Lukac v Nextt Health

[2015] VMC 7

IN THE MAGISTRATES COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION

Case No.E12285556

MARINA LUKAC	Plaintiff
v
NEXTT HEALTH PTY LTD	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 FEBRUARY, 5, 6 & 10 MARCH 2015
DATE OF DECISION:	31 MARCH 2015
CASE MAY BE CITED AS:	LUKAC v NEXTT HEALTH

REASONS FOR DECISION

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Catchwords: Liability accepted for initial back injury claim – Notice of termination of weekly payments and medical treatment expenses on grounds that injury did not arise out of or in the course of employment – refusal of request to pay for costs associated with microdiscectomy and rhizolysis – credibility of worker in issue – conflicting history of causation and circumstances surrounding injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Ryan	Hounslow Lawyers
For the Defendant	Ms Nadj	Russell Kennedy

HIS HONOUR:

1       Ms Lukac is aged 54 years and commenced employment duties with the defendant as a casual personal care attendant on Sunday, 17 February 2013. She alleges that on that date she sustained back injuries whilst helping an elderly patient get out of her car at his home. Ms Lukac lodged a workcover claim form dated 20 September 2013 for which liability was accepted by CGU on 25 October 2013.

2       On 7 May 2014, CGU issued two notices indicating their intention to terminate weekly payments of compensation and medical treatment expenses as from 8 June 2014 and denying liability for the costs associated with a microdiscectomy and rhizolysis as recommended by Mr Drnda, Neurosurgeon. In essence, the defendant denies that Ms Lukac sustained injury in the manner described and that any injury did not arise out of or in the course of her employment with them.

3       Ms Lukac gave evidence as did her treating general practitioner, Dr Sison and Mr Drnda. The defendant called evidence from Dr T Kostos, Rheumatologist and Ms Andovska, Recruitment Officer employed by the defendant. The parties tendered numerous medical records and reports and other documentation. It is not in dispute that Ms Lukac suffers from a broad based right paracentral disc protrusion at L4/5 with posterior displacement and compression on the theca with mild displacement of the right L5 nerve root as demonstrated by CT Scan in March 2013 and MRI Scan on 20 November 2013.

4       The issues for the court to determine are whether the injury occurred in the circumstances as alleged by Ms Lukac and whether the surgery as proposed by Mr Drnda in October 2013 is reasonable and necessary.

5       The evidence revealed that Ms Lukac made application for employment with the defendant on 15 January 2013. She informed the defendant that she had completed a Certificate III in Aged Care, Certificate III in Health Services, had completed the theory component of Certificate IV in Aged Care and was completing her practical component by attending a placement 2 days a week at Keilor Downs Nursing Home. She indicated to the defendant that she was prepared to work Tuesdays, Thursdays, Fridays and Saturdays. On 1 February, Ms Lukac was offered employment on a casual basis but ultimately only performed a 3 hour shift on Sunday, 17 February.

6       Ms Lukac gave evidence that she was contacted on that day by Mr Moore to work the shift as another attendant was unable to do so. The client she was required to assist was an elderly male weighing approximately 90 kgs, suffering from dementia and sundowners with a Health Care Plan indicating that he slept a lot, could be dizzy when he wakes and required supervision and instruction when mobilising. The plan also indicated that he could be resistive to direction and  had past issues with physical aggression. Ms Lukac told the court that she attended the client’s premises in her car and his daughter assisted in putting her father in the car in order for Ms Lukac to take him for a drive. She said that when she returned his daughter was not present so she proceeded to assist the client get out of the car. She told the court that she swung his legs out of the car and attempted to assist him onto his feet on three occasions by grabbing him under the arms and lifting him but he kept falling back onto the seat. She said that she eventually succeeded and took him inside his house. She said that she then felt “a pinched nerve in my low back on the right side”. In cross examination, she told the court she informed the client’s daughter that she had hurt her back whilst assisting her father out of the car.

7       Ms Lukac said that later in the day she rang the defendant’s after hours number to inform them that the client’s daughter was not happy that his usual carer did not attend, that she had hurt her back and sought advice about claiming for re-imbursement of her petrol expenses.

