Marianis v 7-Eleven Stores Pty Ltd
[2010] VCC 1203
•10 September 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-00343
| ANNA MARIANIS | Plaintiff |
| v | |
| 7-ELEVEN STORES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24, 25, 26 & 27 August 2010 |
| DATE OF JUDGMENT: | 10 September 2010 |
| CASE MAY BE CITED AS: | Marianis v 7-Eleven Stores Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1203 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – claim for statutory benefits – injury by way of aggravation – ss.82(1), 82(2C) and 5(1B) of Act – whether employment a significant contributing factor to injury – three surgical procedures – whether capacity for employment remained – subsequent development of spinal abscess – whether related to surgery and injury and whether there was intervening event that destroyed any remaining capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I. McDonald | Maurice Blackburn |
| with Ms M. Pilipasidis | ||
| For the Defendant | Mr N. Chamings | Lander & Rogers |
| HIS HONOUR: |
General background
1 This matter comes before me by way of a Writ and Statement of Claim originally issued out of this Court on 1 February 2008. Subsequently, an Amended Statement of Claim dated 28 September 2008 was filed, and this was followed by a Further Amended Statement of Claim dated 8 October 2008. I pointed out that the Further Amended Statement of Claim contains no prayer for relief. I was advised from the Bar table that the prayer for relief as set out in the Amended Statement of Claim represented the relief that was in fact being sought and I was asked if I could treat it as such. There was no objection to this course of action, and it is what I shall do. It should be said that the Further Statement of Claim added only that there had been a deemed acceptance of the claim pursuant to s.109(1) of the Act. Whilst no defence to the Further Amended Statement of Claim seems to have been filed and served, this aspect of the claim was not pursued in any event.
2 Accordingly, the relief sought by the plaintiff is a determination that she is entitled to compensation pursuant to the Accident Compensation Act 1985 (“the Act”); weekly payments of compensation at the appropriate rate as for a person with no current work capacity within the meaning of the Act; payment of reasonable medical and like expenses; a determination or declaration that the defendant is liable for the pleaded injuries pursuant to ss.98C and 98E of the Act; and ancillary orders. The pleaded injuries referred to are essentially to the back with referred pain to each leg, together with stress, anxiety and depression.
3 The defendant has filed and served a defence to the Amended Statement of Claim in which what might be described as the formalities and matters of an historical nature in relation to the litigation are admitted. However, entitlement, injury, incapacity and employment being a significant contributing factor are denied.
4 Thus, it can be seen that occurrence of injury and basic entitlement were very much at the heart of this dispute. Another issue which arose in running was, should the plaintiff establish injury and entitlement, whether any capacity for employment which she had retained was subsequently destroyed by an intervening event or condition. Whilst this issue remained, its importance perhaps diminished somewhat as the evidence unfolded.
5 Mr I. McDonald with Ms M. Pilipasidis, both of counsel, appeared on behalf of the plaintiff. Mr N. Chamings of counsel appeared on behalf of the defendant. Oral evidence was adduced from the plaintiff and Dr Tereszkiewicz, her general practitioner. The defendant called as witnesses Ms Simone Barber, the data entry supervisor with the defendant, and Mr Gary Tocknell, the defendant’s accounts administration manager. A considerable amount of medical reports, records and other material was tendered by consent. This was a most sensible and cost-effective way of dealing with the case and shortened it considerably. In addition, counsel made succinct and particularly helpful submissions focussing upon the real issues in the case.
Factual background to rulings
6 I make the following findings by way of factual background. Some of them are not contentious.
(a) The plaintiff’s background and the work performed by her with the defendant 7 The plaintiff is aged 40 years, having been born on 8 August 1970. She is a married woman. Her husband ceased work in or about January 2008 in order to look after her, and now receives a carer’s benefit. There are no children.
8 The plaintiff was educated to Year 12 level which she completed at Waverley High School. She then trained as a dental nurse and worked in that occupation for some nine years. In approximately 1994 she suffered lower back pain which radiated down her right leg to her foot. Earlier she had suffered brief episodes of back pain, but what occurred in 1994 was more significant. She saw Dr Tereszkiewicz and was referred to a specialist, Mr Lowe. Physiotherapy was prescribed, although apparently she did not attend this because she was about to get married. Dr Tereszkiewicz formed the impression that she may have had a right lumbar nerve impingement, or possibly mild sciatica. Mr Lowe referred to L5/S1 spondylitis, erector spinae spasm and nerve root irritation. The plaintiff missed no time from work and her symptoms disappeared completely after approximately a year.
9 This occurred whilst the plaintiff was still working as a dental nurse. Following that work, she commenced employment in a call centre for Officeworks Direct, but developed a problem with laryngitis. She continued to have episodes of back pain from time to time, but these were not frequent and were often associated with her periods.
10 The plaintiff worked for Officeworks Direct for some two years, leaving that employment in 2002, following which she did administration and clerical work through various agencies. On 18 January 2005 an agency found her work with the defendant. On 20 January 2005 she attended upon Dr Tereszkiewicz with a history of one week of lower back pains, and also a 10 day history of a sore throat. The back pains occurred after house cleaning. On examination she was tender in the lower part of her back, and back movement seemed to be quite alright except for a little restriction in relation to forward flexion.
