Beverley King v Qantas Airways Limited

[2018] VMC 6

IN THE MAGISTRATES’ COURT OF VICTORIA

AT GEELONG

WORKCOVER DIVISION  G12640750

BETWEEN:

BEVERLEY KING   Plaintiff

-and-

QANTAS AIRWAYS LIMITED  Defendant

MAGISTRATE:   Ginnane

WHERE HEARD:   Geelong

DATE OF DECISION:   30 April 2018

CASE MAY BE CITED AS:            Beverley King v Qantas Airways Limited

MEDIUM NEUTRAL CITATION:  [2018] VMC006

Catchwords: Accident Compensation Act 1985-low back injury – long period of employment with employer – work required repeated instances of physically demanding work - whether employment a significant contributing factor to aggravation type injury – delay between alleged injury and incapacity – conflict of evidence in plaintiff’s recounting of incident of injury to employer – lack of corroboration in certain historical accounts produced by doctors- plaintiff’s credit attacked – reliance on surveillance –application to draw Jones v Dunkel (1959) CLR inference – no adverse inference drawn – no current work capacity – discourse as to burden of proof for no current capacity – notice of rejection set aside

APPEARANCES                  Counsel   Solicitors

For the Plaintiff  Ms S Lean  Maurice Blackburn

For the Defendant                 Ms M Tait  Sparke Helmore

REASONS FOR DECISION

HIS HONOUR:

1. The plaintiff Beverly King seeks to review the rejection of her claim for weekly payments of compensation for injury. The legislation applicable to the plaintiff’s claim is the Accident Compensation Act (1985) (‘the Act’). The claim made by Ms King is one alleging injury sustained throughout the course of her employment with Qantas. Ms King alleges that her employment with Qantas constituted a significant contributing factor to a degenerative back condition. Because the plaintiff’s claim falls to be considered during the second entitlement period, she must establish in addition to injury that she has no current work capacity and that such is likely to last indefinitely.
2. The plaintiff lodged her workcover claim on 13 August 2013.The claim was filled in by the plaintiff’s partner on instructions by her. The form was signed by the plaintiff. The standard form consists of a series of questions a worker is asked to answer. In response to the question ‘What happened and how were you injured’ the answer given was expressed as, ‘Throughout the course of my employment’. In answer to the question ‘What is your injury/condition, and which parts of your body are affected’ the response was ‘BACK, LEFT LEG, LEFT FOOT & LEFT HIP’. A claimed lower back injury was pursued in this proceeding.
3. The plaintiff’s claim was rejected by Qantas on 6 September 2013. The grounds of rejection relevant to the matters were expressed thus[1]:

·You did not suffer any injury as alleged pursuant to section 82(1) of the Act

·You did not suffer any injuries arising out of, or in the course of employment as alleged pursuant to section 82 (1) of the Act

·Your employment was not a materially contributing factor to your alleged injuries pursuant to s 82(1) of the Act.

·…

·…

[1] In addition, ss 102(1) and 103 (7) (a) of the Accident Compensation Act 1985 were relied on but not pursued at the hearing. Moreover, in a proceeding such as this, I am not conducting a review of the decision of rejection by the employer but instead I am charged with making a decision according to law on the evidence before me

4. The reasons for decision included:

….

On 13 August 2013 you lodged a claim for injuries to the Back, left leg, foot and hip.

Our records indicate that you have been absent from work for a period of five months due to a non-work related foot condition.

A medical certificate was issued from your treating doctor certifying that you were fit to return to normal duties in relation to your foot condition on 20 August 2013.

A Certificate of Capacity and Workers’ Compensation Claim form was submitted on 13 August 2013 stating that you had a Back injury at work stating an injury date of approximately 2008.

Our records indicate that there are no recorded injury reports (FORM 2000), in relation to a back, left leg, foot or hip injury.

Based on the information above liability for your claim will not be accepted.

What I am required to decide

5. There are two issues to be resolved by this proceeding. The first matter is that of causation of the plaintiff’s low back injury and if it is a recurrence or aggravation type injury for which the plaintiff’s employment is a significant contributing factor and the second matter is the plaintiff’s work capacity beyond the second entitlement period, that is, whether the plaintiff has a current work capacity for suitable employment.

The plaintiff

6. The plaintiff is 63 years of age. She was born in Scotland and educated to the Australian equivalent of Year 10. She is a slight woman standing at just over 5 feet. She has had a limited range of employment. She said she was a flight attendant for some 27 years prior to joining Qantas in 2004 and her past work included employment with Ansett Airlines before it ceased operations. She performed some other work for a short time, perhaps about 13 years ago, as a retail assistant in a jewellery store.
7. The plaintiff commenced employment with Qantas on 14 September 2004. She was employed as a Customer Service Attendant (CSO) at Melbourne Airport. Hers was part time employment, and over each fortnight she worked a spread of hours, but on the basis of the oral evidence I heard, it seems that on average the plaintiff worked 25 hours a week.
8. The plaintiff says she had no prior back pain before joining Qantas. There is no evidence to suggest otherwise.
9. In 2002 the plaintiff suffered injury to her left foot diagnosed as plantar fasciitis. She had injections in the heel which helped that condition. This forms no part of the plaintiff’s claim or informs the plaintiff’s narrative for compensable injury.
10. The plaintiff relies on an allegation that in the discharge of her work with the defendant as a CSO that she was required to undertake at times heavy and repetitive work.
11. The plaintiff was required to perform a suite of different duties as a CSO. Many of the tasks described by the plaintiff were not contested by the defendant otherwise than in regard to the frequency of some of the tasks the plaintiff described.
12. The plaintiff’s position as a CSO involved her working across the domestic and international terminals at Melbourne Airport. Qantas operates its domestic and international terminals adjacent to each other.
13. The plaintiff said she was generally dispatched to work in the Arrivals Team. She said this required her to meet passengers with special needs on the aircraft and to assist them disembark as well as providing assistance to elderly or infirm passengers on aircraft such as by placing them into a wheelchair and then pushing the chair and occupant from the plane down a ramp through the aero bridge into the arrivals lounge, and through the terminal, as well as on occasions collecting luggage from the carousel and in some instances, managing luggage, manoeuvring wheelchair and passenger to the outside the terminal.
14. The plaintiff said that in 2013 she was transferred to the Self-Service Check-in Kiosks operated by Qantas at the domestic terminal. This too on occasions required her to provide assistance to customers by managing their luggage so that their tags were correctly placed so as to be able to be read on electronic scanners.
15. The plaintiff also worked on the check in counter in the Qantas International Terminal. This involved the recognisable duties of working behind a counter and checking in passengers, and ticketing and weighing baggage and its dispatch on a belt to be subsequently placed on board the applicable flight.

Incidents

16. The plaintiff said she first experienced pain in July 2005 when she was required to manually handle luggage. She said she had checked in a passenger and pressed the button that moves the luggage away from where it has been checked. She said the next passenger in line placed his luggage and the second bag dropped off without a tag and so the plaintiff said, “I jumped up to get it”. The plaintiff said she felt pain in her back. The incident occurred late in her shift and that night she said she could not lift one or other of her legs in order to get on the staff bus. The plaintiff completed an Injury Personnel Report (Form 5) dated 3 July 2005. The description contained in the report included that ‘… hadnt cleared belt when ckin pax from previous ckin as belt had stopped next pax had a cple of bags and manually moved bag fwd balancing on both belts when belt restarted she realised back and been tagged and reached out to stop going down belt felt pain in the lower back and in lot of pain when she went home’. I note as well from the report that it contained by way of a response to description of ‘mechanism of injury’, bending/reaching/turning.’ The plaintiff attended a physiotherapist through Qantas on 4 July 2005.
17. In March 2006 there was another incident which required the plaintiff to stop a piece of luggage from falling off the luggage belt at the check in counter where she was working. That too was the subject of an ‘Injury to Personnel Report’[2] that contained the following description of the occurrence of injury: ‘TURNED AROUND TO PROTECT BAG FROM FALLING FROM CHECK-IN BELT’. The form as well included a heading ‘Investigation revealed’ that stated: ‘BAGS TOO HEAVY AND FELL ON ONE SIDE DUE TO WEIGHT NOT DISTRIBUTED PROPERLY’. The report contains an anomaly in that the part of the body injured was expressed as ‘Knee’ when in fact the plaintiff’s evidence is that she hurt her back.

[2] Ex P2

18. There is in some of the medical reports a reference to the plaintiff having suffered an injury to her back in 2008 but in her evidence when asked about it, the plaintiff could not explain why such a reference appeared. She said, “I don’t know why”.
19. The plaintiff said that Qantas introduced Self Check in the domestic terminal in 2013 and not long before she finished working for Qantas.
20. In March 2013 the plaintiff says that an incident occurred when she was helping a customer at the Self-Check Kiosk with luggage. She said an elderly male passenger was encountering problems in scanning his luggage tag. She said she explained to him how to place the tag properly. The bag he was having difficulty with was lying flat with the handle facing away and the plaintiff said she leaned over to grab the handle and pulled the bag up and that was when she did so, she felt pain. She said her back was very sore. She said after several days as her back pain had not gone away as it had in the past, she had had a massage. She said on 28 March 2013 she woke up and could not get up from bed. The plaintiff attended the emergency department of the Geelong Hospital by ambulance because of the pain that had beset her at home. She was discharged.
21. The plaintiff said she did not report the injury when it occurred at work in early March because she hoped it would clear up. She said because it did not resolve she subsequently recounted the incident sometime later to Mr Stojnic, the Melbourne Airports Operation Manager employed by Qantas. The plaintiff said this occurred in the course of a conversation she had with Mr Stojnic in the tea room after the incident occurred but before 28 March 2013.
22. The plaintiff states that medical certificates were also issued that assist in corroborating the occurrence of the work incident of early March 2013. It does not however state more than that ‘Beverley King, is suffering from a medical condition’ (Part Ex P5).
23. The plaintiff wrote to the ACCS after conciliation with her letter being received on 20 September 2013[3]. She wrote that in May 2013 she had discussed the matter of her March 2013 incident with Mr Stojnic and that he told her that she may need to move on in her employment with Qantas.

