Filipovski v Ogemi Services Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3765 of 2007

VIOLETA FILIPOVSKI	Appellant
	v
OGEMI SERVICES PTY LTD & ANOR	Respondents

---

JUDGES	BUCHANAN, NEAVE JJA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 November 2008
DATE OF JUDGMENT	9 October 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 230
JUDGMENT APPEALED FROM	Filipovski v Ogemi Services Pty Ltd & Anor (Unreported, County Court of Victoria, Judge Lewis, 16 November 2007)

---

ACCIDENT COMPENSATION – Accident Compensation Act 1985 ss 134AB(16), (19) and (38) – Appeal against refusal of lower court to grant leave to commence proceedings to recover damages – Inconsistent evidence as to when injury suffered – Adverse findings by trial judge as to the credibility of witnesses – When injury suffered – Whether s 134AD, Accident Compensation Act 1985, applies to appeal on question of whether injury suffered on or after 20 October 1999 – Whether compensable injury established by aggravation of injury – Whether reasons inadequate – Appeal dismissed.

PRACTICE AND PROCEDURE – Application for leave to admit new evidence relevant to date injury suffered – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Kennan SC with Mr M J Stiffe	Ellis Palmos & Co
For the Respondents	Mr J L Parrish SC with Mr M F Fleming	Lander & Rogers

BUCHANAN JA:

I have had the advantage of reading draft reasons for judgment prepared by Neave JA.

I agree with her Honour, for the reasons she has stated, that this Court’s determination of the question whether the appellant suffered a compensable injury on or after 20 October 1999 is covered by the provisions of s 74(3) of the County Court Act 1958. The question whether that injury met the description of a serious injury is a distinct question governed by the provisions of s 134AD of the Accident Compensation Act 1985. The fact that both issues may involve consideration of common evidence does not mean that they are inextricably intermingled.

I also agree with Neave JA, again for the reasons she has stated, that the appeal should be dismissed.

NEAVE JA:

The appellant, Violeta Filipovski, applied in the County Court for leave to issue proceedings under the Accident Compensation Act 1985 (‘the Act’) to recover damages for a serious injury to her lumbar spine and a serious psychiatric injury, which she alleged had occurred in the course of her employment with Ogemi Services Pty Ltd (the first respondent) from 20 October 1999 until approximately 7 June 2000.[1] Her claim to have suffered a serious psychiatric injury was withdrawn in the course of the County Court hearing.
[1]See ss 134AB(16)(b) and (19).

The County Court judge held that Mrs Filipovski had not established on the balance of probabilities that she had suffered a compensable injury to her lumbar spine on or after 20 October 1999.[2] It was therefore unnecessary for his Honour to

decide whether the injury was a serious injury, as defined by s 134AB(38)(b) of the Act. The appellant now appeals against the dismissal of her application. The nature of that appeal is discussed below.[3]

[2]Filipovski v Ogemi Services Pty Ltd (Unreported, County Court of Victoria, Judge G D Lewis, 16 November 2007) (‘Reasons’), [38].

[3]See [77] and following.

The appellant also seeks leave to introduce new evidence, which is said to be relevant to the issues arising on the appeal. The application and the appeal were heard at the same time. I deal with both these matters below.

Background to the proceeding

The factual background to the application and the appeal is as follows. Mrs Filipovski hurt her back in a car accident in 1991. It is common ground that she suffered a soft tissue injury to her lower back in the car accident and that there was no disc prolapse at that time. She received some compensation for that injury.

The appellant took two years off work following the car accident and then returned to the workforce. In approximately November 1996 she began work as a lounge attendant at the Qantas Club at Melbourne Airport. Her work was ‘very physically taxing’, involving repetitive bending and lifting, lifting trays of glasses and plates into and out of a dishwasher, moving chairs and couches, pushing laden trolleys and cleaning.

It is not disputed that Mrs Filipovski hurt her lower back while lifting a tray of glasses out of the dishwasher on 26 September 1999 (‘the September injury’). She reported that incident to her supervisor and attended a general practitioner, Dr Roshan Irani. She stayed home from work until 6 October 1999 and was treated with analgesics and anti-inflammatory tablets. She then returned to work and worked approximately 45 hours a week over six days until June 2000.

On the morning of 6 or 7 June 2000 the appellant experienced severe low back pain and left leg pain when she got out of bed. She went to her doctor and took time off work from 7 to 11 June 2000. She returned to work on 11 and 12 June 2000 on restricted duties. She stopped work on 12 June 2000 because of the pain she was experiencing and has not worked since.

A CT scan of her back performed on 22 June 2000 (that is, after the June 2000 incident) showed a left posterolateral disc protusion extending into the spinal canal on the left side, with displacement and probable compression of the left S1 nerve root. Mrs Filipovski was operated on by Mr Brian Barrett, an orthopaedic surgeon, on 8 May 2003. The surgery involved decompression at the level of the L5/S1 disc and fusion at that level with bone chips and an internal fixation device. The operation was a technical success. It is common ground that Mrs Filipovski continues to suffer from severe back pain, although there is dispute as to whether the pain is caused by physical or psychological factors.

On 22 June 2000, Mrs Filipovski completed a workers’ compensation form in which she described her injury as having occurred ‘when picking up tray of glasses’ on 26 September 1999. Elsewhere on the form she said she had returned to work on 11 or 12 June 2000, then ceased again. Since she in fact returned to work a few days after the September injury, the reference to returning to work on 11 or 12 June 2000 must relate to the symptoms she suffered on 6 June 2000. On the same form the appellant said that the injury had developed over eight months.

The compensation claim was successful and the appellant has been receiving weekly payments since June 2000.

The issues on appeal

Because the right to recover common law damages for work-related injuries was abolished for injuries occurring after 12 November 1997,[4] leave to issue proceedings could not be granted if the appellant’s current back condition was caused by the September injury. However as the result of an amendment to the Act in 2000,[5] she could obtain leave if she suffered an injury ‘arising out of or in the course of or due to her employment’ on or after 20 October 1999 (‘the relevant date’), which was in itself a serious injury.[6]
[4]Accident Compensation Act 1985, s 134A (inserted by the Accident Compensation Act (Miscellaneous Amendment) 1997, s 45).
[5]Accident Compensation Act 1985, Part IV Division 8A (inserted by the Accident Compensation Act (Common Law and Benefits) Act 2000). See particularly, ss 134AA, 134AB. The Accident Compensation Act (Common Law and Benefits) Act 2000 amendments first appeared in Reprint 10 of the Accident Compensation Act 1985. All subsequent references to Part IV Division 8A of the Accident Compensation Act 1985 (and the sections contained therein) in these reasons are to Reprint 10.
[6]Relevant legislative provisions and a more detailed history of legislative amendments is set out at para [88] and following.

The appellant might perhaps have claimed that the disc prolapse occurred on 6 June 2000, but she did not do so. Instead she claimed that her employment between 20 October 1999 and 6 June 2000 aggravated the injury occurring in September 1999, and that the aggravation itself amounted to a serious injury within s 134AB(38). The definition of injury in s 5(1)(c) of the Act, as it applied in the circumstances of this case,[7] defined an injury as including:

The recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration exacerbation or deterioration.[8]

[7]Note that s 134AB(2) and the definition of injury in s 5(1) were amended by the Accident Compensation and Transport Accidents Acts (Amendment) Act 2003: see paragraphs [159]-[161] of Robson AJA’s judgment below. Those amendments were made after the appellant suffered the injury the subject of this appeal and are thus not presently relevant.

[8]See also s 134AB(2).

The respondent’s case was that the appellant’s injury occurred on 26 September 1999, so that she not could obtain leave to commence proceedings to recover common law damages.[9] Further, even if the injury arose in the course of her employment after the relevant date, it was not a serious injury.
[9]Accident Compensation Act 1985, s 134A.

The issue raised by this appeal is therefore whether his Honour should have decided that the appellant suffered a compensable injury after the relevant date, being an aggravation of the September injury, to which her employment was a significant contributing factor. If that issue were resolved in the appellant’s favour the question would arise whether the aggravation injury was, in itself, a serious injury.

The evidence
Mrs Filipovski

In her affidavit of 29 May 2006 the appellant said she had injured herself between 20 October 1999 and 13 June 2000. She said she had previously injured her back at work on or about 26 September 1999, when she felt a pain in her back, left leg and shoulder after lifting a tray of glasses. She reported the incident to her supervisor. She said that she did not recall having time off work immediately after the injury, but the records of her treating general practitioner, Dr Irani, showed that she was unable to work on 30 September 1999, that she worked two hours on 1 October 1999 and was then off work until 6 October 1999. She said that she asked her employer for a transfer to lighter duties following the 26 September incident but this did not occur. She said that:

I had to take the occasional day off because of pain in my back. As best as I can remember, I took sick leave for those days off work. In addition, I had one month off work around the Christmas period in 1999/2000.

Mrs Filipovski said that she continued to work with difficulties until June 2000 because she needed the money and hoped the pain would improve. She then said that:

Some time in May 2000 I noticed my condition was becoming worse. On or about 6 June 2000 I woke up and felt severe pain in my lower back and left leg. I also felt numbness in my left leg.

In her evidence-in-chief, Mrs Filipovski was asked what she had meant when she described her injury as occurring on 26 September 1999 on her workers’ compensation claim form. She said that she had worked for eight months until June 2000. During that time she had back and shoulder pain on occasions and sometimes took sick leave and that she worked 48 hours a week.

In cross-examination she said that she did not recall any specific incident at work other than the one which occurred on 26 September 1999. It was put to her that she had described the 26 September 1999 incident on her claim form and she did not mention anything else that happened. She replied:

I didn’t feel that sick. I didn’t feel severe pain in the lower back as much, and I wanted to work, I liked my work. I needed the money to maintain my family. I didn’t want to stay at home, I didn’t want to be absent from work.

She was also asked about the condition of her back when she returned to work in October 1999 up until June 2000. She said she was doing her normal duties but she had pain sometimes and had taken some sick days. The pain that she experienced during that period was more severe than the pain she had had in September. In particular, it had become more severe in the latter part of May and June. She said that she did not go and see a doctor because Dr Irani had recommended that she go on Work Cover before and she did not want to do so. She had wanted to continue working but later found she could not manage.

When cross-examined about what had happened at home prior to 6 June 2000, she said that when she returned home from work the night before, her lower back was painful. It was put to her in cross-examination that she had never previously referred to suffering pain on the evening of 5 June 2000 and had not told any of the doctors that this was the case. She said ‘no-one asked me how I was on the 5th, they were all asking me about the 6th when I went to the doctor’. It was put to her that she had told a number of doctors between 29 September 1999 and June 2000 that her pain never went away. She said that she had pain from time to time throughout that period.

Treating practitioners
Dr Roshan Irani

Dr Irani, Mrs Filipovski’s general practitioner, provided a report dated 11 August 2000. Dr Irani said that Mrs Filipovski presented for treatment on 4 October 1999 with back pains, which had started on 29 September 1999. She prescribed analgesics and anti inflammatory tablets and the appellant resumed work on 6 October 1999. She said that the appellant had returned again on 6 June 2000 with back pains, left leg pain, left hip pain, left shoulder pain and neck pain. She referred to the results of an MRI showing a mild broad-based disc bulge at L5/S1. She said that Mrs Filipovski was still suffering strong back pains and stiffness, and was unfit for work, although she was anxious to return on light duties.

