Cortes-Lagos v Journey Early Learning Group Pty Ltd

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE
WORKCOVER DIVISION

Case No. M11614798

MARTHA CORTES-LAGOS	Plaintiff
v
JOURNEY EARLY LEARNING GROUP PTY LTD	First Defendant
and
ONLY ABOUT CHILDREN PTY LTD		Second Defendant

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MAGISTRATE:	Magistrate M J Richards
WHERE HELD:	Melbourne
DATE OF HEARING:	30, 31 August 2022 & 2, 5 September 2022
DATE OF DECISION:	23 January 2023
CASE MAY BE CITED AS:	Cortes-Lagos v Journey Early Learning Group Pty Ltd and Anor
MEDIUM NEUTRAL CITATION:	[2023] VMC 3

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WORKERS’ COMPENSATION – Physical injury – Rejection of claims for compensation – Significant contributing factor – Other concurrent factors – Surveillance – Credit – Workplace Injury Rehabilitation and Compensation Act 2013.

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APPEARANCES:

COUNSEL:

SOLICITORS:

For the Plaintiff

Mr Y C Chen

Macquarie Injury Lawyers

For the First Defendant

For the Second Defendant

Mr A Middleton

Mr B McKenzie

Russell Kennedy Lawyers

IDP Lawyers

HIS HONOUR:

INTRODUCTION

Martha Cortes-Lagos (plaintiff) was born on 29 March 1965 in Columbia. She came to Australia in 1998 and subsequently obtained a Certificate III in Childcare.
In July 2008 she commenced work as a childcare worker with Bright Steps Pty Ltd (Bright Steps), a childcare centre. On 17 February 2017, the company was taken over by Journey Early Learning Group Pty Ltd (first defendant). On 3 August 2018, the first defendant was taken over by Only About Children Pty Ltd (second defendant).
The plaintiff continued working with the first defendant and the second defendant until ceasing work on 22 October 2020 alleging an injury to her back.
Against the background of working as a childcare worker, the plaintiff and her family operated Austar Cleaning Services (Austar), a cleaning company. Austar also cleaned the premises of the first defendant and the second defendant and had other cleaning contracts.
On 15 December 2020, the plaintiff completed a claim for compensation against the second defendant alleging an injury to her back. The plaintiff alleged the injury had been sustained about four years ago and over the course of her employment and said:
I injured my back about 4 years ago lifting a heavy child at work – I attended on my GP afterwards; Performing difficult, repetitive work over the course of my employment.[1]
[1]Second Defendant Court Book (SDCB), 4-7.
The claim for compensation was rejected on behalf of the second defendant by notice dated 13 January 2021 on the following grounds:
a.the plaintiff had not sustained an injury arising out of or in the course of her employment;
b.the plaintiff had not sustained an injury arising out of or in the course of her employment with Only About Children P/L; and
c.the plaintiff’s employment is not a significant contributing factor to her claimed injury.[2]
[2]SDCB, 8-13.
On 15 January 2021, the plaintiff completed a claim for compensation against the first defendant alleging an injury to her back. The plaintiff alleged the injury was sustained over the course of her employment and said:
Performing difficult, repetitive, awkward, heavy work over the course of my employment. I hurt my back in late 2017 lifting a really heavy child at work.[3]
[3]First Defendant Court Book (FDCB), 14-17.
The claim for compensation was rejected on behalf of the first defendant by notice dated 12 February 2021 on the following grounds:
a.the plaintiff had not sustained an injury arising out of or in the course of her employment;
b.the plaintiff had not sustained an injury arising out of or in the course of her employment with Journey Early Learning Group P/L;
c.the plaintiff’s employment with Journey Early Learning Group is not a significant contributing factor to her claimed injury;
d.the plaintiff did not notify her employer of her injury within 30 days of becoming aware of the injury; and
e.the claim is deemed not to have been made as it was made after the plaintiff ceased to be employed by her employer, and the plaintiff has not provided a satisfactory explanation as to why the plaintiff could not have reasonably made the claim while employed.[4]
[4]FDCB, 8-14.
The plaintiff has not returned to any employment since ceasing work on 22 October 2020.
The matter proceeded over four days. The plaintiff’s case consisted of evidence from the plaintiff, Marco Cortes-Lagos, Stephanie Dorward and Paige Clarke. The plaintiff’s court book was tendered. The first defendant and the second defendant’s court book was tendered together with surveillance of the plaintiff. No medical witnesses were called to give evidence.

EVIDENCE ON BEHALF OF THE PLAINTIFF

Evidence of the plaintiff

The plaintiff commenced employment as a part-time childcare worker with Bright Steps in July 2008. Bright Steps was a childcare centre situated at 82/84 Blackshaws Road, Newport. The plaintiff worked three days a week.
The plaintiff had a history of some back pain whilst working at Bright Steps.
On 17 February 2017, Bright Steps was taken over by the first defendant. The plaintiff continued as a childcare worker and said she was working five days a week. Her normal hours were 9:00am to 3:00pm and sometimes 9:00am to 4:00pm.
The plaintiff’s work duties involved changing nappies for babies and infants up to two years old, cleaning the bathrooms when the children were asleep, taking the rubbish outside and moving play equipment. The plaintiff said she would change nappies up to five times a day for up to 10 babies and 10 infants. The plaintiff would have to pick the child up from the floor and put them on the change table when changing a nappy. The plaintiff said bending was involved. The plaintiff would also lift children into and out of cots and when giving them bottles. She would also have to lift children if they were crying. The babies would sleep in cots and the infants would sleep in beds on the floor. The plaintiff would have to pick up the beds from the floor to put sheets on them and then put them back on the ground.
The plaintiff said she would have to pick up rubbish bags full of used nappies which were very heavy because the nappies were wet. She would have to take the rubbish bags and throw them into a bigger bin outside once a day.
The plaintiff said she had to clean the bathroom and toilets, mop the bathroom floor, and mop the area around where the children slept after lunch. The plaintiff used a brush to clean the toilet and had to make sure there was toilet paper, soap, and nappies available. The plaintiff also cleaned the benches where the children sat.
The plaintiff also put the play equipment outside every morning and brought the equipment back in at night. The plaintiff said she would carry the play equipment which was not easy as it was heavy.
The plaintiff said her childcare cleaning, bending and lifting duties caused the pain in her lower back that she was now having.
The plaintiff said she and her family commenced a cleaning company called Austar in 2005. The plaintiff would work as a cleaner after her work hours as a childcare worker. In 2017, Austar started cleaning the childcare centre when it was owned by the first defendant. Austar continued cleaning the childcare centre for the second defendant.
The plaintiff said she worked as a cleaner from Monday to Friday and occasionally did cleaning work on the weekend. The plaintiff said she usually did cleaning work for three hours from 7:00pm or 8:00pm. She would work with her husband, Marco, and their son and daughter. The plaintiff said she would supervise, as well as clean and dust. The plaintiff said her duties at the childcare centre involved wiping the doors and windows with spray and a cloth, and dusting with a feather duster. She said she never cleaned outside the childcare centre. Marco would pick up the rubbish and vacuum and mop the floors. The rubbish consisted of the used nappies from the afternoon.
The plaintiff gave evidence that her work as a child carer during the day was heavier than her work as a cleaner at night because it involved bending and lifting and holding children. She said she also had to put the play equipment outside and bring it back inside every day.
The plaintiff said she first began to have lower back pain at work towards the end of July 2017. The plaintiff was changing nappies in the pre-school room and her back started to hurt. The plaintiff did not usually work in the pre-school room but would cover for other workers when they were on breaks or at lunch. The children in the pre-school room were aged two and a half to three years. The plaintiff said she was changing the nappy of a heavy infant and, as she picked him up from the ground, heard a ‘pop’ in her lower back. The plaintiff said the infant was three years old and was autistic and bigger than the other infants. The plaintiff said she did not feel much pain at the time and did not give the incident much thought. The plaintiff continued her normal work until the end of the shift.
The plaintiff performed her cleaning duties that night but was not very good as she started to have pain in her back. The plaintiff was having difficulty lifting and bending as she did the cleaning work. The plaintiff had to have help from her daughter when cleaning the windows. The plaintiff thought this was a Thursday night. She did not work the next day.
The plaintiff went to Highpoint Shopping Centre the following Sunday and had a massage. She then attended Dr Yi Ping Gu (Dr Ping) at the Civic Parade Medical Centre on 31 July 2017. On 2 August 2017, the plaintiff attended the Emergency Department at the Sunshine Hospital and was admitted as an inpatient for two days. The plaintiff was prescribed medication for the pain. The plaintiff returned to childcare and cleaning work after two weeks.
In or about August 2017, the plaintiff was referred to a physiotherapist. The plaintiff did not recall how long she had physiotherapy. The plaintiff stopped having physiotherapy because she wanted to have chiropractic treatment from Dr Ping. The plaintiff saw Dr Ping on several occasions in late 2017. On 23 November 2017, she underwent an x-ray of her thoracic and lumbosacral spine.[5]
[5]Plaintiff Court Book (PCB), 37.
The plaintiff continued working as a childcare worker and cleaner over this time. Sometime in July 2018, the plaintiff said she was working in the infants’ room and took a rubbish bag of dirty nappies to put in a bigger bin which was outside the childcare centre. The plaintiff said, after throwing the rubbish bag into the bin, her lower back started to hurt. The plaintiff said it was difficult to carry the rubbish bag as it was full of used nappies, and she had to use both hands. The plaintiff said the outside bin had a lid and she used one hand to lift the lid up and one hand to throw the rubbish bag into it.
The plaintiff said she told Rebecca DiBella, her manager, that her back was hurting, and rang her husband who came to the childcare centre to collect her. The plaintiff did not finish her shift. The plaintiff attended a doctor at Complete Family Care in Newport and was referred for an x-ray of her lumbar spine on 5 July 2018.[6] The plaintiff said she was prescribed some medication and spent time in bed with a cold compress. She did not have any chiropractic or physiotherapy treatment. She went back to work after a few days.
[6]PCB, 38.
On 3 August 2018, the second defendant took over the management of the childcare centre. The plaintiff continued doing the same childcare duties and hours. At this stage, the plaintiff was working five days a week from 9:00am to 3:00pm. The plaintiff was still doing cleaning work for the family business. The plaintiff said Austar ceased cleaning the childcare centre in February 2019 as the cleaning contract finished. The plaintiff said she stopped doing cleaning work altogether when the cleaning contract ceased.
The plaintiff said she took sick leave in late 2018 and early 2019 as her mother had been sick and she was depressed. Her mother passed away on 15 January 2019. The plaintiff said there was also an issue with her daughter having been sexually abused and a pending criminal court case in or about April 2019. The plaintiff said she also became depressed about this and was off work for a couple of months during this period. She subsequently returned to work at the childcare centre performing the same duties and hours as before.
The plaintiff said her lower back pain caused her to stop work for the second defendant on 22 October 2020. The plaintiff said her back had been ‘okay’ in the period from July/August 2018 to October 2020.
In the week prior to ceasing work, the plaintiff had been doing extra cleaning work because the childcare centre was to undergo an inspection by the CEO. The plaintiff was required to vacuum and mop, clean the bathroom, and set up play equipment inside and outside. The plaintiff said this caused her back pain to increase and she had to stop work. The plaintiff said she told the childcare manager, Katrina Maxwell, that she had hurt her back at the time. This was before she went to hospital.
The plaintiff was admitted to the Sunshine Hospital on 25 October 2020 and spent six weeks as an inpatient. She has not returned to any form of employment.
The plaintiff and her lawyer completed a Workcover claim form against the second defendant on 15 December 2020. The plaintiff said she had been unable to complete a Workcover claim form before this date because she had been in hospital.
The plaintiff and her lawyer completed a further claim form against the first defendant on 15 January 2021.
The plaintiff’s current general practitioner is Dr Sana Al-Rubaye. She is on the waiting list for back surgery. The plaintiff says she wants to have surgery because she has been told it will improve the pain in her right leg. The plaintiff said the toes in her right leg are numb and she is unstable and unable to walk properly.
The plaintiff said she is currently in receipt of jobseeker payments as her husband is not working.
The plaintiff has also had pain in her right wrist and right hand for the past five years and has been diagnosed with carpal tunnel syndrome. The pain did not stop her from working. She has not had any recent treatment for this condition and is not taking any medication for the pain. She said she is on the waiting list for surgery at the Footscray Hospital.