11 Initially, the plaintiff worked with the defendant as an employee of the agency which had placed her there, but after a couple of months she was put on a probation contract with the defendant. That continued for approximately another two months, and then in May 2005 she became a permanent employee. Whilst a letter advising her of this may have been a standard letter, nevertheless the defendant made it clear that her performance had been very satisfactory and that, accordingly, she had been accepted as a permanent employee.
12 The duties performed by the plaintiff were the subject of considerable attention. In a case where, refreshingly, I regard all witnesses as having been impressive, there was some dispute but the area of it was not massive. I tend to think that there may have been some exaggeration, possibly not conscious, by the plaintiff and Mr McDonald, in his closing address, effectively made some concession in this regard. However, when all the evidence is weighed, the issue of who was precisely right and who was precisely wrong in relation to some of the plaintiff’s duties may be an issue of quite limited impact.
13 What I find in relation to work duties is as follows. The plaintiff’s position was that of a data entry clerk or operator. As would be well known, the defendant operates many stores in the eastern states of Australia. Paperwork associated with the operation of those stores was forwarded to the Mt Waverley headquarters of the defendant, and it was there that data was entered. In addition, from there responses emanated, including the provision of things requested in the incoming paperwork. These could extend to advertising material, uniforms and the like. However, it was the incoming paperwork with which the plaintiff was principally concerned.
14 That incoming paperwork was dealt with on a state-by-state basis. The plaintiff was a member of the team which dealt with Queensland. Each Queensland store would send to Mt Waverley a satchel containing the relevant paperwork relating to stock, takings, requests and the like. I accept that the dimensions of each satchel were as specified by Mr Tocknell, namely 48 centimetres x 56 centimetres. Obviously the weight of each varied depending upon the content, but again I would accept Mr Tocknell’s evidence that the standard weight was approximately two and a half kilograms. The satchels had to be weighed so that payment to the couriers who delivered them could be calculated. I accept that they rarely weighed more than two and a half kilograms each.
15 The satchels, which were plastic, arrived in a much larger bag similar to a hessian bag. These larger bags were approximately four foot, six inches high. They would arrive containing satchels from stores in different States on different days. Such larger bags would be dragged into position and tilted so that the satchels were spread over the floor. This task of tipping the large bags onto the floor was rotated between teams, apparently on a weekly basis. The role of the particular team would be to tip the large bag over onto the floor and then sort out the satchels, grouping them for collection by the data entry clerks. Each of the data entry clerks looked after particular stores in the State served by the team of which he or she was a member. The large bags were dragged across the floor and tipped over because they were too heavy to lift. On Tuesdays and Thursdays the satchels from Queensland would arrive.
16 The frequency with which this task was rotated to a particular team is not entirely clear, the system having since altered. However, to the best of Ms Barber’s recollection, each team would be responsible for performing this part of the work every three to four weeks. Thus, the plaintiff would be engaged in work involving the large bags approximately every three to four weeks.
17 However, each Tuesday and Thursday regardless of whether she had been also involved with the positioning and tipping of the large bag and the sorting of satchels on the floor, the plaintiff would collect the satchels from the stores which she serviced. There is conflicting evidence about the number of stores which the plaintiff serviced, and hence the number of satchels which she collected from the floor and carried to her workplace. I might add that the distance between the area where the satchels were spread on the floor and the plaintiff’s work station was effectively agreed to be some 20 to 30 paces. The plaintiff claims that the number of Queensland stores allocated to her increased to the point where she looked after some 16 to 18 by the time that symptoms associated with the relevant injury commenced. She stated that some clerks looked after 20 to 25 stores. Ms Barber disputed that the plaintiff had that number of stores allocated to her. She gave evidence that, initially, the plaintiff had four to six stores and, because of frequent absences, never really moved on to a higher number. It must be said that Ms Barber, who seemed to me to be patently doing her best to provide honest answers to the questions put to her in cross-examination, did exhibit some uncertainty as to precisely the number of stores looked after by the plaintiff. For example, I would refer to the following question and answer at page 122 of the transcript:
“You don’t know how many she was doing?---No, I don’t – to be honest I haven’t got it written down. I have a feeling she was doing about six.”
18 Ms Barber also stated that she was “pretty sure” that at the time nobody was doing more than 12.
19 Mr Tocknell stated that new employees are normally allocated four to six stores and thereafter allocation is dependent upon development and performance, stating that “ … so at that point in time I would have assumed it still would have been around about the four to six stores” (T 138).
20 However, he stated that he was only guessing that, for example, the plaintiff looked after Queensland stores. He also gave evidence that, from what he could recall, the maximum number handled by a person at that time was “around about the 12 to 14 mark”. Mr Tocknell agreed that, given his position with the defendant, he took no particular interest in what any one clerk was doing.