Mr Gul Keng

Mrs Filipovski was referred to Mr Gul Keng, an orthopaedic surgeon, by Dr Irani. He first saw her on 26 June 2000. The appellant gave a history of experiencing pain in the region of her lower back when lifting trays on 26 September 1999. Mr Keng said:

She said that she was given some medication but the medication did not help to improve her condition, her condition gradually deteriorated and felt pain is worse. [sic]

She left work on 7 June 2000. Mr Keng’s diagnosis was that the appellant had a broad-based disc protrusion compressing on the nerve root. He attributed her condition to a work injury. Mr Keng felt that she would further improve but that she had a permanent residual disability of 30 percent.
Dr A S Ansari

Dr A S Ansari provided a number of reports about his treatment of Mrs Filipovski, whom he first saw on 10 July 2001. She gave him a history that her pain started on 29 September 1999, and said that since that injury she had occasionally taken sick leave from work. She woke up with a ‘severe left thigh back pain’ on 7 June 2000. He said that Filipovski had sustained an L5/S1 disc rupture and that surgery was the only option left to improve her back condition. His prognosis as to her future condition was ‘guarded’. He said:

I do not believe this patient will ever get back to her normal job in the future. In fact, considering her physical state at present I do not believe this patient will get back to any gainful employment in the future … She has no capacity for work.

In his second report, Dr Ansari said that:

The patient’s incapacity for employment at present is wholly and totally related to the injuries she sustained on the 29th of September 1999.
The injuries she sustained [are] consistent with the history given by the patient and certainly with the circumstances of the employment described by the patient.

In his report of 1 December 2003 Dr Ansari said that Mrs Filipovski continued to suffer pain in her back and left leg, following the L5/S1 spinal decompression and fusion operation on 8 May 2003. His subsequent reports said that the appellant’s condition had not improved, and that she had a permanent disability and had no capacity for her pre-injury duties as a cleaner.

Mr Richard Pease

Mr Richard Pease, an orthopaedic surgeon, first saw Mrs Filipovski on 5 June 2001 on a referral from her general practitioner. The history that she gave him was that she had had ‘trouble with her back’ for a period of one and a half years, which she ascribed to lifting at work and pushing trolleys in the Qantas Club. Mr Pease’s reference to the appellant suffering pain for one and a half years approximately corresponded with the injury date of 26 September 1999. Mrs Filipovski told him that her pain appeared to have occurred when she lifted a tray of glasses. She took some days off work but ‘she didn’t want to fill in a work care form’. She returned to work with continuing back pain and had some time off. Around 7 June 2000 she woke in the morning with ‘a terrible pain in the left leg’. His opinion was that Mrs Filipovski had ‘injured a pre-existingly degenerate disc at L5/S1 during the course of her employment’.

Mr D M Jensen

Mr D M Jensen, a neurosurgeon, saw Mrs Filipovski on 6 November 2000, on a referral from Dr Irani. He took a similar history to that taken by Mr Pease. He said that after 26 October 1999 (which is presumably a reference to 26 September 1999) ‘her pain continued, and by June 2000 she had developed left sciatica’. He considered that her symptoms and signs were consistent with a left L5/S1 disc prolapse, for which conservative treatment had not been helpful. He said that in his view the appellant’s injury was consistent with her description of the occurrence on 26 September 1999.

Mr Loui Petrevkski, Dr Stella Kwong, Dr Leonard Rose, and Dr David de la Harpe

Mrs Filipovski was also treated by a physiotherapist, Mr Loui Petrevski,[10] by Dr Stella Kwong, a psychiatrist who saw her before and after the spinal fusion operation, by Dr Leonard Rose of the Melbourne Pain Management Clinic and by Dr David de la Harpe. All of these doctors expressed the view that Mrs Filipovski was significantly disabled as a result of her back injury, despite the technical success of the fusion operation, and that she was unlikely ever to be able to return to her work as a cleaner. The histories that the appellant gave to Mr Petrovski and Dr Rose referred to the injury on 26 September 1999 after which she continued to work, despite some pain, and to the development of very severe pain in June 2000. Dr Leonard Rose also referred to the history Mrs Filipovski gave to Dr Holwill, that after October 1999:[11]

She then kept working for a period of nine months as she thought her injury was muscular. She would often experience pain which would radiate into the left leg posteriorly and laterally to the knee.
[10]Mr Petrevski first saw Mrs Filipovski on 13 June 2000.
[11]Presumably this should be September 1999.

Dr Kwong and Dr De La Harpe thought she had developed a chronic pain disorder.
Mr Brian Barrett

I now turn to the evidence of Mr Barrett, the orthopaedic surgeon who performed the spinal fusion operation. As I explain below, his Honour was critical of Mr Barrett’s evidence.

Mr Barrett first examined Mrs Filipovski on 5 September 2001 at the request of her general practitioner, Dr Ansari. He took a history from her which indicated that she first complained of low back pain on 26 September 1999 after she had lifted trays and glasses. She took some days off work, and then kept working six days each week. The lower back pain increased and she had occasional days off work as sick leave. The report referred to the incident on the morning of June 2000 when she awoke with severe pain in her left thigh and could not get up. He expressed the opinion that the appellant:

… sustained a severe and painful rupture involving the lower lumbar disc at the L5-S1 level, following a lifting incident in the course of employment on 26/9/1999. This was aggravated by continuing with her lifting activities until her symptoms became very severe on 7/6/2000 following that she has remained off work, complaining of low back pain and left sciatica. Her story of the incident, her symptoms, her clinical orthopaedic examination and her radiological investigations are all consistent with her symptoms and reveal a large and left sided L5-S1 lumbar disc prolapse.

He further commented that ‘Mrs Filipovski’s incapacity for employment is in whole due to her lumbar spinal injury sustained on 26/9/1999’.

In his report dated 20 December 2002 he said that various CT and MRI scans:

… clearly confirm that there was no positive evidence of any lumbar disc prolapse in the lower lumbar spine at 29/6/93 and very positive and clear evidence of a mainly left sided L5-S1 lumbar disc prolapse in radiological investigations of 22/6/2000, 4/7/2000 and 3/8/2001.
The significant differences between the first and second CT scans [indicate] that Mrs Filipovski [had] suffered a disc prolapse on 26/9/99 and not earlier than that.

He said that Mrs Filipovski was not fit for any form of employment between 17 January and 18 October 2002 and into the foreseeable future. He also said that ‘any significant lumbar disc disruption ... has no significant power of healing or repair and so it is likely that her symptoms will continue into the foreseeable future’.

Mr Barrett’s report to the appellant’s solicitors dated 8 October 2003 said that the disc rupture caused on 26 September 1999 was ‘subsequently aggravated by continuing with her lifting activities’ and became very severe. In his report of 17 March 2005, he expressed the view that a soundly healed fusion was not normally a bar to returning to lighter form of employment. He considered that the deterioration in the appellant’s symptoms was caused by her depressive condition. In response to a later letter from the appellant’s solicitors asking whether Mrs Filipovski’s employment between 20 October 1999 and June 2000 had aggravated her condition, and if so about the extent of that aggravation, Mr Barrett said the following:

The lumbar intervertebral disc consists of two differing types of structures, firstly a fluid containing soft and oval shaped central nucleus, surrounded by a strong fibrous elastic and interwoven outer casing or annulus of considerable thickness and forming the bulk of the disc itself. A disc rupture occurs because this liquid containing nucleus is forced, usually backwards, through some layers of this outer annulus, weakening the strength of the annulus in this direction and producing some low backache only. Because the disc is in a ‘sealed unit’ no repair process can take place as the body’s repair processes cannot enter the disc so each rupture of these annular fibres does not heal, but the backache from the initial commencement of the rupture may well settle down.
Following the next bending and lifting incident the weakened portion of the annulus can suffer an additional progression of the rupture and more backache can be produced, each lifting or bending incident causing some progression of the rupture of these annular fibres. The backache becomes more troublesome and a further incident may well increase the split or rupture in the annular fibres to the point where the remaining intact fibres will bulge backwards when the disc is loaded by the nucleus pushing backwards and suddenly this bulging disc may contact and irritate or compress the passing nerve roots to the lower limb and for the first time the backache is accompanied by sciatica. Such an incident occurred with Mrs Filipovski on 7/6/2000 when she awoke with severe left sciatica.
Therefore, Mrs Filipovski’s condition prior to 20/10/1999 was that of a minor split in her L5-S1 lumbar disc, enough to produce some lower backache so that she notified her employer but of a minor enough nature to allow her to continue with her full and usual cleaning work.
From Mrs Filipovski’s history of the events surrounding her back injury her employment from 20/10/99 up until 7/6/2000 certainly aggravated, accelerated and exacerbated her lumbar disc rupture to the point where the disc rupture had progressed almost through the casing of the annulus so that the remaining annulus was sufficiently weakened and thinned to start irritating the cauda equina nerve roots passing down to the left behind this disc bulge and so for the first time she developed severe left sciatica on 7/6/2000.
I consider the employment beyond 20 October 1999 seriously aggravated, accelerated and exacerbated her back condition and had she ceased work or even been able to continue with light and limited work beyond September 1999 this aggravation, acceleration and exacerbation of her back condition may well not have occurred and subsequent treatment including operation may not have been necessary.
… I consider that the post 20/10/1999 work produced the additional advancement of her lumbar spinal injury and contributed to Mrs Filipovski’s current condition.
I consider the condition of Mrs Filipovski’s lumbar spine prior to 20/10/99 may have resolved or considerably improved, had she not continued with her normal and heavy cleaning work, by either ceasing work or continuing light and limited work without bending and heavy lifting situations beyond that date.
The consequences [of] her back condition after the period of employment from 20/10/99 to 6/6/2000 were profound, produced increased back pain and then left sciatica, requiring her to go off work and ultimately after appropriate investigation and considerable delay, required operative fusion.

The respondents also relied on letters between Mr Barrett and the appellant’s treating doctor, Dr Ansari, reporting on examinations of Mrs Filipovski after her fusion operation. On 12 October 2004 Mr Barrett said that the appellant had had a successful fusion operation, that her discs above the level of fusion were normal and that he could offer her no further orthopaedic treatment. In a letter to Dr Ansari dated 9 March 2006, Mr Barrett said that he could not detect any clear-cut physical cause for her multiple symptoms and that she was ‘long on symptoms but very short on clinical signs’.

In his evidence-in-chief, Mr Barrett said he was surprised the appellant continued to have symptoms after the fusion operation but that this could be due to the fact that there was a long delay between the injury and the treatment.

In cross-examination it was put to Mr Barrett that he had said in his opinions of 26 July 2002, 8 October 2003 and 17 March 2005 that Mrs Filipovski’s injury was caused by the incident on 26 September 1999 and that he had only changed his opinion after being told by the appellant’s solicitors that she could only claim damages for injuries sustained after 20 October 1999. Mr Barrett said that the solicitor’s letter made it clear that it was necessary to explain the nature of lumbar disc injuries. A lumbar disc injury was not like breaking a leg. It was a progressive situation and the solicitors required some kind of orthopaedic explanation.

Mr Barrett conceded that he had not seen the patient until some years after the period on which he had been asked to comment and that he did not know that Mrs Filipovski did not require physiotherapy or treatment between 6 October 1999 and 6 June 2000. He denied he had made ‘a complete about face’ as counsel alleged and said that the aggravation was consistent with the normal process of disc tearing. It was put to him that further damage must have occurred on 6 June 2000 and he responded: ‘No, but you’re missing out the fact that she went back to this heavy work in the interim. Those are the episodes that have gradually worsened this problem.’

Appellant’s experts
Mr Geoffrey Klug

Mr Geoffrey Klug examined Mrs Filipovski at the request of her solicitors on 16 March 2005. His report also referred to a history in which the appellant injured her back on 26 September 1999 and thereafter suffered intermittent back pain. She asked that she be given light duties but these were not provided and a substantial aggravation occurred on 7 June 2000 when she awoke with a severe pain in her leg. He said:

The evidence would suggest that as a result of the incident occurring during her employment with the Qantas Club she did sustain a substantial injury to her low back. I feel it is most probable that as a result of the incident described she did sustain a substantial injury to the lumbosacral intervertebral disc and that such an injury was responsible for back pain, left sided sciatica and impairment of neurologic function in the left lower limb.

Mr Klug said that given the soundness of the fusion it was not clear why Mrs Filipovski had not had a more substantial improvement but that she was genuinely and substantially disabled. He said that psychological factors were possibly influencing her presentation, but that he saw no reason to doubt that she continued to suffer from genuine pain of an extent sufficient to interfere significantly with her day to day activities.