8       The evidence of Ms Lukac concerning the allocation of her shift and her call to the after hours number was disputed by the defendant. Ms Andovska told the court that Ms Lukac was not called by Mr Moore on that morning as he does not work weekends and the employer records, which were tendered, indicate that Brigid Stewart allocated the shift to her on 14 February and provided her with a copy of the client’s Health Care Plan in advance. She also told the court that there is no record of Ms Lukac calling the after hours number on 17 February. The records tendered indicate that Ms Lukac rang the after hours number twice on Saturday 16 February, firstly to inform them she could not “open” the client’s Health Care Plan and then shortly thereafter to inform them that she could. During cross examination, Ms Lukac told the court that although she remembered calling the after hours number on 17 February she could not recall what response she received when she informed the after hours employee of her injury, the client’s daughter’s concerns and how she could claim petrol expenses.

9       Ms Lukac gave evidence that on Monday 18 February she did not work or attend her work placement as she was in pain. She said that over the following days her condition worsened so she attended Dr Sison on Friday 22 February. The medical records of Dr Sison reveal that Ms Lukac attended on that day for a repeat script of Coveram and Tramadol and for a certificate to return to work on normal duties. He also referred her to have a CT Scan of her lumbar spine which was subsequently performed on 21 March 2013. The Radiologist concluded: Mild central canal stenosis at L2/3 and L3/4 and mild right paracentral disc protrusion and degenerative disc change at L4/5. Multi level facet joint degenerative change. The records indicate subsequent  relevant attendances with Dr Sison on 25 March, where he referred her for physiotherapy treatment, 10 April, when he referred her for osteopathic treatment, 9 August, when she attended because of a “flare up” of back pain and 18 September, for the provision of a workcover certificate. Apart from the provision of a workcover certificate on 18 September, the first entry concerning her condition being work related was entered in the records on 26 November 2013. No history of the mechanism of injury appears in the records.

10      Ms Lukac gave evidence that in order to obtain her Certificate IV in Aged Care she participated in a work placement at Keilor House Nursing Home through Ashley Institute. The records reveal that she attended the placement on 13 February 2013, 25 February, 27 February and 4, 6 and 13 March. Ms Lukac told the court that she was unable to complete the placement because of her injury and it was therefore cancelled as confirmed by way of documentation tendered from the Ashley Institute dated 4 June 2013. In cross examination, she agreed that when she attended the practical sessions at Keilor House following 17 February it involved assisting patients onto wheelchairs, showering, feeding and escorting them to the dining room but she said that she and a fellow personal care assistant who was also on a placement simply followed and watched and did not perform any physical work that she could specifically remember. She also said that even though the records of the Ashley Institute indicate that she did not inform them of the reason she ceased her placement, that being due to her injury, until 28 May 2013, she did tell her teacher in late March. When it was suggested to her that despite her allegation that the injury occurred on 17 February she was able to attend her placements at Keilor Downs on 5 occasions between 25 February and 13 March between 7 a.m. or 9 a.m. and 4.30 p.m. she stated she did not finish her allotted placement times on 4, 6 or 13 March because of her back condition notwithstanding what the records reveal.

11      In cross examination, Ms Lukac agreed that she sustained prior injury to her shoulder, neck and back as a result of a fall in September 2009 but said it was her upper back and she was referred for an x ray of her cervical spine only. She also told the court that she did not lodge a workcover claim immediately following the incident on 17 February because she believed she could not do so as she had breached the defendant’s “no lift” policy and due to being previously advised in a prior job that casual workers were not covered by workcover. Ms Lukac also said that the “flare up” of low back pain as recorded by Dr Sison on 9 August 2013 did not occur as a consequence of any incident but was simply an increase in the level of her back pain which resulted in her medication being increased.  