21 People’s memories can play tricks upon them. I find it difficult to accept that the plaintiff was looking after 16 to 18 stores but I am of the view that she was handling quite a lot of weight. I note the evidence, virtually unanimous, that the accumulated weight of the satchels was such that there was a trolley available (although seldom used) and that some data entry clerks effectively used chairs on castors to convey the satchels between the place that they were spread on the floor and their workstations. I gather that the seat of the chair would be loaded with the satchels and then it would be pushed to the data entry point. There was also no argument but that the plaintiff carried her satchels by hand, some grasped in each fist. I accept that the result was quite a considerable weight load in each hand. Only an educated guess can be made at the precise number of satchels carried by the plaintiff in a situation where otherwise reliable witnesses are giving conflicting evidence and where one is quite firm in her view and the others are less certain. I accept that, at the relevant time, the maximum number of stores allocated to a clerk, and hence the maximum number of satchels handled, was something in the order of 12 to 14. I am also of the view that the plaintiff’s firm recollection is not that far from the mark so as to confuse six with 16 or 18. I am of the view that she was probably looking after something in the order of 10 to 12 stores and handling satchels accordingly. If that be so, each Tuesday and Thursday, and leaving to one side the days upon which she was also involved in the tipping of the big bag and the sorting of the satchels at floor level, the plaintiff was bending to retrieve and then picking up and carrying effectively in closed fists something in the order of 25 to 30 kilograms.
22 Once the satchels were conveyed to the plaintiff’s workplace by her, she would then empty them upon her desk and sort out the contents. The empty satchel would be placed on the floor and later collected. What then happened was that the plaintiff spent most of the balance of the working day seated and dealing with data entry, part of this work involving the bending to a drawer and the placing of material in elevated pigeon holes. The plaintiff also described the manner in which she would stand in order to put paperwork into the top folders before her, “but then bending…hunching out to sort out other paper that was at the desk there”. The plaintiff also stated that on a Friday and when rostered to do this particular work, the satchels would be zipped up, pulled from the pigeon holes and effectively thrown overhead into a cage for collection by couriers. I accept that the outgoing satchels were usually heavier than the incoming ones.
23 I have spent considerable time setting out my factual findings in relation to the working procedures because these received considerable attention during the conduct of the case.
(b) The occurrence of injury, its treatment and the plaintiff’s returns to work 24 I accept that by September 2005 the plaintiff was experiencing symptoms in her back. Ms Barber recalled seeing the plaintiff in about September or October 2005 walking around the office at a pace a lot slower than normal. Ms Barber enquired of the plaintiff if anything was wrong. The plaintiff replied that she had a sore back and was going to see the doctor.
25 It should be said that the plaintiff had various absences from employment during 2005 and prior to October, but none of these were specifically related to her back. On 5 October 2005 she attended upon Dr Tereszkiewicz complaining of headaches, dizziness and lower back pains which she associated with her period, but on this occasion the back pain was not resolving. On examination, she was tender in the lumbar area with movements reduced to about 50 per cent of normal and straight leg raising reduced on the left side. At that time, she was about to go on a 14 day cruise in the Pacific Islands. However, before she departed she again saw Dr Tereszkiewicz on 14 October complaining of worsening back pains with shooting pains down the posterior aspect of her left thigh. There were no particular neurological signs, although the doctor felt that possibly the left ankle jerk was absent and straight leg raising on the left side was much more limited. On 19 October 2005 a CT scan was performed. This revealed minor disc degeneration in the upper lumbar discs but a marked posterior bulge at L4/5 pressing on the anterior thecal sac and a large central prolapse, partly calcified to the right of the midline, at L5/S1.
26 On 18 November 2005, after the plaintiff had returned from her leave, an MRI was performed. This revealed a large central and left para-central disc protrusion at L5/S1 on the left contacting and displacing the traversing S1 nerve root along with a probable disc protrusion on the right at L4/5 just contacting the traversing L5 nerve root. The MRI was in fact carried out at the request of Mr Myron Rogers, neurosurgeon, to whom the plaintiff had been referred on 14 November 2005 in relation to left sciatica. The history taken was that such sciatica had been present for six weeks and remained severe. Otherwise, the history taken by Mr Rogers is very brief and does not touch upon causation.
27 Following the MRI, and following a discussion with Mr Rogers, the plaintiff underwent a lumbar decompression performed by him on 3 January 2006, such surgery having essentially been brought about because of the plaintiff’s left-sided sciatica. Rhizolysis of the left S1 nerve root took place. Mr Rogers also immediately identified a large disc prolapse and proceeded to remove extruded disc material. The plaintiff’s left leg pains were relieved and a period of rehabilitation followed. She resumed work in a limited capacity on 10 April 2006.
28 It should be pointed out that, following onset of symptoms in September 2005, the plaintiff did have some assistance in relation to her duties with the satchels. Whilst awaiting the surgery, the plaintiff reduced her working hours per day from eight to six and did not perform the task of picking up and sorting of satchels, and had some assistance in relation to her filing and pigeon holing work.
29 When resuming after surgery, the plaintiff worked for only a few hours per week as part of a return to work plan and slowly tried to build up those hours. Her stores had been given to other people. Essentially she went around the place helping colleagues in relation to work that needed to be done.
30 In June 2006 she underwent a laparoscopy, but was still suffering from back pain. It is not suggested that the laparoscopy had any work relationship. The plaintiff continued to perform data entry work for limited hours but in July 2006 suffered an increase in back pain. This time the symptoms were in her right leg.