Cross-examination of the plaintiff by Mr Middleton on behalf of the first defendant

The plaintiff agreed she performed the same duties as a part-time childcare worker at the childcare centre from 2008 to October 2020. The childcare centre was situated at 82/84 Blackshaws Road, South Kingsville. The plaintiff worked for Bright Steps before the first defendant took over the centre in February 2017 and worked for the second defendant from August 2018 until ceasing work in October 2020.
The plaintiff said she had also worked as a part-time cleaner in the family business called Austar from 2005 to early 2019. The plaintiff said her husband and family, and sometimes one or two other employees, worked for Austar. Apart from having the cleaning contract at the childcare centre, the plaintiff said that Austar had other cleaning contracts over this time.
The plaintiff was shown two invoices from Austar dated 2 August 2018 and 17 August 2018.[7] The invoices billed Bright Steps for cleaning work from 3 July 2018 to 2 August 2018 and from 3 August 2018 to 17 August 2018 at 82/84 Blackshaws Road, South Kingsville. The plaintiff was asked whether Austar was also doing cleaning work for Bright Steps in addition to cleaning work for the first defendant. The plaintiff said the first defendant had told Austar to make the invoices out to Bright Steps. The plaintiff said Bright Steps still had an office at 82/84 Blackshaws Road after selling the childcare centre to the first defendant and that Austar continued to do cleaning work for them.
[7]FDCB, 103-104.
The plaintiff said Austar also had a cleaning contract with Sew-Eurodrive Pty Ltd (Sew-Eurodrive) during this time.
The plaintiff said the cleaning work for Austar involved vacuuming, mopping, bending, and lifting. She did not agree the cleaning work involved rearranging furniture.
The plaintiff was referred to attendances on 28 May 2019 and 4 June 2019 with Dr Al-Rubaye at Complete Family Care in Newport.[8] Dr Al-Rubaye took a history that the plaintiff had recently lost her job as a cleaner but was still working in day care for six hours. The plaintiff agreed she had been attending doctors at Complete Family Care since 2016 which was before she was employed by the first defendant.
[8]FDCB, 86-87.
The plaintiff was referred to the following attendance which stated, inter alia:
Monday July 31 2017
Dr Benyamin Mansoori
History:
Backache since 3 days ago
Pain radiates to R legs
Nil before H
Went to chiropractor
After lift something and next days got back pain
Musculo-skeletal: Joint stiffness. No joint swelling. Restricted movement. Back pain. Sciatica.[9]
[9]FDCB, 99.
The plaintiff agreed with the attendance entry.
The plaintiff also agreed she had attended Dr Ping for neck and low back pain. The plaintiff agreed she attended Dr Ping on 6 July 2012 and complained of a ‘very painful back’.[10] Dr Ping’s entry recorded the following history:
Injury 3 months ago holding up a child.[11]
[10]FDCB, 111.
[11]Ibid.
The plaintiff said she could not remember what she told Dr Ping at the time. The plaintiff agreed she continued to have treatment for back problems from Dr Ping in 2015 and 2016 and did not mention any connection with her work at the childcare centre.
The plaintiff was referred to an attendance on Dr Mansoori at Complete Family Care on 31 July 2017. The following history was recorded:
History:
Backache since 3 days ago.
Pain radiates to R leg.
Nil before H.
Went to chiropractor.
After lift something and next day got back pain.[12]
[12]FDCB, 99.
It was put to the plaintiff that there was no mention of her work as a child carer. The plaintiff said she could not remember what she told the doctor.
The plaintiff was referred to an attendance at the Emergency Department of the Sunshine Hospital on 2 August 2017. The reason for the plaintiff’s attendance was recorded as follows:
R) lower back/button pain since Saturday? twisted while mopping floor. Chinese massage Sunday. Chiropractor - Monday. Acupuncture.[13]
[13]FDCB, 24.
The entry further recorded:
Lives with husband and 17 yo daughter in public housing.
Works 2 jobs, child carer during day and cleaner at night.
Usually fit and well, independent for all ADL’s.[14]
[14]Ibid.
The plaintiff could not remember what she told the hospital. The plaintiff agreed she did not work as a child carer on a Saturday but sometimes worked as a cleaner on a Saturday. The plaintiff agreed she could have hurt her back doing cleaning work on a Saturday.
The plaintiff was referred to an attendance on Dr Janice Coleman at Complete Family Care on 3 August 2017. The entry recorded, inter alia:
2/7 IP bc of LBP
Pain started last week approx Friday night; then very bad on Sunday.
Chinese massage at Highpoint.
Monday work – childcare – saw Dr Ping after work – acupuncture/clicks/hot patch.
Tues night work cleaning - then pain increased +++
Hospital and IP stay for 2/7.
Pain, no weakness; hospital is having physio to home arranged.[15]
[15]FDCB, 48.
It was put to the plaintiff that the entry suggested that there had been a sudden increase in her back pain following her work as a cleaner for Austar on the Tuesday night.
The plaintiff was referred to Dr Ping’s report dated 30 March 2021. On page 2 of the report, Dr Ping stated:
I started Martha’s first work related injury treatment on 31/07/17. She had suffered from a three day history of lower back pain with right sciatica. She stated the pain was caused by bending and lifting repeatedly at work. She complained of the pain over her lower back and radiating to right posterior thigh only without tingling and numbness. The pain was intense and was worsened by working. She had no help with Panadol and Nurofen.[16]
[16]PCB, 44-49.