Mr John O’Brien

Mr John O’Brien, an orthopaedic surgeon, also provided a medico-legal report to the appellant’s solicitors on 25 July 2007. The history given to him by the appellant was that she suffered low back pain when she was doing heavy lifting during an afternoon shift in September 1999. She continued to work six shifts per week over the next eight months, during which time she was only very occasionally aware of low back pain, which, in early 2000 became associated with some pain radiating into the left leg. This resulted in her taking sick leave and the odd day off work. She experienced severe pain in her left leg on 7 June 2000. Based on that history, and on other medical reports provided to him Mr O’Brien said that:

… the patient probably had some mild discogenic pain associated with the September 1999 work incident. The normal duties following October 1999 would appear to have resulted in the patient developing a frank lumbosacral left-side disc prolapse, for which a number of opinions apparently suggested surgery. Thus the pathology of L5/S1 disc herniation was caused by employment following October 1999 and indeed resulted in her inability to continue work. From this history I would certainly consider that employment was a significant contributing factor to the disc herniation and I would suggest the problem has progressed to the current clinical situation.

Mr O’Brien said that Mrs Filipovski presented with moderate illness behaviour influencing the described disability. She now had well established chronic pain, was totally and permanently incapacitated and would not return to any gainful employment.

Respondent’s experts
Mr Ronald Quirk

Mr Ronald Quirk, an orthopaedic surgeon, reported to GIO Australia on his examination of Mrs Filipovski on 17 April 2001. He gave the date of her accident as 26 September 1999, noting that she was initially off work for two days, and she had occasional periods of sick leave until 6 June 2000. Mr Quirk said that ‘it is not unreasonable to suspect the patient has suffered aggravation of a pre-existing disc prolapse’. He said the appellant was unfit for most forms of work and that suitable employment would mean employment which involved the lifting of weights no greater than three kilograms on an intermittent basis, which did not require her to bend, twist or stretch her back. He considered that it was unlikely that surgery would be required.

Mr Peter Battlay

Mr Peter Battlay, an orthopaedic surgeon, first saw Mrs Filipovski on 1 March 2002 and provided two reports to the respondent. In his 4 March 2002 report he expressed the view that there was a probable permanent impairment of the appellant’s back. In a report of 17 March 2005 he expressed the view that she was suffering from ‘a chronic pain syndrome type of condition’, and that she lacked current work capacity because of her psychological condition.

Dr David Chamberlain

Dr David Chamberlain, an orthopaedic surgeon, provided three reports to the respondents’ solicitors. He first saw Mrs Filipovski on 12 March 2002 and took a history that she had been injured in September 1999, returned to work for a month and awoken with acute pain on 7 June 2000. He considered she had a small tear and lumbar disc strain in September 1999 and had had a further exacerbation, without specific cause in June 2000. He said ‘employment has been a significant contributing factor by virtue of the original episode of injury’ and expressed the view that she was not able to undertake her pre-injury employment but could work reduced hours if she avoided repetitive bending and lifting was restricted to under five kilograms. He noted in his report of 19 December 2002 that there was a significant risk that spinal fusion would not improve her condition. On 21 October 2004 Dr Chamberlain said that Mrs Filipovski could not undertake her pre-injury employment, that he could not see her returning to previous employment and that he thought she was unfit for all work.

Mr David Brownbill

Mr David Brownbill, a consultant neurosurgeon, saw Mrs Filipovski on 4 April 2003. He referred to the onset of her pain in October 1999 requiring her to receive physiotherapy and to take two days off work. He said that she told him she had then worked for nine months taking occasional days off work because of lower back pain but had not suffered any specific accident or injury since October 1999.

At the time of his first report, which was before the fusion operation, he considered her as having a 16 percent total percentage impairment of the whole person and said that her work activities were a significant contributing factor.

In his report of 31 March 2005 he expressed the view that the appellant’s demeanour indicated abnormal illness behaviour. He said that the weakness of the left arm and leg and the global reduction of sensation of the left arm and leg which the appellant reported represented a non-organic component. He expressed a similar view in his report of 1 February 2007.

Mr Brownbill said that from a neurosurgical point of view she would be capable of attempting a return to work plan that avoided heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting but that her overall clinical condition including the emotional component, would probably prevent her from returning to any employment.

Mr Michael Dooley

Mr Michael Dooley, an orthopaedic surgeon, provided a report to the respondent’s solicitors, after examining Mrs Filipovski on 4 November 2004. She gave him a similar history to the history as she had given to other doctors. He said that

Mrs [Filipovski] suffers from degenerative disc disease of the lumbar spine. This is a naturally occurring and age related degenerative condition. Mrs [Filipovski] described the onset of lumbar spine pain during the course of her work as a domestic attendant with Qantas. Based on the history presented to me, I believe that [it] is probable that Mrs Filipovski aggravated her pre-existing degenerative disc disease of the lumbar spine during the course of her work. In June of 2000 she awoke with severe left sciatica relating to a lumbosacral disc prolapse. Disc prolapses occur on the background of degenerating discs. The prolapse itself necessarily involves some aggravation of the underlying degenerative disc disease. The sciatica pain relates both to mechanical nerve root compression and also to inflammation of the nerve root. In ordinary clinical practice, the majority of disc prolapses occur spontaneously as part of the natural evolution of underlying degenerative disc disease. They may occur as a consequence of a lifting, bending or twisting manoeuvre. While certainly it is feasible that Mrs [Filipovski’s] disc prolapse has occurred spontaneously, it is also possible that her disc prolapse occurred in part as a consequence of her work as outlined above. Mrs Filipovski said that she saw several treating surgeons. She was told that surgery could help her leg pain but not back pain. She said that she saw another surgeon who advised her that surgical intervention could relieve both her lumbar spine and also her lower limb pain.

Mr Dooley considered that from the orthopaedic viewpoint the appellant’s condition had stabilised but that she was suffering from a chronic pain syndrome.

Vocational assessment report

A vocational assessment conducted on 5 April 2005 said that, in theory, the appellant had some work capacity in areas such as light retail sales, take-away food sales and light cleaning work. The assessor considered that the appellant exhibited inappropriate pain behaviour, was not altogether genuine in her presentation and was resistant to returning to work.

The medical reports from psychiatrists, Dr David Weissman and Dr Leon Fail, are not relevant to this appeal, as Mrs Filipovski abandoned the application for leave to take proceedings to recover damages for the alleged psychiatric injury.[12]
[12]No reference is made to medical reports relating to the 1991 car accident, which support the view that Mrs Filipovski had recovered from its effects before returning to work.

The reasons for judgment

As I have said, the appellant’s case was that she was injured in the course of her employment, after the black hole period ended. The respondents denied that she suffered a compensable injury on or after 20 October 1999 and claimed that her back problems were the consequences of the September injury.

His Honour said that the applicant bore the onus of:

·proving that she had suffered a compensable injury on or after the relevant date; and
·that the compensable injury was a serious injury as defined by the Act.[13]

[13]Reasons, [11], [17].

He said that because the applicant was relying on the aggravation of the September injury, the Court was required to consider what the evidence disclosed about her pre-existing condition,[14] and then:

An analysis must be made of the extent of impairment of a body function before and after the relevant injury, and the additional impairment must involve serious long-term impairment of a body function.[15]

[14]Petkovski v Galletti [1994] 1 VR 436; Grech v Orica Australia Pty Ltd (2006) 14 VR 602, 614.

[15]Reasons, [11] and see Petkovski v Galletti [1994] 1 VR 436; Grech v Orica Australia Pty Ltd (2006) 14 VR 602, 614.

His Honour referred to the affidavit evidence of the plaintiff and her evidence in cross-examination and said that:

Based on that evidence, some things seem certain. The plaintiff continued to work during the eight months after she returned to work in early October 1999 and 6 June 2000, with an unspecified number of days off work sick. However, during the eight months’ period [sic] in question, after 20 October 1999, she did not consult her doctor in respect of her low back, nor was there any evidence that she was taking medication for her low-back injury until she consulted Dr Irani again on 6 June 2000.
Having regard to the plaintiff’s own evidence, her affidavits, and the numerous histories that she has given examining doctors, I am satisfied that her belated reference to leaving work with a painful back on 5 June 2000 was an invention and was not the truth. I am satisfied that the plaintiff was aware of the significance of dates in respect of her serious injury application and this awareness adversely affected her credibility.[16]

[16]Reasons, [31]-[32].

His Honour then referred to a summary of the histories given by Mrs Filipovski in claim forms and to various examining doctors. All of these histories referred to the incident of 26 September 1999. This summary was as follows:[17]

[17]Ibid [33].

Defendant’s Documents:

Document Page No. History

Claim Form

2 DCB

Date of injury: 26.9.1999 – developed over 8 months

Employer Claim Form 3 DCB Reported injury 26.9.1999

Rustomjee report 179 DCB ‘No problems till the 26.9.99 when she was lifting a tray of heavy glasses.’ ‘She worked at the Qantas Club for about 3 years without having any pain in her back till the incident on 26.9.99.’

Rustomjee report 190 DCB ‘This lady’s injuries in my opinion occurred gradually over the four years of work, but ended in a disc prolapse at L5/S1 when she lifted a heavy tray of glasses on 26.9.99.’

Quirk report 194 DCB ‘Gives the date of her accident as 26.9.99.’

Battlay report
Battlay report 201DCB
208 & 216 DCB
‘She injured her back on 26.9.99’

Chamberlain report 218 DCB ‘On 26.9.99 she was lifting glasses in the wash-up area and developed pain in both her lower back and left shoulder’
‘Mrs Filipovski developed L rotator cuff strain and small tear and lumbar disc strain in September 1999 …’

Brownbill report 236 DCB ‘No ongoing pain and she was well until October 1999.’

Dooley report 260 DCB ‘… around September 1999 … lifting trays of glasses and washing them. She noted soreness of L shoulder and pain in lower lumbar region.’

IWCC report 270 DCB ‘She reported sustaining a back and shoulder injury on 26.9.99 after a gradual onset of symptoms over the course of the day.’

AVL report 278 ‘Stated her date of injury is 26.9.99.’

Lifting register 305 DCB Reports injury on 26.9.99.

Plaintiff’s Documents:

Dr Roshan Irani 26 PCB ‘She first presented on 4.10.99 with back pains which had started on 26.9.99.’

Keng report 28 PCB ‘The accident happened on 26.9.99.’

Dr Ansari report 32 PCB ‘She states that her pain started on 29.9.99 whilst lifting a lot of crates of glasses for washing in the Qantas Club.’

Dr Ansari report 42 PCB ‘the patient’s incapacity for employment at present is wholly and totally related to the injuries she sustained on 29.9.99’.

Mr Brian Barrett report
55 PCB
‘when she first complained of low back pain on 26.9.99’.

57 PCB ‘sustained a severe and painful rupture involving the lower lumbar disc at the L5-S1 level, following a lifting incident in the course of employment on 26.9.99.’

Kwong report 86 PCB ‘Her mental illness is secondary to her experience of pain and disabilities caused by an injury at her work on 26.9.99.’

Physio report 209 PCB ‘On 29.6.99 while bending and picking up glasses in the kitchen, she felt a sharp stabbing pain in her lower back which also radiated into her lower limbs.’

Klug report 137 PCB ‘On 26.9.99 there was a very substantial aggravation of her condition.’

Weissman report 177 PCB ‘she first developed pain in her lower back and left shoulder region on or about 26.9.99.’

Stockman report ERS ‘In September (1999) she developed LBP whilst lifting trays of glasses but the symptoms did not come on suddenly.’

Weissman report 177 PCB ‘She first developed pain in her lower back and left shoulder region on or about 26.9.99.’

Letter to Jensen from solicitors for the plaintiff ERS ‘We act on behalf of VF in relation to the injuries she sustained in the course of employment with Ogemi on 26.9.99.’

