Yarpuzlu v E D Oates Proprietary Ltd
[2012] VCC 1054
•8 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02364
| NURDAN YARPUZLU | Plaintiff |
| v | |
| E D OATES PROPRIETARY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February 2011 and 12 and 13 July 2012 | |
DATE OF JUDGMENT: | 8 October 2012 | |
CASE MAY BE CITED AS: | Yarpuzlu v E D Oates Proprietary Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1054 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – low back and neck injuries – pain and suffering and loss of earning capacity – relevant principles – disentanglement of injuries
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED – Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Church v Echuca Regional Health [2008] VSCA 153; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Zivolic v Hella Australia Pty Ltd [2007] VSCA 142
JUDGMENT – Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages and pecuniary loss damages in respect of low-back injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with Ms N Wolski | Zaparas Lawyers |
| For the Defendant | Ms A M Magee | Minter Ellison |
HIS HONOUR:
Introduction
1 By way of Originating Motion dated 1 June 2010, Nurdan Yarpuzlu (“the plaintiff”) seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring common law proceedings to recover damages for injuries to her neck suffered by her during the course of her employment with E D Oates Pty Ltd (“the defendant”) and a low-back injury suffered during the course of her employment with the defendant on or about 22 March 2005.
2 Senior Counsel for the plaintiff accepted that it was inappropriate to seek aggregation of the neck and low-back injuries, and submitted that each injury had to be determined as to whether or not it was a “serious injury” within the meaning of the Act. I accept such submission.[1]
[1]See Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
3 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s134AB(37) of the Act in respect of the neck and low-back injuries.
4 The plaintiff and Dr H Baglar gave evidence and were cross-examined. Both parties tendered various documents.[2]
[2]See Annexure “A”
Relevant Legal Principles
5 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the neck and/or low-back injury are serious injuries within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[3]
[3]See s134AB(19)(a) of the Act
6 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act, which reads:
“serious injury means─
(a)permanent serious impairment or loss of a body function … .”
7 The part of the body said to be impaired for the purposes of paragraph (a) is the neck and/or the low back. In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a) the neck and/or low-back injury suffered by her arose out of or in the course of or due to the nature of her employment with the defendant on or after 20 October 1999;[4]
[4]See s134AB(1) of the Act and Barwon Spinners v Podolak (2005) 14 VR 622 at [11]
(b) the neck and/or low back injury, with their resulting impairments, must be “permanent” – that is, permanent in the sense that they is “likely to last for the foreseeable future”;[5]
[5]See Barwon Spinners (op cit) at [33]
(c) “the consequences” to the plaintiff of the neck and/or low-back injury in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable”.[6]
The test for “serious” is sometimes referred to as the “narrative test”.
[6]See s134AB(38)(b) and (c) of the Act
8 In addition, in relation to “pecuniary loss consequences”, the plaintiff has a specific burden[7] to establish:
(a)that as at the date of hearing she has a loss of earning capacity of 40 per cent or more as a result of the neck and/or back injury, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[8] and
(b)that after the date of hearing she will continue permanently to have a loss of earning capacity as a result of the neck and/or low-back injury that will be productive of a financial loss of 40 per cent or more.[9]
[7]See s134AB(19)(b) and (38)(e) of the Act
[8]See s134AB(38)(e)(i) of the Act
[9]See s134AB(38)(e)(ii) of the Act
9 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of the neck and/or low-back injury for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[10]
(b)must make the assessment of “serious injury” at the time the application is heard;[11]
(c)must give reasons which are as extensive and complete as the Court would give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[12]
(d)notes that s134AB(38)(b) provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.
In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” damages only. A worker who satisfies the loss of earning capacity requirements of s134AB of the Act is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”.[13]
(e)notes that it has been asserted that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[14]
[10]See s134AB(38)(h) of the Act
[11]See s134AB(38)(j) of the Act
[12]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at [89]–[92]
[13]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 and in particular at [60]–[64]
[14]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 and 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
10 Counsel for the defendant joined with Senior Counsel for the plaintiff in submitting that the neck injury and the low-back injury could not be aggregated for the purposes of determining whether or not there has been a “serious injury”.
11 She informed the Court that the essential issues for determination were:
(a) whether one or both injuries were “permanent” within the meaning of the Act given the recommendations for treatment involving pain management and a course of injections; and
(b) to the extent that the plaintiff does suffer pain and suffering and/or pecuniary loss consequences, whether such consequences result from the neck injury and/or a low-back injury or a combination of both and other medical conditions suffered by the plaintiff. Counsel for the defendant highlighted the report of the treating general practitioner, Dr Baglar, who refers to four separate conditions said to be contributing to the plaintiff’s overall incapacity for employment.
The Evidence of the Plaintiff
12 When this matter commenced on 9 February 2011, the plaintiff gave evidence that the contents of her then affidavits sworn on 28 January 2010[15] and on 23 December 2010 were “true and correct”.[16]
[15]See Exhibit 5 at page 6 PCB
[16]T 25, L19
13 The plaintiff also gave evidence that when she commenced employment with the defendant in 1984, she worked Monday to Friday, commencing at 7.30 am and finishing at 4.00 pm. In February 2005, she altered her hours to be still working five days a week, Monday to Friday, commencing at 7.30 am but ceasing at 2.45 pm.
14 In relation to the change of hours, the plaintiff gave the following evidence:
Q: “And why did you do that?---
A: So that I could pick my daughter up from school.
Q:Was she at a school that required you to go and pick her up and you didn’t have the time after. I withdraw that. Would you have a look at that email. Did you produce that email this morning?---
A:Yes.
Q:And is that an email that reflects your desire to change your hours back in February of 2005?---
A:Yes.
Q:And who is the email from?----
A:I know there’s a name there. I don’t know where it is though.
Q:Who was that person, Emia Kuhk (?). Who is that person?---
A:The manager there.
Q:All right. You have retained a copy of that, have you?---
A:Yes.
Q:When your daughter’s situation at school settled down, what was your intention in relation to your hours?---
A:Return back to the original hours.
Q:How many hours a week was that?---
A:Thirty eight hours.”[17]
[17]T 26, L11 – T 28; the email was later tendered and became Exhibit 1
15 Later, the plaintiff gave further evidence on this issue:
HIS HONOUR:
Q:“Can I ask, how old was your daughter at that stage?---
A:She was in Grade 6 your Honour.
Q:She was in Grade 6?---
A:Yes. Primary school, Grade 6.
Q:And why was it in Grade 6 that you had to pick her up rather than other years?---
A:The school was at Mill Park. It was close to where we used to live and she could walk on her own but then we moved to Wandong and she didn’t want to change primary schools so I had to pick her up.
Q:Pick her up to get her home?----
A:That’s right, because there was no one else that could do it.
Q:And how long did you anticipate this would go on for?---
A:Because that was the last year of primary school until the end of primary school. The following year she was going to start secondary school, and there was a bus that went past the front of our house, she was going to do that on her own and she didn’t need me to pick her up.
Q:Thank you. At any time prior to February 2005 when you changed the hours, at any time before that had you worked at any time less than 38 hours?---
A:No.
… .”
(MR MIDDLETON)
Q:“Just following on from that, before Wandong, did you live in Mill Park?---
A:Yes.
Q:What was the address in Mill Park?---
A:Fishburn Court.
Q:Fishburn Court, Mill Park?---
A:Yes.
Q:When did you move to Wandong?---
A:At the end of 2004.
Q:And then when did you leave Wandong?---
A:Three years ago.
Q:And now you live in Epping?---
A:Yes.
Q:How far is Wandong from Mill Park. How long does it take?---
A:Twenty five to thirty minutes’ drive.”[18]
[18]See T 27, L7 – T 29, L7
16 The plaintiff also gave evidence that she attended the neurosurgeon, Mr D’Urso, in 2007, who suggested back surgery. At that time, she told Mr D’Urso she would “think about it” but has not proceeded to back surgery.
17 Under cross-examination at that time, the plaintiff gave the following pertinent evidence:
· She worked in a team of six or seven other women and had breaks for lunch, morning tea and afternoon tea.
· In the latter years of her employment her duties were rotated and, in particular, over the last few years she would remain on a machine for up to two hours before being rotated to another machine. Prior to that, she could be on a machine for the whole day. When queried that she was rotated regularly from 2000, she stated she could not be precise about the year but in the last years rotation did occur.
· She rejected that she was rotated every hour on the Luke machine rather than every two hours.
· She would use the Fringe machine intermittently, and over the last years such machine was not used very regularly.
· The daughter for whom she changed her employment hours was born on 29 March 1994 and would have turned eleven in March 2005.
· Up until December 2004, the family was living in Mill Park and her daughter was attending the Mill Park State School, which was about three minutes from the residence, and she could walk to and from school.
· On moving to Wandong, her daughter wished to continue going to school at Mill Park State School, which required her husband to drive her in the morning and the plaintiff to pick her up from Mill Park State School in the afternoon. Mill Park to Wandong was about twenty-five to thirty minutes driving.
· At the end of Year 6 state school her daughter attended Whittlesea Secondary College and she attended that school by school bus.
· The plaintiff and her family moved to Epping in or about 2009.
· If she had remained uninjured, it was her intention to resume working thirty-eight hours a week when her daughter commenced going to secondary school.
18 The plaintiff was then cross-examined about being referred to a number of specialists who recommended treatment by way of injection, which she has not undergone. Furthermore, the plaintiff also accepted that a Professor Boling had referred her to a Dr Gassin, who she was to see on 31 March 2011 in order to undergo injections in the affected areas. That had been arranged at an earlier date but had to be cancelled, as an appointment had been made to attend her barrister for this particular case at or about the same time. Furthermore, she gave evidence that arrangements had been made for her to attend a pain management specialist, Dr T Lim, on 15 February 2011.
19 In particular, the following evidence was given:
Q:“And your general practitioner, is he the one who has recommended or referred you to Dr Lim?---
A:Yes.
Q:And do you intend to participate in the program if the assessment goes well?---
A:Definitely I want to go.
Q:Do you intend to give it your best shot, make a real effort when you participate in it?---
A:I want to get better, I don’t want to be on medication for the rest of my life. I will definitely contribute.
Q:I suggest that you will participate in the program, you will hopefully learn from the program ways of dealing with your activities of daily living?---
A:Yes, that’s what he said would happen.
Q:So you will learn ways to cope and deal with your housework better?---
A:I have already sort of learned how to live with the pain and how to cope doing things with the pain but yes.
Q:You will be taught ways of increasing your endurance and your ability to do things for longer, won’t you?---
A:I have already forced myself to do as much as I can, even if I have pain, but hopefully they will do that, yes.
Q:Because the purpose of the pain management clinic is to try and assist you to get back to, as close as possible to a normal life, do you understand that?---
A:I understand.”[19]
[19]T 49, L19 – T 50, L10
20 After the evidence relating to the plaintiff willing to undergo injection treatment and, more particularly, to undergo the pain management course, both of which were in train, I raised with Senior Counsel for the plaintiff concerns that the Court may have difficulties in relation to the issue of permanence in respect of the injuries relied on and the symptoms emanating from such injuries. I allowed some time for those advising the plaintiff to consider their position as to whether they wished to proceed or, alternatively, adjourn the matter until these activities had been undertaken by the plaintiff.
21 After a consideration of the issues, Senior Counsel for the plaintiff sought that the matter be adjourned part-heard and I acceded to such application and the matter was adjourned to 18 April 2011 for a mention in order to ascertain the then state of the treatment of the plaintiff.
22 Ultimately, this matter re-commenced on 12 July 2012, at which time both parties indicated they sought to rely on further material which had been added to their respective court books. Such material was ultimately tendered with the earlier material as set out in Annexure “A”.