The plaintiff agreed she did not refer to whether work as a child carer or work as a cleaner was the cause of the pain and did not mention that the pain had been caused by lifting a child.
The plaintiff was referred to the medico legal report of Dr Poppenbeek dated 20 January 2021. On page two of the report, Dr Poppenbeek referred to the plaintiff’s work duties as a cleaner for Austar and her work duties at the childcare centre and reported the following:
Ms Cortes-Lagos states that she had always had slight low back pain with the above-described work. She told me that she picked up an autistic child, who was large and heavy at work in about 2016/2017 (she could not recall the exact date) and heard and felt an audible crack in her low back and pain, when she bent to pick up the child. She completed the task and did not drop the child and continued her usual duties. The next day the back pain was more troublesome, and she saw a doctor and chiropractor, but continued full duties. At this stage, she had occasional pain into the right leg, but it appears that she had no restrictions prescribed, nor did she have any specific treatment apart from occasional chiropractic, in the ensuing years.[17]
[17]PCB, 95-103.
The plaintiff agreed she was working for Bright Steps in 2016 and did not commence work with the first defendant until 17 February 2017. She agreed she was unsure of the exact date as to when she lifted the autistic child.
The plaintiff was referred to an attendance on Dr Al-Rubaye on 29 December 2020. Dr Al-Rubaye recorded the following:
2. Work cover claim
She has claimed the work place at day care for her back pain.
I reviewed her file (first complaint about back pain was on 5/07/2018 with Dr Goyal).
She consulted GP at Blackshaw Road at the time when she had the injury.
She claims that she lifted a child at day care 2018, that is when started to have back pain.[18]
[18]FDCB, 74.
Mr Middleton put to the plaintiff that this was another alleged date of injury with respect to lifting a child at the childcare centre. Mr Middleton put to the plaintiff that she did not make any contemporaneous complaint about injuring herself lifting a child in 2016, 2017 or 2018 and that it was not until seeing Dr Poppenbeek in January 2021 that the alleged incident was mentioned for the first time.
The plaintiff was referred to Dr Ping’s report. At page two of the report, Dr Ping stated that, following 31 July 2017, the plaintiff next presented on 6 July 2018. Dr Ping stated the following:
Martha presented to my room again on 06/07/18. She complained of episodes of lower back and right leg pain yesterday. She stated that the symptoms recurred immediately as (sic) lifting the rubbish bin during her work. The pain was intense and constant on her lower back and radiating to right low limb with tingling and numbness. She found it hard to sit and walk. She consulted with her general practitioner who gave her pain killers and anti-inflammatory tablets.[19]
[19]PCB, 45.
Mr Middleton put to the plaintiff that she had not specifically mentioned whether she was working at the childcare centre or as a cleaner at the time. The plaintiff was asked whether she was working at the childcare centre or as a cleaner when she told Dr Ping she had hurt herself. The plaintiff said she could not recall where she was when she hurt herself. Mr Middleton put to the plaintiff that she may have injured herself at night whilst working as a cleaner. The plaintiff disagreed and said her heavy work was at the childcare centre during the day and not cleaning at night.
The plaintiff was referred to the medico legal report of Dr Aliashkevich dated 8 November 2021. At pages three and four of the report, Dr Aliashkevich stated the following:
Dr Janice Coleman, GP, provided a referral for physiotherapy on 15/7/2017:
Thank you for seeing Martha who has low back pain with SIJ and discogenic component to her right side. She has required pred and pain relief to get her walking again - unfortunately she works as a cleaner and as a childcare worker and so both of these are bad for her backs.
Allergies: Morphine. Codeine. Current medications: Endep. Endone. Nexium. Prednisolone.
Martha stated that she was involved in a workplace incident on the afternoon of about 20/7/2017. She picked up an about 25 kilograms heavy child and felt a ‘very little crack’ in her back. She was able to finish her shift. Martha had pain that night and the following day and took 2 days off work. She attended a chiropractor about 4 days after the incident. She developed right leg pain at night about a week after the incident.[20]
[20]PCB, 72-94.
The plaintiff said she told Dr Aliashkevich that she picked up a 25 kilogram heavy child on about 20 July 2017 and felt a little crack in her back. Mr Middleton asked why the plaintiff had previously told Dr Poppenbeek that she had picked up a heavy child in 2016/2017 and told Dr Al-Rubaye it was in 2018. The plaintiff said she now remembered that she had picked up the child on about 20 July 2017.
The plaintiff was referred to an attendance on Dr Al-Rubaye on 18 December 2020. Dr Al-Rubaye recorded the following:
Asking for DSP application and parking permit for disabled.
She uses wheelchair for transport for chronic lower back pain.
On WL for surgery at RMH.[21]
[21]PCB, 152.
The plaintiff agreed she asked for a parking permit and was using a wheelchair for transport when she was outside her home at that time. The plaintiff said she had also used a walking frame at home in 2020. The plaintiff said she sometimes cooked at home but said her husband and daughter also cooked at home. The plaintiff said she sometimes did some cleaning at home but did not vacuum. The plaintiff said her husband did the vacuuming at home. The plaintiff said she was able wash and shower herself.
The plaintiff said her husband did not work and currently had a Workcover claim for an injury to his left shoulder and back as a result of cleaning work at Sew-Euro Drive. The plaintiff’s husband had also issued common law proceedings in the County Court claiming damages for injuries to his left shoulder and back.[22] The plaintiff was asked how her husband could help with the vacuuming at home given his injuries. The plaintiff said her husband helped at home because he had to do the work. The plaintiff denied she did the cleaning work at home and said her husband did the heavy cleaning work at home.
[22]SDCB, 95-104.
The plaintiff was asked to describe how her current back pain was now as compared to her back pain in 2017. The plaintiff said her current back pain was worse than it was in 2017. The plaintiff said her back pain had deteriorated even more over the last 12 months.
The plaintiff was shown some surveillance of her taken on 4 November 2021 and 8 November 2021.
On 4 November 2021, the plaintiff was seen walking without the use of any aids, getting into a car and driving. On 8 November 2021, the plaintiff was observed driving and walking with a stick after getting out of the car. At one stage the plaintiff appeared to bend as she looked for something in the back of the car.
Mr Middleton put to the plaintiff that the surveillance taken on 4 November 2021 showed her walking without a walking stick at a normal pace and with a slight limp. The plaintiff agreed she was not using a walking stick and was walking with a limp.
On 8 November 2021, the plaintiff was observed driving a car and walking with the aid of a walking stick. The plaintiff was asked why she needed a walking stick to walk on 8 November 2021 and what had changed over the four days since 4 November 2021. The plaintiff said she did not walk far on 4 November 2021 and on that day, had walked slowly, and did not need a walking stick. The plaintiff said on some days she needed a walking stick because she was in more pain.
The plaintiff agreed the surveillance showed her walking with her husband after seeing Dr Aliashkevich on 8 November 2021. The plaintiff said she had pain in her right leg when walking on 8 November 2021. The plaintiff agreed she was right-handed. The plaintiff agreed she was not holding the walking stick with her right hand when walking. The plaintiff said her physiotherapist had told her to use her left hand to hold the walking stick because she had carpal tunnel in the right hand, and it was very painful. Mr Middleton suggested to the plaintiff that the walking stick was of no assistance if she was using her left hand to hold it, and that she had only used it on 8 November 2021 because she had seen Dr Aliashkevich. The plaintiff disagreed.
The plaintiff was referred to the medical report of Dr Aliashkevich. Dr Aliashkevich reported that the plaintiff’s husband had driven her to the appointment at Surrey Hills and that he had driven for an hour without stopping. The plaintiff could not remember whether she told Dr Aliashkevich that her husband had driven her to the appointment but said that was not correct. The plaintiff agreed she had driven to the appointment from her home in Williamstown.
The plaintiff was referred to an email that her solicitor, Mr Rhys Thomas, had sent to the first defendant’s solicitor dated 4 November 2021. In part, the email stated the following:
I note that this matter has been set down for a directions hearing on 5 November 2021.
I refer to the report of Dr Sana Al-Rubaye dated 5 October 2021. In her report, Dr Al-Rubaye expresses great concern about the severity and recent deterioration of my client’s condition.
I note that EMI had my client assessed by Occupational Physician, Dr Ralph Poppenbeek. In his report dated 20 January 2021, Dr Poppenbeek opined,
“the patient needs surgery, and this should be brought forward as quickly as possible”.
I note that my client’s condition has deteriorated greatly since Dr Poppenbeek’s assessment in January 2021.
On 2 November 2021, my client advised my office that she is losing sensation in her legs and is now unable to walk.[23]
[23]FDCB,107.
The plaintiff agreed she rang her solicitor, Mr Thomas, on 2 November 2021. The plaintiff agreed that two days later, surveillance taken on 4 November 2021 depicted her walking to the shops unaided. The plaintiff said she did not tell Mr Thomas she could not walk. The plaintiff said she told him she could not walk properly because her leg was feeling numb.

Cross-examination of the plaintiff by Mr McKenzie on behalf of the second defendant

The plaintiff agreed she commenced employment with the second defendant on 3 August 2018 and that her work duties were the same as her work duties with the first defendant and Bright Steps.
The plaintiff was referred to an undated Functional Assessment report for a childcare worker prepared on behalf of the second defendant.[24] The report described the work duties of a childcare worker. The report stated that the second defendant considered the duties to be the standard expectations and inherent requirements of a childcare professional. The plaintiff said she had seen the document before.
[24]FDCB, 108-110.
The plaintiff agreed the work duties required the ‘occasional lifting up to 10 kilograms from floor to waist’ of children.
The plaintiff was referred to the medico legal report of Dr Aliashkevich and his reference to a letter of request from the plaintiff’s solicitor at page 4 of the report. Dr Aliashkevich was told the following:
My client instructs that in or about August 2017, she heard her back ‘crack’ after lifting a heavy child at work. My client instructs that the child was very heavy for his age, weighing approximately 20 to 30 kilograms.[25]
[25]PCB, 75.
Mr McKenzie put to the plaintiff that her instructions as to the child weighing 20 to 30 kilograms was an exaggeration. The plaintiff said she thought the child maybe weighed 20 to 30 kilograms because he was bigger than the other children and really heavy.
The plaintiff agreed that the nappy change tables were at chest height and that the nappy change duties involved frequent walking, occasional forward flexion and twisting of the trunk, occasional neck flexion and occasional squatting.
The plaintiff did not agree the indoor and outdoor play equipment weighed from 3 to 10 kilograms. The plaintiff said they were heavier.
The plaintiff agreed the beds for the children consisted of placing plastic mattresses on the floor and that the babies weighed up to 10 kilograms.
The plaintiff agreed her cleaning duties as a childcare worker consisted of spraying and wiping tables, toilets, sinks and toys and vacuuming and mopping as required. The plaintiff disagreed that the cleaning duties did not involve throwing bags of dirty nappies into a bin. The plaintiff said the childcare workers had to throw bags of dirty nappies into a bin every day. The plaintiff agreed her husband would empty rubbish bags of dirty nappies when Austar cleaned the childcare centre at night.
The plaintiff agreed that her work as a childcare worker involved doing a lot of different things during the day but did not agree that the duties were light work.
The plaintiff agreed she was employed on a part-time basis by the first defendant and the second defendant. The plaintiff was referred to her contract of employment with the second defendant which was executed on 18 July 2018.[26] The contract stated that the plaintiff would be rostered to work 22.5 hours per week and be paid $23.51 per hour. The plaintiff agreed she worked Tuesday, Wednesday, and Thursday for the second defendant in 2020. The plaintiff was asked why she told Dr Poppenbeek that her hours varied from 24 to 30 hours per week.[27] The plaintiff said she sometimes worked extra days.
[26]SDCB, 74-92.
[27]PCB, 95.
The plaintiff was asked why she did not report any problems she was having with her back as a childcare worker to the second defendant during the period from August 2018 to October 2020. The plaintiff said her friends knew about her problems. The plaintiff was asked whether she made a report to the manager of the childcare centre, Katrina Maxwell. The plaintiff said Ms Maxwell knew about her problems. It was put to the plaintiff that she did not say anything to Ms Maxwell about her back until after she was admitted to hospital on 25 October 2021. The plaintiff said she told Ms Maxwell her back was sore in the week before she was admitted to hospital.
The plaintiff was asked whether her cleaning work with Austar had caused any problems with her back. The plaintiff said ‘not much’ but agreed she had complained to doctors in the past about the cleaning work causing back problems.
The plaintiff was referred to a Workcover medical certificate from Dr Pheng Low dated 15 February 2012.[28] The certificate diagnosed the plaintiff with the following:
Repetitive bending of back.
Muscular strain of lower back + sacroiliitis.
[28]FDCB, 17.
The plaintiff was certified as fit for modified duties for one week with restrictions including ‘no repetitive bending of lower back, no heavy lifting over 3kg’.[29]
[29]Ibid.
The plaintiff agreed she saw Dr Low and obtained the medical certificate. The plaintiff agreed she obtained another medical certificate from Dr Low dated 22 February 2012 with the same restrictions for a further week.[30]
[30]FDCB, 18.
The plaintiff agreed she provided the medical certificates to Bright Steps at the time.
The plaintiff was referred to the progress note of Dr Ping dated 6 July 2012.[31] Dr Ping stated the plaintiff presented with a very painful low back with a history of having sustained an injury three months before when holding up a child. The plaintiff denied that this was the only incident where she had hurt her back lifting a child during her work as a childcare worker.
[31]FDCB,111.
The plaintiff was referred to the progress notes of the Civil Parade Medical Centre and an entry by Dr Saber Ansari on 4 December 2015.[32] Dr Ansari referred to the plaintiff having a history of chronic low back pain from two years ago. The plaintiff could not recall seeing Dr Ansari at that time but accepted that the entry would have been correct. The plaintiff agreed she suffered from chronic back pain in December 2015 and that the back pain was present before commencing employment with the first defendant and the second defendant. Mr McKenzie asked the plaintiff why she had not mentioned to the Court that she suffered from chronic back pain in 2015 and queried the plaintiff as to whether she had deliberately not said anything. The plaintiff said she had provided medical certificates in 2012 and her employers at the childcare centre had known about her previous back pain.
[32]FDCB, 57.
The plaintiff was asked why she had not disclosed her previous chronic back pain in the two Workcover claims she had completed. Mr McKenzie put to the plaintiff that she had been untruthful in answering ‘No’ in relation to whether she had had any previous injuries relating to her current condition. The plaintiff denied she had been untruthful in her answer and said that her lawyers had helped her complete the two claim forms. The plaintiff said she had not told her lawyers about her previous back problems in 2012 and 2015 at that point. The plaintiff said she had also not remembered her back problems in 2012 and 2015 and that is why she had not provided that history to Dr Aliashkevich, Dr Poppenbeek or Mr Etherington.
The plaintiff was referred to a progress note entry in the records of Complete Family Care by Dr Pietas Nyamayaro on 11 December 2019.[33] The plaintiff attended the clinic with coccygeal pain and provided a history of falling on her bottom whilst mopping at home 2 weeks ago. The plaintiff was provided with non-steroidal anti-inflammatory drugs (NSAIDs) and told to use a ring cushion on a chair to ease the pain. A further entry by Dr Nyamayaro on 7 February 2020 indicated that the plaintiff presented with persisting coccygeal pain especially when arising and bending.[34] The plaintiff was referred for an x-ray of her sacrum and coccyx which took place later that day. The plaintiff reattended Dr Nyamayaro on 7 February 2020 and was told the x-ray did not reveal a fracture of the coccyx.[35] The plaintiff agreed with the progress entry notes.
[33]FDCB, 78.
[34]Ibid.
[35]FDCB, 77.
Mr McKenzie asked the plaintiff why she had not previously mentioned to the Court that she had fallen at home and injured her coccyx. The plaintiff said she had not remembered about the fall until now and, in any event, the fall was not that bad. The plaintiff agreed with the suggestion by Mr McKenzie that she had not provided a history of the fall to Dr Aliashkevich, Dr Poppenbeek or Mr Etherington.
The plaintiff was referred to a progress note entry in the records of Complete Family Care by Dr Al-Rubaye on 3 December 2020.[36] Dr Al-Rubaye recorded that the plaintiff had been in hospital for one month with lower back pain and worsening sciatica, and had been discharged to the Royal Melbourne Hospital for rehabilitation. The plaintiff was on painkillers and using a wheelchair outside the house and a frame at home and was on the waiting list for surgery for a L4/L5 laminectomy and discectomy. The plaintiff agreed with the entry note. The plaintiff was asked why she had not provided a history of a work injury at the childcare centre. The plaintiff said she had told Dr Al-Rubaye about her job.
[36]FDCB, 76.
The plaintiff was referred to the progress note entry by Dr Al-Rubaye on 29 December 2020.[37] This entry has been previously referred to during the first defendant’s cross-examination. Dr Al-Rubaye stated the plaintiff attended Dr Goyal on 5 July 2018 with her first complaint of back pain. Dr Al-Rubaye noted that the plaintiff claimed she lifted a child at day care in 2018 and started to have back pain. The plaintiff agreed she had been employed by the first defendant in July 2018. The plaintiff also agreed that she had not mentioned any other issues at work following that date.
[37]FDCB, 74.

