Cosic v Victorian WorkCover Authority [2021] VCC 767

1. This is a serious injury application. Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity.
2. Mr O'Dwyer, counsel for the plaintiff, described the body function said to be lost or impaired as the lower spine; alternatively, the left and/or right shoulders. He said the spine was the most significant of the plaintiff's injuries.
3. Mr Bourke, counsel for the defendant, identified the issues in dispute as:
   • In accordance with the opinions of the defendant's consultant practitioners, Doctors Ian Taubman and Tony Kostos, the plaintiff had not suffered any work-related injury to either her lower back nor shoulders.
   • Even if there had been some injury, the treatment for which was modest, the plaintiff had not disentangled the consequences of her lower back injury from the consequences of her shoulder injuries, and other physical conditions.
   • The plaintiff was sixty years of age in 2016 and is now sixty-five. There was no evidence in her affidavits as to the date she intended to remain in employment; if there was any loss of earning capacity, the Court could not be satisfied that was permanent, nor likely to continue into the future.
4. For the reasons I shall shortly give, I am satisfied the consequences to the plaintiff of her lower back injury meet the statutory test in relation to both pain and suffering and loss of earning capacity. I do not therefore need to consider the consequences of her shoulder injuries, save as to the issue of disentanglement.
5. While her various other comorbidities are relevant as part of Ms Cosic's history, they do not bear upon the issues to be considered in this application to any great extent.

1. Ms Cosic's credibility was not challenged in any significant way.
2. I found her an honest witness attempting to respond directly to questions in cross-examination. To the extent there were any inconsistencies in her evidence, that was related to language difficulties, and not to any lack of truthfulness nor exaggeration of her symptoms.
3. Ms Cosic was clearly hardworking and, in addition to her employment, took student boarders in from time to time to provide extra income. These matters enhance her credibility. To the extent the reports of Doctors Taubman[1] and Kostos[2] suggest there was some inconsistency or lack of response in the course of physical examination, carrying with it the suggestion she is intentionally exaggerating her symptoms, I reject that suggestion.
4. Accordingly, I am able to accept her evidence of the manner of the onset of symptoms in her lower spine and the consequences to her in relation to her work capacity and her recreational, domestic and social activities.

Did the Plaintiff suffer an injury to her lower back, and was it work related?

1. While the application is put on the basis that Ms Cosic suffered injury over the course of her employment, the focus of the application was on injuries she says she suffered in July 2016 as a result of opening and closing the roller door.
2. According to her affidavits, Ms Cosic said she began to experience pain in her arms, shoulders, back and left leg when she was required to open and close the roller door. On 6 July 2016, she said she experienced intense pain to those areas.
3. An RMH Incident Report was tendered into evidence.[3] That document notes an incident occurred on 6 July 2016 at 3.30pm when Ms Cosic suffered "pain/discomfort" while "pulling/pushing garage door at B22 to get the waste bins out is causing pain on arms and shoulders".[4] A request for the roller door to be fixed was said to have been made. The overall severity of her injury was said to be "mild".[5]
4. According to the clinical records of the plaintiff's first treating general practitioner, Dr Assaf, of the Moonee Ponds Medical Centre,[6] in an entry of 11 July 2016, there is recorded:

1. In an entry of 15 September 2016,[8] there is reference to a further medical certificate, together with:

1. On 17 October 2016, Ms Cosic consulted another general practitioner, Dr Andrianakis. According to that practitioner's report of 14 January 2017,[9] Ms Cosic first attended on 17 October 2016 complaining of bilateral shoulder pains and stiffness, together with low-back pain, with referral into the left hip. Ms Cosic said that the pain had been present for three to four months, and was increasing. Dr Andrianakis recorded:

"Mrs Cosic describes working in a Hospital as a cleaner and feeling these pains when she had to open and close a heavy roller door at work. She had complained about this door to her employer previously."[10]

1. Dr Andrianakis undertook a range of radiological investigations.
2. A CT scan of the lumbar spine taken 19 October 2016 described:

"Annular disc bulging at L3/4 and L4/5 with minor nerve root encroachment bilaterally at both levels."[11]

1. A weightbearing MRI scan of the lumbar spine taken 9 October 2018 concluded:

"... Multilevel disc bulge is noted within the lumbar spine as described. At the L4/5 level, there is moderate overall canal stenosis, with contact and mild compression of both traversing L5 nerve roots. Moderate to severe canal stenosis at L3/4, once again with contact and compression of both traversing L4 nerve roots."[12]

1. An MRI scan of the lumbar spine taken 3 May 2021, at the L4-5 level, recorded:

"Minor ligamentum flavum bulging. Minor symmetric left-sided broad-based disc bulge. Bilateral subarticular recess stenosis, slightly worse on the left than the right, and minor comprise of the traversing left L5 nerve root. Minor bilateral neural foraminal stenosis without neural compromise."[13]