23 The plaintiff gave evidence that the contents of further affidavits sworn on 14 October 2011[20] and on 24 February 2012[21] were “true and correct”.
[20]See Exhibit 5 at 20.1 PCB
[21]See Exhibit 5 at 20.4 PCB
24 By way of her first affidavit, the plaintiff gives the following evidence:
· She was born in Cyprus in 1961 (fifty-one years old) where she attended school for eleven years.
· She came to Australia with her parents in 1979, and is married with two children.
· On arriving in Australia, she underwent an English course for about six months, and after a further six months, she commenced work as a machinist, working in various factories making clothing.
· She commenced with the defendant in 1984 as a machinist and a packer, mostly working in the sewing department performing work involving the production of cotton mops.
· Prior to the injury, she was working 32 hours and 45 minutes per week and earning $552.00 gross per week, including the following work:
(a) Operating the fringe machine which involved loading 8-kilogram bobbins of thread onto vertical spools and then threading the thread into the machine. In particular, the plaintiff describes the work in the following terms:
“I would usually load about two such bobbins initially and then a further two bobbins every five minutes. I loaded such bobbins from a trolley with a tray about 20 centimetres from the floor. I also had to load a roll of fabric about 2 to 5 centimetres wide and about 15 centimetres in diameter weighing about 2 and 5 kilograms. This was placed under the threading part of the machine about 50 centimetres from the floor and involved getting onto my knees to thread it into the machine. The machine produced a fringe for mops and as the fringe was being sewn I had to continually straighten it and pull it from the machine as otherwise it would get stuck in the machine. I would then fold the trimming over itself about thirty times with a length of about 35 centimetres and then cut, label it and place two such lengths of fringe in plastic crates about 60 x 40 x 40 centimetres. These crates filled with fringe weigh about 12 kilograms and I stacked them three high in two stacks on a trolley. If a wider fabric was used producing a wider fringe I had to manually wind the fringe around a cardboard core.”[22]
[22]See Exhibit 5 at page 7 PCB
(b) Operating the loop machine which made the head of the mop. She describes such duties to involve the following:
“I had to load eight bobbins of cotton onto two levels of spools, both pointing at about 45 degrees from horizontal with the top level about 1.5 metres from the ground and the bottom level about half a metre from the floor. I then combined four threads and threaded them in the machine and attached a thread from a further four bobbins, ensuring that the machine would use the thread when it had completed using the thread from the first four bobbins. I also had to insert two rolls of fabric similar to that used in the fringe machine. I then cut the various mop heads as they were expelled from the machine to separate them and stacked about 400 on a trolley and pushed the trolley to another process. I had to add a further bobbin of cotton of similar size to that used in the fringe machine every 5 to 20 minutes depending on the type of mop being made and a further roll of fabric about every two to four hours. It was important to ensure that there was always four cones of thread ready to go into the machine.”[23]
[23]See Exhibit 5 at page 8 PCB
(c) Operating the Adler machine. She describes such duties in the following terms:
“…trolley of mop heads from the loop machine was pushed to the workstation. The head of each mop had to be attached to a strip of material and guided under a needle. The material had to be held very tight to ensure that it adequately covered the head of the mop. It was expected you would make about thirty mop heads an hour. The covered mop heads were then placed in plastic crates on a trolley.”[24]
[24]See Exhibit 5 at page 8 PCB
(d) She also operated the bar tacker machine which sewed the ends of the mop head so they would not fray easily; the round mops machine, which sewed various parts of the mop together to make it into a round shape; the overlocking machine, which overlocked the edges of the mop and sticks the label onto the strips; the eyelet machine, which placed an eyelet on the mop, and the stud machine, which placed certain studs into the mop.
· All the tasks involved continual bending and forceful movements of her hands and arms and operating the fringe and loop machines involved repeated lifting and awkward movements of heavy bobbins of thread and rolls of fabric.
· Occasionally, she performed packing work which involved packing products in boxes weighing between 4 and 8 kilograms, and stacking them on a trolley or, if no trolley, on the floor.
· Occasionally she sewed oven gloves and other products.
· From about early 2005, she became aware of pain in her shoulders, particularly on the left side, which spread into her neck and into her elbows.
· On 22 March 2005, she was picking up an 8-kilogram bobbin of cotton when she experienced pain in her back, causing her to attend first aid, where ice was put on her back.
· She later left work and attended her general practitioner, Dr Baglar, and was off work for three days, after which she went back performing light duties for a few days, and then normal duties.
· She continued to have intermittent back pain which she initially thought may be related to gynaecological matters.
· Her neck and shoulder pain gradually worsened, and on 25 August 2005, she consulted a Dr Massouh at a 24-hour clinic in Mill Park. Dr Massouh performed blood tests and advised her that she had rheumatoid arthritis. She returned to work and was given lighter duties involving labelling, but her neck and shoulder pain continued.
· She again attended Dr Massouh on 1 September 2005 and was referred to a rheumatologist, Dr Rasaratnam, who saw her on 15 September 2005.
· Dr Rasaratnam arranged for an ultrasound of her shoulders – the right being undertaken on 19 September 2005 and the left undertaken on 20 September 2005. An ultrasound of her left and right elbows was also carried out on 21 and 22 September 2005.
· Dr Massouh certified her off work from 23 September 2005 until 10 October 2005, when she returned for four hours a day, three days a week operating a rounded mop machine, labelling, packing Magic Mops, stamping pallet documents and making holes in packaged mops.
· Her hours increased on 24 October 2005 to five hours a day, although this increased her discomfort.
· In late 2005, she consulted Dr Baglar, underwent physiotherapy and hydrotherapy at the Thomastown Leisure Centre and also consulted Dr Rasaratnam on several occasions.
· Over 2006, her shoulder and back discomfort continued and she worked limited hours with various times off work.
· Dr Massouh referred her back to Dr Rasaratnam, who arranged for her to undergo an MRI scan of her right shoulder on 15 June 2006 and her left shoulder on 16 June 2006.
· She returned to work with the defendant on 21 August 2006, working four hours a day, five days a week, performing light duties, but would often have to come home earlier because of shoulder, neck and back pain.
· On 13 October 2006, Dr Baglar arranged for a CT scan of her back.
· On 24 June 2006, she was advised there were no more light duties available and her employment was terminated as from 27 October 2006.
· After ceasing work, she was diagnosed with ovarian cancer and ultimately underwent a hysterectomy on 13 December 2006.
· After that operation, she was referred by Dr Baglar to the neurosurgeon, Mr D’Urso, who initially saw her on 16 February 2007 and arranged for an MRI scan to be undertaken of her back on 19 March 2007. Mr D’Urso suggested an operation and, after discussion with Dr Baglar, she decided to continue with physiotherapy and hydrotherapy.
· In March 2007, Dr Baglar referred her to a psychologist, Ms Semra Durmaz, as she was becoming anxious, and she initially saw Ms Durmaz on 27 March 2007 and has continued to see her about once a fortnight.
· She underwent a CT scan of her neck on 9 November 2007.
· She was referred back to Mr D’Urso on 21 July 2008, who arranged nerve conduction studies of her arms on 20 July 2008 and an MRI scan of her neck on 12 July 2008. She was advised that he did not think he could help her neck or back pain with surgery.
· She continues to see Dr Baglar once a month and Ms Durmaz about once a fortnight. Furthermore, she has physiotherapy twice a week with Ms Nguyen, and hydrotherapy.
· Dr Baglar prescribes Mersyndol medication and she currently (at the time of the first affidavit) takes Mersyndol Forte, one to three tablets every day, and Mobic, most days. She also takes OxyContin about once a week when her back is “worse”. She also uses Mogadon, two to three nights a week to help her sleep, Cymbalta, every evening for her nerves, and Nexium, three to four times a week for stomach upset.
· She has low-back pain all the time and on occasion it can be “very sharp” if she moves the wrong way. The pain in her back intermittently spreads down the back of her legs, worse around the knees and into the heels. Initially the pain was worse in the right leg but now the left leg is just as bad.
· Her back pain is worse with prolonged sitting or standing.
· She continues to have left shoulder pain most of the time, which is a “pinching feeling”. Such pain is worse if she tries to raise her left arm above shoulder height and she cannot hold more than 2 kilograms of weight in her left hand without increasing shoulder pain. The pain is worse if she tries to lift anything above waist height and she had similar pains in the right shoulder not as bad.
· She can drive a motorcar but only for about thirty minutes because of increasing back pain.
· She walks three to four times a week at the suggestion of the physiotherapist, for about twenty to thirty minutes each time.
· She finds it hard to get to sleep because of back pain and if she cannot sleep she takes a Mogadon.
· In the morning, her back is very sore and she has to move around particularly slowly and carefully. Also in the mornings, her shoulders are stiff.
· Some of the discomfort in her back and shoulders is relieved by a hot shower.
· Towards the end of the day, she frequently gets neck pain and headache and takes Panadol three to four days a week for this headache.
· She still does most of the cooking at home and generally has to take breaks when performing such activity.
· She can put dirty washing in the washing machine but her daughter usually hangs out the washing and she only puts small things on the line. Her daughter and sister usually do the vacuuming and mopping, although she usually cleans the shower and toilet. She strips the beds with her husband when he is home.
· She used to like gardening and had a vegetable patch of about 5 metres by 4 metres, where she grew herbs, tomatoes, lettuce, cucumbers, peppers and chillies. She also had fruit trees and various seasonal flowers. Before her injury, she would dig, weed and prune.
· Prior to the injury, she lived on five acres in Wandong and this property was sold in February 2009 because she could not maintain the house and garden properly since her injury. She and her husband had moved to Wandong in 2004.
· Her social life, including going out to dances and mixing in her community has been significantly affected.
25 By way of her second affidavit, the plaintiff gave the following evidence:
· On 27 November 1988, she was involved as a front seat passenger in a transport accident, as a result of which she injured her neck. At that time, she was pregnant with her son, who was born on 20 March 1989, and she was unable to return to work until February 1999, during which time she received weekly payments from the Transport Accident Commission. She had occasional neck pain thereafter.
· On 10 July 1988, when working for another employer, she suffered worse neck pain, spreading into her left shoulder, and was off work for about a month, before returning on light duties and restricted hours for a few months, before returning to normal duties with normal hours.
· Since her first affidavit, she has continued to see Dr Baglar, her general practitioner, at least once a month, and stopped physiotherapy in April 2010 and hydrotherapy in September 2010, as WorkCover ceased paying for such treatment.
· Dr Baglar referred her to the neurosurgeon, Mr Boling, in respect to her back, neck and left elbow pain.
· She consulted with Mr Boling on 29 June 2010 and he arranged nerve conduction studies, after which he suggested that she undergo pain management.
· Dr Baglar also referred her to the orthopaedic surgeon, Mr Pullen, in relation to her shoulder pain, and she initially saw that surgeon on 7 July 2010.
· Mr Pullen arranged for an MRI scan of both her shoulders on 5 July 2010 and indicated that he did not think she would be helped with an operation.
· Dr Baglar also referred her to the pain management specialist, Dr Terence Lim, who she initially saw on 7 October 2010, and he suggested that a pain management course be organised.
· She continues to see Ms Durmaz, her psychologist, about once a fortnight.
· Dr Baglar continues to prescribe medication, including Lyrica, which she takes in the morning and at night for her back pain. She has ceased taking Mogadon for sleep but occasionally will take an extra Lyrica if she cannot sleep at night. She also takes one Panadol Osteo every morning and sometimes another tablet during the day for back pain. If her back pain is bad, she occasionally takes OxyContin, and more frequently, Mersyndol Forte, about two to three times a week. She also takes Cymbalta every night for her nerves, and Nexium, three to four times a week for stomach upset.