The plaintiff was referred to the clinical note relating to her admission to Sunshine Hospital on 25 October 2020. The entry read as follows:
Clinical Notes
55 year old female presented with lower back pain for the last two days, worse today.
10/10 pain.
Radiating to the back of the R leg.
No trauma, although with her work she lifts some heavy items.
Working at childcare centre.
Took some analgesics with little effect.
3 years ago, admitted at Sunshine Hospital with the same pain.[38]
[38]FDCB, 30-31.
Mr McKenzie put to the plaintiff that she did not provide a history of any particular incident having occurred at work. The plaintiff said she was in a lot of pain at the time and did not remember what she had said.
The plaintiff was questioned about her family’s cleaning business. The plaintiff agreed Austar was registered on 29 June 2005 and that the registration was cancelled on 24 May 2020.[39] The plaintiff said she was listed as a partner of the business along with her husband and son.
[39]FDCB, 105.
The plaintiff agreed that she had said in her earlier evidence that Austar lost the contract to clean the childcare centre in Blackshaws Road in early 2019. The plaintiff agreed the business had other cleaning contracts which continued after that time. The plaintiff did not accept the cleaning contracts continued until 24 May 2020 when the business was deregistered. The plaintiff said Austar ceased cleaning in June 2019.
The plaintiff agreed Dr Al-Rubaye noted she was using a wheelchair when she was outside the house and a walking frame at home when seen on 3 December 2020. The plaintiff agreed she attended Dr Poppenbeek in a wheelchair on 19 January 2021 and told him walking was very painful and difficult. The plaintiff agreed she was using a walking stick for support when she saw Dr Aliashkevich on 8 November 2021. The plaintiff agreed she was using a walking stick when she saw Mr Etherington on 13 April 2022.
The plaintiff agreed she was using a walking stick to walk to and from the witness box when giving evidence in court. The plaintiff agreed she was leaning and putting weight on the walking stick. The plaintiff repeated she had been told by her physiotherapist to use the walking stick in her left hand because of her carpal tunnel syndrome in her right hand. Mr McKenzie put to the plaintiff that she was not using the walking stick to support herself walking because of the right leg pain. The plaintiff said she used the walking stick in her left hand to support her body.
Mr McKenzie showed surveillance of the plaintiff to the Court taken on 5 November 2021. The surveillance depicted the plaintiff walking without a walking stick and bending in and out of a car parked in a driveway on four occasions. At times, the plaintiff appeared to be waving at a baby or small child sitting in the car.
The plaintiff agreed it was her in the surveillance. The plaintiff was referred to a letter of referral from Dr Al-Rubaye dated 5 October 2021. Dr Al-Rubaye stated the following:
Thank you for seeing Ms Cortes, age 56yrs 6mths, for an opinion and management. Worsening lower back pain radiating to lower legs, pain is getting worse in last month with increase in pin and needle sensation. As you are aware that Ms Cortes was on WL for microdiscectomy L5-S1, but she has been removed from the list after having phone consultation with Dr Lachlan Evans on 16/04/21.
Her back pain and lower leg pain is getting worse with increase numbness and reduced mobility.
Please review the patient and review need for surgical management.
She still using walking aids with walker outside the house and walking aid at home.[40]
[40]PCB, 70-71.
Mr McKenzie put to the plaintiff that the surveillance taken on 5 November 2021 showed her walking normally and briskly. The plaintiff did not agree. The plaintiff said her right leg is sore, but she can still walk.
The plaintiff was referred to the medico legal report of Dr Aliashkevich dated 8 November 2021. At page 84 of that report, Dr Aliashkevich stated that the plaintiff presented with ‘a slow and limping gait, requiring the support of a walking stick in her left hand’.[41] Mr McKenzie put to the plaintiff that the surveillance of the plaintiff taken three days before the examination depicted the plaintiff walking without the aid of a walking stick and without a limp.
[41]PCB, 84.
Mr McKenzie referred to Dr Aliashkevich’s examination findings and his statement that ‘Lumbar spine movements were uniformly restricted with flexion possible to 75 degrees, extension possible to 10 degrees and lateral tilting possible to 15 degrees to both sides’.[42] It was explained to the plaintiff that Dr Aliashkevich had stated that she was unable to bend all the way over, yet the surveillance depicted her bending into the back of a car and, at one stage, climbing into the back of the car. The plaintiff said she was using her knees to bend into the car and Dr Aliashkevich did not ask her to use her knees when bending.
[42]Ibid.
The plaintiff agreed the surveillance showed her with one foot outside the car whilst bending into the back of the car. The plaintiff agreed the surveillance did not appear to show her having any problems with her back. The plaintiff disagreed that the surveillance did not show her having a problem with her right leg. The plaintiff said she did have a problem with her right leg and the surveillance showed her holding onto the car because of issues with her right leg. The plaintiff said she was sometimes in a lot of pain because of her right leg problem and would have to take medication. If she took medication, she was then able to do a lot of things.
Mr McKenzie put to the plaintiff that the surveillance depicted her leaving her house at 8:08am and walking to a dog grooming business. She arrived at the business six minutes later. The plaintiff agreed she was walking without the aid of a walking stick, did not need a wheelchair and did not use the fence for support.
The plaintiff agreed she was depicted in the surveillance helping put a small child in a grey Audi vehicle. The plaintiff said she was helping a friend. The plaintiff agreed she was playing ‘peek-a-boo’ and waving to the child. Mr McKenzie put to the plaintiff that the surveillance overall suggested that she had no problem with her back. The plaintiff denied this.
The plaintiff said the dog grooming business was owned by a friend. The plaintiff said her friend was depicted in the surveillance with the grey Audi and it was her friend’s child in the car. The plaintiff denied she was providing childcare services to her friend on 5 November 2021. Mr McKenzie said the surveillance depicted the plaintiff at the dog grooming business until at least 12:16pm when the surveillance ceased. The plaintiff did not remember what time she left the dog grooming business and said she may have stayed for another half hour. The plaintiff agreed that four and a half hours was a long time for a visit to a friend.
The plaintiff denied that the surveillance indicated that she would be able to work in childcare or as a cleaner. The plaintiff said she had not worked since October 2020.
The Court was shown further surveillance of the plaintiff dated 20 July and 21 July 2022. On 20 July 2022, the plaintiff was depicted getting into a car outside her home and driving. On 21 July 2022, the plaintiff was depicted walking without the aid of a walking stick. At times, the plaintiff appeared to be walking at a reasonable pace and jogged across the road on two occasions. The plaintiff was depicted driving, bending into the car, pushing a pram with an infant, putting a bag of rubbish into a bin and shopping for groceries.
The plaintiff agreed the surveillance on 20 July 2022 depicted into getting into a car without any apparent restriction. The plaintiff denied she lowered herself into the car seat without holding onto anything and said she had her hand on the car door. The plaintiff agreed that she leaned across the front seat of the car without any apparent problems.
With respect to the surveillance on 21 July 2022, the plaintiff said she was limping as she was walking down Kororoit Creek Road from her home. The plaintiff agreed she was not using a walking stick. At 11:23am, the plaintiff agreed she jogged across the road at traffic lights. The plaintiff denied that she did not show any sign of pain or restriction when jogging across the road on the two occasions seen in the surveillance.
The plaintiff agreed the surveillance depicted her walking to a house at 56 Merrett Drive, Williamstown. The plaintiff said a friend lived there. The plaintiff agreed she was depicted driving a White Rav 4 car with a small child in the car. The plaintiff said the car belonged to her friend and it was her friend’s child. The plaintiff agreed the child weighed approximately 15 kilograms. The plaintiff agreed the surveillance showed her driving into the driveway of a house at about 9:05am with her friend and the friend’s child in the car. The plaintiff said she had driven from a primary school where they had dropped the friend’s other child at school.
Mr McKenzie asked the plaintiff why she was driving the car and not her friend. The plaintiff said she always drove. At 9:05am the surveillance depicted the plaintiff helping the child out of the car. The plaintiff disagreed that she did not show any problem with her back as she did this. The plaintiff agreed her friend did not help her in getting the child out of the car.
At 10:12am the surveillance depicted the plaintiff walking and carrying a small bag of rubbish as she left the house. The plaintiff agreed she was not using a walking stick. At 10:50am the plaintiff was seen leaving the house pushing a pram, picking up the rubbish and putting it into a rubbish bin. The plaintiff disagreed that she appeared to not have any problems with her back as she did this.
At 10:52am the plaintiff was seen leaving the pram and jogging back into the house to get a backpack. The plaintiff disagreed that she was not limping as she did this. At 10:55am the plaintiff was seen pushing the pram while walking to Woolworths. The plaintiff disagreed that she did not appear restricted as she did this. The plaintiff did not agree that she was able to bend down in Woolworths and put an item on a shelf in a quick manner. At 11:13am the plaintiff was seen pushing the pram as she walked back from Woolworths. The plaintiff disagreed that she was walking normally as she did this. The plaintiff agreed she lifted the child out of the pram when they arrived back at the Merrett Drive house but denied that she did not appear to be in pain as she did this. At 11:23am the plaintiff was seen using her right foot to push down on the pram. Mr McKenzie put to the plaintiff that she did not appear restricted as she did this. The plaintiff disagreed. The plaintiff disagreed that, if she was having problems such as numbness and pins and needles in her right leg, she should have used her left leg instead.
It was put to the plaintiff that the distance from the Woolworths store to the Merrett Drive house was approximately 900 metres. The plaintiff said she did not know.
Mr McKenzie put to the plaintiff that the surveillance ceased at 4:00pm on 21 July 2022 and she was still at the Merrett Drive house. The plaintiff agreed and said she did not leave the house until about 5:00pm. The plaintiff agreed she had been at the house from 8:30am until 5:00pm and that her friend had not been there during the day. The plaintiff said her friend arrived home at 4:30pm. The plaintiff agreed she had been looking after her friend’s child during the day. The plaintiff said her friend was not the same person who owned the dog grooming business.
The plaintiff disagreed with the proposition of Mr McKenzie that she had been providing childcare services on 21 July 2022. The plaintiff said she was babysitting her friend’s child on 21 July 2022 and denied receiving any payment or having done it before. The plaintiff denied she would be able to work as a babysitter or as a nanny.
The plaintiff agreed she received a Total and Permanent Disability (TPD) payment of $40,000 from Hannover Life Insurance on 23 November 2021.[43] The plaintiff agreed the payment equalled approximately 75 weeks of her pay as a childcare worker.
[43]SDCB, 94.
Mr McKenzie put to the plaintiff that she had no reason to return to work having received the payment of $40,000. The plaintiff said she needed surgery to her back and could not work.
The plaintiff was referred to the clinical notes of Wellbeing Chiropractic. On 21 October 2021 the following entry was made:
Comments
Frustrated. Martha is getting pressure from family. She says they don’t understand that she is improving. Her mobility is greatly improved, and the pain is less, though she had some increased pain over the weekend, but overall, she is improving. She is looking after an 8 mth old boy to pay for these treatments. Wants to get back to normal life and avoid surgery. Reassessment next visit. Martha has handled the DTs very well considering her condition when she started. We are now getting to a decent stretch where more improvements should be achieved.[44]
[44]SDCB, 42.
The plaintiff said the eight month boy was a friend’s baby. The plaintiff said she was not working, and she had lied when she told the chiropractor she was looking after the baby to pay for her treatment. The plaintiff said she told the chiropractor that because she was trying to negotiate a lower fee for the treatment. The plaintiff said she had not received the TPD payment at that stage. She said her husband was also not working. It was put to the plaintiff that her children could have helped her with paying for treatment. The plaintiff agreed her son had previously helped in paying some of her bills.
The plaintiff was referred to the following entry on 16 October 2021:
Comments
Mobility improved. Not using stick and moving quicker. Pain reduced in back but coming and going in R upper thigh and still some pain around the need (sic) and numbness in the foot. Asked if she could carry her 1-year-old and discussed methods to pick her up rather than bending down if possible and to limit picking toys up from the floor where possible.[45]
[45]SDCB, 43.
The plaintiff said the one year old child was her granddaughter who she was looking after at the time. The plaintiff said she still looked after her granddaughter on and off and she was her son’s child. The plaintiff said she asked the chiropractor if she could hold the baby when it cried.