[3] Ex P3

24. The plaintiff said she regularly gave certificates of capacity to her employer. In all some 14 certificates were provided either by hand or faxed through to Qantas. The plaintiff furnished an ordinary certificate for the period 28 March 2013 until 3 April 2013. By a certificate dated 4 April 2013 the plaintiff’s inability to work is described as due to left-sided sciatica.
25. Otherwise than in respect of the physiotherapy in 2005 and some massage, the plaintiff has undertaken other treatments including, Pilates, Keyser, injections (of which she described having 4) and she has remained under the care of her General Practitioner, Dr Rajcoomar.
26. On 7 October 2013 the plaintiff underwent a discectomy performed by Mr Etherington.
27. The plaintiff’s claim in respect of medical expenses has also been rejected by the defendant.
28. The plaintiff takes Panadol Osteo and Voltaren. She has had 5 sessions of physiotherapy which have been funded through Medicare.
29. On 13 August 2013 the plaintiff returned to work pursuant to a return to work plan (RTW). She ceased work on 10 September 2013 at the end of the RTW plan and has not worked since. She became eligible for a redundancy package which she took.
30. The plaintiff was directed to the admission notes of Geelong Hospital which recorded ‘2-3/12 of “niggling” back pain. 3/52 had massage. Following massage sitting in chair, bent forward to put on shoes and felt sudden LBP. Ongoing LBP last 3/52…This morning, sitting up in bed, went to move and increased LBP. Difficulty moving since’.
31. The records of ambulance attendance record a like account of the circumstances of massage and the occurrence of pain on the morning of 28 March 2013.
32. The plaintiff denied saying that a massage had had caused the onset of back pain but however explained that she had received two morphine injections in order to enable her to get out of the bed to the ambulance and therefore she had no idea what she could have said.
33. The plaintiff was asked if she could explain an entry made in notes from the Point Lonsdale Physiotherapy Sports and Spinal Clinic where she had attended for approximately 2 years that noted that she was lifting a lady at work. She had no idea about entry and denied any such incident.
34. The plaintiff said she is not currently undertaking any active treatments. She says she tries to keep a normal life going.
35. She said she stopped Pilates largely because of the cost.
36. The plaintiff said in 2017 she was provided 5 sessions of physiotherapy via Medicare funding.
37. The plaintiff said that she suffers from chronic pain and that she was put onto a regime of Pilates. When asked about the effects of physiotherapy she said “it does not do a lot”. She said she has a regime of Pilate exercises which she is able to perform at home.
38. The plaintiff said she finished working with Qantas after 28 March 2013 and then undertook light duties pursuant to a return to work plan for a short period of time from 13 August 2013 until 10 September 2013. The light duties restricted her not going toward bags and provided her with more frequent breaks and she was not undertaking any Arrival Team work. She described the return to work as “difficult”.
39. The plaintiff said she did not work after September 2013 at the conclusion of the return to work plan.
40. The plaintiff said she was recommended for redundancy. Shew knew she needed an operation and therefore could not do her ordinary duties. She formally concluded employment with Qantas on 20 May 2014.
41. The plaintiff described her current symptoms as:

·An inability to stand for long;

·An inability to lift anything heavy

·An inability to grocery shop in a single session

·Reduced feeling in left leg

·Foot feels as if walking with a scrunched up sock.

·Daily pain

·Inability to bend over as difficult to get back up

·Experiencing flare-ups of pain a couple of times per week - quite bad

·Increased periods of sleep

42. In respect of her lifestyle since her injury the plaintiff said described how she and her partner aim to holiday once a year and these have included overseas trips. She said it has proved necessary to travel business class because of her injury. She said she uses heat packs and she takes Voltaren 50 on such trips away to cope.
43. The plaintiff acknowledged some skills with computer use but it is limited to the Qantas system upon which she received training.
44. The plaintiff did not think it was possible for her to drive to and from Melbourne for work.
45. The plaintiff said that as for a capacity to undertake office work she did not think it would be suitable for her as she could not do seated office work.

Plaintiff cross-examined

46. The plaintiff said she is unable to lift her dog that weighs approximately 7 kg because when she endeavours to do so pain occurs “and it continues”. She said she tries to lift the dog into the car “but it hurts” when she does and that she “suffers”. She said she normally has her partner at her side to provide assistance. She thought she tried to lift the dog recently. She said sometimes she “couldn’t carry the dog for any length of time”.
47. As to her ability to bend she says she can do so “slightly” but it is troublesome when she attempts to do so. She said she cannot bend to the ground and that she would need to hunch over or sit on the floor.
48. The plaintiff agreed that she used computers when she began at Qantas and she volunteered some optimism that she would be able to learn and adapt to any new computer skills if required of her.
49. The plaintiff agreed that she could sit for an hour or two. Her appearance in court over the course of the hearing suggested this may be manageable.
50. The plaintiff accepted that when she commenced with Qantas in 2004 she was provided with manual handling training and that she understood what she was taught. She said that she believed she always abided by the training procedures.
51. The plaintiff said that if assistance was required then she could reasonably expect someone to take over from her or to offer assistance it but if no one was available then “you just did it”.
52. The plaintiff agreed that she was provided with a walkie-talkie but said it was really only of use in theory because to be effective it required someone else on site to respond and provide assistance.
53. The plaintiff said that Mr Stojnic was the Customer Service Manager. She said she would see him from day to day as he walked around the terminal.
54. The plaintiff agreed that she had check in responsibilities at both the domestic and international terminals.
55. The plaintiff described the hosting duties as involving the marshalling of assistance for customers with the machines in operation at the self-check-in kiosk.
56. The plaintiff agreed that hosting only rarely involved lifting.
57. The plaintiff was not as confident in cross-examination as she had been in evidence in chief that the self-check-in was introduced in 2013. Ms Tait, the defendant’s counsel put to her that the evidence would be that self-check-in was introduced in early 2011. The plaintiff accepted that the earlier time might be right but she added that she thought it was perhaps was 2012 and that there had been a transition period. Nothing really turns on the difference in evidence.
58. The plaintiff said that in performing her work in international check-in it was “probably less likely” a need arose for lifting but she said there would be instances when it was necessary to repack customer bags. She said that on most shifts there would usually be someone who needed a bad repacked and to do so she would come out from behind the counter to the front and “try to help”. The plaintiff agreed with Ms Tait that if there was a lot of luggage to be repacked then it was usual for the customer to move to one side of the check-in counter to attend to it themselves.
59. The plaintiff said that pushing a wheelchair only occurred when she was working in the international terminal because in the domestic terminal there was a group of commissionaires. She agreed that sometimes she might be called off the desk to help with wheelchairs because of the need to get a customer to an aircraft urgently or to board them prior to the boarding of other passengers.

46. The hosting duties undertaken by the plaintiff were performed in both international and domestic terminals.
47. The plaintiff agreed that Qantas provided rotation after 2 hours but she said that a rotation might involve no more than moving from one seat to another along the check-in counter.
48. The plaintiff agreed that anti-fatigue matting was provided to staff.
49. As to whether the work she was required to do was repetitive, the plaintiff said that perhaps there were a few times during the course of a shift in which she was called upon to repeat certain tasks.
50. The plaintiff agreed that she would normally know the weight of the bag before handling it because it would be weighed on a scale at check in.
51. The plaintiff said that had it not been for the incident in March 2013 her intention was to stay on in employment until retirement.
52. As to the plaintiff’s allegation that she performed continuous pulling, the plaintiff said it would be necessary to do a lift once a day but not continually. She then said maybe one or other of the tasks she identified as part and parcel of her work might occur “a few times in a shift”.
53. In regard to the reference to an injury in 2008 she could only say that “it must’ve been another incident, a related back injury”. She went on to say “I think I must’ve reported it”. There are no clinical records of any injury having occurred in 2008.
54. Despite the second written incident report dated 19 March 2006 only referring to the knee as the affected body part, the plaintiff was adamant that it was her back as well that was affected. She said she “was certain she would have mentioned it”, relying on her memory which she described as “good” other than in respect of dates.
55. In regard to the injuries the subject of the 2005 and 2006 written reports the plaintiff saw no doctor because she said they “cleared up straightaway”.
56. The plaintiff said it was not part of her makeup to attend doctors and that if she had an injury should would try and deal with it herself or if she attended a doctor because of any work pain she experienced the invariable advice was simply to rest.

