Brundell v Rentokil Initial

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
DIVISION OF COURT

Case No. J12371854

WENDY BRUNDELL	Plaintiff
v
RENTOKIL INITIAL PTY LTD	Defendant

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MAGISTRATE:	M. HOARE
WHERE HELD:	Melbourne
DATE OF HEARING:	17-18 Feb 2020, 21-22 July 2020
DATE OF DECISION:	5 August 2020
CASE MAY BE CITED AS:	Brundell v Rentokil Initial
MEDIUM NEUTRAL CITATION:	[2020] VMC 017

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CATCHWORDS – Workers Compensation – Rejection of Claim for Weekly Payments and Medical and Like Expenses – Aggravation of Pre-existing Degenerative Disease of the Lumbar Spine – Existence of Other Contributing Factors – Whether Employment a Significant Contributing Factor – Workplace Injury Rehabilitation and Compensation Act 2013, ss. 3, 40 (3)(c), Sched.1, Cl.25

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms Moore	Arnold Thomas Becker
For the Defendant	Mr Paoletti	Russell Kennedy

HER HONOUR:

Introduction and Overview

Ms Brundell, a service technician, was employed by Rentokil Initial Pty Ltd (‘Rentokil’) from 27 May 2016 on a full-time, permanent basis. The role of service technician with Rentokil involved driving a specially fitted-out van to collect sanitary waste from various sites including shopping complexes, child-care centres, residential facilities and hospital wards before then delivering the collected waste to Rentokil’s depot.
Ms Brundell claims to have suffered injury to her lumbar spine (‘the injury’) throughout the course of her employment and/or in particular on 18 April 2018. She seeks weekly payments of compensation and medical and like expenses in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’).
Her claim for compensation was rejected by Rentokil’s WorkCover Agent on the ground that she had not sustained an injury arising out of or in the course of her employment. Rentokil relied on the following defences: Ms Brundell failed to lodge the claim as soon as practicable after her incapacity arose; the claimed injury did not arise out of or in the course of her employment; and/or employment was not a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.
The hearing proceeded over two days in February 2020 resuming in July 2020 for a further two days. The plaintiff gave oral evidence as did her GP, Dr Priyanthi Perera and two medico-legal witnesses, Dr Joseph Slesenger, an occupational physician and Mr Paul D’Urso, neurosurgeon. A medico-legal report relied upon by the defendant of Mr Greg Etherington, surgeon, was tendered into evidence. Two lay-witnesses, employees of Rentokil, Ms Tracy Bell and Ms Evelyn Taylor, were called by the Defendant for cross-examination.

The Plaintiff’s Evidence

Background and prior injury

Ms Brundell, who was aged 45 years at the time of hearing, had completed her education to Year 11. Her work history, prior to commencing with Rentokil, was largely in the retail sector including with Coles Supermarkets and Bunnings.
By way of background, Ms Brundell had suffered a prior back injury on 18 August 2015 whilst employed with Coles. She experienced the onset of back pain at work whilst moving casks of wine. That evening, her pain became acute and she was taken by ambulance from her home to the Northern Hospital. The discharge summary recorded the onset of lower back pain moving a heavy object at work which had become progressively worse during the evening. Following that incident, she consulted her GP at the My Health North Eltham clinic through 2015 and into 2016.
In cross-examination, she could not recall another earlier episode of back pain in January 2015 when she had consulted a GP, also at My Health North Eltham medical clinic. On 5 January 2015, she attended that clinic and reported hurting her back at work on the Saturday night having twisted to pick up something. There were two further attendances for back pain following the January episode.
Following the workplace injury in August 2015, she agreed in cross examination, that she continued to have flare-ups of low back pain through 2016 and into early 2016. The last time she attended a GP for back pain was in March 2016. In re-examination, she said she then had no prior back problems between that attendance and the subject injury in April 2018, a period of some two years. She said in evidence her back was fine for her whole time at Rentokil until the week commencing 16 April 2018 when her back felt tense.