His Honour then discussed the evidence of Mrs Filipovski’s treating surgeon, Mr Barrett, and the evidence of Mr O’Brien, on which she relied in support of her claim that her work after 20 October 1999 had aggravated her September injury and that the aggravation itself amounted to a serious injury.

His Honour noted that in his report of 26 July 2002, Mr Barrett referred to the fact that Mrs Filipovski had ‘sustained a severe and painful rupture involving the lower lumbar disc at the L5-S1 level following a lifting incident in the course of her employment on 26.9.99’.[18] He then noted that after receiving a letter from the plaintiff’s solicitors dated 7 March 2006, Mr Barrett wrote another report saying that:

Mrs Filipovski’s condition prior to 20 October 1999 was that of a minor split in her L5-S1 lumbar disc, enough to produce some lower backache so that she notified her employer but of a minor enough nature to allow her to continue with her full and usual cleaning work.[19]

[18]Reasons, [35].

[19]Ibid [36].

His Honour said he considered this to be a ‘dramatic shift’ in Mr Barrett’s evidence, which should be attributed to his attempt to assist the plaintiff by testifying that her injury was caused by her work after the black hole period. His Honour accepted Mr Barrett’s original opinion, which was that the plaintiff suffered a severe discal injury on 26 September 1999.

His Honour also rejected Mr O’Brien’s opinion that Mrs Filipovski had had mild discogenic pain after the September incident and that the disc herniation was caused by her employment following October 1999. He commented that this view was ‘contrary to the general thrust of the medical evidence’. The judge noted that Mr O’Brien made no mention of the onset of pain in the plaintiff’s low back at her home on 6 June 2000 or of the significance of this event.

His Honour concluded that he was not satisfied that the plaintiff suffered a compensable injury on or after 20 October 1999. He said that any pain or loss of function she had experienced after that date was a consequence of the injury suffered on 26 September 1999.

Having reached that conclusion, it was unnecessary for his Honour to decide whether the appellant’s injury was serious.

The application to admit new evidence

As I have said, the appellant now seeks leave to introduce new evidence under s 134AD of the Act, which provides that:

On the hearing of an appeal to the Court of Appeal from a decision made on an application under section 134AB(16)(b), the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court.

In [75]-[78] below I conclude that the requirements imposed on the Court by s 134AD of the Act to ‘decide for itself whether the injury is a serious injury’ do not apply to this appeal. It therefore appears that the reference to the admission of ‘any other evidence’ in s 134AD is not applicable to this appeal and that the matter is governed solely by the principles relating to admission of further evidence on questions of fact under Rule 64.22(3) under the Supreme Court (General Civil Procedure) Rules 2005. However since s 134AD also permits admission of other evidence under the rules of court, the legislative basis for such admission has no practical significance in determining this application.

The appellant seeks admission of a medico-legal report of Dr Ralph Poppenbeek, dated 19 July 2000.[20] Dr Poppenbeek reported that, after the September injury, Mrs Filipovski was given a few days off work, and her condition improved. She then continued full duties ‘with continuing back and shoulder girdle pain’. Mrs Filipovski told him that her low back pain worsened in about May 2000 and she then suffered acute, severe pain in her thigh and back and mild low back ache on 6 June 2000.
[20]The report was addressed to AMP Workers Compensation, which was presumably the first respondent’s insurer in 1999.

The appellant’s counsel contended that his Honour’s adverse credibility finding was not confined to the appellant’s vive voce evidence that she left work with a painful back on 5 June 2000, but related more generally to her credibility. The history taken by Dr Poppenbeek was almost identical to the evidence in Mrs Filipovski’s affidavit of 29 May 2006 and to the evidence she gave at the hearing. Counsel submitted that Dr Poppenbeek’s report was highly significant, because it was the first history taken by any doctor other than the appellant’s treating doctor, after she lodged her claim for weekly payments. It was said that the evidence refuted the judge’s finding that the appellant’s evidence was an invention to take advantage of the legislative change which permitted the recovery of common law damages for serious injuries suffered after 20 October 1999.

It was further submitted that although Mrs Filipovski had been cross-examined as to whether she had invented her account of suffering pain on 5 June 2000, the broader significance of Dr Poppenbeek’s evidence was not apparent until his Honour delivered his reasons. His Honour’s judgment did not deal in any detail with the appellant’s evidence that her injury had got worse in May 2000 and Dr Poppenbeek’s evidence was directly relevant to this issue. Because the respondents were aware of the report before the trial, no injustice would be caused by its admission and it was in the interests of justice for the court to admit it.

Counsel for the respondents submitted that where the evidence in question relates to matters which occurred before trial the exercise of the discretion to hear further evidence on appeal is governed by the principles in Foody v Horewood.[21] In that case Chernov JA (Ashley and Neave JJA agreeing) said that:

… the court will ordinarily refuse to admit such evidence unless it is satisfied that it is sufficiently credible, that it could not have been obtained with reasonable diligence for use at the trial and that there is a high probability that the result would have been different had it been received at trial. Such requirements, it was said, represent the reconciliation of the interests of justice and the public interest in finality of litigation.[22]

[21](2007) 62 ACSR 576.

[22]Ibid 598; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, 141, (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ). See also Clark v Stingel [2007] VSCA 292.

Counsel for the respondent submitted that Dr Poppenbeek’s report was available to the appellant before the trial and it was unlikely that the result would have been different if it had been admitted. He submitted that his Honour’s finding of recent invention was irrelevant to Mrs Filipovski’s evidence that she had been in pain on 5 June 2000, because the report did not say anything about events on 5 June 2000.

Even if his Honour’s credibility findings related more broadly to the appellant’s claim to have suffered an aggravation of her September injury after October 1999, the relevance of Dr Poppenbeek’s report would have been obvious to Mrs Filipovski’s counsel during the trial. Further, the history in Dr Poppenbeek’s report was dependent on the history that the appellant gave him, and it was unlikely that his Honour’s decision would have been different if the report had been in evidence.

Conclusion on the application to admit new evidence

In my opinion, the effect of his Honour’s finding that ‘the plaintiff was aware of the significance of dates in respect of the serious injury and this awareness adversely affected her credibility’ was not confined to Mrs Filipovski’s evidence that she was in pain after work on 5 June 2000, but reflected more generally on her credibility.

I consider that this application should be refused. It must have been obvious to the appellant’s counsel that the success of her s 134AB application was largely dependent on the history which she gave to the medical experts. Dr Poppenbeek’s report was available to the appellant’s legal advisers before the trial. Although the respondents were aware of the contents of the report before the hearing of the application, the public interest in finality of litigation supports the view that this application should be refused. I am fortified in that view because I do not consider that it would have altered the outcome of Mrs Filipovski’s appeal.

In order to explain why this is the case, I now turn to the substantive appeal.

Grounds of appeal

The appellant initially relied on thirteen grounds of appeal. Four grounds were later abandoned. The remaining grounds of appeal are as follows:

1.The learned County Court Judge failed to give adequate or sufficient reasons.
2.The learned County Court Judge failed to give adequate or sufficient reasons for rejecting the appellant’s evidence.
3.The learned County Court Judge failed to deal with the plaintiff’s evidence that from the latter part of May to 5th June 2000 the level of pain in her low back became severe.
4.The learned County Court Judge failed to give adequate or sufficient reasons for rejecting the evidence, including the vive voce evidence of Mr Brian Barrett, the appellant’s treating surgeon.
5.The learned County Court Judge failed to give adequate consideration to or adequate reasons for rejecting the opinion of Mr John O’Brien, a medico-legal witness.
6.The learned County Court Judge failed to give adequate consideration to the various medical opinions to the effect that the appellant’s injury suffered on 26th September 1999 was aggravated by the work that she did on and after 20th October 1999.
7.The learned County Court Judge failed to give adequate reasons for rejecting the medical evidence that the injury suffered by the appellant on 26th September 1999 was aggravated by the work that she did on and after 20th October 1999.
…
10.The learned County Court Judge’s Reasons were inadequate because they made no mention of and gave no consideration to the fact that the appellant’s WorkCover claim form signed 15th June 2000 referred to the eight months of work that she did after suffering an injury on the 26th September 1999 as relevant to her claim, made no mention of and gave no consideration to the appellant’s evidence as to the nature and extent of her work duties on and after 20th October 1999 (which was uncontested); made no reference to and gave no consideration to the appellant’s evidence that from the latter part of May to 5th or 6th June 2000 she was experiencing increased low back pain which was severe and which was linked to her continued work. Furthermore, if he rejected the appellant’s evidence of increased pain from the latter part of May until 5th or 6th June 2000 he did not say so and gave no reasons for doing so.
11.The learned County Court Judge erred in not considering the nature and extent of the work which the appellant performed on and after the 20th October 1999 in order to determine whether that work aggravated her back condition and if it did, the nature and extent of that aggravation.

In essence these grounds complain that:

· his Honour’s reasons for concluding that Mrs Filipovski did not suffer a compensable injury on or after the relevant date were inadequate; and

· his Honour disregarded or gave inadequate weight to evidence (particularly that of Mr Barrett) supporting the appellant’s claim that she suffered a compensable injury (in the nature of an aggravation injury) on or after the relevant date.

The nature of an appeal against a finding of non-compensability

Counsel’s oral submissions in this appeal were made on the basis that the decision of the High Court in Dwyer v Calco Timbers Pty Ltd[23] applied, so that this Court was required ‘to decide for itself’ whether the application should be granted.[24]
[23](2008) 234 CLR 124, 135-136. See also s 134AD.
[24]Under s 134AD.

After the appeal was heard the Court considered that a question arose as to whether an appeal against a decision that the plaintiff did not suffer a compensable injury on or after 20 October 1999, was governed by s 134AD. Counsel were invited to make written submissions on that issue.

Counsel for the respondent submitted that the requirement in s 134AD that:

… the Court of Appeal shall decide for itself whether the injury is a serious injury on the evidence and other material before the judge who heard the application and on any other evidence which the Court of Appeal may receive under any other Act or rules of court

applies only to the question whether the injury is a serious one, and not to the other requirements in ss 134AB(1) and (2) which must be satisfied before an injured worker can recover common law damages. These provisions are set out in [91] below.

Counsel submitted that s 134AB(1) identifies the features of an injury which bring it within s 134AB – namely that it is an injury which is compensable because it arises out of, or in the course of, or due to the nature of employment on or after 20 October 1999, in circumstances where an award of damages for non-pecuniary and/or pecuniary loss, is permitted by and in accordance with the section. Section 134AB(2) identifies an additional requirement for recovery of damages, which is that the injury is a ‘serious injury’. It was submitted that s 134AD deals only with an appeal against a ‘serious injury’ finding.

Counsel submitted that the purpose of s 134AD is to ensure consistency in decision-making as to whether an injury is serious. Section 134AD requires this Court to measure a claim that an injury is serious against other injuries which have been held to amount to serious injuries and to ‘decide for itself’ whether the particular injury falls within that range of injuries. By contrast, a finding under s 134AB(1) as to whether a claimant should be granted leave to seek common law damages, because the injury arose out, or in the course of, or due to the nature of employment on or after 20 October 1999,[25] depends on the particular facts of the case, so that the objective of consistency in decision-making is irrelevant.
[25]As qualified by s 134AB(2).

In support of that submission counsel for the respondent relied upon the distinction drawn in Barwon Spinners Pty LtdvPodolak[26] and in Grech v Orica Australia Pty Ltd,[27] between a finding that an injury is ‘compensable’ and an assessment as to whether an injury is serious. Accordingly it was submitted that an appeal against a decision that an injury is not compensable, because it does not satisfy the requirements in s 134AB(1), is an appeal under s 74(3) of the County Court Act, to which Dwyer v Calco Timbers Pty Ltd[28] does not apply.
[26](2005) 14 VR 622 (‘Barwon Spinners’).
[27](2006) 14 VR 602, 616 (Ashley JA), 604 (Chernov JJA).
[28](2008) 234 CLR 124.