March 2013 Incident

71. The plaintiff said she reported the incident to Mr Stojnic a couple of days after it occurred. This is possible because the plaintiff testified that she continued to work after the incident and until 28 March 2018. She said she told Mr Stojnic that she had experienced an incident at the self-check-in and she told him of the incident. She said their conversation occurred in the tea room. She said she subsequently intended to complete a written report of incident but on 28 March 2013 she was taken to hospital and it was some time until she returned to work and a return to work plan came into effect and so no written form relating the incident occurred.
72. As mentioned, the plaintiff attended work in the days following the alleged incident in early March. She denied making no mention of the incident until she had a conversation with Mr Stojnic in May 2013.
73. When pressed in cross-examination, the plaintiff’s best recollection what that the incident occurred on or around 13 March 2013.
74. In a medical report dated 2 February 2017 Mr Haig, Consultant Orthopaedic Surgeon, engaged by the defendant’s solicitors wrote that the plaintiff “did not mention her complaint to her employers at the time”.
75. The paramedic report from 28 March 2013 refers to back pain for last 3 months. The plaintiff said she was on morphine and she might have intended to say 2 or 3 weeks as opposed to 2 or 3 months. The paramedic notes refer to 2 weeks prior the plaintiff having had a massage that made her back worse. The plaintiff said it was true that she had a massage but she did not tell the paramedics. There is no explanation as to why they knew unless the plaintiff told them and the plaintiff agreed with Ms Tait that they could not have known about it otherwise than by her telling them. Of course the plaintiff’s condition and the pain she was in and medication taken makes the reliability of her memory of matters questionable.
76. The Geelong Hospital emergency department notes recorded an account of “niggling” mild back pain for the last 2 to 3 months and also the reference to the plaintiff having had a massage 2 weeks prior that made things worse. The plaintiff said she would have likely mentioned having had a massage but not having said that it made her back worse because it had not and that the pain that came on at home.
77. On 4 April 2013 the plaintiff’s physiotherapist noted that the plaintiff was unable to work due left sided sciatica. The plaintiff insisted in cross-examination that that she told the physiotherapist about her work injury in early March 2013.
78. On 5 April 2013 the plaintiff attended on Dr. Rajcoomar (a week or so after the attendance at the Geelong Hospital).
79. The plaintiff said she travelled to Singapore for vacation in April 2013.
80. On 13 May 2013 Dr. Rajcoomar wrote a letter of referral to the Point Lonsdale Physiotherapy Sports & Spinal Clinic and no mention was made of the work incident of early March 2013 or of the plaintiff’s work duties. Rather the correspondence referred to the plaintiff having experienced pain that had come on acutely.
81. Dr. Lovell saw the plaintiff on 23 May 2013 and he described her presenting “with left sided leg pain which came on after an initial few weeks of back pain only. She woke one morning last month with severe back pain for which she went to hospital”. The plaintiff said she told Dr. Lovell of “how it happened” but there is no reference by him in his report to an incident in March 2013.
82. The plaintiff saw Dr Verrills, a specialist pain doctor consequent on the retirement of Dr Lovell.  His report on examination dated 6 March 2017 states that there “was no clear precipitating incident and she essentially woke with 8-9/10 pain”. The plaintiff said she told Dr. Verrills about the work incident of March 2013. She said “everyone was told about the incident”.
83. On 13 August 2013 Dr. Rajcoomar wrote: “pushing heavy equipment wants to claim WorkCover”.
84. Mr. Etherington is a spinal surgeon. He saw the plaintiff on referral from Dr. Rajcoomar. He wrote of the plaintiff on 8 August 2013 that, “she works for Qantas and lifts heavy luggage”.
85. On 15 August 2013 the plaintiff saw Mr Etherington and on this occasion, he wrote that the plaintiff “woke up one morning and could not move. Preceding low back pain approximately one week prior minor.”
86. The plaintiff said she told Mr Etherington about March 2013 incident. She said “I am sure of that. I’m sure I must have”.
87. In his report to Dr. Rajcoomar Mr Etherington refers to relatively minor back pain in March 2013. The plaintiff said she could not recall saying it was minor other than to say that until she woke up that morning on 28 March 2013 she was not hindered by it. This is consistent with the plaintiff’s evidence of continuing to work on after the work incident of March 2013 until 28 March 2013.
88. The plaintiff saw Mr Valance physiotherapist in 2014 from which is found the peculiar reference to the plaintiff having lifted a lady at work. The plaintiff said she told Mr Valance about the incident at work in March 2013 and the reference to lifting a lady at work is incorrect. It is an inexplicable reference.
89. The plaintiff was taken to her claim form dated 14 August 2013[4]. The plaintiff was asked why having expressed her injury as arising throughout the course of her employment she had made no reference to the incident she claims occurred in March 2013. The plaintiff she could not explain why. The contents of the form seeks specifically details of  the tasks being done when the injury occurred but there is no reference made to the alleged incident in March 2013.

[4] Ex P4

90. Mr Etherington performed a discectomy in October 2013 which the plaintiff said initially provided a good outcome.
91. The plaintiff was directed to the comments made by Mr Haig who saw the plaintiff on behalf of Qantas in February 2017. He recorded the plaintiff having told him that she experienced slight pain “most of the time” and that the condition of her back was “not too bad” and that if she was not undertaking activities she did not experience pain but if she was doing activities she experienced “slight pain”. The plaintiff described experiencing “slight pain most of the time”.
92. The plaintiff was asked about her daily activities of living. She said she walked daily to the shops, some 15 to 20 minutes each way. She said sometimes she will drive to the shops. She said that the use of a supermarket shopping trolley did not cause problems. She said she is unable however to lift shopping bags into the car. She said she will walk her dog on the beach twice daily for about a half hour.
93. The plaintiff said she takes Panadol, a maximum of one but not every day and one tablet of voltaren, but also not every day.
94. The plaintiff said she disagreed with Dr Rajcoomar’s assessment of her having a capacity to work 4 hours a day and 5 days a week in an administrative job. The plaintiff was asked by Ms Tait whether she thought that she might be assisted by a sit and stand type desk. She said she could “try”. She disagreed that she could take dogs for a walk on a leash as a “dog walker”. As to her previous experience as a salesperson at a jewellery shop, she was asked by Ms Tait if she considered such work feasible and said that if a position existed where she could sit and stand for 2 hours a day then she thought she could. The plaintiff volunteered that of her own volition she gone into a few shops in Ocean Grove looking for work but that what was on offer involved lifting heavy boxes onto shelves which she could not do.
95. The plaintiff’s evidence was that electric wheelchairs were introduced shortly before she left Qantas in 2013 whereas the defendant’s case is that they were introduced in 2008/2009. The plaintiff thought perhaps just one had been commissioned at that stage.
96. The plaintiff said she was aware from her training of the requirement to report incidents to supervisors and complete appropriate forms.

Surveillance

97. There was surveillance footage introduced in evidence that was shown of the plaintiff commencing on 19 December 2016, and including dates scattered throughout 2017 namely 24 January 2017, 17 July 2017, 26 July 2017, 25 August 2017 and 28 August 2017.  The plaintiff was cross-examined about it and it was suggested to her that an objective assessment of the surveillance is that the plaintiff is not suffering any particular restriction nor is there any evidence exhibited by the plaintiff of pain or restriction.

Re-examination

98. In answer to assertions about the absence of apparent exhibition of pain or restriction disclosed in surveillance the plaintiff said that she needed to bend down with her legs spread and that there were everyday limitations she encounters.
99. The plaintiff disavowed a work capacity to perform receptionist work. She said last undertook office work when she was 17 years of age.
100. As to her previous employment in a jewellery store the plaintiff said it occupied a period of about 3 years going back to 2004.

Boris Stojnic

101. Mr Stojnic is the Melbourne Airport Operations Manager for Qantas has been employed by the defendant for in excess of 30 years. Over the course of his employment with Qantas he has been Supervisor/Duty Manager/Customer Service Operations Manager. He said he had a reasonable amount of interaction with the plaintiff such as everyday conversations, the provision of directions to her, the resolution of customer issues and “general discussions over time”. He described the role of the plaintiff as essentially one that looks after the “customer experience” with Qantas at the airport including checking in and checking out at the counters, assisting with bag drops and assistance with the self-check-in process. He adopted as correct the account of the plaintiff’s duty outlined in her evidence.
102. He said Qantas operates an automated task allocation system which rosters employees on a random basis on needs as they arise on any given day.
103. Mr Stojnic said that there is no specific need for baggage assistance at self-check-in counters. He nonetheless acknowledged that sometimes “but not often” bags need to be repositioned. He pointed out that frequent flyers have become accustomed to the self-check-in process but there are of course from time to time customers who are infrequent travellers and are not familiar with it.
104. Mr Stojnic said the self-check-in was introduced early in 2011.
105. Mr Stojnic did not agree that the plaintiff would be continually “pulling up” luggage. He accepted that there would be occasions where the plaintiff would be required to assist wheelchair-bound passengers in the international terminal. He compared this with the domestic terminal where there were commissionaires. He said that at Melbourne Airport Qantas staff worked between the domestic and international terminals. In relation to the self-check-in Mr Stojnic said it was commenced in 2011, by way of a combination of an early or soft introduction of the system and estimated that by early 2013 it was well mastered especially by frequent flyers. Mr Stojnic acknowledged that even today elderly and infrequent customers will require occasional assistance by Qantas staff.
106. Mr Stojnic said that it was in late 2008 that electrical wheelchairs were introduced to coincide with the introduction of the A380 aircraft, an aeroplane which was equipped with a lower and upper deck. He said initially one electrical wheelchair would have been commissioned but that “there would have been a number by 2013” although he could not remember the exact figures or the time frame of the roll out.  Mr Stojnic agreed that there electric buggies were also utilised throughout this time to transport customers.
107. Mr Stojnic said that anti-fatigue matting was introduced coinciding with the introduction of the self-service check-in kiosks. He said employees were not permitted to remain static for more than an hour.
108. Mr Stojnic said he had no recollection of a complaint being made to him in the tearoom by the plaintiff in March 2013. He was certain that had a complaint been made to him by the plaintiff that he would have directed her to report the injury by way of the completion of a Form 2000 document.
109. In relation to the conversation he had with the plaintiff in May 2013, he recalled that the plaintiff came to the terminal and spoke with him for approximately 10 minutes and to the plaintiff’s evidence that he suggested to her that she would need to move on he said his comments were expressed in the context of her need to get herself healthy and to obtain a medical clearance before returning to work. However, Mr Stojnic He said he could not recall the specifics of their conversation. I am not critical of Mr Stojnic in that regard.