· Her son suffers from Depression and tried to commit suicide in 2005 and 2008 and is a “concern” to her. He has improved a lot recently and is currently performing an apprenticeship in landscaping.
· Her worst pain is her back, and the severity of such pain has remained the same as described in her earlier affidavit.
26 By way of her third affidavit, the plaintiff gave the following evidence:
· She continues to see Dr Baglar, her general practitioner, at least once a month, and her psychologist, Ms Durmaz, about once a fortnight.
· Dr Baglar referred her to the orthopaedic surgeon, Mr Justin Hunt, who she initially attended on 11 October 2010. He arranged further x-rays and told her to continue on with her present treatment. She attended Associate Professor Boling, a neurosurgeon, on 29 June 2010 and he referred her to the musculoskeletal physician, Dr Robert Gassin, who she saw on 31 March 2011.
· After attending Dr Terence Lim, the pain specialist, on 7 October 2010, she was referred to the North Eastern Rehabilitation Centre for assessment as to her suitability for a pain rehabilitation program.
· Prior to the commencement of the program, Dr Lim referred her to the psychiatrist, Dr Naomi Elliot, who increased her dosage of Zoloft from 100 milligrams to 150 milligrams a day, and then later to 200 milligrams a day. Because she felt drowsy, Dr Elliot replaced the Zoloft with Lexapro, initially at 10 milligrams, which was increased to 20 milligrams from 1 June 2011.
· Dr Baglar continues to prescribe medication. She continues to take OxyContin occasionally, at least once a week, Mersyndol Forte, two to three times a week and Panadol Osteo, one or two tablets every day. Further, she takes Lyrica, 75 milligrams, in the morning and sometimes 150 milligrams at night if she is finding sleep difficult. She also continues to take Nexium three to four times a week for stomach upset.
· Her neck, back and shoulder symptoms have remained much the same since she swore her previous affidavit.
27 By way of her fourth and last affidavit, the plaintiff gave the following evidence:
· She attended a pain management program with Dr Terrance Lim from 10 October 2011 to December 2011, which consisted of eight sessions.
· Her back, neck and shoulder have remained much the same, having completed the pain management program, and she is to be reviewed by Dr Lim in about six months’ time.
· In October 2011, she stopped seeing the psychologist, Ms Semra Durmaz, as she was seeing a psychologist, “Jenny”, through the pain management program.
· She continues to take medication consisting of Mersyndol Forte, two to three times a week; Panadol Osteo, up to four tablets every day; Lexapro, 30 milligrams at night; Lyrica, 70 milligrams in the morning and sometimes 150 milligrams at night for sleep difficulties, and Nexium, three to four times a week for stomach upset.
· On 3 November 2011, Dr Lim stopped prescribing her any OxyContin.
· She continues with her gym program and hydrotherapy twice a week, but this stopped on 9 February 2012.
· She continues to attend a psychiatrist, Dr Elliot, every three weeks, and she monitors her medication.
· There has been no real change in her condition since swearing her previous three affidavits and she continues to be restricted by pain.
· Her relationship with her children and her husband has deteriorated over time because of her ongoing difficulties.
28 Under further cross-examination, the plaintiff gave the following pertinent evidence:
· She underwent the pain management course in mid 2011 at the North Eastern Rehabilitation Centre and was treated by the pain specialist, Dr Lim, a psychiatrist, Dr Elliot, and a psychologist, who she believed was called “Jenny”.
· At the course, she was given exercises to perform by a physiotherapist and she has been reviewed by Dr Lim, the last time being two days prior to the recommencement of the trial. Furthermore, she has been seeing the psychiatrist, Dr Elliot, on a three or four-week basis and that has been the situation since the course last year.
· Dr Elliot prescribes Lexapro for her (which is occasionally prescribed by Dr Baglar). Between April and October 2011, she was also seeing a Ms Semra Durmaz, a psychologist, and from about October 2011, she commenced seeing the psychologist, “Jenny”, as part of the pain management program (at which time she stopped attending Ms Semra Durmaz).
· She attends Dr Baglar about once a month and Dr Elliot about every four weeks, and they are the only doctors presently treating her.
· At the course, she was provided and shown exercises and such exercises were for her low back, both shoulders, her elbows and arms, her neck, and her legs as well. Such exercises have consisted of stretches and strengthening exercises.
· She was advised to undertake these exercises four times a day every day for about fifteen minutes and she tries to do it but she does not do it every day, in part because the medication makes her pretty sleepy or the pain is pretty bad or “other things are happening”.
· She accepted that Dr Lim told her it was important that she continue with the exercises four times a day every day. She goes to the gym two or three times a week and she performs exercises in the gym and also undergoes hydrotherapy. She accepted that in January 2012, she told Dr Lim that she was able to visit her mother; go shopping with her sister; drive her vehicle; perform such activities as going to the bank, the post office and things like that. Furthermore, she was able to perform other activities involving housework activities, such as washing clothes.
· Those activities have continued to date and over that time she has been able to increase her amount of walking.
· She accepted that during the pain management course there was raised the prospect of her undertaking some voluntary work and she would like to do that “if it’s something I could do”.
· Despite undergoing the pain management program, she has not noticed any change in her pain but now understands the type of exercises to help her and also appreciating ways of living with the pain.
· She has not undergone any injections.
· When asked to give a general description of her bodily pains, the plaintiff gave the following evidence:
HIS HONOUR:
Q: “Can you tell me please what areas in the body you do have pain?‑‑‑
A: My neck is painful.
Q: Is that all the time, or just sometimes?‑‑‑
A: Every day there is some pain there depending on the weather, like cold weather it gets worse.
Q: And other than you neck, what other areas?‑‑‑
A: My shoulders.
Q: Both shoulders?‑‑‑
A: Both shoulders.
Q: And is that the same as the neck, it's always there but sometimes worse than other times?‑‑‑
A: Yes.
Q: Any other areas?‑‑‑
A: My lower back and then my legs as well.
Q: And both legs?‑‑‑
A: Both.
Q: Where is the pain in both legs?‑‑‑
A: Sometimes around the knees, sometimes the back of the thigh, sometimes - the area.
[She pointed to the thighs, Your Honour].
Q: Do you get any pain below your knees?‑‑‑
A: [She does].
Q: Where does that pain go?‑‑‑
A: [She's pointing to the calves and the sole of the foot.]
Q: In relation to the shoulders, do you get any pain in the arms, or arm?‑‑‑
A: Yes, it does go down to the arms.
Q: And both arms?‑‑‑
A: Both arms.
Q: And how far down the arms?‑‑‑
A: To my fingers and my fingers go numb at times.
Q: And your fingers go numb in either hand?‑‑‑
A: Both hands, yes.
Q: Any other areas you get pain?‑‑‑
A: Headache I get.
Q: And how often do you get headaches?‑‑‑
A: It happens often, especially if the neck pain is bad.
Q: Yes thank you.”
MS MAGEE:
Q: “Do you also have pain in both elbows?‑‑‑
A: Both, yes.
Q: Again, is that nearly every day?‑‑‑
A: If I've been doing something in the kitchen it gets worse.
Q: Do you have pain in your elbows every day?‑‑‑
A: Yes, every day some pain, some days worse, some days not as bad.”[25]
[25]T 83, L22 – T 84, L22
·She has some restriction of her left arm movement and is unable to carry more than about 2 kilograms with her left hand. If she goes and buys bread or milk, sometimes they are a bit heavy and she struggles to lift with one arm, so she uses two arms.
·Sometimes it is a struggle to use a knife for cutting.
·Besides taking Lexapro, Mersyndol Forte, Panadol Osteo and Lyrica, she also takes, from recent times, Mirtazapine (for anxiety) and OxyContin, which was commenced a couple of months prior to the hearing.
·She continues to be on OxyContin once a week or so, taking 20 milligrams, and resorts to such medication when the pain is “unbearable”. The pain could be unbearable in her neck or back or shoulders or elbows and she could have it “all places as well”.
·She has not looked for any jobs since 2006, although she did hand her résumé to the owners of a coffee and kebab shop, seeking some sort of work. She was prompted to look for this work because Ayers (a rehabilitation company) suggested that she should look for herself for something “suitable” to perform.
·When asked whether she thought she could work, the plaintiff stated:
A: “I would love to work, I've enjoyed working but - - -
Q: But what?---
A: I would love to try anything suitable if someone is willing to give an offer knowing my symptoms and my situation.
Q: And would that be in a cafeteria type work or what sort of work would you anticipate?---
A: I mean, both the pain management and my doctors say that I need a break every ten minutes. Doesn’t really matter what job, I'm willing to try anything as long as they can find me something like that.”[26]
[26]T 96, L12-20
29 Under re-examination, the plaintiff gave the following pertinent evidence:
·She confirmed that by letter dated 10 December 2008, the agent of the Authority accepted her claim under s98C of the Act in relation to her back.[27]
·She also confirmed that she received the letter dated 29 September 2008 from the agent of the Authority accepting liability for a neck injury, both shoulders, both elbows and some gastric condition.[28]
[27]See Exhibit 2
[28]See Exhibit 3
The Medical Treatment of the Plaintiff
30 The plaintiff underwent the following radiological studies:
(a)MRI scan of her right shoulder of 15 June 2006.[29] The radiologist concluded:
[29]See Exhibit 14 at page 102 PCB
“Findings suggest subacromial impingement with bursitis and moderate supraspinatus tendinosis.”
(b)MRI scan of the left shoulder undertaken on 16 June 2006.[30] The radiologist reported:
[30]See Exhibit 14 at page 103 PCB
“1 Moderate diffuse supraspinatus and infraspinatus tendinosis with only minor intrasubstance partial tearing. No full thickness tear of the rotator cuff. Minimal tendinosis of the subscapularis tendon.
2 There is mild subacromial bursitis and distal inferior acromial spurring, both of which can be associated with subacromial impingement.
3 Mild degenerative change of the AC joint.”
(c)CT scan of the lumbar spine undertaken on 30 October 2006.[31] The radiologist concluded:
[31]See Exhibit 14 at page 103.1 PCB
“L3/4 suspected mild right postero-lateral disc herniation.”
(d)MRI scan of the lumbar spine and pelvis undertaken on 19 March 2007.[32] The radiologist concluded:
[32]See Exhibit 14 at page 103.3 PCB
“Central disc protrusion at L3-4 contacting the traversing L4 nerve roots in the lateral recesses without evidence of significant displacement of the nerve roots. The other lumbar discs are normal in appearance with no further evidence of neural compromise. No evidence of pelvic mass or ascites. Previous hysterectomy and bilateral salpingo-oophorectomy noted.”
(e)CT scan of cervical spine undertaken on 9 November 2007.[33] The report reads:
[33]See Exhibit 14 at page 104 PCB
“C2/3
Normal.
C3/4
There is a small central disc bulge. Early hypertrophy and degenerative change of uncovertebral joints is seen. Minor degenerative change is seen in the right facet joint. The exit foramina are clear.
C4/5
There is a left sided disc bulge or disc herniation. This is associated with osteophyte lipping between the vertebral bodies, and encroaches upon the spinal theca and is close to the left exit foramen (C5 region). Early hypertrophy of the uncovertebral joints is seen more pronounced on the left. There is moderate narrowing of the left exit foramen. The right is clear.
C5/6
Early posterior osteophyte lipping is seen between the vertebral bodies, this is seen on the right. This is close to the right exit foramen. There is minimal arrowing of the right exit foramen.
C6/7
There is a moderate disc bulge with a prominence centrally and towards the right, this could be a small herniation. The exit foramina are clear.
C7/T1
Normal.”