Re-examination of the plaintiff

The plaintiff said she did not move furniture when she worked as a cleaner for Austar. The plaintiff said Austar mainly cleaned offices and she just did dusting. The plaintiff said the chairs in the childcare centre were put up on the tables at the end of the day and there was no need to move them when cleaning.
The plaintiff said Austar had a contract to clean Sew-Eurodrive, Monday to Friday, for 10 years which ceased in 2019. The plaintiff said she was cleaning for Austar during the time she worked for the first defendant and the second defendant. The plaintiff said she did more work at the childcare centre during the day than working at night as a cleaner.
The plaintiff said the surveillance showed her walking with a limp because her right leg was numb. Sometimes she could walk fast and other days she would walk slow. The plaintiff said, if she had to cross the street, she would walk faster. The plaintiff said it is difficult for her to get out of a car because of her bad back and she would use a cushion on the seat and the back of the seat.
The plaintiff said her back pain and right leg pain was now very bad and was worse than it had been in the past. The plaintiff said her right leg pain prevented her from walking properly.
The plaintiff said, whilst her contract of employment with the second defendant stated that her work hours were 22.5 hours per week, she sometimes worked longer hours. The plaintiff said she was sometimes asked to come to work early or stay at work past 5:00pm. Sometimes she worked six hours a day, five days a week.
The plaintiff said her work hours as a cleaner were normally three hours a night, five nights a week. She sometimes worked as a cleaner on a Saturday.
The plaintiff was referred to the progress note entered by Dr Mansoori on 31 July 2017 which stated:
History
Backache since 3 days ago
Pain radiates to R leg
Nil before H
Went to chiropractor
After lift something and next day got back pain[46]
[46]FDCB, 99.
The plaintiff said she was lifting an autistic child at the childcare centre when she hurt her back.
The plaintiff was referred to the history recorded by the chiropractor on 21 October 2021 when the plaintiff said she was looking after an eight month old child to pay for the chiropractic treatment. The plaintiff said the child was the son of her friend, Paige Clarke, and she was not paid to look after him. The plaintiff said she would just visit her friend for a chat and to have a coffee and play with her son. The plaintiff said Ms Clarke owned the dog grooming business, but she was not grooming dogs when she visited her.
Mr Chen asked the plaintiff why she told the chiropractor she was getting paid to look after her friend’s son. The plaintiff said she had no money to pay for the chiropractic treatment and wanted to get a discount. The plaintiff said she told a lie because she had no money. She was originally paying $100 for each visit and the chiropractor reduced the cost to $80.
The plaintiff said she told her manager, Ms DiBella, that she had back pain in 2018 after putting a rubbish bag in the bin. The plaintiff said Katrina Maxwell was the manager of the childcare centre in October 2020. The plaintiff said she told Ms Maxwell to tell the girls working in her room that her back was hurting and that she was not doing anything in the room that day. The plaintiff said her back was hurting because she had been doing a lot of bending and carrying in October 2020.
The plaintiff said her work in the childcare centre involved lifting from floor level to waist level every day. She would lift a child many times during the day. She would lift a bag of rubbish at least once a day.
The plaintiff said the surveillance of her looking after a child was different to the work she did at the childcare centre. The plaintiff she was not holding children and making beds like the work she did at the childcare centre.
The plaintiff said she saw no need to lodge a Workcover claim in 2018 because she did not take any time off work.
The plaintiff said an occupational therapist arranged for handrails to be installed in her shower, beside her toilet and hand railing to her stairs.[47] The plaintiff said she needed the rails to have a shower and go up the stairs because her right leg was numb, and she needed help.

Evidence of Marco Lagos

[47]PCB, 239.

Mr Lagos is the plaintiff’s husband. He is not working and is currently in receipt of the Disability Support Pension.
Mr Lagos worked in the family’s cleaning business, Austar, with the plaintiff, his son, and a daughter. Austar is no longer operating. Mr Lagos said the business ceased operating when the plaintiff’s mother passed away.
With respect to cleaning the childcare centre at Blackshaws Road, Mr Lagos said he would take the cleaning materials to work and do the cleaning work. Mr Lagos said the work was divided up between the more demanding areas, the kitchen and vacuuming. Mr Lagos said the heavier work involved collecting bags of rubbish. Mr Lagos said he and his son did the heavier cleaning work. He said the plaintiff did not do any heavy cleaning work and would always work in the kitchen because the cleaning work was easier and did not require physical strength.
Mr Lagos said the plaintiff hurt her back working in the childcare centre and he had to take her to hospital.

Cross-examination of Mr Lagos by Mr Middleton on behalf of the First Defendant

Mr Lagos agreed he was one of three partners in Austar, along with the plaintiff and their son. The family business was established in 2005 and had an ABN.
Mr Lagos agreed Austar had cleaning contracts with other clients, apart from the childcare centre at Blackshaws Road. Mr Lagos said Austar cleaned the childcare centre from 2008 to 2017. Mr Lagos could not remember who ran the childcare centre before the first defendant took over the business.
Mr Lagos agreed Austar had a cleaning contract with Sew-Eurodrive, a company based in Tullamarine.
Mr Lagos said he could not remember the names of any other clients but agreed Austar had more than two clients. Mr Lagos was asked whether Austar had a cleaning contract with the YMCA in Taylors Hill and whether his wife worked there. Mr Lagos said his wife did not really work at the YMCA because the work was heavy but agreed she worked there sometimes. Mr Lagos was asked whether his wife did cleaning work for Belinda Publishing based in Tullamarine. Mr Lagos said it was a small cleaning job and his wife did not work there.
Mr Lagos was referred to the two invoices from Austar dated 2 August 2018 and 17 August 2018 billed to Bright Steps at 82-84 Blackshaws Road, South Kingsville.[48] Mr Lagos said he prepared the invoices on behalf of Austar. He would either post the invoice to the client or give it to the client if they were there. Mr Lagos said he could not remember who he gave the two invoices to.
[48]FDCB, 103-104.
Mr Lagos said Austar ceased operating in about 2019 when his wife’s mother passed away and the ABN was cancelled in May 2020. Mr Lagos said no cleaning work was performed during that period.
Mr Lagos agreed he sustained an injury in or about 2019 whist doing cleaning work but said that was not the reason Austar ceased operating.

Cross-examination of Mr Lagos by Mr McKenzie on behalf of the Second Defendant

Mr Lagos said it was not correct to say that his wife was important to the family cleaning business. When asked why the business ceased operating when his wife’s mother passed away, Mr Lagos said the family did not want to continue.
Mr Lagos agreed his wife’s solicitors were acting on his behalf in County Court common law proceedings filed against Sew-Eurodrive on 4 January 2022.[49]
[49]SDCB, 95-104.
Mr Lagos agreed he was claiming economic loss as a result of injuries to his left shoulder and lumbar spine whilst working as a contract cleaner at Sew-Eurodrive. Mr Lagos agreed with paragraph 4 of the Statement of Claim which read:
Between approximately 2016 and 2019, the plaintiff was required to undertake heavy cleaning duties and use large industrial bins with a heavy and awkward lid.[50]
[50]SDCB, 109.
Mr McKenzie put to Mr Lagos that the injuries to his left shoulder and lumbar spine were the reason why Austar ceased operating. Mr Lagos said it was one of the reasons.