31 In the meantime, Mr Rogers had referred the plaintiff to Dr Terrence Lim, consultant in rehabilitation and pain medicine. The plaintiff first saw him on 7 March 2006. Dr Lim diagnosed central sensitisation and myofascial pain syndrome. He arranged for the plaintiff to be admitted to the Hopetoun Rehabilitation Hospital on 23 March 2006. Her condition improved following a week of intensive therapy and she was discharged. Dr Lim reviewed the plaintiff in mid-May 2006 as she had suffered a prolonged flare-up of increased pain which was not abating. She underwent a dry needling process. When seen towards the end of June 2006, she was suffering severe pain causing an increase in anxiety levels. Dr Lim organised another MRI. The conclusion of the radiologist was that the plaintiff had a left posterolateral annular tear in the foraminal position at L3/4 without left L3 nerve root compression, but also had a moderate right posterolateral disc protrusion at L4/5 with right L5 nerve root compression, apart from a scar and recurrent disc protrusion on the left posterolaterally at L5/S1 with S1 nerve root compression. The plaintiff was re-admitted into Hopetoun Rehabilitation Hospital for pain control whilst she awaited further surgery.
32 Dr Lim contacted Mr Rogers, who reviewed the situation and formed the opinion that the major pathology was now at the L4/5 level with right-sided sciatica. When the plaintiff did not improve following a period of conservative treatment, she elected to undergo surgical intervention at that level.
33 On 25 July 2006 Mr Rogers undertook lumbar decompression which involved laminectomy, discectomy and spinal rhizolysis at L4/5. At surgery it was obvious to Mr Rogers that there was a very large disc protrusion causing neural compression and a large amount of extruded disc material and end plate. This was removed.
34 Following the surgery the plaintiff returned to Hopetoun Rehabilitation Hospital where she underwent rehabilitation for some 10 days. Her pain became well controlled but she continued to attend as an outpatient. When Dr Lim saw her next in late September 2006 the plaintiff was highly anxious. By this stage she was seeing Dr Tobie Sacks, a consultant psychiatrist and specialist in addiction and pain medicine. She had been on various medications, including Oxycontin which was not assisting in her pain control. Dr Sacks placed her on methadone.
35 In mid November 2006 the plaintiff again returned to work through a return to work program, initially on three hours per day, two days per week but gradually these hours were increased. The plaintiff was doing data entry work but of a different nature. She was assisting another person manually entering data, although the work still involved prolonged sitting. The plaintiff claims that, during this return to work, she was being harassed and pressured to go to other employment. She also claims that she was being made fun of by one particular fellow worker. Ms Barber and Mr Tocknell denied that the plaintiff was being harassed by management, although Ms Barber agreed that the plaintiff may have mentioned feeling awkward with the other clerks in relation to her condition. I gather that the clerks were assembled and it was explained to them that the plaintiff had undergone surgery and that they should be patient. There was also some difficulty when the plaintiff filled in for a person who was on leave. It had to be made clear to the plaintiff that this was not a full-time position which she could occupy, as the person involved would be returning to that job. Mr Tocknell gave evidence that it was the defendant’s intention that the plaintiff remain an employee, particularly bearing in mind the amount that had been “invested” in her, although there was some mention of her possibly pursuing another career path.
36 Again, where the truth of the matter lies is somewhat difficult to ascertain. In situations such as this, often the interpretation of events is in the eye of the beholder. What management may have intended to be helpful suggestions may have been interpreted by the plaintiff, who I accept was obviously in a highly vulnerable state, as being harassment or pressure. I accept that the plaintiff felt that she was being harassed, pressured and, to some extent, mocked even if that was not actually happening in the way that she perceived it, and this would have added to her anxiety.
37 In March 2007 there was a meeting between the plaintiff, Ms Barber and Mr Tocknell in order to check on her progress and to point out that the person whose role she was occupying was due to come back from leave. As shall be discussed, I accept that the plaintiff still made no mention of her back injury being work-related. It was at this meeting that there was some talk about alternative career paths. The plaintiff had returned to full-time duties for a brief period, but also had a relapse of significant symptoms. This occurred on a particular day when she was sitting down and doing work, stood up, and was conscious of a cracking sound together with an electrical sensation in her leg and a feeling of nausea. It was at about the time of the meeting of 26 March 2007 that the plaintiff ceased work, and she has not worked since.
(c) The plaintiff’s treatment following cessation of work and her dealings with the defendant 38 Mr Rogers has reported that the plaintiff contacted him in mid-March 2007 because she had suffered an acute onset of left-sided sciatica. She was admitted again to Cabrini Hospital, and underwent another MRI, this being performed on 29 March 2007. The conclusion of the radiologist was of a recurrent left posterolateral disc extrusion at L5/S1 with left S1 nerve root compression. Mr Rogers operated again on the same day as the MRI. He performed a two level lumbar decompression and fusion, involving multi-level laminectomy, spinal rhizolysis, internal fixation and posterolateral bone graft. This was carried out at the L4/5 and L5/S1 levels. During surgery, the left S1 nerve root was found to be firmly adherent to calcified annulus and, when it was finally mobilised, extruded pieces of disc material and end plate were removed from beneath its origin.
39 Following this third surgery the plaintiff again returned to Hopetoun Rehabilitation Hospital and was an inpatient for 10 days. She also continued to see Dr Sacks and Dr Lim. Dr Lim has recorded that, by the end of 2007, the plaintiff was able to walk approximately 100 metres with the aid of a single point stick, and she indicated to him that she was planning to pursue a WorkCover claim. By the end of July 2007 her condition had stabilised enough for consideration of a graduated return to light duties supervised by an occupational therapist. This never occurred.