12      Ms Lukac said that after 17 February she was contacted by the defendant to ascertain her availability for work but as a consequence of informing them that she could not work because of her back injury her contract of employment was cancelled on 28 February. Ms Lukac could not recall having a telephone discussion with Elisa Chung, who is employed by the defendant, on Tuesday 19 February informing her that the client’s daughter was unhappy because a non Macedonian carer was allocated to her father on 17 February. The email record of the conversation was tendered which also indicates that Ms Lukac informed Elisa Chung that she had been allocated the shift by Tim Moore on Sunday, 17 February. The records also reveal that later in the afternoon of Tuesday 19 February, Becky, the client’s Case Manager from the Royal District Nursing Service was sent an email from Brigid Stewart, an employee of the defendant, to inform her that she had just spoken to Ms Lukac who reported that there were no incidents on Sunday 17 February that would have contributed to a limp (suffered by the client) as; they did not get out of the car while away from home, she said Mr P fell asleep on the drive and she did have a bit of trouble waking him to assist him out of the car, and that he was having trouble lifting his right leg while she was there.

13      Ms Andovska gave evidence that Ms Lukac rang her on 28 February to inform her that she was resigning because “her placement facility offered her full time work – effective immediately”. She denied that Ms Lukac told her that she could not work because of an injury. Ms Lukac said she could not recall making this telephone call to Ms Andovska and said that if she did, she did not say that she was resigning because she had found full time employment with her placement. Ms Andovska told the court that she first became aware of the allegation of injury in September 2013 after the workcover claim was lodged. She also told the court that the defendant objected to CGU’s decision to accept the claim pursuant to S114 I of the Act.

14      Ms Lukac gave evidence that she also attended Dr Al-Ali at Future Health Clinic on 4 April and 11 June 2013. The records tendered indicate that on 4 April she told Dr Al-Ali that she had “done the back while lifting a client, works in an aged care facility rt sciatica ”. She was prescribed Tramal and Valium. On 11 June she told Dr Al-Ali that her back pain “started when lifted a client from his car not considered work related inj as they are not supposed to lift clients – frustrated…her dr away”. The records of Dr Huang, Physiotherapist, who Ms Lukac first saw on 5 April 2013 note a history of back pain for 3-4 weeks due to “assisting a resident out of car”. The records of Ms Trimble, Osteopath, who Ms Lukac first saw on 11 April 2013 record a history that 4 weeks ago “she lifted a patient out of a car, felt pain into low back...back began to ache and then leg pain started”.  

15      As part of CGU’s investigation following receipt of Ms Lukac’s claim an examination was arranged with Mr P Scott, Consultant General Surgeon on 22 October 2013. He obtained a history from her that she had experienced minor back ache and discomfort in the past. She told him that “on 17 February 2013, she had to lift a heavy demented patient weighing about 90 kg out of a car and in doing so considerable effort was required and she developed the onset of low back pain which gradually worsened by the end of the day”. After conducting an examination and noting the CT Scan results he opined that she suffered from a work initiated discogenic problem of the lumbo sacral spine. He also stated that; “in the absence of any past history, I believe the incident which occurred on 17 February 2013, allowed for the development of her present symptom complex”. Mr Scott re-assessed Ms Lukac for the defendant’s lawyers on 29 October 2014. In the accompanying letter, Mr Scott was asked 19 questions, some of which directed him to the date of injury being 18 February 2013, as a consequence of the alleged history given by Ms Lukac to Dr Kostos when he examined her on 7 April 2014. Ms Lukac confirmed the prior history given to Mr Scott but also told him that following her injury she did attend and participate in her placement at Keilor Downs Nursing Home on 25 February and 26 February (actually 27 February) as part of her Certificate IV course but was unable to continue because of her severe pain and discomfort. After conducting a further examination and noting the results of the CT Scan and MRI Scan performed on 20 November 2013, he maintained his previous opinion regarding the cause of her injury occurring on 17 February. He recommended that she undergo a CT scan guided steroidal injection into the right side of her L4/5 disc area to hopefully improve her pain and sciatica symptoms.