Nature of the plaintiff’s work with the defendant

As a service technician with Rentokil, Ms Brundell worked a five-day week from about 4.00 am to 11.30 am with a thirty-minute break. In a usual week, three days were allocated to nappy collections and two days to collecting other sanitary waste. Rentokil provided: eyewear (for eye protection), a one-litre spray bottle, tongs, bin-liners, wipes and a box of disposable gloves. In her first six months in the role, Mrs Brundell had not been supplied with a wheel-brace or bracket mechanism which she said would have made the task of loading and unloading the bins somewhat easier.
Ms Brundell said she had the biggest collection ‘run’ out of everyone in her manager’s team in terms of volume of bins and the number of sites covered. The number of sites she visited on a single day was between 25 and 30.
Sites attended on a collection run were classified as either “large” or “small” according to the usual volume of waste for collection. At large sites, 140-litre “Sulo” wheelie bins (similar to curb-side residential recycling bins) were utilised and at small sites, two-wheeler metal trolleys (similar to personal shopping carts) were used. Diagrams as to Rentokil’s “standard operating practice” were shown to Ms Brundell and tendered into evidence. She agreed the process of waste collection at “large” sites was:

·The unloading an empty wheelie-bin from the van by opening the rear doors which would cause two rails or tracks to drop down allowing the bin to be pulled down to ground level;
·pulling the bin through the premises to the collection point within the site;
·removing lids from sanitary receptacles and tying up plastic bags of waste;
·transferring bags of waste into the wheelie-bin;
·wiping clean and re-lining sanitary receptacles with fresh plastic bags;
·pulling the filled wheelie-bin back through the centre and re-loading it onto the van in the reverse process of before.

The process at “small” sites were similar apart from the use of the smaller trolleys. Ms Brundell’s evidence in cross-examination was that the smaller trolleys weighed 5-8 kilograms. She said at one stage she had weighed them.
Once all bins and trolleys on the van were filled, the waste would be delivered to the Rentokil depot for disposal and filled bins and trolleys would be replaced with empty ones for the next run.

She agreed in cross-examination that much of the work involved only limited bending, but the work could be heavy and awkward when, for example, manoeuvring bins on and off the van or leaning into narrow cubicles to retrieve full sanitary receptacles. At some sites, there could be a long walk from where the van had to be parked to the area within the centre from where the waste had to be collected. She said that if there were stairs, she would lift the small trolleys up the stairs and that was how she was trained when she began in the role.

Circumstances of Injury in April 2018

In early April 2018, Ms Brundell had obtained her employer’s approval to take two days’ annual leave on Thursday 19 April 2018 and Friday 20 April 2018 ahead of her daughter’s 21rst birthday on the weekend.
Ms Brundell said that in the week of her scheduled annual leave, she was asked by her manager Ms Tracy Bell to do waste collection from as many of her usual sites over the three days as she would have done in her normal five-day week. Ms Brundell said this was the usual practice whenever service technicians were absent, otherwise other staff would have to do collections from the additional sites.
At the end of her shift on Wednesday 18 April 2018, Ms Brundell returned to the depot having managed to complete collections from most of her usual allocated sites other than a Westfield shopping centre and a hospital ward.
Ms Brundell gave evidence that over those three days she experienced symptoms that she described as ‘niggling’ or ‘squeezing’ in her mid-back region.
Whilst at the depot on 18 April 2018, Ms Brundell spoke with a co-worker, Ms Evelyn Taylor and told her she had ‘tension’ in her back. Ms Taylor said she should report it to her manager, Ms Bell, and that there had been other staff that week who had reported injuries. Ms Brundell then had a conversation with Ms Bell and told her about her back symptoms and gestured at her mid-back. Ms Bell’s reaction was apparently one of: ‘oh god, not another one’. Ms Brundell told Ms Bell that she put it down to being ‘tired’.
The following day, on Thursday 19 April 2018, Mrs Brundell was at home in her kitchen having brought in mail from the letter-box. She went to put some discarded paper mail into the kitchen bin when she experienced an acute onset of pain in her low back region. The low back spasm was of such intensity that she dropped to her knees.
Mrs Brundell said she could not see her doctor until the Monday. She presented on Monday 23 April 2018 to Dr Priyanthi Perera, a GP at the Golden Plains Medical Centre complaining of continuing severe back pain and referred symptoms down her left leg and very limited movement. She agreed she gave a history to Dr Perera on that occasion of ‘severe back pain since Friday trying to put rubbish into the bin’.
Over subsequent days, on 26 and 27 April 2018 and on 4 May 2018, Ms Brundell consulted at the Golden Plains Medical Centre in relation to back pain. Under cross-examination, she agreed, on a review of the clinical notes that there was no record of her referring to her work with Rentokil until her attendance on 28 May 2018 when she told Dr Perera (as recorded in those notes) that the ‘injury happened on 19/04 at home while putting rubbish in to the bin but Wednesday on 18/04 has upper back pain at scapular region’. In re-examination, by way of explanation for there being no specific complaint about her work with Rentokil, she said there was a ‘a language barrier’ with Dr Perera.
On 14 May 2018, Ms Brundell consulted another GP, Dr Benjamin Gowrie at Eltham Ridge Medical Centre, apparently for a second opinion. She agreed with the history recorded on that occasion which was as follows: ‘works for a sanitary nappy bin company, niggly thoracic backpain prior to the 19^th 20^th April. Bending over a rubbish bin at home on annual leave day and noticed severe onset low back pain and left anterior-lateral thigh pain’. She thereafter continued to consult with Dr Perera.