40 Contact between the plaintiff and the defendant occurred in June 2007. On 26 June 2007 the defendant wrote a quite lengthy letter to the plaintiff requiring her to contact it as a matter of urgency so that a meeting could be held in order to obtain an update of her current condition, her expected date of return to work, her medical practitioner’s expectation from a short and long term perspective, her ability to perform her tasks in full, and the need for the defendant to reassess her position. The letter, signed by Mr Tocknell, concluded by pointing out that, whilst the defendant understood what a difficult period it had been for the plaintiff, in essence it could not continue to keep her position open indefinitely without any solid evidence to suggest that she would soon be able to recommence her role with it.
41 Following this, Mr Tocknell received a call from the plaintiff’s occupational therapist and attempts were commenced to arrange a meeting. Ultimately a meeting for 8 August 2007 was arranged. The Human Resources Department of the defendant had also becoming involved and was going to represent the defendant at the meeting. However, the appropriate persons from that department were not available, and so the meeting was cancelled. It was rescheduled for 21 August 2007. However, that meeting was also cancelled because the payroll department of the defendant received some WorkCover documentation from the plaintiff or her representatives. On the advice of the Human Resources Department the meeting was cancelled. No subsequent meeting has been held. The plaintiff has not returned to work. She is still nominally an employee of the defendant.
42 Returning to the plaintiff’s medical history, the plaintiff continued experiencing lower back pains and left thigh pains. She continued on medication and seeing Dr Tereszkiewicz. On 5 June 2008 the plaintiff developed right-sided chest pains, fever and lower leg numbness and weakness. She was admitted to the Monash Medical Centre and found to have a thoracic intra-spinal abscess. On 8 June 2008 she had a laminectomy at T6-8 and evacuation of the abscess. Following this she had a feeling of numbness and weakness in her legs. She continued to experience lower back and buttock pains. The plaintiff now uses a wheelchair as there is a limit to the distance which she can walk. Indeed, she attended court in a wheelchair. She has undergone intensive rehabilitation. She has also continued to be managed by Dr Sacks.
43 Mr Chamings submitted that any injury suffered by the plaintiff was in the nature of an aggravation or exacerbation. Accordingly, by reason of s.82(2C) it was required that the plaintiff’s employment be a significant contributing factor to the injury. This in turn took one to a consideration of s.5(1B). Essentially Mr McDonald agreed with this proposition. This also seems to me to accord with the evidence. The history of previous back pain combined with what was discovered upon radiological investigation and at surgery makes such a conclusion almost irresistible. In summary, and as shall be discussed, I am of the view that the injury suffered by the plaintiff and the consequences thereof in terms of capacity was in the nature of and resulted from an aggravation or exacerbation of degenerative disease in the lumbar spine. Accordingly, I agree that ss.82(2C) and 5(1B) are relevant and applicable.
(d)
The history of complaint by the plaintiff linking her spinal condition and surgery to her employment
44 The lack of complaint linking injury to work duties, the delay in informing medical practitioners concerning this, and the delay in lodging any WorkCover claim form were topics which received a lot of attention. I make the following findings, some of which were not the subject of dispute:
(i)
Bearing in mind that symptoms commenced in September 2005, there was no suggestion made by the plaintiff to the defendant that her symptoms, condition, or the need for surgery were caused by or linked to her employment duties until the receipt of her claim form, it being dated 3 August 2007. Indeed, Mr Tocknell gave evidence that, as far as he could recall, when the plaintiff returned following her period of leave in late October and early November 2005, she specifically denied that her back condition was work-related. It may also appear that a similar remark was made to Ms Barber.
(ii)
As stated, the plaintiff did not lodge a WorkCover claim form until August 2007. No clear or cogent evidence was given as to the reason for this delay.
(iii)
The plaintiff gave evidence that she believed that she told Dr Tereszkiewicz in October 2005 that her back pain was from work, particularly since her period had finished and the pain was continuing. Dr Tereszkiewicz, who struck me as both an impressive and a careful witness, has an entry in his notes of 5 October 2005 as follows: “(Late entry – 2/7/07 lifting bags at work may be the cause).” He made that entry because the plaintiff presented to him on 2 July 2007 asking for WorkCover certificates dating back to 5 October 2005. As stated by Dr Tereszkiewicz, this was: “Because of the indication that that’s probably what was the actual cause of the back in the initial stages”.
He then went on:
“And that was the reason for the entry though. It was only because then going into the history a little bit more that she was able to tell me that – what sort of work she was doing and why she thought her back had suffered at that particular time….”
In cross-examination Dr Tereszkiewicz agreed that the plaintiff, apart from making no mention of back pain visits during the middle of 2005, made no mention of any work-related component on visits of 5, 14 and 20 October 2005. He agreed that the first occasion upon which she attributed back pain to her work was 2 July 2007. Given his dealings with her over the years, he agreed that he would have expected her to have mentioned the work relationship previously if it had been in her mind, although the fact that she did not so mention it did not surprise him “in some ways…because sometimes she does do these things backwards”. On balance I accept that the plaintiff is in error in believing that she did mention to Dr Tereszkiewicz that she thought that the injury was work-related prior to 2 July 2007.