Counsel for the appellant submitted that in order to decide whether the appellant should be granted leave to seek common law damages for her injury, the Court must decide whether the injury occurred on or after 20 October 1999, and, if so, whether it had serious injury consequences. Counsel contended that the issue of when the injury occurred was inextricably linked with, and formed part of the definition of, a serious injury. Counsel submitted that in Dwyer v Calco Timbers Pty Ltd the High Court differentiated between appeals to the Court of Appeal governed by s 134AD and appeals governed by s 74 of the County Court Act. The High Court said that appeals alleging a misconstruction of the Act, a failure to give detailed reasons or a failure to observe procedural fairness were appeals under the County Court Act.

The issue of whether the injury was compensable because it occurred after 20 October 1999 did not fall within these exceptions, but went to the heart of the question whether the injury was a serious injury within the meaning of s 134AB. Such an appeal required the Court look at all the evidence on the record and decide the application for itself. The question of whether or not the injury was compensable could not be resolved without the Court also ‘deciding for itself’ whether the injury was a serious one.

In order to decide whether the requirement that the Court of Appeal ‘decide for itself’ applies to the decision as to whether an injury occurred in compensable circumstances, as well as the decision as to whether the applicant suffered a serious injury, it is necessary to briefly consider the complex legislative history of the Act.

Before 1 December 1992 a worker who suffered a work-related injury was able to recover common law damages for non-pecuniary loss, up to a ceiling specified in the legislation, in addition to receiving payments for loss of earnings under the Act. In December 1992[29] the Act was amended to limit the costs of workers’ compensation by reducing the number of persons entitled to recover damages for work-related injuries, whilst at the same time permitting seriously injured workers to apply to the Court for leave to take proceedings to recover common law damages.[30] The change in policy reflected in the December 1992 provisions made it necessary to include provisions dealing with injuries occurring before and after the date when the legislation came into operation.[31]
[29]Accident Compensation Act (WorkCover) Act 1992, inserting s 135A; Accident Compensation (Amendment) Act 1994. For a history of these changes see State of Victoria v Collins [1999] 1 VR 204; Rizza v Fluor Daniel GTI Australia Pty Ltd [1999] 1 VR 405.
[30]Alcoa of Australia Ltd v Mc Kenna [2003] VSCA 182, [16].
[31]See for example s 135B, which was inserted by the Accident Compensation (WorkCover) Act 1992, and subsequently amended by Accident Compensation (Amendment) Act 1994 to make it clear that the right of injured workers to recover damages was removed unless the injury arose before 1 December 1992 and proceedings had been commenced before 30 June 1994.

On 12 November 1997 the right of an injured worker to recover common law damages for work-related injuries, was removed by legislation introduced by the Kennett government.[32] A person who suffered a work-related injury before that date which was a ‘serious injury’ could apply to the court for leave to seek common law damages.
[32]Accident Compensation (Miscellaneous Amendment Act) 1997.

The Accident Compensation Act (Common Law and Benefits) Act 2000 inserted a new Division in the Act, which restored, to some extent, the right of workers to recover common law damages. The effect of that restoration was described in Barwon Spinners[33] as follows:

Thus, the present s 134A proscribes the recovery of damages for injury arising out of or in the course of or due to the nature of employment between 12 November 1997 and 20 October 1999. As first enacted, s 134A was open-ended. There was no cut-off date; it related in terms to injury in employment after 12 November 1997. This was the general proscription of common law proceedings enacted by the Kennett Government and which the later government was moved to qualify. It did this by adding in s 134A an end date (namely, 20 October 1999) to the proscription otherwise enacted there, at the same time enacting the new s 134AB to deal with injury linked to employment on or after 20 October 1999. In the new section, the form adopted was similar to that of the earlier proscription, in that s 134AB commenced with a like proscription on the recovery of damages arising out of or in the course of or due to the nature of employment on or after 20 October 1999, albeit that that proscription was promptly made subject to the long and complicated set of exceptions that followed, centred on serious injury. The essential pattern was thus continued without a break: in respect of injury linked to employment on and after 12 November 1997 recovery of damages at common law was proscribed, albeit that in respect of injury linked to employment on or after 20 October 1999 there were now substantial exceptions.[34]

[33](2005) 14 VR 622.

[34]Ibid 630.

One of the issues which arose in Barwon Spinners concerned the relationship between s 134AB(1) and (2). The provisions considered in that case were as follows:

(1)A worker who is, or the dependants of a worker who are or may be, entitled to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 –
(a)shall not, in proceedings in respect of the injury, recover any damages for non-pecuniary loss except –
…
(iii)… as permitted by and in accordance with this section; and

(b)shall not, in proceedings in respect of the injury recover any damages for pecuniary loss except –
…
(ii)… as permitted by and in accordance with this section.

(2)A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 20 October 1999. (Emphasis added)

In Barwon Spinners, counsel for the injured workers[35] submitted that where a worker suffered an employment-related injury arising out of employment spanning a period before and after 20 October 1999 (i.e the relevant date) a worker could rely on s 134AB(2) if the injury arose on or after that date (and was a serious injury), regardless of whether the injury was linked to employment before that date. It was submitted that although the words ‘on or after 20 October 1999’ in sub-s (1) apparently qualified the word ‘employment’, they were in fact intended to qualify the words ‘injury arising’, and all that followed. It was said that this would make sub-s (2) (which required the injury, to arise after 20 October 1999) consistent with sub-s (1).[36]
[35]Four appeals were heard at the same time, in two of which the injured worker was the respondent and in two of which the worker was the appellant.
[36]For a more detailed description of counsel’s submission see Barwon Spinners (2005) 14 VR 622, 629-30. Note also that it was contended unsuccessfully by counsel for the workers that the word ‘injury’ meant the impairment of bodily function, rather than ‘a physiological change to a body part’.

Counsel for the employers submitted that sub-s (2) permitted the recovery of damages only where sub-s (1) was satisfied (i.e. that the injury was linked to employment after the relevant date). The Court accepted that submission, commenting that counsel for the workers submissions would have the effect that:

… the tail [would] wag the dog. As we read it, s 134AB, and in particular sub-s (1), is concerned only with injury linked to employment on or after the given date, an opinion which is very plainly confirmed by both the legislative history and the larger context in which s 134AB now appears. As Buchanan, JA pointed out in Wilson v. State of Victoria[37] there is now a series of sections dealing with injury in employment at different times.

[37](2004) 10 VR 361.

The Court said that the legislative scheme of permitting recovery only for ‘injury linked to employment on or after 20 October 1999’:[38]

… would be disturbed if the date 20 October 1999 were to be detached in s 134AB from ‘employment’ and attached instead to ‘injury arising’. It seems to us very clear that while the later government was willing to reinstate a limited right to common law proceedings for work-related injury, it deliberately chose not to alter or modify the proscription on common law proceedings for injury linked to employment before 20 October 1999, preferring instead to ease the position only in respect of future employment.
With that established, sub-s (1) is seen to be dominant; it is truly a preface to all that follows in s 134AB, including sub-s (2), and the latter cannot be preferred over the former, as if in some way independent of it. It then becomes critical for a plaintiff to identify, for the purposes of sub-s (1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s 134AB applies and in particular to what specific injury the section applies (including the leave provision in sub-s (16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description ‘serious injury’ if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s 134AB addresses - first, in prohibiting a common law proceeding for damages in respect of it ‘otherwise than as permitted by and in accordance with this section’ and, secondly, in authorising such a proceeding, but only on the strict conditions laid down by the section. Those conditions begin with sub-s (2) which, though essential, is a part of the overall scheme: it does not exist independently of it.

[38](2005) 14 VR 622, 629.

In essence, the Court of Appeal’s approach in Barwon Spinners required a Court considering an application for leave under s 134AB to determine:

·whether the injury is ‘an injury arising out of or in the course of, or due to the nature of employment’, that employment being after the relevant date; and
·whether the injury linked to employment on or after the relevant date was a serious injury, as defined by s 134AB, which arose on or after the relevant date.

The two-step approach applied in Barwon Spinners was endorsed by this Court in Grech v Orica Australia Pty Ltd.[39] In that case Chernov JA said that:

In [Barwon Spinners] the Court made it plain that the plaintiff must identify the compensable injury (in respect of which he or she claims there is an entitlement to compensation under the Act) and establish that it occurred on or after 20 October 1999. Expressions used by it such as ‘referable’ or ‘linked’ to employment were alternatives to, or short hand for, the words in s 134AB(1), ‘arising out of or in the course of, or due to the nature of, employment ...’. The Court effectively said that, where the injury has its foundation in circumstances that were referable to the worker’s employment prior to the due date but continued to evolve thereafter, it was for the worker to identify, for the purposes of sub-s (1), the compensable injury in respect of which he or she claims to be entitled to compensation and establish that it is referrable to employment on or after the due date, but not before it.[40]

[39](2006) 14 VR 602.

[40]Ibid 604.

Similarly, Ashley JA said that:

Most of what the Court said in Barwon Spinners in the passages which I have cited should admit of no confusion. It is for a plaintiff to establish that he or she suffered compensable injury on or after 20 October 1999, and to sufficiently establish what that injury was. Only then will it be possible for a plaintiff to establish that such injury was, in its consequences, serious injury as defined. It is not enough that a plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.[41]

[41]Ibid 614.

The appellant’s submission that the issue of compensability is inextricably intermingled with the question whether an injury is a serious one, so that s 134AD must apply to appeals on compensability as well as to serious injury, is inconsistent with the history of the provisions which required the satisfaction of two different sets of requirements. It is also inconsistent with the two-step approach to the application of s 134AB taken in Barwon Spinners and the cases which have followed it.

Although Barwon Spinners was overruled by the High Court in Dwyer v Calco Timbers Pty Ltd,[42] so far as it dealt with the nature of an appeal under s 134AD of the Act,[43] nothing said by the High Court in that case indicates any disagreement with this Court’s view as to the two-step approach to be followed in determining whether leave should be granted to take proceedings to recover common law damages.
[42](2008) 234 CLR 124, 135-136.
[43]See Barwon Spinners, 639-645.

Kovacic v Henley Arch Pty Ltd[44] was decided after Dwyer v Calco Pty Ltd. In that case the trial judge had found that:

… the appellant had established …that he was a ‘worker’ in the extended sense [provided for by ss 5 and 8 of the Act]. But that did not avail him, because he had failed to establish that the serious injury to his back from which he admittedly suffered was caused or materially contributed to by the incident upon which he relied. Specifically, the judge was not satisfied that any such incident occurred.[45]

[44][2009] VSCA 56. On 4 September 2009 the High Court granted special leave to appeal against the decision of the Court of Appeal but it appears from the transcript of the special leave hearing that this point is not subject of the appeal: Henley Arch Pty Ltd v Kovacic [2009] HCATrans 227.

[45][2009] VSCA 56, [3] (Ashley JA).

Ashley JA (Warren CJ and Buchanan JA agreeing) said that the questions whether an appellant had established that he is a worker and whether he suffered a compensable injury as alleged, were antecedent to the question whether that injury is a serious injury within the statutory definition. He therefore held that the appeal was governed by s 74(3) of the County Court Act and the line of cases culminating in Fox v Percy[46] and CSR Ltd v Della Maddalena,[47] rather than by s 134AD.[48]
[46](2003) 214 CLR 118.
[47](2006) 224 ALR 1.
[48][2009] VSCA 56, [4].

Even if I were not constrained by previous authority to hold that s 134AD applies only to appeals against serious injury findings, I would consider that this interpretation of the section is correct, having regard to its wording and context. My reasons follow.

First, the language of s 134AD limits it to ‘the hearing of an appeal … from a decision made on an application under s 134AB(16)(b)’. Section 134AB(16)(b) prohibits the bringing of proceedings to recover damages, except where the Authority is satisfied that the injury is a serious injury and issues a certificate to that effect or the Court gives leave to do so. The sub-section refers only to the serious injury requirement which must be satisfied before leave can be granted to commence common law proceedings and not to the other requirements in s 134AB. Further, s 134AD itself requires only that the Court of Appeal ‘decide for itself’ whether the injury is a serious injury. It could have provided that that the Court of Appeal must decide for itself whether the injury satisfies the compensability requirement contained in s 134AB(1), but it did not do so. In my opinion, there is no reason to depart from a literal meaning of the legislation.