Stojnic cross-examination

110. Mr Stojnic conceded that he did not work with the plaintiff on a daily basis and that he directly managed about 40 staff. He accepted it was possible that the plaintiff was predominantly using a manual wheelchair when called upon to do so.  He said some staff preferred the use of a manual wheelchair because they believed it gave them greater control.
111. Mr Stojnic said however that the manual wheelchairs were not used for the A380 because of its upper deck. As to ramps and inclines the plaintiff was required to manoeuvre when engaged in wheelchair use, he said that it would have been limited to the aerobridge and perhaps a slight incline in the departures area of the terminal.
112. Mr Stojnic said that at the relevant time, Qantas employed approximately 200 Customer Service Officers. He thought that by 2013 there would have been approximately a dozen wheelchairs in use and they were all allocated to international departures. Mr Stojnic agreed that it was probable that occasions would have arisen when the plaintiff would have needed to assist a passenger in a wheelchair together with their luggage collected at the luggage carousel.
113. In response to the plaintiff’s evidence that on each day that she worked she was required to push, pull, bend or lift, and to do so multiple times per shift, Mr Stojnic cavilled only with the expressed need to bend. He did not think it the case that this would occur every day.
114. Mr Stojnic said he could envisage it being necessary for the plaintiff to adjust luggage in the course of her working shift.
115. Mr Stojnic made a statement as part of the investigation of the plaintiff’s claim dated 22 March 2017[5]. The statement does not assist me in the resolution of the contested facts.

Tender of documents

[5] Ex D1

116. Neither party adduced oral evidence from medical practitioners but instead by agreement tendered various reports, certificates and notes.

Submissions

117. There are two issues to be resolved by this proceeding. The first matter is that of causation of the plaintiff’s low back injury and the second is the plaintiff’s work capacity beyond “the second entitlement period”.
118. Section 82 of the Act provides that if there caused to a worker injury arising out of or in the ordinary course any employment, the worker shall be entitled to compensation.
119. “Injury” includes a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
120. The words “arising out” of point to the origin or cause whereas the words “in the course of” relate to the time place and circumstances under which the accident or injury takes place. Arising out of the employment obviously means arising out of the work which the worker is employed to do. In the course of the employment must mean similarly in the course of work which the worker is employed to do and what is incidental to it. The “arising out” test will be satisfied if the plaintiff’s employment is shown to have been a cause of the injury and the plaintiff’s employment need not be the sole or indeed dominant cause of the injury.
121. In order for the plaintiff to succeed she must establish on the balance of probabilities that she has no current work capacity that is to say not only an inability to return to preinjury employment but not possessing a capability to engage in suitable employment.
122. The plaintiff suffers a back condition. It necessitated surgery. This is not disputed by the defendant whereas the work relatedness is disputed.
123. Ms Tait submitted that the plaintiff had proved herself to be an unreliable witness. The defendant places particular emphasis on the report of Mr Haig dated 20 April 2017. The defendant submitted that Mr Haig’s report is the only report among many that is predicated on a detailed account of the duties the plaintiff undertook with Qantas (Mr Haig having been furnished an account of the plaintiff’s duties by the defendant’s solicitors) and accepted by the plaintiff. Mr Haig examined the plaintiff.
124. The defendant points to the absence of the plaintiff attending any medical practitioner about back pain until 28 March 2013 despite having said that she experienced back pain from time to time in her employment with Qantas. Although there was on the plaintiffs account some physiotherapy following the 2005 reported incident, no records were produced to the court. Furthermore the defendant adverts to the plaintiff’s workcover claiming omitting reference to the specific incident said to have occurred in early March 2013.
125. The defendant submitted that the plaintiff had an imperfect recall of evidence and that she embellished her evidence and that the surveillance footage is evidence that the plaintiff possesses a range of physical capacity at odds with her evidence in chief and on cross examination.
126. The defendant contended that the plaintiff was wrong about the date when the self-check in process was introduced which it argues occurred in 2011 contrary to the plaintiff’s evidence which was that it occurred in 2013, that is, only shortly before she finished work with Qantas.
127. The opinion expressed by Mr Haigh in his second report dated 20 April 2017 upon which the defendant places considerable reliance has changed significantly from his first report dated 2 February 2017. It is necessary to address his opinions in some detail.

117. Mr Haig was requested to examine the plaintiff and provide a report on assessment to the defendant’s solicitors. He examined the plaintiff on 16 January 2017. In regard to her work duties at Qantas he said:

“She then began work with Qantas in 2004. Her work in the area of ground staff involved checking passengers in and with the associated handling of luggage and various other aspects such as greeting planes, taking wheelchair passengers to planes and so on.”

129. Mr Haig referred to the plaintiff having told him that “her first episode of back pain was in 2008 when she was checking a passenger in at the counter and turned to handle the luggage and experienced low back pain. She was able to finish her day’s work. She stated she was aware of difficulty getting on a bus to go home”. Mr Haig went onto to state that the plaintiff’s pain improved and disappeared. He then recounts the following:

“She was then all right from the point of view of her back until 2013. She was then working in the self-check-in-area and on one occasion grabbed the handle of a passenger’s bag to lift it and which was heavier than she anticipated. In pulling this up she experienced pain in the low back which was more severe than on the earlier occasion.

She continued working normally but did not improve. She was a little unsure whether she had lower extremity pain then.

She did not mention her complaint to her employers at the time.

About one week later she sat up in bed one morning and suddenly “couldn’t move” because of a marked increase in the low back pain. The pain was so severe that she vomited.

Ms King’s partner called an ambulance and she was given morphine by the ambulance staff to help transfer her into the ambulance.

She was taken to the Geelong Hospital where she was seen in the Accident and Emergency department and given medication and allowed home with the advice to see her GP.

She did see her doctor in Ocean Grove. He prescribed Panadeine Forte, Celebrex and Endone and other medications she stated.

She did try to return to work on one occasion that lasted not more than a week for there were no light duties available.

She continued to see her GP. He referred her to Dr Verrills at a pain management clinic in Geelong. She had epidural injections on a couple of occasions which did not help for longer than two hours.

She was at this stage concerned about the medication she was on discontinued these cold turkey. She stated she then “got sick” citing loss of weight, headaches, diarrhoea and feeling generally unwell. She consulted her doctor who felt that these were withdrawal symptoms”.

130. Mr Haig went on to report that the plaintiff was operated on by Mr Etherington in 2013 and a left sided L5/S1 lumbar discectomy was performed “and following that her back was not too bad”. Nonetheless, according to the plaintiff, as time went on, she continued “to suffer some back pain”.
131. The material which Mr Haig had at the time of his examination and assessment included the Workers’ Claim Form; an MRI Lumbar spine report dated 4 May 2013; correspondence from Dr. Rajcoomar dated 19 November 2013, correspondence to Dr Rajcoomar from Metro Pain Clinic dated 23 May 2013 and correspondence of Stephen Gill dated 28 March 2013 from the Geelong Hospital.
132. On examination in relation to her back and spine, Mr Haig wrote that the lumbar spine showed that the plaintiff moved freely and she walked with a normal gait and could heel and toe walk well. He said there was in her low back a short scar consistent with her surgery and there was normal lordosis and no scoliosis. He wrote that there was a little tenderness to the left of the lower lumbar level. Flexion was such that her fingers reached halfway down her shins and other movements were normal. Straight leg raising was to 90° bilaterally and the lower extremities exhibited normal power. In relation to the MRI of the lumbar spine dated 5 April 2013 he wrote that there was a very large prolapsed disk to the left side at the L5/S1 level.
133. In summary and assessment of the plaintiff, Mr Haig wrote:

“Ms King is a 62-year-old lady with the complaint of intermittent low back pain which is essentially activity related. There are also symptoms on the left lower extremity, often feeling heavy and diminished sensation over the lateral side of the left foot.

… I have commented on the MRI report showing the prolapsed disk to the left at L5/S1 which was consistent with her symptoms at the time and her residual current symptoms.…

… I have stated in the body of the report the earlier (2008) episode of low back pain. That settled after about one month and it seemed she was then free of pain until the episode during 2013.

She later came to discectomy because of continuing low back pain and left sided sciatica. She did well from the point of view of the operation.

The occurrence of the back pain as related by her was when she was helping a passenger lift his case in the self-check-in area. Her subsequent treatment has been stated in the body of the report under “Subsequent Progress/Specialist Management”.

…

I believe her low back pain is due to a degenerative disc disease, the offending disk being the L5/S1 disc. That disk has never been normal since the time of its prolapse and even though she subsequently underwent surgery relieving her sciatica and improving her low back pain, the disc has remained damaged.

In terms of her residual left leg symptoms I believe they are a residue of the compromised left S1 nerve root, it being subject to a considerable pressure, no doubt due to the size of the prolapsed disk for a period of time. It has not fully recovered. Certainly her pain in the left lower extremity was relieved by the operation but she does continue with some symptoms particularly altered sensation in the S1 distribution in the foot.

Her symptoms and physical restrictions reported to me today are consistent with the diagnosis of her condition.

Her progress has followed the expected pathway of recovery. She was much improved by the operation but it is not at all uncommon for such a patient to continue with symptoms such as she has.…

134. In addressing the matter of the cause of injury, Dr Haig wrote:

From the history given her back injury was as a result of certain incidents during her employment with Qantas. I have referred to those two episodes in the body of the report under “Mechanism of Alleged Injuries/Sequence of Events”.

She first developed back symptoms during 2008… The pain did settle after about a month. She may well have injured that disk on that occasion. I say that for she may well have had left-sided sciatica for she did refer to difficulty getting on the bus when travelling home and she thinks that I have been the reason why.