Circumstances of reporting the injury

In cross-examination, Ms Brundell agreed she participated in regular ‘pod meetings’ for staff at the depot conducted by Ms Bell. A standard item on the recurring agenda was to remind staff of the importance of reporting all incidents and injuries.
In relation to the conversation on 18 April 2018 with Ms Bell, Ms Brundell denied that she had touched her neck or scapular region to indicate pain. She said that she had gestured at her mid back. In cross-examination, she said she didn’t make formal written incident report at that time because she felt conscious of burdening her manager. In re-examination, Ms Brundell reiterated her impression was that to make a formal incident report would ‘burden’ Ms Bell and that Ms Bell had been very abrupt and seemed annoyed by the there being so many other incidents that week.
In cross-examination, Ms Brundell agreed that when Ms Bell came to her home a few days later to collect the van, she told Ms Bell she had hurt her back when putting paper in the rubbish bin at home. She agreed that she never filled out an incident report form.
In late April 2018, Ms Brundell lodged a workers’ claim form with a reported injury of 19 April 2016 (agreed to be a typographical error that should have read 19 April 2018) as follows:

In answer to the question, ‘What happened and how are you injured?”, she stated: ‘I experienced some shoulder blade/back pain on the Wednesday that led up to my back injury on Thursday while at home bending down to put some rubbish in my small household bin ‘.
In answer to the question, ‘What area of the worksite were you working when you injured?”, she stated: ‘On the Wednesday I was driving around doing my work and felt uncomfortable during the shift but I was on a [sic] Annual leave day when injury happened’.
In answer to the question, ‘If you did not report the injury/condition, or there was a delay, please explain why, she stated: ‘I didn’t say anything on the Wednesday before I was heading home due to worrying about the outcome of it’.

Current condition and work capacity

From 7 May 2018, Mrs Brundell attempted a two-week return to work program performing administrative duties at home on a computer. She found this increased her pain levels and she stopped that work. She was then told not to return to work.
Ms Brundell has not worked at all since that initial attempt. She thought she would be unable to do her previous service technician role with Rentokil. She said she had been told by doctors that manual work was out of the question for her. Mrs Brundell described a worsening of back pain and nerve pain down her leg if she attempted activities that involved bending and lifting.
In terms of treatment, Ms Brundell continues to consult her GP, Dr Perera, and to be prescribed various medications to manage pain including: Targin, Endone, Lyrica and others. She has had physiotherapy. In March 2019, she had a CT-guided nerve root injection which did not provide pain relief. She is on a waiting list with Austin Health for assessment of her back by an orthopaedic surgeon.