16      The medical records and reports of Mr Drnda were tendered. In his report to Dr Sison dated 31 October 2013, he noted that Ms Lukac provided a history that she had an injury at work in February this year and since then severe low back pain and right sided sciatica which is not subsiding. She worked in aged care and helping an elderly client to get out of a car, so she was bending and supporting him and developed this severe pain”. After conducting an examination and referring to the CT Scan in March 2013 he was of the opinion that Ms Lukac required a microdiscectomy following an MRI Scan. Mr Drnda wrote to CGU on that date requesting permission for the MRI to be performed and the suggested operative treatment. On 4 November 2013, CGU wrote to him to inform him they were considering his request and would notify him of their decision within 10 working days. On 11 February 2014, CGU requested further information from Mr Drnda to which he responded on 13 February with a handwritten notation as follows; “Original request was sent 31/10/13!!? You respond on 4/11/13 – decision would be in 10 working days! Longer delay = poorer result”. On 7 May 2014, CGU informed him that they were rejecting liability for the proposed surgery. In his report to Ms Lukac’s lawyers dated 11 November 2014, he noted that he had seen her on one occasion only for clinical reasons on 29 October 2013. He reported that she was exposed to repetitive strain on her back and on one occasion when she was bending and in a prolonged bent position supporting a patient developed back pain that probably triggered disc prolapse and her symptoms. He opined that work was a significant contributing factor for development of her condition.

17      The defendant tendered handwritten notes of Dr Kostos and reports prepared by him dated 9 April 2014, 23 April 2014 and 29 October 2014. In his first report he obtained a similar history of the incident as that given by Ms Lukac to the court except he reported her as telling him that following assisting the client out of the car and taking him inside his house that “she didn’t notice anything untoward at the time”. Importantly, in the context of this case, he also reported that she told him that on “the next day she was attending a class to gain a Certificate IV at Keilor and developed low back pain during the practical work which involved transferring patients with another student. This pain gradually got worse and within a few days she even had trouble standing”. He noted that initially her problems related to back pain but subsequently she developed right sided leg pain in her posterior thigh and calf and not over the lateral aspect of her lower leg. He also stated the pain was in an S1 distribution. In addition, he noted she had a depressed right ankle jerk and decreased pin prick sensation over the lateral aspect of her right foot which he said would again correspond to the right S1 nerve root.  Dr Kostos stated there were a number of consistencies and discrepancies on examination together with non organic signs as described by Waddell suggesting there were considerable psycho-social factors involved. He concluded that her presentation was not contributed to by the claimed incident on 17 February 2013 because it did not cause any pain.

18      In his report dated 29 October 2014, he noted that Ms Lukac confirmed the history he recorded in his report dated 9 April 2014 was correct. He also mistakenly noted that the employer records indicated that she commenced employment on 25 February and not 17 February as she had told him. Dr Kostos stated that Ms Lukac continued to demonstrate non organic signs as described by Waddell. He also reported that although there seems to be a difference of opinion about the dates, based on the history given to me today her pain began the day after she lifted the client when she was undertaking her course. She did not describe to me the development of pain during this physical activity.

19      Dr Kostos also reviewed the medical opinion expressed by Mr Scott and stated that it was quite clear “he did not conduct an adequate examination” of the worker and therefore could not accept his opinion.

20      During cross examination, Ms Lukac disputed that she told Dr Kostos that she did not feel any pain at the time of lifting the client or that she had attended Keilor Downs Nursing the following day. She also disputed that she had confirmed the previous history recorded by Dr Kostos on 9 April 2014 when she was reviewed by him on 27 October 2014.

21      In relation to the surgery as proposed by Mr Drnda, Dr Kostos stated that because Mr Drnda said the pain was in the distribution of L5 whereas it was not, because Dr Drnda noted straight leg raising on the right side did not produce leg pain and because he did not describe his neurological examination or test her reflexes and sensation to pin prick as conveyed to him by Ms Lukac, the surgery should not be performed. Dr Kostos suggested that Ms Lukac be reassessed to confirm the source of her pain by way of a local nerve root sleeve injection with corticosteroid and local anaesthetic.