Evidence of Ms Stephanie Dorward

Ms Dorward said she commenced working at the childcare centre in Blackshaws Road in 2009 and ceased working there in 2021. Over that period, she was employed by Bright Steps, the first defendant and the second defendant. Ms Dorward said she mainly worked as a Room Leader.
Ms Dorward said she knew the plaintiff and worked with her from about 2015 for five years. Ms Dorward said she normally worked in the same room with the plaintiff but did not see her all the time. The plaintiff would also cover for other workers when they had a morning tea break or lunch break.
Ms Dorward said she remembered the plaintiff telling her she had hurt her back changing the nappy of an autistic child sometime in 2017. Ms Dorward said it was difficult to change the child’s nappy because he was heavier than the other children. Ms Dorward said the plaintiff was holding her back and appeared to be in pain when she was telling her about the incident.
Ms Dorward said there were five to six nappy changes for each child on average during the day and there were 12 children under the age of three in the room being looked after by the childcare worker. Ms Dorward said children were changed on a change mat on a nappy table which was level with the person’s hip. Ms Dorward said bending was required to lift the child from the ground. The person would bend their knees to do this and then stand up and lean forward and place the child on the change mat.
After changing a child’s nappy, the childcare person would then lift the child and take the child to the wash basin which was close to the nappy table. The person would be slightly bent in their posture whilst washing the child.
Ms Dorward said she recalled that the plaintiff was away from work for one or two weeks after the lifting incident with the autistic child. Ms Dorward said she asked the Director of the childcare centre, Ms DiBella, where the plaintiff was because she was concerned about her. Ms Dorward said Ms DiBella told her the plaintiff was in hospital. Ms Dorward said she asked Ms DiBella if it was because the plaintiff had hurt her back lifting the autistic child and Ms DiBella said yes.
Ms Dorward said she continued to work with the plaintiff after she came back to work. Ms Dorward said the plaintiff hurt her back again in late 2020 during accreditation time. Ms Dorward said the childcare centre was undergoing ranking and assessment and an accreditor was coming out to the centre to make the assessment. Ms Dorward said it was a stressful time for everyone and the staff had to make sure everything was in place. Ms Dorward said there was more lifting than normal to do, and the play equipment had to be set up outside in the morning and taken inside at night. The play equipment included A frames, balancing beams, tables, tyres and tree stumps used as a nature base for the children. Ms Dorward said she was outside with the staff arranging the tree stumps and setting up animal figurines to place on top of the tree stumps. Ms Dorward then saw the plaintiff at the sandpit holding her back. The plaintiff said her back was bad and she then stopped working. The plaintiff stayed until the end of the day. The plaintiff did not return to work.
Ms Dorward said, from her observations, the plaintiff had a good work ethic and was a hard worker.
Ms Dorward said the play equipment had to be manually set up in the morning and taken down in the evening every day. The staff were told to use their common sense and lift with another person.
Staff were also required to take out rubbish bags of dirty nappies. Ms Dorward said the rubbish bags were supposed to be taken out every two hours, but this did not always happen, and the bags were often overloaded. The rubbish bags were taken out to a bin in the carpark and involved a walk of about 200 to 250 metres from the childcare centre. There was one rubbish bag of dirty nappies between two rooms as they shared one bathroom. Ms Dorward said no particular member of staff took out the rubbish and the arrangement for someone to do so was very informal. Ms Dorward said it was a big lift for someone to put the rubbish bag into the outside bin as they had to swing the bag from the ground into the bin. Ms Dorward said the bin was a green dumpster bin with two lids. Ms Dorward initially said the bin lid had to be lifted up. When cross-examined by Mr Middleton, she subsequently said that she might have been wrong about the lid having to be lifted up.
Ms Dorward said the plaintiff would have put rubbish bags into the bin as she had to clean the bathroom. Ms Dorward said whoever was cleaning the bathroom had to empty the rubbish bag of dirty nappies. Ms Dorward said the plaintiff might have emptied the rubbish bin two to three times a week.
Ms Dorward said the plaintiff was employed as a casual worker and did not have a permanent position in a room. The plaintiff would float from room to room covering for staff who had gone on a break. Ms Dorward said the plaintiff would have covered for staff in her room most days.

Cross-examination of Ms Dorward by Mr Middleton on behalf of the First Defendant

Ms Dorward was asked about her memory of events going back to 2017. She said her memory as to the events of 2017 was vague, but she had a vivid memory of the 2020 incident.
Ms Dorward said she was wrong when she said earlier that she had worked with the plaintiff for five years. She now realised she had worked with the plaintiff for 11 years.
Ms Dorward agreed she was a Room Leader and that the plaintiff reported to her. She agreed there was an incident report form for staff of the childcare to complete if they suffered an injury at work. Ms Dorward said she did not complete an incident report form with respect to the plaintiff’s incident concerning the autistic child. Ms Dorward said it was up to the person who had injured themself to complete the incident report form. Ms Dorward said she told the plaintiff once or twice to complete an incident report form, but she did not do it. In the end, Ms Dorward said she left it at that.
Ms Dorward said she did not witness the plaintiff lifting the autistic child as she was in a different room at the time. The plaintiff told her she had lifted the autistic child later. Ms Dorward was asked how she remembered that the lifting of the autistic child had happened at that time and in that year. Ms Dorward said she just remembered the lifting incident was around that time and remembered that the plaintiff went to hospital.
Mr Middleton put to Ms Dorward that the plaintiff had given evidence that the lifting incident could have happened in 2016, 2017 or 2018. Ms Dorward said it was possible that the plaintiff may have injured herself in 2016 but did not think she did. Ms Dorward said that she thought the lifting incident happened in 2017.
Ms Dorward said she remembered that the plaintiff went to hospital in mid-2017. The hospital entry for the Sunshine Hospital said the plaintiff was admitted on 2 August 2017. Ms Dorward was referred to what the plaintiff said when she was admitted. The plaintiff gave a history on admission of right lower back pain since Saturday when she twisted while mopping the floor. It was put to Ms Dorward that the plaintiff did not mention to her that she had hurt her back whilst mopping the floor at the childcare centre. Ms Dorward said she knew the plaintiff had a cleaning business and thought she might do some cleaning at the childcare centre on a Saturday but did not really remember when she cleaned the centre.

Cross-examination of Ms Dorward by Mr McKenzie on behalf of the Second Defendant

Ms Dorward said she was working with the plaintiff in October 2020 and was a Room Leader. If the plaintiff was not in her room looking after children under three years, she would have been in another room where the children were older. Working with the older children was still physical work but the older children were more independent.
It was put to Ms Dorward that it was incorrect to say that the plaintiff worked in the under three year old room all day as she was a casual worker who floated within the childcare centre. Ms Dorward agreed.
Ms Dorward was asked whether she reported the plaintiff’s incident in October 2020. Ms Dorward said she did not report the incident but said that she told the plaintiff to complete an incident report form. Ms Dorward said she was worried about the welfare of staff and would have wanted them to complete the form if they had been injured.
Mr McKenzie put to Ms Dorward that the reason why the plaintiff had not completed an incident report form in 2017 or October 2020 was simply because the incidents had not taken place. Ms Dorward disagreed.
Ms Dorward said she did not see the plaintiff lift the autistic child in 2017 but did see the plaintiff injure her back in October 2020. Ms Dorward said it was a mistake on her behalf to not report that incident. Ms Dorward said she did tell the plaintiff to fill out an injury incident form, but it was never completed.
Ms Dorward said she was aware that the plaintiff worked in a family cleaning business, but never saw her working in the business and did not know where she worked, apart from the childcare centre and Sew-Eurodrive, which she knew was a big factory. Ms Dorward was relying on what the plaintiff told her when she said she was a supervisor in the business.
Ms Dorward was referred to the referral letter of Dr Coleman to a physiotherapist at IPC Health dated 15 August 2017. Dr Coleman stated the following:
Dear physiotherapist
Thank you for seeing Martha Cortes Lagos, age 52 yrs who has low back pain with SIJ and discogenic component in her right side.
She has required pred and pain relief to ger her walking again - unfortunately she works as a cleaner and as a childcare worker and so both of these are bad for backs.[51]
[51]PCB, 39.
Ms Dorward said the plaintiff never told her the cleaning work was bad for her back and she had assumed the plaintiff was the supervisor, as it was her cleaning business.
Ms Dorward said she had spoken to the plaintiff about her Workcover claim on occasions over the years but had mainly spoken to the plaintiff about her mental health, and the issues concerning her daughter.
Ms Dorward said she was unaware of the plaintiff having engaged in any child-minding activities since ceasing work.

Re-examination of Ms Dorward

Ms Dorward said she had worked with three autistic children over the period of her employment at the childcare centre.
Ms Dorward was asked whether the incidents in 2017 and 2020 warranted the filling out of an incident form. Ms Dorward said incident forms should have been filled out at the time and she regretted that the forms were not completed. Ms Dorward said other workers have completed incident forms and it was normally done in circumstances when an employee was injured at work.

Evidence of Ms Paige Clarke

Ms Clarke said she was self-employed in a business as a dog groomer. She said she lived in Gisbourne South and had a home office there. Her business premises were situated at 150 Ferguson Street, Williamstown and she also had an office there. Ms Clarke said she travelled around Melbourne in the course of her work.
Ms Clarke said she met the plaintiff through employing her daughter and had known the plaintiff for about two years. Ms Clarke said she would see the plaintiff about once a week depending on her work. Ms Clarke said she would either see the plaintiff in Williamstown or the plaintiff would come across and see her in Gisbourne. Ms Clarke said she and the plaintiff would catch up as friends and would talk and either have coffee or lunch.
Ms Clarke said she has a son, Oliver, who is now 18 months old. Ms Clarke said the plaintiff has a relationship with Oliver and cares about him and plays with him. Ms Clarke said the plaintiff had never looked after Oliver and she had never paid the plaintiff for childminding services. Ms Clarke denied that the plaintiff had ever looked after Oliver at her Williamstown business premises.
Ms Clarke said the plaintiff might come and see her at her business premises in Williamstown once every week or fortnight, but it was not on a regular basis. When the plaintiff visited, Ms Clarke said she would work on her computer in the office while she chatted with the plaintiff.
Ms Clarke said she would sometimes take Oliver to work at the dog grooming business. Ms Clarke said she had two staff to do the dog grooming if she took Oliver to work.
If the plaintiff visited her business, Ms Clarke said she would normally play and do puzzles with Oliver. Ms Clarke said the plaintiff could not lift Oliver or get on the ground with Oliver, as her movements were limited due to her back problems. Ms Clarke said she has observed the plaintiff in pain because of her back problems and the plaintiff has also told her she was in pain.
Ms Clarke said she has noticed that the plaintiff has a slight limp when she walks.

Cross-examination of Ms Clarke by Mr Middleton on behalf of the first defendant

Ms Clarke said Oliver was born on 3 February 2021 and was approximately eight months old in October 2021.
Ms Clarke was referred to the plaintiff’s evidence where she said she looked after an eight-month boy in October 2021 to pay for physiotherapy treatment for her back. Ms Clarke was asked whether that eight-month-old boy was Oliver given he would have been eight months old in October 2021. Ms Clarke denied the plaintiff looked after Oliver in October 2021 and said she was always present with Oliver when the plaintiff visited herself and Oliver.
Ms Clarke said she had lived in Gisbourne South for about nine months. Before moving to Gisbourne South, she had lived in Sunbury. Ms Clarke said she had never lived in Williamstown.