(iv) The history taken by Mr Rogers, although brief, contains no reference to any work caused component. Dr Lim has no such history, although the history taken by him essentially commences with her first attendance upon him on 7 March 2006. Essentially, in his report of 8 September 2008, he is non-committal in relation to the connection between employment and injury, referring to the fact that he was not fully cognisant of the timing of events. The report of Dr Sacks of 14 November 2007 does refer to her duties including lifting heavy bags of coins (an admitted error), but precisely at what stage he took that part of the history is not clear.
45 Basically I am of the view that probably the plaintiff did not in her mind make any causative link between her employment duties and her back symptoms prior to approximately August 2007. Alternatively, if she had made the link, I accept that she did not tell those at work and did not tell her treating medical practitioners until that date. Given that she is an intelligent and articulate woman, and bearing in mind that she had been a patient of Dr Tereszkiewicz since she was a teenager, I consider this proposition less likely. I am of the view that the plaintiff had not, either orally or mentally, attributed her symptoms and conditions to her work until approximately August 2007.
Rulings
(a) Ruling as to whether the plaintiff suffered any and if so what injury to her low back arising out of or in the course of her employment with the defendant 46 Bearing in mind all of the above, and taking into account the expert views that have been more recently expressed, I am of the opinion that the plaintiff has discharged the burden of proof. She has satisfied me that she did suffer injury to the low back arising out of or in the course of her employment as alleged.
47 I have come to this conclusion despite the fact that it seems to me that the plaintiff took the best part of two years before she herself made that attribution. As I stated from the Bench, a reconstruction or a complaint a considerable time later seems to me to be, as a matter of evidence, weaker than a contemporaneous complaint. Obviously an immediate or contemporaneous complaint that work has caused a particular injury has the potential to be more persuasive than a similar complaint made for the first time years after the event. However, that does not mean that the reconstruction is necessarily erroneous. A person reconstructing events, even if years later, might be quite right in coming to a conclusion about cause and effect. In each instance it will be a question of the relevant facts and expert opinions.
48 I accept that the plaintiff’s work duties did involve bending to floor level and picking up material of considerable weight twice a week, with additional heavier duties on a rotational basis every three or so weeks. Other duties involved prolonged sitting, sorting of material, placing material in pigeon holes, bending to a drawer, being hunched over a desk and the like.
49 Given that the above is a summary of the duties performed by the plaintiff, it seems to me quite feasible that such work was a significant contributing factor to the injury. It being a recurrence, aggravation, acceleration, exacerbation or deterioration of a pre-existing injury or disease within the meaning of s.82(2C) of the Act. Of course, in determining this, the provisions of s.5(1B) must be considered. When one takes into account the fact that there is no particular evidence of other potentially causative activities or incidents occurring at the relevant time, it becomes probable, and not just feasible, that work constituted a significant contributing factor to the injury. Counsel agreed that such a finding is one of fact which must necessarily be made. I do find that, on the balance of probabilities, the plaintiff’s employment was a significant contributing factor to the injury.
50 That this is so is reinforced by a consideration of the medical opinions. Dr Tereszkiewicz gave evidence that, given the level of degeneration that existed in the plaintiff’s back:
“…my opinion would be she would be more susceptible to getting back pains or complications of the degenerative process already there though, and certainly the disc prolapse could be part of that though, as well too.”
51 When asked about the possible work relationship, he stated as follows, and it is one of those instances where the transcript does not do the witness justice:
“…I think if those changes were already there then the type of work she’d be doing, I’d expect possibly that that would aggravate the back, though, and certainly aggravate pain that may be coming from the degenerative changes; whether the disc prolapse had occurred at that time or there was a disc prolapse and it’s just been aggravated though, I think the type of work she was doing, the way she described it, that – I suppose it wouldn’t surprise me if that could happen, that she could get this acute exacerbation.”
52 The clear impression conveyed by the doctor was that he in fact supported the work/injury relationship. In re-examination he stated as follows:
“…certainly I think, just having the extra bit of – extra work can definitely exacerbate the pain. That wouldn’t surprise me that that could happen though.”
53 Professor Richard Bittar, consultant neurosurgeon, examined the plaintiff on two occasions at the request of her solicitors. Having taken a history of her lifting and carrying the satchels and having carried out an examination and viewed the various investigations, he expressed the view that “…her employment has been a significant contributing factor to the injury to her lower back”, this opinion being expressed in his report of 3 October 2008.
54 Professor Bittar reviewed the plaintiff and reported again on 3 May 2010. On this occasion he stated the following:
“I remain of the view that her lumbar spine injury is significantly
related to her employment.”
55 Mr Max Wearne, orthopaedic surgeon, examined the plaintiff at the request of the defendant on 9 May 2008, reporting on 15 May. In essence, having made a correction to that report in an addendum of 26 August 2010, whereby the word “probability” became “possibility”, Mr Wearne expressed the view that he considered it only a possibility that the bending and lifting involved in the handling of the courier bags was a contributing factor to the plaintiff’s back condition.