… I believe the episode in 2013 was a recurrence of her low back pain and left-sided sciatica.

From the history given, her employment did significantly contribute to the recurrence. This was the episode where she was lifting a passenger’s heavy case.

As stated above I believe her employment did contribute materially to her back injury.

…

I did not believe that she was either (i) voluntarily exaggerating her symptoms/restrictions or (ii) involuntarily exaggerating her symptoms/restrictions.

135. Mr Haig addressed the plaintiff’s work capacity. In response to whether the plaintiff had a capacity for full-time work in her normal duties he said he did not believe the plaintiff “is capable of working in her normal duties for the very reason that those normal duties involved lifting passengers’ luggage. I believe that would be imprudent with her low back history.” In answer to whether the plaintiff was currently capable of full-time work in alternative duties, he wrote that he believed the plaintiff “is capable of full-time work in alternative duties. These would have to be of a nature that involved no lifting or repetitive bending. In short this would be purely sedentary work.”
136. Mr Haig believed the plaintiff’s “relative incapacity” is due to her “work-related condition”. Lastly in terms of the plaintiff’s prognosis he wrote that he was “guarded with regard to back pain in the left leg/foot symptoms due to damage of the S1 nerve root at the time she was suffering the prolapsed disk”.
137. Mr Haig furnished a supplementary report dated 2 January 2017.
138. Mr Haigh provided a third report dated 20 April 2017. In aid of the further report the defendant’s solicitors by letter dated 29 March 2017 provided Mr Haig with additional clinical records that included the following additional information:

·The plaintiff was first seen by the Point Lonsdale Physiotherapy on 27 June 2014 for a back strengthening programme subsequent to a lower back injury sustained in early 2013 “after lifting a lady up at work”.

·The plaintiff was admitted to hospital on 29 March 2013 unconscious it having been having recorded that she had been suffering from back pain for the past 3 months and 2 weeks previous and had undergone a massage that made her back worse.

·On 26 August 2013 Mr Etherington reported having reviewed the plaintiff on 15 August 2013 and that she had reported lower back pain since March 2013 which was “relatively minor” until the incident on 28 March 2013 that resulted in her attendance by ambulance at the Geelong Hospital.

·On referral to the Metro Spinal Clinic on 13 May 2013 the plaintiff’s general practitioner noted that the plaintiff’s lower back pain had “come on acutely, no history of injury…”

139. In addition the letter accompanying the request for a further report contained a statement of the plaintiff’s undertaken at Qantas as follows:

·The Plaintiff was employed as a Customer Service Agent in a flexible job share agreement working one full week per fortnight

·Her duties required her to assist departing and arriving passengers including check-in

·The Plaintiff’s role has been described as a “clerical” role which could be performed in either a seated or standing position

·The plaintiff would have also been required to perform face-to-face customer service, including assisting passengers with language barriers, physical problems, unaccompanied minors and wheelchair-bound passengers on occasions. If a person in the wheelchair was heavy, the plaintiff could seek assistance. However, there was a team of Commissionaires who were dedicated to assist wheelchair-bound persons so that they Plaintiff would not have been required to undertake this duty frequently.

·Items weighing more than 23 kg were labelled with a green sticker to indicate they were heavy. All baggage was placed onto the conveyor belt by the passengers.

·On average a customer service agent would be required to reposition or position no more than a dozen bags per shift.

·Staff would only worked for two hours at the self-check-in before being rotated to other duties.

·Staff would only be required to stand in a static position for a maximum of one hour at a time when security hosting or at queue entry points where there were anti- fatigue mats available.

·There was also a company allowance for shoe insoles to be purchased.

·The plaintiff did not report any injury in 2008 as alleged despite having early completed an incident report in 2005 for a minor back strain and for which the Plaintiff had never lodged a WorkCover claim.

·The first mention of back pain in May 2013 was when the Plaintiff telephoned her employer about a “chipped bone in her back”.  She did not mention that the injury was as a result of a specific incident and there was a discussion around the condition being a result of wear and tear.

·The plaintiff took a voluntary redundancy in 2014.

140. In his report dated 20 April 2017 written in response to the further request and the provision of the further information Mr Haig said:

“I am in receipt of your letter dated 29 March 2017 and acknowledge the enclosures which I’ve read and considered.

I have also read your account of Ms King’s duties at Qantas.

There appeared to be somewhat varying accounts regarding the onset of her low back pain. She had stated to me, and it is stated in my report… “She was then working in the self-check-in area and on one occasion grabbed the handle of the passenger’s bag to lift it which was heavier than she anticipated. In pulling this up, she experienced pain in the low back which was more severe than on the earlier occasion.” There is no mention of that incident in any of the accompanying document. Rather, as you state in point 2, “it was recorded that the plaintiff had been suffering from back pain for the past 3 months and two weeks ago had undergone a massage that had made her back worse when she was getting out of a chair immediately afterwards”.

141. In addressing the questions asked of him Mr Haig said the following:

“In view of the new information to hand, there is some question about the origin of her back injury. It would appear that the major event in terms of onset of pain was getting out of a chair after massage. It is also stated that she had awoken that morning and was unable to get out of bed because of the pain. I therefore seriously question whether her back injury has arisen out of or occurred in the course of her employment with Qantas as alleged”.

142. He went on to say:

“In view of the description of her work, I do not believe her employment significantly contributed to the back injury.”

143. Furthermore he said: “it is questionable if there was any work-related aggravation. He wrote:

“I believe it is the natural history of her back, which has been one of age-related degenerative change and then a frank disc prolapse that has been the cause of her complaint.

144. He concluded his report by saying:

“This report therefore differs from my opinion expressed in the earlier one when I stated… “The occurrence of the back pain as related by her was when she was helping a passenger lift’s case in the self-check-in area.”

145. The defendant’s position is that causation is questionable due to the unreliability of the plaintiff’s account of the work incident in early March 2013 when she was helping a passenger lift his case in the self-check-in area. Ms Tait submitted that if I am not satisfied of the happening of that event then there was no reliable basis upon which to find work relatedness for the low back injury sustained by the plaintiff because the work incidents that had occurred in the past had long since settled if not resolved entirely and that the only reliable account for the acute episode of back pain that occurred on 28 March 2013 is of the plaintiff having taken a massage.
146. I note that it was an entirely sensible concession from the defendant’s counsel that if contrary to the defendant’s submission I was satisfied of the happening of the event in early March 2013, then the medical reports otherwise relied upon by the plaintiff do provide a basis for the plaintiff’s work with the defendant as amounting to a significant contributing factor to injury. Indeed Mr Haig expressly so concludes by his earlier reporting.
147. The plaintiff’s account of events and her submissions are very different from those of the defendant and Ms Lean argued that there is no sensible explanation offered for the plaintiff’s acute presentation other than her years of work with Qantas and indeed Ms Lean submitted that save for the defendant’s efforts directed in cross-examination at the plaintiff’s supposed unreliability, there is no sensible alternative cause disclosed by the medicine for the plaintiff’s prolapse.
148. The plaintiff points to the objective evidence comprising scans and of the MRI in order to identify her degeneration and the significance of the prolapse that led to surgery. Ms Lean submitted that it bordered on the fanciful to contend that the condition of the plaintiff’s spine at L5/S1 was caused by a massage some time prior to 28 March 2013. Rather the plaintiff adopts the diagnosis of failed back syndrome made by Professor Bittar.
149. The plaintiff also relies upon the opinions expressed by the plaintiff’s treating GP, Dr Rajcoomar who has provided four reports and identifies the plaintiff’s work as constituting a significant contributing factor to injury.
150. The plaintiff relies as well on reports from Mr Etherington, Dr Lovell, Mr Verrills and Professor Bittar.
151. Dr. Lovell in a report dated 23 May 2013, addressed to Dr Rajcoomar, reported following on examination of the plaintiff that she presented “with left sided leg pain which came on after an initial few weeks of back pain only. She woke one morning last month with severe back pain for which she went to hospital. Some days later she developed severe leg pain and the main problem now is this severe left sided leg pain which has all the hallmarks of radicular pain. Certainly the pain level would be 8-9/10 without medication, which she feels controls it down to 5-6/10. She certainly still has sitting, standing and walking intolerance, is more comfortable lying down and with medication is able to sleep through the night without being woken by the pain”.
152. Dr. Lovell referred to the MRI clearly showing pathology at the L5/S1 disc with the rest of the discs looking within the range of normal. He spoke of a posterior- lateral protrusion, “quite impressive on the image and extending into the lateral recess and quite clearly compressing the left S1 nerve root”. He diagnosed left S1 radicular pain.
153. Mr Etherington who operated on the plaintiff made a report to Dr Rajcoomar dated 26 August 2013. In his report he recorded a history of the plaintiff having first noticed “some vague aching in her lower back which was present for about a week” in mid-March 2013. He recorded the occurrence on 28 March 2013 when the plaintiff awoke with severe back pain and an ambulance was required and she was conveyed to the Geelong Hospital after which she was sent home. He recorded her attendance thereafter on her general practitioner and her referral to the Metro Spine Clinic. He noted that she had an injection in May 2013 which provided some initial help. A second injection in July 2013 was of momentary assistance. Mr Etherington noted that the plaintiff’s pain was made worse with prolonged sitting and prolonged standing or if she changes from one position to another and as well that walking around can be uncomfortable. Mr Etherington referred to plain x-rays taken on 5 April 2013 and an MRI scan on 4 May 2013 that revealed degenerative changes at the L5/ S1 disc where there is a left-sided protrusion. He noted however degenerative changes at L4/5 and other levels. He concluded that the plaintiff has left S1 radiculopathy from a left L5/S1 disc protrusion. He considered her a candidate for surgery.
154. On 8 November 2016 Mr Etherington wrote to the plaintiff’s solicitors and after noting the plaintiff’s history and said that he had not been told of “a specific event, but the pain did seem to start in March 2013 when she was working lifting luggage at Qantas”.
155. In a further report dated 7 October 2013, Mr Etherington wrote that he had undertaken a review of the plaintiff on 26 September 2013 in relation to her persistent S1 radiculopathy. He thought surgery reasonable.
156. In a report dated 8 November 2016 to the plaintiff’s solicitors in response to questions posed to him by them, Mr Etherington noted the plaintiff’s history including surgery. He said that he had seen the plaintiff subsequent to the operation on 27 November 2013 and 19 February 2014 at which time she was doing well although there remained some lumbar pain and some residual S1 nerve root symptomology. He noted having seen the plaintiff again on 28 May 2014. In response to the plaintiff’s condition and whether consistent with cause he restated his previous comment that he was not told of any specific incident, “but the pain did seem to start in March 2013 when she was working lifting luggage at Qantas”. He could not express an opinion about the plaintiff’s work capacity.