(f)MRI scan of the cervical spine undertaken on 12 July 2008.[34] The radiologist concluded:
[34]See Exhibit 14 at page 104.2 PCB
“1Multilevel cervical spondylosis.
2Vertebral canal remains capacious throughout. There is no cord compression or cord signal abnormality.
3Moderate left C4-5 foraminal stenosis secondary to disc protrusion with compromise of the exiting C5 nerve root.
4 Mild bony foraminal stenosis bilaterally at C5-6.”
(g)CT scan of the lumbosacral spine undertaken on 14 November 2008.[35] The radiologist concluded:
[35]See Exhibit 14 at page 104.4 PCB
“No neural compression or entrapment is evident, but there are some mild to moderate facet joint degenerative changes bilaterally at the lumbosacral level.”
(h)CT scan of the cervical spine undertaken on 16 September 2009.[36] The radiologist reports:
[36]See Exhibit 14 at page 104.5 PCB
“C2/3 Level
Mild right posterolateral disc bulging is seen without canal stenosis or nerve root impingement.
C3/4 Level
Small posterior central broad based disc protrusion slightly indents the ventral cervical cord. No nerve root impingement.
C4/5 Level
Moderate left neuroforaminal stenosis with probable contact or impingement of the exiting left C5 nerve root due to uncovertebral osteophytes.
C5/6 Level
Small right posterolateral disc osteophyte complex narrows the neural foramina with probable contact of the exiting right C6 nerve root. No canal stenosis at this level.
C6/7 Level
Minor posterior disc bulging only without canal stenosis or nerve root impingement.
C7/T1 Level
No abnormality.”
(i)MRI scan of bilateral shoulders undertaken on 15 July 2010.[37] In relation to the right shoulder, the radiologist concluded:
[37]See Exhibit 14 at pages 105-106 PCB
“A very mild degree of subacromial and subdeltoid bursitis associated with tendinosis of the mid to posterior fibres of supraspinatus and the infraspinatus insertion. Minor degree of superior labral degenerative fraying.”
In relation to the left shoulder, the radiologist concluded:
“Supraspinatus and to a lesser degree infraspinatus tendinosis with bursal surface fraying of supraspinatus and a mild degree of subacromial and subdeltoid bursitis with mild acromioclavicular arthropathy.”
(j)MRI scan of the lumbar spine undertaken on 19 October 2010.[38] The radiologist concluded:
“Minor early degenerative changes at L4/5 but no evidence of central canal or foraminal stenosis at any level and no exiting nerve root impingement is seen.”
[38]See Exhibit 14 at page 106.1
31 Dr Hakan Baglar gave evidence on behalf of the plaintiff. He carries on general practice in Dalton Road, Epping and has been a general practitioner for about thirty years.
32 Dr Baglar gave evidence that the plaintiff had been a patient of his for many years, extending back to an indeterminate time prior to 22 October 1999. When consulting with the plaintiff, they converse in their native Turkish language.
33 Dr Baglar gave evidence that the contents of various reports made by him were “true and correct” and that he adopted the opinions he expressed in those reports.[39] Those reports consisted of the following:
[39]See T 121, L 21-24
(a)Report dated 12 April 2006 to CGU Worker’s Compensation Insurance.[40]
[40]See Exhibit 6 at page 38 PCB
(b)Report dated 29 May 2007 to the solicitors for the plaintiff.[41]
[41]See Exhibit 6 at page 41 PCB
(c)Report dated 24 September 2007 to the Accident Compensation Conciliation Service.[42]
(d)Report dated 18 April 2009 to QBE Worker’s Compensation (Vic) Ltd.[43]
(e)Report dated 27 April 2009 to the solicitors for the plaintiff.[44]
(f)Report dated 21 December 2009 to the Accident Compensation Conciliation Service.[45]
(g)Report dated 19 April 2010 to the Accident Compensation Conciliation Service.[46]
(h)Report dated 1 November 2010 to the solicitors for the plaintiff.[47]
(i)Report dated 1 November 2010 to the solicitors for the plaintiff, referred to as an “amended” report.[48]
(j)Report dated 25 December 2010 to the Accident Compensation Conciliation Service.[49]
(k)Report dated 5 March 2012 to the solicitors for the plaintiff.[50]
[42]See Exhibit 6 at page 44 PCB
[43]See Exhibit 6 at page 46 PCB
[44]See Exhibit 6 at page 49 PCB
[45]See Exhibit 6 at page 51 PCB
[46]See Exhibit 6 at page 54 PCB
[47]See Exhibit 6 at page 57 PCB
[48]See Exhibit 6 at page 60 PCB
[49]See Exhibit 6 at page 63 PCB
[50]See Exhibit 6 at page 65.1 PCB
34 In evidence-in-chief, Dr Baglar was taken to his clinical notes and in particular, the note on 22 March 2005, which stated:
“Hurt her low back. She was lifting a big roll of – rolls averaging 8 kilograms. Her low back gave way. Had to squat half way when she’s raising. Felt low back pain again. On examination she had good flexion, extension and normal straight leg raising at the time, and she was prescribed with Nurofen, Dencorub.”
The doctor noted at that time that the plaintiff did not want to lodge a WorkCover claim.
35 After perusing his notes, Dr Baglar could find no earlier reference to any low-back problem other than a note on 30 March 2001, which read:
“She was afebrile on that day. She had tender cervical adenopathies around her neck. Her ears were clear, chest clear. Early viral upper respiratory tract, and Panadol given, rest advised. In terms of her low back she had reduced flexion, reduced extension, a relatively normal straight leg raising test and she was prescribed Cenovis on that occasion.”
36 Dr Baglar notes that he consulted the plaintiff on 26 October 2005 when she was complaining of left shoulder and left elbow pain since 25 August 2005 but with no particular incident precipitating such symptoms. Prior to presenting to Dr Baglar’s clinic, the plaintiff had attended another doctor, who referred her to a consultant physician and rheumatologist, who in turn arranged an ultrasound for her shoulder and elbow.
37 Dr Baglar referred her to physiotherapy and hydrotherapy and prescribed modified duties on reduced hours. However, he notes that she had to cease work because of her ongoing symptoms. At that stage, Dr Baglar diagnosed a partial thickness tear in her left supraspinatus tendon (in the shoulder) and common extensor tendinopathy or small partial tearing extensor tendons of the left forearm.
38 Dr Baglar records that at some time in early 2007, the plaintiff asked whether her “back condition” could be added to the existing WorkCover claim – presumably for the left arm and shoulder condition. Dr Baglar notes her reported injury on 22 March 2005 and notes that on 26 October 2006, she again complained of low-back pain, but the examination was “insignificant”. Dr Baglar referred her for CT scan (on 30 October 2006) and noted that the scan depicted a suspected L3-L4 mild right posterolateral disc herniation.
39 Dr Baglar referred the plaintiff to the neurosurgeon, Mr Paul D’Urso, for an opinion, who in turn arranged for the plaintiff to undergo the MRI scan of the lumbar spine on 19 March 2007. According to Dr Baglar, the plaintiff was given the option of surgery by Mr D’Urso and that the level of her symptoms would determine the need for such surgery.
40 Dr Baglar comments that the plaintiff failed to show any improvement in any of her conditions and he noted the onset of depression, for which he referred the plaintiff to a psychologist. In particular, he noted in his report dated 27 April 2009 that her depression was the “biggest obstacle for her to benefit from … rehabilitation”.[51]
[51]See Exhibit 6 at page 50 PCB
41 In the so-called amended report of 1 November 2010, Dr Baglar notes that other than making complaints in her left elbow and left shoulder, the plaintiff also, later, complained of neck pain and pains in her other elbow. The plaintiff considered that her neck and right elbow conditions were due to her work activities. Dr Baglar notes that the neck was investigated and was found to reveal degenerative changes with disc bulging and that her right elbow also had evidence of epicondylitis.
42 Dr Baglar noted that the plaintiff did on occasion get back to various hours of work with the employer but finally had to cease work. In his final report dated 5 March 2012, Dr Baglar states:
“Mrs Nurdan Yarpuzlu has been under my medical management since 2005 for her work related multiple medical conditions.
Her injuries mainly are her neck, low back, both shoulders and bilateral elbow injuries; she also suffers from chronic depression, relevant to her physical conditions. All of her injuries are acknowledged to be due to her employment and have been managed under two different claim numbers.
…
Regardless of what other specialists think about her and her progress, I state that I am the one who had the chance to observe her and her progress along the years, in the most consistent manner and I can confidently state that nothing much changed in her overall status. Although she is much less pain focused and seems that she is now grasping the fact that there is no real solution to her pain and she has to live with it for the rest of her life, she still has substantial level of pain in various parts of body.
Her ongoing pains are still interfering with her functioning in her daily life as a mother, as a housewife and also as an individual. As I stated earlier, she is still far from being capable of performing her household chores and this fact recently acknowledged by ACCS. I think if there is one thing she achieved from Dr Lim’s program, it is her acceptance of her pain and naturally this acceptance alone took the edge of her depression. Although she is still using antidepressant medication, she is not brooding on her pain and on her physical limitations. In short, she is much better than her earlier stages but still far from being recovered. I believe her condition stabilized at a less than ideal level and I do not expect any further recovery.
I state that she still has substantial level of pain and she is [s]till unfit for her pre-injury tasks or for any employment which might have similar demands. I believe this state is irreversible.
In the past, multiple times, the prospects of her being vocationally rehabilitated/retrained were discussed with the insurer and her RTW organizers.
After gaining some self-confidence, through pain management program, Nurdan did explore the possibility of performing voluntary work but her English is not good enough to participate in such activities and she is still limited in her physical abilities.
In short Nurdan is permanently unfit to take part in any meaningful employment and she is not capable of sustaining any employment for the rest of her life.”[52]
[52]See Exhibit 6 at pages 65.1-65.2 PCB
43 The plaintiff was referred by her general practitioner to the neurosurgeon, Mr P D’Urso, on 16 February 2007 and later for review on 11 May 2007.[53]
[53]See report dated 21 May 2007 Exhibit 7 at page 72 PCB
44 At the time of the initial consultation, Mr D’Urso obtained a history that the plaintiff “in approximately May 2006”, lifted an 8-kilogram container of cotton balls and dropped this because of a shoulder injury and when going to pick it up, she experienced low-back pain. The pain gradually worsened over time, and in October 2006, the pain became “significantly worse”.
45 Shortly after that, the plaintiff was diagnosed with having an ovarian tumour, for which she underwent surgery in December 2006. Low-back pain persisted after surgery and there was some paraesthetic sensation in the legs – the left side being worse than the right.
46 After a clinical examination and inspection of the CT scan undertaken on 13 October 2006 and the MRI scan undertaken on 19 March 2007, Mr D’Urso was of the opinion that the plaintiff had suffered an L3-4 central disc prolapse. Furthermore, he was of the opinion that the bending and twisting movement described by the plaintiff during the course of her employment caused the L3‑4 disc prolapse. In particular, Mr D’Urso stated, as at May 2007:
“This type of injury is evident on MRI imaging and would be consistent with at least her complaint of back pain. I am not aware of any pre existing condition that Nurdan suffers and in fact the rest of her spine looks quite satisfactory given her age. It would appear to be an isolated disc injury at L3-4.
…
Currently Nurdan has not capacity for pre injury employment. I do not believe she has capacity for any type of employment which would require any manual or physical labour. She should not be required to bend and twist her spine, she should not be required to lift weight in excess of 10kg. She should not be required to sit or stand in excess of one hour. She should have the ability to ambulate freely in the work place. I would be surprised if any type of work for which Nurdan has the skills or ability to perform would fall within these restrictions. I would also recommend that Nurdan not work more than 20 hours week at a time.”[54]
[54]See Exhibit 7 at page 73 PCB
47 Mr D’Urso noted that there was an element of Adjustment Disorder and non-organic factors were influencing her presentation.