1. From October 2016, Dr Andrianakis certified Ms Cosic as unfit for work, and referred her to a physiotherapist for treatment. She also saw a chiropractor. In November 2016, she made a WorkCover claim, which was rejected. Her treatment, including physiotherapy and hydrotherapy, had been paid by Medicare or self-funded. Dr Andrianakis said Ms Cosic's injuries were consistent with the history she provided and were work related.
2. Ms Cosic has remained under the care of Dr Andrianakis to the present time. He says she remains unfit for work because of her lower back pain, and pain in her shoulders and arms. He said she could not return to any manual duties. He has prescribed a range of pain-relieving medication. He said her sleep was affected. He noted she was on a waiting list for a pain management program at the Barbara Walker Pain Centre at St Vincent's Hospital. He thought her prognosis was "very poor".[14]
3. Dr Andrianakis referred Ms Cosic to Dr Karlov, physician, in March 2017. To that practitioner, she gave a history:

"Ms. Cosic states that at the time of the injury she [was] working afternoon shift cleaning and also removing infectious waste bins. The door of the room where the bins were stored required lifting up but it was jammed and every time she had to use it she had to push the door up and down and it was very hard due to the jamming.

She heard something 'crack in her back' and continued working but when rested she developed severe pain in the middle of [the] back radiating to the left leg into the toes.

1. Dr Karlov diagnosed lumbar disc lesions with multiple nerve compressions and canal stenosis. He commented:

"Ms. Cosic's life has been destroyed. She is severely incapacitated to the point where she has limited spinal movements, limited shoulder movements and a painful wrist. This precludes doing the normal duties around the house and with the discomfort and pain severely curtailing her social life. She is struggling with everyday functions such as self-care and caring for her house and surrounds. She suffers from anhedonia with no realistic prospect of further improvement."[16]

1. Dr Karlov noted pain radiating into Ms Cosic's left big toe, which suggested an L4 nerve root lesion.[17]
2. Ms Cosic was examined by Associate Professor Bruce Love, orthopaedic surgeon, in October 2018 and again in May 2021.[18] He obtained a history that she developed symptoms in her shoulders while using the roller door, which functioned imperfectly. He also noted that she had developed pain in her lower back during her work.
3. Professor Love was of the view her work was physically demanding and that she had an underlying pathology in the lower spine. He thought the injuries to her shoulders, lumbar spine and wrist were work related, in particular, her use of the roller door. He considered she was not able to return to her previous duties, nor to any work which was physically demanding.
4. Having read the report of Dr Kostos, rheumatologist, Professor Love commented that the history of the onset of symptoms was consistent with those referred to in Dr Adrianakis' report and of which Ms Cosic complained when Professor Love had last examined her in May 2021. He concluded that in relation to her lower spine, she had suffered aggravation of degenerative changes. He considered the pain in her left leg and into the foot related to canal stenosis. He accepted these symptoms were related to her employment, in particular, to the incident of 6 July 2016. He considered her prognosis poor. He concluded, in his report of 2021, that she had no capacity for employment.
5. Ms Cosic was examined by Dr Dominic Yong, occupational physician, in May 2021.[19] He received a history of the onset of pain in her lower back and shoulders when she lifted the roller door in July 2016. He obtained a detailed history, including that she initially went to see her general practitioner and then returned to her normal duties and hours until October 2016.
6. Dr Yong noted the medication Ms Cosic was taking included an anti-inflammatory, Mobic, Tramadol and Panadol.[20]
7. Dr Yong noted a range of complaints as a result of the lower back injury, including that she had the ability to sit and stand for only fifteen minutes and walk short distances. She was able to drive locally. He considered she had suffered a lower back discal injury with persistent radicular symptoms and lumbar dysfunction, as well as bilateral shoulder soft-tissue injuries.
8. In relation to her spine, Dr Yong advised a range of restrictions, including avoiding repeated bending, twisting, pushing and pulling, lifting weights of more than 4 kilograms and with the option to vary her posture regularly. He concluded:

"I thus would consider that Ms Cosic's functional restrictions resulting from her low back condition, when considered in conjunction with the suitable employment criteria such that there is no work for which Ms Cosic is currently suited and which could be performed on a reliable and consistent basis as a settled or established member of the wage-earning workforce.