Secondly, s 134AB(19)(c) (as it then applied) explicitly differentiates between a serious injury finding (which gives rise to an issue estoppel) and other findings which must be made before a Court can give leave to take proceedings to recover common law damages. The sub-section provides that ‘no finding (other than a finding that an injury is a serious injury) … shall give rise to an issue estoppel’. This supports the view that appeals from serious injury findings are given a special status by the section (and also by s 134AD) because of the desirability of ensuring consistency in decision-making on that issue. As the High Court said in Dwyer v Calco Pty Ltd:

The provision respecting the issue estoppel both reflects the importance (by reason of its finality) of the determination in any leave application of the issue of ‘serious injury’ and highlights the requirement that the reasons of the County Court be as extensive and complete as those at a trial of the action.[49]

[49](2008) 234 CLR 124, 130.

Thirdly, ‘the intermingling’ said to exist between the issue of compensability and the serious injury issue is illusory. In cases not involving an alleged aggravation of an injury occurring before the relevant date, the question whether the injury is linked to employment after the relevant date is quite distinct from the question whether the injury is a serious one. On the facts of this case the issues appear at first glance to be intermingled, because the appellant relies on the aggravation after the relevant date of a back injury which occurred before the relevant date, which itself amounts to a serious injury. But the appellant’s submission would require s 134AD to be interpreted in the same way, regardless of whether the case involved a claim that an injury suffered before the relevant date had been aggravated by employment after that date or simply raised the question whether an admittedly serious injury in fact occurred before or after that date.

Further, even in cases involving an alleged aggravation of a pre-October 1999 injury, it is not accurate to treat the issues as intermingled. In such cases the Court must first decide whether an aggravation injury is linked to employment after the relevant date and must then decide whether the aggravation itself amounts to a serious injury.

Finally, the High Court did not explicitly limit the circumstances in which an appeal from a decision of a County Court judge on an application under s 134AB was governed by the principles governing appeals under s 74(3) of the County Court Act1958, rather than by s 134AD. On one reading the paragraph in Dwyer v Calco Pty Ltd relied upon by the appellant’s counsel simply describes the submissions made by counsel for the respondent in that case. It reads as follows:

In this Court the respondent emphasised that s 134D is not a ‘free-standing provision’, but an adjunct to the general appeal provision in s 74 of the County Court Act. Thus, not all appeals taken under s 74 to the Court of Appeal from a County Court decision on an application under para (b) of s 134AB(16) of the Compensation Act will turn wholly upon an issue as to whether the injury in question is a ‘serious injury’. A particular appeal to the Court of Appeal may turn on issues respecting misconstruction or misapplication of a relevant provision of the Compensation Act (including the obligation imposed by s 134E to give detailed reasons) and upon a failure to observe procedural fairness or upon some other alleged irregularity.[50]

[50](2008) 234 CLR 124, 135.

The High Court accepted the submission that the Court of Appeal was required to decide for itself whether an injury was a serious injury. It referred to an appeal on the basis of inadequate reasons as ‘an example’ of an appeal governed by s 74(3 ) of the County Court Act 1958. However it was unnecessary for the purposes of its decision for the High Court to specify the other grounds of appeal which would fall outside s 134AD. The conclusions expressed in Dwyer v Calco Pty Ltd are specifically limited to appeals on the question ‘whether the injury is a serious injury.’

For these reasons I consider that this is an appeal under s 74(3) of the County Court Act1958, which is governed by the principles set out in cases such as Fox v Percy[51] and CSR Ltd v Della Maddalena.[52] Thus the Court’s task is to decide the facts, as well as the law, for itself, whilst having regard to the advantages of the judge who decided the application, including any credibility findings which he or she made.[53]
[51](2003) 214 CLR 118.
[52](2006) 224 ALR 1.
[53]Warren v Coombes (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); Fox v Percy (2003) 214 CLR 118; CSR Ltd v Della Maddalena (2006) 224 ALR 1.For a very helpful discussion of these authorities, see Kelso v TatiaraMeat Co Pty Ltd (2007) 17 VR 592, 603-610 (Dodds-Streeton JA).

The inadequate reasons ground

The issue of compensability must be differentiated from the ground of appeal alleging that his Honour gave inadequate reasons for his conclusion. In Church v Echuca Regional Health,[54] Ashley JA (with whom Buchanan JA and Pagone AJA agreed) held that an appeal on the ground of inadequacy of reasons is governed by s 74(1) and (3) of the County Court Act 1958 and not by s 134AD.[55] This view was also accepted by the High Court in Dwyer v Calco Timbers Pty Ltd.[56]
[54][2008] VSCA 153.
[55]Ibid [92].
[56](2008) 234 CLR 124, 136.

(7)An MRI and CT scan of the plaintiff’s lumbar spine carried out on 4 July 2000 and 22 June 2000 respectively revealed a large and left-sided L5-S1 lumbar disc prolapse with displacement and probable compression of the left S1 nerve root.
(8)Operative treatment was finally carried out on 8 May 2003 by Mr Brian Barrett, involving decompression of L5-S1 and an inter-transverse type fusion. The operation was a success, and fitted the plaintiff for return to lighter forms of work.
(9)I am not satisfied that the plaintiff suffered compensable injury on or after 20 October 1999 with the first defendant.
(10)Any pain and loss of function the plaintiff has experienced in respect of her low back on or after 20 October 1999, is a consequence of the compensable injury the plaintiff suffered on 26 September 1999 which was aggravated in non-compensable circumstances on 6 June 2000.

In Grech v Orica Australia Pty Ltd[96] Ashley JA (with whom Buchanan and Chernov JJA agreed) held that on an application for leave under s 134AB(16)(b), the plaintiff needed to establish:

… that on or after 20 October 1999 he suffered an injury as statutorily defined, such injury arising out of or in the course of, or being due to the nature of his employment with the defendant, the consequences of that injury meeting the statutory definition of serious injury.[97]

[96](2006) 14 VR 602.

[97]Ibid 611.

Accordingly Mrs Filipovski had to establish:

(a) first, that she had suffered a compensable injury;

(b) secondly, that the injury was suffered on or after 20 October 1999;

(c) thirdly, that such injury arose in the course of or was due to the nature of, her employment; and

(d) fourthly, that such injury was a serious injury.

Mrs Filipovski claims she suffered an injury within the meaning of paragraph (c) of the definition of ‘injury’ on or after 20 October 1999. Accordingly, to make out that she suffered an injury as statutorily defined she had to establish that:

(a) she had a pre-existing injury;

(b) she sustained a further injury on or after 20 October 1999;

(c) the further injury she sustained was the recurrence, aggravation, acceleration, exacerbation or deterioration of that pre-existing injury;[98] and

(d) her employment was a significant contributing factor to the aggravation.

[98]For ease of reference I will refer to these cumulatively or individually as the context requires as the ‘aggravation’.

Further, as pointed out in Barwon Spinners Pty Ltd v Podolak,[99] she had to establish that she sustained what this court referred to as a ‘compensable injury’.[100] The court held that under the scheme established by Division 8A, s 134AB(1) ‘speaks first and foremost of the plaintiff’s having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act’.[101] The court held that s 134AB(1) ‘is truly a preface to all that follows in s 134AB, including sub-s (2), and the latter cannot be preferred over the former, as if in some way independent of it.’ They said:

It then becomes critical for a plaintiff to identify for the purposes of sub-s (1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it.[102]

[99](2005) 14 VR 622.

[100]Ibid 630.

[101]Ibid.

[102]Ibid 631.

In Grech v Orica Australia Pty Ltd,[103] Ashley JA pointed out that an injury is only compensable if it meets one of the conditions of compensability set up by the Act.[104] He referred, amongst other provisions, to s 82(1) and pointed out that under s 82(1) the relevant formula is:

… injury arising out of or in the course of any employment.[105]

[103](2006) 14 VR 602.

[104]Ibid 615.

[105]Ibid.

As it is, the relevant definition of injury the appellant relies on requires her to establish that her employment was a significant contributing factor to the aggravation.

Accordingly, Mrs Filipovski must identify and establish the specific injury in respect of which she wishes to recover damages. In Grech v Orica Australia Pty Ltd,[106] Ashley JA said:

It is for the plaintiff to establish that he or she suffered compensable injury on or after 20 October 1999, and to sufficiently establish what that injury was. Only then will it be possible for a plaintiff to establish that such injury was, in its consequences, serious injury as defined. It is not enough that a plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.[107]

See also Dalton v Dandenong Scaffolding Hire Co Pty Ltd.[108]

[106]Ibid.

[107]Ibid 614.

[108][2003] VSCA 183, [38].

In Grech v Orica Australia Pty Ltd,[109] Chernov JA said the following, in referring to the decision in Barwon Spinners Pty Ltd v Podolak:[110]

The court effectively said that, where the injury has its foundation in circumstances that were referable to the worker’s employment prior to the due date but continued to evolve thereafter, it was for the worker to identify, for the purposes of sub-s (1), the compensable injury in respect of which he or she claims to be entitled to compensation and establish that it is referable to employment on or after the due date, but not before it. The court did not say, however, that merely because the injury had its foundation in the work environment prior to the due date and has been ongoing it necessarily means that the plaintiff was ‘out of court’ for the purposes of sub-s (1). Ashley JA explains, there is an important difference between injury and the consequences of injury. Whether the injury is compensable and whether it occurred post the due date are questions of fact that must be determined by reference to the circumstances of the particular case. Thus for example, it may be that an injury that had its onset in the work place some years prior to 20 October 1999 and was ‘ongoing’ or evolving, but which only manifested itself, say, at the end of 1999, would not be regarded for the purposes of sub-s (1) as a compensable injury that relevantly occurred after the due date. On the other hand, as his Honour makes clear by reference to the likely scenario in this case, although the appellant may have sustained injury – even a compensable injury and one that was ‘ongoing’ – before the due date, the evidence may nevertheless show that the injury, as distinct from a manifestation of an earlier injury, in respect of which the worker became ‘entitled to compensation’ within the meaning of sub-s (1), was sustained after the due date.
Be that as it may, I consider that, in the present case, for the reasons given by Ashley JA, the trial judge did not adequately address the question whether, on or after the relevant date, the appellant suffered compensable injury that resulted in or contributed to consequences that constituted serious injury. It follows that the decision cannot stand and, for the reasons given by his Honour, the matter should be remitted to the County Court for determination.[111]

[109](2006) 14 VR 602.

[110]Ibid.

[111] Ibid 604-5 (citations omitted).

These observations highlight the important difference between an injury and its consequences and the onus on the plaintiff to establish that she has sustained an identifiable injury on and after 20 October 1999.

Turning to the facts in issue here, for the following reasons, in my opinion, Mrs Filipovski did establish that she did have a pre-existing injury, that on and after 20 October 1999 she did sustain a further injury, that the injury she sustained resulted in the aggravation, acceleration, exacerbation or deterioration of that pre-existing injury, and that her employment was a significant contributing factor in that further injury. In other words, she did sustain a compensable injury on or after 20 October 1999 while in the employment of the defendant.

In my opinion, the trial judge erred in not finding that Mrs Filipovski had suffered a compensable injury on or after 20 October 2000 while in the employment of the first defendant.

The evidence established that on or about 26 September 1999, Mrs Filipovski did suffer a back injury. This is the pre-existing injury. She says that she felt pain in her back, left leg and shoulder. She says that she reported the incident to her supervisor. She consulted Dr Irani. No X-rays, CT or MRI scans were performed on Mrs Filipovski. Although she took a few days off work, she continued her ordinary duties in the Qantas lounge, cleaning tables and constantly picking up trays full of plates and/or glasses. She asked to be transferred to lighter or alternate duties but her request was refused.