48 Seemingly, the plaintiff was referred back to Mr D’Urso for a medico-legal opinion in June 2008 and in particular, for an opinion in relation to her neck and shoulder condition. When seen by Mr D’Urso on this occasion, he obtained a history that on or about 25 August 2005, the plaintiff was performing her duties as a machine operator involving repetitive work when she developed bilateral shoulder pain. Since then, she has experienced symptoms in her neck and shoulder.
49 At the time of the examination, Mr D’Urso noted that the plaintiff stopped work on 27 October 2006 and was taking Mobic, three Mersyndol Forte a day, and OxyContin, 20 milligrams, two or three times a week, as well as Mogadon at night.
50 After clinical examination and inspection of her CT scan dated 9 November 2007 of the cervical spine, Mr D’Urso was of the opinion that the repetitive movements of the neck performed at work for an extended period of time contributed to a degree of injury at the C4-5 disc. Mr D’Urso considered it likely there was some degree of pre-existing degenerative spondylosis and that such work contributed to the progression of such condition.
51 At that time, he considered the plaintiff had no capacity for any type of work for which she had the ability to perform and in particular, had no capacity for pre-injury duties, and further investigation of her neck was necessary.
52 The neurosurgeon and spinal surgeon, Dr Warren Boling, examined the plaintiff on referral from Dr Baglar on 29 June 2010.[55] At that time, he confirmed that the plaintiff had a work-related injury in March 2005 (the left shoulder and arm) and later, when retrieving what he refers to as a large cotton ball from the floor, she had the sudden onset of pain in her back. Over time, she also developed pain in her neck, both elbows and both shoulders, causing her to stop work in October 2006.
[55]See Exhibit 7 at pages 86–89.1 PCB
53 At the time of examination, she described pain radiating from her back to both legs and a burning feeling in the soles of both feet. Furthermore, she described pain in the neck, shoulders and elbows, and has numbness in both hands, worse on the left. After reviewing the MRI scan of the lumbar spine performed on 19 March 2007, Dr Boling was of the opinion that the plaintiff had a degree of disc disease in both the lumbar and cervical spines. He saw no good surgical option for her “Pain Syndrome” and suggested that she have a nerve conduction study performed to evaluate the left ulnar nerve for neuropathy.
54 He did consider that her back and neck pain was a result of discogenic disease of the lumbar spine. Furthermore, he states, in part:
“In my opinion, her current pain complex would not permit her to return to her preinjury employment, as this repetitive and physical labouring activity would only aggravate her pain condition. I would recommend she be evaluated by Dr Robert Gassin for additional treatment options, which could include injection treatments. … In general, she would be unable to return to an occupation which required heavy lifting or repetitive bending twisting activities into the foreseeable future, as these activities would certainly aggravate her pain symptoms.”[56]
[56]See Exhibit 7 at page 89 PCB
55 Dr Baglar also referred the plaintiff to the orthopaedic surgeon, Mr C Pullen, who initially examined the plaintiff on 7 July 2010.[57] The purpose of the referral was for diagnosis and treatment of her left shoulder and arm condition.
[57]See Exhibit 8 at pages 90–97 PCB
56 After examination of her shoulders and previous radiological investigations, Mr Pullen expressed the opinion that it was “unclear” the cause of the plaintiff’s pain, and he wondered at the time whether the pain related to her neck, given the diffuse nature of the problem and the neurological symptoms.
57 When later reviewed on 11 August 2010 and with the advantage of the MRI of both shoulders undertaken on 15 July 2010,[58] Mr Pullen was of the opinion that the changes on the MRI scan point to the fact that the “majority of her issues are likely coming from her neck”. Mr Pullen did consider there was some ongoing minor impingement giving rise to some of the pain in the shoulders. He noted that the plaintiff was of the view that the pain in both arms and shoulders was due to the repetitive nature of her work with the defendant.
[58]See Exhibit 14 at pages 105–106 PCB
58 Dr Terence C Lim, the consultant in rehabilitation and pain medicine, reports, as at 1 December 2011 (that is, after the completion of the pain management course undertaken by the plaintiff), that the plaintiff was increasing her engagement with the local community and at home, which hopefully will cause her to focus less on the negative aspects of her life, including the persistent pain.[59] In a report dated 31 January 2012[60] Dr Lim states, in part:
“She remains entrenched in chronic pain syndrome where she is still limited in her engagement back into society – she continues to attend the local gym/hydrotherapy 2 to 3 times per week, she does visit her mother and shops with her sister. She can drive herself. She also goes to the bank and to the post office. When she feels relatively well, she does the cooking and some of the washing.
...
She did explore the possibility of performing voluntary work but her English is not good enough to participate in some of the activities and her physical abilities are limited.
She does need to continue to work with Dr Elliott, her NERC psychiatrist. When the timing is right, Dr Elliott can direct her to my office to arrange a review appointment.”[61]
[59]See Exhibit 9 at page 97.1 PCB
[60]See Exhibit 9 at page 97.2 PCB
[61]See Exhibit 9 at page 97.2 PCB
59 The musculoskeletal physician, Dr Robert Gassin, consulted with the plaintiff on 31 March 2011 as a result of a referral from the neurosurgeon, Mr W Boling.
60 At that examination, the plaintiff gave a history of experiencing the sudden onset of low back and bilateral leg pain in March 2005 as a result of bending over to pick up a large “cotton ball”. She complained that the main pain was in the low back and legs, and varied in intensity.
61 After examination and a review of the MRI scans of the lumbar spine of 19 March 2007 and an MRI scan of the cervical spine on 12 July 2008, Dr Gassin diagnosed the plaintiff to be suffering from “chronic, widespread musculoskeletal pain” although the specific pain sources were “elusive”.
62 Dr Gassin considered the MRI scans to be normal for a lady of the plaintiff’s age, but did state:
“On the basis of the history and examination findings, I form the opinion that Mrs Yarpuzlu’s low back and bilateral leg pain is a direct consequence of her employment. I cannot confirm or deny a relationship between her neck, shoulder and arm pain and her employment.
I have not specifically assessed Mrs Yarpuzlu regarding her fitness for work. However, I form the opinion that at the time of consulting me, she did not have a fitness for work, on account of her chronic pain conditions.”[62]
[62]See Exhibit 12 at page 97.4–97.5 PCB
63 Dr Gassin recommended that the plaintiff undergo a pain management course, which was undertaken in the latter half of that year.
64 Dr Baglar also referred the plaintiff to the orthopaedic surgeon and spinal surgeon, Mr Justin Hunt, who initially examined the plaintiff on 22 November 2010.[63] Mr Hunt obtained a history that in early 2005, the plaintiff noticed some pain in both shoulders, but more so in the left shoulder, and such pain radiated into her neck and elbows. He also obtained a history that on 25 March 2005, she was picking up an 8‑kilogram bobbin and noted pain in her low back.
[63]See Exhibit 11 consisting of reports dated 22 November 2010 at page 122 PCB; and 9 February 2011 at 133.1 PCB
65 After an examination and review of the radiological studies, which included all those studies up to and including the MRI scan of the cervical spine on 12 July 2008, Mr Hunt made a diagnosis of:
(a)Axial neck pain and bilateral upper limb pain symptoms secondary to symptomatic cervical spondylosis, the most severe changes involving the C4‑5 and C5‑6 motion segments;
(b)Lower back pain, bilateral lower limb pain symptoms secondary to degenerative disc disease and angular tear at the L3‑4 motion segment;
(c)Bilateral shoulder impingement syndrome (subacromial bursitis and rotator cuff tendinitis);
(d)Bilateral elbow epicondylitis.
66 Furthermore, Mr Hunt was of the opinion that the physical nature of the plaintiff’s work with the defendant, which he described as “repetitive and heavy”, led to an “aggravation of pre-existing spinal spondylosis and has produced the symptoms in her neck and both arms”. Furthermore, Mr Hunt considered that the repetitive bending, lifting and twisting that was required during the course of her employment is likely to also have aggravated pre-existing degenerative changes in the L3-4 disc, as well as possibly contributing to the development of an annular tear.
67 Mr Hunt was also of the opinion that the plaintiff was unable to work as a result of her “work-related injuries” and that the pain, restriction and disability that she suffers derives from the physical injuries sustained to her cervical and lumbar region, and also to her shoulders.
68 In a subsequent report,[64] Mr Hunt reviewed the last MRI scan of the lumbar spine performed on 19 October 2010. He points out that although the radiologist referred to the L4-5 disc in such scan, it is probable that what was meant was the L3-4 disc. In particular, Mr Hunt states:
“In addition, I confirm that I believe that this disc is producing Mrs Yarpuzlu’s symptoms of lower back and bilateral lower limb pain. The absence of nerve root impingement does not preclude patients from experiencing leg pain symptoms. Referral of pain to the leg can occur as referred pain from the injured disc at the L3-4 (L4-5) motion segments.”[65]
[64]See Exhibit 11 at page 133.1 PCB
[65]See Exhibit 11 at page 133.2 PCB
The Cross-Examination of Dr Baglar
69 Dr Baglar gave evidence that although he initially thought that the pain in the left shoulder and arm flowed from a tear in the left supraspinatus tendon, his view changed, that it was far more likely that most of the pain experienced in the shoulder areas, particularly on the left side, was due to her neck, although some of the symptoms were due to the tear in the supraspinatus. Dr Baglar accepted that his opinion that the plaintiff was unfit for her pre-injury employment or any employment was as a result of a combination of the conditions suffered by her in her left elbow, left shoulder, neck, low back, and chronic Major Depression. In particular, the following evidence was given:
Q:“In any event, Doctor, certainly by the time the amended report, if we can call it that, was written and signed and adopted by you, you were looking at, I suggest, six different conditions that were impacting upon Mrs Yarpuzlu’s capacity for employment. Would you agree with that?---
A:Yes.
Q:You were looking at six different conditions that were impacting upon her activities of daily living?---
A:Yes.
Q:Those conditions have continued to this day to impact upon her, haven’t they?---
A:Yes, they do.”[66]
[66]T 135, L16‑25
70 Dr Baglar accepted that overarching all her physical conditions was her psychiatric state and also a Chronic Pain Syndrome which he described as –
“… having an unrelenting pain, making [the] patient’s overall condition quite depressed and affecting her relationships, her daily life.”[67]
[67]T 145, L21-23
71 Counsel for the defendant put the opinion of Mr Kudelka (an orthopaedic surgeon retained by the defendant) to Dr Baglar and in particular, the opinion of Mr Kudelka (partly based on a vocational assessment report), that the plaintiff was capable of working as a hand-packer, a light process worker, a product assembler or product examiner. Dr Baglar rejected such jobs.
72 Later, when pushed about that type of work the plaintiff could do, Dr Baglar states:
A:“What I am finding most difficult – I – as a doctor we have difficulty isolating one injury from the other. Legal profession can do this very well, very good but we can’t do that. A person as a whole, your Honour, her neck contributed, low back contributed but let me tell my opinion, Your Honour. If she didn’t have any neck injury or low back injury, just on the basis of her initial shoulder and elbow, I ask this question myself, whether she should be able to go back to work. Yes, Your Honour, she could. She’s not paralysed. She’s not disabled permanently 100 per cent on the base of – of course they have contribution to her overall state. But on the other hand, just considering her low back injury alone, forget the rest, Your Honour. I am not insisting she’s permanently so that she can’t do anything.