22      Mr Scott was provided with a copy of the report of Dr Kostos dated 9 April 2014, when he reviewed Ms Lukac on 29 October 2014. He was asked to comment on Dr Kostos’s conclusions and noted that Ms Lukac denied attending Keilor Downs Nursing Home on 18 February 2013 as reported by Dr Kostos. He confirmed that in his opinion the symptoms complained of are a consequence of a disc prolapse at L4/5 causing L5 nerve root compromise but did consider that Ms Lukac undergo a CT guided steroidal injection at L4/5 before considering a microdiscectomy.

23      Ms Lukac was assessed by Associate Professor Paoletti, Psychiatrist, on behalf of her lawyers on 11 November 2014. She gave him a history that she was injured in the course of her work on 18 February 2013 when she was at an elderly client’s home to give the carer a break. The carer, the client’s daughter, told her that her father loved drives and helped her to get him into the car. When they got back, she followed his daughter’s instructions, but she could not help him up, because he kept falling back into the car. It was a  36o day, and she could not leave him in the car. She had to lift him from under his armpits, and she felt a sharp pain in the lower back. She struggled to help him back and had to wait for the daughter to return. During cross examination, Ms Lukac said she first felt the pain in her back when she lifted the client and that whilst waiting for his daughter to return the pain felt like a “pinch” and she struggled whilst she read to him, assisted him to the toilet and fed him. Ms Lukac said she told the client’s daughter that she had hurt her back.

24      When giving evidence, Dr Sison told the court that Ms Lukac told him that she injured her back when attempting to assist an elderly demented patient get out of a car. He said that although he did not record this history in his notes because of time constraints when consulting with patients, he recalls that she gave him this history when she attended on 22 February 2013. He also told the court that he provided Ms Lukac with a certificate of capacity on 22 February as she told him that she was participating in a training course as part of her Certificate IV in Aged Care and as it did not involve physical work he considered that she could attend the course despite experiencing back pain. Dr Sison said that he “calculated” the date of injury was 17 February because Ms Lukac told him that “it happened a few days before”.

25      During cross examination, Dr Sison agreed that the first mention of an injury at work appeared in his notes on 18 December 2013. He also agreed that he did not treat Ms Lukac between April and August 2013 and said that he was overseas during that period. He told the court that he did not provide workcover certificates of incapacity until 18 September 2013 as Ms Lukac had not lodged a workcover claim until then. He said that his record of her experiencing a “flare up” in her condition on 9 August 2013 was as a consequence of her level of pain increasing and it did not result from a further incident at that time. In a pro forma document he sent to CGU on 10 December 2013 he recorded that Ms Lukac informed him that on 9 August 2013, “she was unable to get up from bed with severe low back pain associated with muscle spasm, pins and needles and weakness of lower leg”. In answer to further questions from CGU, Dr Sison said that the flare up on 9 August 2013, “is not attributed to her injury on February 17 2013, but rather is an ongoing back pain and got worse despite modified duties given to her as Lifestyle Co-Coordinator which does not involve physical activities”.

26      Mr Drnda gave evidence that he only saw Ms Lukac on one occasion, being 31 October 2013, on referral from Dr Sison. He told the court that he conducted a clinical examination and was of the opinion that the site of the pain was at the L5 level. He said that he recommended surgery based on his clinical assessment of her and the radiological evidence at the time. In response to the opinion expressed by Dr Kostos he said the his findings based on clinical examination were objective and were supported by the radiological evidence.  He told the court that he would need to re-assess her before deciding whether surgery was still reasonable and necessary.

27      During his evidence, Dr Kostos maintained that Ms Lukac confirmed with him on 27 October 2014 that the history of injury as recorded by him when he first assessed her on 7 April 2014 was correct. He said that on 7 April he wrote down exactly what she told him had occurred. He also said that during his first assessment he conducted a thorough neurological examination and formed the opinion that her clinical signs were not “clear cut” and the cause of her pain was not clearly established. Dr Kostos said that in his opinion, L5 nerve root impingement cannot affect a persons ankle reflex and therefore disputed that the cause of her pain emanated from the L5 level.

