earning capacity if such retraining and rehabilitation as is considered reasonable was undertaken.[56] Ms Topkaya carries the onus of proof that she satisfies the loss of earnings provisions.[57]
[56]Elmas v VWA [2018] VCC 735 at paragraph [61]
[57]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [70]
38 This Court has considered the requirements under s325(g) in the matter of Ristevski v Demos Property Services (Australia) Pty Ltd & Anor[58]. His Honour Judge Misso, in considering similar provisions under previous legislation stated:
“The difficulty with a case of this kind is that in the absence of an effort on the plaintiff's part to rehabilitate and retrain, there are only two possible conclusions left open. Firstly, that the plaintiff is totally incapacitated for all work, or secondly, that in the absence of any effort to rehabilitate and retrain, it is simply not possible to determine whether the plaintiff has any residual capacity which she can exercise in suitable employment.”
[58][2010] VCC 169
39 It has been said that the plaintiff’s onus is a heavy one.[59]
[59]Elias-Mikrey v The Royal Melbourne Hospital [2013] VCC 1860 at paragraph [64]
40 Attention must be turned to whether or not there have been reasonable attempts at rehabilitation and retraining. This is particularly so when considering the last job prospect that the defendant raised, being that of an interpreter.
41 Certainly no criticism can be made of Ms Topkaya’s attempts to rehabilitate otherwise. She has seen the Dorset Rehabilitation Centre, undergone numerous shoulder injections, done physiotherapy until such time as it was terminated by the insurer and completed numerous return-to-work plans as best she could. The major issue is that of attempts to retrain, specifically as an interpreter. This became the essential dispute between the parties. This is a position Dr Baglar had in fact posited for Ms Topkaya.[60] However, regard must be had to the education and training requirements that are noted in the vocational assessment report.[61] These state that an Advanced Diploma or Diploma is usually required, and that three out five interpreters have a Bachelor’s degree.[62] The specific job the defendant actually identified as an example of the position is located in an iPAR Report.[63] It was a position at Alfred Health. It required “[e]xtensive medical/health vocabulary”. It required tertiary qualifications or NAATI accreditation.
[60]PCB 37
[61]DCB 228
[62]DCB 229
[63]DCB 261
42 It must be remembered Ms Topkaya speaks English as a second language. She attended school in Australia for at most four years. She left in Year 8. She has no VCE. She has worked almost exclusively in manual jobs. She is now fifty-two. She gave evidence that she did not seek retraining as an interpreter because it was beyond her capabilities.[64] I agree. I find with her background as set out above, there was no reasonable chance for her to retrain as an interpreter and her decision not to pursue that course was a reasonable one. In sum, I accept that Ms Topkaya’s right shoulder injury has resulted in her being totally incapacitated for all work.
[64]T38, L7
43 I will grant her a loss of earning certificate as I find a loss of earning capacity in excess of 40 per cent of her earning capacity. I find her totally incapacitated.
44 Given my findings set out above as to the consequences relating to the right shoulder injury, I will deal only briefly with Ms Topkaya’s claim pursuant to paragraph (c). It is firstly to be noted that the definition of “serious injury” contained at s325 requires there to be “permanent severe mental or permanent severe behavioural disturbance or disorder”. This is to be contrasted with the wording as to paragraph (a) claims, which requires there to be serious impairment. The word “severe” is a word of stronger force than the word “serious”, as used in the paragraph (a) definition.[65]
[65]Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [44]
45 Typically in cases such as these, which come regularly before this Court, in order to make good the plaintiff’s claim, there will ordinarily be seen psychological disorders at the more severe end of the spectrum. Such might feature relevant hospitalisations, significant psychiatric treatment and medication. There may be more serious symptoms such as suicidal ideation, attempts or other florid psychotic symptoms. While each case must be assessed individually and there is no prescriptive list, I refer to these matters simply to expose the range of features which might present in a severe mental disorder.
46 Presently, Ms Topkaya is on an antidepressant medication, Endep, which also assists with her sleep[66]. She currently sees a psychologist, Ms Ipek Sumertas, on a monthly basis.[67] She has been attending Ms Sumertas since early 2017.
[66]T48, L26. See also PCB 17 at paragraph [10]
[67]PCB 17 at paragraph [8]
47 The plaintiff’s medico-legal expert, psychiatrist, Dr Alan Gallogly, opined that holistically Ms Topkaya suffers from an adjustment disorder with mixed anxiety and depressed mood. This is consistent with Ms Sumertas’ reports and opinion.[68] Ms Sumertas notes that the treatment is standard for these conditions, being Cognitive Behaviour Therapy and SSRI medication.[69] While she notes that total remission is unlikely and may take time, the prognosis was otherwise good.
[68]PCB 65
[69]PCB 67
48 Without descending to consider the defendant’s arguments as to other factors leading to Ms Topkaya’s psychological state and taking her case at its highest, as that expressed by Dr Gallogly and Ms Sumertas, and considering this case among the range of cases which come before the Court, I am not satisfied that the consequences of that condition meet the test of being “severe”. While there is a diagnosed psychiatric condition and medication, I find the consequences complained of are not sufficient to reach the required level.
49 Similarly I am not satisfied that the loss of earnings capacity are sufficient to deprive her of her capacity for work. Given my earlier findings it is not necessary to say more.
50 I would therefore dismiss Ms Topkaya’s application relating to paragraph (c).
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