Q:She can’t do anything?---
A:She can’t do anything. This is my personal opinion, Your Honour. Again, let’s isolate her neck injury alone from all the others, just purely on the basis of her cervical spine state, I don’t think she can work, Your Honour. This is my personal opinion. Counsel, other person may not share this but this is how I think about my patient, Your Honour.
Q:I am just curious, Doctor, about the neck. Why would the neck, if it was in isolation ... and she was an otherwise healthy person, why would that prevent her?---
A:Your Honour, for many, many years I have traced her shoulder. I was thinking that these are the causes of her severe disability. I even mistaken at the beginning, saying that on the basis of her shoulder and neck she can’t work, but lately it occurred to me that the partial tear or tendinopathy, they should not cause so massive a reaction. There has to be some different reason which at the end it proved that way, C4, C5, and I believe that her problem in the shoulder are, most of that, even if not 100 per cent, radiated from her neck, Your Honour. That’s why I think that this woman can’t work, on the basis of her back injury alone, and on the other side – on the base of her low back injury alone.”[68]
[68]T 152, L18–T 153, L24
73 Under re‑examination, Dr Baglar gave the following evidence:
Q:“I want you, if you would – you’ve sort of done this in part just in the last series of questions – in the context of her low back condition, what impact does it itself have on her capacity to do her pre-injury tasks or any other employment?---
A:She can’t sit on the same position too long time, reasonable time. She can’t stand for a certain time and she can’t walk long distances.
Q:And ...?---
A:She can’t bend down. She can’t rotate her spine comfortably in a pain-free fashion.
Q:Looking at that condition in isolation from any other, what impact does it have on her capacity for work?---
A:I don’t think that she can work.
Q:If I ask you to do the same in relation to her neck, what impact does it have on her ability to do any work, pre injury or other?---
A:Again I believe that even if I considered her neck condition in isolation I wouldn’t certify her fit for work, for any duties.”[69]
[69]T 155, L21–T 156, L6
Medico-Legal Reports
74 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by the following doctors:
(a)the neurosurgeon, Mr David Brownbill on 11 December 2007,[70] 1 December 2010[71] and on 13 February 2012;[72] and
(b)the general surgeon, Mr C Flanc, on 19 January 2011[73] and on 16 March 2012.[74]
[70]See report dated 12 December 2007, Exhibit 10, at page 107 PCB
[71]See report dated 2 December 2010, Exhibit 10, at page 114 PCB
[72]See report dated 9 March 2012, Exhibit 10, at page 121.1 PCB
[73]See report dated 27 January 2011, Exhibit 11, at page 134 PCB
[74]See report dated 19 March 2012, Exhibit 11, at page 147.1 PCB
75 Mr Brownbill assessed the plaintiff in relation to her low-back injury and obtained a history that on 22 March 2005, the plaintiff was working on the Loop machine and picked up an 8-kilogram bag of cotton from her pallet when she heard a click noise in her back and experienced pain in the lower back.
76 After examination and review of the then available radiological material, Mr Brownbill considered that the plaintiff had suffered damage to the L3-4 lumbar intervertebral disc as result of the forces sustained to the back on 22 March 2005. He did note that her demeanour and responses during the consultation suggested the development of an emotional reaction to the ongoing pain and activity restriction with likely depression (although he noted this is not his area of expertise).
77 At that time, he considered that she was incapable of returning to her pre-injury employment but had a capacity to perform work which did not involve heavy lifting, forced spine mobility, repeated bending or prolonged standing or sitting.
78 When reviewed on 1 December 2010, the examination did not reveal any neurological deficit and there were no signs of radiculopathy. Mr Brownbill was of the same opinion, that the plaintiff suffered damage to the L3-4 lumbar intervertebral disc and such condition had stabilised from a neurological point of view. In particular, he stated:
“Putting aside any mental behavioural aspect which might be said to be contributing to the perception of the symptoms and looking at the organic effects only, I consider the back injury has affected this lady’s capacity to undertake her pre-injury employment to a marked degree and alternative suitable employment in a moderate to marked degree.
…
I anticipate that pain will continue in a fluctuating manner indefinitely. I do not anticipate untoward neurological sequelae.
Putting aside any mental or behavioural aspect which might be said to be contributing to the perception of the symptoms and looking at the organic effects only (of the lower back injury) I consider this lady’s pain, restriction, disability and incapacity to derive from that physical organic injury to a significant extent.”[75]
[75]See Exhibit 10 at pages 116-117 PCB
79 When last reviewed on 8 March 2012, the plaintiff gave a history that she had attended a pain management clinic and that was she was “just the same as when I last saw you”. In particular, the plaintiff complained of low-back pain “all the time” which fluctuates in severity with any physical activity.
80 The examination again revealed restriction of spinal movement but no objective neurological abnormality or signs of radiculopathy. Mr Brownbill confirmed his opinion that the plaintiff continued to have damage to the lumbar intervertebral disc at L3-4 as a result of the work activity on 22 March 2005. Furthermore, he stated:
“She should in the future avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. I consider from a physical neurological point of view with respect to her lower back condition she would not be able to return to her described pre injury employment in the future. I consider that on probability as a result of that back condition she on probability would not be able to perform any employment for which she is suited in an ongoing and reliable fashion.”[76]
[76]See Exhibit 10 at page 121.3 PCB
81 When initially examined by Mr Flanc on 19 January 2003, the plaintiff gave a history that she “gradually developed” neck pain early in 2005 which spread to her shoulders and down to her elbows and that she had an episode of low-back pain on 22 March 2005 as a result of picking up an 8-kilogram bobbin of cotton.
82 After examination and a perusal of the various radiological studies to that time, Mr Flanc was of the opinion that the plaintiff suffered from:
(a)work aggravated and accelerated degenerative disease of her cervical spine which became symptomatic and has continued to be symptomatic;
(b)bilateral rotator cuff tendinopathy which “may” have been aggravated by heavier repetitive work during the course of her employment with the defendant;
(c)bilateral epicondylitis which Mr Flanc thought “likely” that the repetitive nature of her work with the defendant contributed to some degree to such condition. However, Mr Flanc also considered that the condition had largely receded, although such condition could reoccur if there was a return to repetitive use of the elbows and forearms;
(d)the specific incident which occurred in March 2005 resulted in a significant aggravation of pre-existing disc degeneration of the lumbar spine, in that it made it become symptomatic and has remained symptomatic;
(e)psychological factors (which are outside his expertise).
83 Mr Flanc was of the opinion that the plaintiff was not fit to return to either pre-injury duties or to any duties involving repetitive use of her upper extremities even if frequently light. In this sense, Mr Flanc seemingly aggregates the lower back, neck and arm injuries when considering her capacity for employment.
84 When reviewed by Mr Flanc on 16 March 2012, the plaintiff gave a history that she has undertaken a pain management program which was completed in January 2012. The plaintiff commented that such program had helped “a bit” and that she was more active than before and it had taught her to “manage her pain”. However, the plaintiff believed that the severity of her pain had not changed.
85 After examination, Mr Flanc confirmed his earlier diagnoses. In particular, he again maintained that the incident at work in March 2005 resulted in a significant aggravation of pre-existing disc degeneration of the lumbar spine which became symptomatic and has remained symptomatic. He did note that there was no evidence of radiculopathy.
86 Further, Mr Flanc noted that all of her symptoms are being influenced by significant non-organic factors.
87 In relation to capacity for work, Mr Flanc considered she was unfit to return to pre-injury duties or any duties involving repeated use of her upper extremities including lifting, twisting or other repetitive movement. He also considered she would be unable to cope with any work involved with repeated bending. Ultimately, he expressed the opinion that considering her age, work experience, education and difficulty with English, he doubts whether she had any realistic work capacity in the open market.
88 The plaintiff also relies on a report from Dr Malcolm Brown, an occupational physician, who was retained by the agent of the defendant and examined the plaintiff on 25 January 2006.[77]
[77]See reported dated 25 January 2006, Exhibit 15, at page 134 DCB
89 Dr Brown obtained a history that in relation to the left shoulder pain, the plaintiff did not suffer any acute traumatic injury but, rather, noticed the gradual onset of such pain from about mid 2005. The plaintiff associated such pain with her sewing tasks, particularly operating the loop and Adler machines.
90 After examination and perusal of various radiological studies available at that time, Dr Brown expressed the opinion that the plaintiff had symptoms of minor left-sided rotator cuff dysfunction but no restriction of movement on physical examination and no radiological evidence of significant pathology. In particular, the partial thickness tear of the biceps tendon on ultrasound was probably an artefact and it did not correlate with the symptoms of physical examination, and there are no workplace risk factors for such a condition. Ultimately, Dr Brown considered that her employment was unlikely to have been a contributing factor to either her shoulder or elbow conditions.
91 The plaintiff also relies on a medical report from Dr G Davison, who examined the plaintiff on 25 March 2008 on behalf of an agent of the defendant.[78] Dr Davison was of the opinion that any pain in her neck or shoulder girdles result from a constitutionally based condition which was likely to be permanent and may gradually worsen over time. However, he considered there was “no evidence at all” to implicate the employment of the defendant with her then current condition.
[78]See report dated 2 April 2008, Exhibit 15, at page 141 DCB
92 It is also convenient to refer to the medico-legal examinations arranged by the defendant. Such examinations involved:
(a)Dr David S Elder, a consultant in occupation and environmental medicine, who examined the plaintiff on 9 September 2008;[79]
(b)Dr David Fish, consultant occupation and environmental physician, who examined the plaintiff on 4 December 2009;[80]
(c)Dr Tony Kostos, rheumatologist, who examined the plaintiff on 24 October 2005;[81]
(d)Mr Peter Kudelka, orthopaedic surgeon, who examined the plaintiff on 9 June 2009,[82] 7 December 2010,[83] 29 September 2011[84] and on 21 June 2012;[85]
(e)Dr N R Rose, consultant psychiatrist, who examined the plaintiff on 21 April 2008,[86] 16 March 2009,[87] 13 December 2010,[88] 20 September 2011[89] and on 12 June 2012;[90]
(f)Dr Mary Wyatt, occupational physician, who examined the plaintiff on 4 April 2008[91] and on 11 March 2009;[92]
(g)Mr Peter Battlay, general surgeon, who examined the plaintiff on 13 August 2007.[93]
[79]See report of same date, Exhibit E, at page 146 DCB
[80]See report of same date, Exhibit 9, at page 155 DCB
[81]See report of same date, Exhibit E, at page 160 DCB
[82]See report dated 11 June 2008, Exhibit E, at page 164 DCB
[83]See report dated 10 December 2010, Exhibit B, at page 173 DCB
[84]See report of same date, Exhibit E, at page 180a DCB
[85]See report dated 25 June 2012, Exhibit E, at page 180e DCB
[86]See report of same date, Exhibit E, at page 181 DCB
[87]See report of same date, Exhibit E, at page 193 DCB
[88]See report of same date, Exhibit E, at page 203 DCB
[89]See report of same date, Exhibit E, at page 209a DCB
[90]See report of same date, Exhibit E, at page 209, 209i DCB
[91]See report dated 6 April 2008, Exhibit E, at page 223 DCB
[92]See report dated 14 March 2009, Exhibit E, at page 227 DCB
[93]See report of same date, Exhibit E, at page 130 DCB
93 Dr Elder examined the plaintiff on 9 September 2008 for the purposes of a AMA assessment for injuries to the shoulders, elbows, gastric injury and neck. During that examination, Dr Elder noticed there was “significant inconsistency” in her responses at his examination compared to the findings of other examiners. He was of the opinion that there was no medical condition affecting her elbows, although he did accept that probably she did have epicondylitis bilaterally and that the effects had resolved. Furthermore, he accepted that the plaintiff had mild rotator cuff pathology of both shoulders and some degree of gastric symptoms every two to three weeks. In particular, the examination of the plaintiff’s neck did not reveal any “verifiable significant findings of persisting injury or impairment of the cervical spine and, in particular, there is no verifiable paravertebral muscle tenderness”.[94]
[94]See Exhibit E at page 151 DCB
94 Dr Fish examined the plaintiff on 4 December 2009 for an AMA assessment in relation to the low back said to have occurred on 22 March 2005. After examination, Dr Fish was of the opinion that there was no evidence of radiculopathy and no findings consistent with radiculopathy on investigations. He diagnosed an aggravation of lumbar spondylosis with disc degeneration at the L4-5 level. Although he refers to L4-5 disc degeneration, he seemingly meant to refer to L3-4 disc degeneration.