145. Dr Verrills, a Pain Specialist with the Metro Pain Group provided a written report to the plaintiff’s solicitors dated 6 March 2017. Dr. Verrills reported that the plaintiff had initially been assessed on 23 May 2013 by Dr. Lovell who had since retired. Dr. Verrills wrote that there was “no clear precipitating incident and she essentially woke with 8-9/10 pain. The pain was radicular in nature and severe down her left leg”. He reported on the L5/S1 disc protrusion substantially impacting the left S1 nerve root and causing severe radicular pain. He recorded two steroid injections.

Professor Bittar

158. Professor Bittar is a Consultant Neurosurgeon. He reviewed the plaintiff on examination at the request of her solicitors on 22 March 2017. He obtained a history that the plaintiff commenced work with Qantas in around 2004 prior to which she had not experienced any symptoms indicative of a pre-existing lumbar spine condition. He reported that the onset of her symptoms occurred approximately one year after commencing work with Qantas (ie in 2005) and that her work was of a “heavy physical nature, including a requirement to lift heavy suitcases, engage in frequent bending and twisting, and to push large individuals on wheelchairs.” He noted the plaintiff as having undertaken some physiotherapy after an episode at work in about 2005 following which her symptoms settled. He next reported the plaintiff having experienced back pain in around about March 2013 when she was at work attending to customers who were endeavouring to use the new self-service check-in facility. He reported the plaintiff’s account that “a customer had a suitcase which weighed approximately 30 kg and she bent forward is to pause towards her in order to demonstrate what needed to be done. She pulled the backup towards her, she experienced a sudden onset of sharp lower back pain.” He said that the plaintiff’s pain subsided but did not resolve but nonetheless she continued with her work and took no specific treatment at the time. He recounted that approximately a week later, the plaintiff woke up with severe low back pain and this subsequently began to radiate down her left leg.
159. Professor Bittar reported on the review undertaken by the plaintiff’s general practitioner and her treatment with common analgesic medication and her subsequent referral to the Metro Pain Clinic, where she came under the attention of Dr Lovell and Dr Verrills who recommended a left S1 nerve sheath injection which procedure was undertaken on 28 May 2013, the benefits of which were immediate but transitory after which there followed two additional spinal injections.
160. Professor Bittar reported on the plaintiff’s review by Dr Etherington on 15 August 2013 and his opinion that the plaintiff had a left S1 radiculopathy secondary to the L5/S1 disc protrusion. Professor Bittar recorded that under Dr Etherington’s guidance in September 2013 there was a repeat epidural injection which provided the plaintiff with transient but not long-lasting pain relief. Following further consultations with Dr. Etherington surgery was undertaken by way of a left L5/S1 discectomy on 7 October 2013. When reviewed post operatively on 27 November 2013 by Dr. Etherington and again on 19 February 2014,  the plaintiff reported no pain in her left leg apart from tightness of her left calf and numbness in her foot. Physiotherapy for some mechanical lower back pain was recommended. The plaintiff next saw Dr. Etherington in the middle of 2014 complaining of persistent lower back pain with minimal aching in a left leg. Dr. Etherington recommended conservative treatment. The plaintiff’s treatment has included ongoing analgesic medication, Pilates and Kieser training.
161. Professor Bittar explained the plaintiff’s symptoms as follows:

She complains of lower back pain and left leg pain which are of similar severity. Her backpain is present most of the time and radiates bilaterally across the lumbosacral junction.  Her backpain is predominantly left-sided. This then radiates into her left buttock into her groin, hamstrings and calf. She also experiences cramping in the left calf. In recent months she has also experienced pain radiating through the anterolateral aspect of her left thigh and into her shin.

She usually experiences leg pain at the same time as her backpain…

Her back and leg pain have an average severity of 7/10, with a maximum severity of 10/10.

Her symptoms are exacerbated by sitting for more than approximately 90 minutes, standing for more than 60 minutes, bending, twisting or lifting more than around 5 kg.

Her back pain and leg pain have a significant detrimental impact on a variety of activities… She experiences significant sleep disruption due to pain, and has associated daytime tiredness. She has difficulty was certain household activities…

In general she attempts to maintain an active lifestyle, and prefers to deal with increased levels of pain rather than to limit her activities.

Her recreational activities are also limited. She previously enjoyed bike riding but no longer participates in this activity. She previously enjoyed walking and walks much less than she did previously due to her symptoms.

162. Professor Bittar diagnosed a left S1 radiculopathy secondary to the L5/S1 disc prolapse. He opined that the plaintiff has “failed back surgery syndrome.”
163. In addressing causation Professor Bittar expressed the opinion that “her employment with Qantas remains a very significant contributing factor to her ongoing pain, disability and requirement for treatment. Specifically, the frequent bending, twisting and heavy lifting undertaken over a number of years with Qantas, together with[6] the injury which occurred at work in March 2013, remain significant contributing factors to her ongoing pain, disability and requirement for treatment.” Professor Bittar thought further treatment options may include revision microdiscetomy, spinal cord stimulation, or a lumbar fusion. He also thought the plaintiff would benefit from participation in a pain management program. In terms of her prognosis he wrote that the plaintiff is likely to continue to suffer from significant pain disability into the foreseeable future.

[6] My emphasis by underlining

164. In terms of her work capacity, Professor Bittar said that the plaintiff “is permanently incapacitated for her for pre-injury duties as a customer service officer.” He continued:

“Taking into account her age, education, training, skills and work experience, together with the nature and severity of her work-related lumbar spine condition, it is my opinion that she does not have any realistic capacity to procure and maintain suitable employment. In my opinion, her total incapacity for work is permanent.”

165. The plaintiff also referred to the report of Dr Slesenger, Specialist Occupational Physician and dated 7 June 2007. His account following on the plaintiff’s presentation for assessment is largely consistent with the plaintiff’s history. He wrote that he was satisfied that the occupational exposures of the plaintiff from work “are a plausible cause” of her impairment and he referred to the plaintiff’s manual handling and postural requirements as explained to him by her. In regard to her work capacity, he wrote that the plaintiff could not return to her preinjury duties given her current symptoms and in regard to alternative duties he noted her current residential location, her age, her past occupational experience limited essentially to the airline industry, her limited computer skills, her lack of qualifications, the variable and unpredictable nature of her symptoms, together with her symptoms and functional limitations. All of these he concluded led him to be “not optimistic with regard to her capacity to return to work on a consistent and reliable basis in a role for which she has suitable training and experience.”

Discussion of the evidence

166. Has the plaintiff established on the balance of probabilities that the injury to her lower back arose out of or in the course of her employment with the defendant and that her employment with the defendant was a significant contributing factor to injury resulting in incapacity that manifested itself on 28 March? If I accept the plaintiff’s account of the incident in early March 2013 then there is largely speaking a consensus of medical opinion that the plaintiff’s work amounted to a significant contributing factor to her injury and that the injury remains a material contribution to her incapacity.
167. On the matter of causation the common law applies. In March v Stramare Pty Ltd (1991) 171 CLR 506 the High Court said that although causation is a question of fact “the question of whether conduct is a cause of injury remains to be determined by a value judgment including ordinary notions of language and common sense.” (See, Deane J at p.524) and also see Zlateska v Consolidated Cleaning [2006] VSCA 141 at para. 82.

168. The reliability of the plaintiff’s account of her work and of the particular incidents of pain events is a matter of significance. It is significant because of the way in which the plaintiff’s claim is put, which is, that she suffered a compensable injury as a result of, or in the course of, her employment with Qantas but with particular emphasis being placed on the incident in early March 2013 that manifested in the acute pain and hospital attendance on 28 March 2013 and the ongoing imposition that led to surgery and she claims, ongoing incapacity not just for pre injury duties but for suitable employment.

169. The plaintiff’s account in evidence of her activities throughout the course of the employment with Qantas is one of occasions of heavy lifting of luggage. However, in fact the plaintiff’s work did not involve continuous heavy lifting of luggage, or of bending, pulling or pushing activities. The occurrence of an event more than once in a single transaction may aptly be described as having being repeated but this need not mean the task is repetitive, and it is even less apt for it to be described as continuous. The plaintiff’s activities were not repetitive activities either because although I am satisfied that in all probability the plaintiff repeated certain activities over the course of a shift and perhaps on most, if not each day of her work, the duties she undertook were not repetitive in the sense of forming part of a necessary process for the discharge of her work as a CSO. However, certain duties in relation to bending and lifting and pushing were undertaken by the plaintiff that were common features of her work as a CSO. I am satisfied that one or more of these physical activities was required to be performed in all probability more than once in the course of a given shift. Some activities like straightening up of luggage or adjusting the position of luggage on a scale and leaning and bending from a seated position at a check in counter to do so were short and sharp activities whereas others such as wheeling from an aircraft passengers whose needs and weights varied through the aerobridge and arrivals process including occasions of collecting luggage and exiting to the terminal concourse required more ongoing effort and strain and occupied more concerted periods of time. There is no definite formula that enables a line to be drawn, such that falling one side or the other of, it can be said that it is thereby established that work was a significant contributing factor to injury. Instead, in determining causation in a case such as this, a sensible approach is required having regard to the plaintiff’s duties and an assessment of the reliability of her account of matters in evidence.