Cross-examination of Ms Clarke by Mr McKenzie on behalf of the second defendant

Ms Clarke agreed the drive from Williamstown to Gisbourne was approximately 60 kilometres and said the drive would take an hour if the traffic was busy. Ms Clarke said the normal drive was about 45 minutes.
Ms Clarke agreed the drive from Williamstown to Sunbury was approximately 48 kilometres and would be about 45 to 60 minutes.
Ms Clarke agreed the plaintiff would drive to Gisbourne South and back to Williamstown on her own.
Ms Clarke said the plaintiff has told her she used to be a cleaner but that she could not do it anymore because she physically could not do the tasks involved. Ms Clarke said the plaintiff did not specifically tell her what tasks she could not do. Ms Clarke was unaware when the plaintiff ceased work as a cleaner but thought it was years ago.

Re-examination of Ms Clarke

Ms Clarke said the plaintiff would struggle to get out of her car after driving to see her in Gisbourne South. The plaintiff would take a while to walk and was very stiff and would use a walking stick.
Ms Clarke was referred to the surveillance of the plaintiff undertaken on 5 November 2021 where the plaintiff was filmed attending the grooming business in Williamstown. Ms Clarke said she could not recall if the plaintiff used a walking stick that day. Ms Clarke said the plaintiff sometimes attended the dog grooming business in Williamstown and did not use a walking stick. Most of the time the plaintiff did use a walking stick.

MEDICAL EVIDENCE

An undated report from the Western Health Emergency Department stated that:
Martha Cortes Lagos presented to the emergency Department at Sunshine Hospital on the 2 August 2017 at 01.57. The presenting problem was pain - back (lower) pt c/o lower back pain radiating down right leg. Attended chiropractor 2/7 ago and since pain worse. Pain ++ on lying down. Pt child care worker. Nil relief with analgesia at home.[52]
[52]PCB, 229.
The diagnosis was an unspecified backache. It was noted the plaintiff worked as a childcare worker and had a cleaning job, and occupational lifting and twisting was involved in both jobs.
An x-ray of the lumbosacral spine was undertaken on 10 August 2017 which revealed the following:
Clinical notes: Right L4-L5 and S1. Right S1 joint pain. Radiation to right foot. Weakness toe standing.
Findings: Preserved lumbar lordosis. No significant stepwise deformity. Lumbar vertebral body heights are within normal limits.
L1-L2: Slightly convex disc margin, no herniation. Adequate central canal. Normal recesses and foramina.
L2-L3: Shallow disc bulge with prominent far lateral components. Mild reduction in canal dimensions. Facet hypertrophy and flaval overgrowth. Minor foraminal narrowing.
L3-L4: Irregular blood disc bulge, facet hypertrophy and flaval overgrowth contribute to a mild-moderate narrowing of central canal. Exuberant left facet osteophytes. Left recess distortion with potential compromise of the traversing left L4 nerve root. Less affected right recesses. Mild bilateral foraminal narrowing.
L4-L5: Circumferential disc bulge. Mild-moderate narrowing of central canal due to disc, facet hypertrophy flaval overgrowth. Distorted recesses: equivocal compromise of traversing nerve roots. Adequate foramina.
L5-S1: Asymmetric right paracentral disc bulge. Mild narrowing of central canal secondary to disc, facet hypertrophy and flaval overgrowth. Recess distortion, no convincing traversing nerve root compromise. Mild bilateral foraminal narrowing.
No osseous abnormality of the sacrum or sacroiliac joints.
No findings to indicate advanced sacroiliitis.
Small sclerotic foci along the right S1 joint consistent with bone islands.[53]
[53]FDCB, 40.