95 Dr Kostos, after examination of her shoulders, upper arms and elbow, found no abnormalities at all in these areas, but did find diffuse muscle tenderness suggestive of a Pain Syndrome. In particular, he could not find any objective physical abnormality and was of the opinion that the employment had not significantly contributed to any of her conditions.
96 Mr Kudelka initially examined the plaintiff on 9 June 2009 and obtained a history that she was “well” until August 2005, when she became aware of pains in her arms and shoulders, which was aggravated by the repetitive manual nature of her work. She later experienced pain in her back and neck.
97 Mr Kudelka, after that first examination, was of the opinion that the plaintiff suffered degenerative changes in the cervical spine, both shoulders and dorsal spine, which were aggravated by the nature of her employment in 2005. However, he considered that any aggravation of such pre-existing degenerative changes had “now resolved” as she had not worked for some three years. Furthermore, he commented there were no signs of functional overlay, exaggeration, psychological or psychosomatic practice.
98 Because of her ongoing constitutional condition, he considered that she only had a capacity to perform suitable employment with restrictions.
99 Later, he was supplied with some vocational assessment material and considered that she would be capable of performing work as a café assistant (provided no weight lifting of five kilograms and there were opportunities to sit for ten minutes every hour); hand picker (with the above restrictions); light process worker (with the above restrictions); product assembler (with the above restrictions); product examiner (with the above restrictions), and sewing machinist.
100 When he re-examined the plaintiff on 7 December 2010, he was of the opinion that the nature of her employment would have aggravated age-related degenerative changes in her neck, back and shoulders, but now there was no detectable element of the aggravation associated with her employment. He considered the underlying degenerative changes in those areas were within normal limits for a woman of her age.
101 Curiously, Mr Kudelka again refers to the jobs that he made reference to in his earlier report and now considers such jobs would require some mechanical strain to the neck and shoulders in particular, and would not regard them as suitable.
102 When seen on 26 November 2011, Mr Kudelka was of a similar opinion, that although the plaintiff had a reduced capacity for work, such incapacity was a result of her underlying constitutional condition rather than any aggravation by employment of her pre-existing conditions.
103 When last examined on 21 June 2012, Mr Kudelka expressed the opinion that the presentation of the plaintiff is now a “combination of age-related degenerative changes of the neck, back and shoulders, with a strong psychosomatic element”.[95]
[95]See Exhibit E at page 180f DCB
104 Furthermore, Mr Kudelka, after that examination, considered the plaintiff was capable of performing work as a café assistant, hand painter, light process worker, product assembler and product examiner. He considered that she was incapable of working as a sewing machinist.
105 When Dr Rose initially examined the plaintiff on 21 April 2008, it was to determine whether liability would be accepted for any psychiatric condition. At that time, Dr Rose considered the plaintiff to be “mildly depressed” but with no objective signs of psychiatric illness. He considered that the plaintiff had a poor motivation to return to work because of the presence of ongoing pain. Dr Rose considered, from a psychiatric perspective, she did have a current work capacity.
106 In a later report dated 12 May 2008, Dr Rose expressed the opinion that the chronic, mild, psychiatric symptoms which have persisted after the original physical injuries had resolved (as he assumed) suggests a Pain Disorder with elements of secondary gain and abnormal illness behaviour.
107 When reviewed on 16 March 2009, Dr Rose comments that the plaintiff continues to “suffer from chronic intractable pain” and noted that there was dispute as to whether or not the chronic pain was work-related. Furthermore, Dr Rose noted that the plaintiff appeared to have “deteriorated since ceasing work” and he considered that this was almost certainly a reflection of growing abnormal illness behaviour. He was of the opinion that any ongoing depression was mild, and could not understand why she was having regular psychological treatment, as such is inappropriate in cases of chronic pain. He ultimately diagnosed the plaintiff to be suffering from a Pain Disorder and an Adjustment Disorder with Mixed Anxiety and Depressed Mood which arose out of the physical conditions suffered by the plaintiff. If such physical injuries were due to her employment with the defendant, then the psychiatric condition is then related to such employment. He considered that from a psychiatric perspective, the plaintiff had a current work capacity and would be fit for pre-injury employment because her depression was well controlled with Effexor.
108 When reviewed on 13 December 2010, Dr Rose commented that the plaintiff is “hardly depressed at all” and that any mild depressive symptoms have “virtually resolved”. He considered the plaintiff to be suffering from a mild Adjustment Disorder which has now resolved with appropriate anti-depressant medication. From a psychiatric perspective, he considered her to have a full capacity for work.
109 When reviewed on 20 September 2011, Dr Rose again was of the opinion that the plaintiff suffered from a very mild Adjustment Disorder with Depressed Mood which had almost resolved with treatment. Furthermore, from a psychiatric perspective, she had a full capacity for work and fitness to undertake to pre-injury duties.
110 When last seen on 12 June 2012, Dr Rose diagnosed Adjustment Disorder with Depressed Mood and Pain Disorder with mixed organic and psychological factors. Dr Rose also commented that, because of the Pain Disorder, there is evidence of pain exaggeration and pain preoccupation and in particular, the plaintiff appeared to lack insight to such condition and that further pain management treatment would not be of use.
111 Dr Rose considered that the plaintiff’s condition had stabilised and that she would probably need to take continuing anti-depressant medication indefinitely. Furthermore, he stated it is unlikely that the effects of the work-related injury will ever cease and that non-organic factors, including cultural and personality factors, are contributing to her condition.
112 When initially seen by Dr Wyatt on 4 April 2008, the plaintiff presented with ongoing muscular aches in her neck, back and arms. Dr Wyatt considered that her work with the defendant at the time of onset of such soreness (2005) was a contributing factor to the development of such symptoms. However, at the time of examination, Dr Wyatt considered that there was no contribution from employment to the ongoing muscle soreness. Furthermore, Dr Wyatt was of the opinion that there was “no medical condition that should preclude Mrs Yarpuzlu returning to the workforce on a broad range of work, including pre-injury tasks”.
113 When reviewed on 11 March 2009, the plaintiff complained of worsening symptoms in her shoulder, neck, elbows and lower back. In particular, Dr Wyatt stated:
“Ms Yarpuzlu advises widespread pain, through her neck, back, arms and legs.
Her scans are noted, however it is important to assess the clinical situation overall and her clinical presentation does not suggest rotator cuff pathology, brachial neuralgia or a localised or specific tendonitis.
Thank you for the various medical reports included. There is a variety of opinion in the reports from this being a work related problem to a constitutionally based problem, to it being a specific disc problem in the back, to there being no specific medical identifiable condition. I think the variation in medical opinion reflects the issue that medicine per se plays a small part in this clinical situation.
It is reasonable to accept Ms Yarpuzlu has soreness in various aspects of her body, this is not uncommon in her age group, it is more likely noting she has worked as a machinist with repetitive activities over a number of years. However, the reported disability is out of proportion to the medical condition. In fact I would say there is a disconnect between the medical condition and the overall situation. Ms Yarpuzlu’s physical problem would not be expected to cause a substantive disability. Her medical condition would be expected to cause difficulty with a lot of repetitive activity that should not preclude her from doing a broad variety of activities at home.
…
You have asked whether Ms Yarpuzlu’s current condition continues to significantly relate to her previous employment. I think it is reasonable to accept her employment was a contributing factor to the symptoms she experienced at the time she was working.
At this stage her employment does not present to materially contribute to an incapacity for work. In making this statement I note her symptoms have advisedly worsened despite being off work, that there are relatively common symptoms in the community, and that the general nature of her medical condition would not be expected to result in an incapacity for work. One might say her beliefs or perception about the situation is influencing the reported disability.”[96]
[96]Exhibit E at pages 209-210 DCB
114 In a later report dated 22 July 2009, Dr Wyatt accepted that employment options of café assistant, hand packer, light process work, product assembly, product examining and sewing machinist were “reasonable options”. In particular, Dr Wyatt stated:
“Encouraging Ms Yarpuzlu to remain active and move about intermittently would be preferable, and so the jobs as a café assistant or similar type work would be the best type of work. Alternatively, cleaning duties in a shopping centre, which are often quite light and require the person to keep active, would be worth considering.”[97]
[97]See Exhibit E at page 294
115 When seen by Mr Battlay on 13 August 2007, Mr Battlay obtained a history that she suffered a back injury as a result of lifting an 8-kilogram cotton bobbin from the floor in March 2005. Furthermore, the plaintiff complained that the back pain has continued to bother her and she has been experiencing pain in both legs, the left more than the right, which has not improved. Mr Battlay had available to him an MRI scan of the lumbar spine (probably 19 March 2007) and the CT scan of the lumbar spine (probably 30 October 2006). He was of the opinion that the plaintiff had an L4-5 disc derangement and probable age-related degenerative weakening. He further considered that the employment had not aggravated or accelerated or exacerbated such condition and furthermore, the plaintiff had a capacity for suitable employment leaving aside any other issues in relation to her neck or shoulders. It is unclear whether Mr Battlay was referring to the L4-5 disc or, in truth, the L3-4, as commented on in the MRI scan.
116 The defendant also relies on vocational reports from Ayres Management Services dated 30 June 2009 and what is referred to as a refresher assessment report and plan of the same date. Those plans indicate that the view of the assessor was that the plaintiff was capable of suitable employment such as café assistant, hand packer, light process worker, product assembler, product examiner and sewing machinist.
Analysis of the Evidence
117 It is for the plaintiff to prove, as a matter of probability, that she suffered a neck and/or low-back injury on or after 20 October 1999 and that such injury has caused permanent impairment with the requisite consequences to satisfy the narrative test.
118 The plaintiff is fifty-one years old, having arrived in Australia in 1979, and after about six months commenced work largely as a machinist working in various factories making clothing.
119 She commenced employment with the defendant in 1984 as a machinist and packer and remained in that employment for twenty-two years, until terminated on 27 October 2006.
120 Her work with the defendant was mainly that of a machinist and a packer working in the sewing department and involved in the production of cotton mops. She described to the Court, in her affidavits, the type of machines that she operated, and indeed there is little or no dispute that she operated the machines in the way described by her.
121 I find that the work undertaken by the plaintiff with the defendant involved frequent bending and forceful movements of both hands and arms when operating some of the machines. Furthermore, the work could be repetitive and involve lifting and awkward movements when, for example, heavy bobbins and thread and rolls of fabric had to be manoeuvred.
122 After consideration of all her evidence, and allowing for occasional confusion due to her limited English, I do find the plaintiff to be essentially a witness of credit. I also note that in the context of a very impressive work record with the defendant, the plaintiff did continue working with the defendant (albeit on reduced hours or alternative duties) during such times that she was experiencing various symptoms in her body, and such situation continued until her termination on 27 October 2006.