Significant contributing factor

170. The words “contributing factor” recognise that an injury may be caused by more than one factor. The inclusion of “significant” means that where there is more than one factor involved and one of them is the worker’s employment, then its importance must be evaluated in order to determine if it is a “significant” contributing factor or not. There may be also more than one factor which is significant and of course one factor may be more significant than another but this does not diminish the question whether employment is a significant contributing factor to the causation of injury. It may be of lesser significance than another but nonetheless satisfy the description of “significant”.
171. Furthermore, s 5(1B) of the Act requires that in determining whether a worker's employment was significant contributing factor to an injury the following matters must be taken into account -

(a)the duration of the worker's current employment; and

(b)the nature of the work performed; and

(c)the particular tasks of the employment; and

(d)the probable development of the injury occurring if that employment had not taken place; and

(e)the existence of any hereditary risks; and

(f)the life-style of the worker; and

(g)the activities of the worker outside the workplace—

1. The duration of the plaintiff’s work with the defendant was considerable. It was of long duration.

2. I am also satisfied that nature of the work performed by the plaintiff as a CSO involved being available to assist Qantas customers with a variety of needs as part of the Qantas Customer Experience.

3. The particular tasks described by the plaintiff, and not meaningfully contested in evidence by the defendant, included static standing for periods of time and following the introduction of the self-check in kiosks, the provision of anti-fatigue mats, navigating the receipt of and ticketing of passenger luggage, lifting of luggage, bending to dispatch luggage from check in counters, assisting passengers with tagging of luggage at self-check but increasingly infrequently as the technology became a more common feature, assisting passengers on occasion with repacking of overweight luggage, pushing passengers in wheelchairs on an off aircraft  and managing on occasions to navigate customer and luggage to the outside of the terminal.

4. The next statutory requirement directs one’s attention to evidence of the probable development of the injury if “that employment” that is to say, the particular tasks of the plaintiff’s employment had not taken place. The evidence did not address in a probative sense the probable development of the injury occurring if the plaintiff’s employment had not taken place. The issue of normal wear and tear and age relatedness was cited but not examined in a meaningful way.

5. No evidence was adduced of the existence of hereditary risks.

   177. As to the lifestyle of the plaintiff there was no relevant evidence.
   178. As to the plaintiff’s activities outside the workplace there was also no relevant evidence adduced.

Consideration of s 5(1B) Factors

1. In giving effect to this part of the Act, in my judgment it would be wrong to approach the matter on the basis that the paragraphs in question are only relevant where circumstances fitting them are present; in which case those facts would be put in the balance against the plaintiff. As I have commented on in other decisions, in point of fact, the absence of facts falling within any of the sub-paragraphs, may tell in favour of the existence of a significant employment contribution to injury in a particular case.

2. As I have noted, there was nothing by way of evidence as regards the plaintiff’s lifestyle or anything as to her activities outside the workplace or the probable development of the injury occurring if the employment had not taken place. Therefore, what I make of all that is, that it narrows the focus of what might otherwise be more broadly applied in answering the question whether the plaintiff’s employment was a significant contributing factor to injury.

Credit

181. The defendant put the plaintiff’s credit in issue by reference to certain surveillance footage.  Surveillance was obtained on the following dates:

·Monday 19 December 2016

·Monday 16 January 2017

·Tuesday 23 January 2017

·Monday 17 July 2017

·Wednesday 26 July 2017

·Friday 28 July 2017

·Friday 25 August 2017

·Monday 28 August 2017

182. The surveillance footage was played to the plaintiff in the course of cross-examination to suggest that she was not restricted in her movements by virtue of her claimed work injury. The footage identified the plaintiff exhibiting an apparent range of movement while attending to various activities associated with everyday life such as shopping and pushing a supermarket trolley and bending to procure items from shelves and lifting the rear boot of her car and bending from the waist to place items in the rear cargo hold of her vehicle as well as walking along the beach and bending to pet dogs. Ms King accepted that the footage would leave the uninformed observer without an impression of injury or apparent restrictions attributable to a low back injury.
183. The periods of time exhibited by the footage of Ms King engaged in certain everyday domestic activities undertaken without apparent impediment is not evidence synonymous with a capacity by the plaintiff for suitable employment. The surveillance has not adversely impacted my impression of the plaintiff and of her account of pain.
184. I am satisfied that Ms King has been over many years a stoic person who has continued to press on with life in the face of her symptoms. She explained the time she took to elevate her injury to a claim made under the Act as a reluctance on her part “to go down that path” (that is, of Workcover) because she regarded resort to it as anathema to her work ethic. I accept her explanation.
185. I accept Ms King’s evidence that over the years she has experienced back pain while undertaking her work duties. This pain has not been simply present while working and ceasing work on any particular day.
186. I accept the plaintiff’s evidence that the back pain has worsened over the years and that there have been incidents at work that she has reported. I accept that she was aware of the requirements to report work incidents. Therefore, it is difficult to reconcile why she did not make a written report of the incident in early March 2013. The plaintiff is emphatic that she told Mr Stojnic in discussion in the tea room. The plaintiff also is emphatic that whenever she has been asked to give an account of “what happened” to third parties, such as ambulance officers and hospital admission staff or certain medicos she has seen she recounted the incident of early March 2013. Yet in such of these records there is no account of the incident. Of course the absence of a reference to a fact is not evidence of the fact in issue not having occurred but it does call for particular consideration. One explanation as to the ambulance record and the hospital admission record is that Ms King had been given morphine to alleviate the pain she experienced and that her account was thereby affected or that it was not recorded.  
187. Ms Tait submitted that a Jones v Dunkel (1959) 101 CLR 298 inference was properly to be dawn by me of the plaintiff’s failure to adduce evidence from her partner who was with her at the time of the ambulance attendance and hospital admission and could have been expected to corroborate the plaintiff’s account of the incident at work of March 2013 to the ambulance officers and hospital staff and moreover corroborative evidence of the plaintiff making a contemporaneous complaint of the work incident in early March 2013 to her employer.
188. The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel. Such an inference is available only if evidence otherwise provides a basis on which that unfavourable inference can be drawn. An unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support the inference. The fact is that even had the plaintiff’s partner testified that she had given an alternative account of when she had been experiencing pain and had not mentioned the incident of early March 2013 there is a plausible account by the plaintiff such that any evidence from her partner of what he might have heard the plaintiff say to ambulance officers would be itself sufficient in my mind to raise as unreliable any account by the plaintiff who was in great pain and had been given morphine.

182. Mr Stojnic has no memory of a conversation with the plaintiff regarding the early March 2013 incident in the tea room although he did have a conversation with the plaintiff in May 2013. I am satisfied that the plaintiff then at least gave an account of the incident. Mr Stojnic said that if as the plaintiff claims the oral report had been made to him he would have made a report or caused a report to be taken of the incident consistent with procedures. Ms Lean submitted that I should prefer the plaintiff’s account that she made an oral report to Mr Stojnic over conversation in the tea room than to reject her account based on the reliability of Mr Stojnic’s memory of a single conversation among the countless he had in the performance of his everyday activities. I accept that submission.
183. The plaintiff was unable to explain the absence of reference in the attendance notes and medical reports of the account of the incident of early March 2013 to which I have already referred notably Dr Rajcoomar, Dr Lovell and Verrills. The accounts that the onset of pain came on acutely without any specific precipitating event is explicable in that there was a period of delay between the alleged incident of early March 2013 (from which the plaintiff returned to work the next day and for some time thereafter without demur) and 28 March 2013 when she was rendered incapable of further work. Grech v Orica (2006) 14 VR 602 is a reminder to recognise that a difference may arise between injury and incapacity. It is not inexplicable that there may be a deficit in accounts of attribution to an incident that occurred but did not immediately bring on incapacity. In any event it is evident in the medical reporting relied on by the plaintiff that the overall account of her work provides a plausible explanation for her condition. The incident of early March 2013 is referred to in subsequent reporting. I have as well formed a very favourable opinion of the plaintiff. On balance I accept her account that she gave an account of the incident in early March 2013 as opposed to concluding that she must not have by reason of the absence of reference to it the reports referred to by the defendant.

Capacity

191. The expression “no current work capacity” is defined in s 5(1) of the Act, in relation to a worker, to mean:

“A present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment”.

1. From 1 July 2010[7] “suitable employment” was defined in s 5(1) as follows:

   [7] When s 74(3) of the Accident Compensation Amendment Act2010 commenced.

   Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited –

   (a)having regard to -

   (i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

   (ii)the nature of the worker’s pre-injury employment; and

   (iii)the worker’s age, education, skills and work experience; and

   (iv)the worker’s place of residence; and

   (v)any plan or document prepared as part of the return to work planning process; and

   (vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

   (b)       regardless of whether –

   (i)the work or the employment is available;  and

   (ii)the work or the employment is of a type or nature that is generally available in the employment market.