... I would consider on the balance of probabilities that she is not presently capable of undertaking any suitable employment on a regular and reliable basis."[21]

1. Ms Cosic was examined by Dr Taubman, consultant physician in general medicine, in December 2016 and March 2018.[22] He provided a further supplementary report in July 2018.[23] He obtained a history of the onset of symptoms in her shoulders and back, performing cleaning duties and opening and closing the roller door. He found a range of inconsistencies on physical examination. He thought the findings on radiological examination, both in her shoulders and spine, were degenerative and inconsistent with his physical examination. He suggested there was a functional overlay present. He said there was a difference in spinal flexion between formal examination, and when Ms Cosic was distracted. He did not find any incapacity, and said she was able to return to work as a cleaner on a full-time basis. He said the low-back pain and radiology results were related to her age and would not prevent her returning to pre-injury duties.
2. In his report of March 2018, Dr Taubman said he did not consider the pain and restrictions consistent with the expected clinical course of the mechanism of injury.[24]
3. Ms Cosic was examined by Dr Kostos, rheumatologist, in September 2020,[25] via a videolink, and again in April 2021,[26] in person. He said he received a history of the onset of pain in both shoulders and the lower spine "without any history of an injury or accident".[27] He noted she was required to open and close a roller door regularly. When he examined her, he noted a significant restriction of movement in all directions.
4. Dr Kostos was critical of other practitioners who had examined Ms Cosic, and said that the assessment of musculoskeletal problems should be undertaken by doctors with expertise in rheumatology and musculoskeletal medicine. He said other doctors who had examined Ms Cosic did not understand the "evidence base" for the diagnosis of neck and shoulder pain and back pain.[28] He considered her diabetes may be responsible for some of her musculoskeletal pain.
5. Dr Kostos concluded she had not suffered an injury to her shoulders. He said that her employment was not a contributing factor to her various conditions, including lower back condition. He went on to say:

"Treatment would have to start with excluding any inflammatory condition and then reassuring Mrs Cosic that she is not injured and then returning her to the pool where she could undertake a self managed exercise program."[29]

1. Given she had been out of the workforce for four years, Dr Kostos said it was unlikely she would return to any form of employment.[30]
2. I do not accept the opinion of Dr Taubman nor Dr Kostos. Each say there were inconsistencies in physical examination. Such inconsistencies were not found by other consultant practitioners, and significantly, not by Ms Cosic's treating practitioners. While undoubtedly Ms Cosic has age-related degenerative findings on radiology, it is difficult to understand the opinions of Doctors Taubman and Kostos that she has suffered no injury, given the clear history of the onset of symptoms in her shoulders and low back in July 2016, as is recorded in the Incident Report, and the general practitioner's notes. I assume these practitioners were not aware of Ms Cosic's long and impressive work history, the record of the incident in the RMH report, the clinical notes of the first general practitioner, and took a different view as to her credibility than I did.
3. I prefer the opinions, in particular, of Doctors Andrianakis and Karlov. Neither is in any doubt that her injuries were work related and that she has little, if any, current capacity for employment. Dr Andrianakis, in particular, has seen Ms Cosic on many more occasions than have Doctors Taubman and Kostos.
4. I was impressed by the reports of Professor Love and Dr Yong. Dr Yong is a consultant occupational physician, and I accept his expertise in making assessments of the restrictions Ms Cosic's spinal injury would place on any attempted return to employment. I accept his opinion that, on the basis of her spinal injury alone, she has little, if any, work capacity.
5. Based on these opinions, I accept Ms Cosic suffered an aggravation of underlying degenerative disease in her lower spine, in particular, at the L4-5 level, which has resulted in the onset of pain and restriction to that area. I further accept that she suffers referred pain into her foot as a result of compression of the exiting L5 nerve root; alternatively as a result of canal stenosis. It is clear that her lower back symptoms came about as a result of her employment, in particular, the use of the roller door in July 2016.
6. Of particular significance, in my view, is the history of the onset of symptoms given by Ms Cosic herself. I accept her evidence that the symptoms in her lower back commenced around July 2016 with the lifting of the roller door. I accept her evidence that they persisted to the point where she was forced to seek further medical advice and give up work in October 2016. I further accept her evidence that those symptoms have persisted to date and significantly restrict her in the way she has described.
7. I accept she has little, if any, current work capacity.

1. Mr Bourke, on behalf of the defendant, submitted there was a disentangling exercise in respect of Ms Cosic's various injuries and conditions.
2. While Ms Cosic's diabetes, hypertension, kidney and heart disorders undoubtedly affect her in various ways, I am not satisfied there is any real disentangling exercise. Whether or not these conditions would have affected her working life absent her low-back injury is not a matter of particular relevance.[31]
3. In relation to her shoulder and left hip conditions, undoubtedly they provide physical restrictions and would, to some extent, inhibit her capacity to undertake physical work, and to enjoy the social, domestic and recreational activities to which she referred in her affidavits. I accept the opinion of Dr Yong that with the specific restrictions as a result of her lower back injury alone, she is not capable of any employment for which she is qualified or suited.

Is the Plaintiff's work capacity permanent and ongoing?