The note referred to by Mr Middleton has to be contrasted with another entry from the Emergency Department of the Sunshine Hospital dated 2 August 2017[144] and an undated report from Peter Ritchie, an Emergency Specialist Doctor.[145] Both documents concerned the plaintiff’s presentation to the Emergency Department of the Sunshine Hospital on 2 August 2017. Both the entry and report were addressed to Dr Klaus Oppenheimer. There is no reference in either the entry or the report of the plaintiff having ‘twisted while mopping floor’. The entry refers to the plaintiff presenting with:
… pain - back (lower) pt c/o lower back pain radiating down right leg. Attended chiropractor 2/7 ago and since pain worse. Pain ++ on lying down. Pt child care worker. Nil relief with analgesia at home.[146]
[144]PCB, 229.
[145]FDCB, 29.
[146]PCB, 229.
The note later recorded that the plaintiff ‘Works as a childcare worker and cleaning job’ with ‘Occupational lifting and twisting in both jobs (childcare and cleaning)’.[147]
[147]FDCB, 29.
The undated report from Dr Ritchie is more detailed but refers to the plaintiff working as a childcare worker and cleaner with occupational lifting and twisting in both jobs.
Mr Middleton’s submission must be considered in the light of what the additional entry and report stated with respect to the plaintiff working as a childcare worker and cleaner with lifting and twisting involved in both jobs. The evidence overall must also be considered.
The plaintiff gave evidence that she continued working as a childcare worker and cleaner thereafter. Her duties as a childcare worker remained the same. The plaintiff said sometime in July 2018 she was working in the infants’ room and took a rubbish bag of dirty nappies from the room to put in a bigger bin which was outside the childcare centre. The bigger bin has also been described as a dumpster. The plaintiff said she used one hand to lift the lid of the bin and used her other hand to throw the rubbish bag into the bin. The plaintiff said her lower back started to hurt after doing this. The plaintiff said she told the manager, Ms DiBella, that her back was hurting and rang her husband and asked him to pick her up from work. She did not finish her shift. The plaintiff’s husband gave evidence that he did collect his wife from the childcare centre after she hurt her back on one occasion. The plaintiff said she later saw a doctor at Complete Family Care and was referred for an x-ray of her back which took place on 5 July 2018. The plaintiff went back to work after a few days.
The x-ray performed on 5 July 2018 was requested by Dr Goyal from Complete Family Care. Dr Goyal saw the plaintiff on 5 July 2018. The plaintiff told Dr Goyal she had developed the sudden onset of lower back pain which had started the day before but was worse today. The plaintiff said she had had a similar episode of pain the previous year. Dr Goyal stated the plaintiff had sciatica symptoms and pain radiating through the gluteal muscle. Dr Goyal prescribed Panadol, Celebrex, and Tramal.
The plaintiff saw Dr Ping on 6 July 2018 and complained of episodes of lower back and right leg pain the day before. The plaintiff said the symptoms had recurred immediately on lifting the rubbish bin at work. The pain was intense and constant in her lower back and radiating down her right lower limb with tingling and numbness
Whilst Ms Dorward could not corroborate directly that the plaintiff had injured herself throwing a rubbish bag of dirty nappies into an outside bin, she did give evidence that staff at the childcare centre were required to take out rubbish bags of dirty nappies. Ms Dorward said these bags were often overloaded and it was a big lift for someone to put the rubbish into the outside bin as they had to swing the bag from the ground into the bin. Ms Dorward estimated that the rubbish bags weighed approximately 15 kilograms.
Ms Dorward said the plaintiff would have emptied rubbish into the outside bin because that was a duty she would have performed when cleaning the bathroom.
Based on the plaintiff’s evidence, her attendances on Dr Goyal and Dr Ping on 5 and 6 July 2018, and the evidence of Ms Dorward, I am satisfied that the plaintiff did sustain an injury to her lower back throwing a rubbish bag of dirty nappies into the outside bin as alleged.
Again, the evidence is to the effect that the plaintiff returned to work after this event and continued performing her normal duties as a childcare worker and cleaner.
There was some dispute as to when the plaintiff ceasing performing cleaning duties for Austar. The plaintiff said Austar’s contract to clean the childcare centre finished in February 2019 and she stopped doing cleaning work at that time. During cross-examination by Mr McKenzie, the plaintiff agreed that Austar had other cleaning contracts that continued after this time and said Austar ceased cleaning in June 2019. She denied that Austar continued cleaning up until the business was deregistered on 24 May 2020. Mr Lagos gave evidence that Austar ceased operating when the plaintiff’s mother passed away in early 2019.
The plaintiff attended Dr Al-Rubaye on 28 May 2019 and said she had recently lost her job and worked in childcare. On 4 June 2019, Dr Al-Rubaye saw the plaintiff and recorded that she had lost her job as a cleaner but still worked in childcare.
The evidence also indicates the plaintiff did cease work altogether in late 2018/early 2019 for a couple of months as a result of depression due to her mother’s illness and ongoing issues concerning her daughter. Whilst it is unclear as to when the plaintiff did cease work as a cleaner, it does appear that she did not continue with her cleaning work after May 2019.
Mr McKenzie cross-examined the plaintiff as to why she had not told the Court about having fallen at home and injuring her coccyx in late 2019. The plaintiff said she had not remembered about the fall until it was mentioned by Mr McKenzie and said, in any event, the fall was not that bad. The plaintiff agreed she had not provided a history of the fall to Dr Aliashkevich, Dr Poppenbeek or Mr Etherington. The plaintiff first mentioned the fall to Dr Nyamayaro on 11 December 2019 and said she had fallen two weeks ago. Dr Nyamayaro did not find any neurological problems on examination. He prescribed Voltaren and the use of a ring cushion when sitting down. At that time, he saw no need for further investigations. The plaintiff did not mention the fall when she attended Dr Nyamayaro on 2 January 2020. The plaintiff mentioned persisting coccygeal pain when she saw Dr Waid on 7 February 2020 and an x-ray was arranged that day. The x-ray did not reveal any coccyx fracture and the plaintiff was advised to continue with the ring cushion and that the problem should resolve over the next 12 weeks. There were no further attendances concerning the fall.
Mr Chen pointed out that Dr Aliashkevich was aware that the plaintiff had fallen at home. In looking at all the evidence, I agree with Mr Chen’s submission that the fall was of minor relevance. I do not accept Mr McKenzie’s submission that the fall was significant and that the plaintiff’s failure to mention it in examination-in-chief was detrimental to her case.
The plaintiff gave evidence that her lower back pain caused her to stop work altogether on 22 October 2020. The plaintiff gave evidence that her back had been ‘okay’ during the period from July/August 2018 to October 2020. The plaintiff said she had been performing extra cleaning work at the childcare centre in the week prior to ceasing work. The plaintiff provided general evidence that this work required her to vacuum and mop, clean the bathroom, and set up play equipment inside and outside the centre. The plaintiff said this caused her back pain to increase and she had to stop work.
I accept the plaintiff’s evidence in this regard. It was corroborated by the evidence of Ms Dorward. Ms Dorward gave evidence that the plaintiff hurt her back in late 2020, during accreditation time, and said it was a stressful time for everyone. Ms Dorward said there was more lifting than normal to do over this time. Ms Dorward said play equipment such as A frames, balancing beams, tables, and tyres had to be set up outside. Ms Dorward said tree stumps were used as a nature base for the children and had to also be set up outside. Ms Dorward gave evidence that she was outside with the staff arranging the tree stumps and setting up animal figurines to place on the tree stumps. The plaintiff was assisting with this work. Ms Dorward said she saw the plaintiff at the sandpit holding her back. Ms Dorward said the plaintiff told her that her back was bad, and the plaintiff stopped working. Ms Dorward said she did not report the incident herself and told the plaintiff to complete an incident report form. Under cross-examination by Mr Middleton, Ms Dorward said she had a vivid memory of the incident. Under cross-examination by Mr McKenzie, Ms Dorward denied that the incident had not taken place and denied that was the reason an incident report form had not been completed.
I reject any submission that the evidence of Ms Dorward on this aspect was unsatisfactory.
I accept that the plaintiff did not give specific evidence in examination-in-chief about lifting tree stumps and had not made mention of that task to the medico legal doctors. Mr McKenzie submitted that I should, in effect, draw an adverse inference against the plaintiff. Mr McKenzie submitted that if the plaintiff had been lifting tree stumps at the time, she surely would have said that evidence.
I accept Mr Chen’s submission on this point. The plaintiff gave evidence as to doing heavy work over a week in October 2020. Ms Dorward gave evidence that the work at the time was intense and referred to a specific episode. I do not accept that there was any inconsistency between the evidence of the plaintiff and Ms Dorward in this respect.
The evidence of the plaintiff was also supported by the Emergency Department clinical note on 25 October 2020 which reported that the plaintiff presented with lower back pain for the last two days, which was worse today and radiating to the back of her right leg. It was noted that the plaintiff worked at a childcare centre and had lifted ‘some heavy items’.[148]
[148]FDCB, 31.
Ms Dorward gave evidence that she should have completed an incident report form in 2017 and 2020 and said she regretted not doing so. On the basis of Ms Dorward’s evidence, I accept the 2017 incident was verbally reported to the childcare centre director, Ms DiBella. Ms Dorward gave evidence that she spoke to Ms DiBella and enquired as to where the plaintiff was, as she was concerned. Ms Dorward said Ms DiBella told her the plaintiff was in hospital and had hurt her back lifting the autistic child. I have already provided my opinion about Ms Dorward’s evidence. She was not challenged on this aspect.
The plaintiff gave evidence that she told Katrina that she had hurt her back in October 2020 and that this was before she went to hospital.
Counsel for the first defendant and the second defendant were critical of the medico legal reports of Dr Poppenbeek and Dr Aliashkevich, and submitted that the plaintiff had not provided a full and accurate history which undermined their respective opinions. I do not agree. Both doctors were provided with extensive medical records which were relied in making their assessment.
I believe Dr Poppenbeek did turn his mind to the plaintiff’s pre-existing back condition when making his assessment as to causation. In his nine page report dated 20 January 2021, Dr Poppenbeek stated he had reviewed 168 pages of documents including the complete records of Complete Family Café and the Altona North Medical Group. Dr Poppenbeek referred to the plaintiff’s history of back pain in 2002 and February 2012. Dr Poppnebeek noted the gradual onset of back pain during the course of the plaintiff’s employment with Bright Steps. He described the records of Complete Family Care as comprehensive and confirmed the plaintiff’s history up to 29 December 2020. Dr Poppenbeek was aware of the plaintiff’s cleaning business and had the two Workcover claim forms.
Mr Middleton submitted that Dr Poppenbeek could not justify the statement that ‘the major cause is lifting a heavy child at work with the previous employer in about 2017’.[149] Mr Middleton submitted that Dr Poppenbeek had been provided with the Sunshine Hospital Emergency Department notes concerning the plaintiff’s attendance on 2 August 2017. I have already referred to another Emergency Department entry on 2 August 2017, and Dr Ritchie’s report based on the plaintiff’s admission on 2 August 2017. I do not accept Mr Middleton’s submission that Dr Poppenbeek’s assessment, based on that incident having occurred in 2017, is without foundation.
[149]PCB, 101.
Dr Aliashkevich provided a 23 page report dated 8 November 2022. Dr Aliashkevich also took into account the plaintiff’s pre-existing back condition and referred to episodes of neck and back pain in 2002 and lower back pain in 2004, 2009 and 2012. He referred to Dr Low’s entry on 15 February 2012 and the Workcover certificate dated 22 February 2012 stating that the plaintiff had a muscular strain of the lower back due to repetitive bending of the back. He was aware of Dr Ansari’s note on 4 December 2015 stating that the plaintiff had chronic back pain. Dr Aliashkevich also referred to Dr Du’s report in 2012 which noted the onset of gradual back pain over the course of the plaintiff’s work with Bright Steps which became noticeable on 9 February 2012. Dr Aliashkevich was aware of the plaintiff’s fall at home in late 2019 and the injury to her coccyx.
Mr Etherington provided a five-page report dated 13 April 2022 stating that the plaintiff had persistent lumbar and right leg pain consistent with L5/S1 degeneration and right sided disc protrusion. Mr Etherington said he had read through the paperwork that he had received. It is not clear what that paperwork was. Mr Etherington’s assessment was that the plaintiff could not prove that her claim was a worker’s compensation issue.
Mr Etherington reported that the plaintiff had some aches and pain well before 2017 but did not require specific treatment. The plaintiff’s condition worsened in July 2017, and she had much more severe pain. Mr Etherington said, from the plaintiff’s point of view, the pain came on after lifting a heavy child at her work. Mr Etherington said the plaintiff’s job as a cleaner and, as a childcare employee, would have had significant loads placed on her back, but unless there was a specific incident report taken at the time of the pain onset, he was unable to say if the incident was presumably work related. His opinion appeared to be based on his assessment that no incident report was made in July 2017.
Mr Etherington reported the plaintiff having a major recurrence of pain in October 2020 but does not refer to any alleged work incident at the time.
Given my findings, I do not accept Mr Etherington’s opinion as to causation.
Weighing the whole of the evidence, on the balance of probabilities, I conclude that the plaintiff’s lower back injury did arise out of, or in the course of, her employment with the first defendant and the second defendant. I have reached that conclusion on the factual findings that I have referred to in the above reasons.
For the same reasons, I further conclude that the plaintiff’s employment with the first defendant and the second defendant, and the three episodes in 2017, 2018 and 2020, were significant contributing factors to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury to the plaintiff’s lower back. In making this determination, I am mindful that the words ‘significant contributing factor’ ‘involve resolution of an essentially factual enquiry, the question being one of degree, requiring, evaluation’[150] and ‘the existence of other contributing factors does not preclude a finding that a worker’s employment was a significant contributing factor’.[151]
[150][2001] VSCA 252 [29].
[151][2018] VSC 754 [93].
I have had regard to Clause 25 of Schedule 1 of the WIRC Act and taken into account the duration of the plaintiff’s employment, the nature of the work performed, the particular tasks of the work performed and the probable development of the plaintiff’s lower back injury occurring if that employment had not taken place. I have also considered the activities of the plaintiff outside the workplace with respect to working for Austar.
For completeness, I also accept that the plaintiff’s witnesses supported her claim and that, once the medical material was unravelled, there was objective medical material to corroborate the plaintiff’s evidence.
I accept that the plaintiff’s cleaning work with Austar would have involved bending and lifting duties. Whilst the evidence on this issue was not totally clear, it was implicit from Dr Coleman’s report dated 15 August 2017 that the plaintiff’s work as a cleaner, as well as her work as a childcare worker, was ‘bad for her back’.[152] Dr Coleman’s comment was in the context of the plaintiff having presented on 3 August 2017 with two days of low back pain. Even the plaintiff made the concession that she had complained to doctors in the past about the cleaning work having caused her problems.
[152]PCB, 39.
I accept Mr Chen’s submission that there was no need for the plaintiff to isolate her lower back injury solely to her work with the first defendant and the second defendant, and that the plaintiff could have concurrent factors for her injuries. As I have previously stated, it is well established that in determining the causal connection between injury and employment, there may well be a multiplicity of causes.
Whilst the plaintiff’s evidence was that her work as a childcare worker was heavier than her work as a cleaner with Austar, the evidence does indicate that her cleaning work was a contributing factor to her lower back condition at times.
However, that does not defeat the plaintiff’s Workcover claim based on my findings. It is important to note that the plaintiff had also ceased working for Austar by May 2019. The plaintiff continued working for the second defendant until she was unable to continue work as of 22 October 2020. This was as a result of her work with the second defendant in the week prior to 22 October 2020.
Similarly, whilst the plaintiff’s work as a childcare worker with Bright Steps caused flare-ups to the plaintiff’s lower back in 2012 and 2015, such employment does not preclude the subsequent aggravation of any pre-existing injury to the plaintiff’s lower back.
With respect to any defence open to the first defendant pursuant to ss 18 or 20 of the WIRC Act, Mr Middleton referred to the delay of 2 and a half years from when the plaintiff ceased employment with the first defendant to the completion of the Workcover claim dated 15 January 2021. I accept the submission of Mr Chen that there was no reason for the plaintiff to have lodged a claim in 2017 or 2018. The plaintiff had little time off work at that time and was still working for the first defendant performing her normal duties as childcare worker.

Incapacity

The plaintiff has the burden of proof to satisfy the Court that incapacity for work, if any, results from, or is materially contributed to by an injury which entitles her to compensation pursuant to s 160 of the WIRC Act.
Based on my findings, and the consensus of the various medical opinions, the plaintiff has been unfit for her pre-injury employment as a childcare worker since ceasing work with the second defendant on 22 October 2020. There is no medical evidence to suggest a contrary view.
Any suggestion that the surveillance supports the view that the plaintiff has a capacity for her pre-injury employment as a childcare worker ignores the evidence as to what the plaintiff’s duties as a childcare worker involved from day to day.

I do not accept that the plaintiff’s motivation to return to work was affected by the total and permanent disablement payment of $40,000. There is clear objective medical evidence to support that the plaintiff had no current work capacity following 22 October 2020.

CONCLUSION

I find that the plaintiff suffers from persistent lumbar and right leg pain consistent with L5/S1 degeneration and right-sided disc protrusion arising out of, or in the course of, her employment with the first defendant and the second defendant.
The plaintiff’s employment with the first defendant and the second defendant was a significant contributing factor to the said injuries.
The plaintiff has an incapacity to perform her pre-injury employment as a childcare worker. This incapacity commenced on 22 October 2020. The plaintiff’s incapacity for work has resulted from or is materially contributed to by the said injuries.
The plaintiff is entitled to weekly payments of compensation at the rate appropriate for no current work capacity, together with reasonable medical and like expenses, from 22 October 2020 to date and to continue in accordance with the WIRC Act.
The parties are invited to provide appropriate orders.

[2023] VMC 3

23 January 2023