   193. The remaining matter of interest in this proceeding concerns how and when, and by what means, the respective and potentially shifting evidentiary burdens as between the parties arise and then fall to be discharged in a case such as this when no current work capacity for suitable employment is put in issue.
   194. The definition of ‘no current work capacity’ requires that there be an injury-caused inability to return to work in employment—whether that be the worker’s pre-injury employment or suitable employment.  The definition does not end with the words ‘return to work’.  Rather, the conception is one of a return to work ‘in employment’.  The focus must therefore be on an injured worker’s inability to engage in employment.
   195. A return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks.  That is because definition of ‘suitable employment’, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment.  If it were otherwise, paragraphs (a) (ii), (iii) and (iv) would have no work to do.
   196. In Dinatale v Sweeney [2013] VSC 414 Beach J in addressing a ground of appeal by a worker that the Magistrate had erred in law in failing to hold that, the appellant having established a prima facie case that no suitable employment as defined in the Act was available to her, an evidentiary onus passed to the respondent to adduce evidence that there was employment available in the community which the appellant was capable of performing.  His Honour rejected this ground of appeal holding first, that on the evidence, the Magistrate was not bound in law to hold that the appellant had established a prima facie case that no suitable employment was available to her.  Secondly, even if any relevant evidentiary onus passed to the respondent, this was discharged by the tendering of the vocational assessment evidence.
   197. It was also asserted that the Magistrate erred in law in treating evidence that the appellant would be capable of performing some aspects of the job of “inquiry officer”, as establishing that there was suitable employment available in the community which the appellant was capable of performing. His Honour found that this ground also failed. The evidence of the appellant was that she was able to perform all of the identified tasks associated with the position of inquiry officer. 
   198. I mention Dinatale by way of contrast to the proceeding conducted before me. Before his Honour there was evidence that the appellant could perform each of the identified duties of an inquiry officer.  In addition, there was vocational assessment evidence that the appellant could perform the tasks associated with the position of Inquiry Officer, and that the position in fact existed and was relevantly available to the appellant. This case is very different factually and there was no vocational evidence.
   199. A plaintiff need only establish a prima facie case that no suitable employment exists and in such an instance a plaintiff will then be entitled to succeed unless the Court is satisfied that the defendant has produced evidence sufficient to raise some specific alternatives for consideration as suitable employment. In my view, and being realistic, the defendant is required to adduce evidence sufficient to give rise to a real possibility that there are particular types of employment available in the community which the plaintiff is capable of performing. If I am not satisfied of that then the defendant will fail. Thus there exists an evidentiary onus on the defendant on this issue. This is really no differently put by me than it was by Smith J in Public Transport Corporation v Mervyn Pitts [2007] VSC 356.
   200. The scope of the meaning to be afforded ‘suitable employment’ was addressed by the Court of Appeal in Barwon Spinners Pty Ltd v Podolack [2005] 14 VR 622 in which it was said:

   The concept of ‘suitable employment’ will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; and hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as are also the nature, and no doubt the extent, of the workers incapacity and, of course, preinjury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; … The expression “whether or not that work is available” emphasises that the definition is looking at the capacity to work, meaning that physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, and that his ‘suitable employment’ whether or not the job is currently available.

   201. In a decision of this Court in Manthopoulos v Spencwill Nominees [MMC 26 April 2012] His Honour Magistrate Garnett said:

   It is still necessary for the court to determine whether the suggested employment exists, to analyse the employment requirements from the physical, and if necessary, a psychological aspect and to apply the relevant matters as set out in the definition of suitable employment in s 5. After undertaking this analysis, applying ‘a degree of realism’ and after disregarding industrial factors, a determination can be made as to whether the worker has a capacity for ‘suitable employment’. Furthermore, when considering whether a worker has a capacity for ‘suitable employment’, the suggested suitable employment needs to be analysed by specific reference to the particulars of the job, the medical restrictions and personal characteristics of the worker in addition to the factors set out in the definition.

   202. It is also important to bear in mind the distinction between capacity for a return to modified duties and a work capacity for suitable employment: Sodexo Australia v Karen Rowe & Ors [2009] VSC 298.
   203. The central exercise for me however is not to concentrate on one aspect of the evidence in isolation but to assess the whole of the evidence in order to determine if the defendant has discharged its burden in satisfying me that the plaintiff could undertake suitable employment having regard to the matters contained in the definition.
   204. I refer to the decision of the Court of Appeal  in Richter v Driscoll & Ors [2016] VSCA 457 in which it was noted that the duties upon which a Medical Panel based its opinion were a generic description of activities which were required by different jobs falling within the job title ‘light process/production worker’. In relation to the definition of ‘no current work capacity’ the Court of Appeal held that the definition required consideration of a worker’s capacity to return to work in employment in a ‘meaningful way’, as a settled member of the workforce. The Court held that if the Panel was to conclude that Ms Richter ‘had an ability to engage in employment which required one or more of the duties described’ it ‘was required to give some practical content to the job involved, in order that its conclusion was capable of being examined’. In other words, the duties were described in generic terms and to simply ‘accept and act upon the characterisation that the physical demands of those duties were light to medium was a lesson in obscurity’. Additionally, the Court of Appeal held that without an exposition of duties involved in some job that fell within the broad job title, it was also not possible to determine whether a job fitting the description was available when regard was had to Ms Richter’s place of residence.
   205. Nonetheless, Ms Tait for the defendant argued that capacity for employment by the plaintiff exists by reason of the following:

   (i)The opinion of the plaintiff’s general practitioner.  

   (ii)The evidence of the plaintiff adduced in evidence under cross-examination.

   (iii)The evidence of Mr Haigh that he believed the plaintiff “is capable of full-time work in alternative duties. These would have to be of a nature that involved no lifting or repetitive bending. In short this would be purely sedentary work.”

   206. Contrary opinions are expressed by Professor Bittar who has reported that that the plaintiff “is permanently incapacitated for her for pre-injury duties as a customer service officer.” He went onto write:

   “Taking into account her age, education, training, skills and work experience, together with the nature and severity of her work-related lumbar spine condition, it is my opinion that she does not have any realistic capacity to procure and maintain suitable employment. In my opinion, her total incapacity for work is permanent.”

   207. Mr Slesenger wrote that the plaintiff could not return to her preinjury duties given her current symptoms and in regard to alternative duties he noted among relevant matters her current residential location, her age, her past occupational experience limited essentially to the airline industry, her limited computer skills, her lack of qualifications, the variable and unpredictable nature of her symptoms, together with her symptoms and functional limitations. All of these factors led him to conclude that he was “not optimistic with regard to her capacity to return to work on a consistent and reliable basis in a role for which she has suitable training and experience.”
   208. No evidence was led by the defendant of the role of shop assistant in a jewellery store or that of a dog walker. Rather the defendant asserted a sufficiency of evidence for these alternative suitable employment by reason of the evidence volunteered by the plaintiff that she had approximately 14 years’ ago worked as a shop assistant in a jewellery store and in the case of a dog walker, the evidence that the plaintiff walked her own dog on the beach on a daily basis. As well and in response to certain questions conjured up by counsel for the defendant about the job of work of a shop assistant in a jewellery store if capable of modification to accommodate her restrictions, the plaintiff responded affirmatively.
   209. Some of the medical opinions put before me in evidence reflect the dicta in some important cases in this field. For example, in Manthopoulos v Spencwill Nominees Pty Ltd (supra) where Garnett M said, “the suggested jobs do not, in any great detail, describe the precise physical activities required, the inherent requirements of the job, the duration of each duty, the number of hours required to be worked, the skills required or training involved and the flexibility allowed to cater for individual needs. There is no “degree of realism” in the suggested ‘suitable employment’ alternatives”.
   210. In regard to the expressed opinion of the plaintiff’s general practitioner, I have considered whether his unadorned statement of opinion as to the plaintiff possessing capacity trumps the combined effect of the contrary medical opinions and the plaintiff’s evidence. I accept as a general principle that the opinion of a current treating general practitioner is likely to evidence a realistic and current understanding of a person’s condition than say, for example, a medico legal specialist. However, that expression of the existence of a capacity for suitable employment without more, begs the question whether the opinion is expressed as a medical question or in terms of those further considerations to which I should have regard and discussed in Manthopoulos and elaborated upon in subsequent superior court decisions. When the question is addressed in this context the outcome most assuredly points to a lack of capacity for suitable employment.

Summary and conclusion

211. I am satisfied that through the course of her employment with Qantas, Ms King’s spinal degenerative changes were aggravated by her work duties.
212. The words “aggravation or acceleration” in the workers compensation context have been considered by many courts, including the High Court, in Australia over the years. A good example is that of Mr Justice Windeyer in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593 in which he stated,

“’aggravation’ means, I think, that an existing disease has been made worse, not that it simply has become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible to being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom v Semlitch. To this view I adhere.”

213. The plaintiff’s work injury was the subject of an acute aggravation the effects of which as Ms Lean submitted, and I accept, should be dismissed as attributable to a massage as the defendant would have it. The prolapse was significant and I am satisfied so was the plaintiff’s work to it and her incapacity.
214. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing her normal work.
215. After considering these factors and the matters referred to in the definition of ‘suitable employment’ namely; the nature of her pre-injury employment, her age, work experience and place of residence, I am satisfied that Ms King does not have a capacity to return to work in either her pre-injury employment or suitable employment.  I am satisfied that Ms King has ‘no current work capacity’ which is likely to last indefinitely. I am satisfied that she requires ongoing medical treatment in the form of medication, massage and physiotherapy to relieve her symptoms. Accordingly, Ms King is entitled to weekly payments of compensation from and reasonable medical and the like expenses from in accordance with the provisions of the Act.
216. I will hear the parties as to the final form of orders.