Lay witness Evidence

Ms Tracy Bell, a local service manager with Rentokil, was Ms Brundell’s direct manager. Ms Bell gave detailed evidence in relation to the system of work for the processes of waste collection at large sites with the 140-litre Sulo bins and at small sites with the two-wheeler trolleys. A service technician’s van would be generally fitted out with slots for six 140-litre Sulo bins and one two-wheeler trolley.
In relation to the two-wheeler trolleys, where there were stairs at a site, Ms Bell said the trolleys were designed to come apart so that a technician would separate and carry the bagged waste and pull the empty trolley behind her. She denied that a loaded two-wheeler trolley would never need to be lifted when ascending flights of stairs. In cross-examination, Ms Bell denied the two-wheeler trolley with associated equipment could weigh about 5-6 kilograms and combined with a full bag of waste would weigh 13-15 kilograms. She thought it would be closer to around 10 kilograms in total.
In relation to the Sulo bins used at the larger sites, Ms Bell said the process of manoeuvring a filled Sulo bin onto the van involved tilting the bin onto the and required your whole body-weight. In cross-examination, she agreed a filled 140-litre bin would weigh in excess of 25-30 kilograms and they could be quite heavy to mobilise. She said the Sulo bins should never be pulled through the sites but rather should be pushed along on a set of ‘dolly’ wheels. She said the bins and trolleys were generally not filled beyond three-quarters’ capacity.
Ms Bell said that as part of induction, service technicians were trained in the processes to avoid lifting and twisting.
Regarding the conversation with Ms Brundell on 18 April 2018, Ms Bell recalled her appearing to stretch her back. Ms Brundell was asked about it and responded that she was ‘all good’ and was just tired. When Ms Bell collected the van from Ms Brundell’s home the following week due to her being unable to work, Ms Brundell told her she had hurt her back at home when putting rubbish in the kitchen bin. She denied expressing annoyance about other claims being reported that weeik.
The importance of reporting workplace injuries was drummed into employees from ‘day dot’ according to Ms Bell and raised with staff at monthly meetings.
Ms Evelyn Taylor, a depot attendance with Rentokil, gave very brief evidence. She recalled the conversation with Ms Brundell in April 2018 in which Ms Brundell described being a bit sore before going on leave. Ms Taylor told her to report the injury to Ms Bell. Ms Brundell had replied that she ‘did not want to burden Tracy’.

Medical evidence

Dr Priyanthi Perera, Ms Brundell’s GP, provided reports dated 12 September 2018 and 17 June 2019.Ms Brundell had first presented to her on 23 April 2020 complaining of lower back pain that had started a few days previously at home when putting rubbish into the bin. Ms Brundell also reported upper back pain on the day before that. On clinical examination, Dr Perera recorded lumbar spinal tenderness and very limited movements. Radiology including an MRI was arranged which demonstrated multi-level intervertebral disc degenerative changes at L2/3 and L5/S1. Dr Perera arranged physiotherapy and referral for opinion to a neurosurgeon. She prescribed medication including Lyrica, Endone and Valium. In cross-examination, Dr Perera was taken through her clinical records of attendances on Ms Brundell between 23 April 2018 and 28 May 2018 and the fact that the first reference to the heavy nature of her work with Rentokil was not recorded until 28 May 2018. Dr Perera said that it was her habit to record detailed notes on every occasion that she saw patients and that had Ms Brundell reporting anything relating to her work at Rentokil on any occasion, she would have recorded it. She thought Ms Brundell may have capacity to perform suitable employment.
Dr Joseph Slesenger, a specialist occupational physician, provided a report dated 19 October 2018 at the request of Ms Brundell’s solicitors. Dr. Slesenger obtained a history of Ms Brundell’s duties with Rentokil and that she had developed intermittent niggling mid-back pain in the week prior to ceasing her usual duties. Ms Brundell had presented to him in October 2018 with ongoing lower back pain with left leg radiating features. Dr Slesenger considered that Ms Brundell’s lumbo-sacral spinal impairment was related to her work and that her work was a significant contributing factor to her current impairment and capacity for her work. Dr Slesenger said that once a person has suffered low back pain that is discogenic in nature, he or she can undertake activities for months or years and then suffer an aggravation in doing an apparently innocuous activity. Dr Slesenger said he was familiar with the Rentokil work environment as he had attended the workplace previously when treating a past patient who had worked there. Dr Slesenger said service technicians with Rentokil were operating in an unpredictable work environment because of the varying sites visited. He was of the view the tasks of service technicians with Rentokil were amongst the heaviest of any workplace he has assessed. He agreed that, before commencing employment with Rentokil, Ms Brundell was, given her prior injury history in 2015, at risk of back pain because of the nature of the tasks required to be performed in the role of service technician. He noted that Ms Brundell gave a history of upper back symptoms present for about a week before the onset of acute lumbar pain on 19 April 2018. Under extensive cross-examination, Dr Slesenger said that the mid or upper back (thoracic spine) has very little flexion or movement and, further, that performing tasks of the nature that she was performing at Rentokil in circumstances where she had stiffness or tension in the thoracic spine would require far more reliance on her low back than otherwise. Dr Slesenger’s further opinion was that, had Ms Brundell not been performing the work with Rentokil she had been doing over the two years prior to the incident on 19 April 2019, she could have put the paper in the bin and not suffered any injury as a result. He thought Ms Brundell could not return to pre-injury duties but retains capacity for work with various restrictions.