She continued to work at the lounge six days a week until 6 June 2000 or thereabouts. She took time off work occasionally. She complained of continuing back pain. She said that the bending and lifting aggravated her back condition. She says that her condition became worse in about May 2000.

She said that when she returned home from work on 5 June 2000, she had pain in her lower back. She says that when she awoke at about 5 am on 6 June 2000, she ‘had very severe pain in the lower back and mostly in the leg and the lower back’. She says, ‘I also felt numbness in my left leg’. She says that she could not stand on her leg. As discussed below, the trial judge did not accept her account of leaving work with a pain in her back. On the other hand, the objective medical evidence establishes that she had in fact suffered an injury which caused these symptoms.

On 6 June 2009, she went to see her doctor, Dr Irani. She could not see Dr Irani but she saw Dr Prakesh instead. She saw Dr Irani the following day. Dr Irani arranged for her to have an X-ray, a CT scan and an MRI scan. Before she had the MRI on 4 July 2000, Mrs Filipovski was referred to Dr Keng, an orthopaedic surgeon, on 26 June 2000. He reported:

She has pain all over the left leg and feels that the left leg is weak and has to drag the left leg at times and feels that ache and pain is worse. She is unable to lift as lifting increases the intensity of the pain.

On 4 July 2000, Mrs Filipovski had the MRI. It confirmed that she had a large and left sided L5-S1 lumbar disc prolapse, with a markedly degenerate disc present.

In November 2000, Mrs Filipovski saw Mr Jenson, a neurosurgeon, who recommended an operation on her spine. He examined Mrs Filipovski and observed, in a subsequent report, that her lumbar mobility was severely reduced and she had an absent left ankle jerk and a left S1 sensory change. She says that she was too afraid to have an operation on her back. Mr Jenson’s notes confirm that she was not eager to undertake surgery. He also noted that when he saw Mrs Filipovski ‘her injuries were consistent with the circumstances she described’.

On 19 April 2001, Mrs Filipovski was seen by Mr Ronald Quirk, an orthopaedic surgeon for GIO Australia. He was of the opinion that:

The patient has claimed widespread symptoms from picking up a tray of glasses. At the same time the patient has been shown to have a significant disc prolapse impacting on one of the nerve roots and capable of causing pain. It is not unreasonable to suspect that the patient has suffered aggravation of a pre-existing disc prolapse and I think that she is entitled to the benefit of the doubt about this.
….
The patient’s condition is one in which an intervertebral disc has prolapsed with compression of the S1 nerve root.
I think that employment has been a significant contributing factor because of aggravation of pre-existing degenerative changes.

On 5 June 2001, Mrs Filipovski was seen by Mr Richard Pease on referral from Dr Irani. He subsequently prepared a medical report for her solicitors. He concluded in his report:

In summary, your client appears to have injured a pre-existing degenerate disc at L5/S1 during the course of her employment. When last seen she remained symptomatic but did not wish to consider any form of treatment unless she was give ‘a guarantee’.

On 3 August 2001, Mr Pease referred Mrs Filipovski for a repeat MRI at Frankston. In July 2001, Mrs Filipovski changed her general practitioner to Dr Ansari, who referred her to Mr Barrett, an orthopaedic surgeon. He also recommended surgery.

In a letter of 20 December 2001, Mr Barrett describes the condition of Mrs Filipovski’s back. He said that the CT scan of 22 June 2000:

... confirms a substantial and left sided L5-S1 lumbar disc prolapse with displacement and probable compression of the left S1 nerve root, also confirmed at MRI examination of 4 July 2000 and 3 August 2001.

He says that he suggested to Mrs Filipovski that she should seriously consider operative fusion of this disrupted L5-S1 lumbar disc to render ‘this painful disc a non weight bearing structure and so control her symptoms and allow the rest of her lumbar spine to resume its normal and comfortable movements’.

Eventually, Mrs Filipovski could no longer stand the pain and agreed to undergo surgery. Mr Barrett performed the operation at Cabrini Hospital. Mrs Filipovski was in hospital for eighteen days. Mr Barrett describes what he found during the operation:

At operation, the pre-operative diagnosis was confirmed and after confirmation of the operative level by intra-operative x-rays the L5-S1 level was well decompressed, particularly on the left side where the left S1 nerve root was swollen and irritated from a continuing disc prolapse.
Following decompression of the nerve roots at the L5-S1 level bilaterally, an L5 to S1 inter-transverse type fusion was carried out using bone chips taken from the nearby right posterior iliac crest and supplemented with a firm internal fixation device to maintain vertebral position during bone graft healing.

Prior to 6 June 2000, Mrs Filipovski was able to work full time at the Qantas lounge, bending and lifting heavy trays of glasses. The injury she sustained in September 1999 did not prevent her from doing so. When she was operated on in May 2001, the surgeon observed that the left S1 nerve root was swollen and irritated from a continuing disc prolapse. The irritated nerve was clearly consistent with her complaint that she experienced sever pain in her leg such that she could not stand on it. It is also consistent with her inability to lift without experiencing pain.

In my opinion, the evidence established that Mrs Filipovski sustained an aggravation to the pre-existing injury which she suffered in September 2000. It is not possible to say what precisely happened. What is clear, however, is that the pre-existing injury was aggravated by the S1 nerve being compressed and irritated by the a disc prolapse. It is unclear whether or not there was a disc prolapse in September 1999. Assuming that there was, the objective evidence is clear that the S1 nerve was not compressed or irritated to such an extent that Mrs Filipovski could not work or suffered severe pain in the leg such that she had difficulty standing on it. Accordingly, I find that she did sustain an aggravation on or after 20 October 1999 by the pre-existing injury being aggravated as described above.

Has Mrs Filipovski established that her employment was ‘a significant contributing factor’ in that aggravation being sustained?

The employment need only be a factor and not the exclusive factor. In other words there may be other factors which contributed to the aggravation. The employment must, however, be a significant and not an insignificant factor.

This issue is the critical issue in the case. The respondents contend that Mrs Filipovski has not established that her employment on or after 20 October 1999 was a contributing factor to the aggravation. They contend that Mrs Filipovski has not established that the aggravation is other than the natural consequence of the pre-existing injury.

In my opinion, Mrs Filipovski did establish, on the balance of probabilities, that her employment on and after 20 October 1999 was a significant contributing factor to the aggravation she experienced.

Mr Barrett was the only medical practitioner to give evidence. Under cross-examination, Mr Barrett described the natural history of a disc injury. He said:

This is the natural history of a disc injury. It starts off with a minor tear, which gives us some back ache. That back ache can last for a few days and it seems to settle down and the patient says, well, ‘I’ve got over that’ but in fact, that tear is still there. Then the next heavy lifting episode produces an increase of that same tear, an increase which in the interim hasn’t been repaired by the body’s processes, and so gradually it gets worse and it gets worse and the finally, in many patients, the tear is so bad that the patient suddenly has sciatica down one or both legs. This is a natural history.

Mr Barrett was of the opinion that in September 1999, Mrs Filipovski had sustained a minor tear. He was asked how he could determine that without MRI imaging or other investigations that might show it. He replied:

Because this is the natural history of – all the patients that come to see me with back injuries, have minor back ache a little episodes that settles down’ that back ache comes because there was a minor split in the disc itself which produces some swelling of the peripheral fibres of the disc and it gives you back ache. You get a stiff, sore back and it settles down and that’s the end of that.

Mr Barrett confirmed in his evidence-in-chief, his written opinion of 16 March 2006, which was as follows:

1. Mrs Filipovski’s condition prior to the 20/10/99.
The lumbar intervertebral discs consist of 2 differing types of structures, firstly a fluid containing soft and oval shaped central nucleus, surrounded by a strong fibrous, elastic and interwoven outer casing or annulus of considerable thickness and forming the bulk of the disc itself. A disc rupture occurs because this liquid containing nucleus is forced, usually backwards, through some layers of this outer annulus, weakening the strength of the annulus in this direction and producing some low backache only. Because the disc is a ‘sealed unit’ no repair process can take place as the body’s repair processes can not enter the disc so each rupture of these annular fibres does not heal, but the backache from the initial commencement of the rupture may well settle down.
Following the next bending and heavy lifting incident the weakened portion of the annulus can suffer an additional progression of the rupture and more backache can be produced, each lifting or bending incident causing some progression of the rupture of these annular fibres. The backache becomes more troublesome and a further incident may well increase the split or rupture in the annular fibres to the point where the remaining intact fibres will bulge backwards when the disc is loaded by the nucleus pushing backwards and suddenly this bulging disc may contact and irritate or compress the passing nerve roots to the lower limb and for the first time the backache is accompanied by sciatica. Such an incident occurred with Mrs Filipovski on the 7/6/2000 when she awoke with severe left sciatica.
Therefore, Mrs Filipovski’s condition prior to the 20/10/1999 was that of a minor split in her L5-S1 lumbar disc, enough to produce some lower backache so that she notified her employer but of a minor enough nature to allow her to continue with her full and usual cleaning work.
2.From Mrs Filipovski’s history of the events surrounding her back injury her employment from the 20/10/1999 up until the 7/6/2000 certainly aggravated, accelerated and exacerbated her lumbar disc rupture to the point where the disc rupture had progressed almost through the casing on the annulus so that the remaining annulus was sufficiently weakened and thinned to start irritating the cauda equine nerve roots passing down to the left behind this disc bulge and so for the first time she developed severe left sciatica on 7/6/2000.

3. & 4.I consider the employment beyond the 20^th October 1999 seriously aggravated, accelerated and exacerbated her back condition and had she ceased work or even been able to continue with light and limited work beyond September 1999 this aggravation, acceleration and exacerbation of her back condition may well have not occurred and subsequent treatment including operation may not have been necessary.
5.As outlined above, I consider the post 20/10/1999 work produced the additional advancement of her lumbar spinal injury and contributed to Mrs Filipovski’s current condition.
6.I consider the condition of Mrs Filipovski’s lumbar spine prior to the 20/10/1999 may have resolved or considerably improved, had she not continued with her normal and heavy cleaning work, by either ceasing work or continuing light and limited work without bending and heavy lifting situations beyond that date.
The consequences to her back condition after the period of employment from 20/10/1999 to 6/6/2000 were profound, produced increased back pain and then left sciatica, requiring her to go off work and ultimately after appropriate investigation and considerable delay, required operative fusion.

The defendants did not call any evidence to suggest that Mr Barrett’s explanation was incorrect. Nor did the defendants call any evidence to challenge Mr Barrett’s report of what he observed when he operated on Mrs Filipovski’s back.

Mr Barrett explained how, in his opinion, Mrs Filipovski returning to heavy work gradually worsened her problem. Just as important as Mr Barrett’s evidence, is the evidence that in June 2000 Mrs Filipovski experienced severe pain in her left leg such that she could no longer lift heavy trays and that condition eventually required her to undergo an operation to relieve the compression on the S1 root nerve, whereas with her pre-existing injury she was able to continue lifting heavy trays for some eight months.

The defendants did not dispute that Mrs Filipovski’s employment was a contributing factor in her pre-existing injury. It was not disputed that lifting heavy trays was likely to be a factor in her disc prolapse.

Mr David Chamberlain, an orthopaedic surgeon, saw Mrs Filipovski on 6 March 2002. He gave a report to GIO in which he expressed the opinion that in June 2000, Mrs Filipovski had further exacerbated, without specific cause, the September 1999 injury and developed symptoms and signs of a prolapse. In answer to the question whether her employment was a significant contributing factor to the injury, he replied ‘employment has been a significant contributing factor by virtue of the original episode of injury.’

As mentioned above, Mr Pease was of the view in 2003, that Mrs Filipovski appeared to have injured a pre-existing degenerate disc at L5/S1 ‘during the course of her employment’.

Mr O’Brien said, in his report of 25 July 2007, that the normal duties following October 1999 would appear to have resulted in the patient developing a frank lumbo-sacral left-side disc prolapse which a number of opinions apparently suggest surgery. He said that he would certainly consider that employment was a significant contributing factor to the disc herniation and that he would suggest that the problem had progressed to the current clinical situation.