28      In cross examination, he conceded that his first report incorrectly recorded that he saw Ms Lukac on 9 April rather than 7 April and agreed that he first assessed her some 14 months after the alleged incident occurred. He could not explain why he recorded in his first report that Ms Lukac commenced employment on 17 February 2013 but then stated in his final report that she commenced employment on 25 February, some 8 days after the alleged incident occurred. Dr Kostos was dismissive of Mr Scott’s opinion on the basis that he is a General Surgeon who deals with “hernias and gall bladders” and is not trained in musculo skeletal matters and also said that Mr Scott did not conduct a full examination when he assessed Ms Lukac. Dr Kostos was prepared to concede that if Ms Lukac did in fact experience pain on lifting the patient on 17 February he would be prepared to change his opinion but on the history provided to him by her she did not experience discomfort at the time, but on the following day. He said that his description that her pain “developed” on 18 February 2013 means that it commenced on that date, not that it worsened. When questioned as to what purpose Ms Lukac would have in describing what had occurred on 17 February 2013 if it had no relevance to her injury he responded by stating that she told him nothing had happened on that day.

29      The defendant tendered letters sent by Ms Lukac’s lawyers to the defendant’s lawyers dated 20 August, 21 August and 24 September 2014. In the first letter it states; The injury occurred when she was doing a placement as part of her training. She attempted to continue with that placement for a time following the incident on 17 February 2013 until she was forced to abort this because of the back injury which she suffered 17 February 2013”. The letter dated 21 August reads; “You inquired as to where our client was on 18^th February, 2013. She was indeed at the Keilor Downs Nursing Home as part of her placement for the Certificate IV in Aged Care”.  The 24 September stated; “We wish to make a correction to dates set out in that letter of 21 August 2014. The Monday that our client commenced her placement with Keilor Downs Nursing Home (the induction date was 13 February 2013) appears to be 25 February 2013, not 18 February 2013. We have been able to confirm this date following inspection of Subpoenaed material at the Magistrates  Court”.

Conclusion

30      It appears that in some respects, Ms Lukac has been her own “worst enemy” when it comes to prosecuting her claim. CGU accepted liability for her claim based on the initial information given by her which was supported by her treating doctors and Mr Scott who assessed her on behalf of CGU. It was only when she provided Dr Kostos with a different history on 7 April 2014, approximately 14 months after the alleged incident, that her claim began to unravel in the eyes of the Agent. The evidence revealed a number of factual matters in dispute which included; when and by whom she was allocated the shift on 17 February, whether she contacted the after hours staff on that date, the reason she gave for resigning on 28 February and whether she reported her alleged injury to the employer at any time between 17 and 28 February.

31      It is not in dispute that she worked for the defendant on 17 February or that she performed the tasks alleged. It is not in dispute that she next attended her placement on 25 February and not on 18 February. Therefore, the question must be, what led to Ms Lukac to provide a history to Dr Kostos that she did not experience pain in her back following the incident on 17 February and that she developed her back pain the following day when transferring patients during her practical studies whilst attending Keilor Downs Nursing Home?

32      During her evidence, Ms Lukac appeared to give an honest account of the cause of her injury. However, other aspects of the evidence she gave is not accepted by me as being correct. I do not accept her evidence that she was allocated the shift on the morning of 17 February by Mr Moore as she stated. The documentary evidence indicates that she was allocated the shift on 14 February and that she contacted the defendant’s after hours department on Saturday 16 February regarding initial difficulties she had in accessing the patient’s Health Care Plan which had been emailed to her. In addition, I accept the evidence of Ms Andovska that Mr Moore did not work weekends and would not have contacted her that morning. I do not accept Ms Lukac’s evidence that she rang the after hours number on the day of the incident. If she had done so it would have been recorded as all other calls were. There is a record of her calls on 16 February to the after hours department and on 19 February to Ms Chung and Ms Stewart, the first relating to her initial difficulty in “opening” the client’s Health Care Plan which had been emailed to her and the call on 19 February providing feedback about what occurred on 17 February. I accept the evidence of Ms Andovska that if Ms Lukac had rung on 17 February it would have been recorded particularly if she reported that she had sustained injury. I also find it hard to accept Ms Lukac’s evidence that she could not recall what response she was given when she allegedly rang the after hours department on 17 February considering the information she gave them including that she had sustained an injury to her back. I also accept and prefer the evidence given by Ms Andovska that she was told by Ms Lukac on 28 February that she was resigning because she had found other employment and did not report or mention that she had sustained injury on 17 February. Unfortunately, neither party saw fit to call evidence from the client’s daughter as to whether any complaint of injury was made by Ms Lukac on 17 February as she said she did.