Mr Paul D’Urso, neurosurgeon, provided reports dated 8 October 2018, 19 November 2018 and 10 February 2020 at the request of Ms Brundell’s solicitors. On examination, Ms Brundell presented with chronic back pain with associated mild weakness of her left limb. Mr D’Urso obtained a history of Ms Brundell’s duties including pushing heavy wheelie-bins and trolleys loaded with used nappies and that she had developed lumbar pain performing the work before the incident at home on 19 April 2018 when she put an object in the rubbish bin. Mr D’Urso’s diagnosis of injury was that Ms Brundell was symptomatic from L3/4 and L4/5 prolapses and an L4/5 annular tear with degenerative disc disease. He opined in his report of 8 October 2018 that it was likely that heavy physical work performed for two years which he said required bending, twisting and lifting aggravated a degenerative condition at L3/4 and L4/5. It was his view that Ms Brundell’s work as a service technician has been a significant contributing factor to the development or onset of her symptoms related to the L3/4 and L4/5 disc prolapses. In his final report of 10 February 2020, he stated that it was likely Ms Brundell had a pre-existing degenerative condition of the spine prior to the injury sustained in April 2018 in her duties as a service technician. He thought that the injury in mid-April would appear to have aggravated this condition and precipitated a worsening of symptoms. In cross-examination, when it was put to him that Ms Brundell had not had lumbar back pain (as opposed to mid back pain) in the days prior to 19 April 2018, Mr D’Urso conceded that, given her prior history of injury in 2015, it was possible that the onset incident on 19 April 2018 had alone precipitated her lumbar symptoms. He thought she could not perform her pre-injury role and would have permanent restrictions on her capacity for work.
Mr Greg Etherington, surgeon, provided a medico-legal report dated 22 April 2019 at the request of the defendant’s solicitors. Mr Etherington did not clinically examine Ms Brundell. His report and opinions were based upon a seven-page letter of instruction from the defendant’s solicitors (tendered into evidence with his report) and various enclosures including a statement of Ms Brundell to an investigator for the WorkCover Agent. Mr Etherington provided an opinion that the aggravation of symptoms of pre-existing degenerative changes by minor events is relatively common and that either the events at work or at her home could be the precipitant to her symptoms. The following question was posed in the letter of instruction to Mr Etherington: ‘Given the area of the spine where the worker experienced symptoms while working on the 18/4/18, is it unlikely the employment on that date was a cause of her current lower back condition?” In response to this somewhat leading question, Dr Etherington stated: “I agree that if it [sic] her symptoms were in the thoracic spine (upper back) on the 18/4/18, and the main issue now is her lumbar spine (lower back), the one did not cause the other.” Mr Etherington was not asked to comment on the question of capacity for employment.

Analysis

Burden of Proof

The burden of proof rests upon Ms Brundell to satisfy me, on the balance of probabilities, as to the following:

That her injury arose out of or in the course of her employment; or
That her employment was a significant contributing factor to a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease; and, further
That she has been and remains incapacitated for work; and that any incapacity results from or is materially contributed to by the injury.

Credit of the Plaintiff

I found Ms Brundell to be a straight-forward witness whose evidence in relation to the circumstances and extent of her injury was credible and reliable. As the Court of Appeal stated in Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76]:

As has been said many times before, in cases of the present kind the credit of the applicant will often be critically important. This was such a case. In order for the applicant to succeed in his application, he needed to persuade the judge that his evidence about the extent of his injury was credible and reliable. He also needs to establish the reliability of the histories he gave the medical witnesses, whose opinions were premised on the accuracy of the applicant’s account.

Diagnosis of Injury

I turn firstly to the question of diagnosis of injury. I accept Ms Brundell’s evidence that having suffered a prior back injury in 2015, she was then essentially asymptomatic for over two years. I find that she was able to perform the duties of the service technician role for two years with Rentokil without difficulty up until she ceased work on 18 April 2018. Her evidence in this regard was supported by the clinical records of the Eltham Ridge Medical Centre which show that she attended there on eighteen separate occasions between 22 July 2016 and 10 April 2018 and on none of those occasions did she report any back complaints.
I find that Ms Brundell’s diagnosis, based on the consistency of opinions of her GP Dr Perera, Dr Slesenger and Mr D’Urso, to be an aggravation of pre-existing multi-level degenerative changes of the lumbar spine. Mr Etherington did not provide a specific diagnosis as such.