56 Whilst the correction, in excess of two years after the original report, viewed one way may make more sense of it, a correction of such importance after such an interval, dated and arriving on the third day of the hearing, and patently following a conversation with someone from the defendant’s solicitors, might be seen as raising a question mark in relation to the force of Mr Wearne’s views. However, he was not required for cross-examination and I accept that the corrected version with “probability” altered to read “possibility” does represent his opinion.
57 Mr McDonald was critical of a further aspect of Mr Wearne’s report. Twice in the report of 15 May 2008 Mr Wearne raised the issue of why there was something in the order of a 23 month delay between the occurrence of injury and the lodging of the claim. Indeed, this issue seems to have featured prominently in his thinking – see page 7 of the report. There is some force in Mr McDonald’s submission that this is not really a matter for medical consideration.
58 As was submitted, in arriving at my conclusion I have had regard not only to the statutory provisions but also to decisions of the Supreme Court and of the Court of Appeal. In particular, my attention was directed to the Judgment of Ashley J in Popovski v Ericsson Australia Pty Ltd [1968] VSC 61. In that decision his Honour found that there had been no misdirection by reason of the following statement by the magistrate:
“There may be more than one factor which is significant and one factor may be more significant than another but the question remains whether the worker’s employment is a significant contributing factor to the causation of his or her injury. It may be of lesser significance than another but nevertheless satisfies the description of ‘significant’.”
59 When considering the meaning of the word “significant”, his Honour came to the conclusion that the wording which accurately reflected the sense of the legislation was that the work contribution had to be “of considerable amount or effect”. He went on to say that what amount or effect would be “considerable” in any particular case would be a matter for determination on the facts, the determination being ordinarily inviolable.
60 In Zalteska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141, the Court of Appeal described the question of causation as being a matter of common sense and also stated that:
“It is not necessary for the worker to establish that the act or omission of the employer was the sole or dominant cause of the injury, or that the employment itself created any ‘special risk’ of or ‘special exposure’ to injury.”
61 It would also be fair to say that, whilst the Court of Appeal specifically expressed no view on the meaning of the word ‘significant’ as stated in Popkovski, there is no suggestion that Popkovski did not continue to be, or represent, good law.
62 Bearing all of the above in mind, I find as a fact that the work contribution to the plaintiff’s injury was one of considerable amount or effect and thus the plaintiff’s employment was a significant contributing factor to her injury as required by s.82(2C) of the Act. This seems to me to be the correct conclusion when the factors set out in s.5(1B) are taken into account. There is no evidence before me that persuades me that a consideration of those matters leads to a finding against the plaintiff. Such matters as the duration of the employment, the nature of the work performed and the tasks involved support the proposition that employment was a significant contributing factor. Whether it could be said that the injury would probably have developed if the particular employment had not taken place seems to me to be dubious. The existence of hereditary risks, the lifestyle of the plaintiff and her activities outside the workplace are not matters where there is evidence counting against the plaintiff. Mr Wearne has referred to a suspicion that her being overweight may have been a potent factor in the development of degenerative disease, but even in that regard his opinion appears guarded.
63 In summary, having had regard to the legislative provisions, the relevant authorities and the available evidence, I find as a fact that the plaintiff’s employment was a significant contributing factor to her injury.
Ruling as to whether, following the injury, the plaintiff had a capacity for employment which was destroyed by a subsequent non work-related injury
64 This issue, which centres upon questions involving the abscess in the thoracic spine, was of potential importance because of the wording of s.93CC(1) of the Act. In order for weekly payments to continue beyond the second entitlement period, a worker must be assessed as having no current work capacity, a situation which must be likely to continue indefinitely. Thus, arguably, if the abscess in the thoracic spine was not work-related and destroyed a capacity for employment which the plaintiff otherwise possessed, weekly payments would not continue beyond the second entitlement period. Unlike the situation which would have prevailed under the Workers Compensation Act 1958, a surviving entitlement to ongoing weekly payments for partial incapacity would not be sufficient.
65 However, in my opinion much of the potential heat in regard to this issue disappeared when the report and addendum of Mr Wearne were finally placed in evidence as the conclusion of the hearing approached.
66 It is to be remembered that symptoms in relation to the thoracic intra-spinal abscess commenced on 5 June 2008, resulting in surgery on 8 June 2008. Mr Wearne examined the plaintiff on behalf of the defendant on 9 May 2008, comparatively very close to the date of the onset of the abscess symptoms. In relation to questions concerning her capacity for employment and its duration, he replied as follows:
“Currently, I regard Ms Marianis as not having a work capacity…I consider it a strong likelihood that this will be the position indefinitely.”
67 Certainly Dr Tereszkiewicz gave evidence that, before June 2008, the plaintiff was making “a little bit more progress” and the abscess “just seemed to impair her improvement up until that time”. In answer to a question of mine, Dr Tereszkiewicz said that his “feeling” would be that there would have been a capacity for work if it was not for the spinal abscess, although to what degree he could not say. In that regard, it would have depended on rehabilitation and then an assessment of what her capabilities would be. This was because there had been some improvements, “but how much more it would have improved, that’s – I couldn’t really say”.
68 As far as I can tell from the clinical notes, the last occasion upon which the plaintiff attended Dr Tereszkiewicz prior to early June 2008 was 1 May. His report of 6 October 2008 would appear to indicate that, prior to the abscess, she was experiencing lower back pains, left thigh pains requiring analgesics, pain being worse at night and aggravated by bending or lifting, or by sitting or standing for long periods.