33      Notwithstanding what I have found to be the inaccuracy of the evidence given by Ms Lukac on the above issues, the fact remains that she did work for the defendant on 17 February and perform the tasks she described, including taking the client for a drive in her car. It was also documented that he was prone to sleeping a lot, could be dizzy when he first wakes and required supervision and instruction when mobilising. It is also not in dispute that Ms Lukac did not attend her placement at Keilor Downs Nursing Home on Monday 18 February. She did attend Dr Sison on 22 February because of the back pain she was experiencing and he confirmed when giving evidence that although he did not record the cause of her back pain, he recalled that she provided him with a history that it occurred when she was assisting an elderly demented patient get out of a car “a few days before”. On 4 April 2013, approximately 6 weeks later, she told Dr Al-Ali that her condition was caused “while lifting a client at an aged care facility”. The following day she told Dr Huang the injury occurred when she “lifted a patient out of a car”. On 11 June 2013, she clarified the history to Dr Al-Ali by informing him that the injury “started when she lifted a client from his car”. The general history she gave to her treating doctors was consistent and remained so when she was assessed by Mr Scott for CGU on 22 October 2013 and first saw Mr Drnda on 31 October 2013.

34      Given the general consistency in the history provided by Ms Lukac to doctors in the weeks and months following 17 February, it is difficult to understand the basis on which she provided a different history to Dr Kostos when she saw him for the first time on 7 April 2014. Despite her denials in evidence, I accept the evidence of Dr Kostos that the history of injury recorded by him on 7 April was an accurate record of what she told him and I also accept his evidence that she confirmed the original history she gave him when he reviewed her on 29 October 2014. The correspondence from her lawyers, presumably on instructions, has also led to a state of confusion as to the genesis of her back complaint.

35      Given the general consistency in her version of events to her treating doctors in the period immediately following 17 February 2013 and her presentation in court, I have reached the conclusion that the delay of 14 months between the alleged incident and her assessment with Dr Kostos has caused her to be confused and mistaken of the events surrounding the incident, given the lapse in time. I do not consider that she is lying about what occurred or that she is trying to re-construct events. I am also prepared to make this finding in the knowledge that the records tendered disclose that she did not attend Keilor Downs Nursing Home on 18 February or at any time between working with the defendant on 17 February and seeing Dr Sison on 22 February. There was no evidence called to dispute the accuracy of these records.

36      On the balance of probabilities, I find that the evidence given by Ms Lukac is truthful and that the incident occurred as she described. I also accept her evidence and find that at the time of assisting the patient, or shortly thereafter, she experienced a “pinched nerve” feeling in her low back. I make these findings even though I have not accepted the accuracy of other aspects of the evidence she gave. On the basis that I accept her evidence that the incident and symptoms occurred on 17 February 2013, the medical evidence, including that of Dr Kostos, supports a finding that she sustained injury which arose out of or in the course of her employment with the defendant on that date.  Accordingly, she is entitled to weekly payments and reasonable medical and the like expenses in accordance with the provisions of the Act from the date of termination being 8 June 2014.

37      On the basis of the evidence of Mr Drnda, I am not prepared to make any declaration concerning the reasonableness or costs associated with the surgery he proposed in October 2013. I accept as appropriate his desire to re-assess Ms Lukac before considering whether surgery in the form of a microdiscectomy and rhizolysis is necessary.

38      

In conclusion, I take the opportunity to thank Counsel on the provision of a court book containing all relevant documents at the outset of the hearing as it was of great assistance to the court and allowed for a better understanding and assessment of the evidence as it was presented to the court. The preparation and provision of a court book is to be encouraged.