Mr Michael Dooley gave a report of 7 December 2004. He found that it is probable that the appellant aggravated her pre-existing degenerative disc disease of the lumbar spine during the course of her work. He also said he believed that the appellant’s employment had been a significant contributing factor to her lumbar spine condition.

Mr Quirk, in his report of 19 April 2001 to GIO Australia, said that it was not unreasonable to suspect that the patient had suffered aggravation of a pre-existing disc prolapse and he thought that she was entitled to the benefit of the doubt about this.

On the other hand, none of the many doctors who saw Mrs Filipovski suggested that the condition that had manifested itself on 6 June 2000 and was revealed when she was operated on in May 2001 was not in fact due to a work-related incident with respect to work beyond 20 October 1999.

In this case, there was no dispute that the appellant had suffered a pre-existing injury prior to 20 October 1999. Further, there was no dispute that there had been an aggravation, acceleration, exacerbation or deterioration of that pre-existing injury that manifested itself in June 2000 and was revealed in May 2001 when she was operated on. The issue was whether the worker’s employment, on or after 20 October 1999, was a significant contributing factor in the recurrence, aggravation, acceleration, exacerbation or deterioration of her pre-existing injury. As indicated above, the evidence was all one way, that the employment was a significant contributing factor.

Mrs Filipovski’s credit

The trial judge found that Mrs Filipovski’s reference to leaving work with a painful back on 5 June 2000 was an invention and was not the truth. His Honour said that he was satisfied that Mrs Filipovski was aware of the significance of dates in respect of her serious injury application and that this awareness adversely affected her credibility. This was the only issue on which the trial judge expressly did not accept her evidence, although it has been suggested that the judge’s finding on this issue may have been reflected elsewhere in his reasons.

I am mindful of the observations of the plurality in Fox v Percy[112] about setting aside a finding of fact of a trial judge based on the credibility of a witness. In my opinion, there is no need to set aside the trial judge’s findings on these issues. Mrs Filipovski has produced probative independent evidence to establish that she sustained an aggravation of her pre-existing injury on or after 20 October 1999. The critical issues of whether or not the aggravation that she did suffer was merely a consequence of her pre-existing injury or whether her employment on and after 20 October 1999 was a significant contributing factor to the aggravation, did not turn on her credibility but rather on the objective evidence supported by the expert medical evidence of the nature of her back injury and its consequences.
[112](2003) 214 CLR 118.

In my opinion, Mrs Filipovski did establish, on the balance of probabilities, that on or after 20 October 1999, her employment was a significant contributing factor in the aggravation she sustained in June 2000 and that accordingly, she did suffer an injury as statutorily defined on and after 20 October 1999.

Did Mrs Filipovski establish that her injury arose out of her employment?

Under s 134AB(2), a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if employment of that nature was a significant contributing factor, and the injury is a serious injury and arose on or after 20 October 1999. To establish she suffered an ‘injury’ she was required to and did, in my opinion, establish that her employment and employment of that nature was a significant contributing factor to the injury. Accordingly, in my opinion, the injury did arise out or in the course of her employment.

Did Mrs Filipovski establish that the injury is a serious injury?

This raises a difficult issue. The respondent made no submissions on this issue. The trial judge did not express any view on whether the injury was a serious injury. Mrs Filipovski submitted, however, that the court should determine that she has a permanent serious impairment of her back and that her employment with the first respondent between 20 October 1999 and 6 June 2000 was a significant contributing factor with respect to such impairment and/or a cause of the same. The submission concludes that accordingly, the appellant should be given leave.

Mrs Filipovski’s application heard by the trial judge raised the issue although the trial judge did not decide it. Subsection 134AB(38)(j) provides:

the assessment of serious injury shall be made at the time that the application is heard by the court.

Further, section 134AD requires this court to decide for itself whether the injury is serious on the evidence and other material before the judge who heard the application. The trial judge heard her application although he did not express a finding on the issue of whether her injury was serious. Consequently, despite the lack of argument I feel bound to express a view on whether Mrs Filipovski’s injury was a serious injury. The relevant evidence is set out in the judgment of Neave JA.

Whether an injury is a serious injury or not requires the consideration of sub-ss 134AB(37) and (38).

Sub-section (37) provides:

Serious injury means –
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or

(d) loss of a foetus.

Sub-section (38) relevantly provides:

For the purposes of the assessment of serious injury in accordance with sub-sections (16) and (19) –
…
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to –
(i) pain and suffering; or
(ii) loss of earning capacity –
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;

…
(h)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of ‘serious injury’ and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of ‘serious injury’ and not otherwise;
(j)the assessment of ‘serious injury’ shall be made at the time that the application is heard by the court;

…

In Barwon Spinners v Podolak,[113] Phillips JA said:

If a relevant impairment of a body function is to answer the statutory definition, the impairment must be ‘serious’ in the sense dictated by paras (b) and (c) of sub-s (38) - that is, the consequences of the impairment (and more particularly the consequences as to economic loss or pain and suffering) must be such as can be ‘fairly described as being more than significant or marked, and as being at least very considerable’ (which we shall refer to as the ‘very considerable’ test)…..
Thus, in order the questions must be: first, what is the injury and what is the impairment said to be produced in consequence; secondly, is the impairment permanent, ie, likely to last for the foreseeable future; and thirdly, are the consequences for the plaintiff such as to satisfy the ‘very considerable ‘ test? …
… the impairment of the body function will answer the description ‘permanent serious impairment’ if it is an impairment which, with consequences (as to economic loss or pain and suffering or both) that meet the ‘very considerable’ test, is permanent, in the sense of likely to last for the foreseeable future. That sufficiently couples both adjectives – permanent and serious (as defined) – and beyond that it seems unnecessary to go.[114]

[113](2005) 14 VR 622.

[114]Ibid 638-639.

For the following reasons, I find that Mrs Filipovski did suffer a permanent serious impairment or loss of body function within the meaning of sub-s (37) and thus, a serious injury.

It is important to recognise that it is the aggravation and not the pre-existing injury which is alleged to give rise to a serious injury: RJ Gilbertsons Pty Ltd v Skorsis.[115] It is the impairment or loss of body function that must be shown to be serious and permanent, rather than the aggravation itself.[116] In RJ Gilbertsons Pty Ltd v Skorsis,[117] Buchanan JA said, ‘The definition of “serious injury” in s 135A(19)(a) describes the consequences of injury rather than injury itself.’[118] The injury need not be the exclusive cause of the consequences relied on as constituting serious injury, but may be a cause. In other words, a finding that the pre-existing injury was also a cause of the consequences relied on does not exclude the possibility that the aggravation was also a cause of the consequences relied on: RJ Gilbertsons Pty Ltd v Skorsis.[119] This is also supported by the definition of ‘injury’ which requires the employment of the worker to be a contributing factor to the aggravation.
[115][2000] VSCA 51.
[116]Accident Compensation Act 1985, s 134AB(38)(b).
[117][2000] VSCA 51.
[118]Ibid [27].
[119]Ibid [27].

What is the injury and what is the impairment said to be produced as a consequence? The injury was the aggravation of the pre-existing back injury. The spinal fusion operation in 2004 has not relieved her from pain. She walks with the aid of a walking stick and she no longer is capable of undertaking work.

Dr Chamberlin examined Mrs Filipovski in 2005, well after her operation. He said Mrs Filipovski could not undertake her pre-injury employment, that he could not see her returning to her previous employment and that she was unfit for all work. He said Mrs Filipovski ‘is genuinely and substantially disabled’. She has sustained a lack of back mobility and flexibility. She is limited in the weight she can lift which severely impacts her quality of life.

Is the impairment permanent, in the sense that it is likely to last for the foreseeable future? The fact that it has continued for some eight years would suggest that it is likely to continue for the foreseeable future. It was not suggested that any treatment might resolve her impairment.

Are the consequences for Mrs Filipovski such as to satisfy the ‘very considerable’ test? That is, are they more than significant or marked and at least very considerable? In my opinion, the consequences are.

As I understand the matter, Mrs Filipovski is not seeking to recover damages for loss of earning capacity.

There is no evidence that Mr Filipovski’s injury involves any psychological or psychiatric consequences or that her injury includes the physical consequences of a mental or behavioural disturbance or disorder within the meaning of sub-ss 134AB(38)(h) and (i).

Accordingly, in my opinion, she has established that the injury was a serious injury within the meaning of 134AB(19)(a) at the time her application was heard.[120]
[120] Accident Compensation Act 1985, s 134AB(38)(j).

I would allow the appeal and grant leave to the appellant to bring the common law proceedings that she seeks.

---

Defendant’s Documents:
Document	Page No.	History
Claim Form	2 DCB	Date of injury: 26.9.1999 – developed over 8 months
Employer Claim Form	3 DCB	Reported injury 26.9.1999
Rustomjee report	179 DCB	‘No problems till the 26.9.99 when she was lifting a tray of heavy glasses.’ ‘She worked at the Qantas Club for about 3 years without having any pain in her back till the incident on 26.9.99.’
Rustomjee report	190 DCB	‘This lady’s injuries in my opinion occurred gradually over the four years of work, but ended in a disc prolapse at L5/S1 when she lifted a heavy tray of glasses on 26.9.99.’
Quirk report	194 DCB	‘Gives the date of her accident as 26.9.99.’
Battlay report Battlay report	201DCB 208 & 216 DCB	‘She injured her back on 26.9.99’
Chamberlain report	218 DCB	‘On 26.9.99 she was lifting glasses in the wash-up area and developed pain in both her lower back and left shoulder’ ‘Mrs Filipovski developed L rotator cuff strain and small tear and lumbar disc strain in September 1999 …’
Brownbill report	236 DCB	‘No ongoing pain and she was well until October 1999.’
Dooley report	260 DCB	‘… around September 1999 … lifting trays of glasses and washing them. She noted soreness of L shoulder and pain in lower lumbar region.’
IWCC report	270 DCB	‘She reported sustaining a back and shoulder injury on 26.9.99 after a gradual onset of symptoms over the course of the day.’
AVL report	278	‘Stated her date of injury is 26.9.99.’
Lifting register	305 DCB	Reports injury on 26.9.99.
Plaintiff’s Documents:
Dr Roshan Irani	26 PCB	‘She first presented on 4.10.99 with back pains which had started on 26.9.99.’
Keng report	28 PCB	‘The accident happened on 26.9.99.’
Dr Ansari report	32 PCB	‘She states that her pain started on 29.9.99 whilst lifting a lot of crates of glasses for washing in the Qantas Club.’
Dr Ansari report	42 PCB	‘the patient’s incapacity for employment at present is wholly and totally related to the injuries she sustained on 29.9.99’.
Mr Brian Barrett report	55 PCB	‘when she first complained of low back pain on 26.9.99’.
Mr Brian Barrett report	57 PCB	‘sustained a severe and painful rupture involving the lower lumbar disc at the L5-S1 level, following a lifting incident in the course of employment on 26.9.99.’
Kwong report	86 PCB	‘Her mental illness is secondary to her experience of pain and disabilities caused by an injury at her work on 26.9.99.’
Physio report	209 PCB	‘On 29.6.99 while bending and picking up glasses in the kitchen, she felt a sharp stabbing pain in her lower back which also radiated into her lower limbs.’
Klug report	137 PCB	‘On 26.9.99 there was a very substantial aggravation of her condition.’
Weissman report	177 PCB	‘she first developed pain in her lower back and left shoulder region on or about 26.9.99.’
Stockman report	ERS	‘In September (1999) she developed LBP whilst lifting trays of glasses but the symptoms did not come on suddenly.’
Weissman report	177 PCB	‘She first developed pain in her lower back and left shoulder region on or about 26.9.99.’
Letter to Jensen from solicitors for the plaintiff	ERS	‘We act on behalf of VF in relation to the injuries she sustained in the course of employment with Ogemi on 26.9.99.’

[2009] VSCA 230

9 October 2009