Significant Contributing Factor

The Act defines ‘injury’ to include: ‘a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’: s.3 However, there is no entitlement to compensation under the Act in respect of an injury that is an aggravation of a pre-existing injury unless the worker’s employment was a ‘significant contributing factor’ to the injury or disease: s. 40(3)(c).
In determining whether a worker’s employment is a ‘significant contributing factor’ to an injury, the Act sets out seven mandatory considerations: Sched 1, Cl. 25 (a) to (g). These include: the duration of the current employment; the nature of the work; the particular tasks of the employment; the probable development of the injury occurring if that employment had not taken place; the existence of hereditary risks; the lifestyle of the worker; and the activities of the worker outside the workplace.
Consideration of ‘significant contributing factor’, including taking into account the matters listed in Clause 25, involves resolution of an essentially factual enquiry, the question being one of degree, requiring evaluation, as the Court of Appeal made clear in St Mary’s School v Asquith: [2011] VSCA 90 at [13]. In applying Ashley JA’s analysis in Asquith, Ginnane J in Sensis Pty Ltd v Jones, has stated: ‘The existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor’: [2018] VSC 754 at [93].
I note that it is not an issue as to when the incapacity commenced, that is, in this instance, on 19 April 2018, more so when the injury occurred leading to the resultant incapacity.
The defendant’s submissions focussed largely on the issue of causation. In essence, in relation to causation, defence of the claim largely relied the combined circumstance of the occurrence of the incident at Ms Brundell’s home on 19 April 2018 resulting in acute lumbar pain together with her delayed reporting of a connection between her low back injury and her work with Rentokil. The defendant relied also upon what it said was a lack of contemporaneous evidence as to there being any relationship between mid-back region symptoms suffered on and before 18 April 2018 and the onset on 19 April 2018 of acute low back pain. Counsel for the defendant submitted that the plaintiff’s evidence lacked clarity in this regard and was inconsistent. Mr Paoletti pointed to the contemporaneous accounts provided by Ms Brundell to Ms Bell: firstly, on 18 April 2018 in which Ms Bell said she had gestured at her neck or scapular region but makes no connection between those symptoms and work; and, further, the following week when she told Ms Bell (as Ms Bell was collecting the van) that she had hurt her back at home putting rubbish in a bin. Additionally, Counsel for the defendant submitted that it was highly significant that the plaintiff’s first complaint to a medical practitioner (to Dr Perera 23 April 2018) made no mention of her Rentokil employment nor of the nature of that work. Counsel for the defendant submitted that it would be expected that had the plaintiff (as she said in evidence) had stiffness or tension in her back for the week prior to ceasing work, she would have made that complaint to her GP. Histories provided to Mr D’Urso and Dr Slesenger differed from Ms Brundell’s contemporaneous account of her injury to Dr Perera and ought not therefore be relied upon. The defendant contended that the plaintiff had failed to discharge the burden of proof and must therefore fail in her claim.
Counsel for the plaintiff submitted, on the other hand, that this was a ‘straight-forward aggravation claim’ and referred to the absence of reported complaints of back pain between March 2016 (following the prior work injury in January 2015) and the onset of back problems in April 2018. Counsel for the plaintiff submitted the nature of the incident on 19 April 2020 involving as it did discarding “weight-less” mail into a kitchen bin was such that Dr Slesenger’s opinion regarding causation was not only medically plausible but common sense. Dr Slesenger’s familiarity with the work and level of detail was such that his opinion was to be preferred over that of Mr Etherington in particular. According to the evidence of Ms Brundell, the nature of Ms Brundell’s work over a period of two years, as heavy and onerous. The tasks particularly involving mobilising the Sulo bins on and off the van and through the centres were very physically demanding, noting Ms Bell’s evidence that your whole body weight was required and that Ms Brundell carried out waste collections at 25 to 30 sites per day every day. Further, on the week of the onset of her low back symptoms, Ms Brundell was following her employer’s direction she try to compress five days’ collections into three days as far as possible. The plaintiff’s explanation in relation to the account recorded by Dr Perera was that there were some language difficulties. Dr Slesenger’s evidence was a detailed and compelling account of what occurred and ought to be preferred.
On the whole of the evidence, I am satisfied that the nature of the work performed by Ms Brundell over a period of two years was very physically onerous. That the work was physically demanding was also clear from the evidence of Ms Bell. It is true there were some minor inconsistencies between her evidence and that of Ms Brundell as to details such as: the weight of the two-wheeler trolleys; whether or not aspects of the work involved twisting or bending; whether, when encountering stairs, the trolleys were lifted or not and so on. On an average day, Ms Brundell was required to collect sanitary waste from 25 to 30 sites mostly in the large 140-litre Sulo bins which, as Ms Bell said, required a technician’s whole body-weight to manoeuvre onto the ramp back onto the van.
In relation to the service technician’s tasks and process of work and the nature of the work generally, I found Dr Slesenger to be a particularly impressive witness particularly given his familiarity with, and practical knowledge of, the Rentokil workplace. Counsel for the defendant urged against me accepting Dr Slesenger’ s oral evidence as much of it was said to be speculation and because of his familiarity with the workplace which did not form part of his reports. However, Dr Slesenger was, as I have noted, extensively cross-examined and I accept the totality of his evidence.
I further find that on the evidence that in the week prior to her going on annual leave, Ms Brundell was expected by her employer to undertake, and indeed did, the majority of the collection run she normally performed in five days in three. This inevitably and undoubtedly added very considerably to her work-load in a compressed time period.
An evaluation of the whole of the circumstances is required. Further, as the Court of Appeal (in Asquith) and his Honour, Ginnane J (in Sensis) have made clear, it is a matter of degree and other contributing factors do not preclude a finding that employment was a significant contributing factor. In this regard, also, I note the factor I am required to consider as set out in Clause 25(d) is as follows: ‘the probable development of the injury occurring if the employment had not taken place’.
On any view, the incident at home on 19 April 2019 in putting paper into a kitchen bin was of an exceedingly trivial nature. Whilst I note Mr D’Urso conceded in cross-examination that it was possible that the incident on 19 April 2018 had alone precipitated her lumbar symptoms, evaluating the whole of the circumstances and on the balance of probabilities, I consider this to have been unlikely. As to that incident, I found Dr Slesenger’s evidence to be particularly persuasive. I accept his opinion that had Ms Brundell not been performing the work she was performing at Rentokil over the two years prior to the incident on 19 April 2019, she could have put the paper in the bin and not suffered any resulting injury.
I accept Dr Slesenger’s opinion that performing tasks of the nature that Ms Brundell was performing at Rentokil in circumstances where she had tension in the thoracic spine meant she would have been far more reliant on her low back. In considering the whole of the medical evidence, I have given very minimal weight to the opinion of Mr Etherington given he did not clinically examine Ms Brundell nor was his opinion subjected to cross-examination.
On the balance of probabilities, in evaluating the whole of the circumstances on the evidence, I am satisfied that Ms Brundell’s employment with Rentokil in particular on 18 April 2018 was a significant contributing factor to the aggravation of a pre-existing and degenerative condition of the lumbar spine that had been asymptomatic for over two years prior to April 2018.