1. Mr Bourke notes there is no reference in Ms Cosic's affidavits as to the age to which she would have expected to work, absent her lower back injury. He submits, therefore, given she is now sixty five years, I cannot be satisfied any work incapacity is permanent nor likely to continue into the future.
2. Section 325(2)(e)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 ("the Act"), in relation to loss of earning capacity, requires a worker to establish that that worker "... will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more".
3. Thus, the plaintiff must prove, on the balance of probabilities, not only that she has suffered a 40 per cent loss of earning capacity, but, as at the date of hearing, will "continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more".
4. Mr Bourke relied on the decision of his Honour Judge Saccardo in Cuturic v Spotless Facility Services Pty Ltd.[32] In that case, the worker ceased work because of an injury when she was sixty-seven. At the time of hearing of the application, she was seventy. His Honour determined there was no sufficient evidence to prove she had intended to work beyond seventy.
5. This issue was the subject of consideration by his Honour Judge Lauritsen in Bendzius v Victorian WorkCover Authority.[33] In that case, the worker suffered psychological injury in the course of his employment in 2015. He left work around that time. There was evidence the worker had intended to retire at age sixty-five, in April 2017. His Honour was satisfied that, as a result of psychological injury, the worker was incapacitated from employment. However, his Honour was not satisfied that the worker would have worked past age sixty-five. Thus, the claim for loss of earning capacity was dismissed.
6. In Madaroski v Colonial Meat Export Pty Ltd,[34] her Honour Judge Bourke was concerned with a manual worker who had ceased work in 2014, aged sixty-five. As at the date of hearing, he was seventy-one. In his affidavits, the worker said that he had intended to keep working as long as he could, and was planning to work into his seventies. However, given the nature of his duties as a boner in the meat industry, there was no evidence that there was any work that would have been available to him beyond age sixty-five. Her Honour was not satisfied that the worker would have continued working beyond age sixty-five.
7. True it is the issue of Ms Cosic's ongoing employment was not mentioned in her affidavits; however, it was raised in the course of viva voce evidence. In cross-examination, it was suggested to Ms Cosic that she would have retired from her work at age sixty-five.[35] She said she did not think so.
8. In re-examination, Ms Cosic said:

"I love to work. There is no reason for me to stop the work now, I don't have little children, because I work when my son was five months old.

I rather stay then, but I would not stay home now because I don't need to stay home now.

The money I receiving now, that's very poor money."[36]

1. Ms Cosic said that the money she currently receives is modest and she struggles to meet her living expenses.
2. While the evidence is not crystal clear, I am satisfied on balance, firstly, that Ms Cosic would have worked through to the present time absent the onset of her work-related injuries. It is significant that she has an impressive work record, and I accept her evidence that she did not think she would have retired from work by this time.
3. There is no evidence as to the age Ms Cosic would have continued to work. I am satisfied that, given her work record, her love of the work and that she has the time and desire to work at the present time, she would have continued to work. Retirement ages are far more flexible in the modern work environment. The notion that all workers retire at sixty years is redundant. People whose health allows often continue to work, even in manual jobs, into their seventies.
4. As she says, there was nothing to prevent her from continuing to work and nothing to suggest she had other plans such as to travel, or take up other interests or activities. For someone who loved her work, and relied upon the wages to meet all her life's expenses, I accept that it is likely she would have worked into the foreseeable future. In my view, the test that Ms Cosic would have "continued permanently" to work, as is required by s325 of the Act, is satisfied.

1. I am satisfied Ms Cosic suffered a significant lower back injury in the course of her employment with RMH, the symptoms of which arose around July 2016. I am satisfied her work was a contributing factor, in particular, the requirement that she open and close a roller door which was jammed and difficult to move.
2. While she suffered other injuries to her shoulders and left hip, I am satisfied the lower back injury is the predominant injury and which has caused her the most pain and restriction, with referred pain into her foot.
3. I prefer the opinion of those practitioners, in particular, her treating practitioners, who take the view she has no capacity for work for which she is suited. As such, she satisfies the statutory definition of a 40 per cent loss of earning capacity. I am satisfied Ms Cosic would have continued to work beyond her current sixty-five years and for the foreseeable future. Given I am satisfied she meets the test for loss of earnings, it is unnecessary for me to analyse the pain and suffering aspect of the application.
4. I shall grant leave to bring common law proceedings and make consequent orders.

[1] Defendant's Court Book ("DCB") pages 8 and 18

[3] Defendant's Supplementary Court Book ("DSCB") 4

[6] Plaintiff's Supplementary Court Book ("PSCB") 7-8

[20] This medication regime has since changed because of Ms Cosic's other conditions. According to her most recent affidavit, she now takes only Panadol Osteo.

[31] See Acir v Frosster Pty Ltd [2009] VSC 454

[32] [2018] VCC 889

[33] [2019] VCC 915

[34] [2021] VCC 113

[35] Transcript ("T") 53, Line ("L") 17-18