69 Given the somewhat cautious remarks of Dr Tereszkiewicz and the clear statement of Mr Wearne, an orthopaedic surgeon, that, almost immediately prior to the onset of the abscess, the plaintiff had no capacity for work and this was likely to continue indefinitely, it is the opinion of Mr Wearne which I prefer. Dr Tereszkiewicz indicated several times during his evidence that he deferred to specialist opinion, and on this occasion I am of the view that the almost contemporaneous specialist opinion was correct.
70 I might add that Dr Tereszkiewicz, in relation to the possible connection between the abscess, the work-related injury and the resultant surgery, stated as follows:
“To me having the back abscess, after all the things, all the operations she’s gone through, to me it struck me, it would have been quite peculiar that it would have just come as just out of the blue as a separate pathology, if I can put it that way.”
71 Subsequently he stated:
“So, it’s – it’s just to me it seemed hard to fathom that that would be a completely separate issue. My feeling is that it may relate to the back but I really haven’t got the expertise to give the evidence that this is what can happen though.”
72 In answer to a question of mine as to whether Dr Tereszkiewicz was being guided by logic or instinct rather than medicine, he replied:
“It’s just that it’s all – timeframe, chronologically it’s all come up
from pretty much the same time.”
73 Professor Bittar commented as follows in relation to the aetiology of the abscess:
“It is possible that this was related to her previous surgery, however one cannot be certain of such a relationship. The abscess did occur a distance from her previous three lumbar spine operations, however an epidural catheter was used, perfectly reasonably, during one of her surgeries, and this was directed in the direction of the thoracic spine.”
74 In his submissions, Mr Chamings neatly summarised the situation, pointing out that, pursuant to the Act, had the plaintiff not suffered the abscess, and if she had a capacity for employment prior to that, her entitlement to weekly payments would have ceased on approximately 3 January 2008. In relation to the connection between the employment injury and the abscess, both counsel referred me to the decision in Dahl & Anor v Grice (1981) VR 513. I would refer to the following extract from the Judgment of Gobbo J at page 522:
“It is plain that in such matters the court has recognised that a possible cause may be elevated to a probable cause. There are a number of reasons why it is undesirable that the opinion as to causal connection be stated in terms of probabilities. In the first place, this is the role of the tribunal of fact and the ultimate task rests with the judge or jury, as the case may be.”
75 His Honour also referred, with approval, to the Judgment of Mahoney JA in Fernandez v Tube Makers of Australia Ltd [1975] NSWLR 190 as follows:
“In the present case, two questions emerged: (i) whether trauma of the relevant kind was a possible cause to the hand condition of which the plaintiff complained; and (ii) whether it is the actual cause of that condition in the present case.”
76 In this case, whilst, as I said from the Bench, the link between the work- related injury and the ultimate abscess may be tenuous, I am persuaded that it exists. Professor Bittar, the only expert to comment upon it, expressed the connection in terms of a possibility, but also pointed to the fact that an epidural catheter was used and was directed towards the thoracic spine. Dr Tereszkiewicz did not profess to be an expert, but had a more instinctive view that, given the three bouts of surgery to the spine which the plaintiff had undergone, it would have been “quite peculiar” if the abscess had come “just out of the blue”.
77 On balance, and adopting the type of approach used in Dahl v Grice, it seems to me more probable than not that the abscess in the thoracic spine is related to the previous bouts of surgery and hence is something to which employment was a significant contributing factor. Even if this were not so, I am of the view that Mr Wearne is correct, and that the plaintiff’s capacity for employment had been destroyed prior the occurrence of the abscess, and that there was a strong likelihood that she would not have a work capacity indefinitely.
78 Accordingly, in my view any argument based upon some intervening factor not related to work and which destroyed an existing capacity does not succeed. On balance, in my opinion, such intervening factor, being the abscess, resulted from the work-related injury. I am also of the view that any capacity for employment possessed by the plaintiff had already been destroyed as at the time of the occurrence of the abscess.
Ruling as to the plaintiff’s capacity for employment
79 In my opinion, the plaintiff has no capacity for employment and this situation will continue indefinitely. Mr Chamings, very properly, stated that, if I made the appropriate findings, since the occurrence of the thoracic surgery there is no one who is prepared to say that the plaintiff has a capacity for work. Of course, Mr Wearne has said that such was the situation prior to the development of the abscess. Dr Tereszkiewicz has remarked that the plaintiff is incapable of returning to work in any capacity. Professor Bittar, in his report of 3 May 2010, repeated his view that the plaintiff has no capacity for any type of work and that her prognosis is poor. I might add that opinions such as these reinforce the view which I had formed after having had the advantage of seeing the plaintiff in court.
Conclusion
80 The plaintiff is successful in relation to each principal head of relief sought by her in the Amended Statement of Claim. I determine that she is entitled to compensation. She is entitled to weekly payments of compensation at the appropriate rate as for a person with no current work capacity within the meaning of the Act. She is entitled to payment of reasonable medical and like expenses, and to a determination or declaration that the defendant is liable to her pursuant to ss.98C and 98E of the Act. I shall hear the parties as to any further ancillary orders required, including those which relate to interest and to the payment of costs.
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