Timely Reporting of the Injury

For completeness, I turn to the question of the reporting of the injury. I find on the evidence, that Ms Brundell was quite aware of the importance of reporting injuries and that Rentokil had made the obligation clear to its employees. However, I also accept her evidence that she was fearful of the outcome and was reluctant to burden her employer and it was her anxiousness in this regard that led to her delay making a formal complaint or report. Employers may have policies and protocols regarding the reporting of injuries which is not necessarily the same as a culture of being open and receptive to such incidents or injuries being reported in practice. This was evident from Ms Brundell’s discussion with Ms Bell and from her answer in her claim form as to why she did not make an immediate report.

Capacity for Work

On the issue of capacity, the defendant did not admit that Ms Brundell was incapacitated but made no other submissions. The plaintiff submitted that the thrust of the medical evidence in relation to capacity was supportive. On the balance of probabilities, on Ms Brundell’s own evidence and also based on that of Dr Perera and Dr Slesenger as well as Mr D’Urso, I am satisfied Ms Brundell does not have current work capacity and that her incapacity for work has resulted from, or been materially contributed to, by her injury.

Conclusion

In summary, I conclude as follows:

a. The plaintiff’s employment with Rentokil with a nominated date of injury of 18 April 2018 was a significant contributing factor to the aggravation of a pre-existing and degenerative condition of her lumbar spine.
b. The plaintiff has, at all material times, not had current work capacity and that her incapacity for work results from or is materially contributed to by her injury.

Parties may seek appropriate orders in due course.

[2020] VMC 17

5 August 2020