123 The other observation I make is that, consistent with various medical examiners of the plaintiff, her demeanour was very much injury and pain focussed. Both in her affidavit material and her viva voce evidence, the plaintiff gave evidence of experiencing pain in her neck, both shoulders and arms, her low back and legs. Furthermore, the plaintiff gave evidence that the pain was such that she had difficulties on occasion using a knife or carrying a loaf of bread, other than in two hands. Notwithstanding the foregoing, I never gained the impression that the plaintiff was consciously setting out to deceive the Court or was not genuine in her complaints of such pain.
124 In such circumstances, the defendant essentially submits that, to the extent that the plaintiff has any organic neck injury and/or low-back injury, such are so entangled with psychological aspects that it becomes impossible to discern whether the plaintiff has suffered any permanent impairment of her neck and/or her low back and, if so, what are the organic consequences of such impairment? The defendant also submits that the plaintiff also has substantial difficulties in proving her case when many of the doctors speaking of her suffering incapacity for work and pain as a result of “injuries” to the neck, shoulders, arms, low back and legs.
125 Consistent with my view as to the credibility of the plaintiff, I also find that in February 2005, she did alter her hours to work five days a week, Monday to Friday, commencing at 7.30 am but ceasing at 2.45 pm in order to pick up her youngest child from school. I also accept that it was her intention to resume 38 hours work a week after the child had commenced attending secondary school, for which she could catch a bus to and from the school.
126 After a consideration of all the evidence, I am satisfied that the plaintiff suffered a low-back injury during the course of her employment on or about 22 March 2005, when she was picking up an 8-kilogram bobbin of cotton. Indeed, the plaintiff attended Dr Baglar on that day and complained of that very injury.
127 Furthermore, I accept, on balance, that such low-back injury has given rise to a low-back impairment as a result of an L3-4 disc injury. Such disc injury is demonstrated on the CT scan of the lumbar spine undertaken on 30 October 2006 and the MRI scan of the lumbar spine undertaken on 19 March 2007. Dr Baglar, the long term treating general practitioner, supports such a view and perhaps more particularly, the initial treating neurosurgeon, Mr D’urso, was of such a view, and indeed considered surgical intervention.
128 In general terms, in relation to the low-back “injury”, I accept in general terms the opinions of Dr Baglar, Mr D’urso, Mr Brownbill, Mr Flanc and Mr Hunt. It is also to be noted that Mr Hunt had access to all the radiological studies, including the MRI scan of the lumbar spine undertaken on 19 October 2010. Mr Hunt comments that the absence of nerve root impingement as demonstrated on that scan does not preclude patients from experiencing leg pain symptoms. He considered that the plaintiff suffered low-back pain, bilateral low limb pain, which was simply secondary to degenerative disc disease and an annular tear at the L3-4 motion segment.
129 I reject the opinion of Mr Kudelka in relation to her low-back condition, who seemingly was of the opinion that although there may have been some initial aggravation to the low back, such aggravation had well and truly ceased by his first examination. It is to be noted that Mr Kudelka was of the opinion that there was an ongoing problem in the low back but of a constitutional nature.
130 As stated earlier, I do accept that each of the doctors to whom I have referred in support of the plaintiff’s back condition also state that there is an emotional or non-organic aspect to her presentation.
131 However, I do refer, in particular, to the evidence of Mr Brownbill that putting aside any mental or behavioural aspect which might be said to be contributing to the perception of the symptoms, and looking at the organic effects only of the lower back injury, her pain, restriction, disability and incapacity are derived from that physical organic injury to a significant extent.
132 Furthermore, Dr Baglar and Mr Brownbill both support the proposition that the back, taken alone, would prevent her from being able to perform any employment for which she was suited on an ongoing or reliable fashion.
133 I refer to the decision of Zivolic v Hella Australia Pty Ltd,[98] wherein Redlich JA stated, in part:
“Where an application is made under s 134AB of the Act, and the evidence is consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required. These concepts rest upon the often false assumption that there will be a need to work backwards from the plaintiff's condition as found at trial and which may be the consequence of multiple causes.
The use of such terminology, which is not to be found in the Act, may, as it did in this case, lead the trial Judge to conclude that the plaintiff necessarily had an obligation to demonstrate the nature and extent of the psychiatric or psychological injury, so that it could be excluded when assessing whether the plaintiff had suffered a serious injury within s 134AB(37)(a) or (b). Whether it will be necessary in a particular case for a plaintiff to do so, that is to say, to unravel the plaintiff's condition and exclude the consequences of another contributing cause, will depend upon whether the medical evidence has sufficiently identified the physical consequences of the injury for the plaintiff.”[99]
[98][2007] VSCA 142
[99]See paragraphs [19] and [20]
134 Accordingly, I am satisfied that the plaintiff has suffered a compensable injury to her back, and on the basis of the medical evidence from various orthopaedic surgeons and a neurosurgeon, I find that such back injury has given rise to permanent impairment with a variety of consequences.
135 Such consequences being constant and fluctuating pain and an inability to be involved with heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. Given her industrial background, the lack of improvement in her pain condition after the pain management course and the restrictions under which she would have to work, I have formed the opinion that the plaintiff has virtually no capacity for work, whether that be for pre-existing duties or indeed suitable employment within the meaning of the Act.
136 Consistent with authority, a plaintiff who satisfies the loss of earning capacity requirements of s134AB of the Act (as the plaintiff does in my opinion) is entitled to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages” in relation to the back injury.
137 After a consideration of all the evidence, I am satisfied that the nature of the work may well have aggravated pre-existing degenerative changes in the neck of the plaintiff. It is to be stressed that in distinction to the low-back injury, there is no specific traumatic event which has given rise to any neck injury. Accordingly, I would have to be satisfied that any “injury” whether it be by way of aggravation or acceleration of pre-existing degenerative disease, occurred on or after 20 October 1999. True it is that her neck symptoms occurred seemingly some time in 2005, it is necessary for the plaintiff to establish that the injury giving rise to those symptoms occurred on or after 20 October 1999.
138 On balance, I do consider, that given the nature of the work undertaken by the plaintiff, such employment in and around 2005 aggravated (but not accelerated) pre-existing degenerative change in the cervical spine. However, I am far from satisfied that any such injury has given rise to any permanent impairment and the requisite consequences to satisfy the narrative test. In this respect, I put some weight on the evidence of Dr Elder, who examined the plaintiff on 9 September 2008 and the plaintiff’s neck did not reveal any verifiable significant findings of persisting injury or impairment of the cervical spine.
139 It is also difficult to determine that if there be a neck injury, what symptoms emanate from the neck and what symptoms emanate from the bilateral shoulder condition. Although there is evidence to suggest that most of the symptoms emanate from the neck rather than from the shoulders, it does appear common ground that some symptoms do emanate from the shoulder conditions.
140 Although I do not accept Mr Kudelka in relation to his opinion of the low-back condition, I do accept his view that, to the extent that there was any aggravation of the neck injury in or around August 2005, such aggravation was no longer playing any role by the time of his first examination.
141 This issue is a difficult one for the plaintiff, given that if one accepts that there was aggravation throughout the course of her employment up until 2005, it is for the plaintiff to demonstrate that the aggravation after 20 October 1999 gives rise to “serious injury”. Furthermore, leaving aside any disentanglement issue between the shoulders and the neck, there is also the difficulty of disentangling any emotional or psychological aspects of her presentation in relation to the neck.
142 Accordingly, after consideration of all the evidence, I am not satisfied that the plaintiff has suffered a serious injury in relation to any neck injury.
Conclusions
143 I grant leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages in relation to a back injury suffered by her on or about 22 March 2005.
144 I will hear the parties on the proposed orders and costs.
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Annexure “A”
The plaintiff tendered the following material:
(a)Exhibit 1 – email dated 10 February 2005 to Debra from the defendant.
(b)Exhibit 2 – letter dated 10 December 2008 from QBE to the plaintiff via her solicitors.
(c)Exhibit 3 – letter dated 29 September 2008 from QBE to the plaintiff via her solicitors.
(d)Exhibit 4 – letter dated 11 August 2009 from QBE to the plaintiff (in relation to weekly payments).
(e)Exhibit 5 – affidavits of the plaintiff sworn on 28 January 2010; 23 December 2010; 14 October 2011 and 24 February 2012 found at pages 6 to 20.6 of the Plaintiff’s Court Book (“PCB”).
(f)Exhibit 6 – medical reports of Dr H Baglar dated 12 June 2006; 29 May 2007; 24 September 2007; 18 April 2009; 27 April 2009; 21 December 2009; 19 April 2010; 1 November 2010; 1 November 2010 (referred to as an amended report); 25 December 2010 and 5 March 2012, all such reports contained at pages 38 to 65.2 PCB.
(g)Exhibit 7 – reports of the neurosurgeon, Mr P D’Urso, dated 25 May 2007; 20 September 2007; 19 June 2008; reports from the neurosurgeon, Mr W Boling, dated 29 June 2009; 19 January 2001 and 10 February 2011, such reports contained at pages 72 to 79 and 86 to 89.1 PCB.
(h)Exhibit 8 – reports of the orthopaedic surgeon, Mr C Pullen, dated 7 June 2010; 11 August 2010 and 15 November 2010, all contained at pages 90 to 97 PCB.
(i)Exhibit 9 – reports of the pain management specialist, Dr T Lim, dated 1 December 2011 and 31 January 2012, at pages 97.1 to 97.2 PCB.
(j)Exhibit 10 – reports of the neurosurgeon, Mr D Brownbill, dated 12 December 2007; 2 December 2010; 8 December 2010 and 9 March 2012, contained at pages 107 to 121.5 PCB.
(k)Exhibit 11 – reports of the orthopaedic surgeon, Mr J Hunt, dated 22 November 2010 and 9 February 2011; reports of the general surgeon, Mr C Flanc, dated 27 January 2011 and 19 March 2012, contained at pages 122 to 147.8 PCB.
(l)Exhibit 12 – report of Dr R Gassin dated 24 July 2011, at pages 97.3 to 97.6 PCB.
(m)Exhibit 13 – report of the physiotherapist, Mr Nguyen, at pages 83 to 85 PCB.
(n)Exhibit 14 – various radiological reports at pages 102 to 104.2 and from 104.4 to 106.1 of the PCB.
(o)Exhibit 15 – report of Dr M Brown dated 25 June 2006; and report of Dr G Davison, dated 2 April 2008, contained at pages 139 to 145 of the Defendant’s Court Book (“DCB”).
The defendant tendered the following material:
(a)Exhibit A – letter from plaintiff’s solicitor to the plaintiff dated 26 August 2010.
(b)Exhibit B – report from Dr Baglar dated 13 May 2011 addressed to QBE.
(c)Exhibit C – letter dated 4 May 2012 from Dr Baglar to QBE for swimming pool membership.
(d)Exhibit D – Ayres Management Services vocational reports dated 30 June 2009 and refresher assessment report 2009 at pages 89 to 113 DCB.
(e)Exhibit E – medical reports of the occupational physician, Dr D Elder, dated 9 September 2008; the occupational physician, Dr D Fish, dated 24 December 2009; report of the rheumatologist, Dr Tony Kostos, dated 24 October 2005 and 6 January 2006; medical reports of the orthopaedic surgeon, Mr P Kudelka, dated 11 June 2009; 24 July 2009; 18 January 2010; 10 December 2010; 29 September 2011 and 25 June 2012; reports of the psychiatrist, Dr N Rose, dated 21 April 2008; 12 May 2008; 16 March 2009; 13 December 2010; 20 September 2011 and 6 June 2012; reports of the occupational physician, Dr M Wyatt, dated 6 April 2008; 14 March 2009; 22 July 2009 and 19 January 2010; report from the general surgeon, Mr P Battlay, dated 13 August 2008, all such reports found at pages 130 to 133, 146 to 209o and 223 to 235 DCB.
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